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 THE LIBRARY 
 
 OF 
 
 THE UNIVERSITY 
 
 OF CALIFORNIA 
 
 LOS ANGELES 
 
 SCHOOL OF LAW
 
 BRICKWOOD'S 
 SACKETT 
 
 ON 
 
 INSTRUCTIONS 
 TO JURIES 
 
 CONTAINING A TREATISE ON 
 
 Jury Trials and Appeals 
 
 WITH 
 
 FORMS OF APPROVED INSTRUCTIONS AND CHARGES 
 
 ANNOTATED 
 
 ALSO ERRONEOUS INSTRUCTIONS WITH COMMENT OF 
 
 THE COURT IN CONDEMNING THEM 
 
 THREE VOLUMES 
 VOL. II 
 
 THIRD EDITION 
 
 BY 
 
 ALBERT W. BRICKWOOD, LL. B. 
 
 OF THE CHICAGO BAR 
 
 CHICAGO 
 
 CALLAGHAN & COMPANY 
 1908
 
 COPYRIGHT 1888 
 
 By 
 
 OALLAGHAN & COMPANY 
 
 COPYRIGHT 1908 
 
 BY 
 
 OALLAGHAN & COMPANY 
 
 T
 
 VOLUME II 
 
 <i>6 ihjri
 
 CHAPTER LXII. 
 NEGLIGENCE— IN GENERAL. 
 
 See Erroneous Instructions, same chapter head. Vol. III. 
 
 § 1336. Neg-ligence defined. 
 
 § 1337. Ordinary care defined— Rea- 
 sonable care. 
 
 § 1338. Elements necessary for a 
 recovery. 
 
 § 1339. More accident not action- 
 able. 
 
 § 1340. Actionable injury must be 
 the result of negligence. 
 
 § 1341. Injury the result of negli- 
 gence and accident. 
 
 § 1342. The negligence charged must 
 be the proximate cause. 
 
 § 1343. Question of negligence one 
 of fact for the jury. 
 
 § 1344. Instructions referring jury 
 to pleadings as to negli- 
 gence alleged. 
 
 § 1345. Recovery on proof of allega- 
 tions contained in one or 
 more counts of declaration. 
 
 § 1346. Circumstantial evidence sup- 
 porting plaintiff's theory 
 must be inconsistent with 
 any other conclusion. 
 
 5 1?A7. Burden of proof. 
 
 § 1348. Proof may be made by de- 
 fendant's own witnesses. 
 
 § 1349. Coroner's verdict not evi- 
 dence of negligence. 
 
 § 1350. View by jury of scene of 
 accident as evidence of 
 negligence. 
 
 § 1351. Contributory negligence de- 
 fined. 
 
 § 1352. Effect of contributory negli- 
 gence. 
 
 § 1353. Ordinary care of plaintiff 
 defined. 
 
 8 13.'4. Contributory negligence of 
 fliildren. 
 
 § 1355. Same subject — Failure of in- 
 fant plaintiff to use ade- 
 quate care. 
 
 § 1356. Intoxication as contributory 
 negligence. 
 
 § 1357. Defective hearing. 
 
 § 1358. Contributory negligence — 
 Effect of terror in sudden 
 emergency. 
 
 § 1359. Danger must be impending 
 for contributory negligence 
 to be a defense. 
 
 § 1360. Injury after defendant saw 
 danger in time to avert — 
 Willful and wanton de- 
 fined. 
 
 § 1361. Burden of proof as to con- 
 tributory negligence — 
 States holding burden is 
 on plaintiff to prove free- 
 dom from contributory 
 negligence. 
 
 § 1362. Same subject— States hold- 
 ing burden of proof is on 
 defendant to establish 
 plaintiff's contributory neg- 
 ligence. 
 
 § 1363. Imputed negligence — Rule in 
 Ohio. 
 
 § 1364. Same subject — Negligence as 
 regards children. 
 
 § 1365. Parties to action for negli- 
 gence — Several defendants. 
 
 § 1366. Corporation has same status 
 as individual. 
 
 5 1367. Contractor's negligence. 
 
 § 1368. Effect of release of cause of 
 action by plaintiff. 
 
 § 1369. Release obtained by fraud 
 or misrepresentation. 
 
 8 1336. Negligence Defined, (a) ** Negligence," as that term is 
 xiHdl in lliis fliari^M' means the failure to exerci.se ordinaiy care.^ 
 (h) Ncfiifli/^ence is a failuie to exercise that degree of care and 
 
 1— Rnpld T. Ry, Co. v. Miller, (7611; Southern K. Ry. Co. v. Sage 
 
 — Tox. riv. Ai.p. — . 85 S. W. 4!n: — Tpx. Civ. App. — , 80 S. W. 10.S8 
 
 Oonnan'fl Adm'r v. Lnulsvlllo Rv. (1039); Nesbit v. Crosby, 74 Conn. 
 
 Co., 24 Ky. L. 1938, 72 S. W. 760 554. 51 Atl. 550 (552). 
 
 884
 
 § 1336.] 
 
 NEGLIGENCE— IN GENERAL. 
 
 885 
 
 diligence that an ordinarily prudent person would exercise in his own 
 affairs under like or similar circumstances.^ 
 
 (c) Negligence consists in doing something, which a person of 
 ordinary iDrudenee and care would not have done, or would not have 
 omitted to do, under like or similar circumstances.^ 
 
 (d) Negligence is the failure to do what a prudent person would 
 ordinarily have done under the circumstances of the situation, or 
 doing what such person, under the existing cii'cumstances, would not 
 have done. The duty is indicated and measured by the exigencies of 
 the occasion.* 
 
 (e) Negligence is failure in the matter of care under the circum- 
 stances. Every man is bound to be careful that others take no 
 harm by his conduct or his actions. The measure of his duty is the 
 circumstances of the case. "What may be absolutely necessary under 
 some circumstances to protect others from harm may not be necessary 
 under other circumstances. Negligence, as I have said, is the lack of 
 care under the circumstances. It is the doing of something which, 
 
 2 — "It is said that this does not 
 cover acts of commission as well 
 as acts of omission, and that in 
 this respect it is faulty and mis- 
 leading-. But we think that it 
 covers both. Failure to exercise 
 care and diligence that an ordi- 
 narily prudent person would in- 
 volves either or both." German 
 Ins. Co. V. C. & N. W. Ry. Co., 
 128 Iowa 386, 104 N. TV., 361 (363). 
 
 3— Galloway v. Chicago, R. I. «& 
 P. Ry. Co., 87 Iowa 458, 54 N. W. 
 447 (450). 
 
 "Appellant cites Pennsylvania 
 Co. V. Marion, 104 Ind. 239, 3 N. E. 
 874; and contends that this instruc- 
 tion makes the negligence of the 
 plaintiff to depend on the question 
 whether a person of ordinary pru- 
 dence would have done the same 
 thing. As said in the case cited, 
 'the formula used is that fre- 
 quently adopted in attempting to 
 define "negligence." ' It is there 
 said: 'Whether the plaintiff was 
 negligent or not depended upon the 
 particular facts admitted or satis- 
 factorily proved in the case.' This 
 instruction does not ignore the 
 facts, but makes them the very 
 g-roundwork of the inquiry. True, 
 'the most prudent men are not 
 always exempt from carelessness, 
 and. when actually negligent, the 
 law charges the same consequences 
 to their negligent conduct as to 
 similar conduct in others.' But 
 there is no better standard by 
 which to measure the acts of men, 
 as to negligence, than to ask what 
 
 persons or ordinary prudence and 
 care would have done under the 
 same circumstances; and such is 
 the rule of this instruction." 
 
 4— Houston & T. C. R. Co. v. 
 Milam, — Tex. Civ. App. — , 58 S. 
 W. 735 (736). 
 
 "We believe the usual definition 
 of negligence, as often approved by 
 the courts of this state, would be 
 less subject to criticism. It is 
 the failure to do what a person 
 of ordinary prudence would do 
 under the circumstances, or doing 
 what a person of ordinary pru- 
 dence would not do under the cir- 
 cumstances. The care required is 
 ordinary care; that is, such care 
 as a person of ordinary prudence 
 would exercise under the circum- 
 stances. The failure to exercise 
 such care is negligence. Austin N. 
 W. R. Co. V. Beatty, 73 Tex. 596, 
 11 S. W. 858; City of Austin v. 
 Ritz, 72 Tex. 402, 9 S. W. 8S4; 
 St. L. A. & T. R. Co. V. Finley, 
 79 Tex. 88, 15 S. W. 266; Houston 
 & T. C. R. Co. V. Smith, 77 Tex. 
 181, 13 S. W. 972; Gulf, C. & S. P. 
 R. Co. V. Hodges, 76 Tex. 92, 31 
 S. W. 64; Houston & T. R. Co. 
 V. Oram, 49 Tex. 341. The case 
 last cited above is authority for 
 the charge given in this case, as 
 is the case of McDonald v. R. 
 Co., 86 Tex. 11, 22 S. W. 939. See 
 also Martin v. R. Co., 87 Tex. 119, 
 26 S. W. 1052; Texas & P. R. Co. 
 V. Gorman. 2 Tex. Civ. App. 146, 
 21 S. W. 158; and Houston & G. N. 
 R. R. Co. v. Randall, 50 Tex. 254."
 
 8^ 
 
 FORMS OF INSTRUCTIONS. 
 
 [§ 1.^36. 
 
 under the ciremnstanees and in view of his duty to endeavor to 
 protect other people from hanii by reason of his conduct, a reason- 
 able aixd prudent man of ordinary common sense, would not do. It 
 is the failure to do something which a man of good judgment and 
 sound common sense would do, in view of the circumstances, out of 
 a desire to perfonn his duty to protect other people from harm by 
 reason of his actions.'^ 
 
 (f) The court instructs the jury that negligence is the omission 
 to do something which a reasonable and prudent man, guided by 
 those considerations which ordinarily regulate the conduct and af- 
 fairs, would do, or doing something which a reasonable man would 
 not do under all the circumstances surrounding and characterizing, 
 the particular case. And the jury in this case, taking this as the 
 dehnilion of negligence, is to find from the facts and circumstances 
 surrounding the transaction in question whether or not the defendant 
 company has committed negligence; and if they so find, and further 
 find that plaintiff was injured thereby, then the verdict should be 
 for plaintiff.*^ 
 
 5 — Foote v. American P. Co., 201 
 Pa. St. 510, 51 Atl. 364. 
 
 6— Kennedy v. So. Ry. Co., 59 S. 
 C. 535, 38 S. E. 169 (170). 
 
 In Bodie v. Charleston & W. C. 
 Ry. Co., 61 S. C. 468, 39 S. E. 715, 
 716, the following charge was 
 given: 
 
 "Negligence simply means want 
 of due care. That is a very short 
 definition. If you weigh each 
 word, you will find that that con- 
 tains the whole doctrine, — want of 
 duo care; not simply want of care 
 but want of due care. From its 
 very nature, negligence may con- 
 sist in the doing something which 
 should not have been done. Negli- 
 gence may also consist in leaving 
 updone that which ought to have 
 bein done. It may, therefore, be 
 II fault of omission as well as a 
 fault of commission. (It is im- 
 pcsslble for the court to furnish 
 a jury with a hard and fast 
 measure of care, the presence of 
 which, or the excrci.se of which, 
 would drive away the idea of 
 nc-gligence, the absence of which 
 would moan the presence of negll- 
 gencf. There Is no such hard and 
 fast rule which can be applied by 
 a jury like a foot rule or a bushel 
 moasuro; but thoro Is a general 
 pririflplo which underlies the doc- 
 trine of negligence, and shows 
 sufllflently clearly the mc.isure of 
 care propor in each particular 
 caHf. and It Is this: The greater 
 the probability of danger in the 
 
 particular circumstances, the 
 greater is the required degree of 
 care, because the measure of care 
 naturally varies in the different 
 circumstances. For example a 
 man cutting wood with an ax 
 must exercise a proper amount of 
 precaution to guard against other 
 people that may be near him; but 
 a man who is blasting rock with 
 dynamite, since there is much 
 greater danger in handling that 
 explosive than in holding an ax, 
 is required to exercise a much 
 greater degree of care. Due care 
 in handling an ax in cutting wood 
 would not be Sufficient measure 
 of care in handling dynamite and 
 blasting rock. But this shows you 
 that the jury in each particular 
 case has to establish from the 
 testimony in the case exactly the 
 measure of care which should have 
 been exercised under the circum- 
 stances, and it is just that amount 
 of care which would or should 
 have been exercised by a man of 
 ordinary intelligence and prudence. 
 Your common sense and intelli- 
 gence will guide you, in deciding 
 by the testimony), in the case what 
 amount of care should have been 
 exercised by the railway comptmy 
 in the circumstances detailed in 
 the testimony, and also will show 
 you what amount of care should 
 
 have boon exercised by , 
 
 the plaintiff, undor the circum- 
 stances detiiilod. when you are con- 
 sidering the subject of contribu-
 
 § 1336.] NEGLIGENCE— IN GENERAL. 887 
 
 (g) Negligence, as used in the insti-uctions, means, when ap- 
 plied to plaintiff, a failure to exercise ordinaiy care to protect him- 
 self from injury; and "ordinary care" means such care as an or- 
 dinarily prudent man would exercise to protect himself from injuiy 
 under the same or similar circumstances.'^ 
 
 (h) Negligence is defined to be the want of ordinary care; that 
 is, such care as an ordinarily prudent person would exercise under 
 like circumstances. There is no precise definition of ordinai'y care, 
 [but it may be said that it is such care as an ordinarily prudent 
 person would exercise under like circumstances, and should be pro- 
 portioned to the danger jyid peril reasonably to be apprehended from 
 a lack of proper prudence. This rule applies alike to both parties 
 to this action, and may be used in determining whether either was 
 negligent. 
 
 (i) It must also appear from the evidence that the plaintiff did 
 not in any way contribute to the happening of the accident in ques- 
 tion by any negligence on his part; that is, by his own want of 
 ordinary care. The plaintiff, on his part, was under obligation to use 
 ordinary care to prevent injuiy when passing over any sidewalk; and 
 if he failed so to do, and his failure in any way contributed to the 
 happening of the accident in question, then he cannot recover herein. 
 The evidence shows without dispute that he was blind, and this fact 
 should be considered by you in determining what ordinary care on his 
 part would require when he was attempting to pass over one of the 
 sidewalks of this city.^ 
 
 tory neg-ligence; and I repeat It Is sets of circumstances, and that 
 just that degree of care which a the care or caution required in 
 man of ordinary intelligence, com- one case may be greater or less 
 mon sense and prudence should than the care or caution required 
 have exercised under the same or in another; but the jury (were 
 similar circumstances; not abso- plainly instructed that in any par- 
 lute care, not the utmost care to ticular case or set of circum- 
 guard against a possible danger, stances the law enjoined the duty 
 but only reasonable care, due of observing the care due under 
 care, that amount of precaution such circumstances, and the court 
 proper to guard against the prob- did not instruct the jury that in 
 able danger." any case the law required a higher 
 On appeal, the court said: degree of care than due care." 
 "The exception is to that portion 7 — L. & N. R. Co. v. Hiltner, 22 
 of the charge above which is with- Ky. Law 1141, 60 S. W. 2 (4); Gulf, 
 in the brackets, and the specific C & S. F. Ry. Co. v. Hays, — 
 errors assigned are: (1) That the Tex. Civ. App. — , 89 S. W. 29 (32). 
 jury were instructed that in some 8 — Hill v. City of Glenwood, 124 
 cases a higher degree of care than Iowa 479. 100 N. W. 522 C524). 
 due care is necessary to exempt "It is too well established to re- 
 from liability; and (2) the charge quire argument or citation of 
 left to the jury the legal question, authority that the care which the 
 what degree of care was necessary city is bound to exercise in the 
 in this case. We do not think the maintenance of its streets is ordi- 
 charge is amenable to either objec- nary and reasonable care, the care 
 tion. The learned circuit judge, which ordinarily marks the con- 
 by his language and illustration, duct of a person of average pru- 
 merely meant to show the jury donee and foresight. So. too, it 
 that 'negligence' is a relative term is equally well settled that the 
 when applied to different cases or care which a person using the
 
 888 
 
 FORMS OF INSTRUCTIONS. 
 
 [§ 1337. 
 
 § 1337. Ordinary Care Defined— Reasonable Care, (a) The court 
 instructs the jury, that ordinary care depends upon the circumstances 
 of each particular case, and is such care as a person of ordmai-y pru- 
 dence and skill would usually exercise under the same or similar cir- 
 
 (b) The court instructs the jury that ordinary care, as mentioned 
 in these instructions, is the degree of care which an ordinarily prudent 
 person situated as the defendant was, as shown by the evidence, 
 before and at the time of the injury, would usually exercise for his 
 
 own safety.!'^ „ . :, 
 
 (c) Ordinary care means the degTee of care usually exercised 
 by ordinarily careful and prudent persons under the same or similar 
 circumstances. Negligence is the failure to exercise ordinary care.^^ 
 
 street is bound to exercise on his 
 own part to discover danger and 
 avoid accident and injury is of 
 precisely the same character, the 
 ordinary and reasonable care ot 
 a person of average prudence and 
 forethought. The streets are for 
 the use of the general public with- 
 out discrimination; for the weak, 
 the lame, the halt and the blind, 
 as well as for those, possessing 
 perfect health, strength and 
 vision. The law casts upon one no 
 greater burden of care than upon 
 the other. It is true, however, 
 that in determining what is rea- 
 sonable or ordinary care we must 
 look to the circumstances _ and 
 surroun'^lings of each particular 
 case. As said by us in Graham 
 V. Oxford, 105 Iowa 708, 75 N. W. 
 
 474: 
 
 'There is no fixed rule for deter- 
 mining what is ordinary care ap- 
 plicable to all cases, but each case 
 must be determined according to 
 its own facts.' In the case before 
 us the plaintiff's blindness is sim- 
 ply one of the facts which the jury 
 must give consideration in finding 
 whether he did or did not act 
 with the care which a reasonably 
 prudent man would ordinarily 
 exercise when burdened by such 
 Infirmity. In other words, the 
 measures which a traveller upon 
 the street must employ for his 
 own protection depend upon the 
 nature and extent of the peril to 
 which he knows, or In the exercise 
 of leasonable prudence ought to 
 know, he is expo.sed. The greater 
 and more Imminent the risk, the 
 more he Is required to look out for 
 and guard ngalnst injury to him- 
 Sflf; but the care thus exercised 
 Is neither more nor l^ss th.'in ordi- 
 nnry care — the care which men of 
 ordinary prudence and experience 
 
 may reasonably be expected to 
 exercise under like circumstances. 
 See cases cited in 21 A. & E. Enc. 
 Law (2d Ed.) 465, note 1. In the 
 case at bar the plaintiff was right- 
 fully upon the street, and if he 
 was injured by reason of the 
 negligence of the city, and without 
 contributory negligence on his 
 part, he was entitled to a verdict. 
 In determining whether he did 
 exercise due care it was proper for 
 the jury, as we have already in- 
 dicated, to consider his blindness, 
 and in view of that condition, and 
 all the surrounding facts and cir- 
 cumstances, find whether he exer- 
 cised ordinary care and prudence. 
 If he did, he was not guilty of 
 contributory negligence. This 
 
 view of the law seems fo be fairly 
 embodied in the instructions to 
 which exception is taken." 
 
 9— So. K. Ry. Co. v. Sage, — 
 Tex. Civ. App. — , 80 S. W. 1038 
 (1039) ; Copeland v. Wabash R. Co. 
 175 Mo. 650, 75 S. W. 106 (108); 
 Rapid T. Co. v. Miller, — Tex. Civ. 
 App. — , 85 S. W. 439; Cronin v. 
 Delavan, 50 Wis. 375, 7 N. W. 249. 
 
 10— C. C. Ry. Co. V. O'Donnell, 
 208 111. 267 (273), 70 N. E. 294 and 
 477. 
 
 "The instruction required due 
 care before and at the time of 
 the injury, and, we think, vas 
 broad enough, and did not assume 
 as is contended, that the deceased 
 was in the exercise of due care 
 at any time." 
 
 11 — Gorman Adm'r. v. Louisville 
 RV. Co., 24 Ky. L. 1938, 72 S. W. 
 760 (761); Louisville & N. Ry. Co. 
 V. Lucas, 30 Ky. L. 359, 98 S. W. 
 308, wh'-re a somewhat similar 
 instruction was approved. 
 
 The court, in the first case, said: 
 "It might bo impossible to lay
 
 § 1338.] 
 
 NEGLIGENCE— IN GENERAL. 
 
 889 
 
 (d) Reasonable care means that degree of care which an oi'dina- 
 rily prudent and careful person of the same age would exercise under 
 similar circumstances and surroundings.^- 
 
 § 1338. Elements Necessary for a Recovery, (a) The jury are 
 instructed that the plaintiff cannot recover in this case against the 
 defendant company unless they find that she had a preponderance of 
 the evidence supporting the propositions : 
 
 First. That the plaintiff was not at the time of the ac- 
 cident guilty of any failure to exercise ordinary care for her 
 own safety, which approximately contributed to her injury. 
 
 Second. That the defendant company was guilty of neg- 
 ligence in the manner charged in the declaration. 
 
 Third. That such negligence was the proximate direct 
 cause of the plaintiff's injuries in question, if any. 
 
 And if you find from the evidence that the plaintiff has failed to 
 sustain these propositions, as stated, or that she has failed to sustain 
 any one of them she cannot recover against said defendant company, 
 and you should find the defendant not guilty.^^ 
 
 down a general rule that would 
 aptly and minutely define the care 
 to be exercised under e^'ery con- 
 ceivable state of case. Nor would 
 it be wise to attempt it. "^^hat 
 would amount to ordinary care in 
 a sparsely settled, unfrequented 
 part of a city might be gross 
 negligence in a much used down- 
 town thoroughfare. And what 
 would be ordinary care toward an 
 adult under similar circumstances, 
 might be criminal negligence to- 
 ward an infant of very tender 
 years. Ordinarily careful and 
 prudent persons regulate their 
 conduct by the difference in cir- 
 cumstances surrounding the act. 
 This is generally knov.'n and 
 recofrnized of all people. That is 
 what makes it ordinary care. So, 
 when the jury were instructed that 
 the motorman must i-egulate his 
 conduct in operating the car by 
 the standard of conduct and caij- 
 tion usually exercised by ordi- 
 narily careful and prudent persons 
 in operating electric cars in such 
 neighborhoods where small child- 
 ren were likely to be upon the 
 street his full legal duty was 
 stated." 
 
 12— Economy L. & P. Co. v. 
 Hiller. 113 Til. App. 105, aff'd 203 
 111. 518, 68 N. E. 72. 
 
 "The objof'tion to this instru-^- 
 tion is that it omits to tell the 
 jury that in determining the de- 
 gree of care which the appellee 
 
 was required to use, the jury 
 should consider not only the age 
 but also the experience and dis- 
 cretion of appellee. In Weick v. 
 Lander, 75 111. 93, our Supreme 
 Court say: 'It was proper for 
 the jury in passing on the degree 
 of care required of the plaintiff to 
 take into consideration his age 
 and experience.' And in Chicas:o 
 V. Keefe, 114 111. 222, 2 N. E. 
 267, the instruction on this point 
 was that the intestate (a child 
 ten years old) should exercise such 
 degree of care 'as from his age 
 and intelligence, under the circum- 
 stances in evidence, was required.' 
 The court sustain the instructioii 
 and while criticising its phraseo- 
 logy say: 'The circumstances are 
 always to be taken into consider- 
 ation in such cases and if intestate 
 exercised such care as under the 
 circumstances might be expected 
 from one of his age and intelli- 
 gence, it was sufficient.* And 
 again in I. C. R. R. Co. v. Slater. 
 129 111. 91. 21 N. E. 575. our Su-. 
 preme Court Review and approve 
 the foregoing authorities and say: 
 'The.se decisions are in harmony 
 with the decisions of other states 
 on the same subject and but 
 recognize the rule laid down by 
 approved text writers on nes-1i- 
 gence:' citing Shearman & Red- 
 feld on N^eo-iieencp, sec. 49: Whar- 
 ton on Negliarence, sec. 309." 
 13— W. C. 3t. R. R. Co. V. Pet-
 
 890 FORMS OF INSTRUCTIONS. [§ 1339. 
 
 (b) The jury are instructed that, in order to entitle the plain- 
 tiff to recover in this case from the defendant, two things must 
 concur and appear from a preponderance of the evidence: first, that 
 such defendant was guilty of negligence which contributed to the 
 injury complained of; and secondly, that the plaintiff exercised rea- 
 sonable and ordinai-y care for her own safety. And if the plaintiff 
 fails to establish both of these essentials by a preponderance of the 
 e\-idence, she cannot recover. The burden of proving negligence rests 
 with the party alleging it, and where a party charges negligence on 
 the part of any other as a cause of action, she must prove his negli- 
 gence by a preponderance of the evidence.^* 
 
 (e) The juiy are instructed that this is a suit brought to recover 
 damages which it is alleged were caused the plaintiff by and through 
 the negligence of the defendant company as set forth in plaintiff's 
 declaration, or in some one or more of the counts thereof. 
 
 (d) In order to a recovery of any damages in the case, it is re- 
 quired that you should believe, from a fair and impartial considera- 
 tion of all the evidence in the case, that the preponderance or greater 
 weight of the evidence establishes first the fact that plaintiff suffered 
 an injuiy as stated in his declaration, and the extent thereof; second, 
 that he himself was at the time and place of said injury exercising 
 reasonable and ordinary care and caution for his own safety; and 
 third, that the injury was the direct and proximate result of the 
 negligence of the defendant company at said time and place as same 
 is set out in the declaration, or in some one or more of the counts 
 thereof.^'' 
 
 § 1339. Mere Accident Not Actionable. The court instructs the 
 jury that, if you believe, from the evidence, that the injuiy to the 
 plaintiff was the result of a mere accident, and neither the de- 
 fendant nor the plaintiff were the cause thereof, you should find the 
 defendant not guilty.^** 
 
 § 1340. Actionable Injury Must Be the Result of Negligence. The 
 Jury are further instructed that if the evidence in this case fails to 
 
 ters, on 111. App. 479 (481), aff' d the exercise of care on the plain- 
 
 196 111. 298, 63 N. E. 662. tiff's part to the 'time' of the in- 
 
 14 — N. C. St. R. R. Co. V. Boyd, jury, and cases are cited which 
 
 1!jC 111. 416 (418), 40 N. E. 955, aff'g seem to support the contention. A 
 
 57 111. Ar)p. r<35. careful reading' of these cases, 
 
 "In these instructions, the rule however, as we think, shows the 
 
 In regard to the burden of proof is contrary. In L. S. & M. S. Ry. 
 
 fully laid down." Co. v. Hessions, 150 111. 546-555. 
 
 15— Penn. Co. V. Reldy, 99 111. 37 N. E. 905, this objection to a 
 
 App. 477 f47S), nff'd 198 111. 9, 64 similar instr\iction was held to be 
 
 N. R. 608. untenable. To a like effect: L.. S. 
 
 "This Instruction Is criticised as & M. S. Ry. Co. v. Johnson, 135 
 
 bomK mlHlr-Mdiiifir because it as- 111. 641-53, 26 N. E. 510; McNulta 
 
 HumoH the d'-fendant was nepll- v. Lo'-kridere. 137 111. 270-87, 27 N. 
 
 Kent. We think the eritlclsm not E. 452, 31 Am. St. Rep. 362; C. & 
 
 jfood. The Instruct Ion as we read A. R. R. Co. v. Fisher, 141 111. 
 
 It makes no such assumption. It 614-25. 31 N. E. 406." 
 
 Is niso snld that the Instruction 16— Webster Mfe:. Co. V. Nisbett, 
 
 Ik objectionahlo because it limits 87 111. App. 551 (553).
 
 § 1341.] NEGLIGENCE— IN GENERAL. 891 
 
 disclose what was the cause of the explosion of the boiler of the 
 locomotive, which explosion caused the death of A. B., and if from a 
 careful consideration of all the evidence in this case the cause of 
 such explosion is unknown, and if the plaintiff fails to prove, by a 
 preponderance of the evidence, that the defendant was negligent as is 
 charged in the plaintiff's declaration, then the plaintiff cannot re- 
 cover in this case, and you should find the issues for the defendant.^'' 
 
 § 1341. Injury the Result of Negligence and Accident. The court 
 instructs the juiy, as a matter of law that if a person receives an 
 injury as the combined result of an accident and of negligence on 
 the part of another, and the accident would not have occurred but for 
 such negligence, and the danger could not have been foreseen or 
 avoided by the exercise of reasonable care and prudence, on the part 
 of the person injured, then the person guilty of the negligence will be 
 liable for the injuiy received. ^^ 
 
 § 1342. The Negligence Charged Must Be the Proximate Cause, 
 (a) The court instructs the jury, that the rule of law is, that every 
 person must be held liable for all of those consequences which flow 
 naturally and directly from this act, or which might have been fore- 
 seen and reasonably expected as the result of his conduct, but not for 
 those consequences which do not flow naturally and directly from his 
 acts, or which he could not have foreseen or reasonably have antici- 
 pated as the result of his conduct.'^^ 
 
 (b) If you believe, from the evidence, that the defendant was 
 guilty of the negligence or carelessness charged in the declaration, 
 and that the injury complained of was the natural consequence of 
 such negligence or carelessness, and such as might have been foreseen 
 and reasonably anticipated as the result of such negligence or care- 
 lessness, then such carelessness or negligence should be regarded as 
 the approximate cause of the injuiy. 
 
 (c) You are instructed, that although you may believe, from the 
 evidence, that the injury complained of was occasioned by the acts of 
 the defendant, still, if you further believe, from the evidence, that 
 such injury was not the natural result of the acts of the defendant 
 and could not have been foreseen or reasonably expected to result 
 from the conduct of the defendant, then the defendant would not be 
 liable. 
 
 (d) You are instructed, that an act is not to be deemed the proxi- 
 mate cause of an injury, unless the injury was such a consequence of 
 the act as, under the surrounding circumstances of the case, might 
 
 17—1. C. R. R. Co. v. Prickett, Parsons on Cent., 456; Rigby v. 
 
 210 111. 140 (148). 71 N. E. 435. Hewitt. 5 Exch. 240; Fent v. T. 
 
 IS— Aurora v. Pulfer. 56 111. 270; P. & W. Rd. Co., 59 III. 349; Brash- 
 Norton V. Volzke, 158 111. 402, 41 berg- v. Mil. etc., Rd. Co., 50 
 N. E. 1085, 49 Am. St. 167, aft'g Wis. 231. 6 N. W. 821; Tex.is & 
 54 111. App. 545. P. Ry. Co. v. Short. — Tex. CiV, 
 
 19— Coolev on Torts (3d Ed.) App. — , 58 S. W. 56 (57). 
 125; Wharton on Neg., § 74-78; 2
 
 892 FORMS OF INSTRUCTIONS. [§ 1343. 
 
 and ought to have been foreseen or anticipated by an ordinarily rea* 
 sonable and prudent man, as reasonably likely to flow from the act.-" 
 (e) When we speak of the proximate cause of an injuiy, we mean 
 not only the natural cause of an injury, but also such a case as 
 ought under the attending circumstances, to be reasonably expected, 
 by a person of ordinary intelligence and prudence, to produce injury 
 to another. Or, in other Avords, ought an injury to another, in the 
 light of the attending circumstances, to have reasonably been fore- 
 seen as a natural result of the act or omission complained of ^-^ 
 
 § 1343. Question of Negligence One of Fact for the Jury, (a) 
 
 The court instructs the jury that the questions involved herein, as 
 alleged in the plaintiff's declaration, of negligence on the part of the 
 defendant, if any, and the exercise of reasonable care on the part of 
 the plaintiff, if any, are what are known as questions of fact, which 
 is the duty and province of the jury to determine under the law and 
 the evidence in the case.^^ 
 
 (b) Whether there was or was not negligence, or want of due 
 care, on the part of either the defendant or plaintiff, or both, is to be 
 determined by you, in consideration of all the facts, the situation 
 and surroundings at the time of the accident, tested by your judg- 
 ment as practical men. The court cannot lay down any legal rules 
 by which to resolve the question.-"* 
 
 (c) The court instructs the juiy that if, immediately after the 
 injury plaintiff said that nobody but himself was to blame, or words 
 to that effect, this does not of itself make it so; but the jury should 
 consider all the facts and circumstances of the case, and those sur- 
 rounding plaintiff at the time he said what he did say, and from all 
 the facts and circumstances of the ease in evidence the jury must de- 
 
 20— Hoag V. L. S. & M. S. Rd. law and the evidence, and is with- 
 
 Co.. 85 Penn. St. 293; L. N. A. & in the rule stated in W. C. St. 
 
 C. R. Co. V. Wood, 113 Ind. 544, R. R. Co. v. Schultz. 217 III. 322, 
 
 14 N. E. 572 (585). 75 N. E. 495, where at page 325 
 
 21— dwell v. Skobis, 126 Wis. 308, it was said: 'In framing instruc- 
 
 105 N. W. 783. tions it is not ordinarily required 
 
 22— C. & J. Elec. Ry. Co. v. that any one instruction should 
 
 Pafton. 219 111. 216. 76 N. E. 381. state all the law of a case, but 
 
 "It l.s rontended that this in- if an instruction is correct so far 
 struftlon is dofortive. In thnt it as it goes, and does not assume 
 attr-mpt.s to summarize the facts to point out all the elements of 
 necf'H.sary for the plaintiff to proof necessarv to a recovery and 
 prove in order to entitle her to direct a verdict, it may be sup- 
 recover hut does not require her plemented by other instructions. 
 to prove she wan lnj<ired. The in- and omissions therefrom may be 
 stniftlon. In- the opinion of the supplied by other instructions.' 
 court. dopH not assume to point Taking the instructions in this case 
 out the elements of proof neces- fs a series, the que.=;tion of the 
 sarv to a rcenvery and direct a injury to appellee was fullv pre- 
 verdlft. but merely informs the sented to the jury as an element 
 Jury that two of the elements In thnt must be proved before she 
 the rape, those of duo care and could recover." 
 
 nefflljrenrp. nre questions of fact 23— Hotel Ass'n. v. Walters, 23 
 
 for their determination under the Neb. 380, 36 N. W. 561 (564).
 
 § 1344.] 
 
 NEGLIGENCE— IN GENERAL. 
 
 893 
 
 termine what effect to give to said declaration, and also whose fault 
 was the real cause of the injui-y, and find their verdict accordingly.^* 
 
 (d) If the jury believe from all the evidence before them that 
 Dlaintiff did not receive any of the injuries complained of in his peti- 
 tion, then it will be their duty to find for the defendant.^^ 
 
 § 1344. Instructions Referring Jury to Pleadings as to Negligence 
 Alleged. The specific acts of negligence alleged by plaintiff are set 
 out in his declaration, and in an amendment filed to it. You will 
 have that declaration out with you in your jury room with the amend- 
 ment, and by a careful reading of it you will see the various acts of 
 negligence which are alleged by the plaintiff in this case.^e 
 
 § 1345. Recovery on Proof of Allegations Contained in One or 
 More Counts of Declaration, (a) If the jury believe, from the evi- 
 dence, that the plaintiff has proved the allegations contained in one 
 or more counts of her declaration by a preponderance of the evi- 
 dence, and if the jury believe, from the evidence, that the plaintiff 
 was injured as therein alleged, and if the jury believe, from the evi- 
 dence, that the plaintiff, at the time of such injury, was in the exer- 
 cise of reasonable care for her safety and if you further believe, from 
 the evidence, that such injury, if proved was caused by or through 
 the negligence of the defendant, as alleged in such count of the 
 
 24— Hasie V. Ala. & V. Ry. Co.. 
 78 Miss. 413, 28 So. 941 (942), 84 
 Am. St. 632. ^ 
 
 25— Weeks v. Texas Mid. R. R. 
 Co., 29 Tex. Civ. App. 148, 67 S. 
 W. 1071. 
 
 26— Central of Ga. Ry. Co. v. 
 McKinney, 118 Ga. 535. 45 S. E. 
 430. 
 
 "The assignment of error upon 
 this charge is that it was the duty 
 of the court to state the conten- 
 tions of the parties and explain 
 them to the jury, and that it 
 was error to instruct them simply 
 that they might ascertain these 
 contentions from an inspection of 
 the pleadings. In City Ry. v. 
 Findley, 76 Ga. 311, it was held: 
 'It is the right and duty of the 
 presiding judge to state to the jury 
 the several contentions between 
 the parties, the only restriction 
 being that he shall state them 
 fairly to each side.' In that case 
 complaint was made because the 
 court stated to the jury the con- 
 tentions of the parties, and the 
 ruling made was, in effect, simply 
 that it was proper for the judge 
 to do this, being careful to state 
 the contentions of both sides fairly. 
 It certainly cannot be held that in 
 every case the mere failure of the 
 judge to state the contentions of 
 
 the parties in his own language 
 is such an error as requires the 
 granting of a new trial. If a case 
 should arise where the omission 
 plainly operated to the prejudice 
 of the losing party, a new trial 
 might be required, but the present 
 recoi'd presents no such case. The 
 case of Sackett v. Stone, 115 Ga. 
 466, 41 S. E. 564, was a case of 
 this character. The really import- 
 lant thing is for the judge to give 
 the jury clearly and fairly the law 
 applicable to the issues involved, 
 and if he does this, his failure to 
 foriually state the contentions as 
 shown by the pleadings will not, 
 as a general rule, be cause for a 
 new trial. See in this connection, 
 Atlanta Con. Rv. Co. v. Bagwell, 
 107 Ga. 157, 33 S. E. 191; Maddox 
 V. Morris, 110 Ga. 309, 35 S. E. 
 170. The charge of the trial judge 
 in this case, fully, fairly and 
 lucddly stated the law applicable 
 to the issues involved. It is not 
 to be presumed that the jury were 
 unable to understand the i.'^sues in- 
 volved in the case as set forth in 
 the pleadings, and it cannot be 
 said that the judge's omission to 
 state more definitely the conten- 
 tions of the parties resulted in any 
 injury to the defendant."
 
 894 
 
 FORMS OF INSTRUCTIONS. 
 
 [§ 1343. 
 
 declaration, then the plaintiff is entitled to recover such damages as 
 you believe, from the evidence, will compensate her for the injury 
 sustained.-' 
 
 (b) The court instructs the jury that, if you believe and find 
 from the evidence, that the plaintiff, while exercising ordinary care 
 to avoid injury, was injured by and in consequence of the negli- 
 gence of the defendant, as charged in the declaration, then you should 
 find the defendant guilty.-^ 
 
 (c) The court instructs the jury that if they believe from the 
 evidence that the plaintiff has proven the allegations of any one or 
 more counts of the declaration herein, by a preponderance of the 
 evidence, and that the plaintiff suffered and sustained injuries in the 
 mode and manner charged in one or more counts of the declaration 
 hei-ein, and that he was then in the exercise of ordinary care for his 
 own safety, then they should find the defendant guilty.^^ 
 
 27— C. & J. Elect. Ry. Co. v. 
 Patton, 219 111. (217), 76 N. E. 381. 
 See also instructions to the same 
 effect in Penn. Co. v. Reidy, 99 
 111. App. 477 (478), 198 111. 9, 64 
 N. E. 698; Johnson v. McNiff, 113 
 111. App. 1 (2); C. U. T. Co. v. 
 Lawrence, 113 111. App. 269 (273), 
 affd 211 111. 373, 71 N. E. 1024. 
 
 In the first case the court said: 
 
 "It is objected that the first 
 clause of the instruction submits 
 a question of law to the jury. 
 This court has repeatedly held 
 that an instruction telling the jury 
 that if they believe, from the evi- 
 dence, the plaintiff has proved his 
 Or her case as laid in his or her 
 declaration they will find the 
 issuos for the plaintiff, not to be 
 objectionable. Mt. O. & S. Coal 
 Co. V. Rademacher, 190 111. 538, 60 
 N. E. 888; Central Ry. Co. v. 
 Bannister 19.5 id. 48, 62 N. E. 864; 
 W. C. St. Ry. Co. v. Lieserowitz, 
 197 id. 607, 64 N. E. 718. 
 
 "It Is further objected that the 
 Bub.<5or|uent clauses of said instruc- 
 tion fail to instruct the jury as 
 to tho decree of proof required to 
 ostablish plaintiff's case. In Vil- 
 lapo of Altamont v. Carter, 196 
 III. 2^6. In passinp upon a similar 
 objection. It was said: 'A require- 
 ment jri tho first part of an in- 
 Bfnictinn that tho jury must base 
 th'lr flndlnp.s upon the evidence 
 nppIleR niKl extends to mil snbse- 
 fpunt clauses in tho Instruction, 
 nnd it Is unnecessary in eaeh of 
 the siiccerdlne sentencoR to inform 
 thf jury that fhcy must find frf)m 
 a preponderance of the evidence. 
 
 The objections urged as to the 
 second instruction are not well 
 taken.' " 
 
 Where a defense is made on the 
 question of "assumed risk," the 
 instruction in the text would be 
 erroneous, unless it included the 
 theory of the assumed risk, pro- 
 vided there was evidence that 
 fairly tended to support the view 
 that the risk was assumed, and 
 provided further the declaration 
 does not contain the allegation 
 that the risk was not assumed. 
 Terra Cotta Lbr. Co. v. Hanley, 
 214 111. 243, rev'g 116 111. App. 359, 
 73 N. E. 373. 
 
 28— Chicago U. T. Co. v. Law- 
 rence, 113 111. App. 269 (273), affd 
 211 111. 373, 71 N. E. 1024. Citing 
 C. & A. Ry. Co. V. Fisher, 141 111. 
 614, 31 N. E. 406; L. S. & M. S. 
 Ry. Co. V. Ouska, 151 111. 232, 37 
 N. E. 897. 
 
 29— Johnston v. McNiff, 113 111. 
 App. 1 (2). 
 
 "If there is one good count to 
 which the evidence was applicable 
 and which is sufficient to sustain 
 the judgment, the error of the 
 court, if any, in refusing to in- 
 struct the jury to disregard the 
 other counts, becomes harmless. 
 We deem it unnecessary to deter- 
 mine whether or not the sixth and 
 seventh counts were so faulty as 
 to be insnfTicient to sustain a 
 verdict, for even if they were, 
 there being five good counts, and 
 the Instruction being general as 
 to the whole deelaration, was pro- 
 perly given." 
 
 The court cited Cons. Coal Co. v.
 
 § 1346.] NEGLIGENCE— IN GENERAL. 895 
 
 (d) If the jury believe, from the evidence, that the plaintiff, while 
 in the exercise of ordinary care, was injured by or in consequence of 
 the negligence of the defendant, as charged in the declaration, or 
 either one of the counts thereof, then you should find the defendant 
 guilty.^*' 
 
 (e) If in this case the jury believe from the evidence, that the 
 plaintiff, while using such reasonable care for his "own safety, was 
 injui-ed in the manner as charged, in the declaration, and that such 
 injury was occasioned by the negligence of the defendant, or of its 
 agents in charge of the train of ears mentioned in the evidence, and 
 as charged in the declaration, then the juiy should find the defendant 
 guilty.^^i 
 
 (f) The court instructs the jury that if the jury believe from the 
 evidence that the injury complained of in this case resulted from the 
 defendant's negligence as charged in the declaration, and that the 
 plaintiff was exercising ordinaiy care for his own safety before and 
 at the time of bis injury, the defendant is liable and the plaintiff is 
 entitled to a verdict.'^- 
 
 § 1346. Circumstantial Evidence Supporting Plaintiff's Theory 
 Must Be Inconsistent with Any Other Conclusion. The court in- 
 stniets the jury that to justify you in finding that deceased was 
 killed by a swinging door striking a crowbar as claimed by plaintiff, 
 it is necessary, not only that the circumstances should all concur to 
 show that he was so killed, but that they are inconsistent with any 
 other rational conclusion. ^^ 
 
 § 1347. Burden of Proof, (a) The burden of proving negligence 
 rests on the party alleging it ; and where a person charges negligence 
 on the part of another as a cause of action, he must prove the negli- 
 gence, by a preponderance of evidence. And in this case, if the jury 
 find that the weight of the evidence is in favor of the defendant, or 
 that it is equally balanced, then the plaintiff cannot recover, and the 
 juiy should find the issues for the defendant.^* 
 
 Scheiber, 167 III. 539, 47 N. E. 1052; phrase 'at the time' found in the 
 
 Chi. & A. R. R. Co. v. Anderson, instruction as having relation to 
 
 166 111. 572, 46 N. B. 1125; H. & the entire transaction under ex- 
 
 St. J. R. R. Co. v. Martin, 111 amination. L. S. & M. S. Rv. Co. 
 
 111. 219; Shreffler v. Nadelhoffer, v. Johnsen, 135 111. 641, 26 N. E. 
 
 133 111. 536, 25 N. E. 630, 23 Am. 510; McNulta V. Lockridge, 137 111. 
 
 St. Rep. 626; Franklin Printing Co. 270, 27 N. E. 452, 31 Am. St. Rep. 
 
 V. Behrens, 181 111. 340, 54 N. E. 362." 
 
 896; Penn. Co. v. Dackes, 133 111. 31— C. & A. R. R. Co. v Gore 
 
 255. 24 N. E. 563. 202 111. 188 (196). aff'g 105 III. App. 
 
 30— C. & A. R. R. Co. V. Fisher, 16, 66 N. E. 1063. 
 
 141 111. 614 (624), 31 N. E. 406. 32— C. & A. R. R. Co. v. Harring- 
 
 "The qualifying words 'if the ton, 90 111. App. 638 (641), af£'d 
 
 jury believe from the evidence' 192 111. 9 (25), 61 N. E. 622. 
 
 apply to the entire sentence . . . 33 — "^"heelan v. C. M. & St. P. 
 
 The word 'while' means 'during Ry. Co., 85 Iowa 167, 52 N. W. 
 
 the time that,' and seems to neces- 119 (121). 
 
 sarily imply some degree of con- 34— Cooley on Torts (3d Ed.) 1439; 
 
 tinuance . . . We have on McQuilken v. Cent., etc., Co., 50 
 
 several occasions interpreted the Cal. 7; Q. A. & St. L. R. R. Co.
 
 896 FORMS OF INSTRUCTIONS. [§ 1347. 
 
 (b) The court instructs the juiy that the burden of proof is upon 
 plaintiff to establish by a preponderance of the testimony the facts 
 on which plaintiif charges negligence on the defendant, and unless 
 plaintiff has so established said facts then the verdict of the jury 
 should be for the defendant.^^ 
 
 (c) The jury are instructed that the plaintiff is required by law 
 to establish his ease by a preponderance of the evidence before he 
 can recover. If the plaintiff in this suit has not established his 
 case, or if the evidence is evenly balanced so that the jury are in 
 doubt and unable to say on which side is the preponderance, or if 
 the preponderance of the evidence is in favor of the defendants, then, 
 in either of these eases, the verdict should be not guilty.^*' 
 
 (d) The burden is upon the plaintiff to show that his injury was 
 caused by the negligence of the defendant, and, if he has failed to do 
 tliis by a preponderance of the proof, the answer to the first issue 
 should be, ''No."" 
 
 (e) The court instructs the juiy that the burden of proof in this 
 case is upon the plaintiff, and you are not at liberty to find a verdict 
 in his favor unless you believe from the evidence that he has proved 
 the material allegations of some one or more counts of his declara- 
 tion by a preponderance of the evidence.^^ 
 
 (f) I charge you that the burden of proof is upon the plaintiff 
 to reasonably satisfy you by the evidence that the defendant was 
 guilty of negligence as charged in some count of the complaint, and 
 if from all the evidence you are not reasonably satisfied of the truth 
 of the averments of negligence as alleged in the complaint, then you 
 must find a verdict for the defendant, without regard to the ques- 
 tion of contributoiy negligence. ^'^ 
 
 (g) The jury 'are instructed that with respect to the ailments 
 and disabilities claimed for the plaintiff in this case, the burden of 
 proof is upon the plaintiff in that respect, as it is with respect to the 
 question of liability, to show, by a preponderance of the evidence, 
 not only that such ailments really exist or have existed, but also 
 that such ailments and disabilities are the result of the action in. 
 question ; and the burden of proof is not upon the defendant to show 
 that such alleged ailments do not proceed or arise from any other 
 <jau.se. 
 
 V. Wellhoener, 72 111. 60; Hoyt v. also instructions in C. C. Ry. Co. 
 
 HuflHon, 27 Wis. G56; St. Paul v. v. Nel.son, llfi 111. App. 609,* aff'd 
 
 Kuby, 8 Mlun. 154; Jcffer.sonville, 215 111. 436, 74 ,N. E. 45S; C. & A. 
 
 etc., V. Lyon, 55 Ind. 477; Murphy R. R. Co. v. Eselin, 86 111. App. 
 
 V. ChioaKO, etc.. Rd. Co.. 45 la. 94 (99). 
 
 661: Htranrl v. C. & W. M. Rv. Co., 37— Norton v. N. Car. K. Co. 122 
 
 C7 MIfh. MO, .'54 N. W. 712 (715). N. C. 910, 29 S. E. S86 (888). 
 
 .•?r,-.ShafHtottR V. St. Loul.s & M. .^8— Fidelity & Oas. Co. v. Oehne, 
 
 R. R. Co.. 175 Mo. 142, 74 S. W. 94 111. App. 117 (121). 
 
 82« (WO). , .S9— Rlrminpham Bolt R. Co. v. 
 
 3«-Chl<-nR0 IT. T. Co. v. Mee, Gorcranous, 142 Ala. 238, 37 So. 929 
 
 218 III. 9. 75 N. E, Rep. 800. See (931).
 
 § 1347.] NEGLIGENCE— IN GENERAL. 897 
 
 (h) The jury are further instructed that they have no right to 
 guess or conjecture that any ailment complained of by the plaintiff 
 is the result of this accident. Whether it is or not must be de- 
 termined by the jury from the evidence. The jury are not to under- 
 stand from this or any other instruction that the court intends to in- 
 timate any opinion upon that or any other question of fact in this 
 case. All such questions and matters are solely and exclusively for 
 the jury, and they must determine them from the evidence and from 
 that alone.'*" 
 
 (i) The burden is upon the plaintiffs to establish that the death 
 of the deceased was caused by the negligence of the defendant; and, 
 if you find that his death was not due to the negligence of the de- 
 fendant, then you need consider nothing further, as your verdict must 
 be in that case for the defendant. The negligence of the defendant 
 company must be established by a preponderance of the evidence; 
 and by a preponderance of the evidence is not meant the greatest 
 number of witnesses, but it means the evidence which is most con- 
 vincing to your minds.*^ 
 
 (j) The plaintiff is not bound to prove his ease beyond a reason- 
 able doubt, but is only bound to prove it by the preponderance of 
 the evidence. The court instructs the jury that while, as a matter 
 of law, the burden of proof is upon the plaintiff, and it is for him to 
 prove his case by a prepondei-ance of the evidence, still if the jury 
 find that the evidence bearing upon the plaintiff's ease preponderates 
 in his favor, although but slightly, it would be sufficient for the jury 
 to find the issues in his favor.*^ 
 
 40— C. U. T. Co. v. Fortier, 205 gan v. Boom Co., 6 Wash. 593, 34 
 
 111. 305 (306), 68 N. E. 948. Pac. 157, 36 Am. St. 182; McQuillan 
 
 41— Roberts v. Port Blakely Mill v. City of Seattle, 13 Wash 600, 
 
 Co., 30 Wash. 25, 70 Pac. Ill (113). 43 Pac. '893; State v. Surry, 23 
 
 "It is argued that the rentence, Wash. 655, 63 Pac. 557; Henry v. 
 
 'and, if you find that his death Railway Co., 24 Wash. 246, 64 
 
 was not due to the negligence of Pac. 137; Miller v. Dumon| 24 
 
 the defendant, then you need con- Wash. 648, 64 Pac. 804." 
 sider nothing further, as your ver- 42— Chicago City Ry. Co. v. Nel- 
 
 dict in that ease must be for the son, 116 111. App. 609, aff'd 215 III. 
 
 defendant' is erroneous. But the 436, 74 N. E. 458. 
 whole instruction must be con- "Appellee's <above instructions 
 
 etrued together. So construed it are said to be erroneous, because 
 
 is not error. It is true that this of the use of the phrases 'plaintiff's 
 
 sentence Is not technically correct; case' and 'his case.' It is said that 
 
 but this error is not of moment, these phrases are equivalent to 
 
 especially when the intent of the material allegations of the declara- 
 
 whole is clearly expressed that the tion,' the use of whif'h latter 
 
 burden is upon the plaintiff's to phrase, in an instruction, has been 
 
 prove negligence. The court has held, in a number of cases, to be 
 
 frenuently held that where an erroneous. It seems unnecessary 
 
 isolated portion of an instruction, to discuss the point, since similar 
 
 (Standing alone, miay be techni- instructions containing the phrases 
 
 cally erroneous, yet if the whole 'his case.' and 'plnintiff's case.' 
 
 instruction, taken toeether, fairly have been frequently approved by 
 
 states the law, it will be upheld, the Supreme Court. Taylor v. 
 
 Seattle C. E. L,. gr M. Co. v. Seat- Pelsine. 164 111 331-6 45 N E 
 
 tie, 6 Wash. 101, 32 Pac. 1058; Dug- 161; City of LaSalle 'v. Kostka! 
 67
 
 898 
 
 FORMS OF INSTRUCTIONS. 
 
 [§ 1348. 
 
 § 1348. Proof May Be Made by Defendant's Own Witnesses. The 
 court instructs you, that if you believe, from the evidence, that the 
 defendant was guilty of negligence, as charged in the declaration, and 
 that the plaintiff was injured thereby, then, as regards the defend- 
 ant's liability, it makes no difference whether such negligence ap- 
 pears or is proved by the testimony on the part of the plaintiff, or by 
 the defendant's own witnesses.*^ 
 
 § 1349. Coroner's Verdict Not Evidence of Negligence, (a) The 
 court instructs you that the verdict of the coroner's jury is not to be 
 considered as evidence that the deceased was, at the time of the in- 
 jury, in the exercise of reasonable care and prudence as charged in 
 the declaration. 
 
 (b) The court further instructs the jury that the finding of the 
 coroner's jury or inquest is not to be considered by you as evidence 
 that the defendant was guilty of the negligence charged in the 
 declaration.** 
 
 (c) The court instructs you that the inquest in evidence is no evi- 
 dence in this case that the switch stand spoken of by witnesses was 
 
 190 111. 130-3, 60 N. E. 72; N. C. St. 
 R. R. Co. V. Polkey, 203 111. 225-31, 
 67 N. E. 793; and cases cited; Chi- 
 cago C. Ry. Co. v. Carroll, 206 111. 
 318-31, 68 N. E. 1087, and cases 
 .cited. 
 
 "It is also s.TJd that the eighth 
 instruction is erroneous because it 
 in effect tells the jury that if the 
 plaintiff's evidence 'preponderates 
 in his favor, although but slightly,' 
 then they might find a verdict in 
 his favor. It is true that this 
 court in O'Donnell v. Armour C. 
 H. Works, 111 111. App. 516-23, 
 criticised this phrase in an instruc- 
 tion, but did not hold it reversible 
 error to refuse it when asked by 
 the plaintiff. In the Taylor case, 
 supra, as well as in Donley v. 
 Dougherty, 174 111. 582, 51 N. E. 
 714, and Chicago C. Ry. Co. v. 
 Fennimore, 199 111. 9-18. 64 N. E. 
 98.'), the Sup. Ct. held that the giv- 
 ing of slmjlar instructions was not 
 reversible error." 
 
 43— Keokuk, N. L. P. Co. v. 
 True. 88 111. 608. 
 
 44— C. M. & St. P. Ry. Co. v. 
 Staff, 46 111. App. 499. 
 
 "That the conclusions of a tri- 
 htiral In a mntter wherein a party 
 had no opportunity either to in- 
 fhx-nce Its dr'termlnatjori, or to 
 havf prevented his adversary from 
 doing so, f)ught not to be adduced 
 as evidence against him. seems 
 too clear for discussion. The first 
 
 maxim in the administration of 
 the law is 'Audi altera, partem,* 
 or, as expressed in Broom's Legal 
 Maxims, 'No man should be con- 
 demned unheard.' 
 
 To permit the conclusions of a 
 coroner's jury, imputing negligence 
 and casting the blame for the 
 death of an individual upon a 
 party who was in no wise, save 
 as one of the human beings of the 
 world, a party to its proceedings, 
 and had neither voice in the selec- 
 tion of the triers nor opportunity 
 to place before them aught that 
 might tend to show his own in- 
 nocence, is to condemn one un- 
 heard, and to violate the .most 
 fundamental of all principles ap- 
 plicable to proceedings in courts 
 of justice. We do not understand 
 that our Supreme Court have 
 authorized the reception in evi- 
 dence of such verdicts as this, and 
 we look upon the case of P. C. 
 & St. L. Ry. Co. v. McGrath, 115 
 111. 172, 3 N. E. 439, as containing 
 an intimation that they are not 
 to be admitted. What is said in 
 L. S. & M. S. Ry. Co. v. Taylor, 
 46 111. App. 506, as to the admis- 
 sibility of the verdicts of coroners' 
 juries, is applicable to this one." 
 The verdict in this case found that 
 the deceased came to his doath 
 through the negligence of the de- 
 fendant company.
 
 § 1350.] 
 
 NEGLIGENCE— IN GENERAL. 
 
 899 
 
 loo close to the tracks of the defendant at the point where they may 
 
 believe from the evidence the deceased , was injured. *•'' 
 
 s 1350. View by Jury of Scene of Accident as Evidence of Negli- 
 gence. The jury has been taken out to view the scene of this acci- 
 dent twice, — the first time for the purpose of being able to under- 
 stand the testimony, and the second time to witness certain experi- 
 ments by agreement of both parties. I charge you that you are not 
 to consider as evidence what you saw on the first view, but what you 
 saw on the second view that was shown to you by the parties under 
 their agreement you should take and consider as evidence in this 
 case.*^ 
 
 45— L. S. & M. S. Ry. Co. v. 
 Taylor, 46 111. App. 506 (509). 
 
 "It is no longer a question in 
 this state that the coroner's in- 
 quisition is admissible in evidence, 
 and though not conclusive, is com- 
 petent evidence to be considered 
 by the jury. P. C. & St. L. Ry. 
 Co. v. McGrath, 115 111. 172; 3 N. 
 E. 439; U. S. Life Ins. Co. v. 
 Vocke, 129 111. 557, 22 N. E. 467; 
 Gooding. Adm'r, v. U. S. Life Ins. 
 Co., 46 111. 307. The same authori- 
 ties have established that the de- 
 positions taken upon the inquest 
 are not admissible as evidence. 
 * * * The public and general 
 interest sought to be subserved by 
 the inquest was satisfied by the 
 proper finding of the jury, that 
 the deceased came to his death 
 by being knocked off the car by 
 a standing switch; but whether 
 that result was caused by the 
 negligent placing of the switch, or 
 by the negligent conduct of the 
 deceased while on the car, in ap- 
 proaching or passing the switch, 
 or in boarding the car in the first 
 instance, was purely a matter of 
 private inquiry between the repre- 
 sentative of the deceased and the 
 railroad company." 
 
 46— Schweinfurth v. Cleveland C. 
 C. & St. L. Rv. Co., 60 Ohio St. 215, 
 54 N. E. 89 (92). 
 
 "The record shows that during 
 the progress of the trial, and be- 
 fore the conclusion of the evidence, 
 counsel for the defendant moved 
 the court for an order directing 
 the jury to be taken to the cross- 
 ing where the deceased was killed, 
 at about the f;ame time in the 
 evening, for the purpose of wit- 
 nessing certain experiments which 
 the defendant proposed to have 
 made in the running of a train of 
 .cars there, under circumstances 
 
 like those present at the accident, 
 for the purpose of informing the 
 jury in regard to the cause and 
 manner of its occurrence. No ob- 
 jection w^as made by plaintiff's 
 counsel, 'and thereupon,' as stated 
 in the record, 'it is agreed that 
 the jury shall go to said crossing 
 at 7 o'clock this evening, April 
 14, 1898, in charge of the sheriff, 
 to witness certain experiments 
 made with the engine and train 
 there. And thereupon the jury 
 reported at the court house at 
 said hour, and, in charge of the 
 sheriff, went to the scene of the 
 accident, and witnessed certain 
 experiments made with said engine 
 and train, horse and buggy, men 
 seated in the buggy,' etc. The 
 question made on this charge is 
 whether the jury might properly 
 consider the information obtained 
 from these experiments as evidence 
 in the case, and is, in this form, 
 a new- question in this state. TVe 
 are not aware of any reported 
 decision of this court in which a 
 like question w^as involved. It was 
 held in Machader v. "Williams, 54 
 Ohio St. 344, 43 N. E. 324. that 
 the preliminary view, authorized 
 by section 5191 of the Revised 
 Statutes, of the property or place 
 involved in a litigation, is merely 
 for the purpose of enabling the 
 jury to apply the evidence offered 
 on the trial. But experiments, 
 made in the presence of the jury, 
 with a view of reproducing to 
 their senses, as nearly as may be, 
 the transaction or occurrence, in 
 whole or in part, which is the sub- 
 ject matter ' of investigation by 
 them, would seem to have a dif- 
 ferent purpose. They serve to put 
 the jury in possession of knowl- 
 edge, important in the determin- 
 ation of the issues on trial, that
 
 900 
 
 FORMS OF INSTRUCTIONS. 
 
 [§ 1351. 
 
 §1351. Contributory Negligence Defined, (a) '' Contributory neg- 
 ligence" is such negligence on the part of plaintiff as helped to 
 produce the injiu-ies complained of, and if the jury find, from a pre- 
 ponderance of all the evidence in this case, plaintiff was guilty of 
 any negligence that helped to bring about or produce the injuries com- 
 plained of, then, in that case, the plaintiff cannot recover in this 
 action.*^ 
 
 (b) The want of ordinary care and prudence on the part of a 
 
 they could not obtain so readily 
 or accurately from the testimony 
 of witnesses. They are, in a 
 measure, a substitute for oral 
 testimony, and often may afford 
 evidence more satisfactory and re- 
 liable. In Smith v. State 2 Ohio 
 St. 511, where the prosecuting wit- 
 ness on a trial of an indictment 
 for malicious shooting had testi- 
 fied that he saw and identified the 
 defendant through a glass win- 
 dow, after dark, from the flash of 
 the pistol which he fii'ed, it was 
 held competent for the defendant 
 to prove experiments made by 
 witnesses under similar circum- 
 stances, and, as a result of them, 
 that a person could not be so 
 identified. If the testimony of wit- 
 nesses relating to such experi- 
 ments, and the information ob- 
 tained from them, furnish com- 
 petent evidence which the jury 
 may consider in making up their 
 verdict, it is difficult to assign any 
 satisfactory reason why such ex- 
 periments, when made in the 
 presence of the jury for their in- 
 formation, and by which the re- 
 sults are made obvious to their 
 senses, should not afford evidence 
 of equal, or even greater, force 
 and certainty. Witnesses observ- 
 ing the experiments, when called 
 upon to testify, may imperfectly 
 describe them, or fail to make 
 themselves fully understood, while 
 those imperfections are removed 
 when the jury is placed in the 
 position of the observing witnesses. 
 with all the opportunities of ob- 
 servation. As said in 2 Jones Ev. 
 para. 39.5: 'For obvious reasons, 
 there la no class of evidence so 
 convincing and sntlsfactory to a 
 courf or jury ,ts that which is ad- 
 dressed directly to the senses of 
 the court or jury.' Tn patent 
 oasfu, oxpcrlmenf H before the 
 court and jury ire constantly re- 
 
 sorted to as a means of pi'oving 
 novelty of inventions, and the 
 principles of their construction 
 and operation. And in the Ameri- 
 can notes to Tayl. Ev. p. 365, it 
 is said that 'a particularly cogent 
 method of proving a fact is to 
 test its existence by experiments 
 in open court.' True, the experi- 
 ments in this case were not made 
 in court. It was impractical to 
 do so. Nor, without the consent 
 of the parties could they have 
 been ordered to be made else- 
 where. But they were made out 
 of court, at the request of the de- 
 fendant, in pursuance of an order 
 procured by it, and under condi- 
 tions which, to its satisfaction, 
 constituted a sufficiently accurate 
 representation of the occurrence 
 that resulted in the death of the 
 plaintiff's intestate; and they were 
 necessarily of the same probative 
 character as if made in open court. 
 They were intended to furnish in- 
 formation which the jury might 
 use in determining the issues in 
 the case, and which, indeed, might 
 conclusively settle them in the 
 minds of the jury. It would be 
 a vain thing to attempt to re- 
 quire the jury to disregard the 
 evidence so inade manifest to their 
 own senses." 
 
 47— P.alt. & O. S. W. Rv. Co. v. 
 Young, 153 Ind. 163, 54 N. E. 791 
 (793). 
 
 "It wiill be observed that no at- 
 tempt is made to state what acts 
 or omissions on the part of the 
 plaintiff would, under the circ^um- 
 stances of this case, constitute 
 contributory negligence. The gen- 
 eral statement that contributory 
 negligence is such negligence as 
 helped to produce the injuries com- 
 plained of includes the idea of 
 both acts and omissions, and is 
 not a. misstatement of the law."
 
 § 1352.] NEGLIGENCE— IN GENERAL. 901 
 
 person injured, contributing directly and approximately to the injui-y 
 complained of, is eontributoiy negligence.** 
 
 (c) Contributory negligence is any degree of carelessness, how- 
 ever slight, on the part of a person injured, which co-operates in pro- 
 ducing the injury comj^lained of.*^ 
 
 (d) Contributory negligence is such an act or omission on the part 
 of the jilaintiff amounting to a want of ordinary care as, concurring 
 or co-operating with the negligent act or omission of the defendant, 
 is the proximate cause or occasion 'of the injury complained of .^'^ 
 
 (e) Contributoi-y negligence, in its legal signification, is such an 
 act or omission on the part of the plaintiff, amounting to a want of 
 ordinary and proper care and prudence, as, concurring or co-operat- 
 ing with some negligent act of the defendant, is the proximate cause 
 of the occasion of the injuries complained of.^^ 
 
 (f) Contributory negligence is the doing an act by the person 
 complaining of injury which a prudent man would not have done 
 under similar circumstances, that contributed to the injury, and but 
 for which act on the part of the person injured such injury would 
 not have occuiTed.-^- 
 
 § 1352. Effect of Contributory Negligence, (a) The law places 
 upon all persons the duty of exercising reasonable care to avoid in- 
 jury, and even though the jury should believe, from the evidence, that 
 the defendant was negligent and that plaintiff was injured thereby, if 
 the evidence also shows that the injury would have been avoided by 
 the exercise of ordinary care by the plaintiff, and that the plaintiff 
 did not exercise such care, you should find the defendant not guilty.^^ 
 
 48— Todd V. Banner, 17 Ind. App. Note— For particular instructions 
 
 368, 46 N. E. 829. on contributory negligence see 
 
 49— Kitzberger v. C. R. I. & P. under the heading of "Negligence," 
 
 R. Co., 4 Neb. (unof.) 324, 93 N. "Master and Servant," "Passenger 
 
 W. 935 (936). Carrier," "Railroads," etc. 
 
 50— Norton v. N. C. R. R. Co., 53— Cullen v. Higgins, 216 111. 78 
 
 122 N. C. 910, 29 S. E. SS6 (890). (83, 84), 74 N.' E. 698. 
 
 51— Int. & G. N. R. Co. v. An- "It is not denied but this in- 
 
 chonda. 33 Tex. Civ. App. 24, 75 struction is an accurate statement 
 
 S. W. 557 (559). of the law and applicable to the 
 
 "It is contended that the effect case, but it is insisted that the 
 
 of this charge, as worded, was to principles sought to be announced 
 
 inform the jury that there would to the jury thereby are fully 
 
 be no contributory negligence covered by other instructions 
 
 upon the part of plaintiff unless which were given to the jury. We 
 
 there was concurrent negligence cannot agree with this view. The 
 
 on the part of defendant. There giving of an instruction in ab- 
 
 is nothing of a substantial nature stract form does not deprive a liti- 
 
 in the point. If no negligence of gant of the right to have the jury 
 
 defendant appeared, plaintiff could fully instructed as to the law of 
 
 not recover at all. ■ Contributory the case, in view of the evidence 
 
 negligence becomes important in introduced upon the trial. The 
 
 any case only where defendant's contention of the appellee was the 
 
 nes-ligence is found to exist. It appellant was guilty of negligence, 
 
 necessarily must concur or co- while the contention of the appel- 
 
 operate to produce the injuries." lant was that the appellee was 
 
 52 — Houston & T. C. Ry. Co. v. guilty of contributory negligence. 
 
 Moss, — Tex. Civ. App. — , 63 S. and, even though the appellant 
 
 W. 894 (895). was guilty of negligence, that the
 
 902 FORMS OF INSTRUCTIONS. [§ 1352, 
 
 (b) If the accident Avas caused either wholly or in part by a 
 ■want of reasonable care or attention to his situation on the part of 
 the plaintiff, he cannot recover. In other words, if the accident was 
 caused by a want of due care on the part of both parties contributing 
 thereto, the law will not aid the plaintiff.^* 
 
 (c) One who is injured by the negligence of another cannot re- 
 cover damages therefor, if the injured party, by his own negligence 
 or willful Avrong, approximately contributed to the injury, so that it 
 would not have happened but for his own fault. If, therefore, you 
 find that said P , by his own carelessness substantially con- 
 tributed to the injury, or that he might by the exercise of ordinary 
 care, such as a prudent person generally would have used under 
 similar circumstances, have avoided the injury, he cannot recover 
 damages.^^ 
 
 (d) To entitle the plaintiff to recover under either the first or 
 third paragraph of the complaint, it must appear from a fair pre- 
 ponderance of the evidence, not only that the injuries complained of 
 were caused by the negligent acts, or some of the negligent acts of the 
 agents, sen^ants and employes of the defendant, as charged, but that 
 she was herself free from all negligence contributing directly to said 
 injuries.^^ 
 
 (e) The jury are instructed that, if they believe, from the evi- 
 dence, that the plaintiff in this case was guilty of any negligence 
 which contributed in any degree to the injury of Avhich he com- 
 plains, then he cannot recover in this case, and your verdict should 
 be for the defendant,^' 
 
 (f) The court instructs the juiy that to entitle the plaintiff to 
 recover the jury must believe from the evidence that the injury com- 
 plained of was occasioned by the carelessness or negligence of the 
 defendants or their servants in the manner charged in the declaration. 
 And if the jury believe from the evidence that the plaintiff was guilty 
 of negligence contributing to the injury, then the plaintiff cannot re- 
 cover, and the jury should find for the defendants.^^ 
 
 appellee, by reason of her con- "This is correct. The jury must 
 
 tributory negligence, could not re- be the judge of the fair prepondcr- 
 
 cover. The appellant had the ance of the evidence, and they are 
 
 right to have an instruction given instructed that they must find a.-^- 
 
 to the jury which clearly pre- cordingly. This covers what is 
 
 sented to them that phase of his asked for by appellant, — that 'if, 
 
 defense, and as no instruction from the whole evidence in the 
 
 given to the jury presented appel- cause, the jury cannot determine 
 
 lant's contention fully and clearly whether or not plaintiff was free 
 
 in that regard it was error to re- from such negligence, then it 
 
 fuse said instruction." would be your duty to find for 
 
 S4 — Hotel Ass'n v. Walters, 23 the defendant.' " 
 
 Neb. .■',80, 36 N. W. 561 (564). 57— Wierzbicky v. Illinois Steel 
 
 55— Pledger v. C. B. & Q. Ry. Co., 94 111. App. 400 (401). 
 
 Co., CO Nob. 456. 95 N. W. 1057 (1060). 58— Beidler v. King, 108 111. App. 
 
 56— Chicago, St. T^. & P. R. Co. v. 23 (40), aff'd 209 111. 302, 70 N. E. 
 
 SpllkfT, 1.''.4 lri<l. :',x(i, .".:', n. E. 280 763. 
 (286).
 
 § 1353.] NEGLIGENCE— IN GENERAL. 903 
 
 (g) The court instructs the juiy that one who is injured by the 
 mere negligence of another cannot recover at law or equity any com- 
 pensation for his injury, if he, by his own or his agent's ordinary 
 negligence or willful wrong, contributed to produce the injury of 
 which he complains, so that, but for his concurring and co-operative 
 fault, the injury would not have happened to him.^^ 
 
 § 1353. Ordinary Care of Plaintiff Defined, (a) By ordinary 
 care, the law means such a degree of care under the circumstances, 
 and in the situation in which the plaintiff was placed, so far as they 
 may be shown by the evidence, as an ordinarily prudent person would 
 exercise under the circumstances and in the same situation, for one of 
 his age, capacity and experience.^'' 
 
 (b) The court instniets the jury that ordinary care as mentioned 
 in these instructions, is that degree of care which an ordinarily pru- 
 dent person, with deceased's knowledge or means of knowledge of 
 electrical affairs, and situated as deceased was, before and at the 
 time of the accident, would exercise for his own safety.®^ 
 
 §1354. Contributory Negligence of Children, (a) The jui-y are 
 instructed that the rule of law as to negligence in children is that 
 they are required to exercise only that degree of care and caution 
 which persons of like age, capacity and experience might be reason- 
 ably expected to naturally and ordinarily use in the same situation 
 and under the like circumstances, provided that the parents or per- 
 sons having control of such children have not been guilty of want of 
 ordinary care in allowing them to be placed in such circumstanees.*^^ 
 
 59— So. Exp. Co. v. Hill, — Ark. it was said: 'It is not to be ex- 
 
 — , 98 S. W. 371. pected that a boy twelve years of 
 
 Little Rock & F. S. Ry. Co. v. age will use the same degree of 
 
 Pankhurst, 36 Ark. 371; Little Rock caution and care as a person of 
 
 & F. S. Ry. Co. v. Cavaness, 48 mature years; nor does the law 
 
 Ark. 106, 2 S. W. 505; Kansas C. require it. It was proper for the 
 
 So. Ry. Co. V. McGinty, 76 Ark. jury in passing- upon the negli- 
 
 356, 88 S. W. 1001. "This doctrine gence of the deceased to take into 
 
 of contributory negligence so often consideration his age and experi- 
 
 announced by this court was cor- ence.' In C. & A. R. Co. v. Becker 
 
 rectly applied to the facts of this Admr., 76 111. 25 (a similar action), 
 
 record." the deceased son being onlv six or 
 
 60— P., F. ^V. & C. R. R. Co. V. seven years of age, it was again 
 
 Moore, 110 111. App. 304. said: 'The age, the capacity and 
 
 61— Commonwealth El. Co. v. discretion of the deceased to avoid 
 
 Rose, 114 111. App. 181 (184), aff'd danger were questions of fact to 
 
 214 111. 545, 73 N. E. 780. be determined by the jury, and his 
 
 62—111. C. R. R. Co. v. Slater, responsibility was to be measured 
 
 129 111. 91 (99), aff'g 28 111. App. 73, by the degree of canacity he was 
 
 21 N. E. 575, 16 Am. St. 242, 6 L. found to possess.' (See also same 
 
 R. A. 418. case, 84 111. 4S3). So in Chicago v. 
 
 "The giving of this instruction is Keefe, 114 111. 222, 2 N. E. 267. the 
 
 urged as error, and is said to be deceased being a lad between ten 
 
 directly contrary to the law in this and eleven years of age, an Instruc- 
 
 class of cases. We find, however, tion given at the request of the 
 
 in "Weick v. Lander, 75 111. 93, which plaintiff limited the degree of care 
 
 was an action by a father as ad- required of the deceased to such as 
 
 ministrator for the wrongful kill- 'from his age and intelligence under 
 
 ing of his son, twelve years of age, the circumstances in evidence was
 
 904 
 
 FORMS OF INSTRUCTIONS. 
 
 [§ 1354. 
 
 (b) The jurj^ are instructed that in determining the relative de- 
 gree of care or want of care manifested by the parties at the time of 
 the injury, the age and discretion of the party injured are proper sub- 
 jects for the jury. The law does not require that a child shall exer- 
 cise the same degree of care and caution as a person of mature years, 
 but only such care and caution as a person of his age and discretion 
 would naturally and ordinarily use. 
 
 (e) The jury are instructed that the rule as to contributory negli- 
 gence of a child is that it is required to exercise only that degree of 
 care which a person of that age would naturally and ordinarily use 
 in the same situation and under the same circumstances.^^ 
 
 required.' The phraseology was con- 
 demned, but it was held that inas- 
 much as it was in effect the same 
 as if it had been limited to 'such 
 care as might be expected of a 
 person of his age and discretion,' 
 there was no substantial error in 
 giving it. And it was fui'ther said: 
 'The circumstances in evidence are 
 always to be taken into considera- 
 tion in such cases, and if the in- 
 testate exercised such care as, un- 
 der the circumstances, might be 
 expected from one of his age and 
 intelligence, it was sufficient.' 
 These decisions are in harmony 
 with those of other states on the 
 same subject, and but recognize 
 the rule laid down by approved 
 text writers on negligence. Shear- 
 man & Redfield Neg., sec. 49; 
 Wharton Neg., sec. 309. The in- 
 struction was proper." 
 
 For a ca.se in which an instruc- 
 tion was given on the assumption 
 that the child in question was thir- 
 teen when he was in fact four- 
 teen, see Mester v. Wuest, 57 111. 
 App. 122 (125). 
 
 See also United Breweries Co. v. 
 O'Donnell, 221 111. 334, 337, 77 N. B. 
 547; St. Louis, etc., Rd. Co. v. 
 Vallrlus, 56 Ind. 511; McMillan v. 
 Burlington, etc., Rd. Co., 46 la. 
 231; Cleveland, etc., Rd. Co. v. 
 Miinsnn. 31 Ohio St. 4.'jl; Chicago, 
 etc., Rd. Co. v. Murray, 71 111. 
 601; Baltimore, etc., Rd. Co. v. Mc- 
 Donnell, 43 Md. 534; Gov. St. Rd. 
 Co. v. Hanlon, 53 Ala. 70; Isabel 
 V. Hannibal, etc., Rd. Co., 60 Mo. 
 475. 
 
 63 — Norton v. Volzke, 158 111 402, 
 affg 54 111. App. 545. 41 N. JO. 1085, 
 49 Am. St. 167. 
 
 "These In.struction.s inform the 
 Jury that the ngc and (li.scretion 
 of the party Injiirc/d are proper 
 .subject.s for enquiry, that the law 
 
 does not require one of tender 
 years to exercise the same degree 
 of care and caution as a person of 
 mature years, and that a child is 
 only required to exercise that de- 
 gree of care which one of that 
 age would naturally and reasonably 
 use in the same situation and un- 
 der like circumstances. In Herd- 
 man-Harrison Milling Co. v. Spehr, 
 145 111. 329, 33 N. E. 944 (a case 
 similar in many respects to this), 
 this court said (p. 33): 'If plaintiff 
 had been an adult and unimpaired 
 in faculties, he would unquestion- 
 ably on the case made be held to 
 have assumed the risk of his em- 
 ployment with the machinery un- 
 covered as it was when he entered 
 the service of appellant. It is not 
 claimed that the danger to which 
 he was exposed by reason of the 
 gear being left uncovered was not 
 patent to everyone of ordinary in- 
 telligence and experience. It is 
 alleged in the declaration that for 
 a year prior to the injury, plaintiff 
 had been in the saine employment, 
 the machinery remaining in the 
 same condition. That, as between 
 employer and employe, the latter 
 assumes all the usual known dan- 
 gers incident to the employment, 
 that he also takes upon himself the 
 hazard of the use of defective tools 
 and machinery if, after his em- 
 ployment, he knows of the defects 
 but voluntarily continues in the 
 employment without objection, are 
 frimiliar rules of law often recog- 
 nized by the decisions of this and 
 other courts. That this general 
 rule does not apply to employes 
 who, from youth or want of their 
 natural faculties are unable to 
 appreciate the danger incident te 
 the employment, or which may re- 
 .inlt from the continued use of de-i 
 fective machinery or tools, is
 
 § 1354.] NEGLIGENCE— IX GENERAL. 905 
 
 (d) The court further instructs the jury that, if they believe from 
 the evidence that the plaintiff at the time of the accident was a child 
 between the age of five and six years, then he cannot, because of his 
 tender j-ears, be guilty of, or be charged with, carelessness or negli- 
 gence in respect to the accident in this case, so as to relieve at all 
 any want of due care on the part of the railroad company, so that, if 
 the jury further believe from the evidence that the accident causing 
 the injury to plaintiff was due to the want of due and ordinary care 
 by the defendant railroad, then vou must find a verdict for the plain- 
 tiff, and no want of care by the plaintiff will save the defendant from 
 the liability for the accident.*'* 
 
 (e) In this connection I further charge you that the conduct of 
 a child of tender years is not to be judged by the same rule which 
 governs that of adults. While it is the general rule in regard to an 
 adult that to entitle him to recover damages for an injury resulting 
 to him from the fault or negligence of another, he must himself have 
 been free from negligence and fault. This rule, however, when ap- 
 plied to a child of tender years will not prevent a recovery by it un- 
 less it is possessed of that degree of intelligence, prudence and 
 caution which will cause it to know and to appreciate and to under- 
 stand the dangers incident to itself from its wrongful acts and omis- 
 sions.*'^ 
 
 (f ) The degi'ee of diligence that the law requires of- the plaintiff 
 was that care which would reasonably be expected of a boy of his age 
 
 equally well settled. Such em- capable of such conduct as wMll 
 
 ployes are entitled at the hands of constitute contributory neglig-ence, 
 
 their employers to instructions as and that the court may so declare 
 
 to the dang-er and how to avoid it as a matter of law.' (C. C. Ry. Co. 
 
 —in other words, they are entitled v. Wilcox, 138 111. 370, 27 N. E. 
 
 to be put in possession of that 899, 21 L. R. A. 76.) The rule has 
 
 knowledge which to adults comes its basis in the well-known imma- 
 
 from experience and mature judg- turity of a child of such tender 
 
 ment. (2 Thompson on Negligence, years" (p. 427). 
 
 978; Deering on Negligence, sec. 65 — No. Texas Con. Co. v. Bost- 
 
 197; Wood on Master & Servant, wick, 83 Tex. Civ. App. 12, 80 S. 
 
 sec. 350). See also Jones v. Flor- W. 109 (110). 
 
 ence Min. Co., 66 Wis. 268, 28 N. "If the plaintiff was possessed of 
 W. 207, 57 Am. Rep. 269; Spring- sufficient knowledge and discretion 
 field Cons. Ry. Co. v. Welch, 155 to understand the danger to him- 
 lil. 511, 40 N. E. 1034. . . . While self of being in appellant's gin 
 it is true, perhaps, that these in- house while its machinery was be- 
 structions might have been more ing operated, the law of contrib- 
 skillfully drawn, they correctly utory negligence applicable to. an 
 state the law in this state, and the adult was applicable to him; while 
 jury could not have been deceived on the other h.nnd, if he was not 
 or misled by them." possessed of such knowledge and 
 64— C. C. Ry. Co. v. Toohey, 196 discretion, a different rule, as an- 
 111. 410 (418), 63 N. E. 997, 5S L. R. nounced by the charge, should be 
 A. 270. "We are of opinion that applied. But w-hether the charge is 
 there was no error in giving this to be defended upon this ground or 
 instruction in analog^' to the rule not, we think it a very clear state- 
 in law whioh exempts ch'ldren un- ment of the rule of contributory 
 der sevpri y^a'-s of asrp from crim- negligence when applied to a child 
 inal responsibility, that up to the of tender years, and therefore un- 
 age of seven years 'a child is in- objectionable in the present case."
 
 906 FORMS OF INSTRUCTIONS. [§ 1355. 
 
 and capacity. You heard the testimony as to his age; you saw him 
 when he was upon the stand; and, in passing upon what degree of 
 care he should have exercised on that occasion, you may take into 
 consideration his appeai'ance on the stand, his manner of testifying, 
 and the capacity that he exhibited while a witness on the stand. As 
 I stated to you, the care that the law requires of him was that care 
 which might be reasonably expected of a person of his age and 
 capacity."^ 
 
 § 1355. Same Subject — Failure of Infant Plaintiff to Use Adequate 
 Care, (a) Althouiili the jury may believe from the evidence the de- 
 fendant was guilty of negligence, still if they shall further believe 
 from the evidence plaintiff failed to exercise that degree of care and 
 caution which persons of his age, capacity and experience may rea- 
 sonably be expected to use, in the same situation and under like cir- 
 cumstances, and that but for the failure to use such care and caution 
 the injury to him would not have occurred, the plaintiff was guilty 
 of contributory negligence, and the law is for the defendant, and the 
 jury should so find.^^ 
 
 (b) The court instructs the jury, if they believe from the evi- 
 dence that S. W., the infant plaintiff, was warned of the danger in 
 playing upon the hand car, and was of sufficient intelligence to com- 
 prehend the danger incident to doing so, yet he persisted in playing 
 with said rnaehine, the court instructs the jury that such action on 
 his part amounts to contributoiy negligence such as will bar his 
 right of recoveiy, although they may further believe that it was 
 grossly negligent in the defendant company to leave said machine 
 where it was left.®^ 
 
 (e) If the jury believe from the evidence in this ease that the 
 plaintiff at the time of the injuiy complained of, had sufficient age 
 and sufficient intelligence and experience to properly appi'ehend and 
 understand the risks he took in jumping on to the rear of a passing 
 wagon and thus remaining and riding, then you are instructed that 
 the law charges him with the same responsibility for his conduct as 
 if he were of full age, and that want of ordinary care on the part of 
 the plaintiff, if shown by the evidence, would be a complete defence 
 to his suit, the same as if he were of full age.°^ 
 
 (d) The JU17 are instructed that, while a minor is not required 
 to exercise the same degree of care and pi-udenee for his or her 
 safety which is required of a person of mature age, yet he or she is 
 required to exercise such ordinaiy care for his or her own safety as 
 is commonly exercised by one of like years, experience and intelli- 
 gence. Unless the plaintiff in this ease has proven by a preponder- 
 ance of the evidence that she did exercise such degree of care for 
 
 BR—rjoorprln. C. & N. Tty. Co. v. 68— T. C. R. R. Co. v. Wilson, 
 
 Watkina. 07 Ca. 381, 24 R. K, :^4 (35). supra. 
 
 67— T. C. R. R. Co. V. Wilson, 23 69— Til. Iron & M. Co. v. Webber, 
 
 Ky. T.. 684. 63 S. W. 608. 196 111. 526 (535), 63 N. E. 1008.
 
 §,1356.] NEGLIGENCE— IN GENERAL. 907 
 
 her own safety at the time of the alleged injuiy, the juiy should find 
 for the defendant.'^*' 
 
 (e) The mere fact that there is negligence shown by the plaintiffs 
 to have existed on the part of the defendant or the defendant's 
 servant -would not entitle the plaintiffs to a verdict, if there was 
 negligence on the part of the plaintiff which contributed to bring 
 about the accident. Negligence, to be a subject of recoveiy, must 
 be the cause of the injuries which are complained of; and, if those 
 injuries are brought about by carelessness on the part of the man 
 who is injured, the consequences and the results of the injui'ies lie 
 just where they have fallen. So that if you come to the conclusion 
 that, under the circumstances here, the defendant's driver was guilty 
 of negligence, you are confronted with the question whether the boy, 
 
 , himself, was careless, and whether he failed to take that 
 
 care for his safety which, under the circumstances in question, he or 
 any boy of his age of an equal degree of intelligence with that pos- 
 sessed by him would have taken. Was he inattentive to what was 
 before him? Did he shut his eyes to that which he was bound to see 
 and which was obvious ? If he was lacking in the degree which you 
 have a right to expect from him under the circumstances,, and if his 
 failure to take care of himself contributed to bring about his in- 
 juries, neither he nor his father are entitled to any damages.'^ 
 
 § 1356. Intoxication as Contributory Negligence (a) The court 
 instructs the juiy, as a matter of law, that a man cannot voluntarily 
 place himself in a condition, whereby he loses such control of his 
 brain or muscles as a man of ordinaiy prudence and caution in the 
 full possession of his faculties would exercise, and by such loss of 
 control contribute to an injui'y to himself, and then hold one ignorant 
 of his condition liable in damages. And if you believe, from the evi- 
 dence, that at the time of the alleged injury, the plaintiff was so in- 
 toxicated, that he had lost eontx*ol of his brain or muscles as an or- 
 dinarily prudent and cautious man in the full possession of his facul- 
 ties would exercise under similar circumstances, and that the de- 
 fendants were ignorant of such condition, and if you further find, 
 from the evidence, that such intoxication contributed to the alleged 
 injury, then the plaintiff cannot recover. '^^ 
 
 (b) Since a person, when intoxicated, is less likely to use ordi- 
 nary care in a given instance than when he is sober, it is always 
 proper to inquire into his condition in this respect. If he has been 
 called upon to use such care, and if it is found that at the time he 
 was intoxicated, this circumstance may be considered upon the ques- 
 tion whether he did in fact use ordinary care at the time in question.'^' 
 
 70— Lieserowitz v. W. C. St. R. R. 73— Guertin v. Town of Hudson, 
 
 Co., 80 111. App. 248 (255). 71 N. H. 505, 53 Atl. 736 (738). 
 
 71 — Foote v. American Pro. Co., "The instruction of the court on 
 
 201 Pa. 510. 51 Atl. 364 (365). the question of intoxication, 
 
 72 — Stranrl v. C. & W. M. Ry. taken as a whole, was in accord- 
 Co., 67 Mich. 380, 34 N. W. 715. ance with the law." Stuart v.
 
 908 FORMS OF INSTRUCTIONS. [§ 1357. 
 
 § 1357. Defective Hearing, (a) You are instructed that wher- 
 ever, in any of the instructions, you are told that J. H. was 
 bound to exercise due care for his safety, it is meant that the law r-e- 
 quired him to exercise the degree of care that a reasonably prudent 
 person in possession of the ordinary senses and capacities would have 
 exercised under the facts and circumstances in evidence. If you be- 
 lieve he was old or hard of hearing, yet that did not excuse him from 
 the duty to exercise the full degree of care, as above explained. 
 
 (b) You are instructed that if you believe the plaintiff was old or 
 his hearing defective, yet that would not excuse him from the obliga- 
 tion to exercise due care. He was bound to exercise that degree of 
 care that an ordinarily prudent person would have exercised under 
 the circumstances shown in evidence, and the law is that any defect 
 in hearing not only did not excuse him from the exercise of care, but 
 it required of him 'the greater use of his other senses to discover 
 whether a car Avas approaching. If he failed to exercise such care 
 then he cannot recover and your verdict should be not guilty.'^* 
 
 S 1358. Contributory Negligence — Effect of Terror in Sudden 
 Emergency. The court instructs the jury that if they believe from 
 the evidence that W. H. F., through the negligence of the defendant, 
 was in ten'or of an emergency for which he was not responsible, and 
 for which the defendant was, — he acted wildly and negligently, and 
 lost his life in consequence, — said negligent conduct, under such cir- 
 cumstances, is not contributory negligence. In such case the negli- 
 gent act of the defendant is the proximate cause of the injury.'^ 
 
 § 1359. Danger Must Be Impending for Contributory Negligence 
 to Be a Defense. The duty resting by law upon all persons to exer- 
 cise ordinaiy care to avoid the consequences of another's negligence 
 does not arise until the danger is impending, or the circumstances are 
 such that an ordinarily prudent man would have reason to appre- 
 hend its existence. Failure to exercise ordinaiy care on the part of 
 the person injured, before the negligence complained of is apparent 
 or should be reasonably apprehended, would not preclude a recovery, 
 but would authorize a jury to diminish the damages in proportion to 
 the fault of the person injured.'^*' 
 
 Machlns Port, 48 Me. 477; Alger any merit in the exception that 
 
 V. Lowell, .3 Allen 402; Thorp v. this charge, 'without qualification 
 
 Town of Brookfield, 36 Conn. 320; or further explanation, wfis cal- 
 
 Kinprston v. Ft. W. & E. R. Co., culated to mislead the jury, and 
 
 112 Mich. 40, 70 N. W. 315. 74 N. was an expression of opinion that 
 
 W, 230, 40 L. R. A. 138e; Thomp. the danger was not impending, 
 
 Neg. 85 340, 4')2, 494. and should not have been appre- 
 
 74— T. P. & W. Ry. Co. v. Ham- hended by the plaintiff, at the 
 
 mr-tt. 220 III. 9, 77 N. E. 72. time she was injured.' There was 
 
 7.^5— P. & O. R. R. Co. V. Pew's no expression of opinion involved 
 
 Exr., 94 Va. 82. 2B S E. 40(5 ("407). in the charge, and we do not see 
 
 76— Atlanta K. & N. Rv. Co v. hoM' the jury conld have been 
 
 Crnrdnor. 122 Oa. S2, 49 Ro. 818 ('820, mi«lerl into believing that there 
 
 8^1. 822). was. The failure of the court to 
 
 "We do not think that there Is distinctly charge the principle that
 
 § 1360.] NEGLIGENCE— IN GENERAL. 909 
 
 § 1360. Injury After Defendant Saw Danger in Time to Avert It — 
 Willful or Wanton Defined, (a) If you believe, from the evidence, 
 that the defendant, or its servants, were guilty of negligence, as ex- 
 plained in tliese instructions, upon the occasion referred to, and that 
 the plaintiff was injured thereby, as stated in the declaration, and 
 that he has sustained damage by reason thereof; and also that the 
 plaintiff was himself guilty of slight negligence, which contributed 
 to the injury, and without which the accident would not have hap- 
 pened, still the defendant would be liable in this case; provided, you 
 further believe, from the evidence, that the servants of the defendant 
 saw the danger, to which the plaintiff was exposed, in time to have 
 averted it, and by the exercise of ordinaiy care and prudence could 
 have prevented the injury."'^ 
 
 (b) The court instructs the jury that what is meant by willful 
 and wanton misconduct is such conduct as amounts to an intentional 
 wrong, or of such a reckless character, as shows that the person or 
 persons, guilty of such misconduct, were at the time acting in such 
 manner, as shows that thej' had an utter disregard for the safety and 
 lives of other persons.''^ 
 
 § 1361. Burden of Proof as to Contributory Negligence — States 
 Holding Burden Is on Plaintiff to Prove Freedom from Contributory 
 Negligence, (a) The jury are instructed that before the plaintiff 
 can recover a verdict in this ease, the law requires him to prove by a 
 preponderance of evidence that at the time he received the injuiy 
 complained of he was exercising that degree of care and caution 
 which a reasonable, prudent and cautious man would have exercised 
 under like circumstances, and in the situation that plaintiff was 
 placed, as shown by the evidence; and if the jury believe, from the 
 evidence, that the plaintiff at the time he received the injury com- 
 plained of did not exercise such care and caution for his personal 
 safety, he cannot recover in this action, and your verdict should be 
 for the defendant.'^ 
 
 the plaintiff could not recover if neg-lig'ence by the exercise of or- 
 
 she could, by the exercise of ordi- dinary care. This we understand 
 
 nary care, have avoided the con- to be the doctrine laid down in 
 
 sequences of the defendant's neg-- Western & Atlantic Railroad 
 
 ligence, did not make the charge Company v. Ferg-uson, 113 Ga. 
 
 here excepted to erroneous. The 708, 39 S. E. 305, 54 L. R. A. 802." 
 
 failure to give this principle in 77 — Wharton on Ncg., § 301; 
 
 charge at all has been properly Cooley on Torts (3d Ed.) 1443; 
 
 excepted to in another ground of Harlan v. St. Louis, etc., Rd. Co., 
 
 the motion, which we will here- 65 Mo. 22; Floyd v. Paducah R. 
 
 inafter consider. ..." & L. Co., 24 Ky. Lr. R. 2364, 7S 
 
 "The law of contributory negli- S. W. 1122; Norfolk & W. R. Co. 
 
 gence is not applicable to a case v. Spencer's Adm'x, 104 Va. 657, 
 
 in which the fn^ts show that the 52 S. E. 310. 
 
 person ininrod did not fail to ex- 78 — T. C. R. R. Co. v. Leiner, 202 
 
 erri<?e ordinary care before the Til. 624. aff'd 103 111. App. 438. 67 
 
 nea-ligenre of the defendant was N. E. 398. 95 Am. St. Rep. 266. 
 
 either apparent or .should have 79— Donley v. Dougherty, 75 Til. 
 
 been apprehended by him, and App. 379 r382), aff'd 174 III. 582, 
 
 could not after that time have 51 N. E. 714. 
 avoided the consequence of such
 
 910 FORMS OF INSTRUCTIOljrS. [§ 1362. 
 
 (b) The court instructs the jury that the burden of proof is not 
 upon the defendants to show that they are not guilty of the specific 
 negligence charged in the declaration, or in some count thereof, but 
 the burden is upon the plaintiff to prove that the defendants are 
 guilty, and also to prove that he himself was in the exercise of ordi- 
 nai-y care for his own safety, and this rule as to the burden of proof 
 is binding in law, and must govern the jury in deciding this case. The 
 jury have no right to disregard said rule or to adopt any other in 
 lieu thereof, but in considering the evidence and coming to a verdict, 
 the jury should adhere to said rule.^° 
 
 (c) The court instructs the jury that the burden is upon the 
 plaintiff to prove, by the greater weight of the evidence, not only the 
 negligence of the defendant as charged in the declaration, but also 
 to prove by the greater weight of the evidence that the deceased w^as 
 free from negligence which contributed to the collision which caused 
 his death, and if you find from all the evidence in this case that the 
 plaintiff has not so proven both of said facts, then you should find 
 the defendant not guilty.^^ 
 
 (d) The jury are further instructed that the burden is on the 
 plaintiff to prove by a preponderance of the evidence that he was 
 exercising such care and caution for his safety in going on to the 
 north part of this viaduct while it was being repaired in view of the 
 condition existing at that place at the time in question as could be 
 reasonably expected from a boy of his age and intelligence.^- 
 
 § 1362. Same Subject — States Holding Burden of Proof Is on De- 
 fendant to Establish Plaintiff's Contributory Negligence, (a) The 
 burden of proof in this action is upon the plaintiff' to establish by 
 competent evidence eveiy material allegation of his petition; and, the 
 defendant in his answer having alleged contributory negligence on 
 the part of the plaintiff, the burden of proof is upon the defendant 
 to establish this allegation by a preponderance of the evidence, unless 
 you find from the plaintiff's own testimony that he was guilty of con- 
 tributory negligence. ^^ 
 
 80— C. U. T. Co. v. Mee, 218 111. 9, that, 'in an action for neglig'ence 
 
 75 N. E. 800. where the plaintiff can prove his 
 
 81— C. B. & Q. R. R. Co. v. Ap- case without disclosing any negli- 
 
 pell. 10.3 Til. App. 185 (187, 188). gence on his part, contributory 
 
 "That this instruction stated the negligence is a matter of defense, 
 
 law correctly can not be ques- the burden of proving it being on 
 
 tioned. We do not find that the the defendant.' That decision was 
 
 principle of law sought to be pre- rendered after a very careful 
 
 sented to the jury by this instruc- examination of the authorities for 
 
 tlon is fully covered by another and against the proposition, and 
 
 Instruction, and appellant there- the con<^lusion reached in our 
 
 fore had a right to have it go to view is right, and will be adhered 
 
 th': Jury." to. The doctrine of that case, 
 
 82 — Chlcaero v. Walter, 93 Til. however, can have no application 
 
 App. 228 (230). where the plaintiff in his testi- 
 
 83 — Durrell v. .Tohnson, 31 Neb. mony has stated fncts from which 
 
 79fi. 48 N. W. 890. the .iury could find that his own 
 
 '•Tn 1/in^'oln v. Walker, 18 Neb. negligence had contributed to the 
 
 244, 20 N. W. 113, this court held injury. This element is entirely
 
 § 1363.] NEGLIGENCE— IN GENERAL. 911 
 
 (b) If you believe, from the evidence, that the carelessness and 
 negligence, if any there was, on the part of the plaintiff contributed 
 to the alleged injury complained of, I instruct you that the plaintiff 
 in this action cannot recover; but the burden of proof is upon the de- 
 fendant to show that the* plaintiff was guilty of contributory negli- 
 gence, if any there was, and the defendant must prove that fact by a 
 fair preponderance of the evidence.^* 
 
 (c) If you should find that the injuries occurred by reason of any 
 negligence on the part of the defendants, then the plaintiff is en- 
 titled to recover, unless it affirmatively appears by a preponderance 
 of evidence on that point that the plaintiff was guilty himself of 
 negligence which contributed to the injuries in question. The ques- 
 tion of contributory negligence of the plaintiff is a matter of defense, 
 which must be affirmatively established by a fair preponderance of 
 evidence. If, on this question of contributory negligence you should 
 find that the evidence was equally balanced, then upon that question 
 you would have to find in favor of the plaintiff.*^ 
 
 § 1363. Imputed Negligence— Rule in Ohio. The court instructs 
 the jury that the doctrine of imputed negligence does not prevail in 
 the state of Ohio; and if you find that X. died through the wrongful 
 act, neglect or default of the defendant, by himself or his agent, then 
 the plaintiff is not deprived of the right of action in this case by 
 reason of contributory negligence on the part of her husband or any 
 one else, unless such person was acting as her agent at the time.^^ 
 
 8 1364. Same Subject — Negligence as Regards Children, (a) The 
 jury are instructed, that negligence is the omission of such care or 
 
 ignored in the instruction given, appreciate that plaintiff's con- 
 
 The court, therefore, should have tritautory neg-ligence could be as 
 
 added to the instruction the well established by his own evi- 
 
 qualification, 'unless you find from dence if it appeared therein as 
 
 the plaintiff's own testimony that by that of his adversary was no 
 
 he was guilty of contributory justification for the refusal to in- 
 
 negligence,' this would have struct as requested, and, evi- 
 
 adapted the instruction to the dently, was not the reason for the 
 
 evidence." refusal. If it was feared that 
 
 84— Van Camp H. & I. Co. v. the abstract propositions found in 
 
 O'Brien, 28 Ind. App. 152, 62 N. E. the request might not be correctly 
 
 464. applied by the jury to the facts 
 
 85 — Parsons v. Lyman, 71 Minn, as proven, the court, of its own 
 
 34, 73 N. W. 634. motion, or upon the suggestion of 
 
 "The propositions stated in the counsel, could easily have in- 
 request were clear, precise and structed' upon this point, and 
 intelligible. As abstract state- should have done so. As the re- 
 ments of the law, they were cor- jected request contained a perti- 
 rect. The objection to the in- nent and material instruction, and 
 struction embodied in the request the ground was not covered else- 
 could not have been that the where in the charge, but, on the 
 language was obscure or ambigu- contrary, the jury was incorrectly 
 ous, but, rather, that it might not charged, there was error for 
 be properly applied by the jury which a new trial must be had." 
 to the evidence, without some- 86 — Davis v. Guarnieri, 45 Ohio 
 thing further and explanatory. St. 470, 15 N. E. 350, 4 Am. St. 
 That the jury might not fully 548.
 
 912 
 
 FORMS OF INSTRUCTIONS. 
 
 [§ 1364. 
 
 caution, as persons of ordinary prudence usually exercise or deem 
 sullieient, under the same or similar circumstances of the case. And 
 in this case, if the jury believe, from the evidence, that the child in 
 question was injured through the negligence of the defendant, as 
 charged in the declaration, then it will be for the jury to determine, 
 from the evidence, whether the parents of the child were in the ex- 
 ercise of ordinary care and prudence, for the safety of the child, re- 
 gard being had to his age and intelligence and all the surrounding 
 circumstances.^'' 
 
 (b) The jury are instructed that, if they believe, from the evi- 
 dence, that deceased, at the time of his injury, from his age, re- 
 quired the care and oversight of some older person in order to insure 
 his personal safety, and further, that at the time of the injurj' 
 reasonable care and oversight were not exercised by the parents (or 
 either of them) of the child for its personal safety, and that such 
 want of reasonable care contributed directly to the injury, then the 
 plaintiff cannot reeover.^^ 
 
 (e) Where the pai'ents of an infant or a child, too young to be 
 allowed on the public streets alone, a,\e unable to give him their per- 
 sonal care, but do intrust him to the eare and supervision of a suit- 
 
 "The court below was asked to 
 apply the familiar principle of 
 contributory negligence as a de- 
 fense to the plaintiff's action. To 
 do this it became necessary in 
 case the jury should find the wife 
 without fault, to insist that the 
 negligence of the husband contrib- 
 uted with that of the defendant 
 to produce the injury complained 
 of. This defense necessarily in- 
 volved the assumption either that 
 the husband was the agent of the 
 wife, or that, by reason of their 
 marital relations, his negligence 
 was to be imputed to her. The 
 contention now is that the doc- 
 trine of imputed negligence still 
 prevails in Ohio, so far as relates 
 to husband and wnfe. In Bellefon- 
 taine & Ind. R. R. Co. v. Snyder, 
 18 Ohio St. 399, it was held that 
 the negligence of a parent or 
 custodian of a child cannot be 
 imputed to the child to bar its 
 right of action against others for 
 injuries resulting from their 
 wrongful acts. Again, it was said 
 hy this court in Cleveland, C. & 
 C. R. R. Co. v. Manson, 30 Ohio 
 St. 451, (first paragraph of the 
 syllnbus): 'The dnr-trine of im- 
 puted npgllgen<^e does not prevail 
 In Ohio; and a child of tender 
 yoars. Injured by the fault of 
 another is not deprived of a right 
 of action by reason of contributory 
 
 negligence on the part of a parent 
 or guardian. In Transfer Co. v. 
 Kelly, 36 Ohio St. 86, 38 Am. Rep. 
 558, it was held that in an action 
 by a railroad passenger (without 
 fault himself) for a personal in- 
 jury, against a defendant whose 
 negligence directly and proxi- 
 mately concurred with the negli- 
 gence of the railroad coinpany in 
 producing the injury, the concur- 
 rent negligence of the company 
 cannot be imputed to the plaintiff 
 so as to charge him with contrib- 
 uting to his own injury. In 
 Street Railway Co. v. Eadie, 43 
 Ohio St. 91, 1 N. E. 519, a minor 
 fully capable of taking reasonable 
 care of herself was riding with 
 her father in his wagon, when she 
 was injured by a collision between 
 the wagon and street car, caused 
 by the mutual negligence of her 
 father and a street car driver, but 
 without fault on her part. It was 
 held that her father's negligence 
 was not to be imputed to her to 
 bar her recovery against the 
 street car company." 
 
 87 — Johnson's Adm'r. etc., v. Chi. 
 & N. W. Ry. Co., 49 Wis. 529, 5 
 N. W. 886. 
 
 88— True & True Co. V. Woda, 
 201 111. 31 .'5. 66 N. E. 369, aff'g 104 
 111. App. 15; J. M. & L. Rd. Co. 
 v. Bowen, 40 Ind. 545.
 
 ?,1365.] NEGLIGENCE— IN GENERAL. 913 
 
 able person, the negligence of the latter cannot be imputed to the 
 parents nor to the chilcl.^^ 
 
 (d) As pertinent to the question of reasonable care, regarding 
 the child, the juiy may consider whether it aiipeaxs, from the evi- 
 dence, that he was of such tender years as to need, for his personal 
 safety, the care and oversight of some older person; and, if the juiy 
 so find, from the evidence, then they should inquire whether it ap- 
 pears, from the evidence, that at the time of the accident some older 
 person was exercising such care and oversight over the person of the 
 child, as ordinarily judicious and careful persons, having the care of 
 children of like age, usually exercise over them.*^" 
 
 § 1365. Parties to Action for Negligence — Several Defendants. 
 
 (a) The court instructs the jury that notwithstanding plaintiff has 
 alleged in his complaint joint and concurrent negligence on the part 
 of all the defendants, I charge you that if the proof fails to show 
 such joint and concurrent negligence on the part of all the defend- 
 ants, yet shows negligence on the part of one or more of the defend- 
 ants which negligence resulted in injury to plaintiff, as the sole and 
 proximate cause thereof, then you may find a verdict against such de- 
 fendant or defendants as the proof shows was guilty of such negli- 
 gence.^^ 
 
 (b) If the jury believe, from the evidence, that the plaintiff has 
 proved the allegations contained in one or more counts of his declara- 
 tion by a preponderance of the evidence, and if the jury believe, from 
 the evidence, that the plaintiff was injured as alleged, and if you be- 
 lieve, from the evidence, that the plaintiff at the time of such injury 
 was in the exercise of reasonable care for his safety, and if you 
 further believe, from the evidence, that such injury, if proved, was 
 caused by or through the negligence of the defendants, or either of 
 them, as alleged in either count of the declaration, then the plaintiff 
 is entitled to recover from the defendant or defendants proven 
 guilty such damages as you believe, from the evidence, will compen- 
 sate him for the injury sustained. ^- 
 
 § 1366. Corporation Has Same Status as Individual. You are in- 
 structed by the court that it is your imperative duty to try this case 
 and decide the same as if it was a suit between two individuals. The 
 fact that the person injured was a boy, and the defendant a coipora- 
 
 89— Walters v. C, R. I. & P. of the defendants or either of them 
 
 Rd. Co., 41 la. 71. as alleged in either count of the 
 
 90 — Kvansville, etc., Rd. Co. v. declaration, plaintiff was entitled 
 
 Wolf, 59 Ind. 89. to recover; for where two defend- 
 
 91 — Carson v. Southern Ry. Co., ants are sued for a tort, it is not 
 
 68 S. C. 55, 46 S. E. 525 (532). necessary that both must be found 
 
 92 — Chi. Telephone Co. v. Hiller, pruilty or neither, but one may be 
 
 106 Til. App. 306 (310), aff'd 203 found eruiltv and the other 
 
 111. 518, 68 N. E. 72. acquitted. C. & W. T. Ry. Co. v. 
 
 "This instruction was literally Doan. 93 111. App. 247." Aff'd 195 
 
 correct in statinpr that if the in- 111. 168, 62 N. E. 826. 
 jury was caused by the negligence 
 
 58
 
 914 FORMS OF INSTRUCTIONS. [§ 1367. 
 
 tion, should make no difference with you in the trial of this action. 
 In considering and deciding this cause, you should look solely to the 
 evidence for the facts, and the instructions of the court for the law, 
 in the case, and find your verdict accordingly, without any reference 
 to who is plaintiff and who is defendant. The fact that the plaintiff 
 has brought suit in this action constitutes no ground whatsoever on 
 which to base the presumption that he is entitled to a verdict against 
 the defendant. That he is a poor boy constitutes no reason why the 
 plaintiff should be entitled to a verdict. All these things are outside 
 of what you are to consider.^^ 
 
 § 1367. Contractor's Negligence, (a) The court instructs the 
 jury, as a matter of law, that when work is contracted to be done by 
 a contractor, the owner retaining or exercising no control over the 
 manner of doing the work, and the work is not of itself dangerous, 
 but only becomes so by the negligence of the contractor, then the em- 
 ployer is not liable for injuries resulting from the negligence of the 
 contractor.^* 
 
 (b) Although the jury may believe, from the evidence, that the 
 defendant was the owner of the premises adjoining the sidewalk in 
 question, and that the work on the building and walk was being done 
 for hire, and that a dangerous and unsafe opening had been left in 
 the walk by reason whereof the plaintiff was injured, as alleged, 
 while exercising reasonable care himself, still, if you further believe, 
 from the evidence, that before the time of the alleged injury, the de- 
 fendant had entered into a written contract with A. & B. for an 
 erection of a building on said premises, and that the said A. & B. 
 were then reputed to be skillful, reliable and competent builders, and 
 that, at the time of the injury, said contractors were in the exclusive 
 possession of said premises and sidewalk, pursuant to the tenns of 
 said contract, for the purpose of erecting said building and doing 
 said work, and were not subject to the control or direction of the de- 
 fendant as to the manner of doing the work, aiid that the acts charged 
 as the cause of the injuiy were acts of the said contractors or their 
 employes, and not of the defendant nor of his servants or agents, 
 then the defendant would not be liable for such injury.^^ 
 
 (e) That when work is contracted to be done which is dangerous 
 of itself, unless guarded, and the employer makes no provision in his 
 contract for its being guarded, and makes no reasonable effort to 
 guard it himself, then he is negligent, and, if injury results there- 
 from, he cannot escape liability, on the ground that the work was 
 done by a contractor."" 
 
 (d) The court inst7'ucts the jmy, that it is a rule of law that 
 when certain work, and the manner of doing it, are assented to by 
 
 93— Pledprer v. C. B. & Q. R. Pierrepoint v. Loveless, 72 N. T. 
 Co.. 69 Neb. 456, 95 N. W. 1057 211. 
 (l"5n). 95— Kyan v. Curran, 64 Tnd. 345. 
 
 94— Myer v. Hobbs, 57 Ala. 175; 96— Wood v. Ind. S. D. 44 Ta. 
 
 27; Hale v. Johnson, 80 111. 185.
 
 §1 1368.1 NEGLIGENCE— IN GENERAL. 915 
 
 the employer, and damage to a third party must necessarily or natu- 
 rally result from the work and the manner of doing it, then the em- 
 ployer will be liable. And in this case, if the jury believe, from the 
 evidence, that the defendant employed the said A. B. to blast the 
 rocks in question, for the purpose of getting out the stone fi'om the 
 quarry, and that the said A. B., in pursuance of such contract, did 
 blast out the stone in question, and that plaintiff's property was 
 damaged in consequence of such blasting, then the defendant would 
 be liable for such damage, provided you further believe, from the 
 evidence, that the said A. B. was not guilty of any special negligence 
 or want of ordinary care in doing said work, which resulted in or 
 contributed to such injuiy.^'^ 
 
 § 1368. Effect of Release of Cause of Action by Plaintiff, (a) If 
 
 you believe from the evidence that on or about the day of 
 
 , the plaintiff agreed with the defendant upon a com- 
 promise of his claim for damages sued on in this ease for the sum of 
 $1, and the promise to employ him for one day as a section foreman, 
 and the further promise of the general claim agent of the defendant 
 company to pay to the plaintiff the full time lost by him on account 
 of his injuries, same to be ascertained by a statement of the attend- 
 ing physician; and if you believe that the plaintiff then and there 
 accepted said promise and agreement, together with the one dollar, 
 and the employment of him for one day as a section foreman, in sat- 
 isfaction and discharge of his original cause of action on account of 
 his injuries, and that he agreed and expected to look to and demand 
 of the defendant the sum of the time lost by him on account of such 
 injuries, when same were ascertained by his physician, under said 
 promise and agreement, and not to demand of defendant damages on 
 account of his original cause of action, as it stood before such prom- 
 ise and agreement was made — then you will find a vei'dict for the 
 defendant. °^ 
 
 (b) In this ease you are instructed that, as a defense, defendant 
 pleads a -settlement and release made with the plaintiff, and, in avoid- 
 ance of such settlement and release, the plaintiff claims that, when 
 such settlement was made and such release executed, he did not have 
 the mental capacity to do such things, and you are instructed to re- 
 turn a verdict for the defendant unless you believe from the evi- 
 dence that, at the time plaintiff made such settlement and executed 
 such release, he was mentally incapable of understanding the nature 
 and effect of such settlement and release. 
 
 § 1369. Release Obtained by Fraud or Misrepresentation. The 
 court instructs the jury that if they find and believe from the evi- 
 dence that the plaintiff is an ignorant and illiterate woman, and that 
 within a few days after her injury defendant's claim agent called on 
 
 97— Tiffin v. McCormack, 34 Ohio Minter, — Tex. Civ. App. — , 85 
 St. 638. S. W. 477 (479). 
 
 98— Gulf, C. & S. F. Ry. Co. v.
 
 916 FORMS OF INSTRUCTIONS. [§ 1369. 
 
 her, and repeated his visits to her during the succeeding week, and 
 induced her to accept from h^m the sum of ten dollars ($10), by rep- 
 resenting to her that the defendant could not be compelled by law to 
 pay her anything, but that it had authorized him to give her five 
 dollars ($5) as a gratuity, and that he himself would add five dol- 
 lars ($5) to that amount, and desired her to sign a receipt so that he 
 could show defendant that he had paid out this money, and if you be- 
 lieve that when plaintiff signed said release she did not understand 
 its contents or character, and thought it was a receipt, and not a re- 
 lease of her rights, and that its nature was misrepresented (as above 
 stated) to her by defendant's agent, then said release is invalid and 
 constituted no defense to this suit.**^ 
 
 99 — Austin v. St. L. Transit Co., he knew to be false, and that the 
 
 115 Mo. App. 146, 91 S. W. 450. representations were believed to 
 
 "This instruction authorized the be true by plaintiff and were relied 
 
 jury to find for the plaintiff if on by her; and we can see no ob- 
 
 they found that defendant's claim jection to it or just ground for 
 
 agent made false representations criticism." 
 to plaintiff, representations which
 
 CHAPTER LXIII. 
 NEGLIGENCE— MASTER AND SERVANT. 
 
 See Erroneous Instructions, same chapter head, Vol. III. 
 
 PART I. 
 
 LIABILITY OF MASTER FOR ACTS OF 
 
 SERVANT. 
 
 s I3V0. Master liable for negligence 
 of servant. 
 
 § 1371. Liable for the torts of serv- 
 ants, when. 
 
 § 1372. Liability of master for ma- 
 licious, vexatious or wan- 
 ton acts of servants. 
 
 § 1373. Wrongful act of servant. 
 
 § 1374. Authority of watchman to 
 guard premises does not 
 include authority to shoot 
 trespassers. 
 
 § 1375. Band director not liable for 
 injury by beer bottle care- 
 lessly dropped by band 
 member. 
 
 PART II. 
 LIABILITY OF MASTER TO SERVANTS. 
 
 IN GENERAL. 
 
 § 1376. Master and servant — Master 
 liable to servant, when. 
 
 §1377. Reasonable care only re- 
 quired for safety of em- 
 ployes. 
 
 5 1378. Servant's right to presume 
 master has performed duty 
 with ordinary care. 
 
 § 1379. Master not an insurer of 
 servant's safety. 
 
 § 1380. Master not liable for mere 
 accident. 
 
 § 1381. Duty of master to make 
 rules for the guidance of 
 employes. 
 
 § 1382. Instruction of servant ig- 
 norant of the danger of 
 his position. 
 
 § 1383. Employment of minor in 
 dangerous position. 
 
 § 1384. Instruction of minor by 
 master. 
 
 §1385. Right to rely on representa- 
 tions of minor as to ex- 
 perience. 
 
 §1386. Employing child without 
 school certificate in Illi- 
 nois. 
 
 § 1387. Negligence of master not 
 presumed — Bui'den of proof 
 on plaintiff. 
 
 § 1388. Effect of admission of plain- 
 tiff that explosion was his 
 fault. 
 
 § 1389. Foreman .assumes risk of 
 carelessness of employes 
 subject to his control. 
 
 REASONABLY SAFE PLACE FOB WORK. 
 
 § 1390. Master must furnish rea- 
 i sonably safe place and 
 surroundings. 
 
 § 1391- Insufficient fastening or 
 nailing of scaffold. 
 
 § 1392. Servant may assume mas- 
 ter has furnished safe 
 scaffold. 
 
 § 1393. Injury from falling of brick 
 through insufficient plat- 
 form of scaffolding. 
 
 5 1394. Injury through defective 
 sewer cover. 
 
 § 1395. Failure to keep boards on 
 sill of window securely 
 fastened. 
 
 § 1396. Elevator— Duty to keep in 
 repair. 
 
 § 1397. Elevator— Failure of master 
 to guard opening. 
 
 § 1398. Mines — Failure to partition 
 off stairway from main 
 air-way escapement shaft. 
 
 5 1399. Mines— Statutory inspection 
 of. 
 
 § 1400. Mines — Failure of mine boss 
 to visit room in which 
 miners work- 
 
 § 1401. Maintaining coal chute 
 without guard gate or 
 guard board. 
 
 § 1402. Allowing shavings to ac- 
 cumulate in passageway 
 near molder. 
 
 § 1403. Injury by being jolted from 
 car on logging road. 
 
 § 1404. Injury to conductor of street 
 car through defective rail. 
 
 § 1405. Telephone wires — Burden of 
 proof as to negligence in 
 adjusting. 
 
 917
 
 918 
 
 FORMS OF INSTRUCTIONS. 
 
 SATE AND SUITABLE APPLIANCES. 
 
 § 1406. Master's duty to provide 
 safe appliauces and keep 
 them in proper repair. 
 
 § 1407. Material not an appliance- 
 Master in furnishing ma- 
 terial stands on same foot- 
 ing- as third person so do- 
 ing. 
 
 § 1408. Machinery used by mas- 
 ter, although not owned by 
 him. 
 
 § 1409. Latent defects— Master not 
 liable for. 
 
 § 1410. Master does not insure ab- 
 solute safety of appli- 
 ances. 
 
 § 1411. Duty of employer to use 
 reasonable diligence for 
 safety of employe includes 
 inspection and tests at 
 proper intervals of appli- 
 ances. 
 
 § 1412. Duty of inspection— Charac- 
 ter of business should be 
 considered. 
 
 § 1413. Defective machinery alone 
 insufficient for recovery- 
 Injury must have proxi- 
 mately resulted from de- 
 lect. 
 
 ! 1414. Master not bound to furnish 
 the safest and best appli- 
 ances. 
 
 § 1415. What are appliances in the 
 raising of cants. 
 
 § 1416. Duty of master in furnish- 
 ing mail cranes and en- 
 gines. 
 
 § 1417. Liability for defect in weld 
 of swivel. 
 
 § 1418. Injury through defect in 
 lever of jacksaw. 
 
 § 1419- Defective belt in mill. 
 
 § 1420. Injury through unsuitable 
 belt on planer machine. 
 
 § 1421. Spike maul flying off han- 
 dle. 
 
 § 1422. Flanges of wheels on de- 
 fendant's cars being worn 
 too thin. 
 
 i 1423. Injury to employe from de- 
 ' fective ladder — When em- 
 ploye cannot be charged 
 with negligence. 
 
 S 1424. Using defective tire bender. 
 
 S 1425. Servant injured through de- 
 fective derrick. 
 
 9 1426. Injury to gripman on street 
 car through defective 
 brake. 
 
 ! 1427. Injury to servant by negli- 
 gf-nt use of compressed 
 air. 
 
 FELLOW SERVANTS. 
 
 § 1428. Fellow servants defined — 
 Contributory negligence. 
 
 § 1429. Fellow servants— Elements 
 necessary to constitute re- 
 lationship of. 
 
 § 1430. Fellow servants — Persons 
 may be as to part of em- 
 ployment and not as to 
 other part. 
 
 § 1431. Who are fellow servants a 
 question of fact for the 
 jury. 
 
 § 1432. Negligence of defendant and 
 of fellow servant. 
 
 § 1433. Fellow servants — Rule in 
 Colorado. 
 
 § 1434. Care required by master in 
 selection of fellow serv- 
 ants. 
 
 § 1435. Responsibility of master for 
 incompetency of fellow 
 servants. 
 
 § 1436. Person charged with venti- 
 lation of mine not fellow 
 servant of miner. 
 
 § 1437. Negligence of fellow serv- 
 ant. 
 
 § 1438- Motorman of street car fail- 
 ing to reduce speed at 
 sunken or depressed spot — 
 Fellow servant of con- 
 ductor. 
 
 § 1439. Who are vice-principals. 
 
 § 1440. Responsibility of master for 
 negligence of vice-princi- 
 pal. 
 
 § 1441. Servant engaging in extra 
 hazardous work different 
 from ordinary employment 
 at command of fellow 
 servant. 
 
 § 1442. Superior authority does not 
 always destroy relation- 
 ship of fellow servants. 
 
 § 1443. Molder as vice-principal to 
 laborer. 
 
 ASSUMPTION OF RISK. 
 
 § 1444. Servant assumes all risks 
 ordinarily and naturally 
 incident to particular serv- 
 ice in which he is engaged. 
 
 § 1445. Risk not ordinarily incident 
 to employment — Burden of 
 proof. 
 
 § 1446- Assumed risk — Circum- 
 stances to be considered. 
 
 § 1447. Servant does not take the 
 risk of dangers not inci- 
 dent to the business— Duty 
 of master— Duty of serv- 
 ant. 
 
 5 1448. Servant does not assume ex- 
 traordinary peril or risks,
 
 NEGLIGENCE— MASTER AND SERVANT. 
 
 919 
 
 § 1449. Servant voluntarily assum- 
 ing duty not arising under 
 his employment. 
 
 § 1450. Employe voluntarily taking 
 place he is not required to 
 take. 
 
 § 1451. Servant's knowledge of facts 
 which would make his own 
 act dangerous. 
 
 § 1452. Duty of servant to apprise 
 himself of dangers of ma- 
 chinery. 
 
 § 1453. Duty of servant to look out 
 for patent and obvious de- 
 fects. 
 
 § 1454. Effect of plaintiff's knowl- 
 edge that window was of 
 great weight. 
 
 § 1455. Prior knowledge of condi- 
 tion of ditch by employe 
 of municipal corporation- 
 
 § 1456. Danger of falling into chute 
 or excavation, when as- 
 sumed. 
 
 § 1457. Carrying glass through pas- 
 sageway which servant 
 knows to be obstructed. 
 
 § 1458. Knowledge of servant as to 
 uncovered electric wires. 
 
 § 1459. Assumption of risk by em- 
 ployes of street car com- 
 pany as to poles too near 
 track. 
 
 § 1460. Duty of servant as to ex- 
 amination of grip car for 
 defects. 
 
 § 1461. Assumption of risk in grind- 
 ing planer tool upon emery 
 wheel. 
 
 § 1462. Using defective gas pipe as 
 lever. 
 
 § 1463. Assumption of risk in un- 
 loading timbers. 
 
 § 1464. Carrying too heavy a piece 
 of timber — Employing in- 
 sufficient help — Assumed 
 risk. 
 
 § 1465. Failure to use precautions 
 against known danger. 
 
 § 1466- Servant knowing hazards 
 cannot recover on ground 
 there was a safer way of 
 conducting business. 
 
 § 1467. Continuing work in danger- 
 ous place after notice of 
 defect to master. 
 
 §1468. Operating dangerous mn- 
 chine after promise of 
 master to supply device 
 for lessening danger. 
 
 § 1469. Continuing in employment 
 after bolt had come off 
 many times — Fellow serv- 
 ant. 
 
 § 1470. Defective machinery — Con- 
 tinuing work with assu- 
 rance of superintendent 
 that machine is all right. 
 
 § 1471. Minors — Assumption of risk. 
 
 CONTRIBUTORY KEGLIGENCE. 
 
 § 1472. Contributory negligence of 
 servant — In general — Serv- 
 ant guilty of cannot re- 
 cover. 
 
 § 1473. Contributory negligence de- 
 fined. 
 
 § 1474. Negligence of servant or 
 fellow servant must be a 
 proximate cause of injury 
 in order to be defense. 
 
 § 1475- Contributory negligence — 
 Surrounding facts and cir- 
 cumstances in evidence 
 should be considered. 
 
 § 1476. Contributory negligence of 
 plaintiff must be pleaded 
 by defendant— (South Car- 
 olina). 
 
 § 1477. Burden of proof as to con- 
 tributory neglige;ice — Rule 
 that it is ordinarily on de- 
 fendant. 
 
 § 1478. Voluntarily doing work in 
 more dangerous of possi- 
 ble different ways. 
 
 § 1479. Doing work in way other 
 than ordered by master. 
 
 § 1480. Servant — Continuing work 
 without repairing defects 
 after being warned of 
 danger. 
 
 § 1481. Intoxication of servant as 
 contributory negligence. 
 
 § 1482. Minors rule as to contrib- 
 utory negligence — Safe ma- 
 chinery and appliances^ 
 Safe place to work. 
 
 § 1483. Working near a dangerous 
 lumber pile. 
 
 § 1484. Raising beam in obviously 
 dangerous way. 
 
 § 1485. Failure to heed warning of 
 foreman to get away from 
 falling timber. 
 
 § 1486. Want of ordinary care of 
 both master and servant- 
 Going under dangerous 
 roof in coal mine — Series. 
 
 § 1487. Contributory negligence in 
 lowering air pump. 
 
 § 1488. Using defective shaft of 
 wagon in alighting.
 
 920 
 
 FORMS OF INSTRUCTIONS. 
 
 [§ 1370. 
 
 § 1489. Contributory negligence ia 
 
 unloadiug cattle. 
 § 1490. Contributory negligence in 
 
 grindiug tool. 
 § 1491. Injury through careless use 
 
 of hammer. 
 51492. Working with split, frayed, 
 
 raveled or untwisted rope. 
 
 INSUEANCE. 
 
 § 1493. Agreements between em- 
 ployers and employes as to 
 insurance against acci- 
 dents. 
 
 EELEASES. 
 
 § 1494. Release of right of action by 
 servant. 
 
 PART I. 
 Liability of Master for Acts of Servant. 
 
 § 1370. Master Liable for Negligence of Servant, (a) The master 
 is civilly liable for the tortious acts of his servants, whether of omis- 
 sion or commission, or whether negligent, fraudulent or deceitful, if 
 done in the course of his employment, even though the master did not 
 authorize or know of such acts, or may have forbidden them. But the 
 act must be done, not only while the servant is engaged in the serv- 
 ice he is employed to render, but it must pertain to the particular 
 duties of that employment.^ 
 
 (b) The court instructs you, that where a tort or wrong is com- 
 mitted by an agent or employe, in the course of his employment, and 
 while pursuing the business of his employer, the employer will be 
 liable for the damages resulting from the wrongful act, although it 
 is done without the employer's knowledge or consent, unless the 
 wrongful act is a willful departure from suoh employment or busi- 
 ness.^ 
 
 § 1371. Liable for the Torts of Servants, When. Railroad com- 
 panies are responsible to passengers for the unlawful acts of their 
 servants and agents employed in running their trains, when such 
 wrongful acts are committed in connection with the business intrusted 
 to them, and spring from, or gTow immediately out of, such busi- 
 ness.^ 
 
 § 1372. Liability of Master for Malicious, Vexatious or Wanton 
 Acts of Servants, (a) The juiy are charged that unless they are 
 reasonably satisfied from the evidence before them in this case that 
 the assault and battery alleged to have been committed by C. upon 
 the plaintiff in this cause was committed in the attempt of said C. to 
 collect a fee alleged to be due from the plaintiff as a tax payer, 
 which said fee the said C. by virtue of his employment as a deputy 
 tax collector was authorized to collect, and which was an unlawful 
 charge against the plaintiff they must find for the defendant. 
 
 (b) The jury are charged that if they shall be I'easonably satis- 
 fied from the evidence that the alleged assault and battery by C. 
 
 1— Snyder v. Hnnnibal Rd. Co., 
 60 Mo. 413; Robinson v. Webb, 11 
 Ru.<!h (Ky.) 4fi4; Ei-kert v. St. 
 Louis, etc., 2 Mn. App. .36. 
 
 2— Cooley on Torts (.Id Ed.) 1017 
 et seq.; 1 Add. on Tort.s 31; God- 
 dard v. Grand Trunk R. R. Co., 
 57 Me. 202; Phila., etc.. R. R. Co. 
 
 V. Derby, 14 How. IT. S. 46S; Bry- 
 ant v. Rich, 106 Mass. ISO; Ind. R. 
 R. Co. v. Anthony. 43 Ind. 1S3. 
 
 3 — Ofisway v. Atlanta, etc.. Rd. 
 Co.. R8 Oa. 216; Rass v. Chicago, 
 etc., Rd. Co., 42 Wis. 654; Brown 
 v. Hannibal, etc., Rd. Co., 66 Mo.
 
 § 1373.] NEGLIGENCE— MASTER AND SERVANT. 921 
 
 upon the plaintiff in this cause was the result of malice, vexation or 
 wantonness on the part of said C, they must find a verdict for the 
 defendant, notwithstanding the fact that the said C. was in the em- 
 ploy of the defendant when he so assaulted and beat the plaintiff, un- 
 less they shall be reasonably satisfied from the evidence that the de- 
 fendant authorized or participated in such act, or that said assault 
 was committed while acting within the scope of the employment of 
 said C* 
 
 § 1373. Wrongful Act of Servant. If the jury believe, from the 
 evidence, that defendant's engineer, with intent to frighten plaintiff's 
 horses, unnecessarily and wantonly let off steam or blew a whistle, 
 ^nd thereby frightened plaintiff's horses, so that they ran off and 
 injured him while he was in the exercise of all reasonable care and 
 prudence in that behalf, then the defendant is guilty, and the jury 
 should find for the plaintiff.^ 
 
 § 1374. Authority of Watchman to Guard Premises Does Not In- 
 clude Authority to Shoot Trespassers, (a) If you believe, from the 
 evidence in this case, that the plaintiff, after being ordered to leave 
 the premises of the defendant, immediately started peaceably to do 
 so, without opposing or resisting the watchman, and that the plaintiff 
 continued thus to go toward the fence alongside defendant's rail- 
 way, and that just as he neared such fence or was about to step over 
 the same, the watchman wantonly without lawful excuse or authority, 
 and merely to satisfy some personal spite or feeling of anger toward 
 the plaintiff or his companions, fired the pistol toward the plaintiff, 
 and inflicted the wound of which the plaintiff complains in this case, 
 and that such act on the part of the watchman was not necessary or 
 proper to the protection of the cars inside the yards nor done in the 
 performance of any duty in that respect, the plaintiff is not en- 
 titled to recover in this case, and your verdict should be for the de- 
 fendant. 
 
 (b) The court instniets you that the law is that the master is not 
 responsible for the acts of the sei'vant done outside of the master's 
 business and to accomplish some end personal to the servant himself; 
 that the law does not imply any authority from the master to the 
 servant to commit an assault upon a person who is not injuring or 
 threatening to injure the master's property, and who is not interfer- 
 ing with the servant's porfoi-mance of his duty to the master; and if. 
 in this case, you believe from the evidence that the plaintiff A. B. 
 was peaceably leaving the railroad property of the defendant, and 
 was not threatening defendant's property nor refusing to go promptly 
 outside its right of way, nor interfering in any way with the per- 
 formance by the watchman of his duties in the defendant's railroad 
 
 4 — Approved, Case v. Hulsebush. thnn a preponderance of the evi- 
 
 122 Aln. 212. 26 So. 155. Tn some rlenrp. 
 
 iiiT-icfjictions the ii?e of the words 5 — Toledo, etc., Rd. Co. v. Har- 
 
 "reiponably sati.sfied" hive been mon, 47 111. 298. 
 held erroneous as requiring' more
 
 922 
 
 FORMS OF INSTRUCTIONS. 
 
 [§ 1375. 
 
 yard, and that, under these circumstances, the watchman fired the 
 shot that struck the plaintiff for some purpose of his own, the plain- 
 tiff cannot recover in this ease, and your verdict must be for the de- 
 fendant.*^ 
 
 § 1375. Band Director Not Liahle for Injury by Beer Bottle Care- 
 lessly Dropped by Band Member. If members of the band were 
 drinking beer on the platform, and one of them carelessly dropped 
 the bottle which injured the plaintiff, the defendant would not be 
 liable.^ 
 
 PART II. 
 
 Liability of Masters to Servants. 
 IN general. 
 
 § 1376. Master and Servant — Master Liable to Servant, When. 
 
 (a) The jury are instructed, that a master or employer is bound to 
 use reasonable care, skill and judgment to furnish suitable maehineiy 
 and implements, properly constructed, and ordinarily skillful and 
 trustworthy agents or workmen; and' if the employer does not use 
 such care, skill and judgment, and injury I'esults therefrom to an em- 
 ploye, the employer will be liable for such injury. 
 
 6— Belt Ry. Co. v. Banicky, 102 
 111. App. 642 (647-8-9). 
 
 "Appellee was a trespasser upon 
 appellant's premises. A master Is 
 liable for the act of his servant 
 done in the course of his employ- 
 ment about his master's business- 
 Wood on Master & Servant, p. 
 522. The master is in this State 
 responsible for acts of the servant 
 done within the general scope of 
 his employment while engaged in 
 his master's business with the 
 view to the furtherance of that 
 business, whether he acts will- 
 fully or wantonly. A master is 
 not liable for acts of his servant 
 not within the scope of his em- 
 ployment. Tuller v. Voght, 13 111. 
 277-2S5; Oxford v. Peter, 28 III. 
 4.'?4; C. M. & St. P. Ry. Co. v. 
 West. 125 111. 320-323, 17 N. E. 788, 
 8 Am. St. Rep. 380; N. C. C. Ry. 
 Co. V. Gastka, 128 111. 613-617, 21 
 N. E. 522. 4 L. R. A. 481; C. B. & 
 Q. Ry. Co. V. Casey, 9 111. App. 
 632; Foster, Rxtrs. v. The Essex 
 Rank. 17 Mass. 478-508-510; The 
 Mechanics Rank v. Bank of Co- 
 lumbia. 5 Wheaton (N. Y.) 326; 
 Bnllnbroko v. Swindon Tjocal 
 Board, 8 Ad. & Ellis. 512; Bailey 
 V. Manchester Ry. Co., L. R. 7 
 
 C. P. 420; Evans Ewell on Agency, 
 489 marginal paging; Wood on 
 Master & Servant. 522; 9th ed. 
 Story on Agency, sec. 456-456a; 
 Vol. 14, pages 818-25, 1st ed.. Am. 
 & Eng. Ency. of Law; Thames 
 Steamboat Co. v. Housatonic Ry. 
 Co., 24 Conn. 40-53-54-56, 63 Am. 
 Dec. 154; McCann v. Tillinghast, 
 140 Mass. 327, 5 N. E. 164; Cleve- 
 land V. New.son, 45 Mich. 621, 7 N. 
 W. 222; Cantrill v. Colwell, new ed. 
 40 Tenn. 471; Golden v. Newbrand, 
 52 III. 59, 35 Am. Rep. 257. 
 
 "The mere employment of a 
 watchman to guard property and 
 keep away trespassers does not 
 involve an authority to shoot tres- 
 passers. An authority for such 
 shooting cannot be presumed- 
 
 "The shooting of a trespasser 
 who is actually leaving the prem- 
 ises is not within the general or 
 implied authority of a mere watch- 
 man." 
 
 7 — Williams v. Mineral City P. 
 Ass'n, 128 Iowa 32, 102 N. W. 783 
 (784). 
 
 "Certainly the mere fact that n 
 member of the band whether he 
 was the employe of the defendant, 
 or of the band director, carelessly 
 dropped a bottle upon the plaintiff,
 
 § 1377.] NEGLIGENCE— MASTER AND SERVANT. 923 
 
 (b) While a master is not an insurer that the servants he em- 
 ploys arc skillful and prudent, or that the workmanship or materials 
 employed in his business are absolutely proper or suitable, yet he is 
 bound to use all reasonable care and skill in their selection and con- 
 struction, so far as regards the safety of the persons in his employ.** 
 
 (e) The court instructs the jury that it is a positive duty which 
 the master owes to his employe to furnish such employe with reason- 
 ably suitable and safe machinery, means and appliances for doing 
 the work which the servant is em^jloyed to do, and to provide him a 
 reasonably safe place in which -to work; that this duty being one 
 which the master is positively bound to perform in the first instance, 
 he cannot be excused from its perfonnance by intrusting it to another 
 charged with the duty to make performance for him, but who neglects 
 to discharge that duty. 
 
 (d) If the master furnishes his employe with adequate machinery, 
 means and ajipliances and a safe place for the performance of his 
 work, exercises reasonable care in keeiDing them in order and proper 
 repair, and provides competent fellow servants, then the master is not 
 responsible to one servant for the negligence of another servant in 
 the management and use of the machinery and appliances furnished 
 for performing his work. 
 
 (e) If then, one servant shall be injured through the negligence 
 of a fellow servant while at work in the line of his employment, this 
 is considered a risk incident to the employment, and the master is 
 not liable.'' 
 
 § 1377. Reasonable Care Only Required for Safety of Employes, 
 (a) As respects the duty of a master or employer towards a servant 
 
 would not sustain a charge of neg- Ohio St. 566; Lewis v. St. Louis, 
 
 ligence against the defendant. The etc., Rd. Co., 59 Mo. 496; Baxter 
 
 negligence of the servant for v. Robei-ts, 44 Cal. 187; Ackersou 
 
 which the master must respond to v. Dennison, 117 Mass. 407; Strah- 
 
 a third person is negligence in lendorf v. Rosenthal, 30 Wis. 674; 
 
 some act or failure to act within Richardson v. Cooper. 88 111. 270. 
 
 the scope of his employment. This 9 — Metzler v. McKenzie, 34 
 
 is elementary and requires no ci- Wash. 470, 76 Pac. 114 (115). 
 
 tation of authorities. So far as "Many illustrations of the appli- 
 
 the record shows, the employment cation of these principles of law 
 
 of the band was for no other pur- are furnished by the decisions. The 
 
 pose than to provide music for following are some of the decisions 
 
 the occasion, and ordinarily at by this court bearing on these 
 
 least, the relation of beer to har- propositions of law which may be 
 
 mony of sound is not so obvious cited in this connection: McDon- 
 
 or necessary that the passing of ough v. Great Northern Ry. Co., 
 
 bottles between members can be 15 Wash. 244, 46 Pac. 334; Johnson 
 
 said to be within the scope of a v. Bellingham Bay Imp. Co.. 13 
 
 musician's employment. We are Wash. 455. 43 Pac. 370; Allend v. 
 
 unable to see how the instruction Spokane Falls & N. Ry. Co., 21 
 
 complained of could in any man- Wash. 324, 58 Pac. 244; Shannon 
 
 ner have prejudiced the plaintiff's v. Cons., etc.. Mining Co., 24 
 
 case." Wash. 119. 64 Pac. 169; Hammar- 
 
 8— Shearm. & Red on Neg., §89- berg v. St. Paul. etc.. Lumber Co., 
 
 92; Nnyes v. Smith, 28 Vt. 59; 19 Wash. 537, 53 Pac. 727; Towle 
 
 Buzzpll V. Laconia, etc., Co., 48 v. Stimson Mill Co., 33 Wash. 305. 
 
 Me. 113; McGatrick v. Wason, 4 74 Pac. 471."
 
 924: FORMS OF INSTRUCTIONS. [§ 1378. 
 
 or employe, in his service, the court instructs the jury, as a matter of 
 law, that the master, or employer, is not bound to provide machinery 
 which is absolutely safe. The law imposes on the master, or employer, 
 only the obligation to use reasonable and ordinary care, skill and 
 diligence, in procuring and furnishing suitable and safe machinery.^" 
 
 (b) A master, such as the defendant, is bound to use ordinary and 
 reasonable care to prevent injuiy to its sei'vant, such as plaintiff, in 
 the course of his employment ; and if the master does not do this, and 
 if the servant is injured in consequence of such failure so to do on 
 part of the master, the latter will be answerable for the damages di- 
 rectly and approximately occasioned thereby.^^ 
 
 (c) The court instructs the jury that the measure of care which 
 should have been taken by the defendant company to avoid a re- 
 sponsibility of the injury to the said B. is that which a person of or- 
 dinary care, pi'udence and caution would use if his own interests 
 were to be affected, or the Avhole of the risk were his own. It is such 
 care as a person of ordinary prudence would exercise under the cir- 
 cumstances surrounding the accident at the time of the injury.^- 
 
 (d) The jury are instructed that it is the law that the mere fact 
 that the plaintiff in this case was at the time of the accident in the 
 employ of the defendant, did not imply an obligation on the part of 
 the defendant to take more than ordinary care for plaintiff's safety; 
 it was only bound to use ordinary care, and the plaintiff was bound 
 to use ordinary care for his own safety. The law required that botli 
 parties should use ordinary eare.^^ 
 
 § 1378. Servant's Right to Presume Master Has Performed Duty 
 with Ordinary Care. The court instructs the jui*y that the servant 
 has a right to presume that the master has performed his duty with 
 ordinary care.^* 
 
 § 1379. Master Not An Insurer of Servant's Safety, (a) The 
 
 court instructs the jury that the defendant was not an insurer of the 
 plaintiff's safety at the time and place here in question; and you are 
 further instructed that you cannot infer or presume that the de- 
 fendant was negligent at said time and place, or find a verdict in the 
 plaintiff's favor, from the mere fact, if it be a fact, that the spike 
 
 10 — Wharton on Neg'. §205; above instruction states the law 
 
 Wright V. The N. Y. Cent. Rd. Co., properly, and should have been 
 
 25 N. y. 562; Cooley on Torts (3d given." 
 
 Ed.), 11.39-1141; Ladd v. New Bed- 13—111. S. Co. v. Wierzbicky, 107 
 
 ford, etc., Rd. Co., 119 Mass. 412; 111. App. 69 (77), aff'd 206 111. 201, 
 
 Indianapolis, etc., Rd. Co. v. Love, 68 N. E. 1101. 
 
 10 Ind. 554; Fort Wayne, etc., v. 14— M., K. & T. Ry. Co. of Texas 
 
 Gildcrsleeve, 33 Mich. 137; Camp v. Crowder, — Tex. Civ. App. — , 
 
 Point, etc., Co. v. Ballou, 71 111. 55 S. W. 380. "The charge an- 
 
 417. nounced the correct principle, and 
 
 11— International & G. N. R. Co. it was not improper for the court 
 
 V. Trump. — Tex. Civ. App. — , 94 to so inform the jury. M. K. & T. 
 
 R- W. 903. Railway Co. v. Gordon, 11 Tex. 
 
 12— McVfjy V. St. Clair Co., 49 Civ. App. 672, 33 S. W. 684, and 
 
 W. Va. 412, 38 S. E. 648 (651). "The authorities there cited."
 
 §1379.] NEGLIGENCE— MASTER AND SERVANT. 925 
 
 maul described by the evidence slipped off of its handle and fell upon 
 the plaintiff's foot and injui-ed it.^^ 
 
 (b) The court instructs the jury that a railroad company is not 
 an insurer of the lives and limbs of its servants, and it cannot be held 
 liable for an injury sustained by its servants, unless it was guilty of 
 some act of negligence which resulted in the injury, and which was 
 not contributed to by the carelessness or negligence of the servant 
 himself.^® 
 
 (c) The court instnicts the jury that the defendants were not in- 
 surers of the plaintiff against injury while in their employment, and 
 that you cannot find a verdict for him merely because he was in- 
 jured. 
 
 (d) The court instructs the juiy that if you believe from the evi- 
 dence that the plaintiff was not using ordinaiy cai'e at the time and 
 place of his injuiy, and that the failure to use such care directly con- 
 tributed to cause his injury, then you will find for the defendants; 
 and you are instructed that ordinary care is such care as would be 
 used by an ordinarily prudent person under the same circumstances. 
 
 (e) The court instructs the jury that, in considering its verdict, 
 the jury should not be governed by sympathy for plaintiff because he 
 met with an injury while in defendants' employ, or have any preju- 
 dice or feeling either in favor of or against the plaintiff or defend- 
 ants, but the jury should only, in arriving at its verdict, be gov- 
 erned by the evidence and instructions of the court. ^'^ 
 
 (f) An employer is not bound to furnish his employes with abso- 
 lutely safe materials and appliances. He is not an insurer of the 
 safety of his employes or of the perfection of the materials or ap- 
 pliances upon or with which the employe may labor. But his obliga- 
 tion is to use ordinaiy and reasonable care to supply reasonably safe 
 materials and appliances; and if the juiy believe from the evidence 
 
 that the defendant furnished with an ingot reasonably 
 
 cooled and hardened for moving through the air, held by tongs, and 
 that the ingot fell fi'om pure accident, or from any negligence on the 
 
 part of , or because the hold upon the ingot was loosened 
 
 without negligence of the defendant by reason of striking against, or 
 
 resting upon, a ear, so that the ingot fell over and injured , 
 
 then the juiy should bring in a verdict of "not guilty. "^^ 
 
 (g) The jury are instructed that the defendant was not bound as 
 an insurer for the absolute safety and suitability of the machinery 
 and appliances furnished by him for use in his business, and that he 
 was not bound to furnish the very best or most improved kind of ma- 
 chinery to be used in his factory. It was sufficient if the machine 
 
 15 — Deckerd v. Wabash R. Co., it could be more forcibly and ex- 
 Ill Mo. App. 532. SB P. W. 9S2 (9U). plicitlv expres.sed." 
 
 Ifi— B. & O. S. W. Rv. Co. V. 17— Curtis v. McNair, 173 Mo. 
 
 Spaulding-, 21 Ind. App. 323. 52 N. 270. 73 S. W. 167 (172). 
 
 E. 410 (412). ."It stated the law 18—111. R. Co. v. Trafas, 69 111. 
 
 clearly, and we do not know how App. 87 (89).
 
 926 
 
 FORMS OF INSTRUCTIONS. 
 
 [§ 1380. 
 
 and the pulleys and appliances connected with the same were reason- 
 ably safe and suitable for the purpose for which they were used.^'* 
 
 § 1380. Master Not Liable for Mere Accident. The court in- 
 structs the jury that if they shall believe from the evidence that the 
 plaintiff's intestate sustained the injuries complained of as the direct 
 and natural result of an accident, and not as the direct and natural 
 result of the defendant's negligence, they must find for the de- 
 fendant. -° 
 
 § 1381. Duty of Master to Make Rules for the Guidance of Em- 
 ployes. It is the duty of the master when the nature of the business 
 i-equired it to make and promulgate rules for the protection of his 
 servants, and to use due care and diligence, after the making and 
 promulgating of a necessary rule to have it enforced; and if you 
 should find from the evidence in this case that the nature of the de- 
 fendant's business was such as, in the exercise of due care and 
 prudence for the safety of its employes, requiring the making and 
 promulgating of rules, and should further find that the defendant 
 failed to make and promulgate such rules, or having made and pro- 
 mulgated the same failed to use due care and diligence to have them 
 enforced, and should further find that the injuries, if any received by 
 the plaintiff, were caused by such failure, you should find for the 
 plaintiff.-^ 
 
 19 — Harsha v. Babicx, 54 111. 
 App. 586 (587 and 588). "The in- 
 struction for which defendant 
 asked should have been given. 
 Nothing- equivalent thereto was 
 given, and for the error in this 
 regard the judgment must be re- 
 versed and the cause remanded." 
 
 20— De Witt's Adm'r v. Louis- 
 ville & N. R. Co., 29 Ky. Law 
 1161, 96 S. W. 1123. "Taken as a 
 whole, the jury could not have un- 
 derstood that the defendant's neg- 
 ligence was eliminated from their 
 consideration when they were 
 plainly told that the accident must 
 not be the result of defendant's 
 negligence if they would find for 
 it." 
 
 21— Johnson v. U. P. Coal Co.. 28 
 Utah 46, 76 Pac. 1089 (1097). "The 
 following rule stated in Barrows 
 on Neg. p. 102, § 40, is generally 
 sustained by both courts and text 
 writers to-wit: 'It is the duty of 
 the master to prescribe and pub- 
 lish such suitable rules as the cir- 
 cumstances may reasonably re- 
 quire for the proper and safe 
 transaction of the business. This 
 duty of the master to protect his 
 servants by making suitnble rules 
 for the safe management of the 
 business becomes more imperative 
 
 in proportion to the danger and 
 complication of the work but 
 whether any rule at all is required 
 in the exercise of ordinary care in 
 a particular case, or whether the 
 one in effect at the time of the 
 injury was reasonably sufficient 
 are generally questions of fact for 
 the jury. . . . And the master 
 must also exercise ordinary care 
 to see that the rules and regula- 
 tions are enforced.' A failure upon 
 the part of the master to perform 
 this duty is negligence per se. 
 Wood on Mast. Liab. § 403. 
 Whether this duty has been per- 
 formed depends upon the circum- 
 stances of each particular case, 
 and when the evidence, as in this 
 case is such as reasonable men 
 might differ as to whether the 
 duty has been performed, it is a 
 question for the jury. In East- 
 wood v. Retsoff Mining Co.. 86 
 Hun 91 (96), 34 N. Y. S. 196 (198), 
 the court said: 'It is quite clear 
 in this case that the question 
 whether or not the case was a 
 proper one for requiring the de- 
 fendant to establish rules for the 
 government of its employes in 
 drawing salt from this bin, when 
 men were engaged inside of it, 
 was one as to which reasonable
 
 §1382.] NEGLIGENCE— MASTER AND SERVANT. 927 
 
 § 1382. Instruction of Servant Ignorant of the Dangers of His 
 Position. If, at the time plaintiff was emplo^^ed by the agents of the 
 defendant company to operate the engine and drive wheel thereof in 
 question, he was ignorant of the duties of such position and the 
 dangers incident thereto, and if such facts were known to the agent 
 of defendant company who employed him, then it was the duty of 
 such agent to have instructed plaintiff how to operate said engine 
 and drive wheel, and to have warned him of the dangers incident to 
 starting said drive wheel; and if such agent failed so to do, and if 
 such failure was negligence on the part of said agent, and if plaintiff 
 was thereby injured, and if such failure on the part of defendant's 
 agent was the direct cause of such injury, and if plaintiff did not 
 contribute thereto by some negligent acts, as hereinafter explained, 
 you will find for the plaintiff.-- 
 
 § 1383. Employment of Minor in Dangerous Position, (a) Per- 
 sons who employ children must anticii^ate the ordinary behaviour of 
 children, and must take notice of their lack of judgment, and must 
 exercise greater care towards and for them than is required by law 
 to be exercised towards and for adult persons. 
 
 (b) It is an actionable wrong for a person to place or employ a 
 child of such immature judgment as to be unable to comprehend the 
 danger to work with or about a machine of a dangerous character, 
 likely to produce injury; and in this case if you are satisfied by a 
 preponderance of the eWdenee that the defendants employed plaintiff 
 at and about a machine of a dangerous character, and one likely to 
 produce injury, and that he was injured while working at and aboiat 
 said machine, and at the time of his injury he was of such immature 
 judgment as to be unable to comprehend the dangerous character of 
 the said machinery, you ought to find for the plaintiff.-^ 
 
 men might differ. ... In every made is not conclusive against the 
 case this duty is performed by the necessity of making- them. It is 
 exercise of reasonable care in simply a fact to be considered.' 
 deriding in the first place whether Under the circumstances disclosed 
 rules are necessary; and in the sec- by the evidence, the instruction 
 end place, in making such rules under consideration correctly 
 as appear to be sufficient. Blithe stated the law, and properly sub- 
 question in either case may \w for mitted to the jury the question 
 the .iury to determine whether in as to whether the defendant in 
 the first place the company took respf>ct to the matter of making, 
 reasonable care to conclude wheth- promulgating and enforcing neces- 
 er rules were necessary, or in the sary rules, was negligent." 
 second place, if they were, whether 22— Gulf, C. & S. F. Ry. Co. v. 
 the rules thus made were proper Newman, 27 Tex. Civ. App. 77, 64 
 for the purpose for which they S. W. 790. 
 
 were intended. When the question 2.3 — Taylor v. Wootan. 1 Tnd. 
 
 is whether the case was one in App. 188, 27 N. E. 502 (504). 50 
 
 which rules ought to have been Am. St. Rep. 200. "it is argued 
 
 made, the fact that other people that these in.structions wholly ig- 
 
 or corporations engaged in the nore the question of contributory 
 
 same business had or had not negligence, and are therefore er- 
 
 foimd it necessary to make rules roneous. it is not necessary that 
 
 Mvriu that subject is one that each instruction should contain 
 
 might well be considered. But the the whole law of the case, or any 
 
 fact that no such rules had been branch of the case, with the rec-
 
 928 
 
 FORMS OF INSTRUCTIONS. 
 
 [§ 1384. 
 
 § 1384. Instruction of Minor by Master, (a) When the master 
 employs a minor to perform work which is dangerous or hazardous 
 to the person of such minor, it is the duty of the master or employer 
 to explain to such minor the proper manner of performing such work, 
 and also to explain to such minor the dangers and hazarels to his 
 person incident to the performance of such work, and how to avoid 
 
 ognized exceptions. They should 
 all be considered together, and 
 construed with reference to each 
 other. If an instruction contains 
 a complete statement of a prop- 
 osition of law, applicable to the 
 facts in a given case, it will be 
 held good as part of a series con- 
 taining the entire law of the case. 
 The subject of contributory negli- 
 gence was fully and clearly ex- 
 pounded in other instructions, so 
 this objection is not tenable. It 
 is insisted, further, that these in- 
 structions are vicious, in that they 
 declare it to be an actionable 
 wrong to employ an infant in a 
 dangerous position, under any cir- 
 cumstances. They do not bear 
 any such an interpretation, and 
 read in the light of the evidence, 
 and in harmony with the other 
 instructions, they correctly state 
 the law. It should be kept in 
 mind that the complaint proceeds 
 upon two separate and distinct 
 theories. In the first paragraph, 
 the liability of appellants is pre- 
 dicated upon their alleged negli- 
 gence in the employment of the 
 appellee in a hazardous undertak- 
 ing, without giving him sufficient 
 instructions to enable him to guard 
 against the dangers; while in the 
 second paragraph it is alleged that 
 the appellee lacked the capacity 
 to understand and appreciate the 
 dangers incident to the service, 
 and was therefore unfit for that 
 kind of work, and the appellants 
 were culpable for engaging him 
 in such work, knowing his inca- 
 pacity. The instructions complained 
 of are pertinent to the latter 
 theory. The law recognizes the 
 right of a master to employ an 
 Infnnt in hazardous occupation on 
 condition that he shall furnish 
 such infant with such information 
 rflative to the perils of his situa- 
 tion as will enable him to com- 
 prfhond the dangers and under- 
 stand how to avoid them. But it 
 Is an actionnble wrong for a mas- 
 tpr to expose In a hnzardous em- 
 nloyment onp whom he knows to 
 be lacking in capacity to under- 
 
 stand and appreciate the dangers 
 surrounding him, however much 
 he may have been instructed. A 
 contrary rule of law would be 
 egregiously inhuman. In the case 
 of .Pitts. C. & St. L. R. Co. V. 
 Adams, 105 Ind. 151, 5 N. E. 187, 
 the supreme court said upon this 
 question: 'A neglect of such du- 
 ties may, in a case, the servant 
 being without contributory negli- 
 gence, render the master liable, re- 
 gardless of the fact that he may 
 have exercised reasonable care in 
 making and keeping the premises, 
 machinery and appliances in a 
 safe condition. The person em- 
 ployed may be so young, inex- 
 perienced and immature in judg- 
 ment that no kind of warning and 
 instruction would relieve the mas- 
 ter from responsibility for injur- 
 ies resulting from putting him at 
 a hazardous and dangerous work.' 
 The rule is stated thus in Shear. 
 & R. Neg (4th Ed.> para. 219: 'And 
 if he (the master) knows, or in 
 the exercise of ordinary care and 
 sagacity would have known, that 
 the servant has not capacity 
 enough to understand the warning 
 and appreciate the danger, he will 
 be liable for an injury which such 
 servant may suffer in consequence, 
 if continued at such work.' See 
 also Coombs v. Cordage Co., 102 
 Mass. 572; Hamilton v. R. R. Co., 54 
 Tex. 556; Hayden- v. Manufactur- 
 ing Co., 29 Conn. 548. It would be 
 extr^ely difficult to formulate an 
 arbitrary rule for the measure- 
 ment of capacity in such cases; 
 but it may be safely declared that, 
 to justify a master in the employ- 
 ment of an ignorant and inex- 
 perienced infant in a hazardous 
 calling, such infant should possess 
 at least sufficient capacity to un- 
 derstand the dangers of the situa- 
 tion, and to appreciate the im- 
 portance of heeding prudent warn- 
 ings for his own safety. The 
 question of the appellee's capacity 
 in this case was properly sub- 
 mitted to the jury, and the in- 
 structions attacked by the ap- 
 n;ellants were not erroneous."
 
 § 1384.] NEGLIGENCE— MASTER AND SERVANT. 929 
 
 such dangers unless the dangers and risks incident to such work are 
 patent and obvious to persons of like age and intelligence of such 
 minor.-* 
 
 (b) The jury are further instructed that it is the duty of the 
 master who sets a servant to work in a place of danger, or with 
 dangerous machinery or appliances, to give him such notice and in- 
 structions as is reasonably required by the youth, inexperience or 
 want of capacity of the servant ; and, failing to do so, the master is 
 liable for the damage suffered through such failure.-^ 
 
 (c) It was the duty of the defendant, if he directed the plaintiff's 
 intestate to manage the engine and turn on the steam, or allowed 
 him to do so, in the course of his duties and if the defendant knew 
 that he was young and inexperienced to instruct him as to its danger, 
 and to use due care in directing his attention to the danger, if any, 
 connected with the engine and valve. It would be negligence in the 
 defendant, if he emploj-ed a boy 15 years old, without experi- 
 ence, and put him to running an engine without giving him care- 
 ful instructions how to use it; and if that was the proximate cause 
 of the injui'y, you should answer the first issue *'Yes." 
 
 (d) It was the duty of the defendant to exercise due care in the 
 emploj-ment of the boy to do such work as that of managing danger- 
 ous machineiy; that is, was the hiring of a 15 3-ear old boy to run a 
 mill and manage machinery, without warning him of danger, if any, 
 a thing that a prudent business man, under the same circumstances, 
 would do ? Was it due care to put the boy in charge of the engine 
 without warning? Would a reasonable and prudent man do it, and 
 if not was that the proximate cause? That's the question.-® 
 
 (e) If you find from the evidence that he was a minor at the time, 
 but over fourteen years of age, and that when he applied for the 
 position he stated that he knew the duties of a car coupler, and could 
 discharge them, the defendant had the right to accept the statement 
 as true, and act on it; and it would not be under any obligations to 
 instruct the plaintiff as to the dangers attending the work, or as to 
 how to avoid them, unless you should believe from the evidence that 
 
 24 — Wood V. Texas Cotton P. Co.. in.struction g-iven for plaintiff, is 
 — Tex. Civ. App. — , 88 S. W. 496 erroneous, because it assumes the 
 (497). "It is contended that the dangerous character of the em- 
 duty tiQ warn an inexperienced ployment and the inexperience of 
 minor is not limited, as a matter plaintiff. There is no conflict in 
 of law, to only dangers which are the evidence about either of these 
 not patent; that though the dan- propositions. They are undis- 
 ger may be obvious and patent, puted." 
 
 yet the master should warn and 26 — Marcus v. C. D. Loane & 
 
 instruct how to avoid it. The rule Co., 133 N. C. 54. 45 S. E. 354 (355). 
 
 of law applicable to the question, "The rule laid down by his honor 
 
 we think, is clearly expressed by for measuring the defendant's 
 
 our Pupreme Court in the case of duty, assuming that the jury 
 
 the Tex. & Pac. Rv. Co. v. Brick, should find that the deceased was 
 
 83 Tex. 598. 20 S. "W. 511." employed to mnnas-e the machin- 
 
 25— Giebell v. Collins Co., 54 W. erv or to run the engine was 
 
 Va. 518. 46 S. E. 569 (573). "It is clearly correct." 
 urg-ed bv defendants that above 
 59
 
 930 FORMS OP INSTRUCTIONS. [§1384. 
 
 the circumstances were such as to require a prudent person, in the 
 exercise of ordinary diligence, to give such instructions.-^ 
 
 (f ) You are charged that it is the duty of the plaintiff to use or- 
 dinary care in the performance of his duty, and of the employer to 
 take proper precautions for the safety of the employes when working 
 about machinery, especially when such person, through youth, in- 
 experience or want of capacity, may be unable to appreciate or avoid 
 the danger to which he is exposed. Therefore, if you believe from the 
 evidence that the plaintiff was employed to work about machinery 
 which was dangerous, and that defendant knew or should have known 
 of the peril to which the plaintiff would be exposed, and did not give 
 the plaintiff reasonable notice of such danger, and he, without negli- 
 gence on his part, through inexperience failed to perceive or under- 
 stand the risk, and the plaintiff was injured, you will find for the 
 plaintiff; otheinvise find for the defendant. But the jury are charged 
 that the fact that plaintiff was a minor does not relieve him from 
 using ordinary care for his protection against risks incident to his 
 emplojTnent. You are charged that ordinary care is such care that 
 an ordinarily prudent person of the same age and capacity would ex- 
 ercise under the same or similar circumstances.-^ 
 
 (g) The court instructs the jurj' that if they find from the evi- 
 dence that the defendant put the plaintiff to work upon the machine, 
 and that the said machine was dangerous to operate, and that the 
 plaintiff had no previous knowledge of the mode of operating said 
 machine or of its dangerous character, and that the defendant did not 
 warn the plaintiff of the dangers incidental to operating said machine, 
 and because of said failure of the defendant to warn or inform the 
 plaintiff of the dangerous character of said machine, and without 
 fault on the part of the plaintiff, the plaintiff was hurt while operat- 
 ing said machine, then the verdict of the jury should be for the plain- 
 tiff. Provided the jury further find that the duty of operating the 
 machine was excluded by the contract of employment made with the 
 plaintiff's mother, if the jury shall find the same, and that the plain- 
 tiff was a.t the time a boy of about 14 years of age, and that his father 
 was dead. 29 
 
 (h) If you find that the place was dangerous, and that the de- 
 fendant knew, or had reason to know, the peril to which plaintiff 
 would be exposed, and did not give him sufficient or reasonable notice 
 of it, and if he, without any negligence on his part, from youth or 
 inexperience, failed to perceive or appreciate the danger, and was 
 
 27— Atlanta & W. P. R. Co. v. apppllee did not know how tn op- 
 
 Smlth. 94 Oa. 107. 20 S. E. 763. ernte the machine, or that tho ac- 
 
 28 — Rerinp Mfer. Co. v. ■p^r-melnt, <^ido-nt to him was caused by any 
 
 — Tf'x. — . 79 S. W. 869 fS7n. fnilure on the part of appellant 
 
 29— Nat'l R. & S. Co. v. ■R-ndv. to warn him of the dnn^erous 
 
 93 Md. 646, 49 Atl. 845 (Mfi). "The character of the machine. The 
 
 appellnnt excepted specially tn the lenrned .iudg'e below overruled this 
 
 KrnntinpT nf this praver for wnnt of exception, and his action in so 
 
 lepnlly sufficient evidence that the doing meets our approval."
 
 § 1385.] NEGLIGENCE— MASTER AND SERVANT. 931 
 
 injured in consequence, the defendant is responsible to him, in an 
 action, for such damages as you shall find he has sustained by reason 
 of the injury under the charge. 
 
 (i) A party entering upon a particular employment assumes the 
 risk and perils usual thereto, when the usual and customary means 
 to g-uard against accidents are adopted. If the servant with full 
 knowledge of the danger, and understanding the increased risk oc- 
 casioned thereby, consents to enter into the employment, then he 
 voluntarily incurs the risk; and, if he suffers damages in consequence 
 of injury received thereby, he will be without remedy. The fact that 
 he remains in the master's employment under such circumstances, 
 and with such knowledge, is what constitutes contributory negligence 
 on his part. In such a case, the master, in permitting his machinery 
 to be thus more than ordinarily dangerous is guilty of negligence; 
 but the servant, with full knowledge thereof, by remaining, con- 
 tributes thereto, and hence he cannot recover if he has such knowl- 
 edge.^** 
 
 § 1385. Right to Rely on Representations of Minor as to Experi- 
 ence, (a) The court instructs the jury that the fact that the de- 
 ceased was in the employ of the defendant company as coal loader 
 did not prevent the defendant employing the deceased to work as a 
 helper on the mine machine; and if the jury believe from the evi- 
 dence that said B. H. approached the deceased while he Avas engaged 
 at his work as coal loader, and inquired of him whether or not he had 
 worked upon a mine machine as helper, and the deceased informed 
 said H. that he had so worked, and upon that information the said 
 H. believed it to be trae, and requested the deceased to assist him as 
 a helper in running the machine in room ISTo. 4 to cut it out, and the 
 deceased consented thereto without making any soi't of objection, 
 then, although the deceased may have been but 17 years of age, if the 
 juiy believe from the evidence that he was possessed of ordinary in- 
 telligence, the said H. had the right to rely upon the representations 
 of the deceased to him as to his experience and if, under such cir- 
 cumstances, he entered upon the work of assisting to run said mine 
 machine as a helper, the deceased was required to exercise ordinary 
 care to avoid danger and injury to himself while so at work, and the 
 said H. would not be required to instruct him as to his duties unless 
 it appeared from the manner in which he undertook to perfoi-m and 
 did perform the same that he was incapable of doing it for want of 
 knowledge and information as to what the duties of a helper upon a 
 mine machine were. 
 
 (b) The court instructs the jury that if they believe from the 
 evidence that the deceased represented to the said H. that he had 
 worked upon a mine machine as a helper, and he consented to work 
 °s such helper in running the machine to cut-out room No. 4, and pro- 
 
 30 — "These instructions were without error." King v. Ford R. 
 Lbr. Co., 93 Mich. 172, 53 N. W. 10 (12).
 
 932 FORMS OF INSTRUCTIONS. [§ 1386. 
 
 ceeded to do such work, and if the said H. believed it to be true, 
 and did not discover before his injury any want of capacity in the 
 said B., and the jury believe from the evidence that the said B. was 
 a person of ordinary sense, the defendant cannot be held for the 
 negligence on the part of said B. under such circumstances.^^ 
 
 § 1386. Employing Child without School Certificate in Illinois, 
 (a) The court instrixets you that, if you believe from the evidence 
 before you iu this case that the defendants were a fii'm and were 
 carrj'ing on a factory or manufacturing establishment, as alleged in 
 the plaintiff's declaration; that they employed the plaintiff to work 
 in their said factoiy or manufacturing establishment by the day, or 
 for a longer period of time than one day, without having been first 
 furnished with a certificate fi^om the board of education or school 
 directors of the school district in which the plaintiff then resided 
 authonzing such employment : that the defendants after such em- 
 ployment put and placed the plaintiff to work at the sawing machine 
 mentioned in the plaintiff's declaration; that the plaintiff at the 
 time of such employment was under the age of thirteen years; that 
 the plaintiff was injured as alleged in the plaintiff's declaration 
 while he was working under such employment at and with the said 
 sawing machine, and in such factory or manufacturing establishment, 
 and while he was under the age of thirteen years, and by reason of 
 being so employed in such factory or manufacturing establishment; 
 and that the plaintiff was at the time he was injured and immediately 
 before, exercising all due and ordinary care (that is such reasonable 
 care as a child of his age might reasonably be expected to exercise), 
 for his own safety, then you will find the defendants guilty and as- 
 sess the plaintiff's damages at such sum as you find from the evidence 
 will be a just and reasonable compensation for his injuries. 
 
 (b) The court instructs you that, if any person, firm or corpora- 
 tion employs a child under the age of thirteen years by the day, or 
 for any greater period of time than one day, in any factory or manu- 
 facturing establishment, without a certificate issued by the board 
 of education or the school dii'ectors of the school district where such 
 child resides authorizing such employment, then such employment is 
 an act of negligence on the part of such firm, person or corporation 
 so employing such child, and if such child is hurt or injured in such 
 factory or manufacturing establishment while it is so emploj'ed, or by 
 reason of being so employed, and while such child is using due and 
 ordinary care (that is, such reasonable care as a child of that age 
 might reasonably be expected to exercise), for its own safety, then 
 the person, fimn or corporation so employing such child is legally 
 liable for such injury.^^ 
 
 31 — McVpy V. Rt. Clnir Co., 49 appellants that these instructions 
 
 W. Vn. 412, ?.f^ R. K. e,iH <C,r,2). take from tho jury thp miestion of 
 
 ?,2 — Morris v. Stanfiolfl, SI HI. nr>p:lig-ence on the pnrt of nppel- 
 
 App. 264 (268). "It is insisted by lants, if they find, from the evi-
 
 §1387.] NEGLIGENCE— MASTER AND SERVANT. 933 
 
 § 1387. Negligence of Master Not Presumed — Burden of Proof on 
 Plaintiff. Negligence on the part of the defendant is not presumed. 
 It is an affirmative fact, which plaintiff must prove by a preponder- 
 ance of the evidence, and the negligent act or acts, proved, if any, 
 must be such particular acts as are alleged in the plaintiff's com- 
 plaint. The burden of proof is on the plaintiff, and if you find that 
 the evidence bearing on the question of negligence on the part of the 
 defendant is evenly balanced, or that it preponderates in favor of the 
 defendant, then, in that case the plaintiff cannot recover, and your 
 verdict must be for the defendant — no cause of action. ^^ 
 
 S 1388. Effect of Admission of Plaintiff that Explosion Was His 
 Fault. The court instructs the jury that, even if they believe fi"om 
 the evidence that defendant S., after the explosion, and injury of the 
 plaintiff, stated or admitted that he was to blame in the matter, or 
 that it was his fault, yet that does not entitle the plaintiff to re- 
 cover unless the evidence in the case before the jury, including such 
 statements of said S., if the juiy believe it was made, under the in- 
 struction given by the court, shows that the said S. was negligent, 
 and that his negligence was the direct and proximate cause of the 
 plaintiff's injuries.^* 
 
 § 1389. Foreman Assumes Risk of Carelessness of Employes Sub- 
 ject to His Control, (a) The testimony is undisputed that the 
 plaintiff had charge of the wareroom in which said accident occurred, 
 and of the unloading and depositing the merchandise brought into 
 said building, as well as the direction and control of the employes 
 whose duty it was to truck said goods, including- all glass therein. If, 
 therefore, you find from the evidence that the said injury was caused 
 by the passageway being obstructed by the employes trucking goods 
 therein, your verdict will be for the defendant, unless you find that 
 
 dence, that appellee was under formance of such statutory duty 
 
 thli'teen years of age. Section 77, resulting in injury to another may 
 
 chapter 38, of the Criminal Code therefore be presumed to be neg- 
 
 declares, 'that it shall be unlaw- ligence as a conclusion of law.' 
 
 ful for any person, firm or corpora- To the same effect is L. S. & M. 
 
 tion to employ or hire any child S. Ry. Co. v. Parker, 131 111. 566, 
 
 under thirteen years of nge ex- 23 N. E. 237. If the non-perform- 
 
 cept as hereinafter provided.' . . . ance of a statutory duty resulting 
 
 If by reason of this prohibition in personal injury to another is 
 
 the employment of a child under negligence in law, the doing of 
 
 thirteen years of age without a something prohibited by statute 
 
 certificate, is negligence in law, resulting in personal injury to an- 
 
 and the injury occurs in conse- other must also be negligence in 
 
 quence of such employment, there law. There is then no error in 
 
 is no error in these instructions, stating in the instructions that 
 
 It was held in the case of T. H. the employment of a child under 
 
 & I. R. Co. V. Voelker, 129 111. the age of thirteen without a cer- 
 
 555. 22 N. E. 20. that 'A statute tificate from a school board is 
 
 commanding an act to be done negligence. " 
 
 creates an absolute duty to per- 33 — Downey v. Gemini 'Mining 
 
 form such act, and the dutv of Co.. 24 Utah 431, 6S Pac. 414 (417), 
 
 such performance does not depend 91 Am. St. Rep. 79!^. 
 upon and is not controlled hy sur- 34 — Schwartz v. Shull, 45 W. Va. 
 
 rounding circumstances. Non-per- 405, 31 S. E. 914 ('916).
 
 934 FORMS OF INSTRUCTIONS. [§ 1390. 
 
 the defendant personally directed the obstruction of said passageway. 
 And the court further instructs you that an order given by the de- 
 fendant to pile said goods in the north end of the store was not an 
 order to obstruct a permanent passageway therein. 
 
 (b) You are further instructed that the foreman and plaintiff in 
 this case not only assumed all ordinary risks of the work he was 
 personally doing, but he also assumed all the risk occasioned by the 
 carelessness of the employes subject to his control, and over whom he 
 was superintendent, while in the performance of their work, and it is 
 therefore the duty of the plaintiff to see that those under his control 
 and direction properly performed their work, and if, owing to the 
 carelessness of said employes under said plaintiff's control in per- 
 forming their work, said plaintiff was injured, then the plaintiff can- 
 not recover, and your verdict must be for the defendant.^^ 
 
 REASONABLY SAFE PLACE TO WORK. 
 
 § 1390. Master Must Furnish Reasonably Safe Place and Sur- 
 roundings, (a) The jury are instructed that it was the duty of the 
 defendant in this case to use ordinary care and prudence in furnish- 
 ing to the plaintiff at and before the time of the accident complained 
 of, a reasonably safe place and reasonably safe surroundings in which 
 to work, and to use reasonable care to maintain and keep such place 
 in a reasonably safe condition.^** 
 
 (b) It is the duty of a master or employer to furnish his servant 
 or employe with a safe place to work, and to make provisions for the 
 safety of his employes or servants as will protect them against the 
 dangers incident to their employment. 
 
 (c) You are instructed that S. and H. were not obliged to furnish 
 the said P. with an absolutely safe place to work in or to make sup- 
 ports of the tunnel absolutely safe, but they were only required to 
 use ordinary care to protect their employes against accident, etc.^' 
 
 (d) It is the duty of the employer to furnish a suitable and safe 
 place for his employes to work.^^ 
 
 (e) The court instructs the juiy that it was the duty of the de- 
 
 35 — Kennard v. Grossman, — misled to accept the first instruc- 
 
 Neb. — , 89 N. W. 1025 (1026). tion above g-iven as meaning that 
 
 36 — Hansell-Elcock F. Co. v. defendants were required to fur- 
 Clark, 115 111. App. 209 (212), aff'd nish an absolutely safe place in 
 214 111. 399, 73 N. E. 787. "We which deceased was to work." 
 think this instruction states the 38 — Grijalva v. S. P. Co., 1.37 Cal. 
 correct rule as to appellant's duty 569, 70 Pac. 622 (624). "It stated 
 to appellee as to furnishinpr him the law as laid down by this court 
 a reasonably safe place and rea- in Mullin v. Horseshoe Co., 105 
 sonably .safe surroundings in Cal. 83, 38 Pac. 535. And there was 
 which to work, and in maintaining no issue made by pleadings as to 
 the same In a reasonably safe con- the character of the place, as the 
 ditlon." answer admits that it was a dan- 
 
 37 — Pawley v. f?wenRen. 146 Cal. g-erous place, and that the work 
 
 471. 80 Pac. 722 (725). "We do not was dangerous." 
 
 think the jury could have been The above instruction standing
 
 § 1391.] NEGLIGENCE— MASTER AND SERVANT. 935 
 
 fendant, except in so far as it may have been excused therefrom by 
 the duty of the plaintiff, under the evidence, to use ordinary care and 
 skill in the management of that kind of business for the protection of 
 the plaintiff; and if they believe from the evidence that the defendant 
 failed to do what, under the evidence, the jury may believe was in- 
 cumbent on its part to do, in order to keep the room in which plaintiff 
 worked in a reasonably safe condition in that nature of business, and 
 that the injury to the plaintiff' was directly caused by such failure, 
 then they should find for the plaintiff.^^ 
 
 (f ) It was the duty of the defendant to keep the premises about 
 which the plaintiff was employed in a reasonably safe condition — that 
 is to say, in such a condition as the premises would have been kept by 
 a person of ordinary prudence under the same circumstances, con- 
 sidering the nature of the work to be performed. 
 
 (g) The defendant was under no obligation to keep the plaintiff 
 absolutely safe and free from danger, nor to insure the plaintiff 
 against accident. His duty, to express it tersely, was to use ordinary 
 care to secure the plaintiff's safety. Ordinary care, you are instruct- 
 ed, is the care that is ordinarily exercised by persons of average 
 prudence under the same or similar circumstances. Just what that 
 degree of care is, or would be is for the jury to determine. Having 
 determined what, under the circumstances, would have been ordinary 
 care it is for you to say whether such care was exercised by the de- 
 fendant about the premises in question. 
 
 (h) You are instructed that it was the duty of the defendant com- 
 pany to keep the premises about which the plaintiff was employed in 
 a reasonably safe condition; that is to say, in such a condition as the 
 premises would have been kept by a person of ordinary prudence un- 
 der the same circumstances, considering the nature of the work to be 
 accomplished.*'' 
 
 (i) The court instructs you that if the defendant furnished a 
 place which was as safe and free from danger as other persons of or- 
 dinary care, prudence and caution, and engaged in like business, and 
 in like circumstances, ordinarily furnish, then you must find that the 
 defendant furnished to the plaintiff a reasonably and ordinarily safe 
 place to work.*^ 
 
 § 1391. Insufiacient Fastening or Nailing of Scaffold, (a) If you 
 believe from the evidence that S. B., the foreman of defendant X., or- 
 dered the carpenter S. to nail one of the planks of the scaffold, from 
 
 alone and outside the issue of the 24 Utah 431, 68 Pac. 414 (415), 91 
 
 above case as made by the plead- Am. St. 798. 
 
 ings would ordinarily be erroneous. 41— Guinard v. Knapp, Stout & 
 
 It does not state the correct rule Co.. 95 Wis. 482. 70 N. W. 671. 
 
 of law, unless qualified in some "This proposed instruction unde- 
 
 such manner as the instruction niably states the law of negligence 
 
 just preceding it. This instruc- as applicable to the duty of the 
 
 tion, therefore, is not commended master to furnish a safe place to 
 
 for general use. — [Editor.] work, and tn the facts of the case, 
 
 39 — Russell C. Cnal Co. v. Wells, with substantial accuracy. It 
 
 96 Va. 416. 31 S. E. 614 (615"). should have been given as asked." 
 
 40 — Downev v. Gemini Min. Co..
 
 936 FORMS OF INSTRUCTIONS. [§,1392. 
 
 which plaintiff fell, to the trestle inside with eightpenny nails, and 
 that said S. did so under and by direction of said B., and if you 
 further believe from the evidence that said B. was guilty of negli- 
 gence in having said plank so fastened and if you further believe 
 from the evidence that while plaintiff was working on said scaffold 
 the said fastening of said plank came loose, and thereby caused 
 plaintiff to fall from said scaffold and to be injured; and if you 
 believe from the evidence that the negligence, if any, of said B. 
 was the proximate cause of said injury — then you will find for 
 the plaintiff, unless you find for the defendant under the chai'ges here- 
 inafter given you. 
 
 (b) If you do not believe from the evidence that said plank was 
 so fastened by the order of said foreman B., and that he was guilty 
 of negligence in having it so fastened, and that such negligence, if 
 any, was the proximate cause of plaintiff's injury, if any, you will 
 find for the defendant. 
 
 (c) Or, if you believe from the evidence that the plaintiff himself 
 was guilty of negligence in the construction of said scaffold, and that 
 such negligence, if any. proximately contributed to his injuries, if 
 any, you will find for defendant ; or if you believe from the evidence 
 that either or any of the fellow servants with the plaintiff were guilty 
 of negligence in the construction of said scaffold, and that such neg- 
 ligence, if any, proximately contributed to Ms injuries, if any, you 
 will find for defendant ; or if you believe fi'om the evidence that when 
 the plaintiff went upon said scaffold he knew it was unsafe for him to 
 walk or stand thei'eon to do work, you will find for defendant. ■*- 
 
 § 1392. Servant May Assume Master Has Furnished Safe Scaffold. 
 It was not incumbent upon the servant to inspect the implement 
 which the master provided him upon and with which to perform his 
 work, but he had a right to rest upon the assurance that the master 
 would perfoim the obligations and duties which the law east upon 
 him to exercise reasonable care to provide him a reasonably safe scaf- 
 fold upon which to Avork.'*'' 
 
 § 1393. Injury from Falling of Brick through Insufficient Plat- 
 form of Scaffolding. If the jury believe from the evidence in this 
 case, that the platform of the scaffolding in question did not have a 
 sufficient covering or other proper provision to render its use reason- 
 
 42— Boettler v. Tumlinson. — App. — , 44 S. W. 894; Smith v. Rich- 
 
 Tex. Civ. App. — , 77 S. W. 824 ardson Lumber Co., 92 Tex. 450, 
 
 (825). "If the charge given by the 49 S. W. 574; Scott v. T. & P. Ry. 
 
 court Is in itself unobjectionable. Co., 93 Tex. 625, 57 S. W. 801; Hum- 
 
 a party cannot complain of the phreys v. Edwarrls, 89 Tex. 517, 36 
 
 failure of the court to give an in- S. W. 333 (434); Cotton State Bldg. 
 
 .struction which he ha.s neglected Co. v. Jones, 94 Tex. 497, 62 S. W. 
 
 to ask. This we believe to be the 741; Reazley v. Denson, 40 Tex. 
 
 rationale of the decisions upon 433; Wenar v. Stenzel. 48 Tex. 489; 
 
 charges exc'luding issues raised by Stude v. Sinnders, 2 Pnsev. TTn- 
 
 the pleadings nnd evidence. Chnm- ren. Cns. 1?4." 
 
 blee V. Tarbox. 27 Tex. "HO. 84 Am. 43 — Momence R r-o ir Turroll, 
 
 Dpc. 614; Johnston v. Johnston. — 106 Tl'. Ann. 160. aff'd 205 Til. 515, 
 
 Tpx. Civ. App. — , 67 S. W. 124; 68 N. E. 1078. 
 Eppstein v. Thomas. — Tex. Civ.
 
 § 1394.] NEGLIGENCE— MASTER AND SERVANT. 937 
 
 ably safe to employes having business on the premises below and un- 
 derneath said platform, and that the existence, location and use of the 
 platfoi-m was not known to the plaintiff, A. B., and that the plaintiif 
 was in the exercise of reasonable care at the time, and that for want 
 of such covering, guard, i-ailing or protection, the brick in question 
 fell down from said platfoi-m, and struck and injured the plaintiff, 
 then the defendants in this case are liable.** 
 
 § 1394. Injury through Defective Sewer Cover. The court in- 
 structs the jury if you lind, from the evidence, that the defendant did 
 not have actual notice of a defect in the sewer cover described in 
 the declaration, yet if you find, from the evidence, that the cover of 
 said sewer hole was in a defective condition and remained so for 
 such a length of time prior to the accident to the plaintiff that the 
 defendant might have discovered such defect by the exercise of 
 reasonable diligence, then you will be justified in finding that the de- 
 fendant had notice of such defect, and that it was the duty of the de- 
 fendant to have repaired said defect.*^ 
 
 § 1395. Pailure to Keep Boards on Sill of Window Securely 
 Fastened. The court instructs you that it is the duty of the de- 
 fendants to use reasonable care and diligence to keep the boards up- 
 on the sill of the building securely fastened, and, if the board which 
 injured the plaintiff fell from the sill of the building on which said 
 plaintiff was working, and was not securely fastened on said sill, and 
 fell because of such insecure fastening, and the defendant knew, or 
 by the exercise of reasonable care might have known, of such in- 
 secure fastening in time to have remedied the same, then the defend- 
 ant was guilty of negligence, and is liable if the plaintiff was in the 
 exercise of due care."' 
 
 44 — Angus v. Lee. 40 111. App. as to the construction of the plat- 
 
 304 (306). "It appears by this rec- form, before they beg-an to work 
 
 ord that the practical men en- upon it. The law implies such a 
 
 gaged in the construction of this duty where the platform is over a 
 
 building did not so understand the thoroughfare. Jager v. Adams, 
 
 obligations of the respective con- 123 Mass. 26, 25 Am. Rep. 7." 
 
 tractors; for those for whom the 45 — Wrisley v. Burke. 106 111. 
 
 appellee worked engaged, in their App. 30 (31), aff'd 203 111. 250, 67 
 
 contract, to floor the joists of the N. E. 8S8. 
 
 story next over where their men 46 — Whitney & Starrette Co. v. 
 
 might be at work, as a protection O'Rourke. 172 111. 177 (183). 50 N. 
 
 to them; this was not done; but E. 242, aff'g 68 111. App. 487. "This 
 
 there was a conflict of evidence as instruction expressly requires the 
 
 to whether the appellants w^ere to, jury to find that the defendant 
 
 and did. in this instance, notify knew of or by the exercise of 
 
 the foreman under whom the ap- reasonable care might have known 
 
 pellee worked, of where the appel- of the defect in question. The 
 
 lants were going to work, so that use of the words 'due care' instead 
 
 men might be kept from under of the customary words 'ordinary 
 
 them. Why the particular brick care' is overcome by the fact that 
 
 thnt hurt the apnellee fell can the jury we^-e gi\-eTi other ins^^ruc- 
 
 onlv be f^onie'^tu'-ed: there is no tions both by pliin + iff and defend- 
 
 .^virioiT^e urvnn the subject; and ant th-^t the r>ipi'->tiff must be in 
 
 therefore t>^e instrii'^tion puts the the exercise of ordinary care. . . . 
 
 right to recover wholly upon the We do not think that the words 
 
 supposed duty of the appellants 'securely fastened' necessarily in-
 
 938 FORMS OF INSTRUCTIONS. [§ 1396. 
 
 § 1396. Elevator — Duty to Keep in Repair. The plaintiff prays 
 the court to instruct the jury that it was the duty of the defendant, 
 
 , to use ordinary care and diligence in keeping the elevator 
 
 used by it in repair; and if they shall find from the evidence that the 
 
 accident resulting in injuries to the plaintiff, , occurred by 
 
 reason of a defect in said elevator, which defect could have been dis- 
 covered and remedied by the defendant previous to the accident by 
 the use of ordinary care and diligence in inspecting said elevator, or 
 if they shall find that the said accident happened by reason of an 
 improper method of construction of said elevator, and shall further 
 find that the plaintiff was in the usual, ordinary, and proper discharge 
 of his duties as the conductor of said elevator when hurt, then their 
 verdict must be for the plaintiff.*'^ 
 
 § 1397. Elevator — Failure of Master to Guard Opening, (a) The 
 court instructs the jury that under the pleadings and evidence in this 
 case it was the duty of the defendant to have had the elevator open- 
 ing in the shipping room, mentioned in the evidence, provided with 
 inclosing railing or gate to effectually bar said opening, for the pre- 
 vention of accidents therefrom, and to keep such opening closed by 
 such railing or gate when such opening was not being used, and that 
 a failure to do so, if the defendant did so fail, was negligence upon 
 the part of the defendant. And the court further instructs the jury 
 that if the defendant did provide such railing or gate, and, by its of- 
 ficers or agents authorized to direct and control said railing or gate 
 as to its being kept open or closed, caused the same to be kept open 
 when said elevator was not being used, then such providing of said 
 gate or railing was no compliance with the ordinance read in evi- 
 dence, and the defendant was guilty of negligence in that regard.'*^ 
 
 (b) If the jury find from the evidence that prior to and on the 
 , the defendant occupied the premises, known as "814 and 
 
 volve the idea of absolute safety, care, may perform his duty with- 
 The master is required to use rea- out exposure to dangers not aris- 
 sonable care and prudence in pro- ing- within the obvious scope of 
 vidinff the servant with safe and his employment, is not to be un- 
 .suitiible appliances and instrumen- derstood as implying an absolute 
 talities to be used by him in the liability for the safety of the work- 
 work, which he is employed to do. man's place. Northcoat v. Bach.- 
 He must also use all reasonable elder. 111 Mass. 322. It cannot be 
 care to furnish to his employe a said that the instruction required 
 reasonably safe place in which to too much of the appellant in stat- 
 work, and use proper diligence to ing in substance that it was its 
 keep such place in a reasonably duty to make a reasonable effort 
 safe condition. Consolidated Coal to make the board secure. The 
 Co. V. Haenni, 146 111. 614. 35 N. place where the appellee worked 
 E. 162; Libby, McN. & L. v. Scher- could not be reasonably safe un- 
 man. 146 111. 5.^)3; 34 N. E. 801. 37 less the boards w-ere securely fas- 
 Am. St. 101; Hess v. Rosenthal, tened." 
 
 160 Id fi^l. 43 N. K. 743; 111. S. Co. 47— Baltimore B. & S. Mfg. Co. 
 
 V. Rchvmnnowskl, 162 id. 447, 44 v. Jamar, 93 Md. 404, 49 Atl. 847 
 
 N. E. 876. The Implied contract of (849), 86 Am. St. 428. 
 
 an employer with his servant to 48 — Wendler v. People's House 
 
 furnish a suitable place in which Furnishing Co., 16!i Mo. 527, 6f5 S. 
 
 the servant, while exercising due W. 737 (740). "The validity of the
 
 § 1398.] NEGLIGENCE— MASTER AND SERVANT. 939 
 
 816 North Broadway," mentioned in the evidence, and used the ele- 
 vator mentioned in the evidence; and if the jury find from the evi- 
 dence that on said day the plaintiff was in the service of the de- 
 fendant as a cabinet repairer, and that it was in the line of his duty 
 to ride upon the elevator mentioned in the evidence in the discharge 
 of his duties; and if the jury further find from the evidence that said 
 elevator passed through a hatchway in the floor of the shipping room; 
 and if the jury find from the evidence that the shipping room near 
 said elevator opening on said day was dark and insufficiently lighted, 
 and that the sunlight was partly excluded by the piling up of furni- 
 ture therein; and if fhe jury find from the evidence that the defend-, 
 ant did not exercise ordinary care in maintaining said room near said 
 elevator opening in such condition ; and if the jury further find from 
 the evidence that defendant was maintaining said elevator opening 
 in said floor without keeping the guard or rail closed to prevent per- 
 sons from falling therein, and sustaining injury; and if the jury 
 further find from the evidence that defendant did not exercise ordi- 
 nary care in maintaining said elevator hole in said floor without keep- 
 ing the guard for protection closed and without having said room 
 properly lighted; and if the jury further find from the evidence that 
 on said day the plaintiff was at or near said elevator hole for the 
 purpose of using said elevator in the discharge of the duties of his 
 employment, and that while so near said elevator opening for said 
 purpose he fell therein and sustained the injuries on account of 
 which he sues; and if the jury further find from the evidence that 
 the plaintiff was caused to so fall into said opening bj'^ reason of its 
 being so open, unlighted and unguarded ; and if the juiy further find 
 from the evidence that the plaintiff knew that said room was in- 
 sufficiently lighted, and that there was no guai'd or protection kept 
 closed around said elevator opening, and that thereby he incurred some 
 risk in remaining in defendant's service and in discharging the duties 
 of his emplo>Tnent; yet if the jury find from the evidence that the 
 dangers arising to the plaintiff by reason of said unguarded elevator 
 opening and said want of light near said elevator were not so ob- 
 vious and imminent as to tlireaten immediate injury, and were not 
 such that an ordinarily prudent person under the circumstances 
 would not have remained in defendant's service and performed the 
 duties plaintiff was hired to perform; and if the jury further find 
 from the evidence that plaintiff was exei'cising ordinary care at the 
 time of his injurv, plaintiff is entitled to recover.*" 
 
 § 1398. Mines — Failure to Partition off Stairway from Main Air- 
 way Escapement Shaft, (a) The juiy are instructed tliat if plain- 
 
 orrlinnnrp in question, the ohli.era- Am. St. 601; Brannock v. 'Klmore. 
 
 tion of defendant to obey it. and 114 Mo. 59. 21 S. W. 451; Shear. & 
 
 its liabihty for failure to do so, R. Neg-. par. 13." 
 
 are propositions of law clearly es- 49— "Wendler v. People's H. F. 
 
 tahlished. Murray v. Mo. Par. Ry. Co., supra. 
 
 Co., 101 Mo. 236, 13 S. W. 817, 20
 
 940 FORMS OF INSTRUCTIONS. [§ 1399. 
 
 till did say he fell and was injured as a result, partly, of bis own 
 neglect, yet if the jury believe, from a preponderance of the evidence, 
 that the plaintiff's injury was occasioned by reason of the Avillful 
 failure of defendant to partition off the stairway from the main air- 
 way escapement shaft, and provide substantial hand-rails and plat- 
 forms for the same, and that such injury would not have occurred 
 but for such willful failure, then the verdict should be for the plain- 
 tiff. 
 
 (b) The jury are instructed that if they believe, from a pre- 
 ponderance of the evidence, that on the , 18 — , defendant 
 
 was the operator of siaid coal mine worked by shaft, which had been 
 in operation for more than a year for hoisting coal for sale and use, 
 and there were more than six men employed in such mine, and an 
 escapement shaft had been constructed in addition to the hoist shaft, 
 and that said mine was less than one hundred feet in depth, but de- 
 fendant willfully failed to provide such escapement shaft with stair- 
 Avays partitioned oft' from the main air-way, having substantial hand- 
 rails and platforms, and by reason of such willful failure the plain- 
 tiff, while in the employ of defendant in said mine, fell to the bot- 
 tom of said shaft and was injured, the verdict should be for the 
 plaintiff.-^" 
 
 § 1399. Mines — Statutory Inspection of. (a) The court instructs 
 you that in this case the plaintiff must prove all the material allega- 
 tions of his declaration, and this being a suit for an alleged violation 
 of a statute, the plaintiff must prove before he can recover, first, that 
 the defendant itself or through its proper representative Avillfully and 
 wrongfully violated the act in question, in the manner alleged in the 
 plaintiff's declaration; second, the plaintiff must prove by the greater 
 weight of evidence that this willful violation of this act as alleged in 
 the declaration (if you believe there was a violation) was the prin- 
 cipal and substantial cause of the injury. 
 
 (b) And you are instructed that if you should believe from the 
 evidence that an examination of the mine was not made the day the 
 deceased was injured, before he and other employes entered said mine, 
 
 50 — Carterville Conl Cn. v. Ab- depend in such case on the exer- 
 
 bott. 181 111. 495 (498). 55 N. E. 131, else of ordinary care by the per- 
 
 aff's- 81 111. App. 279. "If one is son injured, nor can he be pre- 
 
 injured as the result of some act eluded by mere contributory neg- 
 
 of neg-lig-ence on the part of the ligrence. This legislation fixes a 
 
 mine owner other than the failure broad and distinct exception to the 
 
 to comply with the specific du- general rule. The court referred 
 
 ties required by the statute, then to section 14 of an Act amending 
 
 the person injured must have been an Act providing for the health 
 
 in the exercise of ordinary care and safety of persons employed in 
 
 before he can maintain an action, coal mines, the amendment being 
 
 and must allege and prove that enforced July 1st. 1887, and stated 
 
 he was in the exercise of such that the principles herein argued 
 
 care. The rule is different, how- are sustained by T?artlett C & M. 
 
 ever, under this legislation where Co. v. Roach, 68 Til. 178; T.itchfield 
 
 there is a willful failure to comply C. Co. v. Taylor, 81 111. 590; Catlet 
 
 with the provisions of the statute, v. Young, 143 111. 74, 32 N. E. 447." 
 and the right of recovery cannot
 
 § 1400.] NEGLIGENCE— MASTER AND SERVANT. 941 
 
 but yet if you further believe from the evidence that an examination 
 of the mine was made by the defendant through its manager some 
 hours before the deceased was injured, and said mine was apparently 
 safe from danger of falling clods, rock, etc., and that you further 
 believe from the evidence that even though the mine had been in- 
 spected early in the morning before deceased went to work, this acci- 
 dent would have happened, then the court instructs you that, under 
 the evidence, the accident was not caused prineii^ally and substan- 
 tially by a failure to inspect the mine as required by law.^^ 
 
 § 1400. Mines — Failure of Mine Boss to Visit Room in Which 
 Miners Work, The court instructs the jury that if they believe from 
 the evidence that, under and by the rules of the defendant company, 
 it was the duty of the bank or mine boss of said company to make 
 daily visits to the room in which the miners were at work, for the 
 purpose of seeing whether or not said rooms were in safe condition 
 for the miners to continue their work, and if they further believe 
 from the evidence that the mine boss of the defendant failed or neg- 
 lected to visit the room in which the said plaintiff was at work, or 
 failed, if he made such visit, to discover the danger which threatened 
 the plaintiff if he continued his work in said room, if they believe 
 such danger was threatening and could have been discovered by the 
 use of ordinary diligence on the part of said boss, then said company 
 was guilty of negligence. ''- 
 
 § 1401. Maintaining Coal Chute Without Guard Gate or Guard 
 Board. If you do not find from the evidence that said coal chute 
 was without a guard- gate or guard board, or if you find it was 
 without a guard board or guard gate, yet if you do not believe 
 from the evidence that the defendant was guilty of negligence in 
 having said chute in said condition, and that such negligence, if any 
 was the proximate cause of plaintiff" 's injuries, if any, you will find 
 for defendant. ^^ 
 
 § 1402. Allowing Shavings to Accumulate in Passageway Near 
 Molder. (a) If you find the facts to be that the defendant i;nneees- 
 sarily and dangerously permitted shavings to accumulate in the pas- 
 sageway near the molder, and that the plaintiff, in obedience to the 
 superintendent's order's, was compelled to pass near them, and that 
 they caused him to fall and slip and cut himself, that would be 
 negligence, and j'ou should answer the first issue *'Yes. " 
 
 (b) If you find the facts to be that the rip saw and molding ma- 
 chine were dangerously close, and that in order to comply with the 
 superintendent's order the plaintiff was compelled to pass with a 
 load in his arms between them, and that the defendant company had 
 permitted the regular passageway for this lumber to become filled up 
 
 51— Mo. & 111. Coal Co. v. 5."?- Int. & G. N. R. Co. v. Har- 
 
 Schwalb, 74 111. App. 567 (574). ris. — Tex. Civ. App. — , 65 S. "W. 
 
 52— Russell C. C. Co. v. Wells, 885 (888). 
 96 Va. 416, 31 S. E. 614 (615).
 
 942 FORMS OF INSTRUCTIONS. [§ 1403. 
 
 with plank, and failed to provide another, that would be negligence 
 upon the part of the defendant; and, if the plaintiff was injured 
 thereby, — if that negligence caused his injury, — your answer to the 
 first issue should be ''Yes." 
 
 (c) So if the jury find that a counter shaft or loose pulley, or a 
 covering for a saw running naked, was a proper and reasonable safe- 
 guard for its employes, and the defendant failed to provide it, that is 
 negligence ; and, if the jury find that the plaintiff was injured by 
 reason of such negligence, they will answer the first issue ''Yes. "^* 
 
 § 1403. Injury by Being Jolted from Car on Logging Bead, (a) 
 The court charges the jury at the request of the defendant, that if 
 they believe from the evidence that at the time immediately pre- 
 ceding the alleged accident the logging track of the defendant was in 
 good condition, — that is, in as good condition as first-class logging 
 roads of the same nature and kind are kept, — then they must find 
 their verdict for the defendant under the first count of the com- 
 plaint. 
 
 (b) And the court further charges the jury that if they believe 
 from the evidence that at the time immediately preceding the al- 
 leged accident that the cars of the defendant were not in a defective 
 and imperfect condition, then they must find for the defendant under 
 the second count of the complaint. 
 
 (c) And the court further charges the jury that if they believe 
 from the evidence that at the time of the alleged accident the en- 
 gineer in charge of the locomotive which was drawing the siaid train 
 was not guilty of any negligence in so running the said train over 
 said track in its then condition, as alleged, as to negligently cause R. 
 M. to be jostled and jolted and thrown fi'om his position on the cars 
 and killed, they must find their verdict for the defendant on the third 
 count of the complaint. 
 
 (d) And the court further charges the jury that if they believe 
 from the evidence that the engineer in charge of said train did not 
 mn the cars in a negligent and careless manner, so as to jolt any of 
 said cars from said track, they must find for the defendant on the 
 fourth count of the complaint. 
 
 (e) And the court further charges the jui-y that if they believe 
 from the evidence that R. M. was so careless and negligent in his con- 
 duet and manner of riding upon the car from which he was thrown 
 that it caused him to fall from, or to be jostled from, the car up<m 
 which he was riding, and fell (fall) under the wheels of other cars 
 upon the train, and thereby met his death, then they must find for 
 the defendant upon each and every count of the complaint, although 
 they might further believe that the defendant was also gnilty of 
 simple negligence.'*''' 
 
 54— Myers v. Connorrt L<. Co., 129 decisions of this court, and there 
 
 N. C. 2.52, .39 S. E. 960 f961). "We see was evidence upon wliich they 
 
 no error In the charge. The in- were formulated." 
 
 structlons were based on repeated 55 — These instructions were ap-
 
 § 1404.] NEGLIGENCE— MASTER AND SERVANT. 
 
 943 
 
 § 1404. Injury to Conductor of Street Car Through Defective Rail. 
 
 The court instructs the jury that if they believe from the evidence 
 that plaintiff was employed as a conductor on one of the cars owned 
 and operated by the defendant, and that he was injured by reason of 
 the car leaving the track on account of a defective rail of the said 
 track, and not through or on account of any fault on his part, they 
 should find in favor of the plaintiff and against the defendant, pro- 
 vided they further find that the defendant company knew, or could 
 by the exercise of ordinary care have known, of the existence of the 
 defective rail on the said track for a sufficient length of time prior 
 to the accident for them to have made necessary repairs.^" 
 
 § 1405. Telephone Wires — Burden of Proof as to Negligence in 
 Adjusting. The court instructs the jury that the burden of proof is 
 on the plaintiff to prove, by a preponderance of the evidence, that 
 the witness B. was negligent when engaged in stretching the wires in 
 connection with the witness A., and that, in' consequence of B.'s 
 negligence or carelessness in adjusting the wires, they came into con- 
 tact with the wires of the power company. If you find that the evi- 
 dence bearing upon the point is evenly balanced, and does not pre- 
 ponderate in favor of the conclusion that B. was negligent in that 
 respect, your verdict should be in favor of the defendant — no cause 
 of action. It isn't necessary that negligence shall be established by 
 direct evidence. It may be proved by circumstances, if they are such 
 as to establish bj' fair and just inference to unbiased minds the exist- 
 ence of negligence. ^'^ 
 
 SAFE AND SUITABLE APPLIANCES. 
 
 § 1406. Master's Duty to Provide Safe Appliances and Keep Them 
 in Proper Repair, (a) I charge you that it was the duty of the 
 raihvaj' company in this case to furnish the plaintiff with safe and 
 suitable appliances with which to perfonu the work required of him, 
 and also see that the same were kept in proper repair, and if this 
 duty was negligently performed, and the plaintiff sustained any in- 
 jury thereby, the railway company is responsible in damages. I 
 charge you that, provided the negligence of the railway company 
 was the direct and proximate cause of the injury, and the plaintiff 
 did not contribute to the direct and proximate cause of the injury.^^ 
 
 proved in Davis v. Miller, 109 Ala. of the motorman and charges the 
 
 589, 19 So. 699 (702). plaintiff with the oonpequence of 
 
 56— Moore v. St. L. T. Co., 193 his own fault only, if any is found. 
 
 Mo. 411. 91 S. W. 1060 (1061). "This and in that the instruction is cor- 
 
 instruction is not subject to the rect." 
 
 interpretation that it assumes that 57— Black v. Rocky Mt. "Bell Tel. 
 
 the rail was defective. It leaves Co., 26 Utah 451, 7.3 Pac. 514 (516). 
 
 that fact to be found from the 58— Carson v. So. Rv. Co.. 68 S. 
 
 evidence, and makes its finding C. 55, 46 S. E. 525 (5.35). "We do 
 
 essential to the plaintiff's right to not see that the judge's charge 
 
 recover. It does leave out of view was improper. He charged the 
 
 supposed contributory negligence law of this state. He did not use
 
 944 FORMS OF INSTRUCTIONS. [§ 1407. 
 
 (b) The duty which the defendants owed to the plaintiff to fur- 
 nish him with safe machineiy and appliances was a pensonal one, and 
 such a duty as the law will not permit them to escape by trusting it 
 to an employe who negligently performs it. 
 
 (e) To render defendants liable to plaintiff in damages, it is not 
 necessary that they should have had actual knowledge of the unsafe- 
 ness of the said machine. The proof is sufficiently made out by 
 plaintiff when it is shown that said machine was defective and unsafe 
 in such respect that, if a proper insi^ection of it had been made by 
 defendant, such unsafeness and defectiveness would have been ascer- 
 tained in time to prevent the injury. If the unsafeness was conspicu- 
 ous, defendants Avill be presumed to have had knowledge of it.^^ 
 
 § 1407. Material Not an Appliance — Master in Furnishing Ma- 
 terial Stands on Same Footing as Third Person so Doing. The court 
 instructs the jury that the material furnished for use in the ma- 
 chineiy was not an appliance. *^° 
 
 § 1408. Machinery Used by Master, Although Not Owned by Him. 
 The duty of the master to furnish safe machinery is not affected by 
 the fact that he does not own the machineiy furnished. It is suf- 
 ficient if it is used by such employer. The duties which an em- 
 ployer owes to his servants, and which he is required to perform, are 
 to furnish suitable machinery and appliances, by which the service is 
 to be performed, and to keep them in repair and order; to exercise 
 ordinary care in the selection and retention of sufficient and compe- 
 tent servants to properly conduct the business in which the sei'vant is 
 employed ; and to make such provisions for the safety of employes as 
 will reasonably protect them against the dangers incident to their 
 
 languag-e which made the master which anything^ is made or may 
 a guarantor of the machinery and be made.' While it is unques- 
 appliances, especially as the cir- tionably the duty of the master to 
 cuit judge was careful to say, provide his serv^ants with safe and 
 'Provided the negligence of the suitable appliances, and to see 
 master was the direct and proxi- that they are kept in proper re- 
 mate cause of the injury,' etc. pair, it is no part of his duty to 
 This exception is overruled." furnish material upon which the 
 
 59 — Higgins v. Williams, 114 Cal. machinei-y may operate. He, how- 
 
 176, 45 Pac. 1041 (1043). ever, may furnish this material, 
 
 60 — Gallman v. Union Hardwood in which case he is only bound to 
 Mfg. Co., 65 S. C. 192, 43 S. E. observe the rule, 'sic utere tuo ut 
 524 (525). "This is the first time non alienum laedas,' or to exercise 
 the question under consideration reasonable care in so doing. The 
 ha.s been presented to this court appliances, in contemplation of 
 for adjudication. There is a wide law, are always provided by the 
 distinction between 'material' and master employing the servants to 
 'appliances.' The term 'appli- operate them. But the materials 
 ances* refers to the machinery and out of which articles are to be 
 all the instruments used in opera t- made by the machinery are fre- 
 ing it. Bodie v. Charleston & W. quently furnished by third parties. 
 C. Ry. Co., 61 S. C. 480, 39 S. E. as, for instance, a public sawmill 
 715. In 20 Knc. of T^aw (2d "Rd.) or cotton gin. When the master 
 232, It is said: 'Materials include furnishes the material, he stands 
 everything of which anything is upon the same footing as a third 
 made.' Webster's International partv so doing, and is only re- 
 Dictionary defines 'material' to be: sponsible when he fails to exer- 
 'Tho substance of matter out of else ordinary care."
 
 § 1409.] NEGLIGENCE— MASTER AND SERVANT. 945 
 
 employmeat. The performance of these duties cannot be shifted by 
 an employer to a servant, so as to avoid responsibility for the in- 
 jury caused to another servant by his omission.*^! 
 
 § 1409. Latent Defects — Master Not Liable for. (a) The court 
 charges the jury that if they find from the evidence that the accident 
 occuiTcd by reason of hidden defects in the iron guy rods or iron 
 plates, which defects were not known to defendant, and could not be 
 known to defendant by the exercise of reasonable diligence in time to 
 have avoided the injury, then the plaintiff cannot recover. 
 
 (b) The court cliarges the jury that if they believe from the evi- 
 dence that the defects were latent and discovered for the first time 
 after the accident, such defects would not make the defendant 
 liable in this action. ^^ 
 
 § 1410. Master Does Not Insure Absolute Safety of Appliances. 
 Under these claims and countei'-claims, as made by plaintiff, and de- 
 fendant, the court charges you that the law made it the duty of the 
 defendant, C. D., to exercise reasonable care and precaution to pro- 
 cure and furnish the plaintiff, R., a suitable and safe machine for 
 him to work upon, and it also required the defendant to exercise 
 reasonable care and caution to keep the machine in a proper state of 
 repair. It did not require the defendant to insure the absolute safe- 
 ty of the plaintiff R. in working with the machine, which the de- 
 fendant furnished him, but it did not impose upon the defendant the 
 obligation to use reasonable and ordinary care, skill and diligence 
 in keeping the machine in a safe and suitable condition for him to do 
 his work with. The law did not require R. to inspect the machine.^' 
 
 § 1411. Duty of Employer to Use Reasonable Diligence for Safety 
 of Employe Includes Inspection and Tests at Proper Intervals of Ap- 
 pliances, (a) The duty imposed on the defendant company by the 
 contract of hiring was to not subject the deceased, without his knowl- 
 edge and consent, expressed or implied, to risks not assumed by him, 
 under the contract of hiring. An emj^loyer contracts with his employe 
 
 61 — Hig-gins v. Williams, 114 Cal. on the same subject and is prob- 
 
 176, 45 Pac. 1041 ('1043). ably more favorable to the defend- 
 
 62— So. Car & Fdry. Co. v. Jen- ant than the one in question, 
 
 nings, 137 Ala. 247, 34 So. 1002 neither that nor any other of the 
 
 (1003). The first charge correctly given charges asserts the principle 
 
 asserts the law as applicable to it embodies with a fullness that 
 
 the case. An employer is bound can enable us to say the refusal 
 
 to use only reasonable diligence of the first charge was non-injuri- 
 
 in the maintenance of machinery ous to the defendant, 
 and appliances used in his busi- 63— Record v. Chickasaw C. Co., 
 
 ness. and is not chargeable with lOS Tenn. 657, 69 S. W. 334 (335). 
 
 neglierence •on account of defects "We think the charee of the court 
 
 thprf>in. the existence of which is was correct. He did not imnose 
 
 not discoverable by the use of such upon plaintiff the dutv of a close 
 
 diligence. L. & N. R. Co. v. Camp- and minute inspection, and did 
 
 bell, 97 Ala. 147, 12 So. 574: L. & impose on the defendant the duty 
 
 N. R. Co. V. Allen. 78 Ala. 494. of .seeing that the machine was in 
 
 This charge is not abstract, and safe coadition." 
 though the second charge given is 
 60
 
 946 FORMS OF INSTRUCTIONS. [§i 1412. 
 
 to use reasonable diligence to protect him, the employe from ordinaiy 
 risks, and for omission of such diligence or want of care the employer 
 may become liable to the employe for all damages arising therefrom. 
 
 (b) The duty of a master toward a servant in his employ is to 
 exercise reasonable care and skill to provide safe machinery and ap- 
 pliances for caiTying on the business in which he employs the sem'ant, 
 and in keeping such machinery and appliances in a safe condition for 
 such use, including the duty of making inspection and tests at proper 
 intervals whilst the work progresses.*** 
 
 § 1412, Duty of Inspection — Character of Business Should Be Con- 
 sidered. The duty of inspection is affirmative, and it must be con- 
 tinuously fulfilled and positively performed. In ascertaining whether 
 this has been done or not, the character of the business should be 
 considered, and anything short of this would not be ordinary care.^^ 
 
 § 1413. Defective Machinery Alone Insufficient for Recovery — In- 
 jury Must Have Proximately Resulted From Defect. In order to find 
 for the plaintiff, therefore, in this case, gentlemen, you must be able to 
 ascertain from the evidence that the defendants, or one of them, were 
 negligent as charged in the complaint; and you must be able to find 
 from the evidence that there was some defect in the machinery as 
 charged in the complaint which was the proximate cause of the in- 
 juries the i:>laintiff sustained, if he sustained such injuries. If you 
 should find that there were certain defects in this machinery, that 
 alone would not be sufficient, unless you should find from the evi- 
 dence that the injuries sustained by the plaintiff, if he did sustain any 
 injuries, were sustained by reason of that particular defect. Some 
 defective machinery might have been there that would not be re- 
 sponsible for the accident that occurred, but you must be able to 
 fix as the cause of this accident that it resulted from some defect in 
 that machinery.*"* 
 
 § 1414. Master Not Bound to Purnish the Safest and Best Ap- 
 pliances, (a) The jury are instructed that it is direct, personal, and 
 absolute obligation of the master to provide reasonably safe and 
 suitable machinery and appliances for the business. This includes 
 the exercise of reasonable care in furnishing such appliances. The 
 master must furnish a safe place in which his servant is to Avoi^k. 
 And the jury are further instructed that the master is liable for any 
 injury to his servants, due to the neglect or failure of the master to 
 provide such safe and suitable machineiy and appliances for the 
 business, or to exercise such reasonable care in furnisliing such ap- 
 pliances, or to furnish his servants a safe place in which to work. 
 
 64— Belleville S. Co. v. Comben, 6S7; Jager v. Cal. Bridge Co., 104 
 
 61 N. .1. 251, 39 Atl. 641 (642). Cal. .546, 38 Pac. 413; Alexander v. 
 
 fiFi— Dyas v. S. Pac. Co., 140 Cal. Central L. & M. Co., 104 Cal. 539. 
 
 296. 73 Pac. 972 (976). 38 Pac. 4.10." 
 
 "This correctly .states the law. 66— Young' v. O'Brien, 36 Wash. 
 
 2 Thomp. on Neg. p. 984; Rilveira 570, 79 Pac, 211 (213). 
 V. Iversen, 128 Cal. 192, 60 Pac.
 
 § 1415.] • NEGLIGENCE— MASTER AND SERVANT. 947 
 
 (b) The court instructs the jury that the defendant was not 
 bound to furnish to the plaintiff, the safest and best appliances and 
 machinery used with which to work, but the defendant should be 
 acquitted of fault in this respect if the appliances and machinery, 
 which they did furnish the plaintiff, were reasonably safe and suitable. 
 The court instructs the jury that before the plaintiff can recover 
 from the defendant, in this case, for the loss of his hand while in 
 said company's employ, he must overcome two presumptions: First, 
 the presumption that the defendants did provide safe and suitable 
 machinery, and a safe and suitable place in which to work ; second, 
 the presumption that the jDlaintiff assumed all the usual and ordinary 
 hazards of the business in which he is engaged; and that unless the 
 plaintiff does overcome the said presumptions by a preponderance of 
 the evidence, j^ou will find for the defendant.*'^ 
 
 § 1415. Appliances — ^What are in the Raising of Cants. I further 
 instruct j'ou gentlemen, that in the raising of the cant in question, 
 whatever was necessary or needful or useful in order to raise the 
 cant in an ordinarily safe manner and consistent with the care and 
 caution neeessaiy tb render safe and free from danger the workmen 
 engaged in it, are instrumentalities or appliances, within the mean- 
 ing of the law, whether the same be ropes, engines, platforms, or 
 staging or servants; and it is the duty of the master or its vice prin- 
 cipal or yard foreman having charge of the raising of this cant, to 
 furnish all such necessary instrumentalities and appliances, whether 
 ropes, machinery, staging or servants, and that they shall be reason- 
 ably suitable and competent.®^ 
 
 § 1416. Duty of Master in Furnishing Mail Cranes and Engines, 
 (a) The court instructs the jury that the defendant in this case was 
 under no obligation, by contract of employment with said C. W. B., 
 deceased, or otherwise, to furnish any particular kind of mail cranes, 
 or to adopt the latest and most approved appliances in connection 
 therewith, or to use in its business locomotives of any particular kind 
 or width, and that it was only bound to exercise reasonable care to 
 see that the mail cranes and engines used by it were reasonably safe 
 and suitable for the purposes for which they were used, and if the 
 jury believe from the evidence that the defendant's mail crane and en- 
 gine in question were suitable for the purpor,es for which they were 
 designed and used, and were reasonably ^afe for such use, they 
 should return a verdict for the defendant 
 
 (b) If you believe from the evidence c'^at the defendant's meth- 
 ods, machinery, instrumentalities, and appliances, and the mail crane 
 in question, were sufficient for the purposof for which they were used 
 and i-easonably safe when the said C. W. B. entered the defendant'-, 
 
 67 — The above instructions sriven 68 — Sroufe v IWonn Bros. Co. 
 
 for plaintiff and defendant to- 28 Wash. 381, 6? Pac. s96 (901), 
 
 pether state the law correctly. 92 Am. St. 84'. 
 Giebell v. Collins Co., 54 W. Va. 
 518, 46 S. E. 569 (573).
 
 948 FORMS OF INSTRUCTIONS. [§ 1417. 
 
 employ, and that the defendant used ordinary care to keep them and 
 said crane sufficient for such purposes and reasonably safe, then said 
 C. W. B. assumed the risk of danger from their use and plaintiff 
 cannot recover in this action.'''^ 
 
 (c) If you believe from the evidence in this case that the mail 
 crane when in operation was unnecessarily dangerous to employes 
 and to C. W. B. in the performance of his duty and in the exercise of 
 ordinary care on the defendant's locomotive, and that the said C. W. 
 B, did not know, and could not by the exercise of ordinary care 
 have foreseen, the dangers to be encountered from said mail crane, 
 and that the defendant knew, or ought to have known, of its dan- 
 gers, and after such knowledge, or after it might have had such 
 knowledge by the use of ordinary care, it failed to give the plaintiff's 
 decedent, C. W. B., warning of such danger, then your verdict must 
 be for the plaintiffJ" 
 
 § 1417. Liability for Defect in Weld of Swivel If the plaintiff's 
 injuries were caused by reason of the swivel breaking where it was 
 welded, and neither of the defendants knew of any defect in said 
 weld, and said defects could not be detected by an ordinary, careful 
 inspection, then the plaintiff cannot recover in this suit and you should 
 find for the defendants.'^^ 
 
 § 1418. Injury through Defect in Lever of Jackscrew. (a) If 
 
 you believe from the evidence that on or about the day of May, 
 
 18 — , the plaintiff was in the employ of the defendant as a bridgeman, 
 and that it became the duty of the plaintiff to hoist and place in 
 position a stringer of the bridge, and for that purpose it became 
 necessaiy for the plaintiff to use and he did use a jackscrew and a 
 lever, and the defendant furnished to plaintiff said jackscrew and 
 lever for that purpose, and that plaintiff l)egan turning the lever of 
 said jackscrew in order to hoist said stringer, and while doing so 
 said lever bent and slipped out of the jackscrew, and as a direct re- 
 sult of said lever slipping out of the jackscrew, if it did slip oiit, 
 plaintiff lost his balance, and was hurled or fell from said bridge, and 
 Avas injured as alleged in his petition; and you further believe from 
 the evidence that the lever of said jackscrew was defective, and unfit 
 for the purpose for which it was being used, and not sufficiently tough 
 and hard to use in hoisting the aforesaid stringer without bending, 
 
 69— Denver & R. G. R. Co. v. 70— Denver & R. G. R. R. Co. v. 
 
 Burchard, — Colo. — , 86 Pac. 749 Burehard, supra. 
 
 (754). "The court here submitted to 
 
 "This request was refused, the jury the que.stion of whether 
 
 Nowhere in the rhar>?e of the or not the crane was unnecessari- 
 
 cnurt was the defendant ffiven the ly dangrerous; that is, whether it 
 
 'benefit of the law as announced was unnecessarily near the track 
 
 in such two instructions. Pur- — that being' the only cause as- 
 
 ♦ her, the jury was permitted to sipned for its being: dangerous in 
 
 find acralnst \ho defendant, al- nporatinn." 
 
 though the dffnndant had been 71 — ^Doyle <^, Co. v. Hawkins, 34 
 
 frop of negligence in the con- Ind. App. 514, 7."? N. E. 200 (202). 
 
 structlon and maintenance of the "A controlling proposition which 
 
 crane." it devolved upon appellee to as-
 
 §il419.] negligence:— MASTER AND SERVANT. 949 
 
 and that the defendant knew of such defect, if any, or could have 
 known of it by the exercise of ordinary care, and that the defendant 
 was negligent in furnishing said lever in such condition, if it was in 
 such condition, and that, this negligence of the defendant, if any, 
 was the direct cause of the plaintiff's injury; and you further find 
 that the plaintiff did not know of any defect in said lever, if any de- 
 fect there was, and that plaintiff was not guilty of contributor^' negli- 
 gence, and did not assume the risk, — then I charge you that your 
 verdict must be for the plaintiff. 
 
 (b) And if you further believe from the evidence that the lever of 
 said jackscrew was defective, and unfit for the puipose for which it 
 was being used, and not sufficiently tough and hard to use in hoist- 
 ing the aforesaid stringer without bending, and that the defendant 
 knew of such defect, if any, or could have known of it by the exercise 
 of ordinaiy care, and that the defendant was negligent in furnishing 
 said lever in such condition, if it was in such condition, and that this 
 negligence of the defendant, if any, was the direct cause of the plain- 
 tiff's injurv, I charge you that your verdict must be for the plain- 
 tiff.'- 
 
 § 1419. Defective Belt in Mill, (a) In this case it was the duty 
 of the master to furnish a belt which was reasonably safe for the 
 use to which it was put, and if you find from the evidence in this 
 case that the belt by which the accident occui'red was a defective 
 belt, and that the master had knowledge of that defect through the 
 knowledge of the millwrights, or of its superintendent, B., and knew 
 that the belt was not a safe or proper belt, then you are instructed 
 that the master failed to discharge his duty towards the plaintiff. 
 
 (b) In this case if you find that the plaintiff was injured by the 
 reason of a latent danger in the belt, of which he had no knowledge, 
 and of which he could not have known by the exercise of reasonable 
 care and caution, in the place to which he was sent, then you are 
 instructed that if you fui'ther find that the accident occurred by 
 
 tablish was that the appellants ac- terms or substance is identical. He 
 
 tually knew of the defect, or asserts that the fact of the defec- 
 
 would have known of it if they tive swivel being used creates lia- 
 
 had made a proper use of the bility without other proof of notice, 
 
 means of information which they The authorities cited are those in 
 
 possessed; and the failure to in- which the neg-ligent act charged is 
 
 spect being the breach of duty an affirmative one, and done by the 
 
 specificallv relied upon, it also de- master with his own hand, or by 
 
 volved upon him to show that the another under his order and direc- 
 
 defective condition which pro- tion. notice being therefore involved 
 
 duced the injury would have been in the doing of the act. Louisville, 
 
 discovered bv such an examina- etc., R. Co. v. Hicks. 11 Ind. App. 
 
 tion as, under the law and cir- 588, 37 N. E. 43, 39 N. E. 767; 
 
 cumstances of the case, it was Standard Oil Co. v. Bowker. 141 
 
 their dutv to make. Pittsburg, Ind. 18, 40 N. E. 128; Clear C. S. 
 
 etc., R. R. Co. V. Adams. 105 Tnd. Co. v. Dearmin, 160 Ind. 162. 66 
 
 151, 5 N. E. 187; L. S. & M. S. Ry. N. E. 609; Con. S. Co. v. Morgan. 
 
 Co. V. McCormick, 74 Ind. 440. The Adm'r. 160 Tnd. 341, 66 N. E. 696." 
 
 appellee has not called attention to 72— Galveston H. & S. A. Ry. Co. 
 any instruction given which in
 
 950 FORMS OF INSTRUCTIONS. [§ 1420. 
 
 reason of such concealed or hidden danger, then your verdict must be 
 for the plaintiff."^ 
 
 § 1420. Injury through Unsuitable Belt on Planer Machine, (a) 
 If the jury believe the undisputed evidence, and also that at the 
 time the plaintiff was injured, he was in the discharge of his duties 
 as employe of the defendant, and that defendant through his fore- 
 man negligently failed to use due care and reasonable diligence to 
 provide the planer machine with a good, proper and suitable belt 
 with which to operate said machine, and that he negligently pro- 
 vided a belt with which to operate said machine which he knew, or 
 ought to have known was unsafe and unsuitable for the purpose for 
 which it was furnished, and that the belt was unsafe and dangerous 
 by reason of being fastened together with metal studs, and which 
 studs would break or tear out of said belt on account of the weak- 
 ness of the fastening, and that the belt hooks broke out of the belt 
 and struck plaintiff, and that plaintiff's injuries resulted from said 
 negligence, then you must find a verdict for the plaintiff and assess 
 his damages. 
 
 (b) If the jury believe the undisputed evidence in this case and 
 .that when plaintiff was injured he was in the discharge of his duties 
 as employe of the defendant and at the time the belt (which broke 
 and caused the injury to plaintiff) was fastened together and put 
 upon the machine, T. was intrusted with superintendence in this re- 
 gard, and that the belt was fastened together and put on the machine 
 while said T. was in the exercise of such superintendence, and that 
 said T. was negligent either in not fastening the belt together by 
 lacing or with covy hooks, or in not putting up a guard to protect 
 the plaintiff from danger of being struck, or in not instructing the 
 plaintiff of the dangers connected with the use of the belt, and if 
 you further believe that the hooks broke out of the belt and struck 
 plaintiff then under the employer's liability act of this state the 
 plaintiff would then be entitled to a verdict at your hands under the 
 second count of the complaint. ''* 
 
 § 1421. Spike Maul Flying off Handle. The court instructs the 
 jury that if you find from tlie evidence in this case that a spike maul 
 wedged with an iron or wooden wedge or a nail is liable, when being 
 used, to fly off the handle, then the risk of injury by being hit by 
 such a maul is a risk assumed by the plaintiff when he entered the 
 employment of the defendant, and ho cannot recover in fliis caso.'^" 
 
 § 1422. Flanges of Wheels on Defendant's Cars Being Worn too 
 Thin, [f, therefore, you find from a preponderance of the evidence 
 that tlie accident which caused the death of the deceased was due to 
 any defect in any wheel or wheels of defendant's ears, by the flanges 
 
 V. Hnmpton. 24 Tex. Civ. App. 458, 74— Davis v. Kornmnn, 141 Ala. 
 
 !)9 S. W. 928. 479. 37 So. 789 f790). 
 
 7."? — Golrlthorpfi v. Clnrk-Nirkor- 7." — Dcckerd v. Wabash R. To., 
 
 son T>. r.n.. 31 Wash. 467, 71 Pac. Ill Mo. App. 117, 85 S. W. 982 (985). 
 1091 n094).
 
 § 1423.] NEGLIGENCE— MASTER AND SERVANT. 951 
 
 being worn down too thin, or to any flaw or break in the flanges, and 
 that such defect, if any existed, could have been discovered by 
 reasonably careful inspection of the wheels, and that defendant failed 
 to make such inspection, then your verdict should be for the plain- 
 tiffs. * * * The company is not required to guard against de- 
 fects which cannot be discovered by reasonable care, but they are 
 required to discover defects which can be disclosed by reasonably 
 careful inspection. * * * The master is bound to use appliances 
 which are not defective in construction; but as between him and 
 his employes, he is not bound to use such as are of the best or most 
 approved description. If they ai'e such as are in general use, that 
 is all that is required. The employer is bound to furnish machinery 
 and appliances that are of ordinary character and of reasonable 
 safety. Whatever is according to the general, usual, and ordinary 
 course adopted by those in the same business is reasonably safe 
 within the meaning of the law.'^° 
 
 § 1423. Injury to Employe from Defective Ladder— When Em- 
 ploye Cannot Be Charged with Negligence. On the other hand, if 
 you find from the evidence that any ordinarily prudent, careful man, 
 with the knowledge of the condition of the ladder which the evidence 
 shows R. had of it, would have gone upon and used the ladder just 
 as the evidence shows him to have used it, then he cannot be charged 
 with negligence.'^''' 
 
 § 1424. Using Defective Tire Bender. If you believe from all the 
 evidence that the defendant did not use ordinaiy care in the prem- 
 ises, but at the time of the accident the tire bender was in a defective 
 condition — that is, dangerous to those working at or near it, because 
 it would sometimes start and revolve its rollers of its own accord 
 without being thrown into gear by any one — and that said tendency 
 to start off by itself was known to the defendant, or in the exercise 
 of oi-dinaiy care would have been known to it, then, and upon your 
 so finding, the defendant is guilty of negligence. Unless you so find, 
 you need inquire no further, for your verdict must then be for the 
 defendant. ''^^ 
 
 § 1425. Servant Injured through Defective Derrick. It is a pri- 
 mary duty of the master to provide suitable and reasonably safe tools 
 and machinery for the servant with which to perfonn the particular 
 work in which he is engaged. If the master shall fail in the per- 
 formance of this primary duty, he is liable to the servant for what- 
 
 76— Roberts V. Port B. M. Co., situated, then he was not charpre- 
 
 30 Wnsh. 25. 70 Pac. Ill (114). able with nesrlisrence. "We are of 
 
 77— Ritt v. True T. P. Co., 108 opinion that perhnp.=; the lanerunpre 
 
 Tenn. 646. 69 S. W. 324. of the counsel is the better ex- 
 
 "It is ST id that this instrnotion pres«inn. but we think that of the 
 
 should have bpen that if plaintiff trial iiidg-e is equivalent to it, and 
 
 was in the exercise of ordinarv there was no request to charge 
 
 prudence and care, such as is in th" langruagre of counsel." 
 usunlly exercised bv ordinarily 7R— VHoc- v. T?ettendorf A. Co., 
 
 prudent and careful men similarly 126 Iowa 138. 101 N. "W. 859 (860).
 
 952 FORMS OP INSTRUCTIONS. [§ 1426. 
 
 ever injury he may suffer resulting alone from such failure. In the 
 performance of this duty the master must use all reasonable care and 
 prudence for the safety of the servant, having regard to the char- 
 acter of the work to be performed. Such care must always be in 
 proportion to the danger of the employment. The servant has the 
 right to rely upon the master for the proper performance of his duty 
 without inquiry on his part. The choice of tools and machinery lies 
 with the master. They must be suitable for the work, and reason- 
 ably safe. It is not necessary that they should be the latest, new- 
 est, the most improved, the safest, or the best. Neither is the use 
 of like tools and machinery in other establishments the test of fitness. 
 The true test is not alone that others use them, but whether they 
 ai-e reasonably safe for the work to be done ; and not whether other 
 persons do in fact use them, but whether they are such as reasonably 
 careful and prudent men would use under like circumstances. AYhere 
 the master has performed this primary duty, the servant assumes the 
 ordinary risks and hazards incident to the business in which he is 
 engaged. He is presumed to have contracted with reference to such 
 risks and hazards, and in contemplation of the dangers, great or 
 little, that sui-round his peculiar occupation. He holds himself out 
 for such work, and is presumed to know and contemplate its ordinary 
 risks and dangers. The distinct question is whether the defendant 
 provided in that derrick a reasonably suitable and safe machine for 
 hoisting and handling that frame. This is to be determined by you 
 from the evidence in this case, under the rules of law above stated. 
 If that derrick Avas reasonably suitable and safe for that work at the 
 time of the accident, then your verdict should be for the defendant. 
 In that ease the accident did not result from the negligence of the 
 defendant, but was the result of one of the risks which the plaintiff 
 assumed in his employment. It would be a mere accident, without 
 negligence for which the defendant would not be liable. The case of 
 the plaintiff rests upon the negligence of the defendant. No recovery 
 can be had for the plaintiff unless you are satisfied from the pre- 
 ponderance of the evidence that the injuries complained of resulted 
 from the negligence of the defendant. Negligence. is never presumed; 
 it must be proved. There is practically no dispute about the law in 
 this case. We have called your attention to the principles of law 
 involved so that you may apply them to the facts. The issue is es- 
 sentially one of fact to be detennined by you from the evidence. It 
 is for you to say whether the derrick at that time, and for that 
 work, was a reasonably suitable and safe machine.''^ 
 
 § 1426. Injury to Gripman on Street Car through Defective Brake. 
 If you further believe, and find from the evidence, that dependant's 
 starter, S., or it=! foreman, R., knew of said condition of said brake; 
 if you believe and find from the evidence it was in said condition at 
 said time a sufficient length of time before said collision to have re- 
 
 79_Croker v. Pusey & J. Co., 3 Penwell (Delaware) 1, 50 Atl. 61.
 
 §1427.] NEGLIGENCE— MASTER AND SERVANT. 953 
 
 paired the same, or have had said car turned in, and that they failed 
 to do so; and if you further believe and find from the evidence that 
 the employes of defendant in charge of and operating said street 
 car did not exercise ordinary care in operating the same at the time 
 of the collision, and such failure to exercise ordinary care, and the 
 said defective condition of said brake, if you believe from the evi- 
 dence it was at said time in a defective condition, combined and 
 jointly were the cause of the collision ; and if you further iind from 
 the evidence that at said time the plaintiff was exercising reasonable 
 and ordinary care as a gripman on the said car on which he was 
 working — then you will find a verdict for the plaintiff.^*' 
 
 § 1427. Injury to Servant by Negligent Use of Compressed Air. 
 (a) If you believe fi'om the evidence that at the time the compressed 
 air struck C, if it did, N. was defendant's vice principal and had 
 control over said C. and other employes, and if you believe from the 
 evidence that said N. had the compressed air turned on and was 
 engaged in using it in the course of his employment by defendant, 
 and for the puipose of foiT\'arding the business of the defendant, and 
 that while so using it, if he did so use it, he struck said C. with said 
 compressed air, and thereby caused the death of said C, and if you 
 further believe from the evidence that said N. knew, or, in the exer- 
 cise of ordinary care could have known, that said compressed air was 
 likely to cause C.'s death, or do him serious bodily harm, and that 
 it was negligence on the part of said N. to strike said C. with said 
 eomiDressed air, if you find he did so, and that such negligence, if any, 
 was the direct cause of C»'s death, and if you further find from the 
 evidence that the plaintit!^, 0., was the wife of said C, and that E. 
 and F. were the children of said C, and that said plaintiffs were 
 damaged by his death, then I charge you that your verdict must be 
 for the plaintiffs.^^ 
 
 (b) If you believe from the evidence that at the time N. applied 
 the compressed air to the person of C, deceased, that said act was not 
 done Avithin the scope of the general authority or employment of said 
 N., and you further believe it was not so done in the perfonnance of 
 the master's business and for the accomplishment of the object for 
 
 80— Cole V, St. L. T. Co., 183 and the instruction in the par- 
 Mo. 81, 81 S. W. 1138 (1140). ticular now under discussion is 
 
 "The servant assumes the risk only in effect sayinisr that, if the 
 of the danger incident to the em- master was negligent, it is no ex- 
 plnyment, but never assumes the cuse that the negligence of a fel- 
 risk of the master's negligence, low servant of the plaintiff con- 
 If his master furnishes him un- tributed with that of the master 
 safe implements, and he uses them, to cause the injury, citing De- 
 knowing them to be unsafe, a weese v. Mining Co., 54 Mo. App. 
 question of contributory negligence 476; id., 128 Mo. 423, 31 S. W. 110; 
 arises, but not of assumption of Young v. Shickle, 103 Mo. 324, 15 
 the risk. Pnuck v. St. L. Dressed S. "W. 771; Browning v. Ry. Co., 
 Beef Co., 159 Mo. 467, 61 S. W. 124 Mo. 55, 27 S. W. 644." 
 806. 81— Galveston, H. & S. A. Ry. 
 
 . . . "The suit is bottomed Co. v. Currie, — Tex. Civ. App. 
 
 on the negligence of the master, — , 91 S. W. 1100 (1101).
 
 954 FORMS OF INSTRUCTIONS. [§ 1428. 
 
 which said N. was employed by the defendant, and that said act was 
 not so done while performing any duty with said compressed air in 
 behalf of said defendant railway company, and that said act was an 
 independent act of the said N., in no wise connected with any duty 
 being performed by said N. for this defendant, and you further find 
 that said act was so done by the said N. for the puipose of playing 
 a prank u^dou said C, then you will find a verdict in favor of the 
 defendant,^^ 
 
 FELLOW SERVANTS. 
 
 § 1428. Fellow Servants Defined — Contributory Negligence, (a) 
 
 The court instructs the jury thait, in order to constitute servants of 
 the same master fellow-servants, it is essential that they shall be, at 
 the time of the injury, directly co-operating with each other in the 
 particular business in hand, or that their duties shall bring them 
 into habitual association, so that they may exercise an influence upon 
 each other promotive of proper caution ; and, if the juiy believe, from 
 the evidence, that the plaintiff, M., and the man, V., who was assist- 
 ing him at the time of his alleged injury were in the employ of the 
 defendant, P., and that they were directly co-operating with each 
 other in the particular business in hand or that their usual duties 
 brought them into habitual association so that they might exercise an 
 influence upon each other promotive of proper caution then the court 
 instructs the juiy as a matter of law that the said plaintiff and the 
 said V. who was thus assisting him at the time of his alleged injuries, 
 were fellow servants and if the jury further believe, from the evi- 
 dence, that the injury received by the plaintiff was occasioned by his 
 own carelessness and negligence, or through the carelessness and neg- 
 ligence of the said V., who was thus assisting him at the time and 
 
 82— Galveston, H. & S. A. Ry. air to so penetrate C, as to cause 
 
 Co. v. Currie, supra. his death or do him any real in- 
 
 "The above instruction is com- jury. But the act was the direct 
 plained of upon the ground that and proximate cause of C.'s death, 
 there was no evidence that N. and in such cases it does not af- 
 knew, or in the exercise of ordi- feet the liability of the wrong 
 nary care could have known, that doer that the consequence of his 
 compressed air was likely to cause act was something unforeseen or 
 C.'s death or do him serious bodi- improbable. The act was calcu- 
 ly injury. It is true that this lated or likely to do some injury 
 seemed to have been a result of and as this is the case it is not 
 the application of compressed air necessary that injury in the pre- 
 to a person that staggered the cise form in which it in fact re- 
 comprehension of the physician suited should have been foreseen, 
 who testified in the case, who Hill v. Winsor, 118 Mass. 251; At- 
 says' he did not believe it possi- chison, T. & S. F. Ry. v. Parry, 
 ble for a hose of the size of the 67 Kan. .51.5. 7.S Pac. 105; El Paso 
 one to so overcome the sphincter & N. W. Ry. v. McComas, 'IG Tex. 
 muscle as to allow air to rush Civ. App. 170, 81 S. W. 761; Gulf, 
 Into the bowels of C, but he C. & R. F. Ry. Co. v. Hayter, 93 
 went on to say that it did. It is Tex. 2.'?9, 54 S. W. 944, 47 L.. R. A. 
 probably safe to say from the evi- 325, 77 Am. St. 856." 
 dance that N. did not expect the
 
 f 1429.] NEGLIGENCE— MASTER AND SERVANT. 955 
 
 place mentioned in the declaration, then the defendant would not be 
 liable to the plaintiff if he was otherwise without fault, and the jury 
 shoiild find the defendant not guilty. ^^ 
 
 (b) If the jury find from the evidence that plaintiff himself was 
 careless or neglig-ent at the time or place of the accident, and that 
 such negligence directly contributed to the injury which he sustained, 
 then plaintiff' cannot recover damages in this case and the verdict 
 should be for the defendant. 
 
 (c) The jury are further instructed that defendant is not re- 
 sponsible for the negligence of plaintiff's fellow servants, if the jury 
 believe from the evidence that plaintiff's felloAv sei'vants were guilty 
 of negligence, and that such negligence caused the accident by which 
 plaintiff was injured. The term ''fellow servants" as used in this 
 insti'uction, means those who are engaged with the plaintiff in the 
 same work, without any relation to each other as co-laborers, and 
 without rank.^* 
 
 § 1429. Fellow Servants — Elements Necessary to Constitute Rela- 
 tionship of. (a) The coui't instructs the jurj^ that to constitute de- 
 fendant's servants who were switching the caboose in question, fel- 
 low servants of deceased, so as to exempt the defendant from liabil- 
 ity on account of the death of deceased from the negligent acts of 
 defendant's said servants (provided you believe from the evidence de- 
 ceased's death was caused by the negligent acts of said servants), 
 said servants and deceased should be actually co-oi^erating, just be- 
 fore and at the time of the collision which caused deceased's death, 
 in the particular business in hand, or their usual duties should bring 
 them into habitual consociation with each other, so that they might 
 exercise an influence upon each other promotive of proper caution for 
 their personal safety.^^ 
 
 83— Pagels v. Meyer, 193 111. 172 85— P., C, C. & St. L. Rv. Co. 
 
 (177), 61 N. E. 1111, rev'g 88 111. v. Bovard, 223 111. 176 (184), 79 N. 
 
 App. 169. E. 128. 
 
 "The court refused to instruct "The instruction is in accordance 
 the jury as requested. This in- with the language used by this 
 struction stated the rule of law court in C. & A. R. R. Co. v. 
 as to what will constitute fellow- O'Brien, 155 111. 630, 40 N. E. 1023, 
 servants in practically the same and N. C. Rolling M. Co. v. John- 
 language employed by the court son, 114_ 111. 57, 29 N. E. 186. The 
 in a great many cases, among instruction is charged with being 
 which are: C. & N. W. R. R. Co. erroneous upon two grounds: 
 v. Moranda, 93 111. 302, 34 Am. First, because it is said to as- 
 Rep. 168; C. & E. I. R. R. Co. v. sume that the death of the de- 
 Geary, 110 id. 383; Stafford v. C, ceased resulted from the negli- 
 B. & Q. R. R. Co., 114 id. 244, 2 gence of appellant's servants; and 
 N. E. 185; N. C. Rolling M. Co. second, that it omits to condition 
 V. Johnson, 114 111. 57, 29 N. E. the right of recovery upon the 
 186; C. & N. W. Ry. Co. v. Sny- exercise of due care on the part 
 der, 117 III. 376, 7 N. E. 604; C. & of the deceased." Neither of these 
 A. R. R. Co. v. Hoyt. 122 id. 369, objections is well taken. As to 
 12 N. E. 225; C. & E. I. R. R. Co. the first, the jury are required to 
 V. Kneirim, 152 id. 458, 39 N. E. believe from the evidence that 
 324. 43 Am. St. 259." the deceased's death was caused 
 
 84 — Kaminski v. Tudor I. W., by the negligent acts of appel- 
 
 167 Mo. 462, 67 S. W. 221 (222). lant's servants, and, therefore,
 
 9u6 FORMS OF INSTRUCTIONS. [§ 1430. 
 
 (b) If you believe from the evidence that W. was not intrusted 
 by the defendant with the authority to suiDerintend, control, com- 
 mand, and direct plaintiff in the performance of the work in which 
 he was engaged at the time he was injured, then said W. and plaintilf 
 were fellow servants, and you will return a verdict for the de- 
 fendant.^^ 
 
 (c) The court instructs the jury that it is not necessary, in order 
 to constitute two employes fellow servants, that they should be per- 
 sonally acquainted with or know each other's names, or that they 
 should be doing identically the same thing at the same time. The 
 rule, exempting the master from liability, does not rest in any degree 
 upon personal acquaintance or actual previous association between 
 the servants, but upon the relation of their duties to each other and 
 the respective positions, which they hold. If, therefore you believe 
 from the evidence that, at the time the injury in question was received, 
 the deceased, W. R., was directly co-operating with the employes in 
 charge of the locomotive in the particular work of the defendant 
 then in hand, in such case it is your duty to find the defendant not 
 guilty, even though you believe from the evidence that said R. was 
 not acquainted with said employes, so in charge of said engine.^" 
 
 § 1430. Fellow Servants — Persons May Be as to Part of Employ- 
 ment, and Not as to Other Part. I charge you further, that the serv- 
 ant does not assume the risks of carelessness of those who undertake 
 to discharge, under the master's directions, the master's duty towards 
 the servant, even if such persons are also servants of the same 
 master; nor does the servant assume risks which he neither knows nor 
 suspects, nor had reason to look for. The risks incident to his em- 
 ployment which he assumes are such risks as he knoAVS, or which by 
 the exercise of ordinary care, he should have known of. In this con- 
 nection, I charge you, that while in the discharge of his ordinary 
 duties the man R. was a fellow servant of the deceased, yet while 
 engaged in transmitting signals from the foreman, M., to the men 
 operating the donkey engine, he was discharging a duty imposed by 
 
 such neglig-ence is not assumed to cism cannot be made upon this 
 have existed. As to the second in.struction that it states, if cer- 
 objection. the Instruction only tain facts are found, the jury may 
 purported to state the law in ref- render a verdict for the plain- 
 erence to the question of fellow- tiff, and omits certain other facts 
 servants, and, therefore, it was necessary to be found in order to 
 unnecessary to embody in the in- entitle t'he jury to find for the 
 struction a stntement in regard to plaintiff. The instruction, on the 
 the care of the deceased for his contrary, merely states n rule in 
 own safety. In C. & E. 111. R. Co. regard to fellow-servants which 
 V. Hines, 132 111. ICl, 23 N. E. 1021, would exempt appellant from Ha- 
 lt was said: 'It is not required bility." 
 
 that the entire law of the case 86— Reeves v. Galveston, H. & S. 
 
 shall be stated In a single instruc- A. Ry. Co.. — Tex. Civ. App. — , 
 
 tion, and it is therefore not im- 98 S. W. 929. 
 
 proper to state the law as ap- 87— C. & E. I. R. R. Co. v. 
 
 plicable to particular questions, Kimmel. 221 111. 547 (553, 554), 77 
 
 or particular parts of the case, in N. E. 936. 
 separate instructions.' The criti-
 
 § 1431.] NEGLIGENCE— MASTER AND SERVANT. 957 
 
 law upon the vice principal, and was therefore while so engaged, a 
 vice principal of the defendant ; and if you find from a preponderance 
 of the evidence that R. failed to correctly transmit the signal given 
 him by the foreman, M., and by reason of such failure the injury, if 
 any, complained of was caused, then you must find the defendant 
 guilty of negligence.^^ 
 
 § 1431. Who are Fellow Servants a Question of Fa^ct for the Jury. 
 
 The court instructs the jury that the question as to whether the de- 
 ceased, and the servants of the defendant in charge of the train in 
 question and spoken of by the witnesses were fellow servants so as 
 to exempt the defendant from liability from any negligence of its 
 servants in the management of said train, is a question of fact to be 
 determined by the jury from the evidence in the case under the in- 
 structions of the court. ^^ 
 
 § 1432. Negligence of Defendant and of Fellow Servant, (a) If 
 
 the jury believe, from the evidence, that the defendant was guiltj' of 
 negligence, as charged in the declaration, and 'that the plaintiff by 
 reason thereof was injured and damaged as claimed by him, and that 
 he himself was guilty of no want of ordinary care that contributed to 
 the injury, then the defendant is liable in this action, although you 
 may further believe, fi'om the evidence, that the negligence of a 
 fellow servant contributed to such injuiy. In such cases the rule of 
 law is that contributory negligence to defeat an action must be that 
 of the plaintiff or of some person for whose acts he is responsible.^" 
 
 88 — Sroufe v. Moran Bros. Co., ceased and one Bray were fellow 
 
 28 Wash. 381 (393), 68 Pac. 896 (901), servants, and on that question we 
 
 92 Am. St. 847. said: 'The definition of fellow 
 
 "Persons working together as servant may be a question of law, 
 
 fellow servants may be fellow but it is always a question of fact 
 
 servants with regard to some part to be determined from the evi- 
 
 of the employment, and principal dence whether a given case falls 
 
 or master with regard to some within the definition. Whether 
 
 particular part of the employment, the deceased and Bray were fel- 
 
 Shannon v. Cons. T. & P. Mining low servants depended upon a va- 
 
 Co., 24 Wash. 130, 64 Pac. 169; Uren riety of facts which had to be 
 
 V. G. T. Mining Co., 24 Wash, proven before the jury. The in- 
 
 261, 64 Pac. 174; Costa v. Pacific quiry would arise whether they 
 
 Coast Co., 26 Wash. 138, 66 Pac. were in the service of a common 
 
 398." master; were they engaged in the 
 
 89 — L. E. & W. R. R. Co. v. same line of employment; were 
 
 Middleton, 142 111. 550 (556), 32 N. the existing relations between 
 
 E. 453. them of such a character and 
 
 "We are of opinion that said in- their duties such as to bring them 
 
 struction was clearly proper. The often together co-operating in a 
 
 question whether Middleton was a particular work? These and per- 
 
 fellow servant with those in charge haps other facts of a kindred 
 
 of the colliding train was a fact character were matters to be 
 
 for the jury, and it was the duty proven before the jury, and from 
 
 of the court to submit it to them, the facts thus proven, it was for 
 
 with proper instructions as to the the jury then to say whether two 
 
 law defining the relation. Sub- servants in the discharge of their 
 
 stantially the same question was duties were fellows." 
 
 decided in T. & St. Iv. R. R. Co. 90_Shetter v. C. & N. W. Ry. 
 
 v. Morgenstern. 106 111. 216. There Co., 49 Wis. 509. 
 the question was whether the de-
 
 958 FORMS OF INSTRUCTIONS. [§ 1433.. 
 
 (b) If 3'oti believe from the evidence that on or about , 
 
 plaintiff was in the emploj' of defendant in its shops at S. A., and 
 that while so emploj'ed he was under the direction and control of 
 one D., and that the said D. ordered the plaintiff and one R. to take 
 up and carry a jolank or piece of timber as alleged in plaintiff's peti- 
 tion, and that in obedience to said order the plaintiff and said R. at- 
 tempted to carry the said plank or timber ; and you further find from 
 the evidence that, while plaintiff had said plank or timber upon his 
 shoulder said R. dropped his end of said plank or timber, and in- 
 jured plaintiff, as alleged in plaintiff's petition; and you further find 
 from the evidence that said R. was physically unable to sustain or 
 hold up his end of said plank or timber, and that defendant knew of 
 this, or by the exei^ise of ordinary care could have known of it, 
 and that it was negligence on the part of defendant to order the said 
 R. to assist in carrjdng said plank or timber, if he was so ordered, 
 and that such negligence if any, was alleged in his petition; and if 
 you further find from the evidence that the plaintiff was not guilty of 
 negligence and that he did not assume the risk — then and in such 
 case you Avill find for the plaintiff.^^ 
 
 § 1433. Fellow Servants — Eule in Colorado. The jury are in- 
 structed that the rule Avhich obtains in the state of Colorado is that 
 for the acts of his vice principal done within the scope of his em- 
 ployment, and such as properly devolve upon the master in his gen- 
 eral duty to his servants, the master is liable ; while for all such acts 
 as relate to the common employment, which are on a level with the 
 acts of the fellow laborer', except such acts as are done by the vice 
 principal against the reasonable objections of the injured servant, 
 the master is not responsible. In other words the test of the liability 
 is the character of the act, rather than the relative act of the 
 servant.^2 
 
 § 1434. Care Required of Master in Selection of Fellow Servants. 
 
 (a) The court instructs the juiy, that no person, or coiiioration, is 
 responsible for injuries to an employe, occasioned by the careless- 
 ness, negligence or unskillfulness of a fellow servant, engaged in the 
 same line of service; provided the employer has taken proper care 
 and caution to engage proper servants to perform the duties assigned 
 
 91— G. H. & S. A. Ry. Co. V. Pers. Inj. §§ 103, 201; Supple v. 
 
 Sherwood. — Tex. Civ. App. — , Aprnew, 191 111. 439, 61 N. E. 392. 
 
 67 S. W. 776 (777). The act of neglig-ence pleaded by 
 
 "If the injury was caused by the appellee is in itself of such a char- 
 joint result of the neprlif?ence of acter that it could not possibly 
 the appellant and the fault of a be the nes'lig'ence of R. It was 
 fellow servant, appellee's ripht to the nog:lis'ence of D., who, though 
 recover would be maintained; for appellant's servant, was its vice 
 the original negligence of appel- principal, and not a fellow serv- 
 lant would still remain as the cul- ant of the appellee and could not 
 pable and diroot cause of the in- be the act of any one else." 
 jury, and the intervening fnult of 92 — Carletnn Min. & M. Co. v. 
 R., which might have contributed Ryan, 29 Colo. 401, 68 Pac. 279 
 to it, could not be regarded. (281). 
 Shear & R. Neg. § 188; Busw.
 
 § 1435.] NEGLIGENCE— MASTER AND SERVANT. 959 
 
 to them. Nor is the employer liable for injuries thus sustained, if 
 the person injured was, while engaged as such serv^ant, acquainted 
 with the character of such fellow servant for capacity, prudence and 
 skill. 
 
 (b) The rule of law is, that when a person engages in the service 
 of another, he undertakes, as between himself and his employer, to 
 run all the ordinary risks incident to such ser^dce; and this includes 
 the risk of occasional carelessness, negligence or unskillfulness on the 
 part of his fellow servants engaged in the same line of duty and 
 service; provided, the emploj'^er has exercised reasonable care and 
 caution to engage competent and careful persons to discharge the 
 duties assigned to them.^^ 
 
 § 1435. Responsibility of Master for Incompetency of Fellow 
 Servant. The court instructs the jury that if you believe from the 
 evidence that G. and P. were incompetent and unfit persons to per- 
 form the duty of propelling said hand ear, and that by reason thereof 
 they pulled or jerked upon the handle bar instead of pressing down; 
 and you further find they were negligent; and, further, that the de- 
 fendant knew, or by the exei'cise of ordinary care could have known, 
 of the unfitness and incompetency of said G, and P., if you find they 
 were unfit and incompetent, and that the defendant was gniilty of 
 negligence in employing and keeping said G. and P., — then your ver- 
 dict should be for the plaintiff.^^ 
 
 § 1436. Person Charged with Ventilation of Mine Not Fellow 
 Servant of Miner. I charge you further that the positive duty of 
 keeping a good and sufficient ventilation in the mine being on the 
 defendants, as you have been instructed, it matters not Avho or what 
 persons perfoiTaed work or assist in the work of ventilation. If you 
 should find that it was necessary to keep chute No. 15, or any other 
 chute, open as an airway, in order to have good and sufficient ventila- 
 tion in chute 14 above the fii'st crosscut, and that part of the duty of 
 the loader was to keep chute 15 clear, then, in that respect, in per- 
 forming that particular work, he was assisting in performing a posi- 
 tive duty of the defendants to the deceased, and was, as to the work, 
 a vice principal of the defendants, and not a fellow workman of the 
 deceased.''^ 
 
 § 1437. Negligence of Fellow Servant, (a) The jury ai-e in- 
 structed, that the rule of law, that an action will not lie by a servant 
 against his master or employer, for an injuiy sustained through the 
 negligence or default of a fellow servant, applies only to cases where 
 the injuries complained of occur without the fault of the employer, 
 
 93— Smith v. Lowell Mfg. Co., announced in Costa v. Pac. Coast 
 
 124 Mass. 114. Co.. 26 Wash. 138, 66 Pac. 398." 
 
 94— Int. & G. N. R. Co. v. Mar- Czarecki v. Seattle & S. F. Ry. 
 
 tinez. — Tex. Civ. App. — , 57 S. & Nav. Co., 30 Wash. 288, 70 Pac. 
 
 W. 689 (690). 750 (752). 
 
 95 — "This is within the principle
 
 960 FORMS OF INSTRUCTIONS. [§1438. 
 
 either in the act which caused the injury, or in the employment of 
 the person who caused it. 
 
 (b) While it is true that a common employer is not responsible 
 to a servant for an injury caused by the negligence of his fellow 
 servant, engaged in the same line of employment, yet it is the duty of 
 the employer to use all reasonable care, caution and prudence to pro- 
 vide safe structures, competent emi5loyes, and all appliances neces- 
 sary to the safety of the employed, and to adopt all reasonable rules 
 and regulations to avoid injuries to the employed, and, having adopted 
 such rules, to conform to them, or be responsible for consequences 
 resulting from a departure therefrom.^^ 
 
 (c) The master does not warrant the competency of his servants 
 to the other servants. The extent of the master's undertaking is, that 
 he will exercise reasonable care in the selection of an employe, and if 
 his incompetency is discovered, will dismiss him from service. The 
 master will be liable, where the injury is imputable to his negligence, 
 in the selection of the servant, or in retaining him after his incompe- 
 tency is known.'''^ 
 
 (d) The court charges the jury that they cannot find a verdict 
 against the N. Company on account of any negligence on the part of 
 any fellow sei'vant of plaintiff's intestate, although such negligence 
 on the part of the fellow servants of the deceased may have caused 
 the injury and death of B.^^ 
 
 § 1438. Motorman of Street Car Failing to Reduce Speed at Sunken 
 or Depressed Spot — Fellow Servant of Conductor. If you find from 
 the evidence that the motorman in charge of the car knew, or might 
 have known by the exercise of ordinary care, the condition of the 
 track at the point of the accident, and that he negligently ran his 
 car upon the point at which the track was sunken or depressed with- 
 out slowing it down and reducing the speed to one of safety, then the 
 plaintiff is not entitled to recover, and your verdict Avill be for the 
 defendant.^'* 
 
 96— Chi. & N. W. Ry. Co. v. Tay- R. R., 174 Mo. 53, 73 S. W. 686, 
 
 lor, 69 111. 461. 61 L. R. A. 475. There was also 
 
 97 — Columbus, C. & I. C. Ry. evidence that the car was running^ 
 
 Co. V. Troesch, 68 111. 545. at an ordinary rate of speed when 
 
 98 — N. A. Ry. Co. v. Mansell, 138 it jumped the track. Defendant, 
 
 Ala. 548, 36 So. 459 (462), citing however, contends that under the 
 
 Mobile & M. Ry. v. Smith, 59 evidence it was conclusively shown 
 
 Ala. 245; Smoot v. M. & M. Ry., that the motorman was negligent, 
 
 67 Ala. 13; M. & O. Ry. v. Thomas, and for this reason the case 
 
 42 Ala. 672. should have been withdrawn from 
 
 99 — Houts v. St. L. T. Co., 108 the jury. In order to authorize 
 
 Mo. App. 686, 84 S. W. 161 (164). the court to take the case from 
 
 "This instruction imputed the the jury, the evidence should have 
 
 negligence of the motorman, if he been so strong that reasonable 
 
 was negligent, to the conductor, minds could come to but one con- 
 
 for the reason they were fellow elusion, to-wit, that the car was 
 
 servants. Stocks v. St. L. T. Co., run at a negligent and high rate 
 
 106 Mo. App. 129, 79 S. W. 1176; of speed, and that it was this 
 
 Godfrey v. St. L. T. Co., 107 Mo. high rate of speed that caused it 
 
 App. 193, 81 S. W. 1230; Sams v. to jump the track. It is not con-
 
 §1439.] NEGLIGENCE— MASTER AND SERVANT. 961 
 
 § 1439. Who are Vice Principals, (a) You are also instructed 
 that, wJien an injury results to a servant from an order improperly 
 given or act negligently done, and the person who gives the order or 
 does the act is in the performance of a duty the breach of which by 
 the master in person would create a liability, and he is clothed with 
 apparent authority in that respect, and the order given or act done 
 is within the scope of the apparent authority, the master is responsi- 
 ble in damages to the injured servant, if the injured servant is in the 
 exercise of due care and caution for his own safety. It is immaterial 
 whether the person exercising the authority was known as a foreman 
 or by anj' other title ; if he is clothed with apparent authority to 
 direct and command, and the injured servant in good faith obeys and 
 performs, the person so exercising such authority is not as to the per- 
 son injured a felloAv servant in the sense that the common master is 
 relieved of responsibility for injuries resulting from his imprudent 
 conduct or negligent act.^"" 
 
 (b) The court instructs the juiy that where a master confers au- 
 thority upon one of his emploj^es to take charge and control of a 
 certain class of workman in carrying on some particular branch of 
 his business, such employe in governing and directing the movements 
 of the men under his charge with respect to that branch of the busi- 
 ness is the direct representative of the master, and is not a mere 
 fellow sen'ant ; and all the commands given by him within the scope 
 of his authoi'ity are in law the commands of the master, and if he 
 is guilty of a negligent and wrongful exercise of his power and au- 
 thority over the men under his charge, it is in law the same as though 
 the master itself was guilty of such conduct.^ 
 
 § 1440. Responsibility of Master for Negligence of Vice Principal. 
 The court instructs the juiy that if a railroad company vests one of 
 its employes with authority of superintendence, control or command 
 over other of its employes, or with authority to direct such employes 
 in the performance of their dntj, such employe vested with such su- 
 perintendence, control or command or authority to direct, is not a 
 fellow servant with those over whom he has such superintendence, 
 control or command, or authority to direct, but is a vice principal; 
 and the company would be liable for any negligence of such vice 
 
 clusively shown that the ca^ was "The instruction g-iven for 
 
 running: at a hi^h rate of speed plaintiff and quoted in the state- 
 
 or at a speed exceeding the ordi- ment is not in our opinion er- 
 
 nary rate, and for this reason the roneous for the reason claimed by 
 
 question of whether or not it was appellant, viz., that it assumes the 
 
 runningr at a negligent speed was existence cf facts which are in 
 
 one for the jury." dispute. The instruction does not 
 
 100 — "We do not think this in- purport to be upon the facts of 
 
 strument is open to criticism." the case, but in general terms em- 
 
 W. C. St. R. R. Co. V. Dwyer, bodies simply a proposition of 
 
 162 Til. 482 (490), aff'g 57 111. App. law, which is clearlv sustained by 
 
 440. 44 N. R. 815. the rulings of the Supreme Court 
 
 1 — 111. Steel Co. V. Hanson, 97 111. in Fraser & Chalmers v. S^^hroe- 
 
 App. ^169 (471), aff'd 195 111. 106, 62 der. 163 111. 459 (464), 45 N. E. 288, 
 
 N. B- 918. and cases cited." 
 61
 
 962 FORMS OF INSTRUCTIONS. [§ 1441. 
 
 principal which might proximately produce injury to any of the em- 
 ployes over whom he had such superintendence, control or command, 
 or authority to direct. - 
 
 § 1441. Servant Engaging in Extra Hazardous Work Different from 
 Ordinary Employment at Command of Fellow Servant. The court 
 instructs the jury that where a person in the employ of another in 
 the performance of a specific line of duty, only ordinarily hazardous, 
 is commanded by a fellow servant, but to whom he is so subordinate 
 that he is compelled to obey his directions, to do an act in the same 
 general service, but different from the sphere of employment in which 
 he has engaged to serve, and extra hazardous in its character, and in 
 respect to which the servant making the requirement knew he was 
 unskilled and inexperienced, and in doing the same the servant so di- 
 rected received injuries occasioned by the negligence of another serv- 
 ant employed in the particular line of service in which the act was 
 being done, the common employer will be liable to the servant so in- 
 jured, and the jury should so find.^ 
 
 § 1442, Superior Authority Does Not Always Destroy Relationship 
 of Fellow Servants. The court instructs the jury that the facts that 
 the said H. was superior in power and authority over the said B. in 
 the service of the said company at the time of said accident would 
 not, of itself, destroy the relation of co-servant as between the said 
 H. and the said B. ; and if they believe from the evidence that the 
 said H. was capable of running the said machine at the time of the 
 accident, and that the said B. then and there knew how to perform 
 his duties as helper upon the said machine, and was working within 
 the scope of his employment, then they would in that case be eo- 
 servants, and, although the jury might believe the accident resulted 
 from the negligence of the said H. under such circumstances, the 
 plaintiff would not be entitled to recover in this case, and the jury 
 should so find.* 
 
 § 1443. Molder as Vice Principal to Laborer. If the jury be- 
 lieve, from the evidence, that the plaintiff was in the defendant's em- 
 ploy as a common laborer, and required, in the discharge of his duty, 
 to assist other servants of the defendant, who were molders, as a 
 helper, and was under the control or subject to the orders of said 
 molders: that one of such molders, negligently ordered or directed the 
 plaintiff to repair, adjust or put in order the stationary crane in ques- 
 tion; that in giving such order (if the jury believe, from the evidence, 
 he gave it), said molder was not a fellow servant with the plaintiff, 
 as defined by the instruction given on that question: that it was a 
 dangerous service for him to r)erform and that the plaintiff did not 
 appreciate or comprehend such danger; that while the plaintiff was 
 
 2— S. A. & A. P. Ry. Co. v. Wio- 3— McVey v. St. Clair Co., 49 W. 
 grers, 22 Tex. Civ. App. 344, 54 S. Vn. 412. 38 S. R. 64S ('649). 
 W. 910 (911). 4— McVev v. St. Clair Co., 49 W. 
 
 Va. 412, 38 S. E. 648 (651).
 
 § 1444.] NEGLIGENCE— MASTER AND SERVANT. 
 
 963 
 
 endeavoring to carry out and execute such order, the defendant so 
 carelessly and improperly managed and controlled the other crane in 
 question that the plaintiff was struck and injured by the same, as 
 charged in the declaration, and that the plaintiff was in the exercise 
 of ordinary care for his own safety before and at the time of his 
 injui-y, the defendant is liable and a verdict ought to be returned for 
 the plaintiff.^ 
 
 ASSUMPTION OF RISK. 
 
 § 1444. Servant Assumes All Risks Ordinarily and Naturally Inci- 
 dent to Particular Service in Which He is Engaged, (a) The jury 
 are instructed, as a matter of law, that a servant, when he enters the 
 sei'\'ice of an employer, impliedly agrees that he will assume all risks 
 which are ordinarily and naturally incident to the particular service 
 in which he engages, and if the jury believe from the evidence that 
 the injury to the plaintiff was only the result of one of the risks ordi- 
 narily incident to the work in which plaintiff's intestate was engaged, 
 and not othenvise, then he cannot recover in this case, and your ver- 
 dict should be for the defendant.*^ 
 
 (b) It is alleged in the declaration filed in this ease by the plain- 
 tiff S. that the hazards and dangers of drawing the spike in the man- 
 
 5— Leighton, etc.. Steel Co. v. 
 Snell, 217 111. 152 (159), 75 N. E. 
 462. 
 
 "It is said of this instruction 
 that it assumes that appellee and 
 the molder were not fellow-serv- 
 ants. We do not agree with this 
 contention. The instruction is 
 long, and as printed is divided 
 into three clauses by semi-colons, 
 but it begins by informing the 
 jury that if they believe from the 
 evidence, and then follow the va- 
 rious matters contained in the in- 
 struction. The writer of the in- 
 struction unnecessarily, in the sec- 
 ond clause, repeated the expres- 
 sion 'if the jury believe from the 
 evidence,' but it neither added to 
 nor took from the instruction the 
 force of the direction contained in 
 the first part of the instruction, 
 that all the matters therein fol- 
 lowing should be found from the 
 evidence. It is not necessary 
 that each thought or element or 
 act pointed out or specified in the 
 instruction shall be preceded im- 
 mediately by the requirement that 
 the jury must find it from the evi- 
 dence. Where the Instruction cen- 
 to ins but a single sentence and 
 begins with the renuirement to 
 'find from the evidence' the mat- 
 ters therein, the direction to 'find 
 from the evidence' will apply to 
 the entire sentence. C. & A. R. 
 
 R. Co. v. Fisher, 141 111. 614, 31 N. 
 E. 406." 
 
 "It is also said that the instruc- 
 tion omits the question whether 
 the molder had the power or au- 
 thority to direct the appellee to 
 repair the crane. The instruction 
 tells the jury that they must be- 
 lieve, from the evidence, that ap- 
 pellee was under the control or 
 subject to the orders of the mold- 
 er. If he was under the control 
 and subject to the orders of the 
 molder, and the direction was 
 with reference to work that was 
 in the line in which the molder 
 was engaged or if it concerned 
 the repairing of tools or machinery 
 which the molder handled in the 
 prosecution of his work, as the 
 evidence in this case shows was 
 true, then the molder did have 
 authority to give the order as a 
 vice principal and bind appellant, 
 unless it could be said, under the 
 evidence, as the jury were ad- 
 vised, that the rnolder and the 
 helper were fellow-servants. We 
 think the instruction is not sub- 
 ject to either of the criticisms 
 made of it. and that while it i9 
 not artistically drawn it would be 
 properly understood by the aver- 
 age mind." 
 
 6— C, B. & Q. R. R. Co. V. 
 Camper, 199 111. 569. 65 N. E. 4481 
 reversing 100 111. ApQ. 21,
 
 964 FORMS OF INSTRUCTIONS. [§ 1444. 
 
 ner he did draw it were unknown to him; now if the jury believe 
 from the evidence that such hazards and dangers were known to said 
 plaintiff, or that he had had sufficient experience and knowledge of 
 the business as would make the dangers and hazards known to an 
 ordinarily prudent and intelligent man, then the verdict should be for 
 the defendants.'' 
 
 (c) The jui-y are instructed, that a servant, when he engages in 
 a particular employment, is presumed to do so Avith a knowledge of, 
 and a taking of the risks of its ordinary hazards, whether from the 
 carelessness of fellow servants in the same line of employment, or 
 from latent defects in the machinery and appliances used in the busi- 
 ness, or the ordinai'y dangers in the use of the same. 
 
 (d) If the jury believe, from the evidence, that the plaintiff (or 
 deceased) was engaged in the employment of the defendant when he 
 was injured, and that such injury was received while in the dis- 
 charge of his duty as such employe; and if the jury further believe, 
 from the evidence, that such injury was occasioned either by his own 
 negligence, carelessness or want of skill, or by that of his fellow serv- 
 ants, engaged in the same line of duty or service, as explained in 
 these instructions, then the jury should find for the defendant; pro- 
 vided, they further believe from the evidence, that the defendant 
 was not guilty of any lack of care or prudence in selecting or retain- 
 ing such fellow servants, to discharge the duties assigned to them. 
 
 (e) The jury are instructed, that where an employment is attended 
 with danger, a servant engaging in it assumes the hazard of the ordi- 
 nary perils which are incident to it; and if he receives an injury from 
 an accident, which is an ordinary peril of the service undertaken by 
 him, he cannot recover damages for such injury.^ 
 
 (f) The court instructs the jury. that the plaintiff, in entering the 
 employment of the defendant, assumed all the ordinary and usual 
 risks and hazards of service, and if the jury believe, from the evi- 
 dence, that the primary cause of plaintiff's injury was the fall of the 
 coal from- the roof of the mine, and that the danger of such fall was 
 one of the ordinai'y and usual risks and hazards of such service, then 
 the jui-y should find the defendant not guilty.** 
 
 (g) If you find (from the evidence) that these defects nnd these 
 dangers were knoAvn to the plaintiff, or that by the exercise of reason- 
 able diligence on his part, he ought to have known them, at the time 
 he went to work, and at the time he was injured, it will be your duty 
 to find a verdict for defendant in the case.^" 
 
 (h) If the jury believe (from the evidence) the employment was 
 daneernns, and that the defendant used proper precautions by notice 
 and instruction concerning it, the plaintiff cannot recover.^^ 
 
 7—1. C. R. R. Co. V. RnorlorlPr, Til. 9 (21), 54 N. E. 567. aff'g 75 Til. 
 
 90 111. Anp. 590 C59.'?), aff'd 199 111. Anp. 605. 
 
 184. 65 N. K. 21S. 10— Shoemakpr v. Brvant "L. & 
 
 8— T., W. & W. Rd. Co. V. Rlack. F«. Mill Co., 27 Wash. 637, 6S Pac. 
 
 88 111. 112. .*?80 (?,h:\). 
 
 9 — Cons. Coal Co. v. Bokamp, 181 11 — Hayes v. Bush & Denslow
 
 § 1445.] NEGLIGENCE— MASTER AND SERVANT. 965 
 
 § 1445. Risk Not Ordinarily Incident to Employment — Burden 
 of Proof. When the servant shows that the injury received was in 
 consequence of a risk not ordinarily incident to the employment, 
 growing out of the master's negligence, the burden is then upon the 
 masiter to show the servant knew and understood the increased dan- 
 ger.^2 
 
 § 1446. Assumed Risk — Circumstances to Be Considered, (a) In 
 this case, if you believe, from the evidence, that tlie plaintiff at or 
 before the time of the injuiy knew and appreciated the danger and 
 peril of the work in which he was engaged at the time of the injury, 
 and understood the same, and then chose to engage in the work W'hich 
 exposed him to such perils and danger, he cannot recover, and your 
 verdict should be not guilty. And in detei-mining the question 
 whether or not the plaintiff knew, appi'eciated and understood the 
 perils and dangei-s of the work in which plaintiff was engaged, you 
 will consider the evidence as to plaintiff's age, as to his previous ex- 
 perience with the machine in question or similar machinery, and all 
 other evidence bearing upon said issue. If, on the other hand, you 
 find and believe, from the evidence, that the defendant company and 
 its officers knew, or had reason to know, the peril and danger to which 
 plaintiff was and would be exposed while in the work and employ- 
 ment in which he was engaged at the time of the injury and did not 
 explain or give notice of such danger or peril to the plaintiff, and if 
 you further find that at the time of the injury, the plaintiff was not 
 guilty of negligence and was exercising ordinary care, and that from 
 his youth and inexperience he failed to know, understand or appre- 
 ciate, and in fact did not know, understand or appreciate the risk or 
 danger or peril to which he was exposed in the work in which he was 
 engaged at the time of the injuiy, and that in consequence he was 
 injured, then the defendant is liable, and you should find the defend- 
 ant guilty.^^ 
 
 (b) Had the plaintiff been warned to keep away from the shaft, 
 and of its dangerous nature when running? If he was notified of the 
 danger, did he comprehend and undei-stand it? If so, he cannot re- 
 cover. In determining whether he undei'stood the warning, if given, 
 you may consider the plaintiff's age at the time, his intelligence, his 
 
 Mfg. Co., 102 N. T. 648, 5 N. E. fittended with hazard and dansrer, 
 
 784 (785). but only in the sense in which 
 
 12 — King- V. Ford R. L. Co., 93 any employment requiring- the 
 
 Mirh. 172. 53 N. W. 10 (13). use of heavy machinery propelled 
 
 "The court followed almost ver- with steam is hazardous. . . . 
 
 bntim the rule laid down in Swo- Appellant proved that its fore- 
 
 boda V. Ward, 40 Mich. 423, and men and pressmen were in the 
 
 the instruction was correct." habit of warning the boys to keep 
 
 13 — Pressed R. Co. v. Reinneiger, out of d^^nger. The very theory 
 
 140 Til. 334 (340). 29 N. E. 1106. upon which both sides tried the 
 
 "We do not think the instruc- case and asked instructions, 
 
 tion is erroneous in assuminsr that namely, th^it the employe assumes 
 
 the machine wns a danererous one. 'ordinarv hazards and perils' of 
 
 It assumes that the work upon his emnloyment, implies that such 
 
 which appellee was engaged was 'hazards and perils' exist."
 
 966 FORMS OF INSTRUCTIONS. [§ 1447. 
 
 experience or want of experience and such like. In other words, you 
 may consider these circumstances to enable you to ascertain and de- 
 termine whether he fully understood and appreciated the danger. If 
 such warning was given, and he understood it, and continued to work 
 there after such knowledge, he cannot recover in this action.^-* 
 
 § 1447. Servant Does not Take the Risk of Dangers not Incident 
 to the Business — Duty of Master — Duty of Servant, (a) The court 
 instructs the juiy, that where a servant is injured by something not 
 incident to his employment, but by a temporary peril, to which he is 
 exposed by the negligent act of his employer, without any negligence 
 on the servant's part, he is entitled to recover damages, from the em- 
 ployer, on account of such injury. That Avhen a servant is employed 
 in a business, and at a place not dangerous, and the employer negli- 
 gently and carelesisly creates a peril at the place where the servant is 
 at work, and the servant is injured thereby, then the servant will be 
 entitled to recover for such injury, if he is himself without fault con- 
 tributing to such injury.^5 
 
 (b) It was the duty of the plaintiff, when he accepted employ- 
 ment from the defendant, to exercise ordinary care for his own safety, 
 and not knowingly to expose himself to unnecessary risks or dangers 
 connected with his said employment. And the court instructs the 
 jury that the plaintiff, when he accepted employment from the de- 
 fendant to operate the machine known as a ''joiner," assumed all the 
 risks incident to such employment; that is, such risks as naturally 
 arose out of, or w^ere necessarily connected with, said employment. 
 But he did not assume risks that were unknown to him, and which 
 were not incident to his employment, nor such risks which the de- 
 fendant could, by the exercise of ordinary care, have guarded against. 
 
 (c) The court instructs the jury that it is the duty of the de- 
 fendant, tlie A. Company, when it employed the plaintiff, to exercise 
 ordinary care in providing him with a reasonably safe machine or 
 joiner; that is, one in good order, and fitted for the purpose and 
 work for which it was intended. It was also the duty of the de- 
 fendant to exercise ordinary care in keeping the same in reasonably 
 safe condition for the use of the plaintiff while he was so engaged in 
 operating the said machine. 
 
 (d) The court instructs the jury that if they believe from the 
 evidence that the injury of the plaintiff complained of was caused 
 by the failure on their part to perform its duties, as defined in instruc- 
 tion No. 2, then the law is for the plaintiff, and the jury should so 
 find, unless the jury shall believe from the evidence that the plaintiff 
 himself failed to perform his duty, as defined in instruction No. 1, 
 and that for such failure on his part the accident would not have 
 
 14 — "This instruction was clearly banks v. Hapntzsche. 7."? 111. 236: 
 
 correct." Kinp v. Fnrfl River L. O. M. Co. v. Kitts, 42 Mich. 34, 3 
 
 Co.. 93 Mich. 172, .'■>3 N. W. 10 03). N. W. 240. 
 
 15— Wharton on Ne^. § 549; Fair-
 
 § 1448.] NEGLIGENCE— MASTER AND SERVANT. 967 
 
 happened ; in which latter event the law is for the defendant, and the 
 jury should so find. 
 
 (e) The court instnicts the jury that if they believe from the 
 evidence that the injury of the plaintiff complained of in his petition 
 was not the result of any defect in the machine joiner, but was the 
 result of a risk or danger as natui'ally arose or gi'ew out of the plain- 
 tiff's employment, and was naturally attended upon said employment, 
 then the law is for the defendant, and the jury should so find. 
 
 (f) The court instructs the jui-y that if the injury complained of 
 was not the result of a risk or danger incident to said employment, 
 but could have been prevented by the exercise of ox-dinaiy care on 
 the part of the defendant in the performance of its duty, as defined 
 in instruction No. 2, then the law is for the plaintiff, and the jury 
 should so find, unless the jury shall also believe from the evidence 
 that by the exercise of ordinary care on his part the plaintiff could 
 have prevented said injury; in which latter event the law is for the 
 defendant, and the juiy should so find.^^ 
 
 § 1448. Servant Does Not Assume Extraordinary Perils or Risks. 
 The court instructs the jury that while it is the law that where an 
 employment is attended with danger, the servant engaging in it as- 
 sumes the measure of ordinary perils which are incident to it, this 
 applies only to perils or risks ordinarily incident to the service and 
 not to those which are exti'aordinary and which did not exist at the 
 time the servant engaged in the master's business, and which the 
 servant did not subsequently assume.^'' 
 
 § 1449. Servant Voluntarily Assuming Duty Not Arising Under 
 His Employment. The court instructs the jury that if you believe it 
 was not a duty arising under plaintiff's employment for him to look 
 after the regulating and supplying of water to the boiler of engine 
 44, but if you believe that he voluntarily assumed the matter of look- 
 ing after and regulating such supply of water, and if you believe fur- 
 ther that the accident in question was caused or directly contributed 
 to by negligence on his part, either in the fact of the assumption of 
 such matter, or in the manner of his looking after the regulating such 
 supply of water, then you ^^^ll find for the defendant.'^ 
 
 ^ 1450. Employe Voluntarily Taking Place He Is Not Required to 
 Take. The court instructs the jury that if an employe in the dis- 
 charge of the duties in his line, voluntarily takes a place which he is 
 not required to take, he assumes the risk which may attach to such 
 
 16 — This series of instructions ap- fective condition of the joiner or 
 
 proved in Reiser v. Southern P., neerlisence on the part of appel- 
 
 M. & L. Co., 114 Ky. 1, 69 S. W. lant." 
 
 lOS.^i (1086). 17— Wrisley v. Burke, 106 111. 
 
 "We are of opinion that thfi in- App. 30 (31), aff'd 20,3 111. 250. 67 
 
 structions submitted to the jury N. E. 818. 
 
 the real issues raised by the plead- 18 — Int. & G. N. R. Co. v. Wal- 
 
 ing-s; that is. whether appellant's ters. — Tex. Civ. App. — , 80 S. 
 
 Injury was the result of the de- W. 668 (669).
 
 968 FORMS OF INSTRUCTIONS. [§ 1451. 
 
 place, and which is greatei* than the risk attached to the place he may 
 have taken b}' reason of his employment.^'' 
 
 § 1451. Servant's Knowledge of Facts Which Would Make His 
 Own Act Dangerous. The court instructs you that, if you believe, 
 from the evidence, that the plaintilf knew of the removal of the dirt 
 and debris from the dump pile at or near the place where the plain- 
 tiff fell, or by the exercise of ordinary care could have known of the 
 removal of dirt and debris from the dump pile, and, if the jury also 
 believe, from the evidence, that the plaintiff failed to exercise ordi- 
 naiy care in going out from the jDlace where he was injured in the 
 night time then your verdict must be for the defendant.-" 
 
 § 1452. Duty of Servant to Apprise Himself of Dangers of Ma- 
 chinery, (a) If you find that the plaintiff engaged with the de- 
 fendant in the duty of oiling the machinery of its sa^^^Ilill without at 
 the time fully understanding or comprehending the dangei's incident 
 to his business, yet if you find that betiveen the time of his employ- 
 ment and the time he was injured he learned of these dangers or in 
 the course of his employment ought to have known of the liability 
 to accident by being entangled in the machinery, as he was, it is your 
 duty to find that he assumed the risk of such injury as incident to his 
 employment, and you cannot attribute the accident to the negligence 
 of the defendant. 
 
 (b) It is the duty of the plaintiff to look at the machinery about 
 which he is employed to work, and to apprise himself of any danger 
 afforded by the machinery itself, and which he could have discovered 
 or ought to have discovered by a proper examination thereof, or by 
 the use of his sight and other senses; and if he failed during the 
 course of his employment, and while engaged in the task of oiling 
 the machinery to apprise himself of the dangers which he ought to 
 have seen then the plaintiff was not in the exercise of ordinary cai-e 
 or prudence, and it is your duty to so find. That you may consider 
 as far as you find it applicable.-^ 
 
 § 1453. Duty of Servant to Look Out for Patent and Obvious De- 
 fects, (a) The jury are instructed that where the party is of ma- 
 ture age, and an experienced employe, the duty does not rest upon 
 the master to instruct and notify him of the patent and obvious po- 
 sitions of structures about which he may be called on to work. It is 
 his duty to look out for them. 
 
 ig—f^o. K. Ry. Co. v. Sage. — mony in tho case. The appellant 
 
 Tex. Civ. App. — , 80 S. W. 1038 was, therefore, entitled to have 
 
 (1039). them g-iven to the jury without 
 
 20 — Iroquois Furnaee Co. v. Mc- modification. It is plainly the duty 
 
 Crea, 91 111. App. 337 (341), aff'd of the court, and not of the jury. 
 
 191 III. 340, 61 N. K. 79. to decide when a lepral pronosi- 
 
 21 — Guina'rd v. Knnpp, S. <fe Co., tion is applicable to the evidence. 
 
 95 Wis. 482, 68 N. W. 625 ('627). To give the jury a legal nrono- 
 
 "The instructions above nuotcd sition, nnd s^y to them, as the 
 
 stated correct propositions of law, court did. 'Ton mav use this as 
 
 and were applicable to the testl- far as you find it applicable,'
 
 §1454.] NEGLIGENCE— MASTER AND SERVANT. 969 
 
 (b) The jury are instructed to find for the defendant if they 
 find from the evidence that the car was too close to the warehouse, 
 and that its close proximity thereto and the danger thereof was 
 known to the plaintiff, or that the proximity of said track to said 
 warehouse was apparent, and the danger to plaintiff open and obvious, 
 and that the position of said track and said warehouse in reference 
 to each other was seen by the plaintiff, before his injury, in time to 
 have avoided the same, then you are instructed that plaintiff assumed 
 the risk of such injurj^, and, if you so believe, your verdict will be for 
 the defendant. -- 
 
 (c) It is the duty of the servant to exercise care to avoid injuries 
 to himself. He is under as great obligation to provide for his own 
 safety from such dangers as are known to him, or are discernible by 
 ordinary care on his part as the master is to provide for him. He 
 must take ordinaiy care to learn the dangers which are likely to beset 
 him in the service. He must not go blindly to his work, where there 
 is danger. He must inform himself. This is the law everywhere.-^ 
 
 (d) The court instructs you that if there be risk or danger, and 
 that such risk or danger is patent and obvious to the employe, no no- 
 tice thereof is necessaiy.-^ 
 
 § 1454. Effect of Plaintiff's Knowledge that Window Was of 
 Great Weight, (a) If you believe from the evidence that the said 
 window did get out of the control of the plaintiff and fall by reason 
 of its great weight, and that the plaintiff knew of the great weight of 
 said window, or by the exercise of reasonable and ordinary prudence 
 on her part would have known of the great weight of said window, 
 then she assumed the risk and cannot recover. 
 
 (b) The court instructs the jury that if you believe from the evi- 
 dence that the plaintiff had been in the employment of the defendant 
 for several weeks and had been about and in the said pi'emises for 
 such time, and was familiar mth the said window, and its weight, 
 the method of raising and lowering it, the method of propping or 
 holding it up by a stick, and the dangens, if any, are shown by the 
 evidence, incident to raising or lowering said window, or if you be- 
 lieve from the evidence that such time was sufficient to have enabled 
 a person of ordinary observation to become familiar with such condi- 
 
 comes very near being- an abdi- the proper functions of the court 
 cation of the functions of the and the jury, it seems very plain 
 court. Under such an instruction that the court erred in leaving- it 
 the jury is given full license to de- to the jury to decide whether the 
 cide thnt the proposition has no instructions were applicable to the 
 application to the case, and dis- case. A similar remark was dis- 
 regard it entirelj'. The charge approved by this court in Duthie 
 should contain only such propo- v. Town of Washburn, 87 Wis. 
 sitinns as are to be anplied to the 231. 58 N. W. 380." 
 evidence in the case. The court 22 — G., H. & S. A. Ry. Co. v. 
 sa-'-s to the jury, in substarr-e; Mortson. 31 Tex. Civ. App. 142. 71 
 'Th'->af> are the nropositions of law S. W. 770 ('771). 
 
 applicable to the evidence. Take 23 — Russell C. C. Co. v. Wells, 
 
 them, apply them to the case, and 96 Va. 416, 31 S. E. 614 (61ii). 
 
 return your verdict.' Such being 24 — Swift & Co. v. Rutkowski,
 
 970 FORMS OF INSTRUCTIONS. [§ 1455. 
 
 tions, then, in that state of the proof, you are instructed that she 
 assumed the risk incident to her undertaking in lowering the said 
 window, and you should in that state of the proof find the defendant 
 not guilty. 
 
 (c) The court instructs the jury that if you believe from the evi- 
 dence that the plaintiff could by the exercise of ordinary care and 
 prudence have avoided the injury, she cannot recover and you should 
 in that state of the proof find the defendant not guilty.-^ 
 
 § 1455. Prior Knowledge of Condition of Ditch by Employe of 
 Municipal Corporation. If you believe from the evidence that the 
 plaintiff did know, or, by the exercise of ordinary care on his part, 
 might have known, of the condition of the bank or sides of the ditch, 
 or if you further believe from the evidence that he had as good an 
 opportunity of knowing of the condition of the bank or sides of said 
 ditch as the defendant, then in law he is estopped from recovering in 
 this action, and it is your duty to find for the defendant.^^ 
 
 § 1456. Danger of Falling into Chute or Excavation — When As- 
 sumed. The defendant has pleaded that the plaintiff assumed the 
 risk of being injured by the accident in question. Upon this point I 
 charge you that if you believe from the evidence that the peril of 
 falling into the chute or excavation referred to in the evidence was 
 a peril incident to the employment, and was not produced by a want 
 of ordinary care on the part of the defendant, then it is a risk as- 
 sumed by the plaintiff, and he cannot recover. But if you believe 
 from the evidence that the danger of suffering such an accident was 
 not incident to his employment, and could have been guarded against 
 by the exercise of ordinary care on the part of the defendant, then 
 plaintiff did not assume the risk of such an accident, and if he was 
 injured without fault on his part, then he is entitled to recover.^''' 
 
 § 1457. Carrying Grlass Through Passageway Which Servant Knows 
 to Be Obstructed. It is the law that an employe assumes all the risk 
 of his employment. If you find from the evidence that said glass 
 broke by reason of a defect therein, and that it was one of the risks 
 incident to plaintiff's calling, or if you find that plaintiff knew that 
 said passageway was obstructed, and that with such knowledge he 
 proceeded to carry said glass through said passageway, and that said 
 glass was broken by said obstructions, then you should find that plain- 
 tiff assumed the risk of carrying the glass the way and where he did, 
 and your verdict should be for tlie defendant.-^ 
 
 § 1458. Knowledge of Servant as to Uncovered Electric Wires. If 
 the plaintiff had actual knowledge that the uncovered wires were at 
 the place where he was injured, thait destroys his right of action. If 
 
 167 111. 156 nnS), 47 N. E. 362, 27— Downey v. Gemini Min. Co.. 
 
 rev'ff 67 111. App. 209. 24 Utah 431, 68 Pac. 414 (416), 91 
 
 25— Maoon Co. Tel. Co. v. West, Am. St. 79R. 
 
 116 111. App. 43.=) (438). 2S— Kennard v. aro.=!.=!man, — 
 
 26— I^a Ralle v. Kostka. 190 111. Neb. — , 89 N. W. 1025 (1027). 
 130 (136), 60 N. E. 72.
 
 § 1459.] NEGLIGENCE— MASTER AND SERVANT. 971 
 
 he ought to have known them, or been on his guard against them, the 
 result must be the same.^^ 
 
 § 1459. Assumption of Risk by Employes of Street Car Company — 
 Poles Too Near Track, (a) If from the evidence you believe the 
 plaintift: was injured, but that his injuries resulted from conditions 
 and risks which were the ordinary incidents of the service and work 
 in which he was engaged, and were not due to any negligence of de- 
 fendant in the matters recited in the paragraph above, then -in such 
 state of facts, if any, you will find for the defendant, as the plaintiff 
 in entering into defendant's employment assumed all the ordinary 
 risks of said business. 
 
 (b) You are instructed that if you believe fi'om the evidence that 
 the plaintiff was knocked off the car by the pole as alleged by him in 
 his petition, and that the pole was so near the track that in the 
 maintenance of same the receiver failed to use that degi'ee of care 
 that would have been used and exercised by ordinarily prudent per- 
 sons under the same or similar circumstances, then you are in- 
 structed that this would not be one of the risks ordinarily incident 
 to his employment. 
 
 (e) If from the evidence you believe the plaintiff was injured by 
 a defective pole as alleged by plaintiff, but should you also believe 
 that prior to the time of said accident he knew of such defect, if any, 
 in said pole, and with such knowledge remained in the employ of the 
 company, or if from the evidence you believe that he must have 
 known of such defect, if any, in the pole, in the exercise of ordinary 
 care in the performance of his own duties as conductor, then in such 
 state of facts if any, the risk of injury from said pole would be one 
 of the assumed risks of the employment, and plaintiff could not re- 
 cover.^" 
 
 § 1460. Duty of Servant as to Examination of Grip Car for De- 
 fects, (a) The jury are instructed, as a matter of law, that an 
 employe himself must use due care and caution to avoid injury; and 
 if he voluntarily exposes himself to any danger that he knew or by 
 reasonable attention or the exercise of ordinary prudence might have 
 known, he thereby assumed all lisks and cannot recover for any in- 
 jury resulting from his own acts. 
 
 (b) The court instructs the jury that it w^as the duty of the 
 plaintiff, before starting the car, to examine thofte parts of the gi-ip 
 ear which appertain to the grip and brakes, and if he failed to do so, 
 and his failure directly contributed to the injury, he cannot recover 
 for any injuT-y occasioned to him because of any defect in the grip, 
 brakes or appurtenances thereof. 
 
 (c) If the plaintiff, by the use of ordinary care, could have dis- 
 covered that the wrecking ci'ew had not properly repaired the car, 
 
 29— Indiana I. &: I. R. Co. v. 30— Houston El. Co. v. Robinson, 
 Bundy, 152 Ind. 590, 53 N. E. 175 — Tex. Civ. App. — , 76 S. W. 209 
 CISO). (210).
 
 972 FORMS OF INSTRUCTIONS. [§ 1461. 
 
 and if he failed to use such care, and that his failure so to do con- 
 tributed directly to the injury, he cannot recover, and the burden of 
 proving the use of such care is on the plaintiftV^^ 
 
 § i461. Assumption of Risk in Grinding Planer Tool upon Emery 
 Wheel. If you find from the evidence that the plaintiff at the time 
 of his injuiy knew that the said manner of grinding said planer tool 
 upon said emery wheel in the way it was ground at the time of his 
 injury was dangerous, or if he must necessarily during the course of 
 his employment have known said fact, then and in such case the 
 plaintiff, in attempting to so grind or sharpen said tool with such 
 knowledge, assumed the risk of being injured thereby, and, if you 
 so find, your verdict should be for the defendant, ^- 
 
 § 1462. Using Defective Gas Pipe as Lever. The count instructs 
 the jury if they believe that the defect in the gas pipe was known 
 to the plaintiff, and the dangers of its use in its defective condition 
 was also known to the plaintiff, and that the knowledge of the plain- 
 tiff on the point above mentioned was equal or superior to the knowl- 
 edge of the foreman on the same subjects, and you believe, from 
 the evidence, that a reasonably careful and prudent man would not 
 have used said gas pipe under the same or similar circumstances, then 
 you are instructed that the plaintiff cannot recover, and they must 
 find for the defendant, and in that case it makes no diffei-ence whether 
 a promise to furnish a wooden lever was made or not.^^ 
 
 § 1463. Assumption of Risk in Unloading Timbers. If you believe 
 from the evidence that the dangers, if any, incident to vinloading the 
 timbers under the circumstances existing at the time of his injuries, 
 if any were received, were known to plaintiff, or so open and obvious 
 that he must have known them, if any, at the time he attempted to 
 unload said timber, then you are charged that plaintiff assumed the 
 said risk, if any, and you will find for defendant.-^* 
 
 § 1464. Carrying Too Heavy a Piece of Timber — Employing In- 
 sufficient Help — Assumed Risk, (a) You are instructed that if you 
 believe from the evidence that the foreman of defendant instructed 
 plaintiff and three other employes to pick up and carry a piece of the 
 lumbei', and that plaintiff complained to said foreman that the same 
 was too heavy and large for himself and the other employes to carry 
 it with safety, and that the foreman of defendant ordered plaintiff 
 
 "The charges present the issue 31 — W. C. St. R. R. Co. v. 
 
 of the assumption of the ordinary Dwyer, 162 111. 4S2 (490), 44 N. E. 
 
 risks incirlent to the work of oper- 815, aff'g 57 111. App. 440. 
 
 ating- cars upon the tracks of 32— Gulf. C. & S. F. Ry. Co. v. 
 
 street railway companies, and as Archainb:iult, — Tex. Civ. App. 
 
 abstract propositions of law they 94 g -y^ 1108. 
 
 3.3— T. C. R. R. Co. v. North, 97 
 
 are correct. Int'l & G. N. Ry. 
 
 Co. V. Empry, — Tex. Civ. App j,, . ^^, ...„„ 
 
 — , 40 S. W. 149; M., K. & T. ■^"- ^PP- ^^^ ^^-'^'• 
 
 Ry. V. Hannip, 91 Tex. 347, 43 S. 34— "RryRn v. Tnfl & G. N. R. 
 
 W. 508; Gnlvpston, H. & S. A. Ry. Co.. — Tpx. Civ. App. — . 90 S. 
 
 Co. V. Pitts. — Tex. Civ. App. — , W. 693 (697). 
 
 42 S. W. 255."
 
 § 1465.] NEGLIGENCE— MASTER AND SERVANT. 973 
 
 and the other three employes to pick it up and carry it, and stated to 
 plaintiff that they could caiTy it easily enough, that it was perfectly 
 safe for them to carry it, or that he would stand the consequences, 
 and that plaintiff was inexperienced and relied upon said statements 
 of said foi'eman, if any, and that said piece of lumber was too heavy 
 for said four employes to cai-ry it with reasonable safety, and that 
 while plaintiff and the other three employes were carrying the same, 
 and by reason of the weight of the same being too great, one of the 
 men "gave down" and that an extra weight was thereby thrown up- 
 on plaintiff and that by reason thereof plaintiff was injured, substan- 
 tially as alleged in his petition, and that the foreman of defendant 
 was guilty of negligence in ordering said plaintiff and the other three 
 employes to carry said piece of lumber under the facts and circum- 
 stances of this case, or that said foreman failed to provide a suf- 
 ficient number of men to carry said piece of lumber with reasonable 
 safety, and that such failure, if any, constituted negligence, and that 
 said negligence, if any, was the proximate cause of the injury to 
 plaintiff then you should find your verdict for plaintiff, unless you 
 find from the evidence that plaintiff had assumed the risk, as herein- 
 after set forth. 
 
 (b) If \x)u believe from the evidence that plaintiff was an old and 
 experienced hand in the pai'ticular business of caiTjang said lumber, 
 and that the danger, if any, in carrying the same, was as equally open 
 to the observation and knowledge of plaintiff as it was to the fore- 
 man of defendant, then plaintiff assumed the risk, and your verdict 
 should be for defendant. 
 
 (c) In this connection you are, however, instinieted that if you be- 
 lieve from the evidence that the plaintiff complained to the defendant 
 ■that said piece of lumber was too heavy for himself and the other 
 three employes to carry, and that the foreman of defendant stated to 
 him that said four men could carrj'^ it easily enough or that said four 
 men could cany it safely, or stated that he, the said foreman, would 
 stand the consequences, then the said plaintiff was entitled to rely up- 
 on the supposed better knowledge and statements of his employer, and 
 that said plaintiff did not assume the risk and danger incident to the 
 carrying of said piece of lumber, unless you believe from the evidence 
 that the danger or risk, if any, was so patent or obvious that an or- 
 dinarily prudent person would have declined to have helped to carry 
 said piece of lumber under the facts and circumstances of this case.^^ 
 
 § 1465. Failure to Use Precautions Against Known Danger, (.t) 
 If the jury believe from the evidence that it was dangerous for R. 
 to stand upon the strand or messenger cable which made a perfect 
 circuit between any charged electrical agency in the hands of R. and 
 the ground, and that R. knew or by the exercise of ordinary care 
 would have known, that standing upon said messenger cable was 
 
 35— Haywood v. G., H. & S. A. _ Ry. Co., — Tex. Civ. App. — , 85 
 
 S. W. 43.3 (434).
 
 974 FORMS OF INSTRUCTIONS. [§ 1465. 
 
 dangerous, and if the juiy further believe from the evidence that a 
 man of ordinary prudence under such circumstances as surrounded 
 R,, would not have stood upon said messenger strand or messenger 
 cable while holding a telephone wire suspended over electric wires, 
 then the jury must find the defenda-r;,*-, not guilty. 
 
 (b) If the jury believe from the evidence that a man of ordinaiy 
 prudence exercising ordinary care for his own safety under such cir- 
 cumstances as surrounded R. at the time of this accident would have 
 worn and used a safety belt, and that R. did not at the time of this 
 accident wear a safety belt, and if the jury further believe from the 
 evidence that the death of R. would have been prevented if the de- 
 ceased had worn a safety belt, then the jury must find the defendant 
 not guilty.^^ 
 
 (c) If you believe from the evidence that the employes of de- 
 fendant in its roundhouse were in the habit of leaving the coal shovel 
 or scoop, sometimes with the scoop of the shovel under the coal board, 
 sometimes under the coal in front of the coal board, sometimes on top 
 of the coal, and sometimes lying in the gangway between the engine 
 and engine tender or tank, and that the plaintiff knew of the custom, 
 or that, with ordinaiy circumspection which a prudent man would 
 use in the performance of his particular duty, he would have known 
 of that custom, and that at the time the plaintiff was injured in at- 
 tempting to board defendant's engine in its roundhouse, as claimed 
 by him, the said shovel was so left by some of defendant's employes 
 in the gangway of said engine; and if you further believe that under 
 such circumstances, in 'getting ui3on one of defendant's engines in its 
 roundhouse at S. A., as claimed by plaintiff, for the purpose of put- 
 ting oil cans in the oil box upon said engine, tank or tender, he 
 stepped upon said shovel and was injured thereby — then in such case 
 plaintiff assumed the danger to himself in stepping upon said shovel 
 under such circumstances, if he did so step upon the same, and in 
 such case you will return a verdict in favor of defendant.^'^ 
 
 36— Commonwealth E. Co. v. rendering the place his master has 
 
 Rose, 114 111. App. 181 (184). assigned him to work dangerous 
 
 37 — Claudius v. West End H. A. or unsafe. In the latter class of 
 
 Co., — Tex. Civ. App. — , 84 S. W. cases the servant owes no duty 
 
 254 (256). of inspection of defendant's prem- 
 
 "The principles stated in the ises. But it is the master's duty 
 
 preceding part of the special to exercise ordinary care to see 
 
 charge upon which the part copied that the premises where the 
 
 is premised are such as are gen- servant is put to work are kept 
 
 erally applicable to the system or reasonably snfe, and if the prem- 
 
 rules and methods adopted by the ises were rendered dangerous by 
 
 master in conducting or carryin.g obstacles in the way, of which the 
 
 on a complex and dangerous busi- master knew, or would have 
 
 ness or in operating intricate and known by the exercise of ordi- 
 
 dangerous machinery, and not nary care, and it persisted in nl- 
 
 such as are ordinarily applied in lowing such obstacles to be placed 
 
 determining the master's negli- there, it would be its duty under 
 
 gence vel non in cases where the such circumstances to warn its 
 
 Injury to the servant is caused servants of the danger, unless 
 
 by simply placing or leaving an from 'actual knowledge, experi- 
 
 obstruction or object in his way, ence or acquaintance with the
 
 § 1466.] NEGLIGENCE— MASTER AND SERVANT. 975 
 
 S 1466, Servant Knowing Hazards, Cannot Recover on Ground 
 There ,Was a Safer Way of Conducting Business. The court in- 
 structs the jury if they believe from the evidence that the plaintiff 
 knew the hazards of his employment as the business was conducted 
 and was injured while engaged therein, he cannot maintain an action 
 against the defendant for the injury merely on the ground that there 
 was a safer mode in which the business might have been conducted, 
 the adoption of which would have prevented the injury.^® 
 
 § 1467. Continuing Work in Dangerous Place After Notice of De- 
 fect to Master, (a) The court instructs the jury that an employe 
 who continues in the service of his employer after notice of a defect 
 increasing the danger of the service, assumes the risk as increased by 
 the defect, unless the master promises to remedy the defect; and in 
 the event that the master does so promise, the servant may, while rely- 
 ing upon such promise, remain in the service of the master only for 
 such a time thereafter as would be reasonably sufficient to enable 
 the master to remedy the defect, and if the master does not, within a 
 reasonable time after such promise, remedy the defect, then and in 
 such event, if the servant continues still in the employ of the master, 
 he assumes the risk as increased by the defect; and the court, there- 
 fore, instructs the jury that if they believe, from the evidence in this 
 case, that the standing upon which the plaintiff woi'ked while in the 
 employ of the defendant was defective, that the defendant promised 
 to remedy the same but failed to do so within a reasonable time after 
 such promise, and that the plaintiff continued thereafter to work for 
 the defendant knowing that the defendant had failed to remedy the 
 defect within a reasonable time after such i^romise, then and in such 
 event, the court instructs the jury that the plaintiff assumed the ad- 
 ditional risk of the defect in the condition of the floor, and if the jury 
 so find, they will return their verdict for the defendant.^® 
 
 premises the servant knew at the business might have been adopted, 
 
 time of the injury, or might have the adoption of which would, have 
 
 known, of the presence of the ob- prevented the injury. A defense 
 
 jeet or obstacle rendering the of that kind stated generally is a 
 
 place dangerous for him to carry good one in a proper case. See 
 
 on his work. G.. H. & S. A. Ry. Simmons v. Chicago & Tomah Ry. 
 
 Co. V. Brown, 33 Tex. Civ. App. Co., 110 111. 340, where it is said 
 
 589, 77 S. W. 833. and authority (p. 347): 'If a servant, knowing 
 
 cited: Choctaw O. & G. Rv. Co. v. the hazards of his employment as 
 
 Mcr»nde. 191 U. S. 65. 24 Sun. Ct. the business is conducted, is in- 
 
 24, 48 L. Ed. 96; Chicago & A. R. R. jured while engaged therein.^ he 
 
 V Howell, 208 III. 155, 70 N. E. cannot maintain an action against 
 
 ^^■'l _, the master for the iniurv merelv 
 
 38— Guaranty Cons. Co. V. on the ground that there was a 
 
 Brooker, 93 Til. Apn. 272 (275). safer mode in which the business 
 
 The instruction invoked the de- might have been conducted the 
 
 fen.se that if the nlnintiff knew the adoption of which would 'bave 
 
 hnzard of his employment in the prevented the injui-y ' " 
 
 manner the business he was en- 39—111. S. Co. v. Mann, 170 n 
 
 gaged in was conducted, ho could 200 C204V 48 N. E. 417, 62 Am St 
 
 not recover merely because a 370. 40 !>. R. A 781 ' " 
 
 safer method of conducting the "The jury should h.ave been in-
 
 976 FORMS OF INSTRUCTIONS. [§ 1468. 
 
 (b) K the jury find from the evidence that the defendant's ship- 
 ping room, at or about the elevator hole mentioned in the evidence, 
 was dark and unlighted; and if the jury further find from the evi- 
 dence, that plaintiff before his injury knew that said room was dark 
 and unlighted, and that there was some risk or danger of falling into 
 the elevator hole, by reason of said condition of said room, while un- 
 dertaking to use the elevator in the discharge of the duties of his em- 
 ployment; and if the jury find from the evidence that defendant was 
 maintaining said elevator opening in said floor without causing the 
 same to be effectually bari-ed or closed by railing, gate or other con- 
 trivance for the prevention of accidents therefrom; and if the jury 
 find from the evidence that the plaintiff knew before his injury that 
 defendant was maintaining said elevator opening without such guai'd 
 or protection being closed; yet if the jury further find from the evi- 
 dence that said condition of said room and elevator opening and the 
 danger arising therefrom was not such as to threaten immediate in- 
 jury to plaintiff while in defendant's service in the discharge of the 
 duty of his employment, and was not such that a person of ordinary 
 prudence, while exercising care and caution, would not have under- 
 taken to have remained in defendant's service^ and discharge the 
 duties of his employment, — then the fact alone that plaintiff con- 
 tinued in defendant's service under the circumstances will not of 
 itself defeat this action.^° 
 
 § 1468. Operating Dangerous Machine After Promise of Master to 
 Supply Device for Lessening Danger, (a) The operator of a danger- 
 ous machine, who has received from his employer a promise to sup- 
 ply a device calculated to lessen the danger must, if he elects to oper- 
 ate the machine before the device is attached, operate his machine 
 with due and proper care, considering its unprotected condition, in 
 order that he may avoid injury. Therefore, it was the duty of the 
 plaintiff, while he was relying upon the promise to attach the spread- 
 er or guard, if such promise was made him, to handle the machine 
 with reasonable care, in view of the fact that the spreader or guard 
 had not been attached; and if he did not so handle it, he forfeited 
 the promise, and cannot now recover for his injury.*^ 
 
 (b) A general rule of law is that a person working with a de- 
 fective or unguarded machine, pnd without complaint, and knowing 
 of the dangers of the same, assumes the danger of the defect or un- 
 guarded part; but there is no longer any doubt that, where an oper- 
 ator of machinery has expressly promised to repair a defect, the 
 workman does not assume the risk of an injuiy caused thereby, with- 
 in such a period of time after the promise as would be reasonably 
 
 structed that the law was as "This instruction was rondpred 
 stated in the instruction, which necessary to meet the plea of con- 
 should have been priven, and it tributory neR-lifjfence, and it does 
 was error to refuse it." not seem to unfairly state the 
 
 40 — Wendler v. People's H. F. case." 
 
 Co., 165 Mo. 527. 65 S. W. 737 (740). 41— Crooker v. Pac. Lounge &
 
 § 1468.] NEGLIGENCE}— MASTER AND SERVANT. 977 
 
 allowed for its performance; nor, indeed, is any express promise or 
 assurance from the master necessary. It is sufficient that the work- 
 man may reasonably infer that the matter will be attended to. So 
 you are instructed that if the plaintiff, at the time of his employment 
 and at the time of the accident, saw the danger from the lack of the 
 guard, and complained of the same to the foreman, and the foreman 
 promised to put on a guard, and the plaintiff w^ent to work, and con- 
 tinued at work, on the promise, and you further find that the danger 
 was not so imminent and immediate that a reasonably prudent man 
 would not go to work or continue at work on the saw, and that at the 
 time of the accident the plaintiff was relying upon the foreman's 
 promise to place on a guard, then you are instructed that the plaintiff 
 did not assume the risk and danger of an injury resulting from the 
 lack of a guard.*^ 
 
 (e) The court instructs the juiy that when an employer, or his 
 superintendent having authority to remedy defects in machineiy, is 
 notified by the servant of the employer of defects in machinery that 
 render the service, which such servant is engaged to perform, more 
 hazardous, and such employer or superintendent thereupon expressly 
 promises to make the needed repairs, the servant may rely on such 
 promise, and may, if he so relies on such promise, continue in the em- 
 ployment a reasonable time to permit the performance of such prom- 
 ise without being guilty of negligence in so remaining in such employ- 
 ment; and if in such ease during such time any injuiy results from 
 such defects to the servant while he is in the exercise of ordinary 
 care and caution for his own personal safety from the negligence of 
 his employer in manner and form as charged, the sei'vant may re- 
 cover from the employer his damages for such injury, except when 
 the danger is so imminent that no prudent person would undertake to 
 perform such service under such conditions.'*^ 
 
 (d) The court instructs the jury that if you believe, from the 
 
 M. Co., 34 Wash. 191, 75 Pac. 632 man v. 111. Steel Co., 95 Wis. 6, 
 
 (635). 69 N. W. 993. 60 Am. St. 66." 
 
 "These principles of law are 43 — Taylor v. Felsing-, 164 111. 331 
 
 amply sustained by courts and (332). 45 N. E. 161. 
 
 elementary writers of the hig-h- "This instruction states an ab- 
 
 est authority. See Indianapolis stract proposition of law. That 
 
 & St. L. Ry. Co. V. Watson, 114 form of instruction is not ap- 
 
 Ind. 20, 14 N. E. 721, 15 N. E. 824, proved, and it is regarded much 
 
 5 Am. St. 578." better that the court should ap- 
 
 42 — Crooker v. Pac. L. & M. Co., ply rules of law to the evidence 
 
 supra. in the case, but a judgment will 
 
 "This instruction is sustained not be reversed for the failure 
 by the principles of law announced to make such application. The 
 in the former opinion and the principle of law is correctly stated 
 authorities therein cited. To the in this instance, and the giving: 
 same effect, see. further, .Tnhnson of such instruction is not ei-^-nr 
 V. Anderson & Middletnn T,umher where it is not calculi t^d to mis- 
 Co.. 31 Wash. 554, 72 Pac. 107; In- lead the iury. (Peenles v. l\Tc- 
 dianapolis & St. L,. Pv. Co. v. Kee. 92 111. 397; Betting v. Hoh- 
 Watson. 114 Tnd. 20, 14 N. E. 721. bett. 142 id. 73, 30 N. E. 1048; C, 
 15 N. E. 824, 5 Am. St. 578; Erd- B. & Q. R. R. Co. v. Dickson, 143 
 
 111. 368, 32 N. E. 380."
 
 978 FORMS OF INSTRUCTIONS. [§ 1468. 
 
 evidence, that the pl-aintiff while in the exercise of ordinary eare and 
 caution for his own personal safety was injured in consequence of the 
 defective condition of the machinery used by the defendants, as al- 
 leged in the second count of the declaration, if the jury believe, from 
 the evidence, that the same was so defective; and if they further be 
 lieve, from the evidence, that the plaintiff repeatedly and shortly be- 
 fore receiving such injury called the attention of the defendant's 
 superintendent to said defects, if any, and that said superintendent 
 there had authority to remedy said defects, if any, and that there- 
 upon said superintendent repeatedly, and shortly before the injury, 
 promised said plaintiff that said defects, if any, should be remedied, 
 and that said plaintiff, relying upon such promises remained in the 
 employ of said defendants until the injury as aforesaid, and if the 
 jury further believe, from the evidence, that the danger from such 
 defective machinery, if any, was not so imminent that no prudent 
 person would have undertaken to perform the service required of the 
 plaintiff, then by so remaining for a reasonable time thereafter the 
 plaintiff would not assume the risks incident to such defective ma- 
 chinery, if same was defective, during such reasonable time.*'* 
 
 (e) The court instructs the jury that, if you believe, from the 
 evidence in this case, that the hay-cutter was defective, as charged in 
 the declaration, and that the plaintiff notified the defendants of such 
 defect, and if you further believe, from the evidence, that stich de- 
 fect, if any, rendered the services which plaintiff was engaged to per- 
 form more dangerous and that the defendant thereupon promised the 
 plaintiff that he, the defendant, would have said hay-cutter repaired; 
 and if you fui'ther believe, from the evidence, that the plaintiff there- 
 upon relied upon the said promise of the said defendant to repair said 
 hay-cutter, and that the said plaintiff continued in his said employ- 
 ment a reasonable time to permit the defendant to repair said hay- 
 cutter, in such case your verdict should be for the plaintiff, unless 
 you further find from the evidence that the danger by reason of said 
 defect, if any, was so great that no prudent person would have used 
 3aid hay-cutter in its then condition, as shown by the evidence.*^ 
 
 (f) The court instructs the juiy that if they believe, from the 
 evidence, that the plaintiff complained of the defective condition of 
 the machinery which he was operating, and that the defendant prom- 
 ised to have the defects in said machinery remedied, but failed so to 
 
 44 — Taylor v. Felsiner, supra. servant may continue in the em- 
 
 45 — Donley v. Douprherty, 75 111. ployment a reasonable time to 
 
 App. ?.79 (381), aff'd 174 111. 582, 51 permit the performance of a 
 
 N. K. 714. promise in that regard without 
 
 "The Supreme Court say: 'It is being- guilty of negligence, and if 
 
 now uniformly stated by text writ- an injury results therefrom he 
 
 ers that where the master, upon may recover, unless the danger is 
 
 beinjr notified by the servant of so imminent that no prudent per- 
 
 defects that render the service he son wonld undertake to perform 
 
 is engaged to perform more haz- the service.' To the same effect 
 
 prdous, expressly promises to is Swift & Co. v. Madden,. 165 
 
 make the needejj repairs, the 111. 47, 45 N. E. 979."
 
 §,1469.] NEGLIGENCE— MASTER AND SERVANT. 979 
 
 do witliiu a reasonable time, and in consequence thereof the injuries 
 comijlained of were inflicted upon the plaintiff, then the defendant is 
 liable, and the jury should find for the plaintiff unless the jury be- 
 lieve that the plaintiff failed to exercise reasonable care and caution 
 in doing the work in which he was engaged, taking into consideration 
 the plaintiff's experience, or unless the damage was so palpable, im- 
 mediate, and constant that no one but a reckless person would ex- 
 pose himself to it, even after receiving such promise or assurance.*^ 
 
 (g) It is the law that when a sei-vant, having a right to abandon 
 the service, because it is dangerous, refrains from so doing in conse- 
 quence of the assurance that the danger shall be removed, the duty 
 to remove the danger is manifestly imperative ; and the master is not 
 in the exercise of ordinary care unless, or until, he makes his as- 
 surance good. Were these assurances and promises made as claimed 
 by the plaintiff here ? If the plaintiff did not notify the defendant of 
 this defect, and if the defendant did not, — as claimed by the plain- 
 tiff, — make the promise to repair, and making such promise induced 
 the plaintiff to continue his work there, then the plaintiff cannot re- 
 cover in this case. If you find that he understood the increased risk 
 of the gears being uncovered, the defendant cannot be held respon- 
 sible, if he continued his work for any considerable time, knowing 
 the danger, without being induced by his master to believe that a 
 change would be made, and without making any complaint of such 
 dangers or defects, or calls the attention of the master to them. If 
 the servant, with full knowledge of the facts, and understanding the 
 increased risk and danger occasioned thereby, in the absence of any 
 promise of the master to remedy the same, remains in the master's 
 employ, then the plaintiff voluntarily incurs such increased risk.*''' 
 
 § 1469, Continuing in Employment After Bolt Had Come off 
 Many Times — Fellow Servant, (a) The coui-t instructs the juiy 
 that by continuing in the employment of the defendant, after know- 
 ing that the bolt had come off 10 or 20 times, the plaintiff assented to 
 the use of a machine liable to such an accident, and the defendant 
 was entitled to continue to use the machine as it was, and to repair 
 it from time to time as such accident occuiTed, and no negligence 
 may be imputed to the defendant from so continuing to use the ma- 
 chine.*^ 
 
 46_Va. & N. C. Wheel Co. v. otherwise, the defendant could 
 
 Harris, — Va. — , 49 S. E. 991 (994). not have been prejudiced by the 
 
 "The circumstance that the omission, since the allegation of 
 plaintiff was injured while oper- the declaration and the uncon- 
 ating- the saw in the exercise of tradicted testimony of the plain- 
 reasonable care and caution, aided tiff is that he did rely upon the 
 by common knowledsre, sufficient- master's promise to repair." 
 ly indicates the presence of dan- 47— Roux v. Blodgett & Davis 
 per. Upon the second point, the L,. Co., 94 Mich. 607, 54 N. W. 492 
 fact that the plaintiff relied upon (494). 
 
 the master's promise to repair is 48— Loughlin v. Brassil, 187 N. T. 
 
 plainly to be implied from a fair 128 (131), 79 N. K. 854. 
 
 and reasonable interpretation of "The words 'to repair it from 
 
 the instruction. But if it were time to time' as such accident oo-
 
 980 
 
 FORMS OF INSTRUCTIONS. 
 
 [§ 1470. 
 
 (b) The replacing of the nut on the screw was a detail of the 
 work, and, if one of the defendant's employes was negligent in re- 
 placing the nut, such negligence was the negligence of a fellow 
 servant, for which the defendant is not responsible. 
 
 (c) Before the jury can impose any liability on the defendant for 
 failure to tighten the nut, they must find that the defendant had 
 notice, or by reasonable care could have obtained knowledge, that the 
 nut had become loose again after being tightened in the morning.*^ 
 
 § 1470. Defective Machinery — Continuing Work with Assurance 
 of Superintendent that Machine Is All Right. If the machine was 
 out of repair, and plaintiff notified the superintendent of his depart- 
 ment of its condition, and was assured that it was all right, and on 
 his assurance he continued to work with it, without knowing it was 
 dangerous, and was injured as a consequence thereof, he can have re- 
 covery. The law did not require R. to inspect the machine, but did 
 require him to see what any ordinarily careful and prudent opera- 
 tive would have seen of its condition.^" 
 
 § 1471. Minors — Assumption of Risk. Infants as well as adults, 
 assume the ordinary risks of the service in which they engage, but an 
 
 curred, are • shown by the context 
 to refer to the accident of the 
 bolt getting- out of place. Thus 
 we have it as the law of this 
 case that no recovery can stand 
 against the defendant because he 
 used a defective machine, and 
 that his only duty in respect 
 thereto, so far as the plaintiff 
 was concerned, was to repair it; 
 that is, replace the bolt from 
 time to time as it dropped out. 
 Under this rule, I do not see that 
 any duty was left upon defendant 
 in respect to the machine, ex- 
 cept to use reasonable diligence 
 and care in inspecting and keep- 
 ing watch of it and in replacing 
 the bolt when the nut dropped 
 off." 
 
 49 — Laughlin v. Brassil, supra. 
 
 "Under the law of the case as 
 finally formulated by the trial 
 judge, I am inclined to think that 
 the first refusal was error; that 
 the defendant being entitled to 
 use the machine as against the 
 plaintiff subject only to an obli- 
 gation to repair it by replacing 
 the nut from time to time as it 
 became loose, such repairing and 
 replacing was a detail of the work 
 which might be committed to an 
 employe whose negligence would 
 not mnke the employer liable, 
 ■put, without stopping to consider 
 at length whether this is so it Is 
 auite clear that the second re- 
 
 fusal did constitute error. Having 
 the right to use the machine, the 
 defendant could only be required 
 to exercise reasonable care and 
 prudence in detecting a loosening 
 of the nut and replacing the same, 
 and the instruction should have 
 been given as requested. It is 
 suggested that this request as- 
 sumes that the nut was tightened 
 in the morning and was improper 
 in that respect. There was no 
 question upon the trial that the 
 nut was tightened in the morning, 
 not only an employe of the de- 
 fendant, but the plaintiff himself, 
 swearing to this. The request im- 
 mediately preceding the one un- 
 der consideration was expressly 
 predicated upon a finding by the 
 jury that the nut was properly 
 tightened in the morning before 
 the accident, and, whether the re- 
 quest in question was made. I have 
 no doubt that the defendant's 
 counsel by the words 'after being 
 tightened in the morning,' as- 
 sumed, and must have been un- 
 derstood as referring to a finding 
 by the jury of that fact as a basis 
 for the rest of the request. The 
 idea, having been clearly incor- 
 porated in the request immediate- 
 ly preceding, was to be implied 
 and understood in interpreting his 
 following language." 
 
 50 — Record v. Chickasaw C. Co., 
 108 Tenn. 657, 69 S. W. 334 (335).
 
 § 1472.] NEGLIGENCE— MASTER AND SERVANT. 981 
 
 infant engaging in a hazardous employment is entitled to a warning 
 against dangers which a person of his age and experience would not 
 ordinai'ily comprehend. Therefore if you find that the plaintiff C. 
 was v.-arned how he might be injured by the machine, and that he 
 Avas warned in such a way as would be sufficient to apprise an or- 
 dinaiy person of his age and experience of the danger, then he as- 
 sumed the risk, and the defendant would not be liable for the in- 
 jury received from causes against which he was wamed.^^ 
 
 CONTRIBUTORY NEGLIGENCE. 
 
 § 1472. Contributory Negligence of Servant — In General — Servant 
 Guilty of Cannot Recover, (a) The court instructs the jury that 
 in law the plaintiff was not without fault, if it appears from the evi- 
 dence that by the exercise of any care and caution which was, under 
 the circumstances, reasonable, practicable and available, he might 
 have avoided the injuries charged.^^ 
 
 (b) The court insti'uets the jury that although they may believe 
 from the evidence that B. H. Avas not a capable man to run the ma- 
 chine referred to by the evidence in this cause, and did not run such 
 machine in a capable manner at the time of the injury to B., yet if 
 they believe from the evidence that the said B. had knowledge of the 
 danger of said machine when in motion, and could have avoided the 
 injury to himself by the use of ordinary care upon his part, he, the 
 said B., would be guilty of contributoiy negligence, and the jury 
 should find for the defendant. ^^ 
 
 (c) If you believe from the evidence that the plaintiff was in- 
 jured while engaged in the perfonnance of his usual duties as a 
 servant of the defendant, I charge you that he was bound to exercise 
 ordinary care for his own safely, or that degree of care which pru- 
 dent persons usually exercise imder similar circumstances and if he 
 was injured by failure to exercise such eare, then the defendant is 
 not liable in this action.^^ 
 
 (d) It is the duty of an emploj^e to exercise ordinaiy and reason- 
 able care in the protection of himself in the performance of his work ; 
 and if he did not do so, and his want of care contributes in any de- 
 gree, however slight, to any injui-y to himself, then he is guilty of 
 contributory negligence, and cannot recover damages from his em- 
 ployer, even though the employer were negligent. If you find from a 
 preponderance of the evidence that plaintiff, in canning said glass 
 the way he did, and in said passageway, did not exercise what was 
 reasonable prudence and care under all the circumstances, and that 
 
 51_Evans Laundry Co. v. Craw- 53— McVey v. St. Clair Co., 49 W. 
 
 ford. 67 Neb. 153, 93 N. W. 177, 94 Va. 412. 38 S. E. 648 (651). 
 
 N. W. 814. 54— Fla. C. & P. R. Co. v. 
 
 52— Espenlaub v. Ellis, 34 Ind. Mooney, 45 Fla. 286, 33 So. 1010 
 
 App. 163. 72 N. E. 529. (1012).
 
 982 
 
 FORMS OF INSTRUCTIONS. 
 
 [§, 1473. 
 
 his want of care contributed to tiie liappening of the injury com- 
 plained of, then your verdict must be for the defendant.^^ 
 
 § 1473. Contributory Negligonce Defined. Contributoiy negli- 
 gence is the want of ordinary care on the part of the party injured; 
 that is to say, the want of such care as an ordinarily prudent person 
 would have exercised under the same or similar circumstances, which, 
 either by itself or concurring with the negligence of the defendant, if 
 any, proximately causes the injury.^^ 
 
 § 1474. Negligence of Servant or Fellow Servant Must Be Proxi- 
 mate Cause of Injury in Order to be Defense, (a) The jury are 
 further charged that the defendant company is not an insurer of 
 the safety of its employes, but is only bound to use ordinary care to 
 protect them from injury; and you are further instructed that it was 
 the duty of plaintiff, while working in the yards of defendant com- 
 pany, to use ordinary care to avoid injury to himself while the cars 
 of defendant were being operated upon its tracks in said yard; and 
 if you find from the testimony that plaintiff failed to use such care, 
 and that such failure, if any, was negligence, and that such negli- 
 gence, if any, proximately contributed to plaintiff's injury, if any, 
 then plaintiff cannot recover although you may believe defendant's 
 agents and employes operating said car were also guilty of negligence 
 in causing plaintiff's injuiy, if any.'" 
 
 55 — Kennard v. Grossman, — 
 Neb. — 89 N. W. 1025 (1027). 
 
 56— Galveston, H. & S. Ry. Co. 
 V. Smith, — Tex. Civ. App. — , 93 
 S. W. 185 (186). 
 
 "In view of the fact that there 
 was no evidence, whatever, in the 
 record tending to show contribu- 
 tory negrligence on the part of ap- 
 pellee, the definition of contribu- 
 tory negligence, if incorrect, 
 which is not held, could not have 
 Injured appellant. A charge very 
 similar to this has been approved 
 by this court and the Supreme 
 Court in the case of Galveston, H. 
 & S. Ry. Co. V. Pendleton, 30 Tex. 
 Civ. App. 431, 70 S. W. 996." 
 
 57— Galveston, H. & S. A. Ry. 
 Co. V. Pendleton, 30 Tex. Civ. App. 
 431. 70 S. W. 996 (997). 
 
 "The charge complained of an- 
 nounces a correct principle of law, 
 which we think applicable to this 
 case. The same element of prox- 
 imate cause enters into and is es- 
 sential to contributory negligence 
 as to the negligence which is, in 
 the absence of the defense of con- 
 tributory negligence, actionable. 
 To make want of ordinary cnre on 
 the part of plaintiff a defense to 
 a claim of rlnmagfs based upon 
 defendant's actionable negligence, 
 
 it must appear that there was such 
 a relation between plaintiff's 
 fault and the injury that such in- 
 jury was a natural and probable 
 result thereof, and that the ac- 
 cident and consequent injury to 
 the plaintiff might naturally and 
 reasonably have been expected un- 
 der the circumstances. Interna- 
 tional & G. N. R. R. Co. V. Cul- 
 pepper, 19 Tex. Civ. App. 182, 46 
 S. W. 922; G. C. & S. F. Ry. Co. 
 V. Moore, 28 Tex. Civ. App. 603, 
 68 S. W. 561; Mauch v. Hartford, 
 112 Wis. 40, 87 N. W. 816. The 
 question as to whether the negli- 
 gence of the plaintiff proximately 
 contributed to his injury is as 
 much a question of fact for the 
 jury as the one of negligence it- 
 self. And unless the evidence 
 shows it, though it may be suffi- 
 cient to show negligence on the 
 part of the plaintiff, there Is a 
 complete failure of the defense of 
 contributory negligence. 'In its 
 legal signification, contributorv 
 negligence is such an act or omis- 
 sion on the part of plaintiff, 
 amounting to the want of ordi- 
 nary care, as, concurring with 
 some act of the defendant, is a 
 proximate cause of the injury com- 
 plained of.' Galveston, H. & S.
 
 § 1475.J NEGLIGENCE>— MASTER AND SERVANT. 983 
 
 (b) Mere negligence on the part of the deceased, or of the fellow- 
 workmen or co-laborers, "will not be sufficient to prevent recovery by 
 plaintiff for injury caused by the negligence of the defendant. You 
 must find from the preponderance of the testimony that the negli- 
 gence of the deceased or his fellow servant, if any, was not remote 
 but was the proximate cause, or proximately conti'ibuted to the death 
 of the deceased. Where the negligence of a fellow servant is com- 
 bined with the negligence of the maister, and this combined negli- 
 gence causes an injury, the company is liable.^® 
 
 § 1475. Contributory Negligence — Surrounding Facts and Circum- 
 stances in Evidence Should Be Considered. In determining the issue 
 of plaintiff's contributor}^ negligence, you may look to all the sur- 
 rounding facts and circumstances in evidence before you, and de- 
 termine therefi'om whether or not the plaintiff used such care as a 
 person of ordinary prudence would have used under the same or 
 similar circumstances. If you believe from the evidence that in the 
 manner of doing the work of placing said cans of oil in the oil box, 
 or in stepping down from the said oil bos, the plaintiff failed to use 
 such oare as a person of ordinary prudence would have used under 
 the same or similar circumstances, and that such failure, if there was 
 such failure, contributed to or caused his injuries, if any, then plain- 
 tiff cannot recover.^^ 
 
 § 1476. Contributory Negligence of Plaintiff Must Be Pleaded by 
 Defendant — (South Carolina.) I charge you, under these pleadings, 
 that if you believe that the master, the defendant in this case, was 
 negligent, and if you believe that the plaintiff was also negligent. — 
 that both were negligent — then your verdict should be not for the de- 
 fendant, but for the plaintiff, for the reason that the defendant in 
 this case has not pleaded what is known as contributoiy negligence.^'* 
 
 § 1477. Burden of Proof as to Contributory Negligence — Rule that 
 it is Ordinarily on Defendant, (a) The jury are instructed that 
 the burden of proof is on the defendant to show contributoiy negli- 
 gence of the plaintiff, unless it appears from the plaintiff's own evi- 
 dence. If it does so appear, you will find for the defendant. ^^ 
 
 (b) The court has charged the jury that, unless the jury believe 
 from the evidence in this case that the ear upon which plaintiff was 
 riding, by defendant's employes or employe stopped, or the speed 
 
 A. Ry. Co. V. Henning, — Tex. Manns (Tex.), 84 S. W. 254 (257). 
 
 Civ. App. — , 39 S. W. 302." "It seems to us that this part 
 
 58 — Sroufe v. Moran Bros. Co., of the charge is g-ood law, direct- 
 
 28 Wash. 381, 68 Pac. 896 (902), 92 ly applicable to the case made by 
 
 Am. St. 847. the pleadings and evidence, and 
 
 "This is a correct statement of when taken and considered in con- 
 
 the law. Grand Trunk R. Co. v. nection with the charge as a 
 
 Cummings. 106 U. S. 700. 1 Sup. whole, is entirely free from the ob- 
 
 Ct. 493, 27 L. "Pd. 266; Towns v. jections urged against it." 
 
 Railroad Co.. 37 La. Ann. 630, 55 60— Strickland v. Capital C. 
 
 Am. Rep. 508; Ellis v. Railroad Mills. 70 S. C. 211. 49 S. E. 478. 
 
 Co.. 95 N. Y. 546." 61— Reeves v. R.Tilway Co., — 
 
 59— G., H. & S. A. Ry. v. Tex. — . 98 S. W. 929.
 
 984 FORMS OF INSTRUCTIONS. [§ 1478. 
 
 thereof was suddenly checked, or said car was otherwise unusually 
 jarred, then their verdict must be for the defendant. The court does 
 not mean to charge the jury by this that, if the stopping or checking 
 of the train, if any, was with no greater force than was usual under 
 other circumstances than those in the case under consideration, plain- 
 tiff could not recover, but it is true that, if such stopping or checking, 
 if any is shown by the evidence, was not gi'eater than is usual under 
 the same circumstances, then plaintiff could not recover. 
 
 (c) The burden of proving contributory negligence is on the de- 
 fendant, and, unless the jury are reasonably satisfied from the evi- 
 dence that plaintiff was guilty of negligence himself which proximate- 
 ly helped to bring about his own injuries, defendant fails on his pleas 
 of contributory negligence.*^" 
 
 (d) The court charges the juiy that the burden of proving con- 
 tributoiy negligence rests upon the defendant.^^ 
 
 § 1478. Voluntarily Doing Work in More Dangerous of Possible 
 Different Ways. The juiy are instructed that if they believe from 
 the evidence that the plaintiff took hold of the rail upon which the 
 crane ran, and that when he did so he knew that the crane at irregu- 
 lar intervals, ran along upon this rail, and that he could have taken 
 hold of, or rested his hand upon the girder which supported said rail, 
 or on the water-pipes or other parts of the girder there, instead of 
 taking hold of said rail, and could thereb}^ have supported himself so 
 that he could have done the painting Avhich he was doing, in safety, 
 and that to take hold of said rail was a dangerous way of doing said 
 work, and that to take hold of or rest his hand upon the girder which 
 supported said rail, or the water-pipes or other parts of the girder 
 there, was a safe way of doing said work, and that the plaintiff vol- 
 untarily selected a way which he knew was a dangerous way instead 
 of a way which he knew was a safe way of doing said work then the 
 juiy should find the defendant not guilty.^* 
 
 "The ground of complaint is only way he could work at the tie 
 
 that there is nothing in plaintiff's was by getting astride of it. The 
 
 evidence suggesting contributory jury had the right to disbelieve 
 
 negligence. We ascertain that this from the physical facts he 
 
 plaintiff's own testimony shows himself related, and. to find from 
 
 that the trench was wide enough them that he was negligent, and 
 
 to admit of the jury finding that assumed a position of danger in 
 
 he could have stood in the trench going about as he did. See Texas & 
 
 and worked at this tie without P. Ry. Co. v. Reed, 88 Tex. 447, 
 
 having to straddle it. From his 31 S. W. 1058, for a similar charge 
 
 own testimony, without the aid of sustained." 
 
 any other, such a finding could 62— L. & N. R. Co. v. Smith, 129 
 
 be sustained. We understood him Ala. 553. 30 So. 571 (573). 
 
 to testify that the trench was 63— M., J. & K. C. R. Co. v. 
 
 flush up against the adjoining ties. Bromberg, 141 Ala. 258, 37 So. 395 
 
 and narrowed toward the bottom, (402). 
 
 where it was about 14 or 15 inches 64— Til. Steel Co. v. McNulty, 105 
 
 clear, and ties were 9 inches 111. A pp. 594 (600-601). 
 
 wide, and were about 9 or 10 "W^ile this instruction may be 
 
 lnr>heq apart. Yet plaintiff testi- snbiect to some minor criticism, 
 
 fled that he could not get into the still under the circumstances of 
 
 trench as directed by W., and the this case, it should have been
 
 § 1479.] NEGLIGENCES— MASTER AND SERVANT. 
 
 985 
 
 § 1479. Doing Work in Way Other Than Ordered hy Master. If 
 the jury fiud from the evidence that the plaintifi: was directed in re- 
 moving the lumber from the kiln to go behind or in the rear of the 
 trucks and apply pressure from behind or in the rear of the trucks in 
 order to remove the same from the kiln and you further find that this 
 was a safe way, and that if it had been done, the plaintiff would not 
 have been injured, and you further find that the plaintift', instead of 
 adopting this method, went under the truck which was to be re- 
 moved from the kiln and api3lied force from under and below the 
 truck, and was injui'ed in consequence of so doing, then the plaintiff's 
 own negligence was the proximate cause of the injury, and you 
 should answer the first issue ''No. "^^ 
 
 given. The party has no right in- 
 tentionally to put himself in a 
 place of danger which he could 
 have avoided, and in such case al- 
 though he exercised every con- 
 ceivable care in so doing, his in- 
 jury would result from his vol- 
 untary act. Armour v. Brazeau, 
 191 111. 126, 60 N. E. 904; Howe v. 
 Medaris, 183 111. 288, 55 N. E. 724. 
 
 "It is a general principle ap- 
 plicable to cases of this kind that 
 where an employe has the power 
 to adopt his own methods of do- 
 ing work, and he wantonly, know- 
 ing and appreciating the dangers 
 of both, selects of the two ways 
 the most dangerous, he does so 
 at his peril and can not recover 
 for any injury resulting from such 
 relation. Star Elev. Co. v. Carl- 
 son, 69 111. App. 212; W. R. R. Co. 
 V. Propst, 92 111. App. 485." 
 
 65— Whitson v. Wrenn, 134 N. C. 
 86, 46 S. E. 17 (18-19). 
 
 "The plaintiff in this case has 
 simply done something which his 
 master virtuallv told him not to 
 do. He substituted his own will 
 for that of his employer, and his 
 ease comes within the maxim, 
 'Volenti non fit injuria.' No man 
 by his own voluntary and wrong- 
 ful act can impose a liability on 
 another, nor will he be permitted 
 to take any advantage of his own 
 wrong and willfulness. The doc- 
 trine that a servant is not negli- 
 gent in undertaking tlje perform- 
 ance of a dangerous work for his 
 master, unless there is obvious 
 danger in it. is a correct principle, 
 and is strikingly illustrated by 
 several cases decided by this 
 court. Thomas v. R. & A. Air Line 
 R. R. Co.. 129 N. C. 392. 40 S. E. 
 201: Allison v. Southern R. R.. 
 129 N. C. 336. 40 S. E. 91: Patton 
 V. W. N. C. R. R. Co., 96 N. C. 
 
 455, 1 S. E. 863. A passenger who 
 has been injured by alighting 
 from a moving train, under the 
 direction of the conductor, may 
 recover for the injuries received, 
 unless the act itself was obviously 
 so dangerous that in its careful 
 performance the inherent proba- 
 bilities of injury were greater than 
 those of safety. Hinshaw v. R. 
 & A. A. L. R. R. Co., lis N. C. 
 1047, 24 S. E. 426. But this prin- 
 ciple has no place in this case. In- 
 stead of the plaintiff having been 
 commanded to do a dangerous act, 
 it is assumed in the instruction, 
 and there was evidence to show, 
 that he was ordered to do the 
 particular work assigned to him 
 in a safe way, but elected to do it 
 in his own way. which turned out 
 to be a dangerous one, and which 
 actually resulted in his injury. 
 The law, under such circum- 
 stances, refers the injury to his 
 own fault, and not to any wrong 
 on the part of his employer. It 
 must be admitted that he was 
 the author of his own injury. If 
 it was necessary that the method 
 adopted by him should have been 
 not only in disobedience of his or- 
 ders, but in itself dangerous, in 
 order to visit upon him the conse- 
 quence of his refusal to observe 
 his master's directions, it surely 
 is not required that it should have 
 been obviously dangerous. It is 
 quite sufficient to bar his recovery 
 if he knew that his method was a 
 dangerous one and chose to do his 
 work in that way rather than in 
 the manner pointed out by his 
 master. Why should the danger 
 be obvious if he had knowledge of 
 it? If it had apneared that obedi- 
 ence to his master's orders as to 
 the manner of moving the truck 
 was obviously dangerous, he had
 
 986 FORMS OF INSTRUCTIONS. [§ 1480. 
 
 § 1480. Servant Continuing Work Without Repairing Defects 
 After Being Warned of Danger. You are instructed that if you 
 should find from the evidence that the injury in tliis case was caused 
 by the slipping- of the cogs or pinions, and that the deceased had been 
 told of the danger if he did not fix it, and continued to run the en- 
 gine after being so told, without fixing the same, your verdict should 
 be for the defendants.^*^ 
 
 § 1481. Intoxication of Servant as Contributory Negligence, (a) 
 The court instructs the jury that if you believe from the evidence, 
 that the said J. J., at the time of the accident, was intoxicated or in 
 a state of intoxication ; and if you believe that because of such intoxi- 
 cation he slipped and fell in front of or underneath one or more 
 of the wheels of said engine ; and if you believe that he was guilty of 
 negligence in being intoxicated, or in a state of intoxication, if you 
 find he was at said time and place ; and if you believe such negli- 
 gence if any, caused or contributed to cause his injury and death — ■ 
 then in that event you will find for the defendant; but if you find 
 that said J. J. was intoxicated or in a state of intoxication, that 
 would not defeat a recovery, unless you further believe that the same 
 was negligence, and that such negligence caused or contributed to 
 cause the injury. 
 
 (b) If you believe from the evidence that at the time of the ac- 
 cident J. J. was in a state of intoxication, and that such state of in- 
 toxication placed him in such a condition that he was unable, and 
 failed, to exercise the caution and care required of him under the 
 general instructions of the court heretofore given you, and if you 
 furfher believe that by reason of such condition he was injured, then, 
 in that event the plaintifi's cannot recover.^''' 
 
 § 1482. Minor's Rule as to Contributory Negligence — Safe Ma- 
 chinery and Appliances — Safe Place to Work, (a) Before you find 
 against plaintitf on the ground of contributory negligence, you must 
 believe from the evidence that the plaintiff did not use such care and 
 caution as a person of his age and experience would have ordinarily 
 used under the circumstances surrounding him at the time.^^ 
 
 a right to refuse to do the work, condition, and failed to repair the 
 but even then he could not select defect though it was, according to 
 another and dangerous way to do the undisputed evidence, his duty 
 it and charge his master with the so to do. The court should there- 
 consequence thereof, and especial- fore have given the instruction, 
 ly if the danger of the method and, as it was not covered by any 
 which he adopted was known to other instruction given by the 
 him at the time." court, we conclude that its re- 
 
 66 — Prescott & S. W. Ry. Co. v. fusal was prejudicial error for 
 
 Weldy, 80 Ark. 454, 97 S. W. 452. which the case must be reversed." 
 
 "The testimony was conflicting 67— M., K. & T. Ry. Co. of Tex. 
 
 as to the cause of the accident, v. Jones, ."^5 Tex. Civ. App. 584, 80 
 
 and this instruction was applica- S. W. 852 (854). 
 
 ble to the defendant's theory of 68— Stanley v. C, M. & St. P. 
 
 the cnse. There was direct testi- Ry. Co., — Mo. App. — , 87 S. W. 
 
 mony that the accident was caused 112 (113). 
 
 by the cogs or pinions slipping. "The court held thnt this in- 
 
 That W. knew of this dangerous struction was faulty, in that it
 
 § 1482.] NEGLIGENCE— MASTER AND SERVANT. 987 
 
 (b) The jury are further instructed that the duties of the master 
 to provide safe and suitable machinery and appliances for the busi- 
 ness, and to furnish a safe place in which his servant is to work, are 
 duties which the master can either perform personally, or delegate 
 their performance to some one else; but if both the master and the 
 pei-son to whom such duties are delegated fail in the performance of 
 any of said duties, and injurj' results to the servant by reason of 
 said failure, the master is liable for such injury. 
 
 (c) The juiy are further instructed that the right of the plaintiff, 
 L. to recover in, this action, if the juiy believe from the evidence he 
 is entitled to recover, is not affected by his having contributed to the 
 injury complained of, if the jury believe from the evidence that he 
 did contribute to his own injury, unless he was in fault in so doing. 
 
 (d) The jury are further instructed that in determining whether 
 the plaintiff L., a boy sixteen years of age, was guilty of contributory 
 negligence, the jurj' have the right to take into consideration his age, 
 capacity and experience, and although he may have been guilty of an 
 act or acts which in an adult would have amounted to an assumption 
 of the risk of injury and a waiver of the duty the master owes him^ 
 yet he cannot be held to have assumed any such risk or waived any 
 such duty which one of his age, discretion and experience could not 
 fully comprehend and appreciate. 
 
 (e) The jury are further instructed that, while it is a general rule 
 that an employe accepts service subject to risks incidental to it, and 
 when the appliances or means or methods of work are known to the 
 employe he can make no claim upon the employer to change them, and 
 if injury results thei'efrom, can recover no damages, yet this does 
 not relieve the employer from the obligation which makes it his im- 
 perative duty to warn the employe of danger and instruct him how to 
 avoid the danger, even when the danger is visible and open to ob- 
 servation, if through youth, inexpei'ienee, or lack of ability the em- 
 ploye is incompetent to understand fully and appreciate the nature 
 and extent of the danger.*^^ 
 
 should have told the jury the law skill as applied to the business in 
 required of the boy 'exercise of which plaintiff was engag-ed at the 
 care and prudence equal to his ca- time he was injured — that is, in 
 pacitv, age, knowledge, and ex- manipulating the handle of the 
 perience, regardless of what care car in question — which labor at 
 and prudence boys of his age and most required little or no skill, 
 capacity are required to exercise.' only practical experience. We are 
 The fault in the construction un- not to consider that the court, in 
 der consideration, if any, is that saying that certain words should 
 the words 'age and experience' be used in an instruction, was 
 are used, instead of the words the prescribing a formula for the pur- 
 court said should have been used, pose, but that language of similar 
 'capacity, age. knowledge and ex- import should have been used. We 
 perience.' "The word 'experience' do not think the instruction was 
 means 'to have practical ac- so faultv as to be misleading." 
 quaintance with,' which is equiva- 69 — "We think said instructions 
 lent to knowledge. And the word were pertinent and properly giv- 
 'capacity,' in the sense in which en." Giebell v. Collins Co., 54 W. 
 it was used, means capacity or Va. 518, 46 S. E. 569 (573).
 
 988 FORMS OF INSTRUCTIONS. [§ 1483. 
 
 § 1483. Working Near Dangerous Lumber Pile, (a) If you be- 
 lieve plaintiff was injured by reason of some timber or lumber fall- 
 ing against or upon him, and throwing him upon the saw, and if you 
 find that the condition in which same was piled up was open and ob- 
 vious to plaintiff, and considering his age and intelligence, he should 
 and ought to have known the danger, if any, surrounding him at the 
 time, and if you believe that the plaintiff, considering the circum- 
 stances surrounding him at the time, was not exercising such care 
 and piaidence in doing or undertaking to do the work at which he 
 was engaged that would or should ordinarily be exercised by a per- 
 son of like age and intelligence of plaintiff under similar circum- 
 stances, then plaintiff cannot recover, even though the plaintiff at 
 the time was following the instructions of defendant's foreman, 
 and in such case you will find for the defendant. 
 
 (b) If you believe the plaintiff Ava« injured by reason of some 
 pieces of lumber or timber falling against him and throwing him up- 
 on the saw, which lumber or timber was lying or piled up to the 
 side or back of where plaintiff was at work, and if you find that the 
 condition and manner in which said lumber was piled up was open 
 and obvious to plaintiff, and if you believe that plaintiff was of suf- 
 ficient intelligence and understanding to comprehend and know, and 
 ought to have known, considering his age and intelligence, the 
 danger, if any, surrounding him, then plaintiff cannot recover any- 
 thing in this case, even if defendant was at fault and negligent in 
 allowing the lumber or timber to be piled up and remain in the 
 manner it was at the time, and in such case you will return your 
 verdict for the defendant.'^" 
 
 § 1484. Raising Beam in Obviously Dangerous Way. The court 
 instructs the jury that if you believe from the evidence that if the 
 plaintiff and his co-workers could have raised the beam in question 
 in a safe way, and nevertheless adopted the method used by them on 
 the occasion in question, and if you further believe that the method 
 adopted by them was dangerous, and that the danger thereof was 
 obvious to plaintiff, and that the plaintiff in adopting said method 
 under said circumstances Avas guilty of negligence, and that such 
 negligence continued down to the time of plaintiff's fall, and di- 
 rectly contributed thereto, then and in that case your verdict must 
 be for the defendant.''^ 
 
 S 1485. Failure to Heed Warning of Foreman to Get Away from 
 Falling Timber, (a) If ynn find from the evidence that tlie fore- 
 man, A. B., prior to the accident, wai-ned the plaintiff to get away 
 from the place where he was, and that such warning w^as given 
 loudly enough and distinctly enough to have been understood by a 
 
 70— "Roth of these instrnntions 71— Sack v. St. L. Car Co., - 
 shoulfl hnve hnen Riven." HiUlon- Mo. A pp. — , 87 S. W. 79 (S3"). 
 brand v. Marahnll, 30 Tex. Civ. "This instruntion correotlv de- 
 App. 135, 69 S. W. 492 (493). rlnrerl the Inw in respect to the de- 
 
 fense of contributory ncglig-ence."
 
 § 1486.] NEGLIGENCE— MASTER AND SERVANT. 989 
 
 person of ordinary hearing at the place where the plaintiff then was^ 
 and A. B. then had reasonable grounds to believe that such warning 
 would be heard by plaintiff, and if you further find that after giv- 
 ing such warning there was time enough for plaintiff to get awaj* by 
 exercising reasonable care and bpeed before the timber dropped, then 
 your verdict may be for the defendants. 
 
 (b) The defendants were not insurers of the plaintiff against ac- 
 cident while in their employ. On the contrary, the plaintiff assumed 
 all the ordinary and usual risks and hazards incident to the em- 
 ployment in which he was engaged. And, if you find that he was 
 injured while at work in the employ of the defendant, still your 
 verdict should be for the defendants, unless you further find from the 
 evidence that such injury was caused by the negligence of the fore- 
 man, A. B., in failing (if he did fail) to warn the plaintiff that the 
 timber was about to be dropped, in time for the prudent man of 
 ordinary activity, placed as plaintiff then was, to remove beyond 
 danger before it fell.'^^ 
 
 § 1486. Want of Ordinary Care of Both Master and Servant — 
 Going Under Dangerous Roof in Coal Mine — Series, (a) If the 
 plaintiff was negligent, which contributed to his own injury, even in 
 the slightest degree, then, in that case, he cannot recover in this 
 action, although you may find that the defendant was negligent, 
 and that its negligence was the proximate cause of the injuiy of the 
 plaintiff. The law requires the plaintiff to use all ordinary care to 
 avoid any injury to himself; that is, such care as an ordinarily pru- 
 dent and careful man would have used under like or similar cir- 
 cumstances. You are to measure the care that he did use, as you 
 shall find it from the testimony, by the standard that I have given 
 you in charge; that is, the care that an ordinarily prudent and care- 
 ful man would have used under like circumstances. In determining 
 this question, gentlemen, you are to look to all the evidence; look to 
 the knowledge that the plaintiff had of this particular mine; look to 
 the knowledge that he had of the character of this roof; of what 
 it was composed; its liability to slip, or the liability of the stone to 
 fall. Look to that, and also look to the knowledge — as you may find 
 it from the evidence — that he may have had as to the condition of 
 this roof on Friday, when he left the mine. Also look to the evi- 
 dence in determining what he knew of its condition on Monday, at 
 the time he set up these posts, in determining whether an ordinarily 
 prudent and careful man would have gone under this stone at the 
 time of the happening of this accident. It is claimed by plaintiff 
 that he was injured some little time after these posts had been set; 
 that he went under this particular stone that fell, and between these 
 posts, to get a sledge, preparatory to going home; that while stoop- 
 ing over to pick up this sledge, this stone fell, and he was injured 
 thereby. You are to measure his conduct at the time of the acci- 
 
 72— McGee v. Smitherman, 69 Ark. 632, 65 S. W. 461 (463).
 
 990 FORMS OF INSTRUCTIONS. [§ I486. 
 
 dent with the knowledge that he possessed before that time; con- 
 sider that, and look at his conduct at the time of the happening of 
 this accident. It would not be sufficient to defeat the plaintiff in 
 this case to show that he was negligent at a time prior to the hap- 
 pening of the accident, unless such negligence contributed to his own 
 injury. Look, then, gentlemen, to all the circumstances that have 
 been proved that bear upon this particular question. If you are not 
 satisfied by a preponderance of the evidence that the plaintiff is 
 guilty of negligence which contributed to his own injury, — as I have 
 explained to you in these instructions, — and if you are satisfied that 
 the defendant was guilty of negligence, and that such negligence 
 was the proximate cause of his injury, then, in that case, the plain- 
 tiff will be entitled to recover. But if, upon the other hand, you 
 are not satisfied that the defendant was guilty of negligence under 
 the instructions I have given you, or if you are satisfied that it was, 
 and are not satisfied that such negligence was the proximate cause 
 of the injuiy which plaintiff has sustained, or if you are satisfied 
 that it was the proximate cause of his injury, and you are satisfied 
 by a preponderance of the evidence that the plaintiff was negligent, 
 and that such negligence contributed to his own injury, even in the 
 slightest degree, then, in that case, your verdict should be for the 
 defendant. 
 
 (b) If a part of the roof of the room in which plaintiff worked 
 was unsafe and liable to fall, and props were needed for its sup- 
 port and the defendant neglected to furnish the props when needed, 
 and the plaintiff knew the roof was in that unsafe condition, and 
 remained in the room or otherwise exposed himself to the danger 
 from the fall of the roof, Avhen he could have left the room, then 
 plaintiff cannot recover in this case. 
 
 (c) If a part of the roof of the room in which plaintiff worked 
 was unsafe and liable to fall, and props were needed for its support, 
 and the defendant neglected to furnish the props when needed, and 
 the plaintiff had the means of knowing the roof was in that unsafe 
 condition, and remained in the room or otherwise exposed himself to 
 the danger from the fall of the roof, when he could have left the 
 room, then plaintiff cannot recover in this case. 
 
 (d) Under the most careful circumstances, mining coal is at- 
 tended with danger, and persons engaged therein are presumed to 
 incur the risks incident thereto, and if the plaintiff in this case knew, 
 or had the means of knowing, that a part of the roof of the room in 
 which ho worked was unsafe and liable to fall, he cannot recover in 
 this case. 
 
 (e) If tlie defendant in this case neglected to fumish props at 
 the room in which plaintiff worked and the roof of the room was 
 in a dnngernns condition, and the plaintiff knew its condition, then 
 plaintiff cannot recover in this case. 
 
 (f) If the plaintiff knew the dangerous condition of the room, and
 
 § 1487.] NEGLIGENCE— MASTER AND SERVANT. 991 
 
 continued in the sendee in the room, or remained therein, he cannot 
 recover in this case. 
 
 (g) If the plaintiff knew of the unsafe or dangerous condition of 
 the roof of the room iu which he was at work, then he cannot recover 
 in this case. 
 
 (h) If the defendant in this case neglected to furnish props at 
 the room in which plaintiff worked, and the roof of the room was 
 in a dangerous condition, and the plaintiff had the means of know- 
 ing that the roof was in a dangerous condition, then the plaintiff can- 
 not recover in this case. 
 
 (i) If the defendant in this case neglected to furnish props at the 
 room in which plaintiff worked, and the roof of the room was in a 
 dangerous condition, and the plaintiff by the exercise of ordinary 
 care could have discovered the dangerous condition of the roof of 
 the room, then plaintiff cannot recover in this case. 
 
 (j) If the plaintiff, by the exercise of ordinary care, could have 
 ascertained that the part of the roof which fell and injured him was 
 in an unsafe condition and liable to fall, and exposed himself to the 
 danger by going thereunder, he cannot recover in this case. 
 
 (k) If the plaintiff knew, or had reason to apprehend, that it 
 would be risky to go under this stone, referred to in the testimony, 
 that fell on the plaintiff, and with this apprehension and knowledge 
 he took the risk, he cannot recover of the defendant. 
 
 (1) If the plaintiff knew, or had the means of knowing, that the 
 stone which fell and injured plaintiff was loose and liable to fall, 
 and went under the stone, then plaintiff cannot recover.''^ 
 
 § 1487. Contributory Negligence in Lowering Air Pump. If j^ou 
 find that the said C. R. was injured in lowering said air pump, as 
 alleged by plaintiff, and that such injury, if any, directly resulted 
 in his death, yet, if you further find that the deceased, C. R., failed 
 to exercise ordinary care in looking out for his own safety in lower- 
 ing said air pump, and that such failure, if any, either proximately 
 
 73 — Coal Co. V. Estievenard, 53 it is caused by the want of ordi- 
 
 Ohio St. 43, 40 N. E. Rep. 725 (727 nary care on part of the employer, 
 
 and 728). " _ combined with want of ordinary 
 
 "These requests were all perti- care on the part of the employe. If 
 nent to the case upon the facts as it took the want of ordinary care 
 claimed by defendant below, and of both the employer and em- 
 were all sound law when applied ploye to produce the injury, both 
 to such facts. The plaintiff below are at fault, and there can be 
 was under obligation to use ordl- no recovery by either. Where 
 nary care for his own safety, both parties are neglig-ent, and the 
 Whntever he knew, or oug-ht to injury is caused by such combined 
 have known, and failed to act upon negligence, there can be no recov- 
 with ordinary care for his own ery by either party. B. & O. R. 
 safety, constituted such negligence Co. v. M^heeling, P. & C. Tr. Co., 
 on his part as would prevent a re- 32 Ohio St. 116. 147; Railway Co! 
 covery. To warrant a recovery, it v. Elliott, 28 Ohio St. 340; Ker- 
 must appear that the injury was whaker v. Railroad Co.. 3 Ohio St. 
 caused by the want of ordinary 172,_ 62 Am. Dec. 246; Timmons v. 
 care on part of the employer, and Railroad Co., 6 Ohio St. 105, 109.'* 
 the injury is not so caused, when
 
 992 
 
 FORMS OF INSTRUCTIONS. 
 
 [§ 1488. 
 
 caused or contributed to his injuiy, if any, then plaintiff cannot re- 
 cover, and you will so find.''* 
 
 § 1488. Using Defective Shaft of Wagon in Alighting. The court 
 instructs the jury that if they believe from the evidence in this case 
 that the plaiutilf, A. B., at and before the time he went upon said 
 wagon on the day of the accident in question, had personal knowl- 
 edge that the shaft and step of said wagon were defective, broken 
 and unsafe, and that the plaintiff made use of such defective shaft 
 in attempting to alight from said wagon, knowing it to be defective, 
 •broken and unsafe at the time, then the jury should consider such 
 fact in determining whether the plaintiff was in the exercise of due or 
 ordinary care at the time of the injury.''^ 
 
 § 1489, Contributory Negligence in Unloading Cattle. If you find 
 from the evidence that the plaintiff, in performing his duties in pre- 
 paring the car and the chute for unloading the cattle, obtained the 
 aid and assistance of C, who was not employed by defendant to 
 perfonn the services, and who was not accustomed to do so, and 
 stood in the way of the running board, and failed to exercise due 
 care in the placing of the board, and that this was negligence on the 
 part of the plaintiff, which contributed to his injuries, if any he re- 
 ceived, you will find for the defendant. Contributory negligence must 
 be established by a preponderance of the evidence.''^ 
 
 74— Ramm v. R. R. Co., — Tex. 
 Civ. App. — , 92 S. W. 426. 
 
 "The charge is not open to the 
 criticism that the court assumed 
 that deceased had been guilty of 
 negligence. The finding of negli- 
 gence was clearly left to the jury 
 when they were instructed to find 
 whether deceased had failed to 
 exercise ordinary care in lower- 
 ing the pump, because the fail- 
 ure to exercise ordinary care is 
 negligence, as the court, in a para- 
 graph immediately following the 
 one copied, correctly informed the 
 Jury, and also gave a definition of 
 ordinary care. Similar charges 
 have been approved by the Su- 
 preme Court. St. L. S. W. Ry. 
 Co. v. Casseday, 92 Tex. 526, 50 S. 
 W. 125. The case of M., K. & T. 
 Ry. v. Rogers, 91 Tex. 52, 40 S. W. 
 946, cited by .appellant, is not per- 
 tinent or applicable. In that case 
 a requested charge made a fail- 
 ure to look and listen when cross- 
 ing a railroad negligence, without 
 allowing the jury to pass on 
 whether or not it was negligence, 
 and the court said It was prop-- 
 eriy refused, but, if It had charged 
 the jury that if fhoy found the 
 party had brfn guilty of a failure 
 to exercise ordinary care, which 
 
 was defined, and such failure had 
 contributed to the injury, the Su- 
 preme Court would not have held 
 the charge to be incorrect. The 
 difference is apparent." 
 
 75— Wink v. Weiler, 41 111. App. 
 336 (342). 
 
 76— Galveston H. & S. A. Ry. Co. 
 V. Mohrmann, — Tex. Civ. App. 
 — , 93 S. W. 1090 (1092). 
 
 "This charge is complained of 
 as error. The charge submits the 
 issue of contributory negligence in 
 the very language pleaded by the 
 appellant. As all the facts relied 
 upon to constitute contributory 
 negligence are pleaded conjunctive- 
 ly, if appellant deemed that there 
 was evidence tending to prove one 
 or more of the facts alleged — less 
 than all — and that such proof 
 would warrant the jury in finding 
 the appellee guilty of contribu- 
 tory negligence, it should have 
 prepared and requested a special 
 charge, submitting such theory of 
 contributory npgligence to the 
 jury. G.. C. & S. P. Ry. Co. v. 
 Hill, 95 Tex. 629, 69 S. W. 136; 
 Ratterree v. G., H. & S. A. Ry. Co., 
 36 Tex. Civ. App. 197. 81 S. W. 
 566; I. & G. N. Ry. v. Vanlanding- 
 ham, — Tex. Civ. App. — , 85 S. W. 
 849; Crowder v. St. Louis S. W.
 
 § 1490.] NEGLIGENCE— MASTER AND SERVANT. 993 
 
 § 1490. Contributory Negligence in Grinding Tool. If you be- 
 lieve from the evidence that, through the negligence of the de- 
 ceased, the tool deceased was grinding was caught between the rest 
 and the wheel, thereby causing it to break, then your verdict should 
 be for the defendant.'^ 
 
 § 1491. Injury through Careless Use of Hammer. The court in- 
 structs the juiy that if thej- believe from the evidence that the only 
 tools used by this plaintiff to perform his work were a hammer and 
 a mandrel, and that said tools were reasonably safe and suitable 
 tools for the plaintiff to use in the performance of his duties, but that 
 this 'plaintiff used the hammer in so careless a manner as to strike 
 the mandrel instead of the wire handle of the utensil, and thereby 
 caused a piece of the hammer to chip off and fly up and strike him 
 in the eye, thus causing the injury, then the plaintiff himself was 
 negligent, and cannot recover.'^® 
 
 § 1492. Working with Split, Frayed, Raveled or Untwisted Rope. 
 The juiy are instructed that even if they believe from the evidence 
 that the rope referred to in the evidence in this ease was split, 
 frayed, raveled or untwisted, and even if they believe from the evi- 
 dence that the plaintiff was directed by J. H. to put said rope on the 
 spool just before he was injured, yet the jury are further instructed 
 that if they believe from the evidence that the plaintiff at the time 
 he put the rope on the spool knew of the condition of the rope, and 
 knew and appreciated the danger, and further believe that the dan- 
 ger was so imminent that an ordinarily prudent man would not in- 
 cur it, but would disobey the order, there can be no recovery.''^ 
 
 INSmiANCE. 
 
 § 1493. Agreements Between Employers and Employes as to Insur- 
 ance Against Accidents, (a) The court instructs the jury that a 
 contract of insurance may be entered into by and between parties 
 not engaged in the insurance business; and, if the jury And from the 
 evidence in this ease that defendant agreed to insure the plaintiff 
 against accidents causing injury to person, it would be binding upon 
 it, although the defendant was not in the insurance business. 
 
 (b) The burden of proof in this case is upon the plaintiff to 
 show by a preponderance of the evidence that the defendant en- 
 gaged, for a consideration paid to it, as an insurer, to insure the 
 plaintiff against accidents causing injury to person as stated in the 
 complaint; and in this ease, if you believe from the evidence that 
 
 Ry. Co., — Tex. Civ. App. — , 87 S. was a correct statement of the 
 
 W. 166. Certainly the paragraph of law." Duerst v. St. L. Stamping 
 
 the charge presented no afflrma- Co.. 163 Mo. 607, 63 S. W. 827 (831). 
 
 tive error." 79—111. S. Co. v. Wierzbicky, 107 
 
 77— Skelton v. Pac. L. Co., 140 Til. App. 69 (76), aff'd 206 111. 201, 
 
 Cal. 507. 74 Pac. 13 (15). 68 N. E. 1101. 
 
 78 — "This refused instruction 
 63
 
 994 FORMS OF INSTRUCTIONS. [§ 1494. 
 
 the defendant was merely acting as trustee for its employes, among 
 whom was the plaintiff, you will find your verdict for the defendant.^" 
 
 (c) The court instructs the jury that if you find and believe from 
 the evidence that a policy of insurance to indemnify plaintiff against 
 loss or damage by injury received by him while in defendant's em- 
 ploy was procured from the A. Life Insurance Company by an ar- 
 rangement between the plaintiff and defendant, each paying one-half 
 of the premium for such insurance, and that defendant complied with 
 its part of the contract and paid all of the premiums due from it 
 up to the time plaintiff received his injuries, and that defendant re- 
 ceived from said insurance company the sum of $ in settlement 
 
 of the injuries received by him, and executed a release and receipt 
 to such insurance company, then, in that event, plaintiff cannot re- 
 cover any further sum as against the defendant. And further find 
 that such insurance was intended by plaintiff and defendant to be 
 in lieu of any claim of plaintiff against the defendant for any injury 
 received by him while in defendant's employ. 
 
 (d) The court instructs the jury that if you believe and find from 
 the evidence that a contract for indemnity insurance was procured 
 by plaintiff, and he was entitled to receive from the insurance com- 
 pany for his injury indemnity for a period of fifty-two weeks at 
 the rate of $1 per day, and further find that he accepted the sum 
 
 of $ in full settlement of his claim in said insurance policy, then 
 
 you may take such facts into consideration in determining the extent 
 and character of his injuries and in mitigation of damages, if any, 
 to which you may believe he is entitled on account of injuries.^^ 
 
 RELEASES. 
 
 § 1494. Release of Right of Action by Servant. If you believe 
 
 from the evidence that on or about the , the plaintiff agreed 
 
 with the defendant upon a compromise of his claim for the damages 
 sued for in this cause for the sum of $1 and the promise to employ 
 him for one day as section foreman, and the further promise of the 
 general claim agent of the defendant company to pay to the plain- 
 tiff the full time lost by him on account of his injuries, the same 
 to be ascertained by a statement of the attending pln^sicians ; and if 
 you believe that the plaintiff then and there accepted said promise 
 and agreement, together with $1, and the employment of him for one 
 day as a section foreman in satisfaction and discharge of his original 
 
 80— Arkadplphia L. Co. v. Posey, his employer, and also empha- 
 
 74 Ark, 377 (?.7^). 85 S. W. 1127. sized appellant's claim of partial 
 
 81— Dover v. M. R. ^ B. T. Ry., payment bv it of accruing pre- 
 
 — Mo. — . 7.3 S. W. 298 C299). "These miums, and directed the jury that 
 
 Instructions, as piven by the court, the acceptance of the sum paid by 
 
 fairly prc.sentpd for the considera- the insurance company mig-ht be 
 
 tjon of tho Jury the issue that the taken into consideration in miti- 
 
 beneflta received under the policy p-ntion of damajre.s, and were as 
 
 were In satisfaction and discharpre favorable to defendant as the 
 
 or any claim for damages against proof sanctioned."
 
 § 1494.] NEGLIGENCE— MASTER AND SERVANT. 995 
 
 cause of action on account of his injuries, and that he agreed and 
 expected to look to and demand of the defendant the sum of the 
 time lost by him on account of such injuries when same were ascer- 
 tained by his physician, under said promise and agreement, and not 
 to demand of defendant damages on account of his original cause of 
 action as it stood befoi'e such promise and agreement was made — ■ 
 then you will find a verdict for the defendant.^- 
 
 82— Gulf, C. & S. F. Ry. Co. v. Minter, — Tex. Civ. App. — , 93 S. 
 
 W. 516 (517). 
 
 See "Negligence, Master and Servant, Railway Companies," chap- 
 ter LXIV.
 
 CHAPTER LXIV. 
 
 NEGLIGENCE— MASTER AND SERVANT— RAILWAY COM- 
 PANIES. 
 
 See Erroneous Instructions, same chapter head. Vol. III. 
 
 IN GENERAL. 
 
 § 1495. Duty of raih-oad compa- 
 nies. 
 
 § 1469. Master cannot delegate duty 
 to furnish reasonably 
 safe places for servants 
 to work in. 
 
 APPLIANCES. 
 
 § 1497. Railroad companies bound 
 to furnish safe and ap- 
 propriate appliances. 
 
 §1498. Employe may assume that 
 appliances furnished by 
 master 'are reasonably 
 safe. 
 
 § 1499. Duty of railway company 
 to provide suitable and 
 safe material and skillful 
 workmanship. 
 
 KOLLING STOCK. 
 
 § 1500. Duty of railway company to 
 provide safe rolling stock. 
 
 § 1501. Duty as to inspection of car 
 received from other 
 I'oads. 
 
 § 1502. Furnishing car strong 
 enough for the transpor- 
 tation of steel nails. 
 
 § 1503. Cars must be in condition 
 to be uncoupled with rea- 
 sonable safety. 
 
 5 1504. Not negligence for railroad 
 to use couplings or dead- 
 woods of unequal height. 
 
 § 1505. Defects in coupling appara- 
 tus between caboose and 
 locomotive. 
 
 9 1506. Injuries through defective 
 drawbars or drawheads. 
 
 5 1507. Injury to brake through 
 
 brake staff breaking. 
 
 5 1508. Latent defect in brake rod. 
 81509. Using car without hand- 
 holds. 
 
 11510. Defect In hand-hold of car- 
 Competency of inspector. 
 
 996 
 
 § 1511. Ordinarily no obligation to 
 provide steps at end of 
 freight cars for use of em- 
 ployes. 
 
 § 1512. Injury to engineer through 
 defective step on engine. 
 
 § 1513. Notice by engineer to fore- 
 man of roundhouse of de- 
 fect in engine. 
 
 § 1514. Injury to fireman from side 
 rod on engine breaking. 
 
 § 1515. Furnishing trucks for re- 
 moval of trestles from 
 roundhouse. 
 
 § 1516. 
 § 1517. 
 § 1518. 
 
 § 1519. 
 
 § 1520. 
 
 § 1521. 
 
 § 1522. 
 § 1523. 
 § 1524. 
 
 § 1525. 
 § 1526. 
 
 § 1527. 
 § 1528. 
 
 TRACK AND ROAD-BED. 
 
 Obligation to keep roadbed 
 and track free from ob- 
 structions. 
 
 Master must use ordinary 
 care to see that they are 
 safe. 
 
 Right of locomotive en- 
 gineer to assume that 
 railroad track is reason- 
 ably safe. 
 
 Tracks and sidings must 
 not be in too close prox- 
 imity to other structures. 
 
 Failure to keep track in 
 repair as proximate cause 
 of injury. 
 
 Injury to employe through 
 insufficient ballasting of 
 roads. 
 
 Side track slanting and 
 sidling. 
 
 Injury by protruding cross 
 tie and hole in track. 
 
 Allowing timber to stick 
 out of shed and over 
 transfer table. 
 
 Allowing derrick to swing 
 over track. 
 
 Negligence of master in al- 
 lowing clinker to remain 
 at side of track. 
 
 Wreck of train on defective 
 bridge. 
 
 Law fixes no exact stand- 
 ard for height of bridges 
 over railroadSj
 
 NEGLIGENCE— MASTER AND SERVANT. 
 
 997 
 
 OPERATION AND MANAGEMENT OF 
 TRAINS AND CARS. 
 
 § 1529. Necessity of lookout at 
 points where employes 
 commonly pass in dis- 
 charge of their duties. 
 
 § 1530. Injury through Act of God 
 and concurient negligence 
 of defendant. 
 
 § 1531. Injury to servant through 
 failure to obey ordinances 
 as to speed or ringing 
 bell. 
 
 § 1532. Failure of engineer or fire- 
 man to obey signals to 
 slow up train. 
 
 § 1533. Neglect of engineer to obey 
 signal to stoj? train run 
 at dangerous rate of 
 speed. 
 
 § 1534. Failure to give such a warn- 
 ing of approach of engine 
 as could be heard by per- 
 sons of ordinary hearing. 
 
 § 1535. Telegraph operator injui-ed 
 while delivering order to 
 engineer of train — Second 
 train giving no signals. 
 
 § 1536. Collision through failure of 
 engineer to give flag sig- 
 nal. 
 
 § 1537. Injury through passenger 
 train colliding with loose 
 car. 
 
 § 1538. Injury to plaintiff while 
 coupling cars or throwing 
 wrong switch. 
 
 § 1539. Duty to set brakes while 
 couplings are being ad- 
 justed. 
 
 § 1540. Using hand-car without a 
 brake. 
 
 § 1541. Sending hand-cars at great 
 speed immediately after 
 one another. 
 
 § 1542. Kicking car upon track at 
 a high and dangei'ous rate 
 of speed. 
 
 § 1543. Injury to person repairing 
 track by cars being 
 kicked back without 
 warning. 
 
 § 1544. Engine leaving track 
 
 through brakeman lock- 
 ing switch to wrong 
 track. 
 
 § 1545. Injury to servant while re- 
 moving tie from gravel 
 deck — Orders of vice-prin- 
 cipal. 
 
 § 1546. Laborers working on or 
 about gravel cars — Duty 
 to avoid injury to. 
 
 § 1547. Duty of section foreman 
 toward servant while un- 
 loading car. 
 
 RULE AND REGULATIONS. 
 
 § 1548. Duty to make proper rules 
 for safety of servants. 
 
 § 1549. Railroad not liable for in- 
 jury through disregard of 
 its plain instructions. 
 
 § 1550. Disobeying rules as to coup- 
 ling cars. 
 
 § 1551. Rule against coupling cars 
 in motion may be waived. 
 
 § 1552. Authority to remove ashes 
 and fire no authority to 
 move engines. 
 
 § 1553. Failure of engineer to re- 
 port defects at end of run 
 as required by company. 
 
 FELLOW SERVANTS. 
 
 § 1554. Fellow servants defined. 
 
 § 1555. Negligence of the company 
 in employing servant. 
 
 § 1556. Fellow servants of brake- 
 man. 
 
 § 1557. Fellow servants of fireman. 
 
 § 1558. Fellow servants of mechanic 
 on railroad. 
 
 § 1559. Section boss as vice-princi- 
 pal. 
 
 § 1560. Injuries while operating car 
 with fellow servants. 
 
 ASSUMPTION OF RISK. 
 
 § 1561. Employe assumes all ordi- 
 nary risks. 
 
 § 1562. What is a "risk ordinarily 
 incident to his employ- 
 ment." 
 
 § 1563. Servant must report defects 
 to master. 
 
 § 1564. Servant having knowledge 
 of defects. 
 
 § 1565. Locomotive engineer as- 
 sumes all risks incident to 
 prosecution of employ- 
 ment in usual and ordi- 
 nary way. 
 
 § 1566. Risks assumed by locomo- 
 tive engineer. 
 
 § 1567. Assuming risk of working 
 with engineer on first trip. 
 
 § 1568. Knowledge of fireman that 
 engine was without brake 
 shoes. 
 
 § 1569. Assumption of risk by fire- 
 man as to brakes on 
 wheels. 
 
 § 1570. Assumption of risk by 
 switchman. 
 
 § 1571. Risks assumed by conductor 
 of passenger train. 
 
 § 1572. Railway company not liable 
 for injuries from obvious 
 or patent defects. 
 
 § 1573. Rule in South Carolina as 
 to obviously defective ap- 
 pliances.
 
 998 
 
 FORMS OF INSTRUCTIONS. 
 
 [§ 1495. 
 
 § 1574. Railroad employe need not 
 search for latent defects. 
 
 § 1575. Continuing- in employment 
 with knowledge of dan- 
 gerous conditions. 
 
 § 1576. Engineer's knowledge of de- 
 fect in head-light. 
 
 § 1577. Assumption of risk as to de- 
 fective stirrup after prop- 
 er inspection. 
 
 § 1578. Failure of servant to dis- 
 cover absence of ladder, 
 handles or steps at end 
 of car. 
 
 § 1579. Servant assumes risks of 
 usual jarring and shak- 
 ing of car. 
 
 § 1580. Assuming risk as to defect- 
 ive track. 
 
 § 1581. Assuming risk of working 
 on side track. 
 
 § 1582. Knowledge of presence of 
 dangerous culvert or cat- 
 tle-guard. 
 
 § 1583. Equal knowledge of master 
 and servant as to 
 "dodged" or low joint in 
 track. 
 
 CONTRIBUTORY NEGLIGENCE. 
 
 § 1584. Failure of engineer to exer- 
 cise ordinary care in oper- 
 ating engine. 
 
 § 1585. Contributory negligence of 
 plaintiff in wetting deck 
 and apron of engine. 
 
 § 1586. Failure of engineer to keep 
 proper lookout to avoid 
 collision. 
 
 § 1587. Failure to check train run 
 at dangerous speed when 
 in servant's power to do 
 so. 
 
 § 1588. Bleeding reservoir of car on 
 bridge unnecessarily. 
 
 5 1589. Shifting cars by "kicking"' 
 them back not negligence 
 per se. 
 
 § 1590. Contributory negligence of 
 
 § 1591. Voluntarily disconnecting 
 
 cars while in motion. 
 
 § 1592. Failure to guard against 
 danger of known custom 
 of kicking cars while 
 switching. 
 
 § 1593. Failure to have switch 
 thrown back after enter- 
 ing spur track: 
 
 § 1594. Care due by employe for his 
 own safety while signal- 
 ling returning section. 
 
 § 1595. Failure to use stirrup and 
 hand hold in boarding 
 car. 
 
 § 1596. Contributory negligence of 
 servant in failing to keep 
 lookout for signals. 
 
 § 1597. Failure to heed whistle or 
 bell. 
 
 § 1598. Failure to discover ap- 
 proaching train. 
 
 § 1599. Boarding rapidly moving 
 engine. 
 
 § 1600. Contributory negligence of 
 yardmaster in boarding 
 moving engine. 
 
 § 1601. Jumping from moving train 
 at defendant's command. 
 
 § 1602. Conducting oneself in dan- 
 gerous way on 'hand-car. 
 
 § 1603. Negligently striking mauls 
 one against another while 
 laying railroad track. 
 
 § 1604. Employe voluntarily placing 
 himself in place of danger 
 between engine and car. 
 
 § 1605. Riding on foot-board of en- 
 gine — Engine colliding 
 with other cars — Series. 
 
 § 1606. Employe sleeping in caboose 
 — Another train colliding 
 with caboose — Knowledge 
 of custom to sleep in ca- 
 boose by company. 
 
 § 1607. Employe riding on work 
 train. 
 
 § 1608. Remaining in dangerous po- 
 sition in reliance on fore- 
 man. 
 
 employe in coupling cars. 
 See "Negligence, Master and Servant," Chapter LXIII. 
 m GENERAL. 
 § 1495. Duty of Railway Companies — To-wards Employes. The 
 jury are instructed, that it is the duty of a railway company, as 
 employer, to use all reasonable care and foresight to provide safe 
 structures, competent employes, and all appliances necessary to the 
 safety of the employed, and to adopt such rules and regulations 
 for running its trains as will avoid injui-y to its employes, so far 
 as this can reasonably be done; and having adopted such rules, to 
 use all reasonable efforts to conform to them, or the company will 
 be responsible for consequences resulting from a departure from 
 them.* 
 1— Chicago, etc., Rd. Co. v. Taylor, 69 111. 461.
 
 § 1496.] NEGLIGENCE>-MASTER AND SERVANT. 999 
 
 § 1496. Master Cannot Delegate Duty to Furnish Reasonably 
 Safe Places for Servants to Work. It is the duty of a railway 
 company not only to provide but maintain reasonably safe places 
 for its servants to work in; and it cannot delegate this duty to 
 another, and thereby relieve itself from responsibility. And a serv- 
 ant engaged in the sei'vice of a railroad company has a right to 
 rely upon the company to furnish him with a reasonably safe place 
 in which to work, and it is the duty of the company to maintain 
 such place in a reasonably safe condition while the service continues.^ 
 
 APPLIANCES. 
 
 § 1497. Railroad Companies Bound to Furnish Ordinarily Safe 
 and Appropriate Appliances, The court instructs the jury that it 
 is the duty of railroad companies to use reasonable care in fur- 
 nishing to their employes implements and appliances with which 
 the said employes are to perform their work, and to see that such 
 implements are ordinarily safe and appropriate ones to be used. 
 The care which said companies are bound to use is such as an 
 ordinai'ily prudent person would use in such matters.^ 
 
 § 1498. Employe May Assume That Appliances Furnished by 
 Master Are Reasonably Safe. The court instructs the jury that it 
 is the duty of a railway company to exercise ordinary care to fur- 
 nish its servants and emploj^es reasonably safe and suitable machin- 
 ery and appliances with which to perform the duties required of 
 them; and when a person enters the employment of a railroad com- 
 pany he has the right to rely upon the assumption that the ma- 
 chinery and appliances with which he is called upon to work are 
 reasonably safe, and he is not required to use ordinaiy care to see 
 whether this has been done or not, and he does not assume the 
 risk arising from the failure of the railroad company to do its duty 
 (if there is a failure) unless he knows of the failure and the at- 
 tendant risk, or in the ordinaiy discharge of his own duty must 
 necessarily have acquired such knowledge, or unless, by the tenns 
 or nature of his employment, it is made the duty of such person 
 to inspect the machinery and appliances with which he is called 
 upon to work, and he has failed to make such inspection.* 
 
 § 1499. Duty of Railway Company to Provide Suitable and Safe 
 Material and Skillful Workmanship. A railroad company is bound 
 
 2— B. & O. S. W. Ry. Co. V. 3— Ohi.. R. I. & P. Ry. Co. V. 
 
 SpauldinpT, 21 Ind. App. 323, 52 N. Long-. 32 Tex. Civ. App. 40, 74 S. 
 
 E. 410 (412). W. 59 (60). 
 
 "It states the law in strict har- "This is sanctioned by the de- 
 
 mony with what we have said in cisions. Galveston, H. & S. A. Ry. 
 
 the former part of this opinion Co. v. Gormley, 91 Tex. 393, 43 S. 
 
 in regard to the duty of a master W. 877. 66 Am. St. Rep. 894; Int'l 
 
 to provide and maintain a safe & G. N. Ry. Co. v. Williams, 82 
 
 place or safe premises in which his Tex. 342. IS S. "W. 700." 
 
 servants are required to work." 4 — Mo., K. & T, Ry. Co. of Texas
 
 1000 FORMS OP INSTRUCTIONS. [§ 1500. 
 
 to use all reasonable care and caution to provide suitable and safe 
 material and skillful Avorkmanship in the construction of its road 
 and appurtenances and to exercise reasonable care and watchfulness, 
 to keep the same in good repair and safe condition, and if the com- 
 pany do not do S'O, and in consequence thereof an injury happens 
 to one of its servants or employes, while in the exercise of rea- 
 sonable care and caution himself, the company will be liable for 
 the injury thus sustained.^ 
 
 ROLLING STOCK. 
 
 § 1500. Duty of Railway Company to Provide Safe Rolling Stock, 
 (a) A railroad company must use reasonable care and caution 
 in the selection of its rolling stock, and in the employment of 
 competent persons to manage its business, so that no unnecessary 
 risk shall be incurred by any of its servants in the discharge of their 
 duties; and if the company does not do so, and an injury happens to 
 one of its servants, by reason of such neglect, the company will be 
 liable for the injury thus sustained, provided the person injured is 
 using reasonable care and caution to avoid the injury. 
 
 (b) It is a duty the law imposes upon railroad companies that 
 they shall do everything that reasonably can be done to furnish 
 safe cars to its employes, to be used by them in working on the 
 railroad, and it is not a duty that can be delegated to its officers 
 and agents, so as to avoid liability on the part of the company. 
 
 (c) And in this case, if the jury believe, from the evidence, that 
 the company, through the negligence and want of reasonable care 
 of its servants and agents, neglected and failed to furnish a safe car 
 upon the occasion in question, but did, through negligence and want 
 of reasonable care and caution, furnish one that was out of repair, 
 as charged in the declaration, and that by reason of such defect the 
 plaintiff (or the deceased), while using ordinary care, and in the 
 discharge of his duty, was injured (or killed), then the jury should 
 find the defendant guilty; provided, they further believe, from the 
 evidence, that the plaintiff (or the deceased) did not know of such 
 defect, and could not have known the same, by the use of reasonable 
 care and caution on his part." 
 
 V. Blackman, 32 Tex. Civ, App. Ry. Co. v. Engelhorn, 24 Tex. Civ. 
 
 200. 74 S. W. 74 (75). App. 324, 62 S. W. 561, 65 S. W. 68 
 
 "The above corrortly announces So. Pac. Ry. Co. v. Winton, 27 
 
 the nbstract principles of law per- Tex. Civ. App. 503, 66 S. W. 481 
 
 tninliitr to the phase of the case Galveston, Hi & S. A. Ry. v. Davis 
 
 to whifh it relates made by the 27 Tex. Civ. App. 279, 65 S. W 
 
 pleafllDKS and the evidence. M., 217." 
 
 K. & T. Ry. V. Hannlpr, 91 Tex. 5— Briekman v. S. C. Rd. Co., 8 
 
 347. 43 H. W. 508; T. <<fe N. O. Rv. S. C. 173. 
 
 V. Rlnf,'le, 91 Tex. 287. 42 S. W. 6— Perea S. Co. v. Kraft, 31 Ohio 
 
 971; T. *: P. Ry. v. O'Fiel, 78 Tex. St. 287. 
 486, 15 S. W. 33; San A. & A. P.
 
 § 1501.] NEGLIGENCE— MASTER AND SERVANT. 1001 
 
 § 1501. Duty as to Inspection of Cars Received from Other Roads. 
 
 The court instructs the jury that it is the duty of the defendant 
 company to exercise reasonable and ordinary care to see that cars 
 received by them from other roads are in a reasonably safe and 
 sound condition when incorporated in its moving trains, so as not to 
 subject its employes when handling and moving its trains, to unneces- 
 sary or unusual danger and risk. But a railway company is not an 
 insurer of the safety of its employes while in the discharge of their 
 duties, nor an insurer of the safety and suitableness of the cars 
 used and operated on its road by its emi^loyes, but it is held only to 
 the use of ordinary care to see that the cars are in a reasonably 
 safe condition and to use of such care to maintain them in such 
 reasonably safe condition. The defendant, however, cannot be held 
 liable, in any event, if he has exercised ordinary care in inspecting 
 the car and keeping it in reasonably safe repair; nor would the de- 
 fendant be liable if the alleged defect was hidden, and could not 
 have been discovered by the exercise of ordinary care on the part 
 of the defendant.'' 
 
 § 1502. Furnishing Car Strong Enough for the Transportation of 
 Steel Rails — Series, (a) The court instructs the jury that under 
 the evidence in this cause J. M. is a minor, and that T. M. was duly 
 appointed next friend of the said J. M. The court instructs the jury- 
 that plaintiff had a right to assume that the car furnished for his 
 use by the defendant was reasonably safe and sufficient for the 
 purpose of handling steel rails ; and it was not incumbent on plaintiff 
 to search for hidden defects in the said car, but it was the duty of 
 the defendant to use reasonable care, diligence or caution to have 
 said ear in a reasonably safe condition for use. If you believe from 
 the evidence that the car mentioned in the evidence, and in the peti- 
 tion, was at the time it is alleged the plaintiff was injured, in a 
 defective condition, and not reasonably safe, and that the agents 
 or servants of defendant whose duty it was to furnish, inspect or 
 repair such ears, knew, or by the exercise of reasonable diligence 
 might have known the condition of said car, then such knowledge is 
 knowledge of defendant, and such neglect or failure to obtain such 
 knowledge is the negligence or failure of defendant. 
 
 (b) The court instructs the jmy that if you believe from the 
 evidence that on or about the 18th day of August, 1899, J. M., the 
 plaintiff, was in the employ of defendant, and that while in the 
 discharge of his duties as such employe, he was without carelessness 
 on his part, which contributed directly thereto, struck and injured 
 by a rail falling from defendant's car because said car was weak, 
 defective and not reasonably safe, then your verdict will be for 
 plaintiff, if you believe the weak, defective and unsafe condition of 
 said car was unknown to plaintiff and could not have been known 
 
 7— Int. & G. N. R. Co. v. Hawes, Tex. Civ. App. — , 54 S. W. 325 (326)
 
 1002 FORMS OF INSTRUCTIONS. [§ 1502. 
 
 by ordinary care and caution on his part, and that said condition of 
 said car was known to defendant, or might have been known to 
 defendant by reasonable diligence and inspection on its part. 
 
 (c) The court instructs the juiy that it is the duty of defendant 
 to supply its employes with cars in a reasonably safe condition, and 
 it is the duty of said defendant in constructing its cars for the 
 use of its employes to exercise ordinary care and skill in construct- 
 ing the same, and in selecting the materials with which to construct 
 and build said cars, and in this cause, if you believe defendant 
 failed or neglected to discharge these duties above specified, and in 
 consequence of such neglect the car broke down and a rail on said 
 ear fell upon and injured the plaintiff while the said plaintiff was 
 in the exercise of ordinary care, then the verdict will be for the 
 plaintiff. 
 
 (d) The court instructs the jury, that if you believe from the 
 
 evidence, that on or about the of , plaintiff was in 
 
 the employ of defendant, and was ordered by foreman of defendant 
 to lift and place upon a truck or push car used by defendant a 
 number of steel rails, and while so employed, and whilst said car was 
 being loaded and pushed over defendant's track, said car and truck 
 gave way, broke and fell, causing a steel rail to fall from said car 
 upon the plaintiff and injured him, then your verdict will be for the 
 plaintiff, if you believe from the evidence that said push car gave 
 way and fell because the same was defective and constructed of 
 improper, unsuitable and insufficient material, and not reasonably 
 safe for an ordinary load, and that defendant knew, or might, by the 
 proper inspection, or by the exercise of ordinary care, have discov- 
 ered and known, the condition of said car. 
 
 (e) The court instructs the jury that if you believe from the 
 evidence that the rubble ear was made of brash, brittle, weak and 
 unsuitable material, and not reasonably safe for the purposes for 
 which it was being used when loaded with an ordinaiy load, and for 
 this cause the said car broke, then the fact (if it be a fact) that it 
 was overloaded at the time it broke down does not absolve the 
 defendant from liability, 
 
 (f) The jury are instructed that if you find for plaintiff you 
 will, in assessing the damages, take into consideration the physical 
 condition he was in before the injuries in question, the physical pain 
 and mental anguish he has suffered occasioned by said injuries, and 
 the physical pain and mental anguish, if any, he is likely to suffer in 
 the future because of said injuries; and in addition to this you may 
 also consider to what extent, if any, plaintiff's capacity for earning 
 a livelihood after his majority, to-wit, after he arrives at the age 
 of twenty-one years will be impaired by said iniuries: and you will 
 return a verdict for him in such sum as you will believe to be just 
 and reasonable, not exceeding five thousand dollars.^ 
 
 8— Mltoholl V. Wab. R. Co., 97 Mo. "The InRtructinn for appellant, 
 App. 411, 76 S. W. 647 (648). on the other hand, in effect de-
 
 1503.] 
 
 NEGLIGENCE— MASTER AND SERVANT. 
 
 1003 
 
 § 1503. Cars Must be in Condition to be Uncoupled with Reason- 
 able Safety. Tlie court instructs the jury that it was the duty of 
 the defendant to exercise reasonable care to have and to keep its cars 
 in proper condition, so that they could be uncoupled with reasonable 
 safety; and plaintiff had a right to assume, unless he had informa- 
 tion to the contrary, that defendant had performed its duty in this 
 respect.^ 
 
 § 1504. Not Negligence for Railroad to Use Couplings or Dead- 
 woods of Unequal Height. The court instructs the juiy that it is 
 not negligence for the defendant company to use ears on its railroad 
 and in its yards, the couplings or deadwoods of which were not of 
 uniform or equal height, provided the said deadwoods or couplings 
 were in other respects safe appliances.^" 
 
 clared the law to be that, if the 
 car was overloaded and broke 
 down because overloaded, then re- 
 spondent was g-uilty of contribu- 
 tory negligence and could not re- 
 cover. In short, it was left to the 
 jury by these instructions to say 
 whether the car broke down from 
 inherent weakness, or on account 
 of the overload. "Whether the car 
 would have broken down under an 
 ordinary load and the accident 
 happened, is perhaps under the 
 evidence somewhat problematic. 
 Yet there was evidence tending to 
 show that it was incapable of car- 
 rying an ordinary load of steel 
 rails, and we think it was proper 
 to submit the question to the 
 jury." 
 
 9— L. & N. R. Co. V. Baker, 106 
 Ala. 624, 17 So. 452 (453). 
 
 "This charge given for the plain- 
 tiff states the law as declared by 
 the statute itself and by the de- 
 cisions of this court — i. e., that 
 the employe may recover for in- 
 juries resulting from defects in 
 the conditions of the ways, works, 
 machinery, or plant connected with 
 or used ip the business of the em- 
 ployer, unless he knew of the de- 
 fect, and failed in a reasonable 
 time to give notice of it. Until 
 he has such knowledge he has a 
 rifrht to presume there are no de- 
 fects. Code § 2590; G. P. Ry. Co. 
 v. Davis. 92 Ala. 300, 9 So. 252, 25 
 Am. St. Rep. 47: L. & N. Ry. Co. 
 V. Orr. 91 Ala. 554, 8 So. 360; L,. & 
 N. Ry. Co. V. Hawkins, 92 Ala. 
 241, 9 So. 271." 
 
 10— Penn. Co. v. Ebaugh, 144 Ind. 
 687, 43 N. E. 936 (937. 93S). 
 
 "The following decisions sustain 
 the rule that it is not negligence 
 for a railway company to use, of 
 its own or those of another com- 
 
 pany in regular transportation, 
 cars constructed with uneven 
 couplings or deadwoods. M. C. 
 Rd. Co. v. Smithson, 45 Mich. 212, 
 7 N. W. 791; Smith v. Potter, 46 
 Mich. 258, 9 N. W. 273; Ft. W., J. 
 & S. Rd. Co. V. Gildersleeve, 33 
 Mich. 133; Hulett v. Railwav Co., 
 67 Mo. 239; Toledo, W. & W. Ry. 
 Co. V. Black, 88 III. 112; Toledo, 
 W. & W. Ry. Co. V. Asbury, 84 
 III. 429; Ind. B. & W. Rd. Co. v. 
 Flannigan, 77 III. 365; Whitwam 
 V. Railroad Co., 58 Wis. 408, 17 N. 
 W. 124; Kelly v. Abbot, 63 Wis. 
 307, 23 N. W. 890, 53 Am. Rep. 292: 
 Way V. Raijroad Co., 40 Iowa 341; 
 Baldwin v. Railroad Co.. 50 Iowa 
 680; St. L., I. M. & S. Ry. Co. V. 
 Higgins, 44 Ark. 293. 
 
 "The obligation of railway com- 
 panies is to use ordinary care to 
 supply reasonably safe appliances 
 for coupling, and they are not re- 
 quired to furnish safe appliances 
 wTiere, from the nature of the busi- 
 ness, safety is not possible. Nor 
 are they required to provide the 
 best or the most approved, or any 
 particular design of appliances. 
 L. S. & M. S. Ry. Co. v. McCor- 
 mick, 74 Ind. 440; Indiana Car Co. 
 V. Parker, 100 Ind. 181; Jenney 
 Elec. L. & P. Co. V. Mn-'-hy, 115 
 Ind. 566. 18 N. E. 30; and cases 
 cited above. In the first of the 
 cases just cited it was said: 'The 
 master's obligation is not to sup- 
 ply the servant with absolutely 
 safe machinery, or with any par- 
 ticular kind of machinery, but his 
 obligation is to use ordinary and 
 reasonable care not to subject the 
 servant to extraordinary or un- 
 reasonable danger. When a mas- 
 ter employs a servant to do a par- 
 ticular kind of work, with particu- 
 lar kind of implements and ma-
 
 1004 FORMS OF INSTRUCTIONS. [§ 1505. 
 
 § 1505. Defects in Coupling Apparatus Between Caboose and Lo- 
 comotive. If you believe from the evidence that the coupling ap- 
 paratus was out of repair as charged in the declaration and that its 
 condition and the effect thereof on the operation of the knuckle was 
 not discoverable by the use of ordinary care, then and in such ease 
 the plaintiff cannot under the law be held to have assumed the risk 
 of such defect.^ ^ 
 
 § 1506. Injuries Through Defective Drawbars or Drawheads. The 
 court instructs the jury that if you believe from the evidence that 
 the defendant did not use reasonable care in providing ears with, 
 sound coupling appliances, but used two cars with split and slivered 
 drawbars and drawheads, and that the plaintiff while attempting to 
 make a coupling between the two cars, was injured by reason of a 
 defective drawbar or drawhead attached to said cars, and further 
 believe from the e\ddence that the plaintiff in attempting to make 
 such coupling, used reasonable care and caution for his personal 
 safety, you should find defendant guilty.^- 
 
 § 1507. Injury to Brake Through Brake Staff Breaking. Bearing 
 in mind the foregoing instructions, if you believe from the evidence 
 that the plaintiff C. was in the employ of the defendant, the M., K. 
 & T. R. Co. of T., in the capacity of a brakeman, and that while he 
 was engaged in performing the duties of his employment, exercising 
 ordinary care for his own safety, ti-jdng to set a brake on one of 
 defendant's coal cars in the city of D., the staff of said brake broke 
 and caused the plaintiff to fall and be injured, and if you believe 
 further from the evidence, that the said unsafe condition of said 
 brake staff could have been discovered and remedied by the de- 
 fendant before plaintiff received his injuries, if the defendant had 
 exercised ordinary care to furaish a brake staff on said car reason- 
 ably safe for use, then, if you believe all these facts from the 
 testimony, you will find for the plaintiff.^^ 
 
 chinery, the master does not agree of repair. The objection is with- 
 that the implements and machin- out merit. The lifting lever mu?t 
 ery are free from danger in their be held to be a part of the coup- 
 use; but he agrees that such im- ling apparatus and the latter can- 
 plements and machinery to be used not be said to have been in good 
 by the servant are sound, and fit repair when the lever necessary to 
 for the purpose intended, so far operate it was out of repair. The 
 as ordinary care and prudence can instruction as given stated the law 
 di.scover. As we have already seen, more favorably to appellant than 
 the question here at issue ,did it was entitled to, because, as 
 not involve any inquiry as to we have heretofore held, appellee 
 an imperfection or danger in the did not assume the risk of oper- 
 appllances named, excepting- in ating a coupler which would not 
 the lack of .uniformity in hoight.' " couple the caboose and locomotive 
 
 11 — C. & A. Ry. Co. V. "Walters, without the necessity of his going 
 
 120 Til. App. 152 (158), aff'd 217 111. between the cars." 
 
 87. 75 N. -R. 441. 12—1. C. R. R. Co. v. Harris, 
 
 "The objoction urged to this in- 6.3 111. Apn. 172 (174), aff'd 162 111. 
 
 fitru<tion i.s. that the evidence 200 (202), 44 N. R. 498. 
 
 shows that the coupling apparatus 1.3— Mo., K. & T. Ry. Co. of Tex. 
 
 was In excellent repair; that only v. Crowder. — Tex. Civ. App. — , 
 
 the lever-rod used to raise the pin 55 S. "W. 380 (381). 
 for uncoupling purposes was out
 
 § 1508.] NEGLIGENCE— MASTER AND SERVANT. 1005 
 
 § 1508. Latent Defect in Brake Rod. The court instructs the jury 
 that even if you should find that the brake rod was improperly 
 bolted, and that it fell and injured the plaintiff, as alleged in his 
 petition, still, if any defect which caused it to fall was latent, and 
 could not have been discovered by the defendant by the use of 
 ordinary care, then your verdict should be for the defendant; or, 
 if you find that the plaintiff was not injured as claimed by him, then 
 you will find for defendant.^* 
 
 § 1509. Using Car Without Hand-holds— Series, (a) It was the 
 duty of the defendant railway company to use ordinaiy care and 
 diligence to furnish safe machinery, and cars properly equipped, and 
 supplied with appliances reasonably necessary and proper to enable 
 its emploj^es to perfonn the duties required of them with reasonable 
 degree of safety. 
 
 (b) It was also the duty of the plaintiff to exercise ordinaiy care 
 and prudence in the performance of his duties, to avoid injury to 
 himself. 
 
 (c) By the term "negligence," as used in this charge, is meant 
 the doing of that which a pei-son of ordinary car& and prudence 
 would not have done under similar circumstances, or the failure to 
 do that which such a pei-son would have done under like circum- 
 stances. 
 
 (d) By the term ''ordinary care," as used in this charge, is 
 meant such degree of care as a person of ordinary prudence would 
 exercise under similar circumstances. 
 
 (e) The plaintiff when he entered the service of the defendant 
 company as a brakeman, assumed the risks and dangers ordinarily 
 incident to such employment, but did not assume any risks arising 
 from the negligence of the defendant, if any there was, unless the 
 plaintiff knew of such negligence in time to have avoided injurji 
 therefrom. 
 
 (f) Now, if you find from a preponderance of the evidence that 
 the plaintiff, H. R. M., was in the employment of the defendant as a 
 brakeman, as alleged in his petition and that while engaged in his 
 duties as such brakeman in coupling cars for said defendant, he was 
 injured as alleged in his petition; and you further find from the 
 evidence that the stationary car which plaintiff was endeavoring to 
 couple at said time was not provided with a hand-hold or grab-iron 
 on the end thereof, and that the defendant knew, or by the exercise 
 of ordinary care and diligence could have known, that said ear was 
 not so equipped with the hand-hold, if you find it was not prior to 
 said accident, and that a hand-hold in the end of said car was a 
 necessary appliance to said car, to enable brakemen to perform their 
 duties in coupling said car with safety, and that such hand-hold was 
 
 14 — G.. a. & S. A. Ry. Co. v. "We cannot see anything in this 
 Buch, 27 Tex. Civ. App. 283, 65 of which the appellant can com- 
 S. W. 681 (684). plain."
 
 1006 FORMS OF INSTRUCTIONS. [§ 1509. 
 
 such au appliance as defendant company rested under an obligation 
 to provide in the discharge of its general duty to use ordinary care 
 to furnish reasonably safe appliances in coupling cars, as heretofore 
 explained to you in this charge, and that the failure of defendant 
 companj' to provide said stationary car with such hand-hold, if you 
 find there was such failure, amounted to negligence on the part of 
 said company, as that term has been hereinbefore defined in this 
 charge, and that such negligence, if any, caused plaintiff to receive 
 the injuries complained of in his petition or any of them — then you 
 will find a verdict for the plaintiff, unless you further find that 
 plaintiff was himself guilty of negligence which contributed to bis 
 injuries, as will be hereinafter explained. 
 
 (g) You are further instructed that if you find from the evidence 
 that plaintiff was himself guilty of negligence in the manner in 
 which he attempted to make said coupling, which contributed to his 
 injuries, then he cannot recover, even though you should find the 
 defendant company was negligent in using said ear without hand- 
 holds, if it did so use it. 
 
 (h) Now, if you find from the evidence that said stationary ear 
 was without a hand-hold, and that the defendant company was guilty 
 of negligence in using said car in such condition, if you find it did 
 so use it, but you further find that plaintiff knew or ascertained that 
 said car was not supplied with a hand-hold in the end thereof in 
 time to have avoided the injuries received by him, if any, by the 
 exercise of ordinary care on his part, then he cannot recover; and, if 
 you so find, you will return 'a verdict for the defendant. 
 
 (i) You ai*e further instructed that if you find from the evidence 
 that the plaintiff, at the time he attempted to make the coupling in 
 which he was injured, if he was injured, went between the cars with 
 ]jis face turned towards the moving car, and attempted to make the 
 coupling in that position, and that this was more dangerous than to 
 couple cars with the face turned towards the stationary ear, and 
 that such act, if any, on plaintiff's part, was negligence, as that 
 term has been heretofore explained, land that same contributed to 
 plaintiff's injuries, then in that event plaintiff would be chargeable 
 with contributory negligence, and could not recover; and, if you find 
 the facts to be as above set out, you will return a verdict for the 
 defendant, even though you should find the defendant was guilty of 
 negligence in failing to provide handholds on the end of said station- 
 ary car, if it did so fail. 
 
 (j) You are further instructed that unless you find from the 
 evidence that the hand-hold was not on the end of the stationary 
 (=nr at the time of the accident, and that the absence of the hand- 
 hold was neglifrence on the part of defendant, and was the proximate 
 cnnsn of plaintiff's injuries, you will return a verdict for the 
 defendant. 
 
 (k) Unless you find from a preponderance of the evidence that
 
 § 1510.] NEGLIGENCE— MASTER AND SERVANT. 1007 
 
 the statiouai-y ear plaintiff was endeavoring to couple at the time of 
 the accident was not provided with a hand-hold or gi'ab-iron in the 
 end thereof, and unless you find that the defendant company was 
 guilty of negligence in using such oar in such condition, if you find 
 it did so, 3^ou will return a verdict for the defendant company; or 
 if you find the plaintiff was guilty of contributory negligence, as 
 heretobefore defined, you will return a verdict for defendant company. 
 
 (1) If you find a verdict for the plaintiff under the foregoing in- 
 structions, you will find in such sum as will reasonably and fairly 
 compensate him for the mental and physical pain he suffered, if any, 
 as the result of such injuries, and also the reasonable value of his 
 services for the time lost by reason thereof, if any, and also for his 
 diminished capacity to labor and earn money in the future, if any. 
 
 (m) The evidence 'admitted before you as to the statements 
 claimed to have been made by the witness F. to the witness C. as 
 to the hand-hold, or absence thereof, on the stationary car, was only 
 admitted for the purpose of affecting the credibility of the witness 
 F., and not as evidence of the facts stated by said F. to said C, if 
 he made any such statement, and if you will only consider such 
 testimony for the purpose for which it was admitted, and none other. 
 
 (n) The burden of proof is on the plaintiff to show by- a pre- 
 pondei'anee of the evidence the facts which will entitle him to recover. 
 
 (o) In the defenses of contributory negligence on part of the 
 plaintiff, the burden of proof is on the defendant to establish the 
 same by a like preponderance of the evidence. 
 
 (p) The jury are the exclusive judges of the credibility of the 
 witnesses, the facts proven, and the weight to be given the testi- 
 mony, but must receive the law from the court, and be govenied 
 thereby.^^ 
 
 § 1510. Defect in Handhold of Car — Competency of Inspector, 
 (a) You are charged, at the instance of the defendant, that a rail- 
 way company does not insure the safety of the tools and appliances 
 which it furnishes to its Servant for his use. The law requires that 
 it use ordinaiy care and caution to provide its servant with tools 
 and appliances reasonably safe for the doing of the work for which 
 he is employed. So, in this case, although you may believe from 
 the evidence that the handhold on the ear was defective, yet if you 
 believe from the evidence that defendant exercised ordinary care and 
 caution to discover such defects — that is to say, that it used that 
 care and caution which an ordinarily prudent person would have used 
 under similar circumstances — then it will be your duty to return a 
 verdict for defendant; and this, though you may believe that the 
 plaintiff was injured by reason of the handhold on the ear being 
 defective. ^^ 
 
 15— Mo.. K. & T. Ry. Co. of Tex- 16— St. L. S. W. Ry. Co. of Toxas 
 a" V. Milam. 20 Tex. Civ. App. v. Corrigan, — Tex. Civ. App. — , 
 68S. 50 S. W. 417 C418). 81 S. W. 554 (555).
 
 1008 FORMS OF INSTRUCTIONS. [§ 1511. 
 
 (b) If you believe from the evidence that plaintiff, while in the 
 discharge of the duties of his employment was upon a box ear in 
 use by defendant, and attempted to descend from said car, and in 
 such attempt, that he took hold of a handhold on the top of said 
 car, provided for the purpose ; and if you believe that while holding 
 to such handhold, it pulled loose from the car and caused plaintiff 
 to be thrown to the ground and injured as alleged; and if you find 
 from the evidence that the wood to which said handhold was fas- 
 tened by screws had become, and was, rotten or decayed, so that it 
 would not, and did not hold said screws, and that defendant knew 
 of such condition (if defective), or by the exercise of ordinaiy care, 
 it ought to have known of the same; and if you believe that on 
 account of such rotten and decayed condition of said wood (if any) 
 said handhold was caused to and did pull loose from said car; and 
 that the furnishing by defendant for plaintiff's use such defective 
 handhold (if the same was defective as aforesaid) was negligence, 
 and that such negligence (if any) was the proximate cause of the 
 plaintiff's injuries (if any) you will find for the plaintiff unless you 
 find for the defendant under other issues submitted to you.'-''^ 
 
 § 1511. Ordinarily no Obligation to Provide Steps at End of 
 Freight Cars for Use of Employes. The jury are instructed, as a 
 matter of law, that the defendant was under no obligation to provide 
 steps at the end of its freight cars for the use of employes whose 
 business it was to uncouple cars, provided the jury believe, from 
 the evidence, that the use of freight oars without such steps did not 
 
 "This proposition is unquestion- said handhold pulled off, it was 
 
 ably, the law and applicable to the defective, and also assumes that 
 
 case' G. C. & S. F. Ry. Co. v. it pulled off because defective, as 
 
 Smith, 87 Tex. 348, 28 S. W. 520; a result of its use by the plaintiff 
 
 G. H. & S. A. Ry. Co. v. Gormley, in the course of the duties of his 
 
 91 Tex. 393, 43 S. W. 877, 66 Am. St. employment; (4) that the charge 
 
 894; Bering Mfg. Co. v. Peterson, assumes that if the handhold 
 
 28 Tex. Civ. App. 124, 67 S. W. 133. pulled off, it did so solely because 
 
 The master is not required to ex- of the rotten and decayed condi- 
 
 ercise more than ordinary care to lion of the wood to which it was 
 
 select and furnish his servant suit- fastened and thereby ignored the 
 
 able instrumentalities and re- testimony tending to show that 
 
 sources to accompli-sh the work the handhold may have been pried 
 
 the servant is put to." off by some instrument and was, 
 
 17— Mo., K. & T. Ry. Co. of Tex- when inspected shortly before the 
 
 as V. Box, — Tex. Civ. App. — , accident and started to the place 
 
 93 S. W. 134 (136). of the accident, securely fastened; 
 
 "The objections ui-gcd to this (5) that said charge is erroneous, 
 
 charge are contained in four prop- because plaintiff's right to recover 
 
 ositions propounded under appel- is not made to depend upon its 
 
 lant's first assignment of error, the having been pulled off as a re- 
 
 Kub.stance of all of which is as suit of plnintiff's use of it while 
 
 follows: Said charge is upon the descending from the car in the 
 
 weight of the evidence, and does discharge of his duties, and, as 
 
 not present for the determination framed, was calculated to impress 
 
 of the jury: (1) Whether or not the jury with the iden that the 
 
 the handhold was defective; (2) court was of the opinion said 
 
 wheth'T it was pulled off by the handhold was defective. We 
 
 plaintiff in desnending frnm the think none of the objections should 
 
 car In the cr)urse of his duties- be sustained." 
 (.3) said charge as:-;umes that ii.
 
 §1512.] NEGLIGENCE— MASTER AND SERVANT. 1009 
 
 render the work of uncoupling by such employes unreasonably dan- 
 gerous and unsafe. ^^ 
 
 § 1512. Injury to Engineer Through Defective Step on Engine. 
 
 If you believe from the evidence that on or about the day of 
 
 , 19 — , the plaintiff, C, was in the employ of the defendant 
 
 in the capacity of a locomotive engineer, and that on said date he 
 was in the perfonnance of his duty upon an engine running west- 
 ward toward the city of S, and that, when said engine reached the 
 station of S, it became plaintiff's duty to alight from said engine, 
 and that, in order to do so, it was his duty to use one of the steps 
 upon said engine, and that said step was provided by the defendant 
 for the purpose of alighting from the engine ; and if you further 
 believe from the evidence that, as plaintiff stepped upon said step, 
 the step and stem upon which it was fixed came off and gave way 
 and caused plaintiff to fall, and that thereby he sustained any of 
 the injuries alleged in his petition; if you further believe from the 
 evidence that the said step and stem upon which it was fixed was 
 loose, defective, and insecurely fastened, and that, by reason thereof, 
 the said step and stem thereof came off with the plaintiff and caused 
 him to fall, if you find it did come off and cause him to fall; and if 
 you further believe from the evidence that the defendant knew, or 
 by the exercise of ordinary care would have known, that said step 
 and the stem thereof was in a loose, defective, and insecure condi- 
 tion, if you find it was in such condition; and that it was negligence 
 on the part of the defendant to permit said step and the stem 
 thereof to be in such condition; and that such negligence, if any, 
 directly caused plaintiff's injuries, if any; and you further believe 
 from the evidence that the plaintiff was not guilty of contributory 
 negligence and did not assume the risk, then I charge you that your 
 verdict must be for the plaintiff.^^ 
 
 § 1513. Notice by Engineer to Foreman of Roundhouse of Defect 
 in Engine, (a) The court instructs the juiy that you will next 
 inquire whether the defendant knew of the defective condition of said 
 locomotive engine long enough before the time of the accident to have 
 repaired the same, and negligently used and required its servants to 
 
 18 — C, B. & Q. R. Co. v. "War- the cTiarge should have read: 'Was 
 
 ner, 123 111. 38 (48), 14 N. E. 206. not guilty of contributory negli- 
 
 19 — Galveston, H. & S. A. Ry. gence or did not assume the risk, 
 
 Co. V. Cherry, — Tex. Civ. App. because defendant was entitled to 
 
 — , 98 S. W. 898; St. L. & S. F. Ry. a verdict on either one of such 
 
 Co. v. Skasrgs, 32 Tex. Civ. App. findings.' The charge in our opin- 
 
 363. 74 S. W. 783 (785). ion was not subject to be under- 
 
 "The criticism is that the words, stood as appellant contends. The 
 
 'and you further believe from the impression it conveyed was that 
 
 evidence that plaintiff was not plaintiff could recover unless the 
 
 guilty of contributory negligence jury believed that he was both not 
 
 and did not assume the risk, then guilty of contributory negligence 
 
 I charge you that your verdict and did not assume the risk. Un- 
 
 must be for plaintiff,' placed a der the chnrge they had to find 
 
 burden on defendant more oner- both in order to find for plain- 
 
 ous than was required of it; that tiff." 
 64
 
 1010 FORMS OF INSTRUCTIONS. [§ 1514. 
 
 use it on the day of said accident in such defective condition. And 
 in this connection you are instructed that notice thereof to the 
 foreman of defendant's machine shop at L., Ky., if given by the 
 
 engineer on the evening before the accident, was notice to the 
 
 defendant, and would charge the defendant with knowledge of its 
 defective condition, 
 
 (b) If the engineer in charge of the locomotive on which the 
 cylinder cock on one of its engines was broken off, and the opening 
 plugged up, took said locomotive into the roundhouse or machine 
 shop of the defendant at L., and notified the foreman in charge of 
 said shop of said defect, and if you find that repairs of such defects 
 were not then made at such shop, then you will find defendant had 
 notice of said defects. 2° 
 
 § 1514. Injury to Fireman from Side Rod on Engine Breaking. 
 
 If you believe from the evidence that on or about , that 
 
 plaintiff was in the employ of defendant as a fireman on one of its 
 engines, and that while so employed the side rod of said engine 
 broke, and injured plaintiff, as alleged in his petition; and if you 
 further believe from the evidence that the side rod was old, defective 
 and unfit for service, as alleged in plaintiff's petition, and that the 
 metal of the side rod was weak and defective; and if you further 
 believe from the evidence that it was negligence on the part of 
 defendant to allow said side rod to be in such condition as you find 
 it was, and that such negligence, if any, was the direct and proxi- 
 mate cause of said side rod breaking, and the plaintiff's injuries, if 
 any; and if you believe from the evidence that the plaintiff did not 
 assume the risk, then you will find for plaintiff.^^ 
 
 20 — Ohio & M. Ry. Co. v. Stein, often as custom and experience 
 
 140 Ind. 61, 39 N. E. 246 (248). require.' . . . Ordinary care 
 
 "It was proven that the en- requires that a master shall take 
 gineer did give such notice, and notice of the liability of the parts 
 we think the instructions form a of the machinery to decay from 
 correct statement of the law in age or wear out by use.' The mas- 
 relation thereto. Because the fore- ter's duty is a continuing one. 
 man of the roundhouse or machine When, also, he appoints some other 
 shop at Louisville was in some re- person to perform the duties 
 spects the fellow servant of ap- which are thus owed primarily 
 pellee, it does not follow that he from himself, then the appointee 
 was so in all respects. In Indiana represents the master; and though 
 Car Co. V. Parker, 100 Ind. 181, in the performance of such duties 
 the court says: 'The duty of the the appointee may be and is a 
 empVoyer to provide safe machin- servant to the master, yet in these 
 cry and appliances is a continuing respects, that is, as performing 
 one.' Thompson (2 Neg. 984) says: the duties of the master, he is not 
 'But the master does not discharge a co-employe. Beach, Contrib. 
 his fiuty in this regard by pro- Neg. paras. 349, 356, and notes; 
 viditig proper and safe machinery, Mitchell v. Robinson, 80 Ind. 281, 
 or fit servants, in the first in- 41 Am. Rep. 812; Nail v. R. R. 
 stance, and then remaining pas- Co.. 129 Ind. 260, 28 N. E. 183, 611." 
 Klve. It is a duty to be afflrma- 21— G. H. & S. A. Ry. Co. v. Par- 
 tivoly and positively fulfilled and vin, 27 Tex. Civ. App. 60, 64 S. W, 
 performed. Ho must supervise. 1008. 
 examine and test his machines as
 
 § 1515.] NEGLIGENCE— MASTER AND SERVANT. 1011 
 
 § 1515. Furnishing Trucks for Removal of Trestles from Round- 
 house. The court instructs the jury that it was the duty of the 
 defendant company to use ordinary care to furnish trucks to be 
 used by the plaintiff in removing trestles from the roundhouse, rea- 
 sonably sufficient and safe for the pui"pose, and to use the same care 
 to keep the same repaired and in a reasonablj^ safe and sound con- 
 dition, and if it failed to use such care, such failvire would be 
 negligence; and if plaintiff was injured as alleged, and if such negli- 
 gence of the defendant company was the proximate cause thereof, 
 'then plaintiff could recover.^^ 
 
 TRACK AND ROADBED. 
 
 § 1516. Obligation to Keep Roadbed and Track Free From Ob- 
 structions. It is the duty of railroad corporations to furnish reason- 
 ably safe appliances for the perfonnance of the work required to be 
 performed by their employes, and furnish a reasonably safe place for 
 the performance of such work as they are required to perform, and 
 this obligation extends to the keeping of their roadbed and track 
 free from obstructions that may be dangerous to the persons of such 
 employes in the perfonnance of their duties on such train, so far 
 as the exercise of reasonable care on the part of such railroad cor- 
 poration can secure such safety.^^ 
 
 § 1517. Master Must Use Ordinary Care to See That They Are 
 Safe, (a) You are instnieted that the plaintiff, B. K., while emploj-ed 
 by the defendant, unless he knew to the contrary, had the right to 
 rely upon the assumption that the defendant would use and exer- 
 cise ordinary care in the operation of its track. It was plaintiff's 
 duty to use his senses, and take note of and observe whatever was 
 open and patent to common observation, and to use ordinary care to 
 protect himself from injury; and, if you believe from the evidence 
 that the plaintiff could have seen the obstruction on the track in 
 time to have prevented injury to himself, by the exercise of ordinary 
 
 22— Gulf, C. & S. F. Ry. Co. v. cism is that the instruction should 
 
 Davis, 35 Tex. Civ. App. 285, 80 S. have been modified so as to pre- 
 
 W. 253 (254). sent the qualification that knowl- 
 
 "The charg-e is an absolutely cor- edge of the conditions would bar 
 
 rect proposition. If appellee knew a recovery. 
 
 of the defect in the truck, the "The g-eneral proposition an- 
 proximate cause of the injury was nounced is riot objected to, but 
 his negligence; and the jury could the argument is, that in view of 
 not, under subsequent charges, the evidence, the suggested modi- 
 have found that the injury was fication was necessary. We think 
 the proximate result of the negli- not. There is no objection to such 
 gence of appellant." a statement of the general rule — 
 
 2?— Torre H. <fe I. Ry. Co. v. leaving it to the defendant to ask 
 
 Williams, Adm., 69 111. Ap^^- 392 for a statement of any exceptions, 
 
 (397). nff'd 172 111. 379, 50 X. E. limitations or qualifications that 
 
 116, 64 Am. St. 44. might be deemed relevant in view 
 
 "As we understand it, the criti- of the proof."
 
 1012 FORMS OF INSTRUCTIONS. [§ 1518. 
 
 care on his part, then youi' verdict should be in favor of the 
 defendant.^^ 
 
 (b) The company should have used all reasonable precaution and 
 ordinaiy care to secure the safety of its employes by keeping a suffi- 
 cient force at command, and of sufficient capacity, to keep its road- 
 way reasonably safe for the passage of its trains and the employes 
 in charge thereof. It cannot, for want of watchfulness, expose its 
 employes to unreasonable risk and escape liability, but the duty 
 imposed is that of ordinary care. The ordinary care required must 
 'be measured by the danger of the service and proportioned by it.-^ 
 
 § 1518. Right of Locomotive Engineer to Assume that Railroad 
 Track is Reasonably Safe. The court instructs the jury that it is 
 the duty of a railroad company to exercise ordinary care to keep 
 and maintain its railway track in such condition that it will be rea- 
 sonably safe to operate its trains thereon in the ordinary and usual 
 cari'ying on of its business as a railway corporation; and a loco- 
 motive engineer employed by a railroad company has the right to 
 rely upon the assumption that the railway track is kept and main- 
 tained by the company in a reasonably safe condition; and he may 
 rely upon said assumption unless he knows of a defect in the rail- 
 way track, or unless in the discharge of his duty he must neces- 
 sarily have acquired such knowledge.^^ 
 
 § 1519. Tracks and Sidings Must not be in Too Close Proximity 
 to Other Structures. The court instructs the jury that it is the 
 duty of a railway company to use ordinary care to see that its tracks 
 and sidings are not in such close proximity to other structures as to 
 
 24 — Texas & N. O. R. Co. v. principal end and aim of the opera- 
 Kelly, 34 Tex. Civ. App. 21, 80 S. tion of a railroad is the safety 
 W. 1073 (1077). of its employes. The instruction, 
 
 "It was the duty of the defend- in our opinion, is not erroneous, 
 ant to exercise ordinary care to It is the duty of the railroad com- 
 furnish a safe track for the plain- pany to use all reasonable pre- 
 tiff to travel over to and from caution to secure the safety of its 
 his work, and the plaintiff had the employes, and to keep a sufficient 
 right to assume that it would do force at command to keep its road- 
 so. The plaintiff assumed the way i-easonably safe for the pas- 
 risks of Which he had knowledge, sage of its trains and the employes 
 or by the exercise of ordinary care in charge thereof, and this was 
 could have discovered, but he was What the court advised the jury." 
 under no obligation to look out 26 — Southern K. Ry. Co. of Tex. 
 for the master's negligence. San v. Sage, — Tex. Civ. App. — , SO 
 Antonio & A. P. Ry. Co. v. Brook- S. W. 1038 (1039). 
 ing. — Tex. Civ. App. — . 51 S. W. "We are of the opinion that the 
 539; Bonnet v. Ry. Co., 89 Tex. 76, charge complained of is a correct 
 33 S. W. 334; Smith v. Ry. Co., — statement of a well established 
 Tex. Civ. App. — , 65 S. W. 85; I. principle of law applicable to the 
 A- (<. N. Ry. Co. V. Bnarden, 31 facts of this case. See Missouri, 
 Tex. Civ. App. 58. 71 S. W. 5.59." K. & T. Ry. Co. v. Hoskins. 79 S. 
 
 25— Dr-nver & R. G. R. Co. V. W. 369, 9 Tex. Ct. ,Rep. 648, and 
 
 W.'irrliig, — Colo. — , 86 Pac. 305 authorities there cited. The only 
 
 (312). care or diligence which could be 
 
 "This is objectionable, it is required of appellee was imposed 
 
 claimed, because It advised the upon him in other paragraphs of 
 
 jury, In effect, that the sole and the court's charge."
 
 § 1520.] XEGLIGENCE— MASTER AND SERVANT. 1013 
 
 unnecessarily endanger its servants and emploj'es who may be en- 
 gaged in the discharge of their duties upon trains or cars passing 
 along such tracks or sidings.^'^ 
 
 § 1520. Failure to Keep Track in Repair as Proximate Cause of 
 Injury. The court instructs the jury that if the evidence shows 
 that the injury to plaintiti was received by him in the reversing of 
 the engine ; that the reversing of his engine at that particular time 
 was rendered necessary or prudent by the fact that part of the ti'ain 
 was leaving the track; and that the train, or part of it, was leaving 
 the track on account of the negligence of defendant in keeping the 
 track in repair — this showing would trace the cause of the injury 
 directly to the negligence of defendant. But unless this train of 
 connection is shown by the evidence, as above stated, it will not be 
 shown that the negligence of defendant was the proximate cause of 
 the injury-; and if there is a failure on this point, the plaintiff can- 
 not recover, even though the defendant may have been negligent in 
 the maintaining of its traek.^^ 
 
 § 1521. Injury to Employe Through Insufficient Ballasting of 
 Road. The court instructs the jury that if they shall believe from 
 the evidence that the switch or siding in defendant's yard where 
 the plaintiff was injured was insufficiently ballasted, and that by 
 reason thereof it was dangerous to the employes of defendant neces- 
 sarily using the same in coupling ears, and that because of the 
 insufficient ballasting the plaintiff received the injuries of which he 
 complains, and that the plaintiff did not know of the insufficient 
 ballasting, and did not have an equal opportunity with the employes 
 of the defendant who were charged with the duty of looking after 
 its tracks to know of its condition, and, further, that the defendant, 
 or its agents or employes who are charged with the duty of looking 
 after its tracks, knew or might have known of its insufficient and 
 dangerous condition by the exercise of ordinary care, if such was 
 its condition, then the law is for the plaintiff, and the jurs'' should so 
 find, prox-ided that they shall further believe from the evidence that 
 the plaintiff did not contribute to cause his injuries by negligence 
 upon his part, but for which he would not have been injured.-® 
 
 § 1522. Sidetrack Slanting and Sidling. The court instructs the 
 jury that if you believe, from the evidence, that the plaintiff while 
 
 27— Galveston, H. & S. A. Ry. Co. sustained by plaintiff should have 
 
 V. Mortson, 31 Tex. Civ. App. 142, been left for determination by the 
 
 71 S. W. 770 (771). jury, and, in support of this posi- 
 
 28 — Knapp v. Sioux C. & P. Ry. tion, declare that the cause when 
 
 Co., 71 Iowa 41, 32 N. W. 18 (21), here before was reversed for the 
 
 54 Am. Rep. 1. reason that the court did not sub- 
 
 "This instruction is in harmony mit the question to the jury. Thi 
 with the doctrine recognized by question is clearly one of law. and 
 this court in the opinion in this is so recogrnized in our prior de- 
 case when it was here before. 65 cision in this case." 
 Iowa 91. 21 N. W. 198. Counsel 29— Louisville & N. R. Co. v. 
 insist that the question involving Rnss. 21 Ky. L. 1826. 56 S. W. 14. 
 the proximate cause of the injury "It is well settled that the mas-
 
 1014 
 
 FORMS OF INSTRUCTIONS. 
 
 [§ 1522. 
 
 in the employ of the defendant as freight brakeman, and in the dis- 
 charge of his duties as such brakeman, attempted to couple two 
 freight cars on the defendant's road, and in so doing used that care 
 and caution for his own safety that the ordinary careful man would 
 have exercised, and if you believe, from the evidence, that the side- 
 track where the ears were slanting and sidling and as a result thereof 
 not a reasonably safe place to work, then and in such case, if you 
 believe from the evidence that the plaintiff was injured, as charged 
 in the declaration as a result thereof, and that the unsafe condition 
 
 ter owes it to his servant to fur- 
 nish him a reasonably safe place 
 la which to work. This duty is 
 not only one at the beginning of 
 the business or employment^ but 
 remains throughout the service. 
 If the machinery or place is rea- 
 sonably safe at the beginning, the 
 obligation is not discharged, but 
 the master must use ordinary care 
 to keep the appliances and place 
 reasonably safe. It is known by 
 all men, by common experience 
 and observation, that railroad 
 tracks, as well as machinery, need 
 attention and repair, and this duty 
 is on the master. The servant, 
 presumably knowing of this duty 
 of the master, may reasonably 
 expect its discharge, and he may 
 act with the expectation that the 
 master has performed his duty. 
 However, when the servant be- 
 comes aware that there exist de- 
 fects, he then assumes the risk of 
 those defects, if he remains in 
 the service, unless the master as- 
 sumes the risk by a promise to 
 repair. If the defects be not 
 known to the servant injured 
 thereby, yet, if he has opportu- 
 nities to discover the defect equal 
 with the servant whose duty it is 
 to repair or look after such, then 
 the servant injured cannot com- 
 plnin that it was not discovered 
 and remedied. This is true, be- 
 cause he could have made the 
 discovery, and should have done 
 so, as readily and as so'on as the 
 servant charged with the duty to 
 repair. We are of opinion that to 
 have given the instruction asked 
 for by appellant would have re- 
 quired of appellee to have assumed 
 the duty imposed on the master; 
 i. e., to exercise orrlinary care 
 to discover a defect in the place 
 where appellee worked. This duty 
 rests on appellant. In the case 
 of Louisville & N. R. R. Co. v. 
 
 Foley, 94 Ky. 220, 21 S. W. 866, 
 this coui^t said: 'The lower court 
 therefore properly instructed that 
 if the injury was caused by im- 
 proper or defective appliances fur- 
 nished plaintiff by defendant with 
 which to perform the duties re- 
 quired of hiin, and defendant knew 
 or might have known of their con- 
 dition and character by use of 
 ordinary care, and plaintiff did not 
 know thereof, the law was for him, 
 and the jury should so find. 
 . . . The rule requiring an em- 
 ployer to pi'ovide reasonably safe 
 and suitable machinery and appli- 
 ances for use of employes, and to 
 keep them in reasonable repair 
 while being used, is so just and 
 fair that it has never been called 
 in question by this court. But if 
 an employer may in every case es- 
 cape liaibility for an injury to a 
 subordinate employe by reason of 
 defective machinery and appli- 
 ances provided for his use, merely 
 because the latter does not show 
 he exercised care and diligence to 
 discover the character and condi- 
 tion thereof, the rule would not 
 amount to mucl\, as either an in- 
 centive to the employer to do his 
 duty, or protection to the employe 
 against personal injury. The limit 
 of injury in such cases as this is 
 whether, as a matter of fact, the 
 employe did, before exposing him- 
 self to danger, know the machin- 
 ery or implements causing the in- 
 jury to be defective.' If appellee 
 had the same or an equal oppor- 
 tunity as appellant to discover the 
 defect, it was his duty, by the in- 
 struction sriven, so to do; and, if 
 he failed in this, he could not re- 
 cover. As the duty to furnish 
 reasonably safe appliances, ma- 
 chinery, and place to work is a 
 continuing duty on the master, it 
 seems to us that the instruction 
 Riven by the court correctly states 
 the law of the case."
 
 § 1523.] NEGLIGENCE— MASTER AND SERVANT. 1015 
 
 of the track, if you believe from the evidence, it was so unsafe, was 
 caused by the defendant not exercising reasonable care to provide a 
 reasonably safe track, it will be your duty to find for the plaintiff.^" 
 
 § 1523. Injury by Protruding Cross-Tie and Hole in Track, (a) 
 
 The court instructs the jury that the i:)laintiff sues the defendant to 
 recover damages for alleged injuries to him, while an employe on 
 the railway of defendant caused by stepping upon the end of 
 a protruding cross-tie, and into a hole upon defendant's tracks, 
 which projecting cross-tie and hole were permitted upon said track 
 and roadbed by reason of the negligence of the defendant, upon and 
 in which plaintiff stepped while carrying an iron rail for defendant, 
 by reason of which plaintiff was injured, and that such injury was 
 without the fault, negligence or want of care of the plaintiff.^^ 
 
 (b) If the juvy believe from the evidence that the defendant, in 
 constructing and keeping its roadbed and premises where plaintiff 
 was engaged in work, permitted one of its cross-ties to project above 
 the gi'ound, and a hole to exist beside its track, and that in per- 
 mitting this it failed to exercise ordinaiy care; and if you further 
 believe that the plaintiff, while in the performance of his duty, and 
 while in the exercise of ordinary care stepped upon said cross-tie and 
 into said hole, and was thereby injured, you will find for the plaintiff. 
 
 (c) If the place where plaintiff was at work was reasonably safe 
 for the doing of the work for which plaintiff was engaged ; or if you 
 believe from the evidence that thei'e was a tie in the track which 
 stuck up above the other ties in the yard, and thei'e was a hole by 
 the side of the track, and that such proti-uding tie and hole made 
 the place not reasonably safe for the particular kind of work then 
 being done there, and that defendant used ordinary care to make and 
 keep said premises reasonably safe ; * * * or if you believe from 
 the evidence that the sticking up of the tie and the hole in the 
 track, if such you find to be the fact, were open and patent to com- 
 mon observation, and could have been seen and known by plaintiff- 
 then you will find for the defendant.^^ 
 
 § 1524. Allowing Timber to Stick Out of Shed and Over Transfer 
 Table. The court instructs the jury that if you believe from the 
 evidence that plaintiff and his gang were negligent in leaving the 
 timber sticking out of the shed, and over the tracks of the transfer 
 table, and thereby caused or directly contributed, plaintiff's injury, 
 then the plaintiff cannot recover. The court instructs the jury that 
 if you believe from the evidence that the plaintiff himself was 
 guilty of negligence which directly contributed to cause his injury, 
 the plaintiff cannot recover.^^ 
 
 30— Malott v. Hood, 201 111. 202, 33— Ibid. 
 
 66 N. E. 247, aff'ff 99 111. App. 360. 33— Gayle v. Mo. C. & F. Co., 
 
 31— Sherman S. & S. Ry. Co. v. 177 Mo. 427, 76 S. W. 987 (995). 
 Bell, — Tex Civ. App. — , 58 S. 
 W. 147 (149).
 
 1016 FORMS OF INSTRUCTIONS. [§ 1525. 
 
 § 1525. Allowing Derrick to Swing Over Track. The court in- 
 stnicts the jury that it was the duty of the defendant in this case 
 to keep its roadbed and track in a reasonably safe condition for 
 the passage of its train along and over the same, and to keep the 
 same clear of obstructions thereon, or in close and dangerous prox- 
 imity thereto; and if the juiy believe from the evidence in this case 
 that there was standing, near the plaintiff's railroad and track at 
 the point where it is alleged in the declaration that the accident 
 herein occurred, a derrick with an arm or boom attached thereto, 
 and that said arm or boom of said derrick was of sufficient length 
 to swing over the roadbed or track of the defendant, and thereby 
 endanger the passage of trains along and over said track at said 
 point, then it was the duty of the defendant to either cause said 
 den'ick and arm or boom attached thereto to be removed, or to see 
 that the same was kept securely fastened in such a way and manner 
 as not to obstruct the passage of trains along said track at said point. 
 And this duty devolved upon the defendant although said derrick 
 may not have been upon the right of way of defendant, nor upon 
 lands under its immediate control.^'* 
 
 § 1526. Negligence of Master In Allowing Clinker to Remain at 
 Side of Track. If you fuiiher find and believe from the evidence 
 that defendant in permitting said clinker to be and remain on its 
 said premises at such time and place, if you find it did permit the 
 same, was an act of negligence, and if you further find and believe 
 from the evidence that such negligence, if any there was, proximately 
 caused jDlaintiff's injuries, then you will find for the plaintiif, unless 
 you find for the defendant under other instructions hereinafter given 
 you.^^ 
 
 § 1527. Wreck of Train on Defective Bridge, (a) The court in- 
 structs the jury that, before the plaintiff can recover in this action, 
 he must prove to the reasonable satisfaction of the jury, by the 
 greater weight of the evidence in the cause, that his injuries are due 
 to the negligent conduct of the defendant, its agents or servants, 
 and that, had it not been for such negligence in constructing or main- 
 taining the bridge in question, he would not have been injured; and, 
 if he has failed to so prove, your verdict will be for the defendant. 
 And j'ou are further instructed that the defendant was not bound to 
 furnish its employes any particular kind or style of bridge over 
 
 34 — McCreery's Adm'x v. O. R. was no evidence that appellant had 
 
 R. Co., 43 W. Va. 110. 27 S. E. 327 knowledge that the clinker which 
 
 (328). caused the injury was in its yards. 
 
 35 — Mo., K. & T. Ry. Co. v. When the charge is construed as 
 
 Kecfe, — Tex. — , 84 S. W. 679 a whole, the jury could not have 
 
 (682). been misled by the use of the 
 
 "It Is contended that there is no word 'permit.' The evidence fairly 
 
 evidence to authorize the giving of raised the issue embraced in the 
 
 this ch.'irgo. It is arguorl that the charge, and the court did not err 
 
 word 'permit,' used in this charge, In submitting the same." 
 Imports kHQwledge. and that there
 
 § 1527.] NEGLIGENCE— MASTER AND SERVANT. 1017 
 
 R. B., or other streams its railroad crosses; that defendant has 
 discharged its full duty to plaintiff when it has constructed and 
 maintained a bridge over R. B. such as is in ordinary use by itself 
 and other railroads, and reasonably safe to carry trains over it under 
 ordinary.' conditions and circumstances ; that defendant was not bound 
 to anticiiDate unprecedented, extraordinaiy or unusual rainfalls, or to 
 build such a bridge as would resist or stand against such; and if the 
 jury believe that the bridge over R. B., as constructed and main- 
 tained, was reasonably safe for the purpose for which it was built 
 in times of usual and ordinary rainfall, then plaintiff cannot recover. 
 
 (b) The court instructs the jury that the defendant is not bound 
 to furnish any particular kind or style of bridge over R. B. 
 to the plaintiff, and it is in no sense an insurer of his safety; that 
 all the law requires of the defendant toward its employes is that 
 it shall furnish a bridge over its streams that is reasonably safe for 
 carrying trains over them under ordinary conditions. 
 
 (c) The court instructs the juiy that if they believe, from the 
 evidence, that plaintiff was in deferidant's employ as conductor of 
 
 the east-bound passenger train on the day of , • , 
 
 and that said train was wrecked by the falling of defendant's bi'idge 
 across R. B., and plaintiff was thereby injured, and the said wreck 
 was caused by reason of the defective condition of said bridge 
 in any of the particulars hereinafter mentioned, and that said 
 bridge was a pile bridge, and on account of the character of the 
 stream and the country drained, it (said bi'idge) -was not reason- 
 ably safe at that place, or that the piling that supported said bridge 
 had become rotten, unsound or defective, or that there was not suf- 
 ficient earth around some of said piling, and that from any or all 
 
 of said causes said bridge, on said day of , , was 
 
 not reasonably safe for the passage of defendant's said train over 
 the same, and that defendant knew of the defective and unsafe con- 
 dition of said bridge, or by the exercise of reasonable care and dili- 
 gence could have ascei'tained the same before the arrival of the train, 
 upon which plaintiff was conductor, at said bridge, then the verdict 
 must be for the plaintiff. 
 
 (d) The juiy are instructed that, while the defendant was not 
 bound to provide against the effects of a storm which it could not 
 reasonably anticipate, yet if they believe, from the evidence, that 
 the bridge over R. B. was not reasonably safe on account of its 
 being a pile bridge, or because some of the pilino: had become 
 rotten and decayed, or because there was not sufficient earth or 
 dirt around said piling, and that the fall of the bridge was caused 
 by its defective condition in any of the particulars aforesaid, and 
 not by reason of the extraordinaiy force of the storm, then the 
 fact that the bridge fell during said storm wdll not prevent a recovery 
 in this case.^® 
 
 36— Copeland v. Wabash R. Co., 175 Mo. 650, 75 S. W. 106 (109).
 
 1018 FORMS OF INSTRUCTIONS. [§ 1528. 
 
 § 1528. Law Fixes no Exact Standard for Height of Bridges Over 
 Railroads. (a) The court instructs the jury that the defendant 
 company, under the laws of Illinois, is not required to build its 
 bridges of such height that brakemen can stand on them (on the 
 cars) and pass through and under them with safety. The laAV fixes 
 no exact height or standard, but only requires that such bridges 
 shall be of such height that the employes can perform their duties 
 with reasonable safety to themselves.^ ^ 
 
 (b) The court instructs you that it was the duty of the defendant, 
 in the construction and maintenance of the overhead portion of the 
 bridge, where decedent, A. B., was injured, to construct and main- 
 tain it of sufficient height that the brakemen on the freight cars 
 could pass under said overhead portion while engaged in the dis- 
 charge of their duties, with reasonable safety to their person while 
 standing or walking on top of the freight ears; and if they believe 
 from the evidence that the bridge where decedent was injured was 
 not so constructed and maintained as to the height thei"eof, and 
 that by reason thereof decadent was injured, and that the injury 
 caused his death, you must find for plaintiff, unless you believe from 
 the evidence that decedent was not in the discharge of his duty 
 as brakeman at the time he was struck, or that he knew the over- 
 head portion of said bridge was insufficient in height to enable him 
 to pass under it safely while standing or walking on the top of a 
 freight car upon which he was at the time he was struck, and that 
 he recklessly, and with indifference to the consequences, and not in 
 the discharge of his duty, exposed himself to the danger of being 
 struck by the bridge, in which later state of case you will find for 
 the defendant; or, if you believe from the evidence that the injury 
 was not the cause of decedent's death, you will find for the de- 
 fendant.^^ 
 
 OPERATION AND MANAGEMENT OF TRAINS AND CARS. 
 
 § 1529. Necessity of Look-out at Points Where Employes Com- 
 monly Pass in Discharge of Their Duties. The court instructs the 
 juiy that it is the duty of a railway company's servants, who operate 
 its engines along a portion of its track that is commonly used by its 
 emplf)yes, or over and about which its employes commonly pass in the 
 discharge of their duties, to exercise "ordinary care" in keeping a 
 look-out to discover the pi-esence of such employes on or in close 
 proximity to the track at such point, and to use all the means in 
 their power, consistent with safety of the engine and its operatives, 
 to stop the engine to prevent a collision with or injuiy to such 
 employes.^^ 
 
 37— Cleveland, C, C. & St. L. Ry. Adm'r, 23 Ky. Law. 1929, 65 S. W. 
 Co. V. W.Tlter, Adm'r, 147 III. 60 453 (456). 
 (64). ?,r, N. E. 529. 39— Mo., K. & T. Ry. Co. V. 
 
 38— L. & N. R. Co. v. Tucker's Jones, 35 Tex. Civ. App. 584, 80 S. 
 
 W. 852 (853).
 
 § 1530.] NEGLIGENCE— MASTER AND SERVANT. 1019 
 
 § 1530. Injury Through Act of God and Concurrent Negligence of 
 Defendant. If you believe from the evidence that the pL^intiff L., 
 while in defendant's employ, and while in the performance of 
 his duties, was injured by a collision between a passenger train, 
 and a loose ear on the main line of defendant's railway, and that 
 the said loose car escaped from the side track at M. City by reason 
 of an unusual and unprecedented windstorm, and that defendant was 
 not guilty of negligence under the charges herein given you proxi- 
 mately causing the escape of said car and said collision and plaintiff's 
 injuries, then you will find for the defendant. If however you be- 
 lieve from the evidence that the plaintiff, while in defendant's 
 employ, and in the performance of his duty was injured by a collision 
 between a passenger train and a loose car on the main line of defend- 
 ant's railway, and that such ear was blown out of the side track at 
 M. City by an unusual or unprecedented windstorm, and that such 
 unusual or unprecedented windstorm was a proximate cause of the 
 collision and of plaintiff's injuries; and if you further believe from 
 the evidence that the brakes on the said car while in the side track 
 were not set and the wheels were not blocked and that the failure to 
 have the said brakes set or the wheels blocked, if you believe there was 
 such failure, was negligence on the part of the defendant ; and if you 
 further believe from the evidence that such negligence of the de- 
 fendant, if any, and such unusual or unprecedented windstonn Avere 
 concurring causes of the said collision and of plaintiff's injuries, 
 and together were the direct and proximate cause of the collision 
 and of plaintiff's injuries' — then defendant would be liable, and you 
 would find your verdict for the plaintiff.*" 
 
 § 1531. Injury to Servant Through Failure to Obey Ordinances as 
 to Speed or Ringing Bell. If you believe from the evidence that 
 
 plaintiff was an employe of the defendant Company, as 
 
 alleged in his petition, and that when en route from his residence 
 
 to the tinshop of the Company in the city of D. for the 
 
 purpose of having his torch repaired, at a point at or near the place 
 where N. street and the railroad tracks cross ]\I. avenue in the said 
 city of D. plaintiff started to cross one of said tracks, and was struck 
 and injured by the tender of an engine then and there being operated 
 and run along and over said track; and if you believe from the evi- 
 
 40-Galveston. H. & S. A. Ry. Co. 216, 36 S. W. 800; Galveston, H. & 
 
 V Lvnch 22 Tex. Civ. App. 336, 55 S. A. Ry. Co. v. Croskell. 6 Tex. 
 
 S' W 389 (391) Civ. App. 160, -25 S. W. 486; St. L. 
 
 '"Its clear import is that if the & S. F. Ry. Co. v. McClain, 80 
 
 windstorm and appellant's negli- Tex. 85, 15 S. W. 789. If appellant 
 
 g-ence in leaving the cars unse- was negligent in leavmg the box 
 
 cured were concurrent causes, and cars upon the side track without 
 
 together were the direct and prox* having brakes set or the wheels 
 
 imate cause of plaintiff's hijury, blocked, and they were blown out 
 
 the railroad would be liable there- on the main track by a storm, such 
 
 for. This we understand to be the negligence was necessarily the 
 
 law. Galveston, H. & S. A. Ry. proximate cause of the collision 
 
 Co. v. Sweeney, 14 Tex. Civ. App. and appellee's injury."
 
 1020 FORMS OF INSTRUCTIONS. [§ 1532. 
 
 denee that the employe or employes in charge of the engine at the 
 time did or omitted to do any one or more of the following acts or 
 things as charged in the plaintiff's petition, namely, if at the time 
 they were running said engine at a greater rate of speed than six 
 miles an hour, or if they failed to ring the bell on said engine as 
 required by said ordinance of said city of D., or if they did not keep 
 such lookout to discover persons on the track at said point as an or- 
 dinarily prudent person would have done under like circumstances, or 
 if they did not give such signals or warning on approaching the place 
 of the accident as an ordinarly prudent person would have given 
 under similar circumstances; and if you further so believe that such 
 acts or omissions which you find have been so done or omitted by such 
 employes were the proximate cause of the plaintiff's injuries, 
 and that such employes were guilty of negligence as negligence has 
 been hereinbefore defined in doing or omitting to do any of the said 
 acts or things which you find to have caused plaintiff's injuries; and 
 if you find that plaintiff was not himself guilty of contributory negli- 
 gence proximately causing or contributing to cause his injuries — then 
 you will return a verdict for plaintiff.*^ 
 
 § 1532, Failure of Engineer or Fireman to Obey Signals to Slow 
 Up Train, (a) The court instructs the jury that if they shall be- 
 lieve from the evidence that the plaintiff gave the signal to hold up 
 the engine to a very low rate of speed, and also gave the signal to 
 stop the train, upon the occasion mentioned in the petition, and the 
 fireman or engineer of the train failed to observe and obey the said 
 signals, and that the failure to observe or obey was, under all the 
 facts and circumstances in evidence, gross negligence, and by reason 
 thereof the plaintiff received the injury of which he complains, and 
 that the plaintiff did not, by negligence upon his part, contribute 
 to cause his injury, but for which he would not have been injured, 
 the law is for the plaintiff, and they should so find.'*- 
 
 (b) But if the plaintiff did not give the said signals, or if he did 
 give them, and the engineer or fireman did not fail to observe or 
 obey them, or if they did so fail, yet if the failure was not, under all 
 the facts and circumstances admitted in evidence, gross negligence, 
 the law is for the defendant, and they should so find. 
 
 (c) Or if the plaintiff, by negligence upon his part, contributed 
 to cause his injuiy, and he would not have been injured but for his 
 contributory negligence, if any there was, the law is for the de- 
 fendant.''" 
 
 § 1533. Neglect of Engineer to Obey Signal to Stop Train Run at 
 Dangerous Rate of Speed. If you find from the evidence that the 
 dc'C(;;isc(l, I), while in the employ of the defendant as a brakeman 
 upon one of its trains, and while using ordinaiy care in discharging 
 
 41— Mo., K. & T. Ry. Co. v. 42— Southern Ry. v. Clifford, 23 
 Owens. — Tex. Civ. App. — , 75 S, Ky. T.. Ill, 62 S. W. 514. 
 W. 578 (581). 43— Ibid.
 
 § 1534.] NEGLIGENCE— MASTER AND SERVANT. 1021 
 
 the duty assigned to him, was, on or about the date alleged in plain- 
 tiff's petition, engaged with other sei-vants of defendant in placing 
 cars upon the defendant's coal chute at H S, and while so engaged 
 the deceased was riding upon the farthest car from the engine; and 
 if you believe from the evidence that the engineer or person in 
 charge of defendant's engine ran said engine and cars upon said 
 coal chute at an unusually rapid and dangerous rate of speed; or if 
 you find that the deceased and others of defendant's employes, in 
 time to have avoided the accident, gave a signal or signals to the 
 engineer or person in charge of said engine to discontinue the un- 
 usually rapid and dangerous rate of speed (if you find that such speed 
 was unusually rapid and dangerous), land to immediately stop said 
 train, and that the signals so given (if given) were the usual and 
 customary signals for that purpose in use by the defendant; and if 
 you believe the defendant or person in charge of its engine was 
 guilty of negligence, as that term is above defined, in regard either 
 to the rate of speed at which the cars were run, the engineer's fail- 
 ure to obey signals (if he did fail), or the unfamiliarity of the en- 
 gineer with said coal chutes (if you believe that he was unfamiliar) 
 in the manner and form alleged by plaintiffs, and if, by reason of 
 the negligence of the defendant or said engineer in any one or all 
 of the respects above mentioned, you find that the car upon which 
 deceased was riding was pushed against the bumping post, and broke 
 said post down, and said ear was thereby thrown off said coal chute, 
 and deceased, D, thereby killed; and if you believe the negligence 
 of the defendant or of said engineer, in the manner and form above 
 submitted, caused the death of said deceased; and if j^ou further 
 find that the deceased was the son of plaintiffs, M and J; and if 
 5'ou believe that plaintiffs had a reasonable expectation, then and in 
 the future, of receiving pecuniary benefits from said D, had he not 
 been killed — then you will find for the plaintiffs, unless you find for 
 the defendant under other issues submitted to you.^* 
 
 § 1534. Failure to Give Such a Warning of Approach of Engine 
 as Could Be Heard by Person of Ordinary Hearing. The jury are 
 instructed that if the defendant undertook through its employes to 
 
 44 — Mo., K. & T. Ry. Co. V. reg-ard thereto. In no event, un- 
 
 O'Connor, — Tex. Civ. App. — , 78 der the charge, was the jury au- 
 
 S. W. 374 (376). thorized to find for plaintiffs un- 
 
 "Thxis it will be seen that the less they believed the death of ap- 
 
 jury was distinctly told, in effect pellee's son was the result of de- 
 
 — negligence having been defined — fendant's neg-ligence. The charge 
 
 that before they would be war- is not subject to the objection that 
 
 ranted in returning- a verdict for it made it the absolute duty of 
 
 the plaintiffs, they must believe appellant's engineer to have dis- 
 
 from the evidence that the en- continued the speed of the train, 
 
 gineer in charge of defendant's en- and to have stopped the same. It 
 
 gine failed to use ordinary care only imposed ordinary care to ob- 
 
 in respect to the i-ate of speed at serve the signals and stop the 
 
 which the cars were run, or that train, and this, under the circum- 
 
 he failed to obey signals which stances, was certainly as favorable 
 
 involved the stopping of the train, as appellant had the right to ask." 
 and failed to use such care in
 
 1022 FORMS OF INSTRUCTIONS. [§ 1535. 
 
 give any warning of the approach of the engine and ears into the 
 shed room, it was its duty to give such warning as might have been 
 heard by a person of ordinary hearing, considering the distance 
 between the person giving the warning and the plaintiff at the time; 
 and although the jury may believe that the defendant upon the ap- 
 proach of the engine, gave warning thereof, yet if they believe that 
 it Avas not such warning as could have been heard by a person of 
 ordinary hearing, at the distance where plaintiff was working, then 
 such warning does not avail defendant anything in this suit.*^ 
 
 § 1535. Telegraph Operator Injured While Delivering Order to 
 Engineer of Train — Second Train Giving No Signals. If the jury 
 believe fi'om the evidence that the plaintiff, who was in the employ 
 of the defendant as a telegraph operator at the U station, was di- 
 rected by the train dispatcher of the defendant to leave his office 
 and go out and deliver to the officers of train No. 244, going east, 
 a clearance order, then you are charged that the defendant company 
 owed the plaintiff the duty to exercise ordinary care to prevent in- 
 jury to him while so engaged in the performance of such duty, if 
 any; and if the jury further believe from the evidence that the 
 plaintiff, in obedience to said order, if he was so ordered, Avithout 
 negligence on his pai't, left his office to hand to the engineer of the 
 train No. 244 said clearance order, and that he, after having done 
 so, as he was backing in the direction of the depot, train No. 243 
 came in from the east, without sounding the whistle or giving warn- 
 ing of its approach, and did strike and run over the plaintiff, and 
 inflict on him the injuries which terminated in the loss of his leg; 
 and the jury further find that the defendant was negligent in so 
 operating its said train, and that said negligence, if you find it was 
 negligence, was the proximate cause of the plaintiff's injuiies, then 
 you should find for the plaintiff.'**^ 
 
 § 1536. Collision Through Failure of Engineer to Give Flag Sig- 
 nal. If the jury believe that, luider the rules of the defendant, it 
 was the duty of the engineer to give a flag signal by blowing five 
 short blasts of the whistle when the train stopped, or as soon as he 
 knew the train was going to stop; and if you further believe that 
 he failed to give the flag signal at the time when, under the rules of 
 the defendant, he was required to give it; and if you believe he 
 was guilty of negligence in failing to give such signal, if he failed; 
 * * * and if you believe the negligence, if any, of the engineer 
 in failing to give the signal, if he failed, was the proximate cause of 
 the collision, you should find for the plaintiff.*^ 
 
 § 1537. Injury Through Passenger Train Colliding With Loose 
 Car. If you believe from the evidence that the plaintiff, I. 0. L., was 
 
 45— Miss. C.-O. :.:. Co. V. Ellis, v. Jenkins. 29 Tex. Civ. App. 440, 
 72 Miss. 191. 17 So. 114 (21:";). 69 S. W. 2.33. 
 
 46— Galveston, H. & S. A. Ry. Co. 47— Mo., K. & T. Ry. Co. v. Bo-
 
 § 1538.] NEGLIGENCE— MASTER AND SERVANT. 1023 
 
 in the defendant's employ as a fireman on one of its passenger 
 trains, and that while he was so employed, he was injured by a col- 
 lision between such passenger train and a loose ear on the main line 
 of defendant's railway, as alleged in plaintiff's petition; and if 
 you further believe from the evidence that the said car escaped from 
 a side track at M. City and run down upon the main line, and that 
 the said car, while in the said side track, did not have the brakes 
 set or the wheels blocked, and that this caused its escape from said 
 side track; and if you further believe fi'om the evidence that the 
 defendant negligently permitted said ear to be and remain upon said 
 side track without having the brakes set or the wheels blocked, and 
 that the failure to have the brakes set or the wheels blocked, if you 
 believe there was such failure, was negligence on the part of the 
 defendant, and that such negligence, if any, was the proximate 
 cause of the collision and the plaintiff's injuries, then j^ou will find 
 your verdict for the plaintiff.^* 
 
 § 1538. Injury to Plaintiff While Coupling Cars by Throwing 
 Wrong Switch. The jmy are instructed that if they believe and 
 find from the evidence that on , the plaintiff Avas attempt- 
 ing to couple a certain stationary freight car to a certain moving 
 car backing toward the same, for the defendant railroad company, 
 and his right hand and wrist were caught between the corners of 
 said cars and injured, and that the said injury was caused by the 
 negligence and carelessness of the switch tender in throwing the 
 switch for track No. 17 instead of No. 18, thus causing the corners 
 of the car at which plaintiff was standing, to collide and come to- 
 gether with force and violence, and that the plaintiff, at the time, 
 was in the exercise of ordinary care himself, then j^our verdict must 
 be for the plaintiff.*^ 
 
 § 1539. Duty to Set Brakes While Couplings Are Being Adjusted. 
 If the jury believe from the evidence that plaintiff, while in the em- 
 ployment of defendant, in the exercise of his duties under such em- 
 ployment, was engaged in inspecting a train of defendant at T., Texas, 
 
 on the day of , , and securing and adjusting 
 
 the couplings and coupling attachments thereof, and if you believe 
 that the defendant, in the exercise of ordinary care for the safety of 
 plaintiff and its other employes engaged in work of the same nature, 
 
 die, 32 Tex. Civ, App. 168, 74 S. to this criticism. We think it 
 
 W. 100 (101). plainly required the jury to find 
 
 48 — G., H. & S. A. Ry. Co. v. that the injury was caused by the 
 
 Lynch. 22 Tex. Civ. App. 336, 55 neplig-ence and carelessness of the 
 
 S. W. 389 (390). switch tender. An instruction in 
 
 49— Phippin v. Missouri Pac. R. all respects similar to this was 
 
 Co., 196 Mo. 321, 93 S. W. 410 (417). sustained in Dammann v. St. 
 
 "The defendant urges that this Louis. 152 Mo. 186, 53 S. W. 932. 
 
 instruction was erroneous in that See also, Geary v. Ry. Co.. 138 
 
 it assumes that throwing the Mo. 251. 39 S. W. 774. "60 Am. St. 
 
 switch for track 17 was a negli- 555: State v. Grayor, 89 Mo. 605, 
 
 g-ent and careless act. We do not 1 S. W. .365; O'Connell v. Ry. Co., 
 
 think the instruction is obnoxious 106 Mo. 482, 17 S. W. 494."
 
 1024 FORMS OP INSTRUCTIONS. [§ 1540. 
 
 should have set or caused to be set the brakes on each and every 
 car thereof before attaching any other car thereto while making up 
 said train, and that defendant failed to set said brakes or have 
 the same set in this manner, and by reason of such failure plaintiff 
 was injured, and if you further believe from the evidence that it 
 was usual and customary to set said brakes in making up defend- 
 ant's passenger trains at said time and place, and you further 
 believe defendant was guilty of negligence in not setting said brakes, 
 as negligence is hereinbefore explained to you, and you further be- 
 lieve from the evidence that plaintiff was exercising such care for his 
 own safety as a man of ordinary prudence would have exercised 
 under like circumstances, then in either of these events you will 
 find for the plaintiff, unless you should find for the defendant under 
 succeeding instructions.^*' 
 
 § 1540. Using Hand-car Without a Brake. If you should believe 
 from the evidence that the plaintiff's superior officer directed him to 
 use the hand-ear without a brake, then you are further instiaicted 
 that, unless the danger of using said hand-ear in that condition was 
 so apparent that an ordinarily prudent man would not have used the 
 same under the same or similar cii'cumstances, the plaintiff would 
 not be guilty of contributory negligence in that respect. ^^ 
 
 § 1541. Sending Hand-cars at Great Speed Immediately After One 
 Another, (a) If the jury believe from the evidence that B. S. was 
 section boss and J. J. was one of the hands in the employ of B. S., 
 and that said B. S. had control of the running of the two hand-cars 
 spoken of by the witnesses, and that while crossing the bridge over 
 the C. river, in accordance with his orders at a great rate of speed, 
 and that said hand-cars were running about 15 or 20 feet apart, and 
 that, just after the two cars had crossed the iron part of the bridge, 
 he gave the signal to the hands on the front cars to check up, without 
 first giving warning to those on the rear car; and if they further 
 believe from the evidence that, at the time said B. S. gave a signal 
 to those on the front car, W. put his foot on the brake and checked 
 it up; and if they further believe from the evidence that the check- 
 ing up of the front car caused G. to put his foot on the brake of the 
 second car, and that the handle of the lever was jerked out of J. 
 
 50— St. L. S. W. Ry. Co. of Tex- act which caused the injury intro- 
 
 as v. Rea, — Tex. Civ. App. — , 84 duces into the situation a differ- 
 
 S. W. 428 (430); Mo., K. & T. Ry. entiating circumstance which will 
 
 Co. V. Avery, — Tex. Civ. App. — , render his contributory negligence 
 
 64 S. W. 935 (936). a question for the jury in nearly 
 
 51 — Texas & N. O. R. Co. v. every concoiv.able state of the evi- 
 
 Kelly. 34 Tex. Civ. App. 21, 80 S. dence. It does not follow that be- 
 
 W. 1073 (1076). cause the servant could justify a 
 
 "The rule stated in a note in 48 disobedience of the order lie is 
 
 L. R. A. 755 commends itself as guilty of negligence in obeying it.' 
 
 correct. It is thus stated: 'But The question therefore seems to 
 
 by almost all courts it is held that have been properly submitted to 
 
 the fact of the servant's having the jury." 
 been directly ordered to do the
 
 §1542.] NEGLIGENCE— MASTER AND SERVANT. 1025 
 
 J. 's hands by the putting on of the brake by G., and that said rear 
 car ran into the front ear and threw J. J. to the ground and killed 
 him, then the jury must find for the plaintiff. 
 
 (b) If the j\xry believe from the evidence that at the time J. J. 
 was killed, he was in the employ of the A. M. R. Company, and that 
 
 B. S. was the foi'eman or section boss, and that the deceased was on 
 a hand-oar at the time of the accident; and if they further believe 
 that said hand-ears were operated under the direction of said B. S., 
 and that B. S. told the deceased and the other hands to go over the 
 
 C. river as fast as they could, and that in compliance with said 
 orders the hands started across the bridge at a gi'eat rate of speed, 
 and that they were running about 15 or 20 feet apart, and that just 
 after they passed the iron part of the bridge, the said B. S. waved 
 his hand to those on the front car to slow up, and that J. W. at 
 once placed his foot on the brake of the front cai', and cheeked it 
 up; and if they further believe that L. B. as soon as J. W. put his 
 foot on the brake waved to the hindmost car to check up, and that 
 G. at once placed his foot on the brake ; and if they further believe 
 that the placing of G. 's foot on the brake suddenly cheeked the 
 speed of the car, jerked the handle of the lever out of J. J. 's hands ; 
 and if they further believe that before he could recover and get hold 
 of the handle the hindmost car ran into the front car and threw J. 
 J. off, and he was killed, then the plaintinff is entitled to damages. ^- 
 
 § 1542. Kicking Car Upon Track at a High and Dangerous Rate 
 
 of Speed. If you find from the evidence that on or about the 
 
 day of , , the plaintiff, while in the employ of the de- 
 fendant company, was engaged in the performance of his duty in 
 the work of watering a train of passenger coaches, and that, while 
 he was stooping over a water hydrant in the performance of his 
 duty, he was struck by a moving coal car on the track of defendant 
 known as Davis No. 2, and that he was thereby injured as alleged in 
 his petition, and you further find that said ear was kicked and pro- 
 pelled upon said track at a high and dangerous rate of speed under 
 the circumstances, and that there was no warning nor notice given to 
 plaintiff of the approach of said car, and that, in so kicking and 
 propelling said ear at said time and place, if you find it was so 
 kicked and propelled, defendant company was guilty of negligence, 
 and that such negligence, if any, was the pi'oximate cause of plain- 
 tiff's injury, if any; and if you further find that plaintiff was not 
 guilty of any negligence which either caused or contributed to his 
 injury, if any, and that plaintiff's injuries, if any, did not result 
 from the risks oi'dinarily incident to his employment, then you will 
 find for plaintiff.^^ 
 
 52— Jones v. Ala. M. R. Co., 107 53— Galveston, H. & S. A. Ry. Co. 
 Ala. 400. 18 So. 30 (32). v. Pendleton. 30 Tex. Civ. App. 431. 
 
 70 S. W. 996 (997). 
 
 65
 
 1026 FORMS OP INSTRUCTIONS. [^1543. 
 
 § 1543. Injury to Person Repairing Track By Cars Being Kicked 
 Back Without Warning. If you find from the evidence that plaintiff 
 was in the employ of defendant at the time of the injury complained 
 of, and was employed in repairing defendant's track at the point 
 where the accident occurred; that while so employed his attention 
 was necessarily engaged by reason of the nature of the duties he 
 was then engaged in; that while so engaged in performing such 
 duties a train was approaching him on said track, and that it was 
 near to him Avhen discovered for the first time by him; that in the 
 emergency and hurry to get out of the way of such train so ap- 
 proaching, plaintiff stej^ped back from said track, and near to the 
 track lying next thereto, and running parallel therewith across the 
 street crossing at C avenue ; that while so standing cars had been 
 cut loose from an engine on defendant's track, and were being 
 kicked back with such force that they were running on said parallel 
 track at a rate of speed exceeding six miles per hour; that no one 
 was stationed on or near the end of said cars nearest to and ap- 
 proaching plaintiff, in order to check speed and warn persons on 
 said track of their approach; that plaintiff did not, in the exer- 
 cise of ordinary care and diligence, discover the approach of said 
 cars in time to avoid injury to himself; that plaintiff was not guilty 
 of any negligence which directly contributed to his injury, then 
 plaintiff will be entitled to recover, and you should find for plain- 
 tiff. If you fail to so find, then plaintiff will not be entitled to re- 
 cover, and you should find for defendant.^* 
 
 § 1544. Engine Leaving Track Through Brakeman Locking Switch 
 to Wrong Track. If you believe from the evidence that a brakeman 
 of the defendant was under a duty to set the north switch, as it 
 was called in the evidence, so as to make the main track secure for 
 the passage of the engine that Mr. B. was driving, and he failed to 
 use ordinary care in discharging his duty, and so did not set the 
 switch and lock it to the main track, but set it and locked it to the 
 side track, so as to cause the engine to leave the rail at that point, 
 you ought to find that the defendant was negligent in that re- 
 gard.°^ 
 
 54— Tobey v. B., C. R. & N. Ry. Iowa 150, 25 N. W. 104; Mathews 
 
 Co., 94 Iowa 256, 62 N. W. 761 (763). v. Cedar Rapids, SO Iowa 463, 45 
 
 33 L. R. A. 496. N. W. 894; Schmidt v. Ry. Co., 75 
 
 "Generally, the que.stion of neg- Iowa 609, 39 N. W. 916. It must 
 
 ligence is for the jury, but this be remembered that in this case 
 
 Is not always so. The rule is, if, no evidence was offered by the 
 
 from the undisputed facts, but defendant; that there is no dispute 
 
 one conclusion can reasonably be as to the facts of the case, nor, 
 
 drawn, then the question is one as it seems to us, nny room for 
 
 of law; but if, under the facts, controversy as to the conclusions 
 
 different minds might reasonably which must be drawn from them, 
 
 reach .-i different conclusion, it is We think the instruction was cor- 
 
 a r|i]cstion of fact for the iury. rect." 
 
 MiliM- V. W.-ilker. 59 Iowa 186. 13 55— Western & A. R. Co. v. Rus- 
 
 N. VV. 101; Whitsett v. Ry. Co.. 67 sey, 95 Ga. 584, 23 S. E. 207 (211),
 
 §.1545.] NEGLIGENCE— MASTER AND SERVANT. 1027 
 
 § 1545. Injury to Servant While Removing Tie From Gravel Deck 
 — Orders of Vice Principal. If from a preponderance of tlie evi- 
 dence you believe that "W. was intrusted by the defendant with the 
 power to superintend, direct, control, and manage plaintiff while 
 in the perfoiTnanee of his work, and that in virtue of such power 
 the said W ordered and directed the plaintiff, while the plaintiff 
 was engaged in removing a tie from a gravel deck to get down into 
 a trench and to lift the tie off the guard rail, and that such order 
 of direction, if such there was, was given in such a way and under 
 such circumstances as to reasonably justify plaintiff in believing, 
 and that he did believe, that said W, by the exercise of ordinary 
 care, could and would hold the other end of the tie under the rail 
 of the track, so that it would not slide out or turn over and injure 
 him, and if you further believe that said W, by the exei'cise of 
 ordinary care, could have held the other end of said tie under the 
 rail of the track, so that it Avould not slide out or turn over and injure 
 plaintiff, and that, acting in obedience to such direction and belief, 
 that the plaintiff took a position astride of said tie and began lifting 
 the same as directed by said W, and that, while doing so, the said 
 W failed to hold the other end of said tie to prevent the tie from 
 sliding out from under the rail, and that it was negligence on the 
 part of said W to fail to hold the end of said tie, and that such 
 negligence, if any, directly caused plaintiff's injuries, if any, and 
 that the plaintiff has been thereby damaged, you will return a ver- 
 dict for the plaintiff, unless you further find that plaintiff was guilty 
 of contributory negligence, or that he assumed the risk, or that 
 plaintiff and said "W were fellow servants.^^ 
 
 56— Reeves v. Ry. Co., — Tex. words, if, under the first portion 
 
 — , 98 S. W. 929. of the paragraph, they concluded 
 
 "The charge is attaclced (1) be- from _ the evidence that W. had 
 cause, if W. was a vice-principal, superintendence. direction, and 
 and if plaintiff was injured in control of plaintiff, they could not 
 obeying' his order, with the assur- have been confused nor misled by 
 ance that W. would assist and pro- the reference to the same issue 
 tect him, he was not chargeable in the concluding part of the para- 
 with contributory negligence or graph, particularly when the court, 
 assumption of risk fis a matter of in the course of its charges, de- 
 law, and the reference to the is- fined a fellow servant to be one 
 sues of contributory negligence who did not have superintendence. 
 and assumed risk was unauthor- control, and direction of the plain- 
 ized, and was calculated to con- tiff. The first objection proceeds 
 fuse and mislead the jury; and upon the idea that, if the act is 
 (2) because the charge was con- done in obedience to the master's 
 tradictory in this: That, after in- direction, it eliminates entirely the 
 structing the jury to find for plain- defense of contributory negligence 
 tiff on the theory of vice-principal, or a.«sumed risk. This is not true 
 it told them not to do so if they in all cases. Jones v. G., H. & S. 
 found them to be fellow servants. A. Ry. Co.. 11 Tex. Civ. App. 39, 
 This latter criticism is not sound. 31 S. W. 706; Ry. Co. v. Sanchez, 
 No jury of common intelligence — Tex. Civ. App. — , 65 S. W. 894; 
 would be supposed, after finding Haywood v. Ry. Co., — Tex. Civ! 
 In favor of plaintiff on the fellow App. — , 85 S. W. 434. The facts of 
 servant issue, to find to the con- this case demonstrate the inapplic- 
 trg,ry on the same issue. In other ability of such rule. Plaintiff testi-
 
 1028 FORMS OF INSTRUCTIONS. [§ 1546. 
 
 § 1546. Laborers Working on or About Gravel Cars — Duty to 
 Avoid Injury to. It was the duty, under the law, of those in charge 
 of the engine, in eariying it and pushing the ears down B street 
 to connect with the gravel ears, to use that degree of care, and to 
 take that measure of precaution, by looking out or giving signals, 
 or otherwise, to avoid injury to the laborers on or about the gravel 
 cars, that ordinarily prudent persons in like position as they occu- 
 pied, and having like knowledge of the usual or existing conditions 
 that they had, would have used, the measure and extent of their 
 duty being in proportion to what they knew, or by the exercise of 
 ordinary care could have known; and, if they failed to use such 
 degree of care, such failure was negligence, in law.^'' 
 
 § 1547. Duty of Section Foreman Toward Servant While Unload- 
 ing Push Car. It was the duty of the foreman to exercise ordinary 
 care for the safety of the plaintiff while working under him in un- 
 loading the push car; and if you find from the evidence that the sec- 
 tion foreman knew the danger to the plaintiff by reason of the near 
 approach of the train, and that he failed to notify him of such 
 danger, and that such action on his part was negligence, as herein- 
 before defined, then the defendant would be liable, if such negligence 
 caused the injury complained of, unless you further find that the 
 plaintiff knew himself of such danger, or by the use of ordinary care 
 could have known.^^ 
 
 RULES AND REGULATIONS. 
 
 § 1548. Duty to Make Proper Rules for Safety of Servant, (a) 
 That it is the duty of a railway company to make all reasonable and 
 proper regulations for the safety of its employes. And this being an 
 affirmative fact, it devolves upon the company to show an observance 
 of the duty when sued by a servant for an injury received when in its 
 service, and negligence is shown.^^ 
 
 fied that W. did not order him to 58— Int'l & G. N. R. Co. v. Tis- 
 
 pet astride the tie, but ordered him dale, — Tex. Civ. App. — , 87 S. 
 
 to got into the trench and lift it. W. 1063 (1065). 
 
 He te.«itified, further, that he could "In our opinion, the above in- 
 
 not lift it without straddling it; struction is a proper and correct 
 
 there being hardly room in the statement of the duty, under the 
 
 trench for him to stand in it. As law, of a section foreman under 
 
 we shall show in another conneo- the circumstances alleged and 
 
 tlon, the jury could have found proven in this case; and, if nppel- 
 
 from the testimony (and from his lant dt-sirod a specific definition of 
 
 own testirnony) that it was not 'ordinary care' given to the .jury 
 
 necessary to straddle the tie in or- it should have requested same. 
 
 der to execute the order, ns there Texas & P. Ry. Co. v. Lewis, — 
 
 was clearly room for such defense Tox. Civ, App. — . 26 S. W. S73; 
 
 as contributory negligence or as- Stephens v. H. & St. J. Ry. Co., 
 
 sumed risk." 96 Mo. 207, 9 S. W. 591; Ry. Co. v. 
 
 57— Texas & N. O. R. Co. v. Mc- Carter, — Tex. Civ. App. — , 73 S. 
 
 Donald. — Tex. Civ. App. — , 85 W. 50." 
 
 S. W. 493 (49.^j). 59— Shearm. & Red. on Ncg. § 93.
 
 § 1549.] NEGLIGENCE— MASTER AND SERVANT. 1029 
 
 (b) The court instructs the jury that the defendant railroad com- 
 pany had the right to establish and enforce reasonable rules and 
 regulations for the government of its employes in the management 
 and operation of its trains.^" 
 
 § 1549. Railroad Not Liable For Injury Through Disregard of Its 
 Plain Instructions, (a) A railroad company is not liable for an 
 injury which happens to an employe in consequence of a disregard 
 of its plain instructions, if known to the person injured, although 
 other employes also disregard the same instructions. 
 
 (b) If the jury believe, from the evidence, that the defendant, 
 before the injmy in question, had adopted a rule for the conduct 
 of its employes requiring them, etc., and that the plaintiff had knowl- 
 ledge of such rule, but neglected to avail himself of its provisions, 
 and in consequence of such neglect sustained the injuiy complained 
 of, then he cannot hold the defendant liable therefor. 
 
 (c) The defendant had the right to inake such rules and regulations 
 for the conduct of its servants and agents, while engaged in its 
 service, as in its judgment was reasonable and proper, or would con- 
 duce to the safety and comfort of its employes; and all servants, 
 while engaged in such service, with a knowledge of such rules and 
 regulations, are bound to act in conformity therewith; and if 
 injuries are sustained by them, while acting in violation thereof, no 
 recoveiy can be had of the defendant therefor if such violation was 
 the cause of, or materially contributed to, such injurj'-. Whether, 
 before the injury complained of, the defendant in this case had 
 adopted a rule requiring, etc., and whether the jjlaintifl: had knowl- 
 edge of such rule, and whether he was violating such rule when he 
 was injured, and whether, if he was so violating it, such violation 
 contributed to the injury, are questions of fact, to be determined by 
 the jury from the evidence. "^^ 
 
 § 1550. Disobeying Rules as to Coupling Cars. The railroad com- 
 pany's rules provide that, before ex}Dosing himself to dangei', it was 
 the duty of the plaintiff to examine the condition of all machinery, 
 tools, cars, engine or track that he was required to use in the per- 
 foraiance of his duties, and to satisfy himself, so far as he reason- 
 ably could, that they w^ere in safe working order, and that it was the 
 plaintiff's right and duty to take sufficient time to make such ex- 
 amination, and to refuse to obey any ox-der which would expose him 
 to danger; that the rules provide that entering between ears and 
 engines in motion to couple or uncouple them should never be done, 
 except under favorable conditions, such as low rate of speed, absence 
 of frogs, switches, guard rails, etc., and where good footing could be 
 obtained, and then only when neeessaiy. If the evidence shows that 
 
 60— De Witt's Adm'r v. Louis- 61— TVolsey v. Railroad Co., 33 
 ville & N. R. Co., 29 Ky. L. 1161, Ohio St. 227. 
 96 S. W. 1123.
 
 1030 FORMS OF INSTRUCTIONS. [§ 155L 
 
 the plaintiff did not obey this rule, then the verdict should be for 
 the defendant. "- 
 
 § 1551. Rule Against Coupling Cars in Motion May "be Waived, 
 (a) I charge you that a rule forbidding railway emi3loyes going 
 between railway cars in motion, for the purpose of coupling or 
 uncouiDling them, or where attached to an engine, within itself, is a 
 reasonable requirement, but such rule must be taken with the qualifi- 
 cation that the company will provide other means for performing the 
 necessai-j' service, and, if it fails to do this, the rule is no protection 
 to the company against liability for damages for injury sustained 
 in doing the w^ork required to be done, and in the perfonnanee of 
 v^hieh said male is violated. 
 
 (b) I charge you that the rule of the railway company with 
 reference to coupling or uncoupling cars with a pin and stick while 
 the ears are attached to an engine or in motion has no application to 
 a case where the master fails to furnish to the servant a pin and stick 
 sufficient to effect the said coupling. 
 
 (e) If the jury find- that the rule forbidding the going between 
 the ears in motion or when attached to an engine, and forbidding 
 the setting of pins and links except with a stick, was adopted by de- 
 fendant railway company when a method of coupling cars prevailed 
 by the use of a pin and link, and if the jury find that the said method 
 of coupling ears has been superseded by a method whereby no pins 
 need be set, or pins and links need be used, then it is for the jury to 
 say whether or not said rule was at the time of the injury complained 
 of in force, and whether or not plaintiff was then bound by the 
 same.**^ 
 
 § 1552. Authority to Remove Ashes and Fire no Authority to 
 Move Engines. The fact that A. B. was employed by the defendant 
 to remove ashes and fire from its engines does not tend to prove that 
 he was employed to move engines, or that he had any implied or ap- 
 parent authority to move them.®* 
 
 § 1553. Failure of Engineer to Report Defects at End of Run as 
 Required by Company. You are further charged that, if you find 
 from the testimony that it was the duty of the plaintiff, under the 
 rules and customs governing plaintiff in the discharge of his duty as 
 an engineer in defendant's service, to look over and inspect his 
 engine and make report at the end of the run, in Avriting, of all 
 defects in and about the engine, and you further find that plaintiff 
 failed to perform said duty, if any, and that had he performed 
 such duty he would have discovered the defect, if any, in 
 the fastening of said step, and you further find in failing to 
 
 62— Jarvis v. Flint & P. M. R. Co., 105 Iowa 46, 74 N. W. 751 
 
 Co., 128 Mich. 61, 87 N. W. 136 (753). 
 
 (139). "We think that this or something 
 
 63 — Car.son v. So. Ry. Co., 68 S. of a .similar character should have 
 
 C. 55, 46 S. E. 524 (535). been given." 
 
 64— Morbey v. C. & N. W. Ry.
 
 § 1554.] NEGLIGENCE— MASTER AND SERVANT. 1031 
 
 discover said defect, if any, in the fastening- of said step, should you 
 find that he did fail to discover it, plaintift was guilty of negligence, 
 and such negligence if any, either proximately caused or contributed 
 to his injuiy, if any, then plaintiff cannot recover, and you will so 
 flnd.«5 
 
 FELLOW SERVANTS. 
 
 § 1554. Fellow Servants Defined, (a) That when the employ- 
 ment of a person working for a railroad company is in a different 
 department of labor from other servants, and when he is not asso- 
 ciated with such other servants in the perfoiTuance of their respective 
 duties, but is wholly separated and disconnected from them, in the 
 performance of his duties, then the railroad company is liable for the 
 negligence of such other servant, if proven, and if it results in injury 
 to the person so employed, without his fault.®^ 
 
 (b) The court instructs the jury that to constitute defendant's 
 servants, who were switching the caboose in question, fellow servants 
 of B, deceased, so as to exempt the defendant from liability on 
 account of the death of deceased from the negligent acts of defend- 
 ant's said sen^ants (provided you believe from the evidence de- 
 ceased's death was caused by the negligent acts of said servants), 
 said servants and deceased should be actually co-operating, just be- 
 fore, and at the time of, the collision which caused deceased's death, 
 in the particular business in hand, or their usual duties should bring 
 them into habitual consociation with each other, so that they might 
 exercise an influence upon each other promotive of proper caution 
 for their personal safety.'^'^ 
 
 (c) The law is that an employer is not liable to an employe for 
 injuries received by such employe by reason of the negligent act or 
 default of a fellow servant. 
 
 (d) And two employes of a common employer are fellow servants 
 to each other when they are engaged in a common duty in the same 
 line of emplojTnent, or when their relations to each other are such 
 as to enable them to have an oversight over each other promotive of 
 due care and caution.^^ 
 
 (e) And in this case, if you believe, from the evidence, that there 
 was a common duty imposed by the defendant upon both the engineer 
 and fireman on arri\'ing at the end of their run, or before starting 
 out again, or both, to inspect and report defects, then even if you 
 
 65— Galveston, H. & S. A. Ry. Co. "This instruction is in accord- 
 
 v. Cherry, — Tex. Civ. App. — , 98 ance with the language used by 
 
 S. W. 898. this court in C. & A. R. R. Co. v. 
 
 66— Schroeder v. Rd. Co., 47 Iowa O'Brien, 155 111. 630, 40 N. E. 1023, 
 
 375; Lombard v. Rd. Co., 47 Iowa 28 L. R. A. 568, and North C. 
 
 494. Rolling Mill Co. v. Johnson, 114 
 
 67— Pittsburg, C, C & St. L. 111. 57, 29 N. E. 186." 
 
 Ry. Co. V. Bovard, 223 111. 176, 68— See note 69. 
 79 N. E. 128.
 
 1032 FORMS OP INSTRUCTIONS. [§ 1555. 
 
 believe, from the evidence, the engineers, or either of them, was or 
 were negligent either in making the inspections or inspection, or in 
 reporting any defect or defects as ascertained by such inspection or 
 inspections, yet if you believe, from the evidence, they were fellow 
 servants of plaintiff, such negligence, if any, was that of a fellow 
 servant or fellow servants of the plaintiff, for which the defendant is 
 not liable.*^^ 
 
 § 1555. Negligence of the Company in Employing Servant. The 
 jmy are instructed, as a matter of law, that if a servant of a railroad 
 company, while himself using reasonable care and caution, to avoid 
 injury, be injured through the incompetency and unskillfulness of a 
 fellow servant, or in consequence of defects in the machinery or track, 
 and the jury believe, from the evidence, that the company was guilty 
 of a want of ordinary care and attention in the employment, or in 
 the retention of such fellow servant, or in the construction or repair 
 of its machinery or track, the company will be liable in damages, 
 which result from such negligence, if any such damage is proved.'^'* 
 
 § 1556. Fellow Servants of Brakeman. (a) If the jury believe, 
 from the evidence, that at the time of the accident complained of, the 
 plaintiff was in the employ of the defendant, as brakeman on one of 
 its freight ti^ains, and that while so employed, and in the line of his 
 duty, he received an injui*y, resulting from a defective brake on one 
 of defendant's cars, and that there were other persons in the employ 
 of the company, whose duty it was to examine the cars and see 
 that the brakes were in good repair and safe condition, then the court 
 instructs the jury, as a matter of law, that the plaintiff and such 
 other persons were not fellow servants engaged in the same grade or 
 line of service, within the meaning of the law.''^ 
 
 (b) If the jury believe, from the evidence, that, at the time of 
 the accident in question, the plaintiff was in the employ of the 
 defendant company as a brakeman on one of its trains, and that 
 while so employed he received an injui-y which was occasioned by the 
 ties on the track, at the point Avhere the accident occurred, being 
 rotten and unfit for use, and that the failure to replace such ties 
 with sound ones resulted from the negligence of the road master and 
 section men having charge of that part of the road, and that the 
 
 69— C. & A. R. R. Co. V. Mer- phase of the case, we are of the 
 
 riman, 95 111. App. 628 (632). opinion the court erred in refusing 
 
 "In the above case, there was to g-ive to the jury the above in- 
 some evidence tending to show struction reouested by appellant." 
 that, in addition to the lesal duty 70 — Haurathy v. N. C. Rd. Co., 
 imposed upon the enprineer and 46 Mo. 280: Harkins \\ Standard, 
 fireman to report defects in the etc., 122 Mass. 400; Hunting:, etc., 
 enpine discovered by them in their Rd. Co. v. Decker, 84 Penn. St. 
 ordinary duties, they had assumed 419. 
 
 the further duty of examinine: for 71— T.nne' v. P. Rd. Co., ()?i Mo. 
 
 !=uch defects as might appear by 225: Nashville Rd. Co. v. Jones, 9 
 
 such inspection as they were com- Heisk. 27. 
 petent to make, and in view of this
 
 §1557.] NEGLIGENCE— MASTER AND SERVANT. 1033 
 
 plaintiff was himself guilty of no negligence contributing to the in- 
 jury, then the plaintiff has a right to reeover.'^^ 
 
 § 1557. Fellow Servants of Fireman. If the jury believe, from 
 the evidence, that at the time of the accident in question, the plaintiff 
 was in the employ of the defendant as fireman on one of its loco- 
 motives, and that while so employed, and in the line of his duty, he 
 received an injuiy, resulting from the negligence or want of ordinaiy 
 care and skill of the engineer in charge of the same locomotive, then 
 the court instructs the jui-y, as a matter of law, that the plaintiff 
 and engineer were fellow servants, engaged in the same grade or line 
 of service, within the meaning of the law, and the defendant, if 
 otherwise without fault, would not be liable for such injury."^ 
 
 § 1558. Fellow Servants of Mechanic on Railroad. If the juiy 
 believe, from the evidence, that at the time of the accident in question 
 the plaintiff was in the employ of the defendant corporation as a 
 mechanic engaged in the repairs of its cars, and that, while so em- 
 ployed and in the line of his duty, he received an injury, resulting 
 from the negligence or want of ordinary care and skill of an engineer, 
 in charge of a locomotive engaged in switching cars, then the court in- 
 structs the jury, as a matter of law, that the said plaintiff and the 
 said engineer were not fellow seiwants engaged in the same gi'ade or 
 line of service, and the plaintiff is entitled to recover in this suit, pro- 
 vided the jury further believe, from the evidence, that the plaintiff, at 
 the time of the injur}-, was exercising reasonable care and caution 
 to avoid such injuiy.'* 
 
 § 1559. Section Boss as Vice-Principal, (a) The court instructs 
 the jury that if you believe from the evidence that the plaintiff was 
 a section hand, and M. was a track foreman or section boss in the 
 employment of defendant company, and was a vice principal of the 
 plaintiff, and the duties of the plaintiff and M. are as set out in the 
 printed rules introduced in evidence, and that M. ordered his hand 
 car put on the track by plaintiff and others, and ordered plaintiff 
 and others to go on said car towards Old Fort — said M. knowing 
 there was a past-due train liable to come along the track, meeting 
 them — and the said M., without infonning plaintiff of the danger, 
 met the train at a point where it could not be seen by those on the 
 hand car until it was within 510 feet of them, and would reach the 
 point where the hand car was in from nine to ten seconds, and said 
 M. had not sent out a flagman or taken other precaution to protect 
 the plaintiff, this would be negligence on the part of defendant, and 
 the plaintiff would not be guilty of negligence in liding on said 
 hand car. 
 
 72 — Houston, etc.. Rd. Co. v. Rag'sdale v. Memphis, etc., Rd. 
 
 Dunham, 49 Tex. 181. Co., 59 Tenn. 426. 
 
 73— Valtez v. O. & M. Rd. Co., 74— PittpburR, etc., Rd. Co. v. 
 
 So 111. 500; Lehig-h Valley Co. v. Powers, 74 111. 341; contra, Sulli- 
 
 Jones, 89 Perm. St. 432; Besel v. van v. Toledo, etc., Rd. Co., 58 lud. 
 
 N. Y. etc., Rd. Co., 70 N. Y. 171; 26.
 
 1034 FORMS OF INSTRUCTIONS. [§ 1560. 
 
 (b) It was his duty to listen and look, and, in ease danger was 
 reasonably to be apprehended from a belated train or otherwise, to 
 send a flagman in front of the hand car to notify the engineer on 
 the train, so that the train might be stopped or slowed vip, or by bell 
 or whistle give notice of its approach, in order that the hand-car 
 crew might save themselves from danger. If you find that there was 
 negligence on the part of the track foreman in his duties, as just 
 defined to you, and find that he was the defendant's agent, as I have 
 described the agency to you, and plaintiff's superior, and further find 
 that the injury occurred, if it did occur, in the performance of the 
 duties conferred on the agent, and that M. negligently ordered plaintiff 
 to go on the track to remove the car, and that the injury was the result 
 of the negligence of M., then you will answer the first issue ' ' Yes. ' ''^^ 
 
 § 1560. Injuries while Operating Hand Car with Fellow Servants. 
 If the jury find from the evidence in this case that the injuiy to the 
 plaintiff at the time and place in question was caused solely by any 
 want of care on the part of the plaintiff in connection with the other 
 servants of the defendant then and there engaged with plaintiff in 
 operating the hand car on the railroad of defendant, and that the 
 injuries here sued for were the result of such want of care on the 
 part of the plaintiff and of his fellow servants, at said time and place, 
 then they are instructed that the plaintiff cannot recover in this 
 action, and your verdict must be for the defendant.^® 
 
 75 — Allison v. So. Ry. Co., 129 N. pany in respect to track foremen 
 
 C. 336, 40 S. E. 91. were introduced, and from them 
 
 "There was evidence on the part it appeared that the track fore- 
 of the plaintiff going to show that man had charge of the .track, la- 
 the plaintiff and others were at borers and road watchmen em- 
 the time of the plaintiff's injury ployed upon that section; that a 
 under the control and management constant lookout should be kept 
 of a man by the name of M., and for trains; and that, when there 
 that he was the section master or was not a clear view of the track 
 track foreman of the defendant far enough to ensure absolute 
 company, and that he hired and safety, flagmen must be sent out 
 discharged hands without consul- with danger signals to protect 
 tation or advice from anybody; them. There was also evidence 
 that a day's labor on the part on the part of the plaintiff tending 
 of M.'s employes began dn the to show that the whole party 
 morning when they put the car on jumped from the hand car when 
 the track, and ended after the they saw the rapidly approaching 
 car was put in the tool house; that train about a hundred yards off. 
 when the day's work was over, and were in places of safety, but 
 and M. and the hands upon the at the sudden and peremptory 
 hand car were returning to their command of M. the plaintiff at- 
 homes, they met suddenly a freight tempted to go back and lift the 
 train that was known to be late hand car from the track, and in 
 by both M.' and the plaintiff, and so doing was struck by the engine 
 at a distance of about 100 j'ards and badly hurt. Upon that testi- 
 off before it was seen, — the view mony, we can see no error in the 
 of the approaching train being ob- instructions of his honor which 
 atructed by a curve in the shape have been comnlained of. The de- 
 of an S; that no signals or pre- fendant's agent was negligent, 
 caution had been taken by M. to whether he informed the plaintiff, 
 discover the approach of the be- or did not inform him, of the dan- 
 lated train, as was required by ger of a collision." 
 the rules pf the company. The 76 — Rice v. W. Ry. Co.. 101 Mo. 
 rules and regulations of the com- App. 459, 74 S. W. 428 (429).
 
 § 15G1.J NEGLIGENCE— MASTER AND SERVANT. 1035 
 
 ASSUMPTION OF RISK. 
 
 § 1561. Employe Assumes all Ordinary Risks. The jury are in- 
 structed, that where a person enters into the service of a railroad 
 company, he thereby undertakes to run all the ordinary risks inci- 
 dent to the employment, including his own negligence or unskillful- 
 ness, and that of his fellow servants, who are engaged in the same 
 line of duty, provided the company has taken reasonable care and 
 precaution to engage comjDetent servants to discharge the duties 
 assigned to them.'^^ 
 
 § 1562. What is a "Risk Ordinarily Incident to His Employment?" 
 (a) You are instructed that the plaintiff while in the employ of the 
 defendant assumed as a matter of law all of the risks of injury that 
 were ordinarily incident to the employment in which he was engaged; 
 and if you believe from the evidence that his injuries, if any he 
 received, grew out of a risk that was ordinarily incident to his em- 
 ployment, then your verdict should be for the defendant. But you 
 are further instructed in this connection that by the use of the 
 expression "a risk ordinarily incident to the employment" is meant 
 a risk of injury that does not arise or grow out of an act of negli- 
 gence on the part of the defendant or its servants, and that whenever 
 a risk is created by an act of negligence on the part of a railroad 
 company or its employes, this is not a risk ordinarily incident to the 
 employment. "^^ 
 
 (b) One who enters the service of a railroad company assumes 
 the risks ordinarily incident to the work, but he does not assume 
 any risk arising by reason of the company's negligence, unless he 
 knows it."^ 
 
 "The court modified tlie instruc- "It correctly defines 'risks inci- 
 tion by omitting the words 'or of dent to the employment' assumed 
 both' as drafted by defendant, and by one entering the service of a 
 substituting 'and' in lieu of the railroad company, and in doing so 
 disjunctive 'or;' thus declining to correctly informed the jury that a 
 instruct that defendant was enti- risk arising from the negligence 
 tied to the verdict if the injuries of the master or his servants is 
 suffered were the result of such 'not ordinarily incident to the em- 
 want of care on the part of plain- ployment;' but it is not said that 
 tiff or his fellow servants, or of such risk when known to the em- 
 both, and properly instructing ploye is not assumed as counsel 
 them that such injuries, to pre- for plaintiff in error seem to think, 
 elude recovery, must have been In another paragraph of the 
 the result of such want of care charge, the court instructed the 
 on the part of the plaintiff and of Jury at the request of the rail- 
 his fellow servants, as in the road company, that 'the employe 
 original form the defendant would is deemed in law to have assumed 
 have been relieved of liability for . . • such risks as he knows of, 
 negligence of its own servants not or would, in the exercise of ordi- 
 participated in by plaintiff." nary care in the discharge of his 
 
 77 — T., W. & W. Rd. Co. v. Dur- own duties have known of.' The 
 
 kin, 7P 111. 39.5. subject was well covered in the 
 
 7S— Texas & N. O. R. Co. v. charge given." 
 
 Kelly, 98 Tex. 123, 80 S. W. 79 (80). 79— San A. & A. P. Ryi Co. v.
 
 1036 FORMS OP INSTRUCTIONS. [§ 1563. 
 
 § 1563. Servant Must Report Defects to Master, (a) It is the 
 duty of the servants of the company to use all reasonable care and 
 diligence to see that the machinery used by them in the pei'formance 
 of their duties, is in fit condition for use, and report the defects, if 
 any, to the company, and if they do not do so, it will be negligence 
 on their part.^*^ 
 
 (b) The jury are instx'ucted that although machinery furnished 
 by a railroad company, for the use of its employes, may be unsafe, 
 yet if an employe, knowing the character of the machinery, continues 
 to use it, he is bound to exercise care and caution, reasonably oona- 
 mensurate with the apparent danger, and if he fails to do so, and is 
 injured, his negligence will preclude a recovery against the eom- 
 pan}-, on account of such injury.^^ 
 
 § 1564. Servant Having Knowledge of Defects, (a) The jury are 
 further instructed, as a matter of law, that an employe of a railroad 
 company cannot recover from the company for an injury suffered 
 in the course of the business about which he is employed, from 
 defective machinery used thei'ein, or from the dangerous condition of 
 the track, after he has knowledge of such defect or dangerous condi- 
 tion, and continues his work without objection.^- 
 
 (b) The jury are instructed, as a matter of law, that it is the 
 duty of one in the employ of a railroad company, to see that the 
 maciiinery which he uses is in repair, so far as this can be done by 
 the exercise of such care and prudence as would be exercised by a 
 prudent and careful man engaged in the same business; and when 
 such machinery is found to be out of repair, to report the fact to 
 the company; and if he does not do so, it is negligence on his part, 
 and the company will not be liable for any injury sustained by him, 
 occasioned by such machinery being out of repair.^^ 
 
 (c) The jui'y are instructed, that if a servant discovers that 
 machinery, used in the line of his employment, is out of order, and 
 dangerous to himself, and he does not stop using the same, and give 
 notice thereof to his employer or his agents, and wait until it is 
 put in proper condition, but continues to use it, and is injured by 
 
 Eng'elhorn, 24 Tex. Civ. App. 324, and the paragraph stated the rule 
 
 62 S. W. 561 (562). generallv. but not incorrectly." 
 
 "This i.s substantially the rule 80— C. & N. W. Rd. Co. v. Jack- 
 announced in M., K. & T. Ry. son, 55 111. 492; Lumley v. Caswell, 
 Co. V. Hannig, 91 Tex. 347, 43 S. 47 Iowa 159. 
 
 W. 508, in this language: 'He (the 81— Toledo, W. & W. Rd. Co. v. 
 
 servant) does not assume the risks Ashbury, 84 111. 429. 
 
 arising from the failure of the 82 — C. & A. Rd. Co. v. Munroe, 
 
 master to do his duty, unless he 85 III. 25; Fort Wayne, etc., Rd. 
 
 knows of the failure and the at- Co. v. Gildersleeve, 33 Mich. 133; 
 
 tendant risks, or in the ordinary Johnson v. Western, etc., Rd. Co., 
 
 discharge of his duty must neces- 55 Ga. 133; Way v. 111. Cent. Rd. 
 
 sarily have acquired that knowl- Co., 40 Iowa 341; Swoboda v. 
 
 edge.' Knowledge, therefore, of Ward, 40 Mich. 420. 
 
 the master's negligence, and of 83— Toledo, W. & W. Rd. Co. v. 
 
 the danger arising therefrom, is Eddy, 72 111. 138; Cent. Rd. Co. V. 
 
 the foundation of assumed risk; Kenney, 58 Ga. 485.
 
 § 1565.] NEGLIGENCE— MASTER AND SERVANT. 1037 
 
 reason of its being in such unsafe condition, then the employer will 
 not be liable for the injury, if he is otherwise without fault.*** 
 
 S 1565. Locomotive Engineer Assumes All Risks Incident to Prose- 
 cution of Employment in Usual and Ordinary Way. (a) ^Yhen plain- 
 tiff entered the service of defendant as a locomotive engineer, he 
 assumed all the risks which are incident to the prosecution of that 
 employment in the usual and ordinal-}' way, and under the circum- 
 stances usually surrounding the running of a locomotive engine in 
 the operation of a railway; and he cannot recover for any injury 
 which may have come to him in the usual and ordinary prosecution 
 of that business. But the plaintiff, when he entered such employment, 
 had a right to assume that defendant would use all reasonable care 
 in the keeping of its road and appliances in good order and repair; 
 and if any injury came to him by I'eason of any negligence of the 
 defendant or its employes, other than his own negligence, this would 
 not be a risk which he assumed as one incident to his employment.*^ 
 
 § 1566. Risks Assumed by Locomotive Engineer. One who enters 
 the employment of a railway company as a locomotive engineer as- 
 sumes all the risks that are ordinarily incident to the business, but 
 he may presume that the company will furnish him with a reasonably 
 safe track over which to operate its locomotives and trains, and he 
 does not assume any risks that may be brought about by reason of 
 the company's negligence, unless he knew of such.^° 
 
 § 1567. Assuming Risk of Working with Engineer on First Trip. 
 If you believe from the evidence that the engineei-, S., was on his first 
 run on the route when the accident occurred, and was unacquainted 
 
 84— Richardson v. Cooper, 88 111. Ry. Co., — Tex. Civ. App. — 57 
 
 270. S. W. 919; Bonnet v. Gal., h! & 
 
 85— Knapp v. Sioux C. & P. Ry. S. A. Ry. Co., 89 Tex. 72, 33 S W 
 
 Co., 71 Iowa 41, 32 N. W. 18 (21). 334; Texas & N. O. R. R. R. Co. 
 
 "This instruction is correct." v. Bingle, 91 Tex. 287, 42 S. W 971- 
 
 86— Texas & P. Ry. Co. v. Mc- Mo., K. & T. Ry. Co. v. Hannig! 
 
 Clane, 24 Tex. Civ. App. 321, 62 S. 91 Tex. 347, 43 S. W. 508. In the 
 
 W. 565. last-named case it is said: 'We 
 
 "It was the duty of appellant to understand the law to be that 
 use ordinary care in keeping its when the servant enters the em- 
 roadbed in a reasonably safe con- ployment of the master he has the 
 dition, and the trainmen were au- right to rely upon the assumption 
 thorized to assume that appellant that the machinery, tools, and ap- 
 had exercised such care and dili- pliances with which he is called 
 gence, and that the ti^ack was in upon to work are reasonably safe. 
 a reasonably safe condition. Tay- and that the business is conducted 
 lor B. & H. R. Ry. Co. v. Taylor, in a reasonably safe manner. He 
 79 Tex. 104, 14 S. W. 918. ... is not required to use ordinary 
 Deceased was authorized to as- care to see whether this has been 
 sume that the track was in a rea- done or not. He does not assume 
 sonably safe condition, and he the risks arising from the failure 
 could not be held to have assumed of the master to do his duty, un- 
 the risks arising from the condi- less he knows of the failure and 
 tion of the track unless he was the attendant risks, or, in the or- 
 chargeable with knowledge of dinary discharge of his duties, 
 such condition. Gal., H. .fe S. A. must; necessarily have acquired the 
 Ry. Co. V. Slinkard, 17 Tex. Civ. knowledge.' " 
 App. 585, 44 S. W. 35; Bookrum v.
 
 1038 FORMS OF INSTRUCTIONS. [§ 1568. 
 
 with the same and that in consequence of his lack of acquaintance 
 with the road the pkiintiff was injured, but if you further believe 
 that when plaintiff commenced the run or trip he knew that the 
 engineer was on his first run and was unacquainted with the road, 
 then the plaintiff assumed the risks and dangers attending his work- 
 ing with said engineer with the knowledge that he was on his first 
 run and unacquainted with the road, and you should find for the 
 defendant. ^'^ 
 
 § 1568. Knowledge of Fireman that Engine was Without Brake 
 Shoes. The court instructs the jury that a man cannot shut his eyes 
 and say he does not want to see anything which a reasonable man 
 could not help but see if he keeps his eyes open. Now, if for that 
 reason — that is, if the fact that there were not any brake shoes on 
 that engine was obvious to any reasonably prudent man who runs on 
 it as a fireman for several hours, as the evidence shows that plaintiff 
 did for six hours, from H to B, before he went back again before 
 the accident happened, that is perfectly obvious to a man who is 
 fireman and traveling for six hours (without hunting for it), then 
 the court will tell you that he had knowledge of, and ought to have 
 known it, and he is chargeable with it as if he had known it.^** 
 
 § 1569! Assumption of Risk by Fireman as to Brakes on Wheels. 
 You will go inside and try to put yourselves only in the same place 
 that the fireman would naturally occupy, and then, occupying that 
 place, you are to determine whether the wheels of the engine on 
 which the brakes would be can be seen from there without looking 
 for them, while a man is employed for several hours doing work on 
 the engine as a fireman — that is, whether he could easily see them 
 by just keeping his eyes open.^^ 
 
 § 1570. Assumption of Risk by Switchman, (a) It is the duty 
 of the railway company to use ordinary care in the operation of its 
 trains and cars, so that its employes shall be reasonably safe in the 
 discharge of their duties. 
 
 (b) If you believe from the evidence that under defendant's 
 method of conducting the switching it was the duty of switchmen to 
 watch out for the cuts, and determine the number of ears in them, 
 then you are instinicted that the plaintiff assumed the risk in doing 
 switching in this way, and it was the duty of himself to look out for 
 the cuts, and determine the number of cars in them; and, if he was 
 injured by a risk thus assumed, you will return a verdict for 
 defendant. 
 
 (c) The jury are further instructed tliat the plaintiff, in entering 
 upon the employment of a switchman with the defendant company, 
 assumed the risks and dangers ordinarily incident to such employ- 
 
 87— Galvoston. H. & S. A. Ry. loway, 191 U. S. 334 (337), 24 S. Ct. 
 
 Ck). V. Gib.son, — Tex Civ. App. 102. 
 
 — , 54 S. W. 779 (780). 89— C, O., etc., R. R. Co. v. Hol- 
 
 88— C, O., etc., R. R. Co. v. Hoi- loway, supra.
 
 § 1570.] NEGLIGENCE— MASTER AND SERVANT. 1039 
 
 ment, but did not assume any risks arising from the negligence of 
 defendant, if any you find there was. 
 
 (d) If you believe from the evidence that plaintiff's injuries, if 
 any, were caused by one or more of the risks or dangers which were 
 ordinarily incident to his employment as a s\vitchman, or if from the 
 evidence, you believe that plaintiff's injuries, if any, were the results 
 of an accident — that is, that they were not caused by any negligence 
 
 of said or of plaintiff — then, in either of these events, you 
 
 will find for the defendant.^'' 
 
 (e) The court instructs the juiy that when the plaintiff's in- 
 testate, D , entered the service of the defendant railway company 
 
 as a brakeman on its mixed train mentioned in the pleadings, he 
 assumed all the ordinai-y risks and hazards of that employment or 
 occupation ; and, if they shall believe from the evidence that said 
 D's injuries complained of were the direct and natural result of some 
 or more of said risks or hazards, they must find for the defendant.^^ 
 
 (f) The court instructs the juiy that when plaintiff entered the 
 employ of the defendant he assumed all the ordinary risks of the 
 employment and it was his duty to exercise reasonable care and dili- 
 gence in protecting himself from injuries; and if the jury believe 
 from the evidence in the case that plaintiff was an experienced rail-* 
 road switchman and he could, by the exercise of reasonable care and 
 diligence, have ascertained, in time to avoid the accident, that the car 
 that was approaching him from the east was on track No. 17 and 
 the stationary car was on track No. 18 so that the corners of the 
 two ears would come together, then he is not entitled to recover, and 
 it is your duty as jurors to find a verdict for the defendant. By 
 "reasonable care and diligence" is meant such care and diligence as 
 an ordinarily prudent and careful man would usuallj' exercise under 
 the same or similar circumstances. 
 
 (g) The court instructs the jury that if you believe from the evi- 
 dence in the case that the number of men employed in switching at 
 the time that the accident occurred were sufficient to handle the cars 
 with safety, by the exercise of reasonable care, then the plaintiff is 
 not entitled to recover on account of any insufficiency in the number 
 of men employed in that work. 
 
 (h) The court instructs the jury that the plaintiff has been a wit- 
 ness in his own behalf in this case, and the jury are the sole judges 
 of his credibility. All statements made by him, if any, which are 
 against his own interest, must be taken as true, but his statements 
 in his own favor are only to be given such credit as the jury, under 
 all the facts and circumstances in evidence, deem them entitled to. 
 
 (i) The court instructs the juiy that if the physical facts, as 
 
 90— The above instructions ap- & N. R. Co., 29 Ky. L. 1161, 96 S. 
 
 proved in Mo.. K. & T. Ry. Co. of W. 1123. 
 
 Texas v. Schining-, 32 Tex. Civ. "This instruction s approved be- 
 
 App. 417. 75 S. W. 64 (65). cause it gives the jury a fair, 
 
 91 — De Witts' Adm'r v. Louisville substantial, and correct view of
 
 1040 FORMS OF INSTRUCTIONS. [§ 1571. 
 
 shown by the evidence in this case, are in conflict with the statements 
 of any witness, who has testified in this case, then it is your duty to 
 take into consideration what is shown by the physical facts and to 
 disregard the statements of witnesses in conflict with such physical 
 facts, if any. 
 
 (j) The court instructs the jury that in passing on this case you 
 should take into consideration the facts and circumstances developed 
 by the evidence in the case, and in arriving at a verdict you should 
 be governed alone by the evidence and the instructions of the court, 
 which are given for your guidance, and should not suffer yourselves 
 to be in any way influenced by the fact that the plaintiff is an 
 individual and the defendant a railroad oompany.^^ 
 
 (k) If you should believe from the evidence that the plaintiff 
 suffered the injuries complained of, and has sustained the damages 
 resulting therefrom, as complained of in his petition, but should find 
 from the evidence that the injuiies sustained were on account of the 
 ordinary risks incident to his employment as a brakeman; or should 
 you find that the defect in the brake, if there was any defect in the 
 brake, was plain to the plaintiff at or before the time he attempted 
 to use same, and the danger, if any, of such use, was at said time 
 known to him, and you should find that in such use of such brake 
 the plaintiff was guilty of negligence — you will find a verdict in either 
 event for the defendant."^ 
 
 § 1571. Risks Assumed by Conductor of Passenger Train. The 
 juiy are instructed that the risks assumed by the plaintiff in accept- 
 ing employment from defendant as conductor of its passenger train 
 were only such as were incident to said employment and did not include 
 any risks arising from negligence upon defendant 's part (if there was 
 such negligence) in failing to use reasonable care and diligence to 
 see that its tracks and bridges wei^e in a reasonably safe condition.^* 
 
 § 1572. Railway Company not Liable for Injuries from Obvious or 
 Patent Defects, (a) The jury are instructed that a railway com- 
 pany is not liable to its employes for injuries resulting from obvious 
 or patent defects in tools or appliances with which they are fur- 
 nished to discharge their duties — that is, defects which are as open 
 to the observation of the employes as to the company — and in such 
 case the employe assumes the risks incident to the use of said 
 defective tools or appliances.^^ 
 
 (b) The court instructs the jury, although you may believe, from 
 the evidence, that the plaintiff's intestate, A. B., was not employed 
 to do the work he was engaged in at the time of his injury, yet if 
 
 the law as to the question in- — Tex. Civ. App. — , S6 S. W. 21 
 
 volved." (23). 
 
 92 — These five linstructions ap- 94 — Copeland v. Wabash R. Co., 
 
 proved in Phippln v. Mo. Pac. R. 17!^ Mo. 650, 75 S. W. 106 (108). 
 
 Co.. 196 Mo. .321. 93 R. W. 410 (413). 9.5— Moore v. Mo..'K. & T. Ry. 
 
 93 — Tex. Cent. R. Co. v. Powell, Co. of Texni?^ 30 Tox. Civ. App. 
 
 266, 69 S. W. 997 (999).
 
 § 1573. J NEGLIGENCE— MASTER AND SERVANT. 1041 
 
 the jury further believe, from the evidence, that he was engaged in 
 said work without objection, and that the risks and dangers thereof, 
 if it had any, were open and plain to his sight and understanding, 
 then he occupies in this case the same position he would have occu- 
 pied if he had been originally employed to do this work; and if he 
 was injured while employed by reason of such open and plain risk, 
 his injury was the result of risks which were assumed by him, and 
 plaintiff is not entitled to recover in this action, and your verdict 
 should be in favor of the defendant. 
 
 (c) The court instructs you that, if a servant of full age and 
 ordinary intelligence, upon being required by his employer to perform 
 other duties more dangerous and complicated than those embi'aced 
 in his original hiring, undertakes the same knowing and understand- 
 ing their dangerous character, he assumes the risk of the new duties 
 which are equally open and apparent to him as to his employer.^® 
 
 § 1573. Rule in South Carolina as to Obviously Defective Appli- 
 ances, (a) I charge you that the risk which a railway employe 
 assumes when he enters the employ of a railway company does not 
 extend to such risks as he is expKDsed by reason of defective machinery 
 or appliances. 
 
 (b) I charge you that contributoiy negligence on the part of the 
 servant, by using appliances obviously defective, furnished by a rail- 
 way company, is no longer of force in South Carolina, under the 
 Constitution of 1895." 
 
 § 1574. Railroad Employe Need not Search for Latent Defects. 
 Railroad employes are presumed to understand the nature and hazard 
 of the emploj^ment when they engage in the sel'^'ice, and they assume 
 all ordinaiy risks and obvioi;s perils incident thereto. Such risks are 
 presumably within the employe's contract of service. This does not 
 mean, however, that the latter may not repose confidence in the 
 prudence and caution of the employer, and rest on the presumption 
 that he has also discharged "his duty by supplying machinery free 
 from latent defects which expose the employe to extraordinary and 
 hidden perils. While the employer may expect that an employe will 
 be vigilant to obsen^e, and that he will be on the alert to avoid, all 
 known and obvious perils, even though they may arise from de- 
 fective tools and maehineiy, yet the latter is not bound to search for 
 defects, or inspect the appliances furnished him, to see whether or 
 
 96 — C, R. I. & P. Ry. Co. v. circuit judge was careful to say: 
 
 Kinnare, 91 111. App. 508 (513), aff' d 'Provided, the negligence of the 
 
 190 III. 9, 60 N. E. 57. master wa§ the direct and proxi- 
 
 97— Carson v. So. Ry. Co., 68 S. mate cause of the injury.' etc. 
 
 C. 55. 46 S. E. 525 (535). The servant does not assume the 
 
 "We do not see that the judge's risks of the master, and as we 
 
 charge was Impropor. He ch?irged have seen it, it is the master's duty 
 
 the law of this state. He did not to furnish safe machinery and ap- 
 
 use language which made the mas- pliances, and keep the same in 
 
 ter a guarantor of the machinery proper repair." 
 and appliances, especially as the 
 66
 
 1042 FORMS OF INSTRUCTIONS. [§ 1575. 
 
 not there are latent imperfections in and about them which render 
 their use more hazardous. These are duties of the master, and, unless 
 the defects are such as to be obvious to anyone giving attention to the 
 duties of the occasion, the employe has a right to assume that the 
 employer had performed his duy in respect to implements and ma- 
 chinery furnished.^^ 
 
 § 1575. Continuing in Employment with Knowledge of Dangerous 
 Conditions, (a) The jury are further instructed, as a matter of 
 law, that an employe of a railroad company cannot recover for an 
 injury suffered in the course of the business about which he is em- 
 ployed from defective machinery used therein, or from dangerous con- 
 dition of the track, or improper manner of running and operating 
 of a train, after he has knowledge of svieh dangerous conditions and 
 continues his work without objection ; and in this case, if you believe 
 from the evidence that Brakeman C. knew that there was no turn- 
 table at W., that the engine must back up on return trips, and that 
 there was no regular headlight upon the engine in question, and that 
 there was no pilot upon the tender of such engine, and that he con- 
 tinued in such employment with knowledge of such conditions, with- 
 out objection, and if the injuries in question resulted from any of 
 said conditions, plaintiff cannot recover on those issues, and your 
 verdict should be for the defendant.^^ 
 
 (b) The court instructs the jury that if an employe, knowing that 
 a machine is unsafe, works upon it, consents to work upon it, has 
 preknowledge, understands its condition, understands that it is in an 
 unsafe condition, and knoAvingiy continues to work with it, he as- 
 sumes the risks that are liable to follow. If he does that without 
 finding any fault, he assumes them the more, and he also assumes 
 
 98— Wab. W. Ry. Co. v. Mor- of ordinary care, are not perils in- 
 
 gan. 122 Ind. 430, 32 N. E. 85, 31 cident to the service, and lience are 
 
 N. E. 661. not assumed by the employe. 
 
 "The employer is bound to make Rog-ers v. Leyden, 127 Ind. 50, 26 
 
 reasonable inspection of the appli- N. E. 210, and cases cited; O. & 
 
 ances furnished the employes to M. R. R. Co. v. Pearcy, supra; 
 
 discover latent defects, and a neg- Matchett v. Railway Co., supra, 
 
 lect to make such an inspection It was therefore not error to di- 
 
 Is a culpable breach of duty. N. rect the jury that the employer's 
 
 P. R. R. Co. v. Herbert, 116 U. duty was to furnish appliances 
 
 S. 642, 6 S. Ct. 590; Matchett v. free from latent defects, nor was 
 
 Clnn. & W. Ry. Co., 132 Ind. 334, it error to direct them that the 
 
 31 N. E. 792; Ohio & M. R. R. Co. duty to search for such defects 
 
 V. Poarcy, 128 Ind. 197, 27 N. E. did not rest upon the employe. 
 
 479; C. H. & D. R. R. Co. v. "See also authorities cited in 
 
 McMulIen, 117 Ind. 439, 20 N. -E. this opinion on the degree of care 
 
 287. This duty to inspect Implies, required of employes." 
 
 of course, that the employer will 99 — C, B. & Q. R. R. Co. v 
 
 not subject the employe to con- Camper, l'!)9 111. 569, 65 N. E. 448, 
 
 cealed defects which an Inspec- rev'g 100 111. App. 21. 
 
 tlon conducted with ordinary care "We are of the opinion that the 
 
 would have revealed. Obvious de- defendant was entitled to have 
 
 fects, open to ordinarily careful this instruction given to the jury, 
 
 observfitloii, nre perils of the serv- and that it was prejudicial error 
 
 ice, but latent defects, or defects to refuse it." 
 not discoverable bv the exercise
 
 §1576.] NEGLIGENCE— MASTER AND SB-RVANT. 1043 
 
 them even if he does find fault, unless as a result of his finding fault, 
 some promise is made to him by his employer to repair or correct, 
 and there is a failure to do it within the time promised, or within a 
 reasonable time.^°'^ 
 
 § 1576. Engineer's Knowledge of Defect in Headlight. If you 
 believe that the headlight of the engine upon which the plaintiff 
 was emploA'ed at the time of the alleged accident was defective, or so 
 defective that it gave an insufficient light, and that the plaintiff 
 knew the same before or at the time of his starting upon his run 
 from A, and that the night Avas dark and stormy, and that the 
 plaintiff knew, or, in the ordinary discharge of his duty, must neces- 
 sarily have acquired the knowledge that it was dangei'ous to run his 
 engine with the headlight in such a condition, then he must be held 
 to have assumed the risk and danger of running the engine with such 
 headlight, and, if he was injured under such circumstances in conse- 
 quence of the headlight being defective, and independently of any 
 other act of negligence, or negligent omission on the j^art of the 
 defendant, your verdict should be for the defendant.^ 
 
 § 1577. Assumption of Risk as to Defective Stirrup After Proper 
 Inspection. You are further charged that if 3'ou find from the testi- 
 mony that the defendant's insi^ectors, pi-evious to said accident, in- 
 spected said car to which said stirrup was fastened, and you further 
 find that said inspectors inspected said car in the usual and cus- 
 tomary manner; and you further find that in making said inspection 
 of said car said inspectors used ordinary care and diligence to ascer- 
 tain whether said stirrup was reasonably safe for the purposes for 
 which it was being used, and failed to discover that said stirrup was 
 not securely fastened, if you find it was insecurely fastened — then I 
 charge you that the accident which it is claimed caused A's death, 
 was one of the risks ordinarily incident to his employment, and your 
 verdict must be for the defendant. - 
 
 100— Breig- v. C. & W. M. Ry. Co., W. 912; Int'l & G. N. Ry. Co. v. 
 
 98 Mich. 222, 57 N. W. 118. Hawes, — Tex. Civ. App. — , 54 
 
 "This is, in the abstract, a cor- S. W. 325; Mo., K. & T. Rd. Co. 
 
 rect statement of lavv*. Sjogren v. v. Crowder, — Tex. Civ. App. — , 
 
 Hall, 53 Mich. 274. IS N. W. 812; 55 S. W. 380; Houston & T. C. Rd. 
 
 Prentiss v. Mfg-. Co., 63 Mich. 478, Co. v. Milam. — Tex. Civ. App. 
 
 30 N. W. 109; Kean v. Rolling Mills, — , 58 S. W. 735; Texas Cent. Rd. 
 
 66 Mich. 277, 33 N. W. 395; Melzer Co. v. Fox, — Tex. Civ. App. — , 
 
 V. Car Co., 76 Mich. 94, 42 N. W. 59 S. W. 49; De La Verg-ne Refrig. 
 
 1078." Machine Co. v. Stahl, — Tex. Civ, 
 
 1— Galveston, H. & S. A. Ry. App. — , 60 S. "W". 319; Jones v. 
 
 Co. v. Fitzpatrick, — Tex. Civ. Shaw, 16 Tex. Civ. App. 296, 41 S. 
 
 App. — , 91 S. W. 355 (337). W. 690; San Antonio Edison Co. 
 
 2— Galveston, H. & S. A. Ry. v. Dixon. 17 Tex. Civ. App. 320, 
 
 Co. V. Dnvis, 27 Tex. Civ. App. 42 S. W. 1009; Gulf C. & S. F. Ry. 
 
 279. 65 S. W. 217 (218). Co. v. Delnney, 22 Tex. Civ. App. 
 
 "Its correctness Is sustained by 427, 55 S. W. 538; Gal., H. & S. A. 
 
 an unbroken line of authorities. Ry. Co. v. Templeton, 87 Tex. 42, 
 
 Galveston. H. & S. A. Ry. Co. v. 26 S. W. 1066; Eddy v. Prentice, 8 
 
 Nass, — Tex. Civ. App. — , 57 S. Tex. Civ. App. 58, 27 S. W. 1063;
 
 1044 FORMS OP INSTRUCTIONS. [§,1578. 
 
 § 1578. Failure of Servant to Discover Absence of Ladder, Handles 
 or Steps at End of Car. The jury are instructed as a matter of law 
 that a servant, when he enters into the service of an employer, 
 impliedly agrees that he will assume all risks which are ordinarily 
 and naturally incident to the particular service; and the master or 
 employer impliedly agrees that he will not subject his servants, 
 through fraud, negligence or malice, to greater risks than those which 
 fairly and properly belong to the particular service in which the 
 servant is to be engaged. The master's obligation is not to supply 
 the servant with absolutely safe machinery or with any particular 
 kind of machinery, but his obligation is to use ordinary and reason- 
 able care not to subject the servant to extraordinaiy or unreasonable 
 danger. Hence, in this case, unless the jury find from the evidence, 
 that the absence of a ladder or steps and handles from the end of the 
 car in question subjected the plaintiff to extraordinary or unreasonable 
 danger, the plaintiff cannot recover. And if the jury find, from the 
 evidence, that the plaintiff might, by the exercise of ordinaiy care, 
 have discovered the absence of a ladder, or steps, or handles from 
 the end of the ear in question and so averted the accident, the ver- 
 dict should be not guilty.^ 
 
 § 1579. Servant Assumes Risks of Usual Jarring and Shaking of 
 Car. Although the jury may believe from the evidence that said car 
 was suddenly stopped, and that the speed of said car was suddenly 
 checked, and that said car was otherwise jarred at the time plaintiff 
 was injured, yet they must find for the defendant unless they further 
 believe from the evidence that said stopping of said ear, or the sudden 
 checking of said car, caused an unusual shaking or jarring of said 
 car.'* 
 
 § 1580. Assuming Risk as to Defective Track, (a) The court in- 
 structs the jury that every person in entering upon the employment 
 of another assumes all the usual risks of- that employment. If such 
 employe is set to work upon a defective track and continues in that 
 employment after having had an opportunity to observe and know 
 the condition of the track, then he assumes the risks of working upon 
 such track, and for any accident occurring through the condition of 
 said track he can not recover damages.^ 
 
 Texas & P. Ry. Co. v. O'Fiel, 78 "If the jerking and jarring -was 
 
 Tex. 486, 15 S. W. 33; Shear & R. such as was customary and usual, 
 
 Neg. (5th ed.) par. 194a. The last and_ not an unusual jerking or 
 
 authority shows that the master is jarring, then the incident risk was 
 
 chargeable with constructive no- one that was assumed by the 
 
 tice of whatever, by the use of plaintiff In his said employment. 
 
 ordinary care and diligence, he We are of the opinion that the 
 
 might haye discovered; hence, the charge was proper, and should 
 
 use of the word 'diligence' was not, have been given as requested. B. 
 
 as is contended by appellant, im- M. R. R. Co. v. Wilmer. 97 Ala. 
 
 prnpf-r." 165, 11 So. 8S6; H. A. & B. R. Co. 
 
 3— C. B. & Q. R. R. Co. V. War- v. Miller, 120 Ala. 543, 24 So. 9!55." 
 
 ner, 123 111. 38 (48), 14 N. E. 206. .5— C. & G. T. Ry. Co. v. Kin- 
 
 4— L. & N. R. Co. v. Smith, 129 nare. 76 111. App. 394 (^^9^). 
 
 Ala. 553, 30 So. 571 (574). "This instruction was modified by
 
 § 1581.] NEGLIGENCE— MASTER AND SERVANT. 
 
 1045 
 
 (b) The court instructs the jury that it is the duty of a railroad 
 company to keep and maintain its tracks in a reasonably safe condi- 
 tion for the running of its trains thereon, and that its employes have 
 the right to rely upon the assumption that it does so, and they are not 
 required to exercise ordinaiy care to see if the company has done so, 
 and they do not assume the risk arising from the failure of the 
 company to do so, unless they know of the failure, or unless, in the 
 discharge of their duties, must necessarily have acquired the 
 knowledge.*' 
 
 § 1581. Assuming Risk of Working on Side-track. The jury are 
 instructed that the plaintiff, in undertaking to work for the P. 
 company, and thereafter to Avork on a side-track of such company, 
 assumed all the risk of injury whilst working in that capacity, which 
 existed when the business was carried on in the usual and ordinary 
 way and with reasonable eare.'^ 
 
 § 1582. Knowledge of Presence of Dangerous Culvert or Cattle- 
 guard. You are instructed that while it was the dut}' of defendant 
 to provide a reasonably safe roadbed and sti'ucture, yet it was also 
 A's duty to be mindful of the known dangers of his work; and if 
 you believe from the evidence that he knew the culvert or cattle- 
 
 adding the words 'and know' aft- 
 er the word 'observe.' The court 
 say: 'It is not enough to prevent 
 the servant's recovery that he ob- 
 serves a condition existing, but he 
 must know, or by the exercise of 
 ordinary care should know, the at- 
 tendant danger of such condiUoTi.' 
 Cons. Coal Co. v. Haenni, 146 111. 
 614-25, 35 N. E. 162; 111. Steel Co. 
 V. Schym:inowski, 162 111. 447-59, 
 44 N. E. 876." 
 
 6— So. K. Ry. Co. of Texas v. 
 Sage, — Tex. Civ. App. — , 80 S. 
 W. 1038 (1040). 
 
 "We know of no principle of law 
 that would impose upon a servant 
 the duty of exercising care to dis- 
 cover defects in the premises or 
 appliances furnished him by the 
 master. The charge is not incor- 
 rect in this respect. Nor is it er- 
 roneous as giving undue promi- 
 nence to the requirement that the 
 railroad company must keep its 
 track in a reasonably safe condi- 
 tion for the running of its trains. 
 It is not every repetition that 
 amounts to undue prominence. 
 Lumsden v. C. R. I. & T. Ry. 
 Co.. 73 S. W. 428, 7 Tex. Ct. Rep. 
 170." 
 
 7— Penn. Co. v. Backes, 133 111. 
 255 (261), 24 N. E. 563. 
 
 "If a servant knowing the haz- 
 ards of his employment as the 
 "business is conducted is injured 
 while engaged therein, he cannot 
 
 maintain an action against the 
 master for the injury merely on 
 the ground that there was a safer 
 mode in which the business might 
 have been conducted, the adop- 
 tion of which would have pre- 
 vented the injury (Simmons v. C. 
 & T. Ry. Co., 110 111. 347j see also 
 Stafford v. C, B. & Q. Ry. Co., 
 114 111. 244, 2 N. E. 185; and U. S. 
 Rolling Stock Co. v. Wilder, 116 
 111. 100, 5 N. E. 92), but in this 
 case the relation of master and 
 servant did not exist between the 
 plaintiff and the railway company. 
 And we are inclined to hold that 
 the exemption of the master 
 growing out of the relation of 
 master and servant and the serv- 
 ant's contract to assume the or- 
 dinary risks incident to the busi- 
 ness does not apply. But, even if 
 the relation of master and servant 
 existed between appellee and ap- 
 pellant, the appellant was required 
 in switching its cars to do so. not 
 in a reckless manner, but with due 
 regard to the safety of those who 
 might be engaged in unloading 
 cars on the switch or side-track. 
 N. C. Rolling Mill Co., v. Johnson. 
 114 111. 59, 2 N. E. 185. The ruling 
 in this case was approved in C. 
 & N. W. Ry. Co. V. Goebel, 119 
 111. 516, 10 N. ,E. 369. Under the 
 rule as established in these cases, 
 the appellant was required to use 
 reasonable care to avoid injury."
 
 1046 FORMS OF INSTRUCTIONS. [§ 1583. 
 
 guard, in its then condition, was there, or by the exercise of ordinary 
 observation might have known it, then he was bound to guard against 
 it; and if, with such knowledge, he was injured in consequence of 
 such culvert, the defendant can not be held liable in this case, and 
 your vei'dict should be not guilty.^ 
 
 § 1583. Equal Knowledge of Master and Servant as to "Dodged" 
 or Low Joint in Track, (a) If the jury shall find from the evidence 
 that there Avas a defect in the defendant's track, in regard to a 
 "dodged joint" or a low joint, and shall further find that such 
 defect was the proximate cause of the plaintiff's injury, yet, if the 
 jury shall further find that both plaintiff and defendant had equal 
 knowledge of the existence of said defect, then plaintiff cannot 
 I'ecover. 
 
 (b) If the jury shall find from the evidence that the proximate 
 cause of the plaintiff's injury was a "dodged joint" or a low joint 
 in defendant's track, and that plaintiff had knowledge of the exist- 
 ence of such defect, or, in the course of his employment, should have 
 known of the existence of the same, the plaintiff cannot recover of 
 defendant damages for such injury.^ 
 
 CONTRIBUTORY NEGLIGENCE. 
 
 § 1584, Failure of Engineer to Exercise Ordinary Care in Oper- 
 ating Engine. It was the duty of the plaintiff, S., to exercise the 
 care that an ordinarily prudent person would take under the same or 
 similar circumstances in operating his engine while running over 
 defendant's track, and if he failed to exercise such care at the time 
 he was injured, he was guilty of contributory negligence, and there- 
 fore, if at the time of the wrecking of the train and the injury to him, 
 he was not exercising such care, and his injuries resulted from such 
 want of the exercise of ordinaiy care, he cannot recover in this case.^" 
 
 § 1585. Contributory Negligence of Plaintiff in Wetting Deck and 
 Apron of Engine. You are ehai-ged that if you find from the testi- 
 mony that prior to the time plaintiff claims he slipped and fell upon 
 said apron he wet the deck of said engine and said apron, and that 
 by reason thereof said apron became slippery, if you find it was slip- 
 
 8 — P., D. & R. Ry. Co. v. Puckett, ceased know it was there, it must 
 
 52 III. App. 222 (225, 226). be presumed, in the absence of 
 
 "The question whether the cat- objection on his part, that he as- 
 
 tle-Ruard was 'properly construct- sumed the extra hazard arising 
 
 ed,' so far as the evidence referred therefrom. Mo. Furnace Co. v. 
 
 to it, mainly depended on whether Abend, 107 III. 44, 47 Am. Rep. 425; 
 
 it was necessarily or properly Wharton on Neglis-ence, sec. 206; 
 
 where it was. It was not so much Stafford v. C, B. & Q. R. R., 114 
 
 a question of proper construction 111. 244. 2 N. E. 185." 
 
 as of proper location. Perhaps it f> — Wilkie v. R. & C. F. R. Co., 
 
 was not necessarily there. Perhaps 127 N. C. 203, 37 S. E. 204 (205). 
 
 it should or mi{?ht as well have 10 — So. K. Ry. Co. v. Sa^e, — 
 
 been further on. Tex. Civ. App. — , 80 S. W. 1038 
 
 "But, be this as it may, if de- (1040).
 
 § 1586.] NEGLIGENCE— MASTER AND SERVANT. 1047 
 
 pery, and caused plaintiff to fall, and you further find that in wetting 
 said deck and apron, at said time, if you find it was so Avet, plaintiff 
 was guilty of negligence, and that such negligence, if any, directly 
 caused or contributed to his injury, if any or if you find that the 
 plaintiff failed to exercise ordinary care in stepping upon said apron, 
 and that such failure, if any, proximately caused or contributed to 
 his injury, if any, then your verdict must be for the defendant. ^^ 
 
 § 1586. Failure of Engineer to Keep Proper Lookout to Avoid 
 Collision. If you believe from the evidence that the plaintiff failed 
 to keep a proper lookout as he ran his train into K. and that such 
 failure, if any, proximately caused or contributed to cause the col- 
 lision and plaintiff's injuries, you will find for the defendant.^- 
 
 § 1587. Failure to Check Train Run at Dangerous Speed When in 
 Servant's Power to do So. If you believe from the evidence that 
 the plaintiff, just before the accident occurred, knew that the train 
 was being run in violation of the rules of the company, and at a 
 dangerous rate of sjDeed, and that he sat with his hand upon the lever 
 •of the air brakes, with full power to cheek the speed of the train, 
 or to stop it, before the accident happened ; and if you further believe 
 from the evidence that the accident resulted from the running of the 
 train at a dangerous rate of speed, and in violation of the rules of 
 the company ; and you further believe from the evidence that a person 
 of ordinary prudence occupying the position by the plaintiff in this 
 ease under the circumstances would have applied the air brakes, 
 and reduced the speed of the train, or stopped it ; and you further 
 believe from the evidence that the plaintiff could have checked or 
 stopped the train in time to have prevented the accident, and did 
 not do so — then the court instructs you that he was guilty of con- 
 tributory negligence, cannot recover herein, and you will return your 
 verdict for the defendant.^^ 
 
 11— Galveston, H. & S. A. Ry. correct, and if appellant desired 
 
 Co. v. Udalle, — Tex. Civ. App. the other phase of the case as to 
 
 — , 91 S. W. 330 (333). the wet apron presented to the 
 
 "It will be noticed how strik- jury it should have asked for it." 
 
 ingly similar the language of the 12 — Int'l & G. N. R. R. Co. v. 
 
 charge is to the language of the Brice, — Tex. — , 97 S. V/. 461. 
 
 plea, and yet appellant claims that "The charge correctly stated the 
 
 the court erred in presenting its law, and should have been given, 
 
 defense to the jury, because it led B.'s duty to keep a lookout while 
 
 the jury to believe that although approaching the station did not 
 
 appellee may have fallen on ac- depend upon his knowledge of 
 
 count of the apron being wet, and whether or not there was a train 
 
 not on account of its defects, that standing at that station. A want 
 
 the jury must find for him un- of knowledge of the fact would 
 
 less he was guilty of contributory create a greater necessity for his 
 
 negligence. Although it was alleged keeping a lookout in anticipation 
 
 that appellee was guilty of con- that a train might be there, and 
 
 tributory negligence in wetting that a collision might occur in ap- 
 
 the apron, it is contended in the proaching the station." 
 
 brief that it was not contributory 1.3— Int'l & G. N. R. Co. v. Coch- 
 
 negligence to wet the apron, be- rane, — Tex. Civ. Aj>p. — , 71 S. 
 
 cause it was his duty to wet it. W. 41 (42). 
 Clearly the charge as given was
 
 1048 FORMS OF INSTRUCTIONS. [§ 1588. 
 
 § 1588. Bleeding Reservoir of Car on Bridge Unnecessarily. The 
 
 jury are instructed that if they shall believe from the evidence in 
 
 this case that A. was in charge of train No. , on the day 
 
 of , that it was unnecessary for him to bleed the reservoir of 
 
 ear No. 9,202 while standing on the bridge at F., and that he could 
 have waited until bridge was crossed by said ear, and then have bled 
 it in safety, he is not entitled to recover in this case, and they must 
 find for the defendant. i'* 
 
 §1589. Shifting Cars by "Kicking" Them Back not Negligence 
 Per Se. If in the i^erformance of his duties M. had no instructions 
 to pursue a particular method, and two or more methods were open 
 to him he cannot be said to have been negligent if he in good faith 
 adopted that method which was more hazardous than another, if the 
 one adopted be one which reasonable and prudent persons would 
 adopt under like circiimstances. 
 
 Shifting cars by means of the kicking back process is not neces- 
 sarily at all times an act of negligence per se, even though there 
 may be a safer method of shifting them.^^ 
 
 § 1590. Contributory Negligence of Employe in Coupling Cars. 
 You are charged that if you believe from the evidence in this ease 
 that the plaintiff, in attempting to make the coupling at the time he 
 was injured, was negligent, and negligently failed to use ordinary 
 care as herein defined, and attempted to make said coupling without 
 knowing the engineer had received his signal and had acted upon the 
 same by stopping the cars, and that in his doing so he was negligent 
 as herein described, and that in doing so he failed to exercise 
 ordinary care for his own safety, and that such negligence was the 
 proximate cause of his injury, then and in that event you will find 
 for the defendant. ^"^ 
 
 § 1591. Voluntarily Disconnecting Cars While in Motion. You 
 are further instructed that if you believe from the evidence the de- 
 
 14 — Norfolk & W. Ry. Co. v. watching said cars, so as to avoid 
 
 Mann, 99 Va. 180, 37 S. E. 849 (850). injury, and that in so doing his 
 
 "That instruction, we think, failure to watch and look out was 
 
 should have been g-iven. It states negligence as herein charged, and 
 
 the law plainly and concisely, and was a failure to exercise ordinary 
 
 there is evidence tending to prove care as herein charged, and that 
 
 the facts upon which it is based." such negligence was the proxi- 
 
 15 — Florida C. & P. R. Co. v. mate cause of the injury, then 
 
 Mooney, 45 Pla. 286, 33 So. 1010 you will find for the defendant.' 
 
 (1011). These charges, in our opinion, are 
 
 16 — So. Const. Co. v. Hinkle, — in all essential particulars sub- 
 
 Tex. Civ. App. — , 89 S. W. 309 stantially the same as those re- 
 
 (310). quested by appellant and refused. 
 
 "In the eleventh paragraph of They more nearly conform to ap- 
 his charge they were instructed as pcllant's special plea of contribu- 
 follows: 'You are further in- tory negligence than the special 
 structed that if you believe from charges. They satisfy the de- 
 the evidence that at the time mands of the rule above stated, 
 plaintiff attempted to make said and are at least as favorable to 
 coupling of said cars he went in .'ippollant, we think, as it was en- 
 betwer-ii said cars as one ap- titled to ask." 
 proached from the rear without
 
 § 1592.] NEGLIGENCE— MASTER AND SERVANT. 1049 
 
 ceased, , was employed by defendant company as railway 
 
 brakeman upon a freight train, and that he, at the time of his injury 
 and immediately prior thereto, had charge of the switching of the cars 
 and the mode and manner in which they should be connected and dis- 
 connected, and that he could have chosen a safe way of disconnecting 
 cars by doing so while they were stationary, but instead thereof he 
 voluntai'ily chose to disconnect the cars while in motion, then if that 
 was a dangerous method and so known to him, and he was injured in 
 consequence thereof, there can be no recovery in this case, and your 
 verdict should be not guilty.^^ 
 
 § 1592. Failure to Guard Against Danger of Known Custom of 
 Kicking Cars While Switching. The court instructs the jury that if 
 from the evidence you believe that a programme had been arranged 
 between H. and the other employes of defendant in the switch crew 
 for the switching of the car, and that under said programme the said 
 H. knew that at or about the time he went to uncouple the car the 
 train Avould be put in backward motion and started backwards for 
 the purpose of giving the end ear a kick, that it might roll into the 
 side track, and that such was the usual and customary method at the 
 G. yards of doing the work, and that said H. knew of such fact, if 
 any, and knew when he went to do the work that said car would be 
 kicked in said manner without signal or notice to him, and that, 
 notwithstanding such knowledge on the part of H., he put himself 
 in a position to be struck by the backward movement of the train, 
 if any, if you so find the facts, you will return your verdict for 
 defendant, as in such state of facts he would have assumed the risk 
 of such backward movement.^^ 
 
 § 1593. Failure to Have Switch Thrown Back After Entering Spur 
 Track. If you believe from the evidence that plaintiff was guilty of 
 negligence in failing to cause the switch to be thrown back for the 
 main line after entering the spur track with his engine, or if you 
 believe that rule 104a was in force at the time of plaintiff's injury 
 and intended by the company to be observed by plaintiff, and that by 
 his failing to have the switch closed after entering the spur track 
 
 17— Peoria, D. & E. Ry. Co. v. Texas 397, 14 S. W. 1034. The case of 
 
 Puckett, 52 111. App. 222 (226, 227). Texas & N. O. Ry. Co. v. Conroy, 
 
 "We are clearly of opinion the 83 Tex. 214, 18 S. W. 609, seems to 
 
 principle stated in these instruc- be in conflict with the two cases 
 
 tions was correct and that it was cited; but the report of the case is 
 
 applicable to the facts before the so meager, and the opinion of the 
 
 jury." court so indefinite, that we are 
 
 18— Gulf, C. & S. F. Ry. Co. v. unable to determine upon what 
 
 Hill, 95 Tex. 629, 69 S. W. 136 (138, ground the decision is based. We 
 
 140). do not believe that it was the in- 
 
 "The charge of the court stated tention to overrule the cases be- 
 
 a correct proposition of law, and fore cited. However that may be. 
 
 nothing appears which indicates we are satisfied with the rule an- 
 
 that the jury was probably misled nounced in S. & E. T. Ry. Co. v. 
 
 by it. Sabine & E. T. Ry. Co. v. Wood and T. & P. Ry! Co. v. 
 
 Wood, 69 Tex. 679. 7 S. W. 372; Brown." 
 Texas & P. Ry. Co. v. Brown, 78
 
 1050 
 
 FORMS OP INSTRUCTIONS. 
 
 [§ 1594. 
 
 with his engine in obedience to the requirements of said rule, he was 
 guilty of negligence — you will find a verdict for defendant.^'' 
 
 § 1594. Care Due by Employe for His Own Safety While Sig- 
 naling Returning Section. If you believe from the evidence that 
 the deceased had taken his station on the railway, track for the 
 purpose of signalling the returning section, it was his duty to exer- 
 cise for his own safety such care and prudence as men of ordinai-y 
 prudence would exercise for their own safety under like circum- 
 stances. If you further believe from the evidence that deceased, 
 while occupying this place on the track, failed in any respect to 
 exercise that degree of care and prudence, and that the killing would 
 not have occurred if he had done so, then you will find for the 
 defendant.^** 
 
 § 1595. Failure to Use Stirrup and Hand-hold in Boarding Oar. 
 
 The jury are instructed that if there was a stirrup and a hand-hold 
 on the car, provided for the purpose of enabling the employes of the 
 
 19— Missouri, K. & T. Ry. Co. of 
 Texas v. Parrott, — Tex. — , 92 S. 
 W. 795. 
 
 20— L. & N. R. Co. v. Sliumak- 
 er's Admx., 112 Ky. 431, 67 S. W. 
 829 (830). 
 
 "The annotator of the American 
 Decisions in his notes to Freer v. 
 Cameron, 55 Am. Dec. 606, says: 
 'Scarcely any theme in the whole 
 range of legal science has been 
 more fruitful in adjudications than 
 the subject of contributory negli- 
 gence, but the multiplicity of de- 
 cisions on this point has not by 
 any means cleared it of difficulties. 
 On the contrary, it has in some 
 respects seemed to 'darken coun- 
 sel' by the introduction of a great 
 variety of metaphysical refine- 
 ments and subtile distinctions. 
 Mr. , Thompson declares himself 
 convinced after a study of the ad- 
 judications of both the English 
 and American courts, that the 
 whole subject of contributory neg- 
 ligence remains in a state of great 
 confusion and uncertainty.' Mr. 
 Thompson, in his recent Commen- 
 taries on the Law of Negligence 
 (vol. 1, § 23) says: 'In most situa- 
 tions and employments the stand- 
 ard of care which the law imposes 
 upon persons, to the end of avoid- 
 ing injury to themselves or others 
 is designated by the descriptive 
 words 'ordinary care' or some- 
 times bv the words 'ordinary or 
 reasonable care,' 'ordinnry care* 
 and 'rensonable care" have been 
 regarded ns meaning substantially 
 the same thing. Sometime.s again 
 we meet with such expression as 
 
 'due care' though it has been held 
 that this expression in a request 
 for an instruction, is properly 
 changed to 'ordinary care' or 'rea- 
 sonable care.' Moreover it is to 
 be kept in mind that the standard 
 of ordinary care is not the stand- 
 ard of the law under all circum- 
 stances, but that where human life 
 is the subject of a bailment, so to 
 speak, as in the case of carriers 
 of passengers, the law, at least for 
 the purpose of instructing a jury, 
 lays down a more exact standard. 
 But, as we shall see further on, 
 ordinary care is a care propor- 
 tioned to the risks of the business 
 or of the particular situation. It 
 is such care as prudent men are 
 accustomed to use under the same 
 circumstances, and. if the danger 
 is great, it may rise to the grade 
 of a very exact and unremitting 
 attention. With the exceptions 
 elsewhere noted, the standard of 
 care by which to determine 
 whether actionable negligence has 
 been committed is the standard 
 which ordinarily prudent men are 
 accustomed to exercise under the 
 same circumstances. What a rea- 
 sonably prudent man would Ordi- 
 narily do under a given state of 
 fact is as near an approximate to 
 the true standard as can be well 
 expressed in words.' It places 
 both parties on an equal footing 
 as to the rule to be applied in as- 
 certaining whether there has been 
 negligence. The instruction given 
 by the court presents fully this 
 view of the law."
 
 § 1596.] NEGLIGENCE— MASTER AND SERVANT. 
 
 1051 
 
 defendant to get on the said coal car, and the plaintiff knew that 
 the stirrup and hand-hold were on the coal car, or, in the exercise of 
 ordinary care and diligence, would have known it, then it was his 
 duty to have boarded the car by the use of the stirrup and the 
 hand-hold; and if, under such facts, he failed to do so, he cannot 
 recover in this action.-^ 
 
 § 1596. Contributory Negligence of Servant in Failing to Keep 
 Lookout for Signals. I charge you, gentlemen of the juiy, that it 
 was the duty of the plaintiff, in riding the car, to have kept a lookout 
 for any and all signals that might have been given by the employe 
 of the defendant.-^ 
 
 § 1597. Failure to Heed Whistle or Bell. If, however, you find 
 from the testimony that the engineer in charge of said engine warned 
 plaintiff' of the approach of said train, by the blowing of the whistle 
 or the ringing of the bell, in time for plaintiff, by the use of ordinary 
 care to have left the track and avoided ihe accident and injury, 
 
 21— Light v. Chi. M. & St. P. Ry. 
 Co., 93 la. 726, 61 N. W. 380 (381). 
 
 22— L. & N. R. Co. v. Smith. 129 
 Ala. 553, 30 So. 571 (573). 
 
 "The comphiint charges negli- 
 gence in the control and superin- 
 tendence exercised over the car 
 from which the plaintiff is alleged 
 to have been thrown or caused to 
 fall, and in his evidence plaintiff 
 shows that this control or super- 
 intendence was exercised by 
 means of signals given by the 
 foreman in charge of the train 
 crew to the engineer and switch- 
 man; and that it was the fore- 
 man's duty to give such signals, 
 and the duty of other members of 
 the crew, including plaintiff, to 
 direct the movement of the engine 
 and cars in obedience to such sig- 
 nals. The evidence further shows 
 without conflict that At was the 
 duty of the switchman to keep on 
 the lookout for all signals given 
 by the foreman. The appellee thus 
 recognized and established, by his 
 pleading .ind evidence, fhe office 
 and import of such signals, and 
 bases charges of negligence upon 
 the manner in which the duty of 
 signaling wns performed. It needs 
 no argument to show the justice 
 of the propo.sition that, if it be the 
 duty of one employe to control 
 the action of engine and cars, and 
 the actions of other employes in 
 charge thereof, by means of sig- 
 nals, it Is also the duty of such 
 other employes in charge thereof, 
 not only to obey such signals as 
 they may see given, but also to 
 keep on a lookout for all signals 
 
 that may be given by such em- 
 ploye whose duty it is to make 
 them. The duty to give signals 
 implies a corresponding duty to 
 see and obey the same, and the 
 performance of said latter duty 
 with due and ordinary care nec- 
 essarily implies the further duty 
 of being on the watch for all such 
 signals. A failure in such latter 
 duty would tend to show contribu- 
 tory negligence upon the part of 
 the plaintiff, such as was charged 
 under the fourth plea in answer 
 to the complaint. We do not mean 
 to say that a failure to see any 
 signal that might be given would 
 necessarily imply negligence, — 
 such, for instance, as signals made 
 where it is possible for one to see 
 them, or made at such a time 
 when, in the proper performance 
 of the duties of his position, the 
 attention of an employe is neces- 
 sarily directed elsewhere; but 
 such reasons' as these do net con- 
 flict with the general duty to 
 keep a proper lookout for all 
 signals that may be given by one 
 whose duty it is to give them 
 on the part of another whose duty 
 it is to receive them. Under the 
 evidence this charge was proper, 
 and should have been given, le.iv- 
 ing it to the jury to say whether 
 or not the plaintiff had been guilty 
 of contributory negligence in fail- 
 ing to observe or be governed by 
 the signal of the foreman, K., for 
 the stopping of the train, which 
 the engineer and fireman testify 
 was given to said K."
 
 1052 FORMS OF INSTRUCTIONS. [§ 1598. 
 
 . . . then plaintiff cannot recover on the first count in his pe- 
 tition.-^ 
 
 3 1598. Failure to Discover Approaching Train. The court in- 
 structs the jury that if, from the evidence, you believe that prior to 
 the time when the collision complained of occurred plaintiff had time, 
 by the exercise of ordinary care and diligence, by the use of his 
 senses of sight and hearing, to discover the approach of the passen- 
 ger ti'ain towards the push car, but failed to look and listen, or either, 
 and such failure on his part was negligence, then you will return a 
 verdict for defendant.-* 
 
 § 1599. Boarding Rapidly Moving Engine, If you believe from 
 the evidence that an ordinarily prudent person, situated as the 
 plaintiff was at the time of and just prior to the accident for which 
 he sues in this case, would not have attempted to board said engine, 
 on account of the rate of speed at which it was moving, but would, 
 as the unconti'adicted evidence shows he had the right to do, have 
 signaled the same to slow down before he attempted to board it, and 
 that such attempt, if any, to board said engine while moving through 
 the yards, on account of the rate of speed at which it was moving, 
 was negligence on his part, and that but for such negligence on his 
 part said accident Avould not have occurred, then you will return 
 your verdict for defendant.-^ 
 
 § 1600. Contributory Negligence of Yardmaster in Boarding Mov- 
 ing Engine, (a) If the jury shall find that the plaintiff was acting 
 in the course of his duties as yardmaster in attempting to get on 
 said engine, and that, therefore, it was the duty of defendant to 
 exercise care, as aforesaid, to see that engines thus admitted to its 
 yards were in a reasonably safe condition for the use of its employes, 
 the jury will then inquire: First, Was there a bolt projected above 
 the surface of said foot-board on said engine in such a manner as 
 to be calculated to cause persons who stepped on said board while 
 the engine was in motion to fall, and did the projection of this bolt 
 render such foot-board unsafe for persons to get on while the engine 
 was moving? Second, Did the defendant company fail to exercise 
 such care as a prudent person should exercise under the surrounding 
 circumstances to see that said engine foot-board was in a reasonably 
 safe condition before permitting it to come into the yards of de- 
 fendant : Third, Was the condition of the bolt in question the 
 proximate cause of plaintiff's fallf 
 
 (b) If you fail to find an affirmative answer to any one of the 
 foregoing questions, you will return a verdict for the defendant. 
 
 23— Intl. & G. N. R. Co. v. Vil- dale, 36 Tex. Civ. App. 174, 81 S. 
 
 laroal, — Tex. — , 82 S. W. 1063. W. 347 (343). 
 
 "The charge is not open to the "We are of opinion that the 
 
 objection that it assumed any court should have given this spe- 
 
 fnct." cial instruction." 
 
 24— Intl. & G. N. R. Co. v. Tis- 25— Houston & T. C. R. Co. v.
 
 § 1601.] NEGLIGENCE— MASTER AND SERVANT. 1053 
 
 If you shall find in the affirmative on each of the foregoing questions, 
 then you will inquire further whether the plaintiff was guilty of 
 negligence in attempting to get on said engine in the manner in which 
 he did, while it was moving at rate of speed shown by the testi- 
 mony, and, if he was negligent in this particular, whether such negli- 
 gence contributed proximately to his injury; and if you shall find 
 tha4; he was guilty of negligence which contributed to his injui-y, you 
 will return a veixliet for the defendant, notwithstanding you may 
 have also found that the defendant Avas guilty of negligence which 
 also contributed proximately to plaintiff's injury.^^ 
 
 § 1601. Jumping from Moving Train at Defendant's Command. 
 If you believe from the evidence that the plaintiff. A. B., was in 
 the employ of the defendant on the date alleged in his petition, and 
 that while being carried to his work by the defendant, and under its 
 direction, if he was under its direction, he was injured by jumping 
 from the car on which he was riding, while said car was in motion, 
 as alleged by him, and striking his knee against a cross-tie, as stated 
 in his petition, and if you believe that defendant ordered and com- 
 manded plaintiff to jump, and if you believe that said command, if 
 any was given, was imperative, and left no time for calculation and 
 deliberation, and if you believe that plaintiff believed that he could 
 safely obey said order by taking proper care, and if you believe 
 said plaintiff jumped pursuant to said command, if any, and if you 
 believe that at said time said train was going at a rate of speed that 
 made it dangerous to jump therefrom, and if you believe that plaintiff 
 was inexperienced in jumping off of moving trains, and ignoi'ant of 
 the danger, if any, arising therefrom, and if you believe that it was 
 no part of his ordinary duty to do so, and was extrahazardous, and 
 that defendant knew of his said ignorance and inexperience, if he 
 was, and it did know it, and if you believe that defendant knew, or 
 could have known, by the exercise of ordinary care, of the danger, 
 if any, from so jumping and that defendant nevertheless, if it did, 
 gave said order under said circumstances, and that in consequence 
 of said order, if any, plaintiff, in the exercise of ordinary care, 
 jumped as alleged in his petition, and was injured as therein charged, 
 and if you further believe that the giving of said order was, if it was 
 given, under all the facts and circumstances, negligence on the part 
 of the defendant, and that such negligence, if any, was the direct 
 cause of plaintiff's injuries, if any, and that plaintiff did not by his 
 own negligence contribute to his injuries, or assume the danger or 
 risk, then your veixlict should be for the plaintiff'.-" 
 
 § 1602. Conducting Oneself in Dangerous Way on Hand-Car. 
 (a) The court charges the jury that the plaintiff's intestate owed 
 a greater or less dutj' to exercise care and caution, according as he 
 
 Milam, — Tex. Civ. App. — , 58 S. — Tex. Civ. App. — , 60 S. "W. 591 
 W. 735 (737). (592). 
 
 26— H. & T, C. R. Co. V. Milam, 27— Gal., H. & S. A. Ry. Co, v.
 
 1054 FORMS OF INSTRUCTIONS. [§ 1603. 
 
 was- in a place more or less dangerous ; and if the jury find from 
 the evidence that the said J. J. was in such a situation that his 
 peril was apparent to any one of ordinary intelligence, and that he 
 failed to exercise the degree of care required, and that such failure 
 contributed to the injury and death, then they must find for the 
 defendant. 
 
 (b) If the jury believe from the evidence that there was a less 
 dangerous way for the said J. J. to conduct himself while on said 
 moving hand-car, and that he failed to choose the safest way and 
 that such failure contributed proximately to his injury and death, 
 then he was guilty of contributory negligence, and plaintiff cannot 
 recover.-* 
 
 S 1603. Negligently Striking Mauls One Against Another While 
 Laying Railroad Track. The court instructs you that the plaintiff 
 was only justified in using the maul furnished him for the purpose 
 for which it was intended, or for such purpose as was authorized by 
 defendant; and if you further find from the evidence that it was not 
 designed or intended that such mauls should be used by striking one 
 against another and that such use of the mauls was liable to cause 
 pieces of one or the other of them to break and fly into the air, 
 thereby endangering the persons using them, and that a person of 
 ordinary care and prudence, engaged in the business of laying rail- 
 road track would not have so used one of such mauls unless thereto 
 directly authorized by defendant, then if you further find from the 
 evidence that the plaintiff was injured by a piece breaking from one 
 of said mauls and striking him in the eye, in consequence of his 
 striking the maul which he was using against another maul in the 
 hands of a co-employe working with him at the time, then the plaintiff 
 was guilty of si;ch negligence as precludes a recovery, and your 
 verdict mu,st be for the defendant.-^ 
 
 § 1604. Employe Voluntarily Placing Himself in Place of Danger 
 Between Engine and Car. In this case if the jury believe from the 
 evidence that the plaintiff was working as a switchman in the yards 
 of the T., St. L. & K. C. R. R. Co., and at the time of the injury to him 
 he was one of a crew working in the yards of said company and said 
 company and said crew were returning fx'om the outer yard of said 
 road to the yards at E. St. L. near the river, and that the engine 
 was pushing two or more cars ahead of it on the track of said 
 railroad, and that it was a snowy or disagreeable moi-ning, and you 
 further believe that the plaintiff voluntarily placed himself in front of 
 the engine, between it and the car next to it; and you further believe 
 from the evidence that while he was in such a position the said 
 cars which the engine was pushing, collided with certain other cars 
 
 Ranfhc'z. — Tex. Civ. App.— , 65 29— Franklin v. M. K. <& T. Ry. 
 
 S. W. 893 (896). Co.. 97 Mo. App. 473, 71 S. W. 540 
 
 28— Jnnps v. Ala. M. R. Co., 107 (543). 
 Ala. 400. 18 So. .30 (33).
 
 § 1605.] NEGLIGENCE— MASTER AND SERVANT. 1055 
 
 left in the yards of said C. L. R. R. by certain employes of the C. & 
 A. R. R. ; and you further believe from the evidence that it was the 
 custom or practice on the part of the employes of the C. & A. R. R., 
 in leaving cars in the yard of the C. L. R. R., to put the cars on 
 whatever switch they found, and to leave the switch as it was then 
 used; and you further believe from the evidence that it Avas the duty 
 of the employes of the C. L. R. R., in traveling as they were traveling 
 at this time, to be on a constant lookout to ascertain whether any 
 cars had been left in the yards after their departure, and to ascertain 
 the condition of the switches, and to ascertain whether any ears 
 projected on the track; and you further believe from the evidence 
 that the servants in charge of the C. L. train were not exercising 
 care to ascertain the condition of the switches, or whether any cars 
 were where they were likely to strike them; and you further believe 
 from the evidence that the plaintiff in this ease had voluntarily placed 
 himself between the engine and the car ahead of it, and that such 
 place was a place of danger, and was a place where he need not have 
 been, and he was negligently there; and if you further believe from 
 the evidence that the injury was caused in whole or in part by his 
 placing himself where he was, and that if he had not so placed himself 
 there he would not have been injured, you will find the defendant not 
 guilty.''*' 
 
 § 1605. Riding on Foot-Board of Engine — Engine Colliding With 
 Other Cars — Series, (a) If the jury believes from the evidence in 
 this case that on the day of , the plaintiff was in the serv- 
 ice of R. B. P., receiver of the T. St. L. and K. C. R. Co. as a switch- 
 man at his yard in E. St. L. 
 
 (b) And if the jury further believe from the evidence that on the 
 
 morning of , the plaintiff was riding upon the footboard of an 
 
 engine, used by said receiver, in his yard at E. St. L. pushing two 
 cars in his said yard, between the engine and the ear next to it; 
 
 (e) And if the jury further believe from the evidence in this case 
 that at the said time the plaintiff was in the service of said receiver, 
 in the proper discharge of his duty as such switchman ; 
 
 (d) And if the jmy further believe from the evidence in this case 
 that the plaintiff was exercising ordinaiy care in riding upon the 
 footboard of said engine while in the discharge of his duty as such 
 switchman, and that said footboard was a proper place for the plain- 
 tiff to ride at said time in the discharge of his duty as a switch- 
 man; 
 
 (e) And if the juiy further believes from the evidence in this ease 
 that whilst plaintiff was so riding upon said foot-board of said engine 
 the cars so being moved by said engine collided with certain other 
 cars, and that the plaintiff was injured thereby; 
 
 30— C. & A. R. R. v. Harring-ton. 90 111. App. 638 (642), affd, 192 111. 
 9 (24>, 61 N. E. 622.
 
 1056 FORMS OF INSTRUCTIONS. [§ 1606. 
 
 (f) And if the jury further believe from the evidence that de- 
 fendant's servants jalaced said cars, so collided with, in said yard, so 
 that one of said ears overlapped the main lead in said yard, and left 
 the switch open, connecting the track on which said cars were placed 
 with said main lead track; 
 
 (g) And if the juiy further believe from the evidence that de- 
 fendant's said servants did not exercise ordinary care in placing said 
 ears upon said track so that one of the overlapped said main lead 
 track, and in leaving said switch open; 
 
 (h) And if the jury further believe from the evidence that the 
 cars so being pushed by said engine were caused to collide with said 
 cars so placed upon said track by defendant's servants directly be- 
 cause said cars overlapped and said switch was left open ; Then 
 the juiy should find the defendant guilty.^^ 
 
 § 1606. Employee Sleeping in Caboose — Another Train Colliding 
 with Caboose — Knowledge of Custom to Sleep in Caboose by Com- 
 pany. If the jury believe from the evidence that on and prior to 
 
 , it was the custom of defendant's freight-train conductors 
 
 to sleep in the caboose while waiting in T. overnight; and if you 
 believe that such was the custom of the plaintiff; and if you believe 
 such custom, if any, was known to, and acquiesced in by, de- 
 fendant; and if you believe from the evidence that on the night of 
 
 , the plaintiff w^as in the employment of defendant as 
 
 freight conductor; and if you believe on said night the plaintiff was 
 waiting over in T., the orders of defendant; and if you believe 
 on said night the plaintiff was sleeping in his caboose on the siding in 
 the yards of the defendant; and if you believe, while so sleeping, if 
 he was, his caboose was violently run into and collided by some train, 
 engine or ears under the control of defendant ; and if you believe such 
 collision, if there was such, threw the plaintiff against said caboose 
 and injured him as alleged by the plaintiff; and if you believe that the 
 servants of the defendant were guilty of negligence, as that is above 
 defined, in striking the plaintiff's caboose, if you find they did; and if 
 you believe such negligence, if any, was the direct and proximate 
 cause of plaintiff's injuries, if any; and if you believe that the plain- 
 tiff, in sleeping in his caboose, if he was, was not guilty of negli- 
 gence — then and in that event you will find for the plaintiff. But if 
 you believe from the evidence that it was not the custom of the 
 plaintiff and other such employes of the defendant to sleep in their 
 cabooses; or if you believe there was such custom, but the same was 
 not known to and acquiesced in by the defendant; or if you 
 believe that the plaintiff's injuries, if any, were caused by 
 the usual and ordinaiy operation of the engines and trains 
 in defendant's yards; or if you believe that tne plaintiff was guilty 
 
 31— C. & A. R. R. Co. V. Harrington, 90 111. App. 638 (641), aff d 192 
 111. 9 (24), 61 N. E. 622.
 
 § 1607.J NEGLIGENCE— MASTER AND SERVANT. 1057 
 
 of negligence, as hereinbefore described, in sleeping in his caboose — 
 then, in either event, you will find for the defendant.^^ 
 
 § 1607. Employe Riding on Work Train. (a) The court in- 
 structs the jury that an employe who rides on a work train assumes 
 the dangers ordinarily incident to travel on such trains, but does not 
 assume any dangers on account of the negligent operation and equip- 
 ment of such train. 
 
 (b) If you believe from the evidence thait at the time of the 
 alleged injury the plaintiff was riding on a work train, and if you 
 further believe that the train was properly equipped and operated, 
 and that the injuries, if any, were the ordinary and reasonable result 
 incident to the operation of such train, then, in that event, the plain- 
 tiff assumed such risk, and cannot recover herein. But if you be- 
 lieve said train was being operated at a dangerous rate of speed, and 
 was suddenly stopped, or was not equipped with reasonably sufficient 
 couplings, and you further believe that the employes of defendant in 
 charge of said train were guilty of negligence in the operation and 
 equipment of said train; and if you believe that plaintiff's injuries, 
 if any, were the result of such negligence, if any,^ — then, in that 
 event, the plaintiff did not assume the dangers, if any, incident to 
 such negiigenee.^^ 
 
 § 1608. Remaining in Dangerous Position in Reliance on Foreman. 
 You are instructed that a member of a section gang rests under no 
 duty or obligation, with knowledge of an impending danger, to con- 
 tinue in the dangerous situation in obedience to the order, direction 
 or command of the foreman of the section gang. If, therefore, you 
 believe from the evidence that the plaintiff knew of the approach of 
 the train to the push car by or near which he was standing at said 
 time, and the pi'obability of a collision, and the danger to which 
 the same exposed him, and remained in his said position, relying upon 
 the foreman to notify him when to leave the same, and you further 
 believe that said conduct on his part was not such conduct as an ordi- 
 narily prudent person would have pursued under the same circum- 
 stances, and that, but for such conduct, he would not have been hm't, 
 then you will return a verdict for the defendant.^* 
 
 32— St. L. S. W. Ry. Co. of when considered as a whole, fairly 
 
 Texas v. McDowell. — Tex. Civ. presented the issues to the jury. 
 
 App. — , 73 S. W. 974 (975). 34— Intl. & G. N. R. Co. v. Tis- 
 
 33— Mo., K. & T. Ry. Co. v. dale, 36 Tex. Civ. App. 174, 81 S. 
 
 Hawk. 30 Tex. Civ. App. 142. 69 S. W. 347 (34S). 
 
 W. 1037 (1039). "It would have been proper for 
 
 The court in a preceding' para- the court to have g-iven this. H. 
 
 graph of the charge had properly E. & W. T. R. Co. v. De Walt, 96 
 
 defined negligence. The charge, Tex. 121, 70 S. W. 531." 
 
 67
 
 CHAPTER LXV. 
 NEGLIGENCE— MUNICIPAL CORPORATIONS. 
 
 See Erroneous Instructions, same chapter head. Vol. III. 
 
 § 16?-9. Municipal corporations not | § 1630. 
 liable for mere accidents. 
 
 § 1610. Accident and negligence. 
 
 § 1611. Streets and walks to be kept 
 reasonably safe. 
 
 § 1612. Liable for unsafe condition 
 of streets, when. 
 
 § 1613. No liability without negli- 
 gence. 
 
 § 1614. Care must be proportionate 
 to the known danger. 
 
 § 1615. Must guard against actions 
 of the elements reasona- 
 bly to be anticipated under 
 ordinary circumstances. 
 
 § 1616. Not obliged to open streets. 
 
 §1617. But once having opened 
 streets, must keep them 
 in safe condition. 
 
 S 1618. Municipality need not put 
 entire width of street in 
 condition for use, nor pro- 
 vide safe access to private 
 property. 
 
 §1619. Do not insure safety. 
 
 § 1620. Duty to keep streets in safe 
 condition cannot be shift- 
 ed to person employed by 
 
 city- 
 
 § 1621. Liability for negligence of 
 agents and servants. 
 
 §1622. Liability of municipal corpo- 
 ration when crossing con- 
 structed by private per- 
 son—Reasonable care by 
 town. 
 
 § 1623. Liability for defects in walk 
 constructed by private 
 person. 
 
 § 1624. Duty to keep sidewalk and 
 crossings of suburbs rea- 
 sonably safe. 
 
 §1625. Liability for negligence of 
 independent contractor. 
 
 §1626. Liability for negligence of 
 person knowingly permit- 
 ted to obstruct street. 
 
 § 1627. Duty of municipality to have 
 notice of warning given of 
 obstruction in streets. 
 
 § 1628. Not liable for the negligence 
 of others, when. 
 
 § 1629. Must have notice, actual or 
 constructive. 
 
 1058 
 
 § 1631. 
 
 § 1632. 
 § 1633. 
 
 § 1634. 
 
 § 1635. 
 § 1636. 
 
 § 1637. 
 
 § 1638. 
 § 1639. 
 
 1640. 
 
 1641, 
 1642 
 
 § 1643 
 
 1644 
 
 §1645 
 
 §1646 
 
 §1647 
 
 Defective sidewalk — Notice 
 
 presumed, when. 
 
 Person driving on street 
 
 may presume it is in a 
 
 reasonably safe condition. 
 
 Necessity of notice to city 
 
 of defect in street. 
 Nature of liability for hole 
 in street on locality and 
 road. 
 Fact that hole was filled 
 with water may be con- 
 sidered one question of 
 contributory negligence. 
 Duty to provide guards and 
 
 notice. 
 Admissibility of evidence of 
 other similar accidents at 
 same place. 
 Liability of municipality for 
 safety of streets while im- 
 provements are being 
 made. 
 Street includes sidewalks. 
 Essential eleinents necessary 
 to warrant recovery for 
 defective sidewalks. 
 Person traveling on side- 
 walk or street may pre- 
 sume it is reasonably safe 
 for ordinary travel. 
 Necessity of notice to city 
 
 of defect in sidewalk. 
 "When city deemed to have 
 had constructive notice of 
 defect in sidewalk. 
 Effect of knowledge of mu- 
 nicipal authoiitios that 
 sidewalk is defective. 
 In populous districts whole 
 width of sidewalk should 
 be kept in repair. 
 , Circumstances to be taken 
 into consideration in de- 
 termining liability for de- 
 fective walk. 
 , Effect of failure to construct 
 sidewalk according to pro- 
 visions of ordinances. 
 . Effect of sidewalk becoming 
 insecure from use or 
 breaks.
 
 § 1609.] NEGLIGENCE— MUNICIPAL CORPORATIONS. 
 
 1059 
 
 § 164S. Injury through stick project- 
 ing- over sidewalk. 
 § 1649. Slippery condition of side- 
 walk resulting from ordi- 
 nary accumulation of ice 
 in winter. 
 § 1650. Injury to child by defective 
 sidewalk while indulging 
 in pastime or play. 
 § 1651. Defective plan of public im- 
 provement. 
 § 1652. Injury to adjoining prop- 
 erty — Changing grade. 
 § 1653. Liable for want of reason- 
 able care only. 
 § 1654. Changing watercourses. 
 § 1655. Liability for overflowing 
 ~ contiguous property in lay- 
 -• ing out of streets. 
 § 1656. Liability for injuries through 
 1 body of water both on 
 
 street and adjacent private 
 property. 
 § 1657. Liability for damage to con- 
 tiguous property by leak in 
 water main. 
 § 1658. Liability for flow of surface 
 water where no system of 
 drainage exists. 
 § 1659. Liability for flow of surface 
 water due to street railway 
 lawfully operated on high- 
 way. 
 § 1660. Liability for loss from flow 
 of surface water occasioned 
 by Act of God. 
 § 1661. Duty of city as to water 
 
 plug placed in streets. 
 § 1662. Sewer out of repair. 
 § 1663. County only required to 
 provide bridge which will 
 properly accommodate pub- 
 lic at large. 
 
 § 1664. Duty of county commis- 
 sioners to construct bridges 
 in a bridge in a workman- 
 like manner. 
 
 § 1665. Defective condition of bridge 
 must be proximate cause of 
 injury to horse. 
 
 § 1666. Eff At of knowledge of trav- 
 eler that bridge is in un- 
 isafe condition. 
 
 § 1667. Contributory negligence — In 
 general — Negligence, con- 
 tributory negligence, and 
 ordinary care defined. 
 
 § 1668. Circumstances to be con- 
 sidered on question of con- 
 tributoi'y negligence. 
 
 § 1669. Contributory negligence — 
 Falling into a hole in side- 
 walk. 
 
 § 1670. Contributory negligence — 
 Absentminded driving. 
 
 § 1671. Effect of knowledge on part 
 of person using sidewalk 
 that it is defective. 
 
 § 1672. Passing over defective walk 
 not necessarily contributory 
 negligence. 
 
 § 1673. Contributory negligence of 
 person falling over wire in 
 street. 
 
 § 1674. Placing oneself in position 
 of danger. 
 
 § 1675. Burden of proof as to con- 
 tributory negligence of 
 plaintiff — States holding 
 that it rests on defendant. 
 
 § 1676. Same subject — States hold- 
 ing that burden of proof is 
 on plaintiff. 
 
 § 1677. Negligence of driver. 
 
 § 1609. Municipal Corporations Not Liable for Mere Accidents. 
 
 The court instructs the jury that if, after considering all of the evi- 
 dence, you should conclude that the injury was a pure accident, 
 caused neither by the negligence of the city nor that of the plaintiff, 
 then there could be no recovery. This must be so, because it is only 
 negligence in itself, through its officers and agents, that makes the 
 city liable; and, if neither party be negligent, of course the city is 
 not.i 
 
 1 — ^Columbus V. Anglin, 120 Ga. 
 785. 48 S. E. 318 (323). 
 
 "This request is closely asso- 
 ciated with those just dealt with. 
 If there was no favilt on the part 
 of the plaintiff, and the defect 
 causing the fall of the shed was 
 one which was not brought about 
 by the city, and which they could 
 
 not have discovered by the exer- 
 cise of due diligence, then, rela- 
 tively to the parties to this case, 
 the fall must have been accidental, 
 and the defendant could not be 
 held liable. This request was not 
 covered by the charge given, and 
 we think its refusal was error."
 
 1060 FORMS OP INSTRUCTIONS. [§ 1610. 
 
 § 1610. Accident and Negligence. The court instructs the jury, 
 that if they believe, from the evidence, that the plaintiff was injured 
 and sustained damage, as charged in the declaration, and that such 
 injury was the combined result of an accident, and of a defect in 
 the walk, and that the ^mage would not have been sustained but for 
 the defect, although tne primary cause of the injury was a pure 
 accident, still, if the jury further believe, from the evidence, that the 
 plaintiff was guilty of no fault or negligence, and the accident one 
 which common and ordinary prudence and sagacity, on the part of 
 the plaintiff, could not have foreseen and provided against, then the 
 city is liable; provided, the jury believe, from the evidence, that the 
 city authorities were guilty of negligence in not remedying such 
 defect. - 
 
 § 1611. Streets and Walks to be Kept Reasonably Safe, (a) The 
 court instructs the jury, as a matter of law, that a city is not re- 
 quired to have its sidewalks so constructed (or kept in such condi- 
 tion) as to secure immunity in using them; nor is it bound to employ 
 the utmost care and exertion to that end. Its duty, under the law, 
 is only to see that its sidewalks are reasonably safe for persons 
 exercising ordinary care and caution. 
 
 (b) And in this case, if the juiy believe, from the evidence, that 
 the sidewalk was so constructed as to be sufficiently level and smooth 
 for ordinary travel, and so built that it would not, by reason of any 
 peculiarities of its construction, cause snow or ice to accumulate 
 thereon, and that the accident was attributable solely to the slippery 
 condition of the sidewalk, occasioned by a recent fall of snow, and 
 that the sole cause of the accident was the temporary slipperiness 
 of that part of the sidewalk caused by the recent fall of snow thereon, 
 such a condition of the sidewalk would not be a defect for which 
 the city would be liable.^ 
 
 (c) If the jury believe from the evidence that the plaintiff was 
 injured by reason of the defendant's negligence in failing to keep 
 its sidewalks in reasonably good repair, or negligently allowing the 
 same to remain in an unsafe condition as explained in these instruc- 
 tions, and without fault on her part that she has sustained damage, 
 then the jury have a right to find for her.* 
 
 (d) The jury are instructed, that the defendant is bound to use 
 reasonable care and precaution to keep and maintain its streets and 
 sidewalks in good and sufficient repair, to render them reasonably 
 safe, for all persons passing on or over the same; and if the jury 
 believe, from the evidence, that the defendant failed to use all rea- 
 sonable care and precaution to keep its sidewalk in such repair, and 
 that the injury complained of resulted from that cause, as charged 
 in the declaration, and that the plaintiff sustained damage thereby, 
 
 2— Wilson V. Atlanta, 60 Gii. 473. 4— Oilson v. Cndallac, 134 Mich. 
 3— Chicago v. McGiven, 78 111. 347. 189. 95 N. W. 10S4.
 
 §1612.] NEGLIGENCE— MUNICIPAL CORPORATIONS. 1061 
 
 without neglig-enee or want of care on plaintiff's part, then he is 
 entitled to recover in this suit.^ 
 
 (e) The law imposes upon cities the duty to exercise reasonable 
 care to keep its streets and sidewalks in reasonably safe condition 
 for use by persons traveling thereon; the city is not an insurer 
 against injuries, received by reason of defects in its streets or side- 
 walks : if it maintains them in reasonably safe condition, it is not 
 liable; and, in this case, if j^ou believe from all the facts and circum- 
 stances, shown in the evidence, that the place where the plaintiff 
 claims to have been injured was in such condition for travel thereon 
 or thereover, that a person, while in the exercise of ordinary care for 
 his own safety, would have passed safely over, then the defendant 
 is not liable in this case.*^ 
 
 § 1612. Liable for Unsafe Condition of Streets, When. The court 
 instructs the jury, that the defendant corporation is bound by law 
 to use all reasonable care, caution and supervision to keep its streets, 
 sidewalks and bridges in a safe condition for travel, in the ordinar}' 
 modes of traveling, by night as well as by daj'^, and if it fails to 
 do so, it is liable for injuries sustained, in consequence of such 
 f ailui'e ; provided, the party injured is himself exercising reasonable 
 care and caution; and the fact that the plaintiff may. in some way, 
 have contributed to the injury sustained by him, will not prevent 
 his recovery if, by ordinary care, he could not have avoided the con- 
 sequences to himself or the defendant's negligence.'' 
 
 § 1613. No Liability Without Negligence, (a) ^Municipal cor- 
 porations, such as the defendant, are only liable for such defects 
 in their sidewalks as are in themselves dangerous or such that a 
 person exercising reasonable care and caution cannot avoid danger 
 in passing: over it and, if the jury believe, from the evidence, that the 
 defect in the sidewalk in question was not in itself dangerous to the 
 
 5 — Chicago v. Dale, 115 111. 386, words, 'keep it in good and safe 
 
 5 N. E. 57S; Dillon on Municipal condition,' did not authorize the 
 
 Corporations, § 996 et seq. jury to find, that the sidewalk 
 
 6 — Gibson v. I^Iurray, 216 111. 589, must be kept in a perfectly good 
 
 75 N. E. 319. and safe condition any more than 
 
 "This instruction stated the law that it should be kept in a reason- 
 correctly, and therein stated the ably good and safe condition. In 
 requirement of the city to be that other words, where the words 
 of maintaining the sidewalk in a 'good and safe condition' are used, 
 reasonably good and safe condi- as here, without qualifying words, 
 tion. The defect in the first in- the jury are as much authorized 
 struction, given for appellee, was to construe them to mean 'reason- 
 cured by the ninth instruction, ably good and safe condition,' as 
 given for appellant, and other in- to regard them as indicating a 
 structions to the same effect. It higher and more perfect condition, 
 cannot be said, as is claimed by Such was the construction given 
 the appellant, that the ninth in- to a similar instruction in Village 
 struction, given for appellant, is of Mansfeld v. Moore, 124 111. 133, 
 inconsistent with the first i^struc- 16 N E. 246." 
 
 tion given for apnellee, and that, 7 — Mayor, etc.. v. Dodd, 58 Ga. 
 
 therefore, the latter is not cured 238: Centerville v. "Woods. 57 Ind. 
 
 by the former. The use of the 192; Rowell v. T\''illiams. 29 la. 210; 
 
 St. Paul v. Kuby, 8 Minn. 154.
 
 1062 FORMS OF INSTRUCTIONS. [§ 1614. 
 
 safety of a person passing over it "vvith reasonable care and caution, 
 and that the alleged injury was the result either of a mere accident 
 without negligence on the part of defendant, or that it resulted from 
 a want of reasonable care and caution on the part of the plaintiff, 
 then the jury should find the defendant not guilty. 
 
 (b) The jury are instructed that, in this case, there can be no 
 liability on the part of the defendant, unless there Avas neglect of duty 
 in respect to the repair of the sidewalk on the part of the officers of 
 the city; and there can be no such neglect of duty, unless the jury 
 find from the evidence that the officers of the city knew of the defect 
 in the sidewalk complained of, or Avith reasonable diligence could 
 have known of it, long enough before the accident occurred, to have 
 had it repaired.® 
 
 § 1614. Care Must Be Proportionate to the Known Danger, (a) 
 If the jury believe, from the evidence, that the place where the acci- 
 dent in question occurred, was necessarily more dangerous than the 
 ordinary streets and sidewalks, and that, by the exercise of ordinary 
 care and prudence, this condition of things could have been known 
 to the plaintiff, or was known to him, then the plaintiff was required 
 to use more than ordinary care and caution to avoid the accident, 
 and if he failed to do so, and thereby contributed to the injury, he 
 cannot recover in this suit. 
 
 (b) Although the jury may believe, from the evidence, that the 
 city authorities had negligently suffered snow and ice to aecvimulate 
 on the walk in question, until it was in a dangerous condition for 
 walking, still, if you further believe, from the evidence, that this 
 condition of the walk was known to the plaintiff before he attempted 
 to walk over it, and that he might easily have avoided passing over 
 such dangerous place, then he was not using that reasonable care 
 and prudence to avoid injury which the law i-equires and he cannot 
 recover in this case.^ 
 
 § 1615. Must Guard Against Actions of the Elements Reasonably 
 to be Anticipated Under Ordinary Circumstances. The court in- 
 structs the jury that if the city of D. left the street at 6 o'clock in 
 the evening in a condition that was proper and fit to be traveled over 
 by horses, bicycles, wagons, and such, at that time, it does not neces- 
 sarily follow that it was left in a reasonably safe condition. Some- 
 thing more is required of the city. The city is required to leave that 
 street in such condition that it will remain in the condition in Avhieh 
 it was put; that is, if it was put in a condition at 6 o'clock reason- 
 ably safe and fit for public travel at that time, then the further 
 duty falls upon the city to consider what the elements are, and to 
 consider what is likely to occur during the night; and they are re- 
 quired by law to put it in such a condition that it will stand or 
 
 8— Sheel et al v. The City of Ap- 9— Schaefler v. Sandusky, 33 Ohio 
 pleton, 49 Y^ih. 125 5 N. W. 27. St. 246.
 
 § 1616.] NEGLIGEJNCE— MUNICIPAL CORPORATIONS. 1063 
 
 withstand the elements or conditions that might reasonably and 
 ordinarily be expected at that season of the year. So, gentlemen 
 of the jury, the principal fact in this case left for you to detennine 
 is, did the city leave that street in a condition in which it would 
 be expected it would remain in a condition that was reasonably safe ? 
 Did they do all that prudence and foresight would demand of them? 
 In other words, if the rain and storms that might be expected, if you 
 believe that they may be expected at that time of the year, would 
 put that street out of repair and render it dangerous, then, gentlemen 
 of the jury, negligence would be chargeable against the city; but 
 if you find that a storm of unusual severity, or a storm that might not 
 be expected under ordinary circumstances and conditions at that 
 time of 'the year, came up, then it is something human foresight 
 cannot see or prevent, and that would be an extraordinary visitation 
 of the elements, and the city of D. would not be, in such a case, 
 chargeable with negligence.^" 
 
 § 1616. Not Obliged to Open Streets, (a) The court instructs 
 the jury, that cities are under no legal obligation to open up streets 
 for the use of the public. The legal obligation of a city to repair 
 streets, sidewalks and bridges within its coi'porate limits, only relates 
 to such as are opened or constructed under its authority, or those 
 which its officers have assumed control over.^^ 
 
 (b) There is no legal obligation resting upon a city to build 
 sidewialks, construct gutters or pave streets, but when the city does 
 make these improvements for the benefit of the public, it then be- 
 comes its duty to use all reasonable care and exertions to keep them 
 in repair.^2 
 
 § 1617. But Once Having Opened Streets Must Keep Them in 
 Safe Condition, (a) If you find from all the evidence in the case 
 that the city, prior to the accident which resulted in the loss of the 
 
 life of said , had taken charge of, and had performed work 
 
 and labor upon, Twenty-fifth street, so as to open the same up for 
 use and travel thereon by the public at and along where the accident 
 occurred, then it was the duty of the city, under the law, to use all 
 reasonable care and diligence in keeping and maintaining said street 
 thereafter, so as to keep said street in a safe condition for the use 
 of the public; and any negligence on the part of said city so to keep 
 said street in a safe condition at all times thereafter for the ixse of 
 the public Avould render the city liable if, because of such failure, an 
 injury results to anyone who has occasion to use said street. 
 
 (b) You are further instnicted that it is in law the duty of the 
 city to so construct its streets as to make the same reasonably safe 
 
 10— Beattie v. Detroit, 137 Mich. Wilson v. The Mayor, etc., 1 Denio 
 319. 100 N. W. 574 (576). 595; Joliet v. Verlev, 35 111. 58. 
 
 11— Craig V. Sedalia, 63 Mo. 417; 12— Alton v. Hope, 68 111. 167.
 
 1064 FORMS OP INSTRUCTIONS. [§ 1618. 
 
 for the traveling public, and also that children may be upon the 
 same with safety.^^ 
 
 § 1618. Municipality Need Not Put Entire Width of Street in 
 Condition for Use, nor Provide Safe Access to Private Property. The 
 court instructs the jury that while it is the duty of a cit3\ to keep 
 its streets in a reasonably safe condition for travel, it is not thereby 
 implied that everj^ street, and the whole width of the street 
 must be placed and kept in good condition. The city may, 
 without incuri'ing liability, leave certain streets entirely un- 
 opened, and in others put only a portion of the width in condition 
 for use. It is not the duty of a city to provide access from pi-ivate 
 property to the streets, nor is it liable for failure to guard its streets 
 from approach at points where such approach is dangerous. It is not 
 the duty of a city to provide safe means of access to private property, 
 and if the city has built a safe and suitable sidewalk to accommodate 
 the public travel along the sidewalk in the ordinary modes, it is not 
 liable to one who knowingly and voluntarily leaves the sidewalk built 
 by the city." 
 
 § 1619. Do not Insure Safety, (a) The jury are instructed that 
 the obligations resting upon the defendant city to keep its streets in 
 order and repair are not carried to the extent of making it an insurer 
 of the safety of the streets, and that it does not insure the safety of 
 persons traveling over and along the streets.^^ 
 
 (b) The city is not an insurer or a warrantor of the condition of 
 her streets and sidewalks; nor is every defect therein actionable, 
 though it may cause the injury sued for. It is sufficient to relieve 
 the city from liability in this ease if you find from the evidence that 
 the street (or walk) was in a reasonably safe condition for travel at 
 the time the accident is alleged to have occurred. 
 
 (c) If you believe, from the evidence, that at the place where 
 the plaintiff met with the injury complained of, the street (or side- 
 walk) was at the time in a reasonably safe condition, your verdict 
 should be for the defendant. ^^ 
 
 (d) The Juiy are insti'ucted that a municipal corporation is re- 
 quired to exercise vigilance in keeping its streets and sidewalks in 
 reasonably safe condition for public travel by night as well as by 
 day, but it is not an insurer against accidents; nor is it required to 
 
 13 — Omaha v. Richards, 49 Neb. public. It was negligence on the 
 
 244, 68 N. W. 528 (530). part of the city to leave the pond 
 
 "The negligence imputed to the of water unguarded, knowing that 
 
 city consisted in allowing this pond children would be attracted to such 
 
 of water to accumulate in a pub- a place." 
 
 lie street used as a thoroughfare, 14 — Kansas City v. Smith, 8 Kan. 
 
 without providing any barriers or App. 82, 54 Pac. 329. 
 
 signals of danger; and it was en- 15 — Omaha v. Ayer, 32 Neb. 375, 
 
 tirely proper for the court to in- 49 N. W. 445 (447); Centralia v. 
 
 form the jury as to the duty of Krnuse. 64 111. 19. 
 
 the city in keeping its streets in 16 — Indianapolis v. Gaston, 28 Ind. 
 
 safe condition for the use of the 224.
 
 §1620.] NEGLIGENCE— MUNICIPAL CORPORATIONS. 1065 
 
 maintain the surface of its sidewalks free from all irregularities, 
 and from any possible obstruction to mere convenient travel. I 
 charge you, as matter of law, that a village, city or township is not 
 an insurer against accidents to pedestrians passing along their 
 streets or highways, and that all that is required of a village, city 
 or township is to have their streets, highways or sidewalks in a 
 reasonably safe condition for public travel ; and such reasonably safe 
 condition exists whenever such streets, highways or sidewalks can be 
 safely passed over by a person who is in the exercise of reasonable 
 and ordinary care.^'^ 
 
 (e) A city is bound only to the exercise of reasonable pi'udence 
 and diligence in the construction of its sidewalks, and is not re- 
 quired to foresee and provide against every possible danger or acci- 
 dent that may occur. It is only required to keep its streets and 
 sidewalks in a reasonably safe condition, and it is not an insurer 
 against accidents. ^^ 
 
 (f) The jury are instructed that the city of S. is not liable for 
 every accident that may occur from defects in its sidewalk. Its offi- 
 cers are not required to do everything that human energy and 
 ingenuity can possibly do to prevent the happening of accidents, or 
 injury to the citizen. If they have exercised a reasonable care in 
 that regard, they have discharged their duty to the plaintiff, and you 
 should find the defendant not guilty.^^ 
 
 § 1620. Duty to Keep Streets in Safe Condition Cannot Be Shifted 
 to Person Employed by City, (a) The juiy are instructed, that 
 when the duty is imposed by law upon a city corporation to keep its 
 streets in reasonably safe condition, for use by the public, the duty 
 cannot be shifted off upon a person employed bj' the city to pei-form 
 it; and if an injuiy results from the negligence of such person in 
 the performance of such duty, the corporation will be liable for the 
 damage. 2^ 
 
 (b) If the village of B. had actual notice of the defective con- 
 dition of said walk, it could not order it to be repaired by some one 
 else, and pay no further attention to it, but, after having such actual 
 notice, it should see that it was repaired in a reasonable time, and 
 put in a reasonably safe condition for travel in the day-time and in 
 the night-time. 21 
 
 § 1621. Liability for Negligence of Agents and Servants, (a) 
 The court instructs the jury, as a matter of law, that where work 
 is done upon the streets of a city, there is a reasonable presumption 
 that it is done by the proper authorities of the city, and in a suit 
 to recover damages for an injuiy occasioned by the negligent manner 
 
 17— Hart v. Village of New 111. App. 625 (626); Centralia v. 
 
 Haven, 130 Mich. ISl, 89 N. W. 677 Krouse, 64 111. 19. 
 
 (678). 20— Springfield v. Le Claire, 49 111. 
 
 18— Chicago v. Bixby, 84 111. 82. 476. 
 
 19 — Streator v. Liebendorfer, 71 21 — Atherton v. Village of Ban-
 
 1066 FORMS OF INSTRUCTIONS. [§ 1622. 
 
 of doing such work, it is not necessary, in the first instance, to prove 
 that it was done by persons employed by the city, as this will be 
 presumed, unless the contrary appears from the evidence. 
 
 (b) And, in this ease, if the jury believe, from the evidence, that 
 the injury complained of was caused by a dangerous (pile of dirt 
 or opening), left in the street in question by persons employed by 
 the city, to place a sewer or water pipe in such street, then the 
 jury are instructed, that it is not necessary for the plaintiff, in order 
 to recover in this suit, to prove that the city authorities had actual 
 notice that such * * * -was left in said street; provided, the 
 juiy further believe, from the evidence, that such work was done 
 under the supervision of the (street commissioner, etc.).^^ 
 
 (c) It is the duty of the village to use all reasonable care and 
 vigilance in the selection of its agents and servants, in keeping the 
 sidewalks in good repair and free from obstructions, and to retain 
 control and superintendence over them in the performance of their 
 duties, and to enforce such measures of care and vigilance as will 
 guard the public against exposure to injury, so far as this can 
 reasonably be done. 
 
 (d) The court instructs the jury that the duty to construct, re- 
 pair, and keep in a reasonably safe condition its sidewalks, rests 
 primarily upon the corporation, and its obligation to discharge it can 
 not be east upon others by any act of its own.-^ 
 
 § 1622. Liability of Municipal Corporation, When — Crossing Con- 
 structed by Private Person — Reasonable Care by Town. The jury 
 are instructed that even if they believe, from the evidence, that the 
 crossing in question was laid or constructed by a private person in 
 
 a public street of the town of N and was used by the public, 
 
 yet the town must use reasonable care to keep it in a reasonably 
 safe condition, and the law does not absolve the town from such 
 obligation because the crossing or walk may not have been laid or 
 constructed by the town itself.^* 
 
 § 1623. Liability for Defects in Walk Constructed by Private Per- 
 son. Although the juiy may believe, from the evidence, that the 
 sidewalk in question was constructed by a private person, and not 
 under the direction or supervision of the city, still this would not 
 
 croft, 114 Mich. 241, 72 N. W. 208 mitted, but we are at a loss to per- 
 
 (209). ceive its application to this in- 
 
 22— Chicago v. Brophy, 79 Til. 277. struction. That there was a cross- 
 
 23 — Village of Ava v. Greenawalt, ing of some kind at the point 
 
 73 111 App. 632; Chicago v. Brophy, where appellee was injured, is un- 
 
 supra. disputed. There is some conflict in 
 
 24 — Town of Normal v. Bright, the evidence as to the condition of 
 
 223 111. 99 (102), 79 N. E. 90. the crossing and the manner in 
 
 "The criticism is that it assumes which appellee was injured, but 
 
 there was a crossing, and it is said there is and can be no dispute as 
 
 it is a well established principle to the fact that there was a board 
 
 of law thnt controverted questions or boards across the ditch at the 
 
 of fact cannot bp assumed but point where she was injured." 
 must be proven. The rule is ad-
 
 § 1624.] NEGLIGENCE— MUNICIPAL CORPORATIONS. 1067 
 
 exempt ihe city from liability from defects in the walk; provided, 
 the jury believe, from the evidence, that the walk was so constructed 
 as to be dangerous for ordinaiy travel, and that this defect was 
 known to the officers of the city, or that by the exercise of ordinary 
 care they might have known of such defect in time to have remedied 
 it before the accident.-^ 
 
 § 1624. Duty to Keep Sidewalks and Crossings of Suburbs Rea- 
 sonably Safe. The jui-y are instructed that it is the duty of a town 
 or city to use reasonable care to keep all sidewalks and crossings in 
 its public streets in reasonably safe condition, even if the crossing 
 or sidewalk is in the suburbs of the town or city, where less used 
 than in the more frequented sti'eets.-" 
 
 § 1625. Liability for Negligence of Independent Contractor, (a) 
 If the jurj^ believe, from the evidence, that the defendant let out 
 the job of filling up and grading (Main street) to other persons, at so 
 much per yard, the grading to be done under the supervision of de- 
 fendant's engineer, and that such engineer went upon the ground 
 with such other persons, and pointed out to them where to take the 
 soil from and where to put it, and such other persons did the work 
 as directed b}' the engineer, then the law is, that the relation of 
 master and servant existed between the city, the engineer and such 
 other persons doing the work, and the city is liable in all respects, 
 the same as if it had done the work by men employed by it in any 
 other way.^^ 
 
 (b) Although the jury may believe, from the evidence, that the 
 city officers had contracted with, etc., for the laying of the water 
 pipes in the street, still the city, notwithstanding such contract, was 
 charged with the duty of taking all reasonable precaution to keep 
 the street in a safe condition, for use in the usual manner, so far as 
 this could reasonably be done, while the work was progressing, and if 
 you believe, from the evidence, that the city officers did not do this 
 but were guiltj^ of negligence in permitting a dangerous, etc., and 
 
 25 — Barnes v. The Town of New- that the jury must take into ac- 
 ton, 46 la. 567; Wendell v. Troy, count all the surrounding- circum- 
 39 Barb. 329; Centerville v. Woods, stances, including- whether or not 
 57 Ind. 192; Phelps v. Mankato, 23 the particular crossing is away 
 Minn. 276. from the center of tlie town, how 
 
 26 — Town of Normal v. Bright, much it is used, etc. It was neces- 
 
 223 111. 99 (102), 79 N. E. 90. sary that the instruction should 
 
 "It is insisted that this instruc- refer to the evidence. The rules 
 
 tion is erroneous because it does of law announced in it were ap- 
 
 not refer to the evidence, and re- plicable to the case, and it was 
 
 quires the town to keep all side- therefore in no sense the statement 
 
 walks and crossings in reasonably of mere abstract propositions of 
 
 safe condition, the contention be- law. The other objections to it are 
 
 ing, that the issue in this case did also untenable. City of Flora v. 
 
 not involve all the walks or cross- Naney, 136 111. 45, 26 N. E. 645; City 
 
 ings in the city, but the one in of Decatur v. Besten, 160 id. 340. 48 
 
 particular; also, that it is erron- N. E. 186. The instruction is free 
 
 eous and misleading in that it re- from substantial error." 
 
 fers to crossings and sidewalks in 27— Nevins v. Peoria, 41 111. 502. 
 the suburbs, when the law requires
 
 1068 FORMS OF INSTRUCTIONS. [§ 1626. 
 
 that the plaintiff was thereby injured, as alleged in his complaint, 
 then the city is liable for such injury, provided the jury believe, from 
 the evidence, that the plaintiff was himself, etc.-^ 
 
 § 1626. Liability for Negligence of Person Knowingly Permitted 
 to Obstruct Street. The jury are instructed, that if the city authori- 
 ties knowingly permit a person to occupy or obstruct a street, it is- 
 the duty of such authorities to use all reasonable care and precautions 
 to see that the person so permitted properly guards and protects 
 such obstructions, and if fhe city authorities negligently fail to per- 
 form such duty, the city will be liable to one who is injured by such 
 obstructions, if he is himself, at the time, using reasonable care to 
 avoid the injury. Whether, in this case, the city authorities did 
 know, etc. etc., are questions of fact for the jury, to be determined 
 by the evidence-^** 
 
 § 1627. Duty of Municipality to Have Notice or Warning Given 
 of Obstruction in Street, (a) The court instructs the jury that it 
 is the duty of defendant, 'the city of L., to keep its streets and 
 highw^ays in a reasonably safe condition for use by the public, and, 
 if it is necessary that a part of the street be used as a place of 
 deposit for material for the erection of a building adjacent to the 
 said street, it is the duty of the person using the street as a place 
 of deposit for such material to protect persons using the said street 
 at night from injury by giving notice or warning of the obstruction 
 to the street by placing snffieient lights upon or near the said ma- 
 terial to give timely warning to other persons using the said street; 
 and it is the duty of the defendant, the city of L., to exercise ordi- 
 nary care in causing the said warning to be given by persons to whom 
 it may have given a license to use a portion of a public street as a 
 place of deposit for such material. And if the jury shall believe 
 from the evidence that the defendant. A., placed the material in J. 
 street, with which the plaintiff came in contact, and which caused 
 his injury, and the presence of said material, in the street was not 
 indicated by sufficient lights to give reasonable and timely warning to 
 persons using the street as the plaintiff was then using it, and by 
 reason thereof he w^as caused the injuries of which he complains, 
 and he did not, by negligence upon his part, help to cause, or bring 
 about his injury, but for which contributory negligence, if any there 
 was, he would not have been injured, then the law is for the plaintiff 
 as against the defendant, A., and they should so find. 
 
 (b) If the jury find that the defendant, A., or his employes placed 
 the said obstruction in the street, and failed to give warning of its 
 presence, as mentioned in the above instruction, and they find for the 
 plaintiff, and they shall believe from the evidence that the defendant 
 the City of L. 'lid not exercise ordinai^y care to have the said notice 
 
 28 — LrOgansport v. Dicks, 70 Ind. 29— Indianapolis v. Doherty, 71 
 65; Butler v. Bangor, 67 Me. 385. Ind. 5.
 
 §1628.] NEGLIGENCE— MUNICIPAL CORPORATIONS. 1069 
 
 or warning given of the obstruction to the said street, then the law 
 is for the plaintiff against the city as well as against said A.^" 
 
 § 1628. Not Liable for the Negligence of Others, When. The juiy 
 are instructed, that when a party, without the consent of the authori- 
 ties of an incorjaorated town, digs or leaves open a dangerous hole 
 or pit in the street, and a person is thereby injured, the town will 
 not be liable for such injury, unless the authorities have actual 
 notice of the nuisance, or it has remained a sufficient time, so that 
 in the exercise of ordinary care and diligence they ought to have 
 had notice of the dangerous condition of the street.^^ 
 
 § 1629. Must Have Notice, Actual or Constructive, (a) If the 
 jury believe, from the evidence, that the sidewalk in which the defect 
 is alleged to have been, and where the plaintiff is alleged to have 
 been injured, was properly and safely constructed and laid down, 
 and that prior, and up to, or about the time of the injury, it appeared 
 to be in a pi-oper and safe condition, then, if there be no evidence 
 that the defendant had actual knowledge of such defect, or that the 
 defect existed for such length of time before the injury, that the 
 defendant, if exercising proper care and diligence, would have known 
 of it, the jury should find the defendant not guilty.^^ 
 
 (b) The jury are instructed, that when a dangerous place is made 
 in the street by the unlawful act of third parties, unknown or with- 
 out the knowledge or consent of the city authorities, the city cannot 
 be deemed negligent until knowledge or notice of such defect is 
 brought home to the officers of the city, unless the dangerous place 
 has existed for such a length of time before the injury, that the city 
 authorities, in the exercise of reasonable care and diligence, might, 
 and ought to have known of its existence. 
 
 30 — Louisville v. Keher, 25 Ky. notice to it of the dangerous con- 
 Daw Rep. 2003, 79 S. W. 270 (271 dition of the excavation. The rule 
 and 272). on which these opinions rest is 
 
 "In support of the instructions of that the city, having exclusive con- 
 the court we are referred to the trol over its streets, and being 
 cases of Dist. of Columbia v. charged with the duty of main- 
 Woodbury, 136 U. S. 450, 10 Sup. taining them, must keep its streets 
 Ct. 930, 34 L. Ed. 472; Boucher v. in a reasonably safe condition for 
 New Haven, 40 Conn. 456; Sutton public travel, and for a failure to 
 v. Snohomish, 11 Wash, 28, 39 Pac. do this is primarily liable, although 
 273, 48 Am. St. 847; Anderson v. the defect in the highway may be 
 Wilmington, 8 Del. 516, 19 Atl. 509; due to the act of some contractor 
 Stephens v. Macon, 83 Mo. 345; Mc- or third person done by authority 
 Allister v. Albany, 18 Or. 426, 23 of the city. Glasgow v. Gillen- 
 Pac. 845; all of which are much waters, 23 Ky. Law 2375, 67 S. W. 
 alike, and hold that, where a city 381; 2 Smith on Municipal Corpora- 
 authorizes an excavation to be tion, § § 1289, 1290; 2 Dillon on 
 made in one of its streets, and a Municipal Corporations, (4th Ed.) 
 traveler on the street is injured by § 1027." 
 
 the negligence of the person mak- 31 — Fahey v. The President, etc., 
 
 ing the excavation in not suffi- 62 111. 28. 
 
 ciently covering the hole, or not 32 — Schweickhardt v. St. Louis, 2 
 giving svifficient warning of the Mo. App. 571; Hutchins v. Little- 
 danger, the city is liable to the ton, 124 Mass. 289; Chicago v. 
 person injured by reason of the Stearns. 105 111. 554; Hearn v. Chi- 
 act which it licensed without cago, 20 111. App. 249.
 
 1070 FORMS OF INSTRUCTIONS. [§ 1630. 
 
 (c) The court instructs the jury, that when an act is done which 
 is unlawful in itself, such as placing an obstruction in a public street, 
 which detracts from the safety of travelers, the author will be held 
 liable for an injury resulting from the act, although other causes 
 subsequently arising may contribute to the injury.^^ 
 
 § 1630. Defective Sidewalk — Notice Presumed, When. The court 
 instructs the jury, that when the sidewalk of a city is out of repair, 
 and remains so for such a length of time that the public authorities 
 of the city, in the exercise of reasonable care and prudence, ought 
 to have discovered the fact, then actual notice to such authorities of 
 the condition of the walk will not be necessaiy to hold the city 
 liable for injury sustained by a person, in consequence of the dan- 
 gerous condition of the street, if he is himself using reasonable care 
 to avoid such injuiy.^* 
 
 § 1631. Person Driving on Street May Presume it is in a Reason- 
 ably Safe Condition. The court instructs the jury that the streets of 
 a city are for the benefit of all persons, and all have the right, in 
 using them, to assume that they are in ordinarily good condition, 
 and to regulate their conduct on that assumption ; and they may 
 drive carefully in the darkness of the night, relying upon the belief 
 that the corporation has performed its duty, and that the street is 
 in a reasonably safe condition.^ ^ 
 
 § 1632. Necessity of Notice to City of Defect in Street. The court 
 instructs the jury that if you shall find that the plaintiff used due 
 and ordinary care in driving along the street at the time and place 
 when and where the accident occurred, you will then inquire whether, 
 
 33 — ^W'eick v. Lander, 75 III. 93. reeled the attention of the jury to 
 
 34 — Mayor v. Sheffield, 4 Wall, this peculiarity in the circum- 
 
 189; Springfield v. Doyle, 76 111. stances of the injury; but it will 
 
 202; Schweickhardt v. St. Louis, 2 be seen by an examination of the 
 
 Mo. App. 571; Hume v. N. Y., 74 instructions that, in number 7 of 
 
 N. Y. 264; Albrittian v. Huntsville, the same series, the court had al- 
 
 60 Ala. 486; Chicago v. Dale, 115 ready called the attention of the 
 
 111. 386. jury to the fact 'that he (plain- 
 
 35— Omaha v. Ayer, 32 Neb. 375, tiff) had passed along the street 
 
 49 N. W. 445 (447). frequently, both night and day, and 
 
 "Counsel make the point that the mentioned the probability of his 
 above paragraph of the charge being able to see the obstruction 
 given by the court on its own if it were possible for a person 
 motion is erroneous, for the reason using ordinary care and prudence 
 that it ignores the fact that the then and there to see it'; and 
 plaintiff admits in his own testi- also, in and by the instructions 
 moiiy that he had seen this ob- given at the request of the de- 
 struction, and knew where it was, fendant, the court had at least 
 and had driven three times past once called the attention of the 
 It on the very day of the acci- jury to the knowledge of the plain- 
 dent. While I think that in this tiff of the existence of this ob- 
 connection counsel stated the tes- struction in the street, and to the 
 timony of plaintiff too strongly consideration of the question 
 against him, yet, if this paragraph whether he was or was not negli- 
 stood alone, I should agree with gent in driving upon the same, pos- 
 counsol that, while laying down the sessed of such knowledge and his 
 law as the court did in this part ability to keep clear of the ob- 
 o:! the charge, it should have di- struction."
 
 § 1633.] NEGLIGENCE— MUNICIPAL CORPORATIONS. 1071 
 
 under the testimony, the city authorities either had notice of the 
 existence of the obstruction in the street, or that the obstruction had 
 existed in the street for such a length of time before the accident 
 that knowledge of the existence of such obstruction by the city au- 
 thorities must be presumed.^^ 
 
 § 1633. Nature of Liability for Hole in Street Depends on Locality 
 and Road. The court instructs the jury that the city is bound to 
 keep the highways in a reasonably good condition for ordinary travel. 
 If it be a paved street in the heart of the city, that is a matter for 
 the jury to consider and understand in arriving at the duty of the 
 city. If it be in the outskirts of the city — an unpaved street — the 
 jury may veiy well consider that the duty of the city in regard to 
 that street Avas entirely different from its duty in regard to a street 
 at B. and M., or any such jDlace ; so that the jury, in arriving at the 
 responsibility of the city, must carefully consider the locality and 
 road, and especially the injury^ complained of.^''' 
 
 § 1634. Fact that Hole was Filled with Water May be Considered 
 on Question of Contributory Negligence. The court instructs the 
 jury that if the hole in the street at the time of the accident was 
 full of Avater, this fact may be considered by the jury in determining 
 the question whether plaintiff was using due care. Whether a pool 
 of water at the time and place would have induced a prudent man 
 to assume that it marked a deep and dangerous hole, and to run 
 around it, is a question which the jury under the evidence may con- 
 sider, with all the other facts, in arriving at a conclusion of the 
 question of the plaintiff's case.^^ 
 
 § 1635. Duty to Provide Guards and Notice, (a) The court in- 
 structs the jury, that Avhile a city has the right to construct sewers, 
 or other improvements in its streets, yet, when it causes such work 
 to be done, it is bound to take notice of the character of the w'ork 
 and the condition in which the streets are left, whether safe or 
 dangerous. 
 
 (b) If, in making improvements, it becomes necessary to leave 
 dangerous holes or openings in the street, or to leave piles of dirt, 
 or other obstructions, in the street, in such .a way as to render it 
 dangerous for wag-ons or carriages to pass, then it is the duty of the 
 city to put up guards or notices of some kind, to warn travelers of 
 the dangerous condition of the street; and if they do not do so, and 
 persons are thereby injured, while in the exercise of reasonable care 
 and prudence themselves, the city will be liable for the injuries thxis 
 sustained. 
 
 36 — Omaha v. Ayer, 32 Neb. 375, able on the ground that it assumes 
 
 49 N. W. 445 (445-7). that the defect complained of was 
 
 37 — McLausrhlin v. Philadelphia a dangerous hole. In determining 
 
 T. Co., 175 Pa. 565, 34 Atl. 863 (864). the question of appellee's care, the 
 
 38 — Indianapolis v. Mullally, — jury might consider the fact, if 
 
 Ind. App. — , 77 N. E. 1132 (1135). a fact, that the hole in the street 
 
 "This instruction is not objection- was filled with water, and whether
 
 1072 FORMS OF INSTRUCTIONS. [§ 1636. 
 
 (c) The court instructs the jury, that all incorporated towns, 
 villages and cities, whether incorporated by special charter or under 
 general laws, have the power, and it is their duty, to keep in repair 
 the roads and bridges within their corporate limits, and if injury 
 results to any individual by reason of a neglect of such duty, while 
 he himself is exercising reasonable care and prudence to avoid such 
 injury, the corporation will be liable in damages. ^^ 
 
 § 1636. Admissibility of Evidence of Other Similar Accidents at 
 Same Place. The court instructs the jury that there is undisputed 
 
 testimony here that on the evening of , , between the hours 
 
 of 7:30 and 10:00 p. m., before the plaintiff was injui-ed, two other 
 automobiles were run into the same excavation and broken, one so 
 badly broken that it had to be wheeled into a neighboring yard; 
 that this testimony is admitted for the purpose of showing the char- 
 acter and existence of the excavation on the boulevard into which 
 the plaintiff ran, and not for the purpose of showing any reasonable 
 care by the plaintiff, and should not be considered as bearing upon 
 the question of reajsonable care vipon his part.'*" 
 
 § 1637. Liability of Municipality for Safety of Streets While Im- 
 provements are Being Made. The duty ordinarily resting upon the 
 city to keep its streets in reasonably safe condition for public travel 
 does not exist during the time occupied in making public improve- 
 ments or repairs in or upon such streets, and such city is relieved 
 from liability from such conditions as are reasonably necessary for 
 the purpose of perfonning the work, and for the time reasonably 
 required for its performance, and, while such improvements are in 
 progress in or upon the streets of a city, the city must exercise 
 reasonable care to protect those properly and lawfully upon such 
 streets from the consequences of any unsafe condition that may 
 exist.*! 
 
 such a hole of water would have 508, 42 N. W. 1101, 5 L. R. A. 143, 13 
 
 induced a prudent man to assume Am. St. 457; Lombar v. East 
 
 that it indicated danger, and in- Tawas, 86 Mich. 20, 48 N. W. 947; 
 
 duced him to run around it, was a Thompson v. Quincy, S3 Mich. 175, 
 
 question which, with all the other 47 N. W. 114, 10 L. R. A. 734; Retan 
 
 facts, the jury might consider in v. Railway, 94 Mich. 154, 53 N. W. 
 
 arriving at a conclusion on the 1094; Moore v. Kalamazoo, 109 
 
 question of appellee's care. The in- Mich. 178, 66 N. W. 1089; Alberts v. 
 
 structions may be somewhat am- Vernon, 96 Mich. 549, 55 N. W. 1022. 
 
 blguous, but we cannot say that it But see, also, Corcoran v. Detroit, 
 
 would be construed by the jury in 95 Mich. 86, 54 N. W. G92, and Greg- 
 
 a way to prejudice appellant's ory v. D. U. R., 138 Mich. 368, 101 
 
 rights." N- W. 546. As there are other 
 
 39_!The President, etc., v. Mere- points upon which the cause must 
 
 dith, 54 111. 84. be reversed, we do not pass upon 
 
 40— Karrer v.' Detroit, 142 Mich, the question of its admissibility 
 
 331, 106 N. W. 66. here; the cases cited indicating the 
 
 "The testimony given seems to rule to be applied upon another 
 
 have the sanction of authority trial." 
 
 within certain limits. See Smith v. 41— South Omaha v. Burke, 3 Neb. 
 
 Township, 62 Mich. 165, 28 N. W. (unof.) 314, 94 ,N. W. 528. 
 806; Dundas v. Lansing, 75 Mich.
 
 § 1638.] NEGLIGENCE— MUNICIPAL CORPORATIONS. 1073 
 
 § 1638. Street Includes Sidewalks, The jury are instructed, that 
 the streets of a city extend to and include that portion thereof occu- 
 pied and used for sidewalks. In the grant by the legislature of con- 
 trol over the streets of the city, to the city authorities, control over 
 the sidewalks passes to them as a part of the street, and this imposes 
 upon the city authonties the duty of keeping the sidcAvalks in repair, 
 as a part of the street. ^^ 
 
 § 1639. Essential Elements Necessary to Warrant Recovery for 
 Defective Sidevalk. You are instructed that before you can find 
 for the plaintiff, you must find that the plaintiff has suffered injury, 
 that the injury was caused by a defect in the sidewalk, that said 
 defect left the sidewalk in an unreasonably dangerous condition, that 
 the plaintiff did not contribute to the said injury by any negligence 
 on his part, that the city authorities had actual knowledge of said 
 defect in time to have repaired same before the accident happened, or 
 that the defect had been notorious and continued for a length of 
 time within which the city authorities, in the exercise of reasonable 
 care and diligence, could have known of the same.^^ 
 
 § 1640. Person Traveling on Sidewalk or Street May Presume it 
 is Reasonably Safe for Ordinary Travel, (a) The court charges you 
 that it is the duty of the city authorities to keep the streets in repair 
 and to prohibit obstnictions or defects therein, so far as this can be 
 done in the exercise of reasonable care and pn;dence ; and that any 
 person traveling upon the sidewalk, when using the same with due 
 diligence and care, has a right to presume and act upon the pre- 
 sumption that it is reasonably safe for ordinary travel, throughout 
 its entire width, and free from all dangerous holes, obstructions and 
 other defects. And if you believe from the evidence that the plaintiff, 
 while passing along one of the sidewalks in said city of H., was 
 injured as alleged in her complaint, and that the injury would not 
 have happened to her if the said sidewalk had been in a reasonably 
 good repair and safe condition, then the defendant is liable for 
 such injury; provided the jury believe from the evidence that the 
 plaintiff was exercising reasonable care and caution to avoid injury 
 while passing over said sidewalk, and that said city did not use rea- 
 sonable care to keep said sidewalk in safe condition.** 
 
 (b) If the jury believe, from the evidence, that the plaintiff went 
 upon the sidewalk in question for the purpose of traveling over the 
 
 42— City of B. v. Bay, 42 111. 503. must find to entitle the plaintiff td 
 
 43 — Lexing-ton v. Fleharty, — recover. The jury were, however, 
 
 Neb. — , 104 N. W. 1056 (105S). properly instructed by other in- 
 
 "The complaint about this in- structions as to the burden of 
 
 struction is that it does not require proof, and the instruction in ques- 
 
 the jury to find the facts stated tion is hardly susceptible of the 
 
 from the evidence. It is conceded construction placed upon it by 
 
 in the brief of counsel for defend- counsel." 
 
 ant that this instruction sets out 44 — Huntingrton v. Burke, 21 Ind. 
 
 the essential facts that the jury App. 655, 52 N. E. 415 (418). 
 68
 
 1074 FORMS OF INSTRUCTIONS. [§ 1640. 
 
 same, and while doing so was in the exercise of ordinary care for her 
 own safety, then as a matter of law the court instructs the jui-y 
 that the plaintiff, S., had a right to presume or suppose that the 
 sidewalk was reasonably safe for the purpose of traveling, providing 
 there is nothing in the evidence to show any knowledge on her part 
 that the sidewalk was defective."*^ 
 
 (c) The juiy are instructed, as a matter of law, that any person 
 traveling upon a sidewalk of a city, which is in constant use by the 
 public, has a right, when using the same with due diligence and care, 
 to presume, and to act upon the presumption, that it is reasonably 
 safe for ordinary travel throughout its entire width, and free from 
 all dangerous holes, obstructions or other defects.**^ 
 
 (d) The court instructs the jury that it is the duty of the de- 
 fendant, the city of B., to keep its public streets, sidewalks and 
 street crossings in a reasonably safe condition and repair, for the 
 safety of persons who have occasion to pass over the same. 
 
 (e) The court instructs the jury that a person passing over a 
 sidewalk or street is not bound to exercise more than reasonable 
 care and caution in respect to his own safety. Until he is charged 
 with notice to the contrary he has a right to presume the same to be 
 in a reasonably safe condition. 
 
 (f) The court instructs the jury that if you believe, from the 
 evidence in this case, that the defendant is a municipal corporation, 
 
 and as such, on the , and prior thereto, was possessed and 
 
 had control of the street and walk mentioned in plaintiff's declara- 
 tion herein, then it was the duty of the defendant to keep said 
 street and walk in reasonably good and safe repair for the safety of 
 passengers passing along and over the same; and if you believe, 
 from the evidence in this case, that the defendant constructed and 
 maintained in, upon and across a part of said street a ditch or conduit 
 substantially as charged in the plaintiff's declaration, or some count 
 thereof, and that the same was not constructed and maintained so 
 as to he reasonably safe for foot-passenger who had occasion to 
 
 45 — Strehmann v. Chicago, 93 111. which has caused the injury has 
 
 App. 206 (208). existed for so short a time that the 
 
 "We think the instruction correct city officers by tlie exercise of rea- 
 
 and that it should have been given, sonable care and supervision could 
 
 and that its refusal was ei-ror. not have known of it' In Board of 
 
 City of East Dubuque v. Burhyte, Commissioners v. Leg-g, 110 Ind. 
 
 173 111. 553 (558), 50 N. E. 1077. In 479-481, 11 N. E. 612, the court say: 
 
 Turner v. Newburgh, 109 N. Y. 301- 'And it is well settled thnt a trav- 
 
 305, 60 N. E. 344, the court say: eler upon a street or a county pub- 
 
 'When a street is thrown open for lie highway without knowledge of 
 
 the public use, those who travel defects in bridges forming parts 
 
 upon it have the right to assume thereof, and using proper diligence 
 
 that it is in a reasonably safe con- himself has a right to presume 
 
 dition, and if without fault of their that they are in a safe condition 
 
 own or without knowledge of some and to act upon that presump- 
 
 existing obstruction they are in- tion.' " 
 
 jured while using the street, the 46 — Indianapolis v. Gaston, 68 
 
 city is liable unless the defect Ind. 224.
 
 § 1641.] NEGLIGENCE— MUNICIPAL CORPORATIONS. 1075 
 
 pass on and over the same, and that the plaintiff, while in the exer- 
 cise of due care and caution on her part for her own safety, un- 
 avoidably fell into said ditch or conduit, and w'as thereby injured, 
 and has sustained damages in consequence of such injury, then you 
 should find the issues for the plaintiff, and assess her damages at 
 whatever sum you may find, from the evidence in the case, she is 
 entitled to.*'^ 
 
 (g) The jury are instructed, as a matter of law, that any person 
 traveling upon a sidewalk of a city or village, which is in constant 
 use by the public, has a right, when using the same with due dili- 
 gence and care, to presume and to act upon the presumption that it 
 is reasonably safe for travel throughout its entire width, and free 
 from all dangerous holes, obstructions and other defects. 
 
 (h) The court instructs the juiy that a person is not bound to 
 abandon a sidewalk and pass around along the street merely because 
 he knows the sidewalk is defective.*^ 
 
 (i) The court instructs the jury that a person passing over a 
 sidewalk or street is not bound to exercise more than reasonable care 
 and caution with respect to his own safety. Until he is charged with 
 notice to the contrary, he has a right to presume the same to be in 
 a reasonably safe condition.*^ 
 
 § 1641. Necessity of Notice to City of Defect in Sidewalk, (a) 
 The court instructs the jury that the defendant city is liable only 
 for such unsafe condition of its streets as it had actual notice of, 
 or ought to have known of, by exercising what would be, under all 
 the circumstances, ordinary and reasonable caution and diligence. If, 
 therefore, the preponderance of the evidence fails to show that the 
 
 47 — Beardstown v. Smith, 150 111. fit, in the exercise of its discretion, 
 
 169 (173-4), 37 N. E. 211. to construct an artificial crossing 
 
 "The chief objection urged to the over the street. And much less are 
 
 first and last instructions, if we we disposed to hold that after a 
 
 understand it, is, that they attempt street crossing has been estata- 
 
 to lay down the rule of diligence lished, de facto, by public use, the 
 
 incumbent upon the city in keep- city is at liberty, merely because 
 
 ing its 'streets' as distinguished no artificial crossing has been con- 
 
 from its 'sidewalks and street structed, to intersect the crossing 
 
 crossings,' in repair for the use of which the public have established 
 
 foot passengers. It is contended, for themselves, with dangerous 
 
 upon the authority of the City of ditches and pit-falls. We are of 
 
 Aurora v. Hillman, 90 111. 61, and the opinion that, under the facts 
 
 other like decisions, that a pedes- which the evidence in the case 
 
 trian has not an equal right with tended to establish, the duty of 
 
 one who drives a carriage, to the city to keep the crossing in 
 
 travel in and along the driveway question in a reasonably safe con- 
 
 of a public street, and that a city dition and repair for the use of 
 
 is not under any obligation to pedestrians had arisen, and that 
 
 keep such driveway, longitudinal- there was no material error in the 
 
 ly, in a fit and safe condition for instructions by which thstt duty 
 
 pedestrians. was sought to be declared and en- 
 
 "We are not prepared to hold forced." 
 
 that the duty of a city to keep its 48 — Village of Ava v. Greenawalt, 
 
 street crossings in a reasonably 73 111. App. 632 (634). 
 
 safe condition for the use of foot 49— Chicago v. Gillett, 91 111. App. 
 
 passengers arises only when it sees 287 (291).
 
 1076 FORMS OF INSTRUCTIONS. [§ 1641. 
 
 defendant knew or ought to have known of the unsafe condition of 
 said box, if you find it was unsafe, then your verdict should be for 
 the defendant.^** 
 
 (b) If you believe from a preponderance of the evidence that the 
 meter box referred to in the testimony was rotten and out of repair, 
 and that it was by reason of such unsafe condition, an unsafe and 
 dangerous place in said street, and rendered it dangerous to use said 
 street, and walk immediately adjacent thereto, and if you further 
 find that plaintiff, without fault on her part, fell into said meter box, 
 then you will return a verdict for her, provided you further find 
 that the defendant city knew, or by the exercise of ordinary care 
 ought to have known, of said condition of said box long enough 
 before said accident to have put it in good repair.^^ 
 
 (c) The court instructs the jui'y that it is wholly immaterial how 
 long the board in question in this case may have been cracked, broken, 
 or defective, provided such crack, break or defect M^as of such nature 
 that it could not be detected or discovered by the village authorities 
 by the use of ordinary care, caution and diligence. ^^ 
 
 (d) The jury are instructed that if you believe from the evidence 
 
 that a defect existed in the sidewalk in question on the day of 
 
 , that as to what length of time would be required to justify 
 
 the inference of the knowledge of such defect by the city of St. L. 
 there is no fixed or definite rule, and each case must depend upon the 
 facts and circumstances attending it. Thus, if the jury believe from 
 the evidence that R street, at the point in question, was a street much 
 traveled and in use, the duty of the city in looking after its condition 
 required greater diligence in seeing that it was reasonably safe for 
 travel than if it had been but little used. And in a much-traveled 
 street, if a defect existed which the jury believe from the evidence 
 was easily to be seen, the existence of such a defect for only a few 
 hours might justify the jury in the inference of knowledge on the 
 part of the city of such defect, or that by reasonable diligence it 
 could have acquired such knowledge, in time to have repaired it 
 before the accident. Much depends upon the surroundings, and what 
 might be negligence in not knowing of a dangerous condition of a 
 sidewalk at one locality in the city would not be at another, and the 
 juiy are to determine the fact of whether or not the negligence on 
 
 50 — South Omaha v. Meyers, 3 there is a distinction between latent 
 
 Neb. (unof.) 699, 92 N. W. 743 (744). and patent defects as far as the 
 
 51 — Ibid. presumption of notice is concerned 
 
 52 — Powell v. Village of Bowen, is recognized in the following au- 
 
 92 III. App. 453 (454). thorities: Shear. & Red. on the 
 
 "It is difficult for us to see how Law of Negligence, vol. 2, p. 641; 
 
 a city could be held liable for an Dewey v. Detroit, 15 Mich. 312; 
 
 injury caused by latent defect if Wakeham v. St. Clair, 91 Mich. 15, 
 
 it had no actual notice of its ex- 51 N. W. 696; Hubbell v. Yonkers, 
 
 isterice, and where the authorities 104 N. T. 434, 10 N. E. 858, 58 Am. 
 
 had used all ordinary and reason- Rep. 522." 
 able means to discover it. That
 
 §1641.] NEGLIGENCE— MUNICIPAL CORPORATIONS. 1077 
 
 the part of the city existed in this ease, from the facts and circum- 
 stances they believe the evidence herein shows.^^ 
 
 (e) The court further instructs the jurj' that to render a city 
 liable for a defect in a sidewalk, the defect must be of such a char- 
 acter that the city authorities, by using ordinary care and diligence, 
 could discover it. If you should find from the evidence in the case 
 that the defect was of such a nature that the officials of the city 
 could not have discovered it by using ordinary care and diligence, 
 the defendant is not liable in damages, and your verdict should be 
 for the defendant city.^* 
 
 (f) The jur}^ are further instructed that, before the plaintiff can 
 recover, he must prove to your satisfaction that the city of 0. 
 had actual notice of the existence of the obstruction complained of 
 a sufficient length of time before the happening of the accident to 
 have removed the same, or that the obstruction complained of had 
 existed a sufficient length of time to become so iwtorious that you 
 would be justified in believing that the city did know of the existence 
 of this obstruction for a sufficient length of time to have removed the 
 same before the happening of the accident. ^^ 
 
 (g) The court instructs the jury that, if they find fi'om the evi- 
 dence that on the day of , C. street was a public street 
 
 of K. C. ; that on the said day there was a hole in the sidewalk on 
 the east side of said street, between E. and N. streets, at a point 
 about twenty-five feet north of N. street, which made said sidewalk 
 not in a reasonably safe condition for persons traveling over it; 
 that said hole was known to the officers of K. C. having supervision 
 of its sidewalks, or could have been known to them if 
 they had used ordinary care and diligence in the discharge of 
 their duties, in time to have rejDaired the same before said day; 
 that on said day plaintiff, while in the exercise of ordinary care, as 
 defined in other instructions, was traveling over said sidewalk, and 
 stepped into said hole, and was thereby thrown dow'n and injured, 
 then your verdict should be for the plaintiff.^® 
 
 (h) The statute under which this action was brought contemplates 
 that the defendant must have notice of the defect complained of, or 
 have knowledge of such defect, and a reasonable time and oppor- 
 tunity to put said sidewalk in proper condition for use, and has not 
 used reasonable diligence therein after such knowledge or notice. 
 
 Therefore, if the jury find that on or about the day of , 
 
 the sidewalk in question was placed in a condition reasonably safe 
 
 53 — Beauvais v. St. Louis, 169 would have known if it had been 
 
 Sup. Mo. 500, 69 S. W. 1043 (1044). doing- its duty." 
 
 "We think that instruction pre- 54 — Moore v. Platteville, 78 Wis. 
 
 Rents the law correctly. A defect 644. 47 N. W. 1055 (1056). 
 
 mig-ht occur when and where the 55 — Elliott v. Kansas City, 174 
 
 city would be required to be on Mo. 554, 74 S. W. 617. 
 
 the watch, and, if so, would be 56 — Omaha v. Ayer, 32 Neb. 375, 
 
 chargeable with notice of what it 49 N. W. 445 (447).
 
 1078 FORMS OF INSTRUCTIONS. [§ 1642. 
 
 and fit for public travel, and, subsequently, and prior to said accident, 
 became defective for any cause, and unsafe and unfit for travel, and 
 that there was no notice of nor knowledge by said city that said side- 
 walk had become unsafe and insecure, then I charge you, as a matter 
 of laAv, that the plaintiff has failed to establish a case, and your 
 verdict must be for the defendant.^'' 
 
 (i) If the preponderance of the credible evidence in the ease 
 satisfies you that the plaintiff was free from any want of due care 
 or attention that contributed to cause the injury, and further satis- 
 fies you that the city was guilty of negligence that was the proximate 
 or near cause of the injury, and liable, through having notice through 
 its proper officer or officers, and not repairing or removing the dan- 
 gerous character of the walk after a reasonable time elapsed after 
 such notice, then you will allow her such damages as will fully com- 
 pensate her foi* her injuiy, including her suffering, mental and bodily 
 pain, doctors' bills, nursing and loss of time, as shown by the evi- 
 dence in the ease.'^^ 
 
 § 1642, When City Deemed to Have Had Constructive Notice of 
 Defect in Sidewalk, (a) The court instructs the jury that the plain- 
 tiff is not bound to prove that any officer or agent of the defendant, 
 
 , had actual notice of the condition of the sidewalk in question; 
 
 but if you find, from the evidence, that said sidewalk was unsafe 
 and defective, and that plaintiff was injured by reason of such unsafe 
 and defective condition of said sidewalk, and that a sufficient length 
 of time had elapsed between the time when said sidewalk became 
 defective and the date of the injury to i3laintiff, for the city, by the 
 exercise of reasonable diligence, to have discovered and repaired 
 the defect in said sidewalk, then the city was negligent in not dis- 
 covering and repairing said sidewalk.^^ 
 
 (b) If the walk where it is alleged plaintiff fell was not in a 
 reasonably safe condition by reason of defective stringers and 
 boards, and that such a condition had existed for such a length of 
 time before the accident to plaintiff' that the defendant by the exer- 
 cise of reasonable diligence should have discovered the same, then 
 defendant would have what is called ''constructive notice" of such 
 condition. ^° 
 
 § 1643. Effect of Knowledge of Municipal Authorities that Side- 
 walk Is Defective. The court instructs the jury that it is the duty 
 of the defendant, the city of S., to exercise reasonable care and 
 diligence to keep and maintain its sidewalks in a reasonably safe 
 condition and repair for the use of the public in walking thereon; 
 and if the jury believe, fr-om the evidence, that the sidewalk at the 
 time and place in question was out of repair and in a dangei'ous con- 
 
 57— Moon V. Ionia, 81 Mich. 635, 59— Perrette v. Kansas City, 162 
 
 46 N. W. 25 (26). Mo. 238, 62 S. W. Rep. 448. 
 
 58 — Munger v. Waterloo, 83 Iowa 60 — Belken v. Iowa Palls, 162 
 
 559. 49 N. W. 1028 (1029). Iowa 430, 98 N. W. 296 (297).
 
 § 1644.] NEGLIGENCE— MUNICIPAL CORPORATIONS. 1079 
 
 dition, and 'that the city authorities knew of such condition in time 
 to have remedied it before the injury complained of, and did not do 
 so; and if you further believe, from the evidence, that the plaintiff 
 was injured by reason of such condition of the sidewalk, as charged 
 in her declaration, and that she was herself on the occasion and at 
 the time of such injury in the exercise of oixlinarj' care and caution 
 for her own safety, then the city would be liable, and in such case 
 you will find the defendant guilty.*'^ 
 
 § 1644. In Populous Districts Whole Width of Sidewalk Should 
 be Kept in Repair, (a) The court further instructs the jury that if 
 you find, from the evidence, that the point where the plaintiff re- 
 ceived his injury was a pojDulous portion of the city, and where there 
 was a large amount of public travel, it was the duty of the city to 
 keep and maintain the sidewalk at that point, and the whole thereof, 
 in a reasonabl}'^ safe condition for public travel ; and the public at such 
 point had the right to the use of the whole of said sidewalk, and had 
 the right to assume that the whole thereof was reasonably safe for 
 public travel. 
 
 (b) The court further charges the jurj' that if you find from the 
 evidence that the place where the plaintiff received his injury was a 
 thicklj' settled portion of the city, then it was the duty of defend- 
 ant city to keep and maintain the whole of its sidewalk, from the 
 building front to the curbstone, in a reasonably safe condition for 
 public travel; and it is no defense that there was ample room for 
 pedestrians to travel along that portion of the walk covered with 
 flagging.^2 
 
 § 1645. Circumstances to be Taken Into Consideration in Deter- 
 mining Liability for Defective Walk, (a) The court instructs the 
 jury that in determining whether the defendant was negligent in the 
 maintenance and repair of the walk at the place where plaintiff was 
 injured, and whether it had notice, the jury should consider the 
 length of time the alleged sidewalk had been built, the material 
 with which it had been constructed, the manner of its construction, 
 
 61 — Springfield v. McCarthy, 79 throughout their entirety. Indian- 
 Ill. App. 388 (390). apolis v. Gaston, 58 Ind. 224; City 
 
 62— Denver v. Stein, 25 Colo. 125, Council v. Wright, 72 Ala. 411, 47 
 
 53 Pac. 283 (284). Am. Rep. 422; Bacon v. Boston, 3 
 
 "While there is conflict between Cush. 174; Stafford v. Oskaloosa, 64 
 the adjudicated cases upon the Iowa 251, 20 N. W. 174; Chicago v. 
 question as to whether a city is Robbins, 2 Black. 418; Goins v. Mo- 
 bound to keep in repair its subur- berly, 127 Mo. 116, 29 S. W. 985; 
 ban streets and sidewalks to their Monongahela v. Fischer, 111 Pa. St. 
 entire width, yet, upon principle it 9, 2 Atl. 87. We think, therefore, 
 is clear, and by the weight of au- these instructions correctly define 
 thority it seems to be settled, that the duty of defendant with refer- 
 with reference to sidewalks in ence to the sidewalk in question, it 
 populous portions of the city, and being undisputed that it is located 
 such as are constantly used by the in a populous portion of the city 
 public, its duty is to use reason- and was constantly used by the 
 able care in keeping them in re- public by day and in the night- 
 pair, and free from defects, time."
 
 1080 FORMS OF INSTRUCTIONS. [§ 1646. 
 
 the nature of the alleged defect, whether or not it was apparent 
 and readily observable, or whether it was such that it would not 
 be noticeable unless a person stepped on the extreme edge of the 
 walk, whether the alleged loose plank was replaced by persons other 
 than the city officers, who noticed it out of place, so it could not be 
 seen by defendant's officers, and all other facts and circumstances 
 as shown by the evidence.''^ 
 
 (b) The court further instructs the jury that if the city made 
 sudh an inspection of the walk as ordinary care and prudence would 
 require, and found it to be in good condition, or if not in good condi- 
 tion it then made it so, then the city would not be liable, but if at 
 that time it failed to exercise the care it ought to have exercised to 
 discover the defect, 'then the city would be liable. Again: If appel- 
 lant exercised that care and prudence it ought to have exercised, if 
 it made examination of the sidewalk from time to time as it ought 
 to have examined it, bearing in mind the condition, age and char- 
 acter of the walk, and found no defects, or if it found defects and 
 repaired the same, then the city would not be liable. "^^ 
 
 § 1646. Effect of Failure to Construct Sidewalk According to Pro- 
 visions of Ordinance. The court instructs the jury that the ordi- 
 nances of the city of M., introduced in evidence by the plaintiff, 
 providing for the kind and manner of construction of sidewalks in 
 the district where the plaintiff was injured are introduced only for 
 the purpose of tending to show admissions on the part of the city 
 of the kind of sidewalks which ought to be constructed in said dis- 
 trict at the place of the accident, but the city was not bound to con- 
 struct sidewalks according to said ordinances; and the jury are 
 instructed that no negligence can be imputed to or charged against 
 said city merely from the fact that it may appear from the evidence 
 that said sidewalk at the place of the accident was not of the kind 
 or was not constnieted according to such ordinances; but the fact, if 
 it be the fact that said sidcAvalk was not constructed according to 
 said ordinances may be considered in connection with all the other 
 evidences in the case in detennining whether in fact the defendant 
 was negligent."^ 
 
 § 1647. Effect of Sidewalk Becoming Insecure from Use or Breaks. 
 
 The court instructs the jury that a sidewalk may have become 
 insecure from use or breaks, or planks may have become loose or 
 displaced by the action of the elements or by accident, so that per- 
 sons are liable to stumble and fall; but this does not necessarily 
 involve the city in liability, so long as the effect can be readily dis- 
 covered and easily avoided by persons exercising due care, provided 
 
 63— Spicer v. "Webster City, 118 65— Reed v. Mexieo, 120 Mo. App. 
 
 Iowa 561, 92 N. W. 884 (885). 155, 76 S. W. 53 (54). 
 
 64— Kennedy v. St. Cloud, 90 
 Minn. 523, 97 N. W. 417 (418).
 
 §1648.] NEGLIGENCE— MUNICIPAL CORPORATIONS. 1081 
 
 the defect be of such a nature as not of itself to be dangerous to 
 persons so using the walk."*^ 
 
 § 1648. Injury through Stick Projecting over Sidewalk. The 
 court instructs the jury that it is the duty of the defendant to use 
 ordinary care in keeping its sidewalks in a reasonably safe condition 
 for persons walking upon the same, and it is the duty of those walk- 
 ing upon the sidewalk to use ordinaiy care for their own safety ; and 
 if the jury believe from the evidence that the defendant, its agents, 
 servants or employes, were guilty of negligence in leaving the stick 
 over which the plaintiff stumbled, if she did stumble over same, pro- 
 jecting into the sidewalk, and that by reason of such negligence, if 
 any, the plaintiff was injured, they should find for the plaintiff, 
 unless they believe from the evidence that the plaintiff was guilty of 
 negligence which so far contributed to her injuries that, but for the 
 same, she would not have been injured, in which latter event they 
 should find for the defendant.^''' 
 
 § 1649. Slippery Condition of Sidewalk Resulting from Ordinary 
 Accumulation of Ice in Winter. The court instructs the jury that 
 the slippery condition of a sidewalk, resulting from ordinary accu- 
 mulation of ice in winter, is not an actionable defect if such accumu- 
 lations are smooth; and, if you find in this case that the alleged 
 injury of the plaintiff was due to such cause, you will answer the 
 first issue *'No," and not consider the other issues.*^^ 
 
 § 1650. Injury to Child by Defective Sidewalk While Indulging in 
 Pastime or Play. The court instructs the juiy that if a child, while 
 using the sidewalk in going from one place to another, incidentally 
 indulges in some pastime or plaj^, but is not thereby diverted from 
 going straight to her destination, she is a traveler in the eye of the 
 law, and that if respondent was using the walk in going directly 
 from her home to a neighbor's, as she claims, and at the same time 
 she was accompanied by children who were playing, but she did not 
 
 66 — Hunting-ton v. Burke, 21 Ind. The Supreme court said: "We 
 
 App. 655, 52 N. E. 415 (418). think the modification was cer- 
 
 67— Louisville v. Bailey, 81 Ky. 6, tainly misleading- to the jury, and 
 
 74 S. "W. 688. was therefore erroneous. The in- 
 
 "It is insisted that by the in- structions, as ordinarily prayed for, 
 
 struction the case was erroneously simply meant that the law would 
 
 made to turn upon what the jury not hold liable in damages a town 
 
 believed was negligence in the city or city for an injury caused 
 
 leaving the stick projecting upon through the slipping of a person 
 
 the sidewalk. This is true, and on its sidewalk, on account of ice 
 
 properly so, as the right of appel- formed there at a season of the 
 
 lee to recover depended upon the year when such formation of ice 
 
 question whether it was negligence might be reasonably anticipated, 
 
 to leave the stick at the place and not through an unusual accu- 
 
 where found." mutation and after being allowed 
 
 68 — Cresler v. Asheville, 134 N. C. to I'emain thei'e for an unreason- 
 
 311. 46 S. E. 738 (739). able length of time. Putting that 
 
 The trial court gave the above interpretation upon the prayer for 
 
 instruction, but modified it after instruction, we think it ought to 
 
 the word "winter," by adding the have been substantially given." 
 words "not from neglect of city."
 
 1082 FORMS OP INSTRUCTIONS. [§ 1G51. 
 
 stop to play with them, or if she was engaged in any pastime inci- 
 dentally, but was not thereby diverted from going straight to her 
 destination, she was a traveler.*^'' 
 
 § 1651. Defective Plan of Public Improvement, The jury are in- 
 structed, that a city cannot be made liable for injuries to persons 
 or propert}^ which arise from a defective plan of a public improve- 
 ment, although the city may be liable for want of reasonable care 
 or skill in the execution of the work itself; and although the jury 
 may believe, from the evidence, that the plan adopted by the city for 
 draining the streets, was defective and unskillful, and likely to result 
 in injury to, etc., still the city would not be liable for any injuries 
 resulting from such defect or want of skill in the plan adopted, pro- 
 vided the city was not guilty of negligence or want of reasonable 
 care and skill in doing the work necessary to carry out the plan.'''' 
 
 § 1652. Injury to Adjoining Property — Changing Grade, (a) The 
 jury are instructed that a municipal corporation, while acting within 
 the seoiDB of its authority, in making excavations in a street, for 
 the purpose of opening it or improving it, if using reasonable care 
 and skill in performing the work, is not liable to a lot owner for an 
 injury resulting therefrom to his lot or the buildings thereon."^ 
 
 (b) The jurj' are instructed, that while the corporate authorities 
 of cities are vested with power to grade their streets, yet the mode 
 in which the power is to be exercised, in reference to the rights of 
 others in the enjoyment of their property, is limited in the same way 
 and to the same extent as the power of a private person in the use 
 of his property, and if the authorities of a city in altering or chang- 
 ing the gTade of the streets, do not do the work in good faith and 
 with reasonable care and skill, to avoid damaging the adjoining 
 property owners, the city Avill be liable to such owners for all damage 
 directly resulting therefrom.''- 
 
 § 1653. Liable for Want of Reasonable Care Only, (a) The jury 
 are instructed, that a city has full control over the grades of its 
 streets, and may lower or elevate them at will, and the owner of lots 
 adjacent to the street cannot call it to account for error in judgment, 
 in fixing the grade, nor recover damages for inconvenience or 
 expense incui*red in adjusting their premises to the grade of the 
 street, provided, the city authorities exercise reasonable care and 
 skill in the performance of this work. 
 
 (b) That the authorities of a city have a right to alter the grades 
 
 69— Collins v. Janesville, 111 Wis. 72— Callender v. Marsh, 1 Pick. 
 
 348, 87 N. W. 241 (243). 418; Radcliff's Executors v. Mayor, 
 
 70— Lansing v. Toolan, 37 Mich, etc., 4 Comst. 195; Delphi v. 
 
 152; Detroit v. Reckman, 34 Mich. Evans, 36 Iiid. 90; Reading v. Kep- 
 
 125; Darling v. Bangor, 68 Me. 108; pieman, 61 Penn. St. 233; Hender- 
 
 Dever v. Capelli, 4 Col. 25. shott v. Ottumwa, 46 Iowa 658; 
 
 71_Quincy v. Jones. 76 111. 231; Mayor, etc., v. Hill, 58 Ga. 595; 
 
 Pontiac v. Carter, 32 Mich. 164; Bloomington v. Brokaw, 77 111. 195. 
 Wegmann v. Jefferson, 61 Mo. 55.
 
 § 1653.] NEGLIGENCE— MUNICIPAL CORPORATIONS. 1083 
 
 of the streets at their discretion, aud if this is done with reason- 
 able care and skill, no liability arises from their acts. Neither courts 
 nor juries can inquire whether the grade adopted is the best one or 
 not, and, in this case, the only question for the jury is whether, in 
 doing the work in question, the city officers acted in good faith, and 
 with reasonable care and skill to avoid damage to the plaintiff's 
 property.'^ 
 
 (c) Contra: The jury are instructed, that the owner of a lot 
 abutting on an unimpi'oved street, or where no grade has been estab- 
 lished by the city authorities, erecting a building thereon, assumes 
 the risk of all damage which may result from the city subsequently 
 establishing a grade, and improving the street to conform to such 
 grade. The liabilitj' of the city for injuries to a building abutting 
 on a street by the grading of the street, only exists when the build- 
 ing was erected. 
 
 (d) If the juiy believe, from the evidence, that the city, in im- 
 proving (Main street) in said city, fixed the grade and caused to be 
 constructed sewers and drains in said street, to carry off the surplus 
 water which necessarily, in case of rains, would run down said street, 
 by reason of said grading, and that, on or about, etc., there came a 
 rain and said sewers or drains were stopped up, or were otherwise 
 defective, so that they would not carry off the surplus water, and 
 thereby the water from said rain was forced into the -basement of 
 the plaintiff's building, and the plaintiff thereby damaged, then the 
 jury should find for the plaintiff to the amount which the proof 
 shows such damage to be. 
 
 (e) The jury are instructed, that the city of has control of 
 
 all streets and sidewalks in said city; and if the juiy believe, from 
 the evidence, that the sidewalk or street, in front of plaintiff's prem- 
 ises, pitched toward his lot, and was permitted Sio to be constructed 
 by said cit}'^, or was permitted by said city so to remain after being 
 so built by others, after a reasonable time in which to have changed 
 it, then the city cannot shield itself from liability for flooding plain- 
 tiff's premises, if the evidence shows they were so flooded, on account 
 of the pitch of said street or sidewalk.'^* 
 
 (f) If the jury believe, from the evidence, that the city authori- 
 ties before the erection of the building in question, had so improved 
 and appi'opriated the street to public use as to fairly and reasonably 
 indicate to the public that the grade of the street had been per- 
 manently fixed and that no change therein would be made, and that 
 the plaintiff or his grantor, relying on such corporate acts as a final 
 decision as to the wants of the public regarding the grade of such 
 streets, erected the building in conformity to such grade, then, if the 
 
 73— Lee v. Minneapolis, 22 Minn. 258; Tate v. Mo., etc., Rd. Co., 64 
 13; Detroit v. Beckman. 34 Mich. Mo. 149. 
 
 125, Clieever v. Ladd, 13 Blatchf. 74_These instructions approved 
 
 in Aurora v. Gillet, 56 111. 132.
 
 1084 FORMS OF INSTRUCTIONS. [§ 1654. 
 
 jury further believe, from the evidence, that by the recent improve- 
 ment and change of grade of said street the plaintiff's building and 
 other improvements connected therewith have been injured and the 
 plaintiff thei-eby damaged, then the defendant is liable therefor.'^^ 
 
 § 1654. Changing Watercourses, (a) The court instructs the 
 jury, that if a city, in exercising its power of changing the grade 
 of its streets, fails to exercise reasonable prudence and skill, it will 
 be liable for all damages that result from such failure. 
 
 (b) And if a city, in fixing the grade of a street, or in afterwards 
 changing it, flows water upon a lot that it did not naturally carry off, 
 the city will be liable for damages, if any are caused thereby.'^® 
 
 (c) The court further instructs the jury, that a city has no more 
 power over its streets than a private person has over his own land. 
 A city has no right to turn surface water onto private property, and 
 if a city, in fixing the grade of a street, turns a stream of water and 
 mud onto the gTound or into the cellar of a citizen, or creates in his 
 neighborhood a stagnant pool, likely to generate disease, the city 
 will be liable in damages, the same as an individual would for doing 
 the same thing. '^''' 
 
 § 1655. Liability for Overflowing Contiguous Property in Laying 
 Out of Streets, (a) The court instructs the jury that an incorpo- 
 rated city has full authority and control over the laying out and 
 constructing of its streets, and is not responsible for damages for 
 contiguous property being overfloAved, unless said city was guilty of 
 negligence in constructing or in the maintaining of said street; and 
 if you should find, from the evidence, that none of the injuries com- 
 plained of by plaintiff was caused by any negligence of said city of 
 
 McK , then, in that event, you should find for said defendant, 
 
 the city of McK . 
 
 (b) If you should find and believe, from a preponderance of the 
 evidence, that the defendant railroad had put in and near said inter- 
 section of said street a culvert, and that said cvilvert was 
 
 negligently constructed, so that same was wholly insufficient to carry 
 off the water, filth and refuse matter that would naturally flow to 
 said culvert, and that said company negligently permitted said cul- 
 vert to become choked and filled up, and thereby directly causing 
 said water, filth and slime to back up and stand on plaintiff's prem- 
 ises, and thereby directly causing the injury complained of by plain- 
 tiff, and that said injury was not in any way directly contributed to 
 by any negligence on the part of its codefendant, the city of 
 
 McK , then you sihould find in favor of the plaintiff against 
 
 said defendant railroad company alone. '^^ 
 
 75 — Cincinnati v. Penny, 21 Ohio 76 — Ashley v. Fort Huron. 35 
 
 St. 499; Mayer, etc., v. Nichol, 59 Mifh. 29C; Blooming-ton v. Brokaw, 
 
 Tenn. :'.?A; Elgin v. Eaton, 83 111. 77 111. 194; Kobs v. Minneapolis, 22 
 
 535; French v. Milwaukee, 49 Wis. Minn. 159. 
 
 5S4; Dore v. Milwaukee, 42 "Wis. 77— Aurora v. Reed. 57 111. 29. 
 
 108. 78— Taylor v. Houston & T. C.
 
 §1656.] NEGLIGENCE— MUNICIPAL CORPORATIONS. 1085 
 
 § 1656. Liability for Injuries through Body of Water Both on 
 Street and Adjacent Private Property. If you tind, from the evi- 
 dence in the case, and by a preponderance thereof, that because of 
 the negligence of the city in not providing suitable escapes for the 
 water ordinarily flowing down the ravine and creek, or either, said 
 water was allowed and permitt'Cd to accumulate at the point where 
 
 said accident occurred, and also upon street, making said 
 
 street unsafe for children to be upon said street, then the fact, 
 
 if it be a fact, that said accumulation of water extended also upon 
 property not in said street, would not be material; and it would not 
 
 be material whether said was in fact drowned in the water 
 
 in the street, or on property adjacent to said street, providing the 
 water in the street and on the adjacent property where such drown- 
 ing may have occun'ed constituted one body of water, and providing 
 such drowning was caused by the negligence of the city, as herein- 
 before explained. "^^ 
 
 § 1657. Liability for Damage to Contiguous Property by Leak in 
 Water Main, (a) The court instructs the juiy that if they find 
 from the evidence, that the flooding of plaintiffs' premises and the 
 damage to their building and personal property was caused by a leak 
 in a public water main laid by the city of St. L. in one of its public 
 streets, and that such leak was directly caused by the negligent and 
 unskillful laying of said pipe by the persons in charge of said work, 
 or the failure on the part of the officers of defendant to exercise 
 ordinary care or prudence in keeping the same in a safe condition, 
 then their findings must be for the plaintiffs. 
 
 (b) If the juiy find for the plaintiffs, then they will assess to 
 them the difference in value of the building as it stood before the 
 injui-y and its value as the jury shall find the same to have been after 
 said injur\', less the actual value of any improvements or repairs 
 made thereon by the defendant city. And the court further instructs 
 the jury that, if they find for the plaintiffs under other instructions 
 
 R. R. Co. et al., — Tex. Civ. App. therein that 'it would not be mate- 
 
 — , 80 S. W. 260 (261). rial whether said was in fact 
 
 "As stated by Mr. Dillon (2 Dill, drowned in the water on the street, 
 
 Mun. Corp. 4th Ed. p. 1335): 'There or on the property adjacent to said 
 
 is a municipal liability where the street.' This lang-uage oorrectly 
 
 property of private persons is stated the rule of liability as ap- 
 
 flooded either directly by water or plicable to the case made by the 
 
 sewage being- set back, when it is proofs, according to the author- 
 
 the result of a negligent execution ities. It would have been different 
 
 of a plan adopted for the construe- if the pond had been entirely upon 
 
 tion of gutters, drains, culverts or private property, and not in close 
 
 sewers, or the negligent failure to proximity to a street. In such case 
 
 keep the same in repair and free there would be no liability upon 
 
 from obstructions.' The cases sup- the city, since it would have been 
 
 port this proposition with great guilty of no breach of duty. It is 
 unanimity. Consequently there was . undisputed that this pond of water 
 
 no error in the charge as alleged." extended into the street, and the 
 
 79— Omaha v. Richards, 49 Neb. city cannot escape liability merely 
 
 244. 68 N. "W. 528 (530). because the drowning occurred 
 
 "The part of the above instruc- upon the adjacent premises." 
 tion criticised is the statement
 
 1086 FORMS OF INSTRUCTIONS. [§ 1658. 
 
 given, they should include in their finding such damage, if any, as 
 they find to have been directly caused by reason of the bursting of 
 the water pipe in question to any articles of personal property belong- 
 ing to both plaintiffs together, as well as the reasonable expense of 
 removing the same to a placo of safety; and such expense, by way 
 of rental, as you may find the plaintiffs were compelled to pay for 
 quarters elsewhere until the delivery of possession of the plaintiffs' 
 building by the defendant city.^" 
 
 § 1658. Liability for Flow of Surface Water Where No System of 
 Drainage Exists. The court instructs the jury that if the damage to 
 the plaintiff's land was caused by the flow of surface water, and the 
 jury find there is no system of drainage in the town of C, then the 
 plaintiff cannot recover. That the construction of a wide gutter 
 along W. street and S. street to carry off the surface water that may 
 come into said streets from adjoining land and streets does not con- 
 stitute a system of sewers or drainage. ^^ 
 
 § 1659. Liability for Flow of Surface Water Due to Street Rail- 
 way Lawfully Operated on Highway, (a) The court instructs the 
 jury that if the street railway was duly established by law, with a 
 rightful location, and a right to operate as a street railway in the 
 highways of said town, the fact that the railway so constructed 
 caused surface water to flow back upon and into the plaintiff's land 
 would not make the defendant liable for such injury. 
 
 (b) If the location of the railway was by law authorized, and it 
 was operated and maintained in a proper condition, then it was law- 
 fully in the highway, and the town would have no right to remove it, 
 and cannot be held liable for damage to the plaintiff's land by turn- 
 ing upon it the surface water from the street.^^ 
 
 § 1660. Liability for Loss from Flow of Surface Water Occa- 
 sioned by Act of God. (a) The jury are instructed that by the term 
 ''Act of God" is meant those events and accidents which proceed 
 from natural causes and cannot be anticipated and guarded against 
 or resisted, such as unprecedented storms or freshets, lightning, earth- 
 quake and so forth. For loss occasioned by an *'Act of God" a city 
 is not liable, provided its own negligence has not contributed to the 
 damages sustained. On this defense, hovi^ever, the city assumes the 
 burden of proof to the extent that it must prove by a preponderance 
 of evidence that the storm was of such a violent and unprecedented 
 nature that no ordinaiy and reasonable amount of care would have 
 prevented the damage. Therefore if the plaintiff has established by 
 a preponderance of the evidence that the defendant was guilty of 
 negligence then the burden of the proof is upon the defendant city 
 to prove by a preponderance of the evidenco that the storm was of 
 sufficient violence to have caused the damage sustained by plaintiff 
 without the concuiTence of such negligence; for if the negligence of 
 
 80— Dammann v. St. Louis, 152 ton, 182 Mass. 220, 65 N. B. 42 (43). 
 Mo. 186. 53 S. W. 932. 82— Hewett v. Inhabitants of Can- 
 
 81 — ^Hewitt V. Inhabitants of Can- ton, supra.
 
 S 1661.] NEGLIGENCE— MUNICIPAL CORPORATIONS. 
 
 1087 
 
 the city contributed to plaintiff's damage the city is liable. The ques- 
 tion for 3"ou to determine in this case is simply: Did the allowing of 
 the drain, ditches, culverts, and embankments to become and remain 
 in the condition in which they were at the time of the storm cause or 
 contribute to the plaintiff's damages? If it did not, and the rain 
 stoiTU was of such violence that the plaintiff would have been dam- 
 aged to the same extent even with such drainage in the condition it 
 was in when established and constructed, then your verdict must be 
 for the defendant.®^ 
 
 § 1661. Duty of City as to Water Plugs Placed in Streets. When 
 the system of waterworks is used in the city, the officers of the city 
 have a right, and it is their duty, to construct and place the water 
 plugs in such positions in the street as, in their judgment, may be 
 necessary for the protection of the property in case of fire ; but, in 
 constructing and placing such hydrants or plugs, it is the duty of the 
 city to place and locate them in such a manner, and to exercise such 
 care and prudence in the placing thereof, as not 'to endanger persons 
 who might be passing along the street in the ordinary modes of travel. 
 
 83— McCook V. McAdams, — Neb. 
 — , 106 N. W. 988 (989-990). 
 
 "The defendant complains of 
 these instructions and construes 
 them to mean that although the 
 plaintiff's negligence proximately 
 contributed to the injury the de- 
 fendant would still be liable. We 
 do not think they admit of that 
 construction in view of the evi- 
 dence and the theory upon which 
 the case was submitted by the 
 court. The contributory negli- 
 gence charged is that the plain- 
 tiff's store building was situated 
 in a place where large quantities 
 of surface water would naturally 
 accumulate, that it was construct- 
 ed without proper barriers to guard 
 against surface water and that the 
 loss complained of was due to such 
 omission, and plaintiff's own neg- 
 ligence. The only evidence we find 
 that tends even remotely to sustain 
 this charge is that the water at the 
 time of the storm broke down the 
 area wall in front of the store build- 
 ing, flooded the basement and dam- 
 aged plaintiff's goods and the testi- 
 mony of one witness who appears 
 to have known nothing of the char- 
 acter of the wall or its condition, 
 who as an expert testified as to 
 the character of a wall required 
 under circumstances not shown to 
 be similar to those in which the 
 wall in question was constructed 
 and maintained. Assuming that 
 contributory negligence is charged, 
 the evidence is wholly InsufTicient 
 
 to warrant the submission of that 
 issue to the jury. The trial court 
 evidently held that view, because 
 the question of contributory neg- 
 ligence was not submitted, nor do 
 we find, among numerous instruc- 
 tions tendered by the defendant, 
 any request for the submission of 
 that question. 
 
 "The instructions in question, 
 then, are to be construed in the 
 light of the fact that the element 
 of contributory negligence is elim- 
 inated from the case, and with 
 that fact in mind, it is plain that 
 in these the court was dealing only 
 with the defendant's theory that 
 the loss was occasioned by the Act 
 of God. Taken together, and in 
 connection with other instructions 
 defining negligence and the de- 
 fendant's duty in the premises, the 
 effect of these two instructions was 
 to convey to the jury that if the 
 plaintiff's loss was occasioned by 
 the act of God. the defendant was 
 not liable, unless its negligence, 
 co-operating with the act of God, 
 contributed to the injury and in- 
 creased the damages. Thus con- 
 strued, the instructions state the 
 law as favorably to the defendant 
 as the authorities would warrant. 
 Collier v. Valentine, 11 Mo. 299, 49 
 Am. Dec. 81; New B. Steamboat, 
 etc., Co. v. Tiers. 24 N. J. Law 697, 
 64 Am. Dec. 404; Baltimore, etc., R. 
 Co. V. Sulphur Springs Ind. School 
 Dist., 96 Pa. 65, 24 Am. Rep. 529."
 
 1088 FORMS OP INSTRUCTIONS. [§ 1662. 
 
 either by the day or night time, and to adopt such precautions as to 
 point out the dangers, so as to enable persons who are passing or 
 using the streets, by the exercise of ordinary care and prudence, to 
 avoid the danger. If the city neglected to do so in this case, and 
 injury resulted to the plaintiff therefrom, then the city would be 
 liable to him in whatever damages he might have sustained by reason 
 thereof. If the jury believed from the evidence that the fire hydrant 
 or plug had been located or placed on the streets by direction of the 
 city authorities, as alleged by plaintiff, then it was the duty of the 
 city to see that the hydrant or plug was so placed as not to endanger 
 persons passing along the streets in the ordinary mode of travel, 
 either in day or night time. If a person traveling along the street or 
 highway intentionally or carelessly and unnecessarily leave the 
 traveled route, and is injured by an obstruction in the street or high- 
 way, entirely outside of the traveled route, then the city would not be 
 liable for the injuiy; but if the obstruction is so near the traveled 
 route that the traveler, in the exercise of ordinary care, should acci- 
 dentally and unintentionally deviate slightly from the traveled route, 
 and be injured thereby, and by such obstruction, without fault on his 
 part, then the city will still be liable for such injury, although the ob- 
 struction was necessary for fire purposes, as in this ease.^* 
 
 § 1662. Sewer out of Repair. The jury are instructed, as a mat- 
 ter of law, that the city is under no legal obligation to constnict 
 drains or sewers in any particular portion of the city, but, if it does 
 build drains or sewers for corporate pui^poses, it is bound to exercise 
 reasonable care and oversight over them to keep them unobstructed 
 and in repair, so that adjoining property owners shall not be un- 
 necessarily injured thereby. And in this case, if the juiy believe, 
 from the evidence, that the city either built the sewer in question or 
 has adopted and controlled it as a part of the general sewerage of the 
 city, then the city was bound to use all reasonable and ordinary care 
 and supervision over it to keep it in such a state of repair as that it 
 should do no unnecessary injury to plaintiff's property; and if you 
 further believe, from the evidence, that the city authorities did not 
 exercise reasonable and ordinary care and supervision over the said 
 drain or sewer to keep it in repair, but carelessly and negligently 
 permitted it to become choked up and out of repair, and that plain- 
 tiff's property has been damaged thereby, as charged in his com- 
 plaint, then the city is liable for such damages, and the jury should 
 find for the plaintiff, provided you further find, from the evidence, 
 that he was guilty of no fault or negligence which contributed to such 
 injury.^° 
 
 § 1663. County Only Required to Provide Bridge Which Will 
 Properly Accommodate Public at Large. The court instructs the 
 jury that in maintaining a bridge for public use the county is not 
 
 84— Columbus v. Sims, 94 Ga. 483, 85— South Bend v. Paxon, 67 Ind. 
 
 20 S. E. 332 (;i33). 228.
 
 § 1664.] NEGLIGENCE— MUNICIPAL CORPORATIONS. 1089 
 
 limited in its duty by the ordinaiy business use of the structure, nor 
 is it bound to provide for the support of extraordinary or unreason- 
 ably heavy loads, but it is only required to provide what may be 
 fairly anticiiDated for the proper accommodation of the public at large 
 in the various occupations which from time to time may be pursued 
 in the locality where the bridge is situated. Whether or not the load 
 which the deceased J. E. N. drove on the bridge in question was an 
 extraordinary or unreasonably heavy load is a question for you to de- 
 termine from the evidence before you.^*' 
 
 § 1664. Duty of County Commissioners to Construct Bridges in a 
 Workmanlike Manner, (a) It is the duty of defendant, in con- 
 structing bridges across streams, to build them in a workmanlike and 
 proper manner, having due regard for the safety of persons travel- 
 ing over them, and to maintain them in a safe condition. 
 
 (b) If you believe from the evidence that the defendant did con- 
 struct this bridge since , 18 — , and did so build it in a 
 
 workmanlike manner, and that it was in a reasonably safe condi- 
 tion for travelers to pass over it without danger, then you would be 
 authorized to find for the defendant. 
 
 (c) The law puts upon the county commissioners the duty of con- 
 structing bridges on the public highways across streams in a reason- 
 ably safe and workmanlike manner. 
 
 (d) It was the duty of the defendant, in constructing the bridge, 
 to do so in a workmanlike manner and so maintain it that persons 
 might drive over it in safety; and if necessary to make it ordinarily 
 safe, to put up guard rails, then it was the duty of defendant to put 
 up such guard rails.^'^ 
 
 86— Seyfer v. Otoe County, 66 for an injury to plaintiffs team 
 
 Neb. 566, 92 N. W. 756 (75S). and threshing- outfit, caused by the 
 
 "The contention is that it was breaking of a bridge while at- 
 error for the court to leave the tempting to drive across it, it is 
 question as to whether or not the for the jury to determine whether 
 load was unreasonable or an ex- the use which plaintiff was making 
 traordinary one to the jury because of the bridge was unusual and ex- 
 it is claimed the bridge should have traordinary, and such as the county 
 been built in anticipation of just was not bound to anticipate, and 
 such a load. The instruction in it is error for the court to decide 
 question seems to have been taken this question and to direct a ver- 
 from the case of Anderson v. St. diet in the county's favor.' This 
 Cloud, 79 Minn. 88, 81 N. W. 746. being the rule, it follows that an 
 The rule laid down in that case is instruction taking that question 
 as follows: 'In maintaining a from the jury, by stating as a 
 bridge for public use, a municipal- matter of law that the load was 
 ity is not limited in its duty by the not an unusual or extraordinary 
 ordinary business use of the struc- one would have been erroneous, 
 ture, but is required to provide for This was one of the questions 
 what may be fairly anticipated for which the court was bound to sub- 
 the proper accommodation of the mit to the jury, and the instruc- 
 public at large in the various oc- tion in question under which it was 
 cupations which from time to time submitted states the law as laid 
 may be pursued in the locality down by a majority of the cases, 
 where it is situated.' In the case and is supported by the greatest 
 of Tordy v. Marshall Co., 80 Iowa number and the best considered 
 405, 45 N. "W. 1042, a case similar decisions." 
 
 to the one at bar. the court held 87— Bibb County v. Ham, 110 Ga. 
 
 that 'In an action against a county 340, 35 S. E. 656 (657). 
 69
 
 1090 FORMS OF INSTRUCTIONS. [§ 1665. 
 
 § 1665. Defective Condition of Bridge Must Be Proximate Cause 
 of Injury to Horse. The court instructs the jury that if you find that 
 the backing of the horse was not occasioned by the defective condi- 
 tion of the bridge or apron, then it would make no difference whether 
 the railing was sufficiently strong or not, because in that case the de- 
 fendant 's negligence would not be the proximate cause of the in- 
 jury.88 
 
 § 1666. Effect of Knowledge of Traveler that Bridge Is in Un- 
 safe Condition. If you find from the evidence that the bridge in 
 question was in an unsafe condition, and if you further find that 
 the deceased J. E. N. knew of such unsafe condition or had reason 
 to know that the stringers on said bridge were cracked or broken by a 
 previous strain, then you are instructed that the deceased would be 
 negligent in not examining said bridge before he drove upon it.^^ 
 
 § 1667. Contributory Negligence in General — Negligence, Contribu- 
 tory Negligence and Ordinary Care Defined, (a) If the jury be- 
 lieve from the evidence that there was a slight want of ordinary 
 care, which contributed to the injuries complained of, the plaintiff 
 cannot recover, unless the jury further find the negligence on the part 
 of defendant was so gross as to justify the jury in finding that the 
 alleged injury was caused by defendant or its servants. Although 
 there may have been slight negligence and slight want of ordinary 
 care on the part of plaintiff, he is entitled to recover in this ease if 
 injured, as alleged, by the negligence and want of ordinary care of 
 defendant, and could not, by the exercise of ordinary care and pru- 
 dence, have avoided the consequence of defendant's negligence and 
 want of ordinary care.^'^ 
 
 (b) The court instructs you, that if, after considering all the 
 evidence, you should believe the defendant's servants in charge of the 
 street in controversy failed to exercise ordinaiy care in keeping its 
 sidewalks on that street in safe condition, yet if you also believe, from 
 the evidence, that plaintiff at the time of the injury failed to exer- 
 cise ordinary care for her own safety to jorevent or to avoid the in- 
 
 "The objections were directed have meant more tlian a manner 
 principally at tlie use of the word suitable for the uses intended, 
 'workmanlike.' We think that a they were so qualified and ex- 
 positive and unqualified charge plained by the other expressions 
 that the county was bound to con- used that we think the jury could 
 struct and maintain the bridge in not have misunderstood the court's 
 a workmanlike manner, would meaning." 
 
 probably have been error, but in 88 — St. Clair Min. Spr. Co. v. St. 
 
 the present case the error, if any, Clair, 96 Mich. 463, 56 N. W. 18 (19). 
 
 was cured by the context and the "The law was correctly stated in 
 
 remainder of the charge on this the above portion of the court's 
 
 subject. The word 'workmanlike' instructions. Beall v. Township of 
 
 was used in such connection as Athens, 81 Mich. 536, 45 N. W. Rep. 
 
 clearly to show that the judge 1014." 
 
 meant by it to impose upon the 89 — Seyfer v. Otoe County, 66 
 
 county no higher degree of care or Neb. 566, 92 N. W. 756 (758). 
 
 diligence than does the law. Even 90 — Village of Orleans v. Perry, 
 
 if the words 'workmanlike man- 24 Neb. 831, 40 N. W. 417 (419). 
 ner' would, without modification.
 
 § 1668.] NEGLIGENCE— MUNICIPAL CORPORATIONS. 1091 
 
 jury complained of, then there can be no recovery by the plaintiff in 
 this case, and the jury should find the defendant not guilty.'-'^ 
 
 (e) By ''negligence" is meant in these instructions the failure 
 to observe ordinary care. By "ordinary care" is meant a failure to 
 observe such care and prudence as persons of ordinary care usually 
 exercise under the same or similar circumstances. By "contributory 
 negligence" is meant the failure on the part of the plaintiff to use 
 ordinary care for his own safety, and by reason of which he helped 
 to cause or bring about the injuries complained of, and, but for such 
 contributory negligence, at the time and place complained of un- 
 less, by the exercise of ordinary care on his part, he could have seen 
 the obstructions or materials in connection with Avhich he was in- 
 jured, before striking the same, in time to have avoided the injuries 
 complained of. Unless the plaintiff knew the obstructions w^ere in 
 the street, or unless they were marked by some light as hereinbefore 
 defined, the plaintiff, in traveling the street, was compelled to use 
 only such care as persons of ordinary care would use, presuming the 
 street to be safe under the same or similar circumstances.^- 
 
 (d) The court instructs the jury that it is incumbent upon the 
 people who are crossing the streets and sidewalks of South Omaha 
 to use ordinary care to protect themselves from injury and accident 
 liable to occur because of streets or sidewalks being unsafe for pub- 
 lic use, and if they fail to do so they will be guilty of contributory 
 negligence which will prevent a recovery of damages. If you find 
 from a preponderance of the evidence that plaintiff did not exercise 
 ordinary and reasonable care in stepping on said meter box or the 
 ground next to it, as you may find the fact to be, then your verdict 
 must be for the defendant, even though you find that the defendant 
 was negligent.^^ 
 
 You are instructed that the only care and caution required by the 
 plaintiff in using the crossing in controversy, was such conduct and 
 care and caution for her own personal safety as a reasonably prudent 
 and cautious person would have exercised under the same condition 
 and circumstances.^* 
 
 § 1668. Circumstances to Be Considered on Question of Contribu- 
 tory Negligence, (a) The jury are instructed that the plaintiff was 
 
 91 — Chicago v. McLean, 133 111. might by ordinary care have dis- 
 
 148 (154), 24 N. E. 527, 8 L. R. A. 765. covered it in time to have avoided 
 
 "What particular facts amounted the injury, he might recover; and 
 to an exercise of ordinary care, or he had a right, in the absence of 
 what particular facts amounted to anything indicating the contrary, 
 a want of ordinary care, it was to assume that the street was safe, 
 for the jury, not for the court to or reasonably so. Glasgow v. Gil- 
 determine. Wabash R. R. Co. v. leuwaters, 23 Ky. Law 2375, 67 S. 
 Elliott, 98 111. 481." W. 381; Pettengill v. Yonkers, 116 
 
 92— Louisville v. Keher, 25 Ky. N. Y. 564, 22 N. E. 1095, 15 Am. St. 
 
 Law 2003, 79 S. W. 270 (273). 442." 
 
 "This instruction properly de- 93 — So. Omaha v. Meyers, 3 Neb. 
 
 fined contributoi-y negligence, for, (unof.) 699, 92 N. W. 743 (745). 
 
 as the plaintiff did not know of the 94 — Town of Normal v. Bright, 
 
 obstruction of the street, unless he 223 111. 99 (103), 79 N. E. 90.
 
 1092 FORMS OF INSTRUCTIONS. [§ 1669. 
 
 bound only to use such care and caution as a person of ordinary 
 prudence would use under like circumstances. 
 
 (b) In considering the question of contributory negligence, the 
 jury are to take into consideration the time of the day when the in- 
 jury occurred, the darkness of the night, the fact that snow had re- 
 cently fallen, and the ease or difficulty of seeing the obstruction with 
 the lights as then located; also the fact that no guards or signals of 
 any kind were placed near the obstruction. 
 
 (e) In considering the question of negligence on the part of the 
 plaintiff, the jury might consider plaintiff's condition on that night, 
 his horsemanship or ability to drive his horse, the fact that he had 
 passed along the street frequently, both night and day, and the prob- 
 ability of his being able to see the obstruction, if it were possible for 
 a person using ordinary care and prudence then and there to see it. 
 
 (d) The court instructs the jury that plaintiff had the right to 
 assume that she could use the sidewalk on which she alleges she was 
 walking when she fell, with safety, using such care as an ordinarily 
 prudent person would exercise under like circumstances, and, though 
 she may have known the sidewalk was defective, yet this fact would 
 not prevent her from recovering in this action, but should be taken 
 into consideration by the jury with other facts and circumstances in 
 evidence as to whether she was exercising ordinary care as above de- 
 fined. ^^ 
 
 § 1669. Contributory Negligence — Falling into Hole in Sidewalk. 
 (a) If you are of the opinion that the city is responsible by reason 
 of having allowed that hole to remain there for so great a length of 
 time without causing it to be filled up and the defect removed, the 
 next inquiry is whether the plaintiff herself was guilty of negligence 
 or carelessness, because where thei-e is carelessness on both sides we 
 do not measure the degree of carelessness, but we set off one against 
 the other, and say that neither party can recover. 
 
 (b) If you are of the opinion that the plaintiff was walking along 
 carelessly and heedlessly not giving due attention to her safety, and 
 carelessly and heedlessly walked into this hole, and the fall was her 
 own fault, then, no matter how bad her injuries may be, she would 
 have no claim against the city. In that case her injuries would be as 
 much chargeable to her own fault as to the fault of the city. Dam- 
 ages are not given in cases of this kind simply because a person is 
 injured. Damages are not given because we sympathize with the per- 
 son injured. They are given because the injury is caused by the negli- 
 gence of the party sued, without any negligence on tlie part of the 
 party suing. 
 
 (e) If you are of the opinion that this lady was also careless, and 
 that she heedlessly and carelessly walked into this hole, she is not 
 
 95 — Above instructions approved, Omaha v. Ayei% 32 Neb. 375, 43 N. 
 
 W. 445 (447).
 
 ^ 1670.] NEGLIGENCE— ilUNICIPAL CORPORATIONS. 1093 
 
 entitled to recover, and in that case she ought not to have a verdict. 
 If, however, j'ou are of the opinion that she was not careless, — that 
 she was walking along the city's sidewalk, — in that case you may give 
 her damages which will comiDensate her for the injury which she has 
 sustained, any expenses to which she has been put, any loss of earn- 
 ing power you tliink she has sustained, and for any pain and suffer- 
 ing she has undergone, or is likely to undergo in the future. She 
 says that at the time she was walking on the street a number of joeo- 
 ple were passing. You will consider that, in determining whether or 
 not she was looking ahead, and whether she was exercising due care. 
 
 (d) If, in your opinion, she was exercising due care, and her injury 
 was caused by the negligence of the city in permitting the hole to 
 remain in the sidewalk for an undue length of time, then you will 
 give her damages which will compensate her for the pain and suf- 
 fering she has undergone, the expenses to which she has been put, 
 and any loss of earning power which she may have sustained by 
 reason of this accident. If, however, jon believe that she w^as not as 
 careful as she should have been under the circumstances, had she been 
 exercising reasonable and due care that is expected of people walking 
 along the streets of the city, and that the fall was her fault, as well 
 as that of the city, in that case your verdict should be for the de- 
 fendant.''® 
 
 § 1670. Contributory Negligence — Absent-Minded Driving, (a) If 
 the juiy find from the evidence that the plaintiff, knowing of the ob- 
 struction, was driving along the street in a careless, inattentive or 
 absent-minded manner, and by reason thereof drove against or upon 
 the obstruction, then the plaintiff was guiltj' of contributory negli- 
 gence, and the plaintiff cannot recover damages in this suit. 
 
 (b) The Court instructs you that before the plaintiff can recover, 
 you must be satisfied from the evidence that he was free from any 
 negligence on his part which contributed directly to the alleged in- 
 jury, and if, from all the evidence, you believe that the plaintiff's 
 negligence contributed to the happening of the accident and the caus- 
 ing of the alleged injury, then he cannot recover. 
 
 (c) In deciding upon the question of the plaintiff's negligence, 
 the jury are to consider the length of time that the plaintiff had 
 personally known that the obstruction existed in the street, and you 
 are also to take into consideration the number of times plaintiff had 
 driven along the street by and around this obstruction, and how fa- 
 miliar he was with the street, and that locality, and the other circum- 
 stances surrounding the case; and if, from all the circumstances, you 
 are of the opinion that, by the use of ordinary care, he could and 
 would have avoided this obstruction, then you would be justified in 
 finding that he was guilty of negligence contributing to the injury, 
 and in such case the plaintiff cannot recover. 
 
 96 — These instructions approved in Glading v. Philadelphia, 202 Pa. 
 324, 51 Atl. 886.
 
 1094 FORMS OF INSTRUCTIONS. [§ 1671. 
 
 (d) The jury are instructed that if the plaintiff had actual knowl- 
 edge of the existence of the obstruction complained of, and had 
 driven by the sanae many times, and if, from all the evidence, you be- 
 lieve that, through inattention on his part to the condition of the 
 street, or through carelessness in not watching where he was driving 
 he drove against or upon the obstruction, then he was guilty of con- 
 tributory negligence, and cannot recover. 
 
 (e) The juiy are instructed that if, from all the evidence, you be- 
 lieve that the plaintiff knew of this obstruction, and had driven by it 
 many times, and if you find from the evidence that there was abund- 
 ant room in the street which was free from obstruction so that, by the 
 use of ordinary care and diligence, he could have driven around the 
 obstruction with safety, then you are instructed that it was the duty 
 of the plaintiff to have avoided the obstruction, and, if he failed to 
 avoid it by mere lack of attention or want of care on his part, then 
 he was guilty of contributoiy negligence, and cannot recover."' 
 
 § 1671. Effect of Knowledge on Part of Person Using Sidewalk 
 That It Is Defective, (a) The court instructs the jury that it is the 
 general duty of the city to keep its sidewalks in a reasonably safe 
 condition for use. If you find that the plaintiff knew that the walk 
 in front of the M. jDroperty (the walk in question) on W. street had 
 planks out in places, had rotten stringers, and was shaky, or was in 
 any other way defective, the plaintiff might yet use the walk, provided 
 she did so with care and caution, rendered reasonably necessary by 
 her knowledge of such defects. If, while so using such walk, one side 
 of a board was suddenly raised by her companion stepping on the 
 other end, so that she fell and was injured, and was then exercising 
 due care in view of her knowledge of all defects, and that the de- 
 fendant knew of the defective condition of the walk, your finding 
 should be for the plaintiff.^^ 
 
 (b) You are instructed that ordinary and reasonable care re- 
 quired of plaintiff is that degree of care which might reasonably be 
 expected from an ordinarily prudent person under the circumstances 
 surrounding him at the time. If you should find from the evidence 
 that at the time and prior thereto plaintiff knew of the defective and 
 dangerous sidewalk and where it was located, he was required to use 
 more care than if he had not such knowledge, and if he neglected to 
 do so and such neglect contributed to the injury he cannot recover; 
 but if he did use more than he would be required to do in case he had 
 
 97 — Above approved, Omaha v. such defects,' is equivalent to in- 
 
 Ayer, 32 Neb. 375, 49 N. W. 445 (447). forming- the jury that appellee was 
 
 98 — Huntingburg v. First, 26 Ind. required in passing over the walk 
 
 App. 66, 53 N. E. 246 (248). known by her to be defective to 
 
 "We think it cannot be said that exercise a care proportioned to the 
 
 this in.struction leaves plaintiff's known danger to avoid injury. Nor 
 
 conduct to conjecture. The expres- do we think the instruction er- 
 
 sion 'plaintiff might yet use the roneous because it did not state 
 
 walk, provided she did so with care what facts might constitute con- 
 
 and caution, rendered reasonably tributory negligence." 
 necessary by her knowledge of
 
 §1671.J NEGLIGENCE— MUNICIPAL CORPORATIONS. 1095 
 
 no such knowledge and was injured by reason of defendant's neg- 
 lect, and no fault of plaintiff contributed to the injury, you should 
 find for the plaintiff.^^ 
 
 (c) The jury are instructed that a person has no right to know- 
 ingly expose himself to danger, and then recover damages for inju- 
 ries he might have avoided by the use of reasonable precaution ; and if 
 the jury believe, from the evidence, that the plaintiff, before and at the 
 time of the alleged injury, knew of the defect in the sidewalk, and in 
 going to his house on the night of the alleged injury could have taken 
 another and safe route, of equal, or nearly equal, distance, then the 
 jury have a right to consider his failure to take such other route, if 
 such there was, into consideration in determining whether the plain- 
 tiff was, at the time of the injury, exercising due care and caution 
 for his own safety.^^" 
 
 (d) Upon this branch of the case, you are further instructed 
 that, if you find, from the evidence, that the defendant was negligent 
 in permitting the sidewalk to remain in the condition in which you 
 find it was at the time the plaintiff fell, and that said walk was at 
 said time in a dangerous and unsafe condition for travel, and you 
 further find, from the evidence, that the plaintiff, at the time he at- 
 tempted to pass over the walk, well knew this fact, and that it was 
 imprudent for him to attempt to pass over it at the time he did at- 
 tempt to pass over it for any reason, and with this knowledge he still 
 persisted in passing over it, although there was another walk which 
 he might have taken going in the direction which he desired to go, 
 then his own negligence contributed to his injury, and he cannot re- 
 cover. That is, if you find, from the evidence, that the plaintiff 
 knew at the time he attempted to pass over the walk of the negligence 
 of the defendant, and that the walk was in a dangerous and unsafe 
 condition, and that it was imprudent for him to attempt to pass over 
 it in company with B. as the evidence shows he did attempt to pass 
 over it, and yet, notwithstanding this fact, and the knowledge he had 
 concerning the danger, he did attempt to pass over it, and was in- 
 jured in so doing, and you find that there was another walk which he 
 might have taken going in the direction he desired to go, which was 
 perfectly safe for travel, then he was negligent in so attempting to 
 pass over such walk and cannot recover.^ 
 
 99 — Lexington v. Fleharty, — 1 — Barnes v. Town of Marcus, 96 
 
 Neb. — , 104 N. W. 1056 (1058). Iowa 675, 65 N. W. 984 (985). 
 
 "It is contended that this instruc- "The instruction seems to be 
 tion is erroneous because, under the modeled upon, if not copied from, 
 evidence in the case, the jury one approved by this court in the 
 should have been instructed that case of Kendall v. Albia. 73 Iowa 
 the burden of proof was on the 241, 34 N. W. 833. It also finds sup- 
 plaintiff to establish the fact that port in the following-: Parkhill v. 
 he by his own act did not contrib- Town of Brighton, 61 Iowa 103, 15 
 ute to the injury. Such is not the N. W. 853; Walker v. Decatur Co., 
 law." 67 Iowa 307, 25 N. W. 256; Rice v. 
 
 100— Town of Elkhart v. Hitter. Des Moines, 40 Iowa 642; McGinty 
 
 66 Ind. 136. V. Keokuk, 66 Iowa 725, 24 N. W.
 
 1096 FORMS OP INSTRUCTIONS. [§ 1671. 
 
 (e) The jurj'' are instructed in regard to the question respecting 
 whether respondent exercised due care on the occasion in question, 
 that since 'She knew of the defect in the walk it was her duty to use 
 greater care than she would have been required to use to come up to 
 the standard of ordinary care in the absence of such knowledge.^ 
 
 (f) The court instructs the jury that, if you find as a fact that 
 the plaintiff knew that the sidewalk at the point where he alleges he 
 fell and was injured was out of repair and in bad condition, you may 
 take that fact into consideration in determining whether or not plain- 
 tiff was negligent; but such knowledge will not be a defense in this 
 action unless you find that the defect of which the plaintiff knew, if 
 any, was such a defect as to render the walk necessarily dangerous to 
 a person ordinarily careful.^ 
 
 (g) The jury are instructed that the testimony of the plaintiff dis- 
 closes that at the time of the alleged injury he was familiar with the 
 sidewalk at the place where he alleges that injury occurred, and was 
 familiar with the existence, nature and character, and extent of the 
 alleged defect therein, and that he frequently passed over and about 
 said defect shortly before the date on which the injury is alleged to 
 have been sustained. You are further instructed that, in the light of 
 this testimony on the part of the plaintiff herein, the plaintiff cannot 
 recover in this case unless he has proven to you by a prei^onderance 
 of the evidence that at the time of or immediately before receiving 
 the injury, if he did receive an injury, his attention was momentarily 
 attracted elsewhere and in this moment of forgetfulness, he received 
 the injury, or that the defect, if any, was so obscured, hidden, or cov- 
 ered, by darkness or otherwise that he was deceived, mistaken, or 
 misled, and while so mistaken, deceived or misled, and while in the 
 exercise of ordinary care, he received the injury of which he com- 
 plains.* 
 
 (h) The jury are instructed that the plaintiff, in the absence of 
 any knowledge or inforaiation as to the defective condition of the 
 walk, if it was defective, had the right to assume that defendant had 
 
 506; Hartman v. Muscatine, 70 The other objections urged against 
 
 Iowa 511, 30 N. W. 859. But, aside the instruction are fully met by 
 
 from these authorities, we do not the authorities cited. It is well 
 
 think the use of the adverb 'well,' settled that all the matters referred 
 
 taken in connection with what fol- to in the instruction must be 
 
 lows, made the instruction objec- shown and concur before it can be 
 
 tionable. It means no more than said as a matter of law that a 
 
 'fully' as here used; and the dis- plaintiff is guilty of contributory 
 
 tinction between 'known' and 'well negligence. Ross v. Davenport, 66 
 
 or fully known' is rather too re- Iowa 548, 24 N. W. 47; Baldwin v. 
 
 fined for a court to consider the Railroad Co., 63 Iowa 210, 18 N. W. 
 
 use of one or the other a defect 884; Parkhill v. Brighton, supra." 
 
 which will vitiate an instruction. 2— Lyon v. Grand Rapids, 121 
 
 The case of Gnlpin v. Wilson, 40 Wis. 609, 99 N. W. 311 (317). 
 
 Iowa 91, is quite in point. In that 3— Perrette v. Kansas City, 162 
 
 case it is held that there is no ma- Mo. 238, 62 S. W. 448 (449). 
 
 terial difference between the words 4— So. Omaha v. Taylor, 4 Neb. 
 
 'piloven' and 'fully, conclusively (unof.) 757, 96 N. W. 209 (210). 
 or satisfactorily proven.'
 
 §1672.] NEGLIGENCE— MUNICIPAL CORPORATIONS. 1097 
 
 exercised ordinary care to keep the same in a reasonably safe condi- 
 tion. If, however, you find he did know or had notice of the defective 
 condition of the walk, then it will be for you to say, under all the 
 facts and circumstances, whether he was negligent in going upon it.^ 
 
 (i) The plaintiff admits that she knew that the sidewalk in question 
 was in a defective condition, and had known it for some time previous. 
 A person passing over a sidewalk known to be in a defective and 
 dangerous condition must use greater care and caution than if she 
 were ignorant thereof.^ 
 
 § 1672. Passing Over Defective Walk Not Necessarily Contribu- 
 tory Negligence, (a) The court instructs you that you are to con- 
 sider all the facts, including the condition of the sidewalk, the facts 
 which "were within the knowledge of the plaintiff in relation thereto, 
 the character and nature of the defect in the walk which was the 
 direct cause of the injury, the fact that the plaintiff was passing 
 over the walk on a bicycle, and the manner in which he sought to 
 pass, and then determine whether, under all the circumstances, he was 
 in the exercise of such care and prudence as would have been used 
 and exercised by a man of ordinary care and prudence under the same 
 circumstances and conditions. 
 
 (b) I charge you, gentlemen of the jury, that prior knowledge of 
 a defect in a sidewalk by one who is injured is not necessarily proof 
 of contributoiy negligence; and if you believe from the evidence in 
 this case that the plaintiff had knowledge that the sidewalk was out 
 of repair, and even dangerous, yet because of that fact alone he would 
 not, therefore, be bound to forego travel on such sidewalk. 
 
 (c) The real fact for you to ascertain as bearing upon the ques- 
 tion of contributory negligence, if any you so find, is this: Did the 
 plaintiff, by his own fault or negligence, contribute directly to pro- 
 duce the injury? Could he, by ordinary prudence, have prevented the 
 injuiy? And if you find that he was guilty of contributory negli- 
 gence, then he cannot recover, and your verdict must be for the de- 
 fendant.'^ 
 
 § 1673. Contributory Negligence of Person Falling Over Wire in 
 Street. If under all the circumstances surrounding him (plaintiff), 
 he could readily have seen, and as an ordinarily prudent and careful 
 man ought to have seen, the wire over which he claims to have fal- 
 len, then he was guilty of contributory negligence, and he can re- 
 cover nothing in this case.^ 
 
 5 — Hill V. Glenwood, 124 Iowa 479 "It is scarcely necessary to cite 
 
 (483), 100 N. W. 522 (524). any authorities in support of this 
 
 6 — Collins v. Janesville, HI Wis. instruction. But see, Cressy v. 
 
 348, 83 N. W. 695 (696). Postville, 59 Iowa 62. 12 N. W. 757; 
 
 7— Above approved in Gagnier v. Tuffee v. State Center. 57 Iowa 538, 
 
 Fargo, 12 No. Dak. 219, 96 N. W. 11 N. W. 1; Muns-pr v. Citv. 56 
 
 841 (842). Iowa 216, 9 N. "W. 192: Langham- 
 
 8— Buchholtz V. Town of Rad- mer v. City, 99 Iowa 295, 68 N. "W. 
 
 cliffe, 129 Iowa 27, 105 N. W. 336 688." 
 (337).
 
 1098 FORMS OF INSTRUCTIONS. [§ 1674 
 
 § 1674. Placing Oneself in Position of Danger. If the plaintiff 
 placed himself in a position of danger, when he might have avoided 
 it, and while there received the injnry of which he complains, he was 
 guilty of negligence, although the danger may have been caused by 
 the negligence of the town authorities.^ 
 
 § 1675. Burden of Proof as to Contributory Negligence of Plain- 
 tiff — States Holding that It Rests on Defendant, (a) By contribu- 
 tory negligence is meant negligence of the plaintiff contributing to the 
 injury complained of. Contributory negligence is a defense, and if it 
 is shown by the evidence to exist, the plaintiff cannot recover. The 
 burden of proving contributory negligence is on the defendant, but 
 it may arise in the whole evidence.^" 
 
 (b) If you find that the city negligently suffered the hole to be, 
 and remain, in the street at the time of the accident, and that plain- 
 tiff had no actual knowledge of the existence before the happening of 
 the accident, then he will be entitled to a verdict unless it has been 
 proven by a fair preponderance of the evidence that he was negli- 
 gent himself in not seeing the hole in time to avoid it. And the bur- 
 den of proof is upon the city on this point to satisfy the jury that he 
 was not exercising due care for his own safety, and that such conduct 
 on his part contributed towards the happening of the accident. 
 
 (c) The defendant insists that the plaintiff himself was guilty of 
 negligence in not avoiding the hole. The burden of proof is on the 
 defendant to establish by a fair preponderance of all the evidence in 
 the case that plaintiff was guilty of negligence contributing to his 
 injury." 
 
 §1676. Same Subject — States Holding that Burden of Proof Is on 
 Plaintiff. The burden of proof is upon the plaintiff to satisfy yoii, by 
 a preponderance of the testimony, of all the material allegations of his 
 petition not admitted by the answer, including the allegation that he 
 used due care and diligence, and was not negligent in any such man- 
 ner as to contribute substantially or directly to his injury.^^ 
 
 § 1677. Negligence of Driver. The law is, that the driver of a 
 private conveyance is the agent or servant of the person riding in 
 such conveyance, provided such driver is employed by him or subject 
 to his control, and if such person, while riding along a public high- 
 way or street, is injured, in consequence of obstruction or defects 
 negligently permitted to remain in the street or highway, and the 
 driver is guilty of a want of ordinary care and caution, and his negli- 
 gence materially contributes to such injury, then the person injured 
 cannot recover, as against the city, for the injury thus received. ^^ 
 
 9— Lynch v. "Waldwick, 123 Wis. R. Co. v. Peyton, 157 Ind. 692, 61 
 
 351, 101 N. W. 925 (926). N. E. 722." 
 
 10 — Town of Sellerstaurg v. Ford, 11— Indianapolis v. Mullally, — 
 
 — Ind. App. — , 79 N. E. 220 (222). Ind. App. — , 77 N. E. 1132 (1134). 
 
 "This instruction is correct. The 12— Omaha v. Ayer, 32 Neb. 375, 
 
 act of 1899 (Acts 1899, p. 58, c. 41) 49 N. W. 445 (446). 
 
 puts the burden of contributory 13 — Prideaux v. Mineral Point, 43 
 
 negligence on the defendant. So. Wis. 513; Lockhart v. Lichtea- 
 
 thaler, 46 Penn. St. 151.
 
 CHAPTER LXVI. 
 
 NEGLIGENCE— PUBLIC HIGHWAYS. 
 See Erroneous Instructions, same chapter head. Vol. III. 
 
 § 1678. Highway — Obstruction by 
 construction of fence across 
 it. 
 
 § 1679. Obstruction of public way by 
 ashes or cinders. 
 
 § 1680. Obstruction of public way by 
 pile of cross-ties. 
 
 § 1681. Collision on the highway. 
 
 § 1682. Automobile running at great- 
 er speed than statutory 
 rate. 
 
 § 1683. Snow and ice — Constructing 
 building near highway so 
 that snow and ice endanger 
 travelers on highway. 
 
 § 1684. Sidewalk space— Liability of 
 person making excavation. 
 
 § 1685. Sidewalk — Injury through 
 falling into manhole — Ordi- 
 nary care — Contributory 
 negligence. 
 
 § 1686. Sidewalks — Liability for 
 opening used for raising 
 and lowering baggage and 
 protected by bar of gas- 
 pipe. 
 
 § 1687. Injury to child through bar 
 of iron on recklessly driven 
 wagon. 
 
 § 1688. Highway — Barbed wire caus- 
 ing injury to horse — Con- 
 tributory negligence of 
 plaintiff. 
 
 § 16S9. Horses — Allowing same to 
 stand unhitched — Injury 
 from runaway horses. 
 
 § 1.678. Highway— Obstruction of by Construction of Fence Across 
 It. A failure to exercise such care and prudence in performing an 
 act as an ordinarilj- careful and prudent man would exercise under 
 the same or like circumstances and conditions is ordinarily negli- 
 gence; and in this case, if you find from the evidence that the de- 
 fendant, the A. company, in constructing said fence on said land and 
 across said road or passway, if it did so, failed, under the facts and 
 circumstances in evidence before you, to exercise such care and pru- 
 dence as an ordinarily careful and prudent man would have exercised 
 under the same or like circumstances, then such failure on defendant's 
 part would constitute negligence.^ 
 
 § 1679. Obstruction of Public Way by Ashes or Cinders. The 
 court instructs the jury in this case that if you believe, from the 
 evidence, that the defendant placed ashes or cinders on the street 
 where the injuiy complained of occurred, as charged in the declara- 
 tion, and that such act was negligence on the part of the defendant, 
 as charged in the declaration, and that by reason thereof the de- 
 ceased was injured and killed, as charged in the declaration, and that 
 it might have been reasonably foreseen that some such injury as 
 that received b}'' said deceased would be likely to occur as the result 
 of such negligence, and that the deceased was at the time exercising 
 
 1 — Abilene C. O. Co. v. Briscoe, 27 Tex. Civ. App. 157, G6 S. W. 315 (316). 
 
 1099
 
 1100 FORMS OF INSTRUCTIONS. [§ 1680. 
 
 for his own safety reasonable care and diligence for one of his years 
 and capacity, then you will find for the jDlaintiff.- 
 
 § 1680. Obstruction of Public Way by Pile of Cross-ties. The 
 court further instructs the jury, that, although they might find that 
 the pile of cross-ties was an obstruction there in the street, the plain- 
 tiff's cause of action was not founded uj^on that primarily, and that 
 befo3;e they could say that the intestate's injury and death were 
 caused by the negligence of the defendant, they should inquire wheth- 
 er or not the defendant knew that the pile of cross-ties in the street 
 was a common resort of little boys of tender years in that neighbor- 
 hood to play, and the burden was on the plaintiff to show that the 
 railroad company knew that fact, and that if the defendant did not 
 know it, then they should answer the issue as to the defendant's 
 negligence ''No. "^ 
 
 § 1681. Collision on the Highway, (a) The jury are instructed 
 as a matter of law, that the rights of footmen and horsemen, on a 
 public highway, are equal, and the law requires both parties to use 
 all reasonably prudent precautions to avoid accident and damage to 
 themselves or others. 
 
 (b) If the jury believe, from the evidence, that at the time of 
 the alleged injury the plaintiff was walking along one of the public 
 streets of the city of C, with his back towards the said S. W. and at 
 the same time the said S. W. was riding a horse on the same street, 
 in the direction of the plaintiff, and that the said S. W, saw, or by 
 the exercise of "reasonable care and caution could have seen, the 
 plaintiff in season to have stopped his horse, altered its course, or in 
 some way avoided the accident; and if the jury further believe, from 
 the evidence, that the said S. W. did not do so, but carelessly and 
 negligently permitted the horse which he was riding to run against 
 the plaintiff and knock him down, and thereby injured him, as charged 
 in the declaration, this would be negligence on the part of S. W. ; 
 and if the jury further believe, from the evidence, that the said S. 
 W. was, at the time, in the employ of the said defendants, and pur- 
 suing their business, then the defendants are liable for such negli- 
 gence ; provided, the jury further believe, from the evidence, that the 
 plaintiff was himself without fault or negligence which contributed 
 to the injury. And was at the time exercising ordinary care to avoid 
 personal injury. 
 
 (c) Even though the juiy should believe, from the evidence, that 
 the plaintiff was at first guilty of some degree of negligence, still, if 
 the jury further believe from the evidence that the driver of the 
 wagon actually saw the plaintiff and had a full view of the situation 
 before the accident and by the exercise of reasonable and ordinary 
 care could have avoided or prevented the injury, and he then failed to 
 
 2— Chi. & A. R. R. Co. v. Nelson, 3— Kramer v. So. Ry. Co., 127 N. 
 153 111. 89 (92), 38 N. E. 560. C 328, 37 S. E. 468 (469), 52 L. R. A. 
 
 359.
 
 § 1682.] NEGLIGENCE— PUBLIC HIGHWAYS. 1101 
 
 exercise such care and, in consequence of the want of such reasonable 
 and ordinary care on his part, the plaintiff received the injury com- 
 plained of, then the defendant is guilty. 
 
 (d) A person about to cross a street in a city, in which there is 
 an ordinance against fast driving, has a right to presume, if he has 
 no kno\\ ledge or notice to the contrary, that others will obsei-ve and 
 conform to the ordinance in driving on said street, and it would not 
 be negligence on his part in such a case to act on the presumption 
 that, in attempting to cross, he will not be exposed to a danger which 
 could only arise through a disregard of the ordinance by others."* 
 
 § 1682. Automobile — Running at Greater Speed than Statutory 
 Rate. The court instructs you that in an action brought to recover 
 damages, either to the person or property, caused by running an auto- 
 mobile propelled by mechanical power in the public highway at a 
 greater rate of speed than fifteen miles per hour, the plaintiff is 
 deemed to have made out a prima facie case by showing the fact 
 that he or she has been injured, and that the person running such 
 automobile, either by himself or his agent, was at the time of the in- 
 jury running the same at a speed in excess of fifteen miles per hour.^ 
 
 § 1683. Snow and Ice — Constructing Building Near Highway so 
 that Snow and Ice Endanger Travelers on Highway. The defendant 
 has no right to erect or maintain a building, if it be of no unusual 
 construction, so near the street that snow or ice will fall from it, in 
 
 4 — Baker v. Pendergast, 32 Ohio lays down a rule in the words of 
 
 St. 494. the law itself. Kellyville Coal Co. 
 
 5— Ward v. Meredith, 220 111. 66, v. Strine, 217 111. 516, 75 N. E. 375; 
 
 77 N. E. 118. Donk Bros. C. & C. Co. v. Peton! 
 
 "It is claimed that this instruc- 192 111. 41, 61 N. E. 330; Mount Olive 
 tion is vicious and misleading for C. Co. v. Rademacher, 190 id. 538, 
 the reason that it ignores the ques- 60 N. E. 888; Duncan v. People, 134 
 tion as to whether or not the in- id. 110, 24 N. E. 765. But it is in- 
 juries sustained were occasioned by sisted that this instruction is not 
 the running of the automobile in in the exact words of the statute 
 excess of fifteen miles per hour, because it contains the words 
 Section 4 of chapter 121 (Kurd's 'either by himself or his agent.' 
 Stat. 1903, p. 1630). provides that in The addition of these words in no 
 any action brought to recover dam- way changes the legal sense or 
 ages, either to person or property, meaning of the instruction. The 
 caused by running an automobile contention that the instruction ig- 
 at a greater rate of speed than fif- nores the question whether the in- 
 teen miles per hour, the plaintiff juries sustained were occasioned 
 shall be deemed to have made out by the running of the automobile 
 a prima facie case by showing the at excessive speed cannot be sus- 
 fact of such injury and that such tained. The first part is: 'The court 
 person driving such automobile instructs you that in any action 
 was at the time of the injury run- brought to recover damages, either 
 ning the same at a speed in excess to the person or property, caused 
 of fifteen miles per hour. This sec- by running an automobile pro- 
 tion of the stntute and the fore- pelled by Tnechanical power in a 
 going instruction are in substan- public highway at a greater rate 
 tially the same language. We have of speed than fifteen miles per 
 held in many cases that no error is hour,' etc. This language is ex- 
 committed by giving an instruc- plicit, and tells the jury that the 
 tion in the substantial language of injury sustained must be caused 
 a statute; that the instruction must by running the automobile at the 
 be regarded as sufficient when it prohibited rate of speed."
 
 1102 FORMS OF INSTRUCTIONS. [§ 1684. 
 
 the ordinary course of things, so as to endanger travelers in passing; 
 and if the building in question was so constructed and maintained, 
 the defendant would be liable without further proof of negligence." 
 
 § 1684. Sidewalk Space — Liability of Person Making Excavation. 
 The want of authority to make an excavation, and operate an elevator 
 in the sidewalk space where the accident happened, would not render 
 the defendant liable therefor without negligence in the method of con- 
 struction or condition in which the bar or railing was suffered to re- 
 main.'^ 
 
 § 1685. Sidewalk — ^Injury through Falling into Manhole — Ordinary 
 Care — Contributory Negligence, (a) The plaintiff in this case must 
 prove two things by a preponderance of the evidence. He must prove, 
 first, that the defendant was guilty of negligence. That is the first 
 thing. He must prove, secondly, that he himself was not guilty of neg- 
 ligence, — that the plaintiff was not guilty of any negligence on his part 
 which contributed to the injury. That we call, in law, contributory 
 negligence ; and when I speak of contributory negligence, you will know 
 I mean that the plaintiff was guilty of contributoiy negligence. The 
 burden of proof is on the plaintiff to show boish of these propositions, 
 and unless he has shown, and does in every ^f^tion of damages show, 
 that, your verdict must be for the defendant. 
 
 (b) The care and prudence which the defendant was bound to ex- 
 ercise must be in proportion to the danger to the passersby from the 
 work, and the injury which was liable to happen to passersby from 
 disregard of such care and prudence. It follows that the care and 
 prudence which an ordinarily prudent man would exercise is a rela^ 
 tive term. It depends on the danger which would happen to a passer- 
 by from a disregard of care and prudence. 
 
 (c) So the danger to passersby is an important element for you 
 to consider in estimating what is reasonable care. It is the care 
 which an ordinarily prudent and careful man would have exercised 
 under the circumstances having regard to the work which was neces- 
 sary to be done, and the danger from not observing that care. 
 
 6 — Shepard v. Creamer, 160 Mass. ing from the roof upon those law- 
 
 496, 36 N. E. 475. fully on _ the adjoining highway, 
 
 "The exception to the instruc- then the instruction was too favor- 
 
 tion to the jury cannot be sus- able to him. If the maintenance 
 
 tained. If the ground of liability is of the building as constructed was, 
 
 negligence, as the defendant con- as matter of law, negligence, the 
 
 tends it is, then it was negligence fact that the roof was constructed 
 
 to maintain a building so near the in the usual manner, and like that 
 
 street and so constructed that, in which has been used for many 
 
 the ordinary course of things, snow years on a large portion of the 
 
 ■or ice was liable to fall from the buildings on streets in Salem, 
 
 roof upon travelers on the adjoin- would not help the defendant. Hill 
 
 ing highway. Smethurst v. Barton v. Winsor, 118 Mass. 259; Maguire 
 
 Sq. Church, 148 Mass. 261, 19 N. E. v. Railroad Co., 115 Mass. 239; 
 
 387; 2 L. R. A. 695, 12 Am. St. Rep. Hinckley v. Barnstable, 109 Mass. 
 
 .'550; Shipley v. Fifty Associates, 106 126." 
 
 Mass. 194, 8 Am. Rep. 318. If the 7— Hotel Ass'n v. Walters, 23 Neb. 
 
 defendant was bound, at his peril, 380, 36 N. W. 561 (564). 
 to prevent snow and ice from fall-
 
 §1685.] NEGLIGENCE— PUBLIC HIGHWAYS. 1103 
 
 (d) If you find the defendant did, at the time of the injuiy, exer- 
 cise the care and precaution to prevent injury to passersby which an 
 ordinarily prudent and careful man would have used, in view of all 
 the circumstances, and in view of probable injuiy, then your verdict 
 should be for the defendant. But if you find that it was not exercis- 
 ing reasonable care, — care and prudence which a reasonable man 
 would have exercised, — ha\dng in view the danger to passersby, then 
 you will come to consider the other question. 
 
 (e) You remember the other question is: Was the plaintiff, or 
 did the plaintiff himself exercise the care and prudence which an 
 ordinarily prudent man would in passing along that street? What was 
 the duty of the plaintiff? A person traveling on the sidewalk in this 
 city has a right to expect that the walk will be in a condition reason- 
 ably safe and fit for travel. I do not say absolutely safe, so as to 
 prevent all possibility of accident. There are many miles of sidewalk 
 in this city, and many thousand owners of lots, who are constantly 
 repairing sidewalks, and pulling them up for one cause or another. 
 So that to my mind, it is absurd to say that the law requires them to 
 be in a condition of absolute safety. But a traveler on a sidewalk has 
 a right to expect that the walk will be in a condition reasonably safe 
 for travel. Now, it is the plaintiff's duty on his part to exercise that 
 care and pmdence in passing along the sidewalk which an ordinarily 
 prudent man would have used under those circumstances. Generally 
 speaking, it was his duty to use his eyes and look ahead of him; but 
 I do not say, gentlemen of the jury, that it is his duty to keep his 
 eyes on the walk in front of him all the time. As I said, a passenger 
 has a right to expect that the walk is in a condition reasonably safe 
 and fit for travel, and if his attention is attracted for a moment or 
 two to something going on in the street, he has a right to expect that 
 he can continue to go forward a short distance with safety; but he 
 must exercise the care and prudence which an ordinarilj'- cai'eful and 
 prudent man would in passing along the street. And I repeat, I do not 
 say that a man must keep his eyes on the walk all the time; and, as 
 I said before, he has a right to presume that the walk is reasonably 
 safe for travel, and if he turns his eyes to one side or the other, or his 
 attention is attracted by one thing or the other, he has a right to 
 presume, — he has a right to be attracted to one thing or the other 
 for a short time, and presume he can walk forward in safety. 
 
 (f) Unless the jury find both of the following facts, viz.: (1) That 
 the defendant was guilty of negligence, and (2) that plaintiff was 
 not guilty of negligence, — ^your verdict will be for the defendant. The 
 burden of proof in this case is upon the plaintiff, and he must prove, 
 by a preponderance of evidence, both the negligence of the defendant 
 and the lack of negligence or the exercise of due care on his part. Al- 
 though a foot passenger on the sidewalk is not required to keep his 
 eyes constantly on the walk before him, yet he must observe his gen- 
 eral course on the street; and if he meets with an accident which 
 could have been avoided by the exercise of ordinary care and prudence
 
 1104 FORMS OF INSTRUCTIONS. [§ 1686. 
 
 in observing his general course, he is guilty of contributory negli- 
 genee.® 
 
 § 1686. Sidewalks — Liability for Opening Used for Raising and 
 Lowering Baggage and Protected by Bar of Gas-pipe, (a) It was 
 the duty of the defendant to use and observe reasonable care and 
 caution in placing and securing the bar in question, and for pre- 
 venting injuries or accidents to persons who might be at or near the 
 same. 
 
 (b) It was likewise the duty of plaintiff to use reasonable eare 
 and caution to avoid an injui-y or accident to himself while at and 
 near the bar and place in question. 
 
 (c) If the accident occurred solely in consequence of negligence or 
 want of reasonable eare or precaution on the part of defendant, it is 
 liable for such injuries to plaintiff as resulted therefrom.^ 
 
 § 1687. Injury to Child through Bar of Iron on Recklessly Driven 
 Wagon. The court does not instruct you as a matter of law that 
 the employe of the defendant was or was not negligent in the manner 
 of his placing or loading said iron in the wagon, and in carrying said 
 iron therein, but will leave the question to you as reasonable, fair- 
 minded men to determine the question whether at the time and place 
 where the plaintiff was injured, if you find she was injured, the em- 
 ploye of the defendant, taking into consideration all the facts and 
 circumstances of the case, was or was not guilty of negligence in the 
 manner of loading and caiTying the iron in controversy.^*^ 
 
 § 1688. Highway — Barbed Wire Causing Injury to Horse — Con- 
 tributory Negligence of Plaintiff, (a) In order to entitle the plain- 
 tiff to recover, the plaintiff must establish that the defendant was 
 negligent in the acts complained of, and that the accident complained 
 of, and the damages sustained by reason thereof, were not contributed 
 to, in any way or manner, by any negligent or careless act of the 
 plaintiff. It would be negligent for the defendant to place in the 
 highway, in close proximity to the traveled and beaten track, a 
 barbed-wire fence, which might occasion damage to travelers by 
 reason of the ordinary casualties that travelers are liable to encounter 
 while traveling said highway; and it would devolve upon the plaintiff, 
 
 8— Le Beau v. Tel. & Tel. Const. Moore v. Richmond, 85 Va. 542, 8 
 
 Co 109 Mich. 302, 67 N. W. 339 S. E. 387; Walker v. Reidsville, 96 
 
 (341). N. C. 382, 2 S. E. 74, and cases 
 
 "We think the charge of the there cited; City of Plymouth v. 
 
 trial judge was a fair statement of Milner, 117 Ind. 324. 20 N. E. 235; 
 
 the law of negligence as applicable Kelly v. Doody, 116 N. Y. 581, 22 
 
 to the facts in this case. See But- N. E. 1084; McLaury v. McGregor, 
 
 terfifld V. Forrester, 11 East. 60; 54 Iowa 171, 7 N. W. 91; 2 Dill. 
 
 Abernethy v. Van Buron Tp., 52 Mun. Corp. para. 1020, and note; 
 
 Mich 383. 18 N. W. 116; McCool v. Beach, Pub. Corp. para. 1537." 
 
 Gr Rapids, 58 Mich. 41. 24 N. W. 9— Hotel Ass'n v. Walters, 23 
 
 631 55 Am. Rep. 655; Hutchins v. Neb. 380, 36 N. W. 561 (564). 
 
 PriVstly. etc., Co., 61 Mich. 252. 28 10— Van Camp H. & I. Co. v. 
 
 N W 85- Wakeham v. St. Clnir O'Rrien. 28 Ind. App. 152, 62 N. E. 
 
 Tp., 91 Mich. 15, 51 N. W. 696; 464 (466).
 
 § 1689.] NEGLIGENCE— PUBLIC HIGHWAYS. 1105 
 
 while traveling upon said highway, to use ordinary care in driving 
 and managing his horse, and avoid accidents that might happen, and 
 if the horse driven by the plaintiff would be found, from the evidence, 
 to be spirited and liable to fright, then it would devolve upon the 
 plaintiff, and he would be held to use a gi'eater degree of care than 
 otheiTvise. 
 
 (b) If you find from the evidence that the plaintiff's horse, while 
 being driven along the highway in a careful and prudent manner, be- 
 came frightened at objects near the road, and shied from his course, 
 and if you further find from the evidence that the horse, in so shying, 
 acted as a horse of reasonable docility and training might act under 
 the same circumstances, then the fact of the horse so shying would not 
 defeat the plaintiff's right of recovery. The occuiTence must be at- 
 tinbuted to one of the casualties of the road. It would be otherwise, 
 however, if you would conclude from the evidence that the circum- 
 stances were not such as to frighten a horse of reasonable docility 
 and training, and that the shj-ing of plaintiff's horse was caused by a 
 previously acquired vicious habit. 
 
 (c) If a horse driven with due care upon a highway becomes, by 
 reason of fright, actually uncontrollable, so that his driver cannot 
 stop him or direct his course, or exercise or regain control over his 
 movements, and in this condition comes upon a fence in the highway, 
 by which an injuiy is occasioned, the owner of the fence is not liable, 
 unless it appears that the accident would have occurred if the horse 
 had not been so uncontrollable ; but a horse is not to be considered un- 
 controllable in this sense, if he merely shies or starts, or is momenta- 
 rily not controlled by his driver.^^ 
 
 § 1689. Horses — Allowing Same to Stand Unhitched — Injury fram 
 Runaway Horses, (a) The court instructs the jury that the plaintiff 
 claims that her injuries were occasioned by the following negligence 
 on the part of the defendant; that is to say, that the defendant negli- 
 gently left a team of horses owned by him unhitched and unguarded, 
 and negligently permitted them to run away and over plaintiff by 
 reason of which she was greatly injured. These allegations the de- 
 fendant has denied in his answer. Defendant has also alleged by 
 way of an affirmative defense that whatever injuries plaintiff sus- 
 tained by his horses were caused in whole or in part by her own con- 
 tributory negligence. The mere fact that the horses ran away, and 
 the plaintiff was run over and severely injured, do not of themselves 
 make defendant liable in this case. The gist of the action is the 
 charge that the defendant failed to exercise ordinary care, diligence 
 and watchfulness thereby causing these injuries. The burden of es- 
 tablishing this charge is upon the plaintiff, and if the evidence bear- 
 ing on this proposition does not preponderate in favor of the plain- 
 tiff, then the jury will find for the defendant. By "a preponderance 
 
 11 — These instructions approved in Young v. Sago, 42 Neb. 37, 60 
 N. W. 313 (315). 
 70
 
 1106 FORMS OF INSTRUCTIONS. [§ 1689. 
 
 of evidence" is meant that the evidence in support of the proposition 
 in your judgment, outweighs that to the contrary. The burden of 
 proving any negligence of the plaintiff or of proving the facts which 
 under these instructions are defined as constituting such negligence 
 is ujoon the defendant to establish the truth of them to your satis- 
 faction by a preponderance of evidence in regard to them. 
 
 (b) The court instructs the jury that if you find and believe from 
 
 the evidence that on the day of January, 19—, D., 0. and T. 
 
 streets were open and public streets in the city of S., and if you 
 further find and believe from the evidence that defendant was on 
 
 said date, Januaiy , 19 — , the owner and in charge of a span of 
 
 horses attached to a sleigh, and that he negligently left said horses 
 standing on said D. street, and walked away from said horses, and 
 that said horses were unhitched, unguarded and unattended, and that 
 said horses ran away and then upon and over plaintiff at the inter- 
 section of said T. and 0. streets, and that plaintiff received the in- 
 juries comi^lained of directly thereby, and if you further find and be- 
 lieve from the evidence that the plaintiff was at said time exercising 
 ordinary care for her own protection, then the defendant is liable in 
 this ease, and your verdict should be for the plaintiff. 
 
 (c) If you find and believe from the evidence that the plaintiff 
 was struck by the runaway horses while she was crossing the street, 
 and that she stepped onto the street or crossing, and in front of 
 said horses without exercising ordinary care in looking or listening 
 for the approach of horses or vehicles, and if you believe that if she 
 had exercised such ordinary care, she could have seen or heard the 
 team in time to have prevented the collision and gotten away, then 
 your verdict should be for the defendant, althoug'h you may believe 
 he was guilty of negligence in allowing the team to run away. It is 
 the duty of a person crossing a public street in the city to exercise 
 ordinary care and prudence in avoiding the danger of collision with 
 horses on such street, and you are to determine from all the evidence 
 in the case whether or not she exercised such ordinary care. 
 
 (d) The court instructs the jury that with respect to the allega- 
 tions of contributory negligence set up in the defendant's answer, 
 the burden of proof rests upon the defendant; that is, the defendant 
 must prove to your satisfaction, by a preponderance of evidence that 
 the plaintiff did not exercise ordinary care for her own protection. By 
 "preponderance of evidence" as used in these instructions, is not 
 necessarily meant the greater number of witnesses, but the greater 
 weight of the evidence; that is, that the evidence in support of the 
 proposition to be proved, is, in your judgment, of more weight than 
 the evidence against it. By ''ordinary care" as used in these instvuc- 
 tions, is meant that degree of care which would be used by a person 
 of ordinary prudence under like or similar circumstances. By "neg- 
 ligence" as used in these instructions is meant the absence of ordi- 
 nary care under the circumstances shown in evidence.
 
 §1689.] NEJGLIGENCE— PUBLIC HIGHWAYS. 1107 
 
 (e) The court instructs the jury that the defendant was not 
 bound, under all circumstances, to prevent his horses from running- 
 away; and unless you loelieve that he failed to exercise that degree 
 of care and jDrudence which an ordinarily careful and prudent person 
 would have exercised under like cii'cumstances, then your verdict will 
 be for the defendant. 
 
 (f) The court instructs the jury that if you believe from the evi- 
 dence that the injuries of plaintiff were the result of mere accident 
 or casualty, and not of negligence on the part of the defendant, then 
 your verdict will be for the defendant. 
 
 (g) Although the juiy may believe from the evidence that de- 
 fendant was guilty of negligence in failing to gnaard his said horses so 
 as to prevent them from running away, j^et if you also believe from 
 the evidence that the plaintiff was also negligent in failing to dis- 
 cover the approach of said horses in time to have kept out of their 
 way, or to have gotten out of their way if in it, then your verdict 
 will be for the defendant. ^^ 
 
 12— The above series of instruc- anagh, 97 Mo. App. 362, 71 S. W. 
 lions approved in Groom v. Kav- 362.
 
 CHAPTER LXVII. 
 
 NEGLIGENCE— COMMON CARRIERS. 
 
 See Erroneous Instructions, same chapter head. Vol. III. 
 
 WHO IS A COMMON CARRIER. 
 
 § 1690. Who is a common carrier of 
 goods. 
 
 § 1691. Express companies and rail- 
 way companies are com- 
 mon carriers. 
 
 DELIVERY TO THE CARRIER. 
 
 §1692. When the liability of the 
 carrier commences. 
 
 § 1693. Delivery to cari'ier may be 
 from owner or from an- 
 other carrier. 
 
 § 1694. Written receipt not re- 
 quired. 
 
 § 1695. What constitutes a through 
 contract of carriage. 
 
 1696. 
 
 1697. 
 
 BILL OF LADING. 
 
 Bill of lading implies what 
 contract. 
 
 Receipt in bill of lading 
 prima facie evidence of 
 goods in good order. 
 
 1698. Same subject— Burden of 
 
 proof on defendants to 
 show fraud. 
 
 1699. Bill of lading not conclusive 
 
 of condition of the goods. 
 
 CONNECTING CARRIERS. 
 
 1700. 
 
 Delivery of goods to carrier 
 without directions for car- 
 riage beyond carrier's own 
 line. * 
 
 § 1701. Carrier ordinarily liable 
 only for losses and in- 
 juries occurring on his 
 own line. 
 
 5 1702. Same subject — Rule In Illi- 
 nois. 
 
 § 1703. Burden of proof on carrier 
 to prove no negligence 
 where injury shown to 
 have occurred on its line. 
 
 5 1704. Pnrtnership between com- 
 mon carriers. 
 
 8 non. First carrier cannot relieve 
 him.self of liability as com- 
 mon cairlor by warehous- 
 ing goods without deliv- 
 ery to next carrier. 
 
 1108 
 
 COMMON carrier's LIABILITY AND 
 EXCEPTIONS THERETO. 
 
 § 1706. Liability of common carriers 
 
 of goods. 
 § 1707. Liable for all loss, except by 
 
 act of God, etc. 
 § 1708. What is meant by the act 
 
 of God. 
 § 1709. Carrier must use reasonable 
 
 care to avoid injury by 
 
 act of God. 
 
 LIMITATION OF CARRIER'S LIABILIfl'Y 
 BY CONTRACT. 
 
 § 1710. Legal duty of carriers im- 
 posed by law. 
 
 § 1711. Liability not limited by no- 
 tice. 
 
 § 1712. Carriers can only restrict 
 their common law liabili- 
 ties. 
 
 § 1713. Shipper will be presumed to 
 agree to exemption clause, 
 when. 
 
 § 1714. Same subject — Rule in Illi- 
 nois — Shipper's assent 
 must be shown. 
 
 § 1715. Same subject — Rule in Illi- 
 nois — Acceptance of re- 
 ceipt with full under- 
 standing of conditions. 
 
 §1716. Shipper not bound by notice 
 printed on receipt. 
 
 § 1717. Requiring claim for dam- 
 ages to be presented with- 
 in specified time. 
 
 § 1718. Burden on the carrier to 
 show loss within exemp- 
 tion. 
 
 § 1719. Must exercise reasonable 
 care not to prevent loss 
 within exemption. 
 
 § 1720. Can not restrict liability 
 arising from its own negli- 
 gence. 
 
 § 1721. Burden of proof. 
 
 DUTY AS TO 
 
 TRANSPORTATION 
 GOODS. 
 
 OF 
 
 § 1722. Must carry within a reason- 
 able time.
 
 § 1690.] 
 
 NEGLIGENCE— COMMON CARRIERS. 
 
 1109 
 
 § 1723. Common carrier not an in- 
 surer as to time of trans- 
 portation. 
 
 § 1724. Not liable for delay caused 
 by inevitable accident or 
 act of God. 
 
 § 1725. Not liable for special dam- 
 ages unless notified of im- 
 portance of shipment. 
 
 § 1726. Shipping perishable prop- 
 erty. 
 
 § 1727. Same subject — Owner's 
 rights when perishable 
 goods are damaged by car- 
 rier's negligent delay. 
 
 § 1728. Same subject — Duty of car- 
 rier toward perishable 
 goods when damaged by 
 inevitable accident or act 
 of God. 
 
 § 1729. Duties and liabilities of car- 
 rier in transportation of 
 live stock. 
 
 § 1730. What will excuse injuries 
 to, or lack of readiness to 
 deliver, live stock. 
 
 § 1731. What care required of car- 
 riers of live stock. 
 
 § 1732. Essential elements for re- 
 covery against carrier for 
 injury or damage to live 
 stock. 
 
 § 1733. Dutj^ of carriers to furnish 
 stock pens at point of ship- 
 ment. 
 
 § 1734. Care required of carriers in 
 loading live stock. 
 
 § 1735. Carrier not liable for In- 
 juries due to natural pro- 
 pensities or vice of ani- 
 mals. 
 
 § 1736. Care required of carriers of 
 hogs. 
 
 § 1737. Failure of shipper to prop- 
 erly care for live stock 
 when he has contracted to 
 do so. 
 
 § 1738. Degree of care required to 
 avoid delay. 
 
 DELIVERY BY CARRIERS. 
 
 § 1739. Railroad companies are not 
 bound to deliver to con- 
 signee personally. 
 
 § 1740. Rule as to delivery by rail- 
 roads in Georgia, Illinois, 
 Indiana, Iowa, Massachu- 
 setts, North Carolina, 
 Pennsylvania, and South 
 Carolina. 
 
 § 1741. Rule as to delivery by rail- 
 roads in Alabama, Arkan- 
 sas, Kansas, Kentucky, 
 Louisiana, New Hamp- 
 shire, Vermont, West Vir- 
 ginia and Wisconsin. 
 
 § 1742. If goods are not delivered to 
 consignee, they must be 
 stored. 
 
 § 1743. Duty and liability of express 
 companies. 
 
 § 1744. Care required by warehouse- 
 men. 
 
 § 1745. 'What is ordinary diligence 
 and care. 
 
 RIGHTS OF THE CARRIER. 
 
 § 1746. Suit by carrier for freight 
 and charges. 
 
 WHO IS A COMMON CARRIER. 
 
 § 1690. Who is a Common Carrier of Goods. The jmy are in- 
 structed, that one who, for hire, carries passengers and their baggage, 
 or baggage alone, for all persons choosing to employ him, f rora, to and 
 between railroad depots and hotels, and other places in a city, is a 
 common carrier of goods.^ 
 
 § 1691. Express Companies and Railway Companies Are Common 
 Carriers. You are instructed, that express companies and railway 
 companies are common carriers, and are liable as such; they are in- 
 surers for the safe delivery of the property intrusted to them for 
 transportation; and they will not be excused for its non-delivery, 
 except they are prevented from delivering it by an act of God, or the 
 public enemy.2 
 
 l_Parmelee v Lowitz, 74 111. 116; 2— Morrison v. Davis, 20 Penn. 
 2 Am and Eng. Enc. 781; Hutchin- St. 171; Railroad Co. v. Reeves, 10 
 son on Car. (3rd Ed.) §47, et seq. Wall. 176; Sherman v. Welles, 28
 
 1110 FORMS OF INSTRUCTIONS. [§ 1692. 
 
 DELIVERY TO THE CARRIER. 
 
 § 1692. When the Liability of the Carrier Commences. The law 
 
 is, that as soon as property is received into the exclusive possession of 
 the common carrier, with its knowledge and consent, for the purpose 
 of being- shipped, then the liability of a common carrier commences, 
 no matter whether it is received into a car, depot or warehouse.^ 
 
 § 1693. Delivery to Carrier May Be from Owner or from Another 
 Carrier. You are instructed, that the liability of a common carrier, 
 for the safe delivery of property which has come into its possession, 
 is the same, whether it was received directly from the owner or from 
 another carrier, to whom it had been originally delivered.* 
 
 § 1694. Written Receipt Not Required. The jury are instructed, 
 that to charge a common carrier with the receipt of goods, it is not 
 necessary that any written receipt should be given; provided, the 
 jury believe from the evidence, that the property in question had 
 actually come into the possession of the carrier, to be transpoi'ted by 
 it, and that it was afterwards lost or destroyed, as alleged in the 
 declaration.^ 
 
 § 1695. What Constitutes a Through Contract of Carriage. The 
 jury are instructed, that when goods are delivered to a common car- 
 rier in this state, and marked to a particular place of destination, 
 the carrier impliedly agrees to carry and deliver the goods at that 
 place, although it may be beyond its own lines of carrying, unless 
 there is some special contract relieving the carrier from such imolied 
 obligation.^ 
 
 BILL OF LADING. 
 
 § 1696. Bill of Lading Implies What — Contract. The jury are in- 
 structed that the bill of lading, offered in evidence, recites that the 
 goods were in good order and condition when received by the defend- 
 ant, and by said bill of lading the defendant contracted to deliver 
 said goods in like good order and condition at P.; and if the jury 
 believe, from the evidence, that the goods were not delivered in as 
 good order and condition as when received by defendant — ordinary- 
 wear and tear and ordinary deterioration excepted — and that the 
 
 Barb. 403; Langworthy v. N. "S. & (3rd. ed.), §105, et seq. 
 
 71. Ry. Co.; 2 E. D. Smith 19.5; 4— Gulliver v. Adams Ex. Co., 38 
 
 Hulchinsoh on Car. (3rd ed.), §80, 111. 503; Hutchinson on Car. (3rd 
 
 et seq. ed.), § 129, et seq. 
 
 3 — Coyle v. Western, etc., Corp., 5 — Hutchinson on Car. (3rd ed.), 
 
 47 Barb. 152; Barren v. Eldridge, §127, 152; I. C. Rd. Co. v. Smysor, 
 
 100 Mass. 455; Michigan, etc., Rd. 38 111. 354; Hickox v. Nangatuck 
 
 Co. V. Schurtz, 7 Mich. 515; Mo. Rd. 31 Conn. 281. 
 
 Pac. Rv. Co. V. McFadden, 154 U. 6 — Hutchinson on Car. (3rd ed.), 
 
 S. 155, 14 Sup. Ct. 990, 38 L.. Ed. §238; Milwaukee, etc., Rd. v. 
 
 944; Rt. Louis, etc., Ry. Co. v. Smith, 74 111. 197; Bnhannnn v. 
 
 Insurtincc Co., 139 U. S. 223, 11 Hammond, 42 Cal. 227; McMillan 
 
 Sup. Ct. 554; Hutfhins^.m mi Car. v. Mich., etc., Rd. Co., 16 Mich. 78.
 
 § 1697.] NEGLIGENCE— COMMON CARRIERS. 1111 
 
 plaintiff was injured and has sustained damage thereby, then the 
 plaintiff is entitled to recover, unless the jury believe, from the evi- 
 dence, that the damage or injury to such goods resulted from some 
 fault or negligence of the plaintiff, or from, etc.^ 
 
 § 1697. Receipt or Bill of Lading Prima Facie Evidence of Goods 
 in Good Order. That the receiiDt introduced in evidence is prima facie 
 proof that the goods therein mentioned were in good order at the 
 time they were received by the defendant, and so far as regards that 
 question, the burden of proof is on the defendant to show, by a pre- 
 ponderance of evidence, that the goods were in a damaged condition 
 at the time they were received by the defendant, or else that the 
 injuiy occurred from a cause for which the defendant is not liable, 
 as explained in these instructions; provided, the jury believe, from the 
 evidence, that the goods were damaged when delivered to the plaintiff, 
 as charged in the declaration.^ 
 
 § 1698. Same Subject — Burden of Proof on Defendants to Show 
 Fraud. The bill of lading, introduced in evidence in this case, is 
 j)rima facie evidence that the box of goods was received by the 
 defendants, and was at that time in good order; and if the defend- 
 ants claim that it was not so in good order, it is incumbent on them 
 to show this, and that they were deceived or defrauded when the bill 
 of lading was signed ; and unless you believe, from the evidence, that 
 the defendants were so deceived or defrauded, you will find a verdict 
 for the plaintiff for the amount of his loss, as shown by the evidence; 
 provided that you find, from the evidence, that the plaintiff demanded 
 said goods before the commencement of this suit, and that the goods 
 were not delivered on demand, as charged in the plaintiff's declara- 
 tion; and further, that said loss did not occur from (causes excepted 
 in the receipt).^ 
 
 § 1699. Bill of Lading Not Conclusive of Condition of the Goods. 
 The court instructs the jury, that a bill of lading, while prima facie 
 true, may be explained by other evidence; and if the jury believe, 
 from the evidence in this case, that the goods in question were wet 
 or otherwise injured, or in bad condition, before they came into de- 
 fendant's hands, and that they were, externally, in good condition 
 when defendant received them, and that the person receiving the 
 goods coidd not, without opening them, have ascertained their actual 
 condition, then, the fact of receipting for them as in good order and 
 condition will not preclude the defendant from showing their true 
 condition in this suit.^** 
 
 7— Hutchinson on Car. (3rd ed.), 9— G. W. R. R. Co. v. McDonald, 
 
 157, 163; Bissell v. Price, 16 111. 408; 18 111. 172. 
 
 Wallace K. v. Long, 8, 111. App. 10 — Hutchinson on Car. (3rd ed.), 
 
 504; I. C. R. R. Co. v. Cobb. 72 111. §158, 163. 164; Bissell v. Price. 16 
 
 148; Warden v. Green. 6 W^atts 424; 111. 408; Carson v. Harris, 4 G. Gr. 
 
 Pollard V. Vinton, 105 U. S. 7. 516; Porter v. C. & N. W. Rd. Co. 
 
 8— Hutchinson on Car. (3rd ed.), 20 la. 73; Ellis v. Williard, 5 Selden 
 
 §158; Montgomery, etc., Rd. Co. v. 529; Meyer v. Peck, 28 N. T. 590. 
 Moore, 51 Ala. 394.
 
 1112 FORMS OF INSTRUCTIONS. [§ 1700. 
 
 CONNECTING CARRIERS. 
 
 § 1700. Delivery of Goods to Carrier Without Directions for Car- 
 riage Beyond Carrier's Own Line. The law is, that where goods are 
 delivered to a carrier marked to a particular place beyond or not 
 upon the line of such cai-rier and the goods are unaccompanied by any 
 other direction for their transportation and delivery, then the car- 
 rier is only bound to transfer and deliver them according to the 
 established usage of the business in which the carrier is engaged, 
 whether that usage were known to that other party or not.^^ 
 
 § 1701. Carrier Ordinarily Liable Only for Losses and Injuries 
 Occurring on His Own Line. That when parts of a continuous line 
 or route of transportation are owned by different carriers, then, 
 unless there is some contract expressed or implied to the contrary, 
 each carrier is only liable for losses and injuries occurring on his 
 own particular portion of the route.^^ 
 
 § 1702. Same Subject — Rule in Illinois, (a) The court instructs 
 the jury, that the rule in this state is, that when goods are delivered 
 to a common carrier, in this state, marked to a place not upon or 
 beyond its line of road, with no other direction, and without any 
 express contract as to the place of delivery, the law will imply an 
 undertaking, on the part of the carrier, to transport the goods to and 
 deliver them at the place to which they are marked.^^ 
 
 (b) You are further instructed, that when there is no special con- 
 tract to the contrary, and goods are lost by any one caiTier in a line 
 composed of several carriers, the first to whom the goods were de- 
 livered will be liable to the owner for the goods lost and the owner is 
 not required to sue the carrier who actually lost the goods, provided 
 you believe from the evidence that the first carrier either expressly 
 or impliedly agx'eed to carry the goods to their destination as ex- 
 plained in the instructions upon that point. ^'^ 
 
 § 1703. Burden of Proof on Carrier to Prove no Negligence Where 
 Injury Shown to Have Occurred on Its Line. If you believe, from' 
 the evidence, that the injury, if any, to the cotton occun'ed whilst the 
 same was in possession of any one of the carriers defendant in this 
 cause, then as to the plaintiff the burden of showing that such in- 
 jury was without negligence of such carrier is on it; and if you find 
 that the evidence does not show that such injury was without negli- 
 
 11— Vansantvoord v. St. John, 6 Rd. Co. v. Moore, 51 Ala. 394; Ortt 
 
 Hill 157; F. & M. Bank v. Cham- v. M. & St. L. R. Co., 36 Minn. 396, 
 
 plain TraiLs. Co., 18 Vt. 140; Con- 31 N. W. 519. 
 
 verse v. Norwich Trans. Co., 33 13— Milwaukee, etc., Rd. Co. v. 
 
 Conn. 166; Montgomery, etc., Rd. Smith, 74 111. 197; Elgin, etc., Ry. 
 
 Co. V. Moore, 51 Ala. 394; Craw- Co. v. Bates Mach. Co., 200 111. 636, 
 
 ford V. Southern Rd. Co., 51 Miss, aff'g 98 111. App. 311, 66 N. E. 326, 
 
 222, 93 Am. St. 218. 
 
 12— Hutchinson on Car. (3rd ed.), 14— C. & N. W. Rd. Co. v N 
 
 8 226, et soq.; Montgomery, etc., Line P. Co., 70 111. 217.
 
 § 1704.] NEGLIGENCE— COMMON CARRIERS. 1113 
 
 gence on the part of a particular carrier, if any, in whose possession 
 you find it was at the time of such injury, if any, then as to that 
 carrier you will find for the plaintitf.^^ 
 
 § 1704. Partnership Between Common Carriers. You are in- 
 structed, as a matter of law, that where several carriers by agreement 
 unite to complete a line of transportation, the freight to be divided 
 between them in definite proportions, and one of them receives goods 
 for one freight to be paid for the whole line and gives a through bill 
 of lading, then each carrier is the agent of all the others, and each is 
 liable for any damage done to the goods on whatever part of the line 
 the damage is received; and, in this case, you are further instructed 
 that the bill of lading introduced in evidence recites that the goods 
 therein mentioned were received by the defendant eoi-poration at C. 
 to be carried to N. Y. (freight to be paid, etc.), and if you believe, 
 from the evidence, that the defendant corporation at the time the 
 goods were received had an arrangement or agreement (with the other 
 common carriers) by which they were all to unite and form a com- 
 pleted line of transportation between C. and N. Y., each of the con- 
 necting companies to have an agreed or definite part of the freight 
 as between themselves, then the defendant would be liable for any dam- 
 age or loss happening to the goods on any part of the entire route. ^^ 
 
 § 1705. First Carrier Cannot Relieve Himself of Liability as Com- 
 mon Carrier by Warehousing Goods Without Delivery to Next Car- 
 rier. The jury are instructed, that under the bill of lading introduced 
 in evidence in this case, the defendant was bound to transport the 
 goods safely to the end of its route, loss from the act of God or the 
 public enemies excepted, and then deliver them to (next carrier, etc.) 
 and in such case the company would not be relieved fi'om its liability 
 as a common carrier bj"^ simply unloading the goods and storing 
 them in a warehouse without delivery to the next carrier. Whether 
 the defendant did unload and store the goods or did, etc., are ques- 
 tions oi fact to be determined by the jury, from the evidence.' ' 
 
 COMMON CARRIER'S LIABILITY AND EXCEPTIONS THERETO. 
 
 § 1706. Liability of Common Carriers of Goods. The jury are 
 instructed, that a common carrier of goods, who receives and uuder- 
 
 15— Houston & T. C. R. Co. v. Civ. App. 295, 68 S. TV. 56; and 
 
 Bath, — Tex. Civ. App. — , 90 S. Ft. Worth & D. C. Ry. Co. v. 
 
 W. 55 (57). Shanley, 10 Tex. Ct. Rep. 759, 81 
 
 "This is objected to generally, S. W. 1014." 
 
 and is adopted by appellant as its 16 — Hutchinson on Car. (3rd ed.), 
 
 proposition and statement, but we §219, et. seq. ; Harp v. The Grand 
 
 fail to discover any error in the Era, 1 Woods 184. 
 
 charge. We think it is in keeping- 17 — Irish v. Milwaukee Rd. Co., 
 
 with the rule upon the question 19 Minn. 376; Aetna Ins. Co. v. 
 
 of burden of proof as announced Wheeler, 49 N. Y. 616; Dunson v. 
 
 in the cases of Gulf, Colorado & N. Y., etc., R. Co., 3 La.vs 203; 
 
 S. Fe R. Co. v. Cushney, 95 Tex. Hutchinson on Car. (3rd ed.), §1^1, 
 
 309, 67 S. W. 77; Missouri, K. & T. et seq. 
 Ry. Company v. Mazzie, 29 Tex.
 
 1114 FORMS OF INSTRUCTIONS. [§ 1707. 
 
 takes to carry a trunk, for one not a passenger with such carrier, 
 is responsible for the delivery of the trunk and its contents, as against 
 everything but the act of God or the public enemies, notwithstanding 
 they consist of articles not usually carried as baggage, unless the 
 owner has been guilty of some fraud or deception in relation to the 
 contents of said trunk.^^ 
 
 § 1707. Liable for All Loss, Except by Act of God, etc. The court 
 instructs the jury, that a common carrier is liable for all losses of 
 goods which do not arise from the act of God, or the public enemies; 
 while a warehouseman is only liable for such losses as might have 
 been guarded against by the exercise, on his part, of ordinary care 
 and diligence. ^^ 
 
 § 1708. What is Meant by Act of God. (a) By the term, act of 
 God, is meant superhuman — something beyond the power of man to 
 foresee or guard against. It means inevitable accident — something 
 that happens without the intervention of man. A loss by fire is not a 
 loss by act of God.-*^ 
 
 (b) By the tenn, act of God, is meant those events and accidents 
 which proceed from natural causes, and cannot be anticipated and 
 guarded against, or resisted; such as unexampled freshets, violent 
 storms, lightning and frosts. For losses occurring by any of these 
 means, a common carrier is not liable; provided, he has not beeto 
 guilty of any want of ordinary and reasonable care to guard against 
 such loss.2^ 
 
 § 1709. Carrier Must Use Reasonable Care to Avoid Injury by Act 
 of God. (a) The jury are instructed, that a common carrier is 
 bound to use reasonable care and diligence to prevent loss or injury 
 to goods intrusted to it, by what are termed acts of God; that is, 
 such care and diligence as ordinarily prudent men usually exercise 
 towards their own property, under like circumstances; and if the 
 carrier do not use such care and diligence, and loss or damage results 
 therefrom, he Avill be liable therefor. 
 
 (b) Whether, in this case, such care and diligence were or were not 
 used by the defendant, and whether any loss resulted therefrom, 
 are questions to be determined by the jury, in view of all the facts 
 and circumstances proved on the trial.^- 
 
 LIMITATION OF CARRIERS' LIABnjTY BY CONTRACT. 
 
 § 1710. Legal Duty of Carriers Imposed by Law. That the right 
 conferred upon railroad corporations, in their charters, to carry 
 
 18— Parmelee v. Lowitz, 74 111. 21— Michaels v. N. T. Cent. Rd. 
 
 116; Hutchinson on Car. (3rd ed.), Co., 30 N. Y. 564; Parl<er v. Flag, 
 
 §265, et soq. 26 Me. 181; Moore v. Mich. Rd., 3 
 
 19— St. L,., A. & T. H. R. R. Co. Mich. 23; Cox v. Petterson, 30 Ala. 
 
 V. Montgomery, 39 111. 335. 608; Chevallier v. Straham, 2 Tex. 
 
 20— IIulchinHon on Car. (3rd ed.) 115. 
 
 5 269. et seq.; Mer. Disp. Co. v. 22—111. Cent. Rd. Co. v. McClel- 
 
 Smlth, 76 in. 542. Ian, 54 111. 58.
 
 § 1711.] NEGLIGENCE— COMMON CARRIERS. 1115 
 
 passengers and property for compensation, is coupled with the duty 
 that they shall receive and carry passengers and freight on their 
 roads as they may be offered, under the liabilities and responsibilities 
 which the law imposes upon common carriers, as explained in their 
 instructions; and these liabilities cannot be avoided except by a 
 special agreement to that effect.-^ 
 
 § 1711. Liability not Limited by Notice. The jury are instructed, 
 that a common carrier cannot discharge itself from the duty to safely 
 carry and deliver goods intrusted to it for transportation, by notice, 
 public or private, of the terms on which it receives or carries goods 
 or propert}'; to make such notice effectual, the shipper must assent to 
 its tei'ms.^* 
 
 § 1712. Carriers Can Only Restrict Their Common Law Liabilities 
 by Special Contract. The law is, that a common carrier is bound to 
 receive and carry goods offered to him for transportation, if in proper 
 condition for shiiDping, subject to all the incidents of his business as 
 a common carrier, and there can be no presumi>iion that the shipper 
 intended to abandon any of his legal rights ; and the burden of prov- 
 ing a contract, by which his common law liability, as explained in 
 these instructions, has been restricted, is upon the carrier.-^ 
 
 § 1713. Shipper Will Be Presumed to Agree to Exemption Clause, 
 Wh'en. The court instructs the jury, that when a shipper delivers 
 goods to a common carrier to be transported by the carrier, and takes 
 a receipt for the goods in the nature of a bill of lading, specifying 
 in the body of it, so as to form a part of the receipt, the terms upon 
 which they are to be carried and delivered, the shipper will be bound 
 by the terms of the receipt, unless it appears, by the evidence, that 
 some fraud or imposition was practiced upon the shipper to induce 
 him to take such a receipt. ^^ 
 
 § 1714. Same Subject — Rule in Illinois — Shipper's Assent Must 
 Be Shown. That where goods are received by a common carrier, and 
 a receipt or a bill of lading is given, containing a clause exempting 
 the earner from certain liabilities therein mentioned, such receipt is 
 not binding upon the shipper, unless it ajipears, by a preponderance 
 of the evidence, that he knew of and assented to the exemption; 
 and whether he did so assent is a question of fact for the jury.^^ 
 
 23— P. & R. I. Ry. Co. v. Coal M. R. Co., 44 la. 424; N. Y. C. R. 
 
 Valley, etc., Co., 68 111. 489; Wal- R. Co. v. Lockwood, 17 Wall. (U. 
 
 lace V. Matthews, 39 Ga. 617; S.) 357. 
 
 Thayer v. St. Louis, etc., Rd. Co., 26— Long v. N. T. Cent. Rd. Co., 
 
 22 Ind. 26. 50 N. Y. 76; Grace v. Adams, 100 
 
 24 — Hutchinson on Car. (3rd ed.), Mass. 505; Hutchinson on Car. (3rd 
 
 §406; N. J. Steam Man. Co. v. ed.), §408. 
 
 Merchants Bank, 6 How. (U. S.) Editor's Note. — The above in- 
 
 344; McMillan v. Michi.?an, etc., struction would not be good in 
 
 Rd. Co., 16 Mich. 79; Blossom v. Illinois. See Hutchinson on Car. 
 
 Dodd, 43 N. Y. 264; Verner v. (3rd ed.), §410, and following sec- 
 
 Sweitzer, 32 Penn. St. 208. tion. 
 
 25— Western T. Co. v. Newhall, 27— Field v. C. & R. I. Rd. Co., 
 
 24 111. 466; McCoy v. The K. & D. 71 111. 458.
 
 1116 FORMS OF INSTRUCTIONS. [§ 1715. 
 
 § 1715. Same Subject — Rule in Illinois — Acceptance of Receipt 
 with Full Understanding of Conditions, (a) The court instructs 
 the jury, that if a shipper take a receipt for his goods from a common 
 earriei', which contains conditions limiting the liability of the carrier, 
 with a full understanding of such conditions, and intending to assent 
 to them, it becomes his contract as full as if he had signed it, and he 
 will be bound by the conditions; but if a shipper acceiot such a re- 
 ceipt, because he has no alternative but to receive it, and not intend- 
 ing to assent to the conditions limiting the liability of the carrier, 
 then he will not be bound by such conditions."^ 
 
 (b) The court instructs the jury, that when a common carrier, re- 
 ceiving goods for transportation, gives a receipt for the goods, con- 
 taining ijrovisions limiting the common law liability of the carrier, 
 other than those arising from its own fault or negligence, and the 
 shipper accepts the receipt with a full knowledge of its terms,, and 
 intends to assent to such restrictions, it becomes his contract as fully 
 as if he had signed it. But the simple acceptance of such a receipt 
 does not conclusively bind the shipper; in order to bind him, it must 
 appear, from the evidence, that he had knowledge or notice of the 
 terms of the receipt and assented to them.^^ 
 
 § 1716. Shipper Not Bound by Notice Printed on Receipt. The 
 court instructs the jury, that the printed notice upon the (back of 
 the) receipt, of the terms and conditions uj^on which the defendant 
 received and carried the goods in question, is not binding upon the 
 plaintiff, unless the jury find, from the evidence, that his attention 
 was particularly called to that notice when he took the receipt, and 
 that he exj)ressly assented to the terms and conditions therein con- 
 tained. The fact alone that the plaintiff accepted the receipt is no 
 evidence that he assented to the terms of said notice. ^° 
 
 § 1717. Requiring Claim for Damages to Be Presented Within 
 Specified Time. If the jury find, from the evidence, that when the 
 plaintiff shipped his cattle he entered into a contract with the de- 
 fendant for the shipment of such cattle to A, and in such contract 
 agreed that no claim for damages growing out of such shipment 
 should be sued for unless a claim for such damages were first made 
 in Avriting verified by affidavit and delivered to the general freight 
 agent of the defendant at C within five days from the time the cattle 
 were removed from the car, and if you further find that the plaintiff 
 did not make such demand in writing verified by affidavit and deliver 
 it to the said freight agent before commencing this suit, then the 
 plaintiff cannot maintain this suit and your verdict should be for 
 the defendant.^^ 
 
 28— The Anchor Line v. Dater, 68 31 — It was held reversible error 
 
 111. 369. not to have given the above in- 
 
 29— Adams Ex. v. Haynes Co.. struction. B. & O. S. W. Ry. Co. 
 
 42 111. 89. v. Ross, 105 111. App. 54 (59); 
 
 30— K. & W. Tr. Co. v. Dater, 91 Hutchinson on Car. (3rd ed.), §442 
 
 111. 195. et seq.
 
 § 1718.] NEGLIGENCE— COMMON CARRIERS. 1117 
 
 § 1718. Burden on the Carrier to Show Loss Within Exemption. 
 "Where goods are received by a common carrier, to be carried under 
 the usual bill of lading, containing a clause exempting the carrier 
 from certain liabilities, other than those arising from his own fault or 
 negligence, which are assented to by the shipper, and the goods are 
 lost or injured, it is incumbent upon the carrier to show that the loss 
 resulted fi'om one of the causes exceiDted in the receipt, as explained 
 in these instructions, or from an act of God, or the public enemies.^^ 
 
 § 1719. Must Exercise Reasonable Care to Prevent Loss Within 
 Exemption. Although the jury may believe, from the evidence, that 
 the goods in question were destroyed (by fire), still, if the jury 
 further believe, fi'om the evidence, that by the exercise of ordinary 
 prudence on the part of the defendant, or its servants, such destruc- 
 tion might have been prevented, then the defendant is liable in this 
 suit.^^ 
 
 § 1720. Can Not Restrict Liability Arising from its Own Negli- 
 gence, (a) The law, on grounds of public policy, will not permit a 
 common carrier of passengers or freight, to contract against liability 
 for its own actual negligence, or that of its servants and employes.^* 
 
 (b) The court instructs the jury, that although they may believe, 
 from the evidence, that there was a special contract between the 
 plaintiff and the defendant, that defendant should not be liable for 
 any loss or injuiy to said goods, which might occur by reason of 
 * * * still, such a contract would not relieve the defendant from 
 loss resulting from negligence, or the want of ordinary care and 
 prudence on the part of the defendant, or its servants. 
 
 (c) And in this case, if you believe, from the evidence, that the 
 defendant was guilty of negligence, or any want of ordinary care 
 and caution, and that the loss complained of resulted therefrom, 
 without any fault upon the part of the plaintiff, then he has a right 
 to recover in this case.^^ 
 
 (d) You are instructed, that by the terms of the receipt intro- 
 duced in evidence in this case the defendant is not liable for any loss 
 or damage to the goods in question, arising from or caused (by fire) 
 while in the possession of defendants as common carriers, unless such 
 (fire), or loss or damage was occasioned by some want of ordinary 
 prudence or reasonable care on the part of the defendant ; and although 
 you may believe, from the evidence, that said goods Avere destroj-ed 
 
 32— Hutchinson on Car. (3rd ed.), Rd. Co., 1 Disney (Ohio) 480; Erie, 
 
 §449; Western T. Co. v. Newhall, etc., Rd. Co. v. Wilcox, 84 111. 239; 
 
 24 111. 466; Mitchell v. U. S. Ex. Ind., etc., Rd. Co. v. Allen, 31 Ind. 
 
 Co., 46 la. 214; U. S. Ex. Co. v. 394; Penn. Rd. Co. v. McCloskey, 
 
 Graham, 26 Ohio St. 595; Shaw v. 23 Penn. St. 526; School Dis., etc., 
 
 Gardner, 12 Gray 488. v. Boston, etc., Rd. Co., 102 Mass. 
 
 33— Hutchinson on Car. (3rd ed.), 552. 
 §477; Penn. Rd. Co. v. Fries, 87 35—111. C. Rd. Co. v. Smyser et 
 
 Penn. St. 234. al., 38 111. 354; L. & C. Rd. Co. v. 
 
 34— Hutchinson on Car. (3rd ed.), Brownlee, 14 Bush (Ky.) 590. 
 §450; U. M. S. Co. v. Ind., etc.,
 
 1118 FORMS OF INSTRUCTIONS. [§ 1721. 
 
 (by fire) while in the possession of the defendants, still the de- 
 fendant is not liable therefor, unless you further believe, from the 
 evidence, that the said defendant, or its servants, by the exercise of 
 ordinary diligence or reasonable care, might have avoided such loss, 
 (e) You are instructed that a common carrier is liable for the 
 full value of goods, if they are lost through his negligence, notwith- 
 standing the bill of lading provides that the carrier shall not be liable 
 beyond an amount therein named, provided it is understood by the 
 parties when the bill of lading is given, that the sum so agreed upon 
 is less than the value of the goods. Whether, in this case, the goods 
 in question were lost through the negligence of the defendant, and 
 whether the goods were worth more than the price mentioned in the 
 bill of lading, and whether this fact was known to the defendant 
 when the bill of lading was given, are all questions of fact to be de-" 
 termined by you from the evidence in the case.^^ 
 
 § 1721. Burden of Proof. If goods are lost or damaged while in 
 the custody of a common carrier, the presumjotion of law is that such 
 loss or damage was occasioned by its default or negligence, and the 
 burden of proof is on the carrier to show that it arose from causes 
 for which the carrier was not responsible.^'^ 
 
 DUTY AS TO TRANSPORTATION OF GOODS. 
 
 § 1722. Must Carry Within a Reasonable Time. The jury are 
 instructed, that when a railroad company contracts to forward and 
 deliver goods at any particular point it is bound to forward and de- 
 liver the goods at that point within a reasonable time, and it will not 
 be released from its liability by delivery to another connecting road; 
 but it will still be liable for any unreasonable delay, although the 
 same occurs on account of the crowded condition of the connecting 
 road, or for any other cause attributable to such road.^^ 
 
 § 1723, Common Carrier Not an Insurer as to Time of Trans- 
 portation. A common carrier of goods is not an insurer as to the 
 time at which the goods shall arrive at their destination but he is 
 bound to carry them to their destination in a reasonable time, after 
 they are received.^" 
 
 § 1724. Not Liable for Delay Caused by Inevitable Accident or 
 Act of God. If delay is occasioned by an inevitable accident or an 
 act of God, and loss or damage results from such delay without any 
 
 36— U. S. Ex. Co. v. Backman, 28 Rd. Co., 60 Barb. 169; Toledo, W. 
 
 Ohio St. 144. & W. R. R. Co. v. Lockhart, 71 111. 
 
 37— Hutchinson on Car. (3rd ed.), 627; Hutchinson on Car. (3rd ed.), 
 
 51353; Nelson v. Woodruff, 1 §651. 
 
 Black. 156; Lindsey v. Chicago, M. 39— McLaren v. Detroit & C. R. 
 
 & St. P. R. Co., 36 Minn. 539, 33 Co., 23 Wis. 138; Parsons v. Hardy, 
 
 N. W. 7. 14 Wend. 215; Hutchinson on Car. 
 
 38— Penn. Rd. Co. v. Benz, 68 (3rd ed.), § 653. 
 Penn. St. 272; King v. Macon, etc.,
 
 § 1725.] NEGLIGENCE— COMMON CARRIERS. 1119 
 
 fault on the part of the carrier, such loss or damage is not charge- 
 able to the carrier. ■*" 
 
 § 1725. Not Liable for Special Damages Unless Notified of Im- 
 portance of Shipment. The court instructs the jury that plaintiff 
 cannot recover for the reasonable value of his gin, or any other dam- 
 ages, unless they believe, from a preponderance of the evidence, that 
 the defendant had notice of the importance of the shipment and of 
 its prompt delivery at some time before the shipment had been lost, 
 or had been misplaced or miscarried.*^ 
 
 § 1726. Shipping Perishable Property, (a) If the jury believe, 
 from the evidence, that the fruit in question was injured and dam- 
 aged by being frozen after it was received by the defendant and while 
 in transit to C, and that carriers in the same line of business were 
 at that time accustomed to use refrigerator cars for the purpose of 
 protecting fruit from the effects of the weather, and that such injury 
 or damage could have been prevented by the use of reasonable and 
 ordinary care on the part of the defendant, either by shii^ping the 
 same in refrigei'ator cars or by another means generally known and 
 recognized among railroad men as suitable and proper for the purpose 
 of protecting fruit from the effects of the weather, then the damage 
 was not produced by an act of God, within the meaning of the law, 
 and the defendant would be liable therefor. 
 
 (b) You are instructed, as a matter of law, that where a common 
 carrier accepts fruits liable to be affected by the weather for trans- 
 portation over long distances, in the winter season, the character of 
 his employment, independently of any special contract to that effect, 
 clearly implies that he will ship them in such vehicles or ears as are 
 reasonably suitable for the purpose, and exercise such care and dili- 
 gence as may be reasonably necessaiy for their safe passage to their 
 destination. Whether, in this case, such care and diligence were or 
 were not used by the defendant, and whether any loss resulted there- 
 from, are questions to be determined by you in view of all the evi- 
 dence in the ease.'*^ 
 
 § 1727. Same Subject — Owner's Rights When Perishable Goods 
 Are Damaged by Carrier's Negligent Delay, (a) If you believe, 
 from the evidence, that the defendant, by the exercise of reasonable 
 
 40 — Nashville R. Co. v. David, 6 could not be made liable for spe- 
 
 Heisk. (Tenn.) 261; R. R. Co. v. cial or extraordinai*y damages un- 
 
 Reeves, 10 Wall. (U. S.) 176; Head- less notice of the importance of 
 
 ley v. N. T. Co., 115 Mass. 304; the shipment and prompt delivery 
 
 Hutchinson on Car. (3rd ed.). § 654. had been made at some time be- 
 
 41 — Am. Exp. Co. v. Jennings, 86 fore the shipment had been lost or 
 
 Miss. 329, 38 So. 374. had been misplaced or miscar- 
 
 "This instruction asked for by ried." 
 defendant should have been given. 42 — Merchants' D. T. Co. v. Corn- 
 Defendant was entitled to even a forth, 3 Col. 280; St. L. I. M. & S. 
 more favorable statement of the R. Co. v. Coolidge, 73 Ark. 112, 83 
 law than was contained in this re- S. W. 333, 67 L. R. A. 555; Hutch- 
 fused instruction. Certainly it inson on Car. (3rd ed.), § 649.
 
 1120 FORMS OF INSTRUCTIONS. [§ 1728. 
 
 diligence in the loading and shipment of the (oranges) mentioned in 
 the bill of lading, could have transmitted the same to theii destina- 
 tion in a sound and undamaged condition, and the jury further be- 
 lieve, from the evidence, that said (oranges), or any part thereof, 
 an'ived at their destination in a damaged and unsound condition by 
 reason of the want of reasonable care and diligence on the part of 
 the defendant and without any fault or neglect on the part of the 
 plaintiff then you should find the issues in favor of the plaintiff. 
 
 (b) The court instructs you as a matter of law that where goods 
 are damaged 'while in the hands of a common carrier through the 
 negligence of the carrier, if they are only damaged and are not ren- 
 dered wholly worthless the owner is bound to receive them and he 
 cannot abandon them and proceed against the carrier as for total loss, 
 but in such case the owner has a right of action against the carrier 
 for the depreciation in the value of the goods occasioned by such dam- 
 age and negligence provided no fault or negligence on the part of the 
 plaintiff has contributed to such loss or damage.^^ 
 
 § 1728. Same Subject — Duty of Carrier Toward Perishable Goods 
 When Damaged by Inevitable Accident or Act of God. If a carrier 
 is transporting property of a perishable nature and a delay is occa- 
 sioned by an inevitable accident or an act of God, he must use all 
 reasonable efforts to avoid all unnecessary damage to the property 
 either by forwarding it to its destination by other means of convey- 
 ance, or in some other way. If he is unable to forward it to its desti- 
 nation by the exercise of reasonable efforts in that behalf in time to 
 avoid a total loss, he is justified in selling the property for the best 
 price it will bring, exercising reasonable discretion in that regard; 
 but, whether, in this ease, there was any unusual delay in transporting 
 the goods in question, and whether such delay, if any, was caused by 
 inevitable accident and whether the defendant did everything that 
 could reasonably be done to avoid damage to the goods, are all ques- 
 tions of fact to be determined by the jury, from the evidence in the 
 case.** 
 
 § 1729. Duties and Liabilities of Carrier in Transportation of Live 
 Stock. It is the duty of a railroad company which undertakes to 
 carry live stock for hire, to exercise all reasonable care, skill and 
 judgment to provide cars of sufficient strength to prevent the animals 
 from breaking through the same; and it will be responsible for a loss 
 if it occurs through its failure to exercise such care, skill and judg- 
 ment, althov;gh the animals be unruly and vicious.*^ 
 
 § 1730. What Will Excuse for Injuries to, or Lack of Readiness to 
 Deliver, Live Stock. If a common carrier receives live stock to be 
 
 43— Shaw V. S. C. Ry. Co., 5 Co. v. Hawkins, 18 Mich. 427; Mc- 
 
 Rirh 462. Daniel v. C. & N. W. Rd. Co., 24 
 
 44— Am. Express Co. v. Smith. 33 la. 412; Peters v. N. O. & C. R. R., 
 
 Ohio St. 511. 16 La Ann. 222; O., etc., R. R. Co. 
 
 45— Smith v. New Haven, etc., v. Pratt, 89 U. S. 123; Hutchinson 
 
 Rd. Co., 12 Allen 531; Great W. Rd. on Car. (3rd ed.), §634, et seq.
 
 § 1731.] NEGLIGEXCE— COMMON CARRIERS. 1121 
 
 transported from one point to another, then he is bound to carry it 
 safely to the point of destination, and there have it ready to deliver 
 to the consignee and nothing will excuse a lack of readiness to deliver 
 except what are known as acts of God or the public enemy, or such 
 accidents as arise from the conduct, vicious temper and propensities 
 of the animals themselves.*^ 
 
 § 1731. What Care Required of Carriers of Live Stock, (a) The 
 juiy ai'e instructed, that the carrier of live stock must exercise all 
 reasonable care, skill and judgment to provide safe and properly 
 constructed cars, in which to carry the stock — to provide stations or 
 stopping places along the road, where cattle may be fed; and if it 
 fails to exercise such care, skill and judgment, and loss or damage 
 results therefrom, the carrier will be liable to the owner for the dam- 
 age thus sustained, if he is himself free from fault or negligence con- 
 tributing to such injury. 
 
 (b) A common carrier for hire is bound to exercise all the care 
 and diligence which prudent and cautious men, in the same business, 
 usually employ, for the safety and presei'\'ation of the property con- 
 fided to its care; and, in this case, if you believe, from the evidence, 
 that the defendant did not use all such reasonable care and prudence 
 to provide a safe and suitable car for plaintiff's stock, or in the run- 
 ning and management of the train in question, and that, by reason 
 of such want of care and diligence, plaintiff's stock was injured, as 
 charged in the declaration, then the defendant is liable for the result- 
 ing damage to the amount proved by the evidence.*'^ 
 
 (c) You are instructed that if you find from the testimony that 
 
 said defendant, , received the cattle of plaintiff, as alleged, to 
 
 be transported to T. ; and you further find that while being so ti'ans- 
 ported some of said cattle died, and others were injured and damaged ; 
 and you further find that said defendant failed to transport said 
 cattle over its line of road within a reasonable time or failed to use 
 ordinary care in the handling and transportation of said cattle; and 
 you further find that such failure, if any, was negligence, and that 
 such negligence of said defendant, if any, was the proximate cause 
 of the injury and damage, if any, to plaintiff's cattle, then you are 
 instructed to find for plaintiff unless you find for defendant, under in- 
 structions hereinafter given you. 
 
 (d) Reasonable or ordinaiy care, as used in this charge, is such 
 care as would be exercised by an ordinarily prudent person under 
 the same or similar circumstances. Negligence consists in a want 
 of that care that would be exercised by an ordinarily prudent person 
 under like circumstances.*^ 
 
 46 — Maynard v. S., etc., Rd. Co., 47 — Rhodes v. Louisville, etc., 
 
 71 N. T. 180; Banberg v. J. C. Rd. Rd. Co., 9 Bush 688. 
 
 Co., 9 S. C. 61; McCoy v. R. & D. 48— Mo., K. & T. Ry. Co. v. Chlt- 
 
 M. Rd. Co., 44 la. 424; S. & Ala. tim, 24 Tex. Civ. App. 599, 60 S. W. 
 
 Rd. Co. v. Henlien, 52 Ala. 106. 284 (285). 
 
 71
 
 1122 FORMS OF INSTRUCTIONS. [§ 1732. 
 
 § 1732. Essential Elements for Recovery Against Carrier for Injury 
 or Damage to Live Stock. The jury is instructed that, before the 
 plaintiif can recover damages in any amount against the defendant, 
 the A. B. Company, it is necessary for each and every one of the 
 following facts to be established by a preponderance of the evidence: 
 (1) That the iDlaintiff's horses were damaged when they arrived at G., 
 over and above the injury or damage that would necessarily be caused 
 to a shipment of the kind and character of horses that these were, 
 and in their condition, in making the trip by rail that these horses 
 made. (2) That if there was any damage, that the same was caused by 
 the negligence of the said defendants. (3) That the plaintiff or his 
 agent were not in fault in looking after the stock while in transit, 
 contributing to the damage, if any.-*^ 
 
 § 1733. Duty of Carriers to Furnish Stock Pens at Point of Ship- 
 ment. The court instructs the jury that it was the duty of the rail- 
 way company to furnish sufQcient stock pens at A. to load such lots 
 of cattle as were ordinarily tendered at that point for shipment.^*^ 
 
 § 1734. Care Required of Carriers in Loading Live Stock. It is 
 the duty of a railway company to use ordinary care in loading of 
 live stock to avoid injuring them. If you believe from the evidence 
 that defendants, or either of them, failed to use ordinary care in the 
 loading of said horses, and said stock were injured thereby, and plain- 
 tiff was thereby damaged, you will find for the plaintiff against such 
 defendant or defendants failing to use ordinary care in loading said 
 stock.^^ 
 
 § 1735. Carrier Not Liable for Injuries Due to Natural Propen- 
 sities or Vice of Animals, (a) If the jury believe, from the evidence, 
 that the defendant furnished a suitable ear in which to ship the stock 
 in question, and used all due care in managing and transporting the 
 same, and that the injury complained of was caused by the peculiar 
 character of the animals themselves, such as bad temper, unusual 
 restiveness or viciousness, then the defendant is not liable in this 
 case.^^ 
 
 (b) You are instructed that the plaintiff can recover nothing for 
 so much, if any, of the damage, if any, to his stock as may have 
 been caused by the inherent vice of said stock, or by their natural 
 character and condition, or by treatment to which they had been sub- 
 jected before being loaded, or on account of being overloaded, if they 
 were overloaded, or by the usual and ordinary course of their trans- 
 portation by rail without negligence on the part of the railroad com- 
 pany or companies; and in making up your verdict you will allow 
 
 49— St. Louis, I. M. & S. Ry. Co. Dolan, Tex. Civ. App. , 
 
 V. Berry, Tex. Civ. App. , 85 S. W. 302 (303). 
 
 93 S. W. 1107 (1109). 52— Hutchinson on Car. (3rd ed.), 
 
 50— Texii.s & P. Ry. Co. v. Fam- §336, et scq.; Smitli v. N. H., etc., 
 
 brough, Tex. Civ. App. , Rd. Co., 12 Allen 531; Evans v. 
 
 55 S. W. 188, 189. Pltchburg, etc., Rd. Co., Ill Mass. 
 
 51— San An. & A. P. Ry. Co. v. 142.
 
 § 1736.] NEGLIGENCE— COMMON CARRIERS. 1123 
 
 plaintiff nothing for any damage which you may believe, from the 
 evidence, was caused by the inherent vice of said stock, or by their 
 natural character and condition, or by the treatment to which they 
 had been subjected before being loaded, or on account of being over- 
 loaded, if you find they were overloaded, or by the usual and ordi- 
 nary course of their transportation by rail, without negligence on the 
 part of the railroad comjDany or companies. ^^ 
 
 (e) If the stock, before they were loaded, were in bad condition, 
 by being fed on cotton-seed meal and hulls, or from any other cause, 
 and if this affected them so they could not stand up, and this was the 
 cause of their injury and death, then the plaintiff could not recover.-^* 
 
 (d) If you find that the train was at any time left standing while 
 en route, and the cattle injured themselves by fighting and moving 
 about, then in order for j^laintiffs to recover for injuries sustained 
 by the cattle by fighting and moving about while the train was stand- 
 ing, it devolves upon the plaintiffs to show that the train was stand- 
 ing an unusual length of time, and that the train was standing by 
 reason of the negligence of the defendant or its agents, and that the 
 cattle would not have been so injured but for such negligence, and 
 that the acts of the cattle were such as are the ordinary acts of 
 cattle under the same circumstances, and that the defendant or its 
 agents knew of such actions of cattle, or could have known bj' ordi- 
 nary care and diligence; and if you fail to so find in this case, the 
 plaintiffs cannot recover for injuries received by the cattle in fighting 
 and moving about. ^^ 
 
 § 1736. Care Required of Carriers of Hogs, (a) That when hogs 
 are shipped in railroad ears at a season of the year Avhen, for their 
 proper care and treatment, it is necessary to apply water to prevent 
 them fz'om being suffocated or overheated, then it is the duty of the 
 railroad company to have proper stations and appliances for furnish- 
 ing such water, and to so run and manage its trains as to afford rea- 
 sonable opportunities to the persons in charge of the stock to apply 
 such water, and if it does not exercise such care, skill and judgment, 
 and loss or damage to the stock results therefrom, the earner will be 
 liable to the owner for the damage thus sustained; provided, he is 
 himself free from fault or negligence contributing to such injury.^® 
 
 (b) In the transporting of the hogs in question the defendant was 
 a common carrier, and, as such, was bound to use all care and pre- 
 caution for their safety, while in transit, so far as human vigilance 
 and foresight and care would go. It was an insurer of the property, 
 except in resiDeet to such injuries as may or might unavoidably result 
 from the essential nature of the property itself, the nature and pro- 
 
 53— Houston & T. C. R. Co. v. 55— Texas & P. Ry. Co. v. Fam- 
 
 Gray, Tex. Civ. App. , 85 broug-h, Tex. Civ. App. , 
 
 S. W. 838 (841). 55 S. W. 188 (189). 
 
 54— Felton v. Clarkson, 103 Tenn. 56— Toledo, etc., Rd. Co. v. 
 
 457, 53 S. W. 733 (734). Thompson, 71 111. 434.
 
 1124 FORilS OF INSTRUCTIONS. [§ 1737. 
 
 pensity of the hogs, and their capacity to inflict injury upon each 
 other. 
 
 (c) In this case, unless you find that these hogs died from some 
 inherent want of vitality, or by reason of their inflicting injuries 
 upon each other, or by inevitable accident, the defendant company is 
 liable; and, if it would escape liability the burden of proof is upon 
 it to show that the hogs died from some other cause than its negli- 
 gence. In the absence of such proof, the law presumes negligence, 
 and that such negligence caused the death of these hogs. In other 
 words, the defendant, in order to escape liability in this action, must 
 prove to your satisfaction, by a preponderance of the evidence, that 
 the death of the hogs was the result of some other cause than its 
 negligence, or the negligence of its employes or train men.^" 
 
 § 1737. Failure of Shipper to Properly Care for Live Stock When 
 He Has Contracted to Do So. The testimonj^, without conflict, affir- 
 matively shows that the cattle in question were transported from L to 
 W, under special contracts in writing, one made and entered into be- 
 tween plaintiff and the defendant, H. Co., providing for the trans- 
 portation of said cattle from L to E, and there to be delivered to its 
 next connecting carrier, the M. Ry. Co. ; and the other made and en- 
 tered into between the M. Ry. Co. and the plaintiff at E, providing for 
 the further transportation and shipment of said cattle from said E 
 station, over the line of said road of the said M. Ry. Co. and of the 
 M. K. & T. Ry. Co. to W, providing in terms that the plaintiff in per- 
 son, or by his agent or agents, should accompany the stock, load, 
 unload, and reload the same and feed and water the same en route; 
 and if, from the evidence, you believe the cattle were in a drawn and 
 enfeebled condition when they reached their destination, and that such 
 condition, in whole or in part, was attributable to the failure, if any, 
 of the plaintiff to properly care for, feed and water, and to load, un- 
 load and reload the said cattle, then you are instructed that the plain- 
 tiff cannot recover for any damage or injury which may have resulted 
 from said failure, if any.^^ 
 
 § 1738. Degree of Care Required to Avoid Delay, (a) The jury 
 are instructed, that the carrier of live stock for pay must exercise 
 reasonable diligence in the business, and complete the journey within 
 a reasonable time, and if he does not do so, and the stock is injured 
 by the delay, the carrier will be liable to be owner for all damage 
 caused by such delay.^^ 
 
 (b) The court instructs the jury that what would be an unreason- 
 able delay in forwarding and transporting said cattle, or what would 
 be a reasonable time within which said cattle should have been trans- 
 
 57— I>indsley v. Chicago, M. & St. Gray, Tex. Civ. App. , 
 
 P. R. Co.. 36 Minn. 5?.9, 33 N. W. 6 85 S. W. 838 (842). 
 
 (8). 1 Am. St. Rep. 692. 59— Tucker v. Pacific Rd. Co., 50 
 
 68— Houston & T. C. R. Co. v. Mo. 385; Sisson v. Cleveland, 14 
 
 Mich. 489.
 
 §1739.] NEGLIGENCE— COMMON CARRIERS. 1125 
 
 ported, are purely questions of fact for your exclusive determina- 
 tion from all the facts and circumstances in evidence before you.®*^ 
 
 DELIVERY BY CARRIERS. 
 
 § 1739. Railroad Companies are not Bound to Deliver to Consignee 
 Personally. The court instructs the jury, that I'ailroad companies 
 are not bound to deliver goods carried by them to the consignee jDer- 
 sonally. When the goods have reached their destination, and the con- 
 signee is not present to receive them, then the carrier may store them 
 in a suitable warehouse, and when the goods are thus stored, the duty 
 and liability of the company as a common carrier is terminated, and 
 that of the warehouseman begins.''^ 
 
 § 1740. Rule as to Delivery by Railroads in Georgia, Illinois, In- 
 diana, Iowa, Massachusetts, North Carolina, Pennsylvania and South 
 Carolina. The court instructs the jury, that railroad companies must 
 deliver the goods shipped by them to the owner or consignee at the 
 point of destination, or store the goods, subject to the order of the 
 consignee ; and they cannot relieve themselves from their liabilities as 
 common carriers until the goods are delivered to the owner or con- 
 signee, or till they are placed in a warehouse for safe keeping; and 
 there must be some open, distinct act of delivery to a wai^ehouse in 
 order to change the liability from that of a common carrier to that 
 of a warehouseman, and the proof of this change rests on the carrier. 
 The liability of a common carrier will continue until a different lia- 
 bility attaches on the part of some one.**- 
 
 § 1741. Rule as to Delivery by Railroads in Alabama, Arkansas, 
 Kansas, Kentucky, Louisiana, New Hampshire, Vermont, West Vir- 
 ginia and Wisconsin. Although you may believe from the evidence 
 that the goods in question were safely carried by the defendant to S. 
 and there unloaded and safely deposited in a reasonably safe ware- 
 house and Avere afterwards burned (or stolen) without any negligence 
 on the part of defendant still the defendant would be liable as a com- 
 mon carrier for the loss of the goods as explained in the instructions 
 upon that point, provided you further believe from the evidence that 
 the goods were burned (or stolen) before the plaintiff had had notice 
 of their arrival and before he could, by the use of ordinary and rea- 
 sonable diligence, have learned of the arrival of the goods and have 
 had a reasonable time in which to remove them.''^ 
 
 § 1742. If Goods are not Delivered to Consignee, They Must be 
 Stored, (a) If the jury believe, from the evidence, that the goods of 
 
 60— Texas & P. Ry. Co. v. Smis- 62— C. & R. I. Rd. Co. v. Warren, 
 
 sen, 31 Tex. Civ. App. 549, 73 S. 16 111. 502; Francis v. D. & S. City 
 
 W. 42. Rd. Co., 25 la. 60; Hutchinson on 
 
 61— Chicago & A. Rd. Co. v. Car. (3rd ed.), § 702. 
 
 Scott. 42 111. 121; Jarrett v. Rail- 63— Wood v. Crocker, 18 Wis. 
 
 way Co., 74 Minn. 477, 77 N. W. 345; Ala. & Tenn. Rd. Co. v. Kidd, 
 
 304. 35 Ala. 209; Moses v. Boston & Me.
 
 1126, FORMS OF INSTRUCTIONS. [§ 1743. 
 
 the plaintiff were carried by the defendant to their destination, and 
 not then and there delivered to the plaintiff, or to some one for him, 
 by reason of there being- no one there to receive them, or for any 
 other cause not the fault of the plaintiff, then it was the duty of the 
 defendant to store the goods in an ordinarily safe warehouse. 
 
 (b) You are instructed, that it is the duty of a carrier of goods, 
 when the goods have arrived at the place of destination, to unload 
 and place them in a convenient place for delivery, and if the con- 
 signee is there ready to receive them, to deliver them to him; but if 
 he is not there, the carrier must store them in a reasonably safe ware- 
 house, or i^laee them under the charge of competent and careful serv- 
 ants, ready to be delivered when called for by those entitled to receive 
 them; and if the carrier fails to do this, and the goods are thereby 
 lost or injured, the carrier will be liable to the owner for such loss 
 or injury.*'* 
 
 § 1743. Duty and Liability of Express Companies, (a) That an 
 
 express comj)any, as a common carrier, is not only required to trans- 
 port the goods to the place of destination, but the further duty is en- 
 joined upon it to deliver the goods to the consignee, at his residence 
 or place of business, if, with the exercise of reasonable care and 
 effox'ts in that behalf, such residence or place of business can be 
 found. 
 
 (b) The court further instructs you that where goods transported 
 by an express company are by it tendered to the consignee, and he 
 fails to receive and pay for them, it is the duty of the express com- 
 pany to so notify the consignor, and when this is done, the company 
 is relieved of its responsibility as a common carrier, and holds the 
 goods as a warehouseman, subject to the order of the consignor, and, 
 not before. 
 
 (c) The court further instructs you, as a matter of law, that an 
 express company can discharge itself of responsibility, as a common 
 carrier, in no other way than by an actual delivery of the goods to the 
 proper person, at his residence or place of business, when, with rea- 
 sonable efforts, these can be found, except by proving that the com- 
 pany has been excused from so doing, or prevented by an act of God, 
 or the public enemy.^^ 
 
 (d) It is the duty of an express company, upon receiving a pack- 
 age of money to be forwarded, to safely caiTy and deliver it to the 
 consignee, and the only way it can relieve itself from this responsibil- 
 ity is by showing performance, or its prevention by the act of God, or 
 a public enemy. And in this case, if you believe, from the evidence, 
 that the defendant, at the time in question, was a common carrier, 
 
 Rd. Co., 32 N. H. 523; Hutchinson 55; Hutchinson on Car. (3rd ed.), 
 
 on Car. (3rd ed.), § 704. § 714. 
 
 64 — Cahii v. Mich. Cent. R. R. 65— Am. Merchants U. Ex. Co. v. 
 
 Co.. 71 111. 96; Mechanic's Bank v. Wolf, 79 111. 430; Stadhecker v. 
 
 Trans. Co.. 23 Vt. 211; New Albany Combs, 9 Rich (S. C.) 193; Hutch- 
 
 & S. Rd. Co. v. Campbell, 12 Ind. inson on Car. (3rd ed.), § 716 et seq.
 
 § 1744.] NEGLIGENCE— COMMON CARRIERS. 1127 
 
 and as such received the money in question, to be carried and de- 
 livered to the plaintiff at K., and that the defendant delivered said 
 money to one E., on a writing purporting to be an order of the plain- 
 tiff, and that said order was a forgery, then such delivery will not 
 excuse the defendant, and the plaintiff is entitled to recover the 
 amount of said money.^® 
 
 § 1744. Care Rectuired of Warehousemen, (a) The jury are fur- 
 ther instructed, that when the carxier assumes the duty of ware- 
 houseman, he is bound to use ordinary care and diligence in the pres- 
 ervation of the property. The building in which the goods are stored 
 must be a reasonably safe one, and under the charge of careful and 
 competent sei'i'ants. 
 
 (b) And if you further believe, from the evidence, that after the 
 goods arrived at their destination, and after a reasonable time for the 
 consignee to call for and receive the same, the defendant retained 
 possession of them, such possession would be in the capacity of a 
 warehouse keeper of goods for hire, and as such warehouseman, the 
 defendant was bound to use all ordinary diligence and caution in the 
 care of the same.*^^ 
 
 (c) That the ordinary diligence or care which a warehouseman 
 is bound to use, is that degree of care and attention which, under the 
 same circumstances, a man of ordinaiy pmdence and discretion would 
 ordinarily use in reference to the particular goods, if they were his 
 own property..^* 
 
 § 1745. What is Ordinary Diligence and Care. That ordinaiy dili- 
 gence is such diligence as men of common prudence usually exercise 
 about their own affairs; and ordinaiy care is such care as an ordi- 
 narily prudent person usually takes of his own goods.*'^ 
 
 RIGHTS OF THE CARRIER. 
 
 § 1746. Suit by Carrier for Freight and Charges. If the jury be- 
 lieve, from the evidence, that at the time in question the plaintiff 
 was a common carrier, and in the ordinary course of business received 
 the goods in question, in the proper line of transit, and paid freight 
 and charges thereon to preceding carriers or warehousemen, then 
 the plaintiff is entitled to reasonable charges for the transportation 
 of said goods, besides the amount so paid to others, although the jury 
 may believe, from the evidence, that said goods were damaged before 
 they reached the plaintiff, while in the hands of some prior carrier; 
 provided the juiy further believe, from the evidence, that said goods 
 were not injured after coming to the hands of plaintiff. ''" 
 
 66— Am. M. U. Ex. Co. v. Milk, 69— C. & A. Rd. Co. v. Scott, 42 
 73 111. 224. 111. 132. 
 
 67— Chi., R. I. & P. Rd. Co. v. 70— Bissell v. Price, 16 111. 408; C. 
 Faircloug-h, 52 111. 106. & N. W. Rd. Co. v. N. W. U. P. 
 
 68— Mote v. C. & N. W. Rd. Co., Co., 38 la. 377. 
 
 27 la. 22; Francis v. D. & S. C. 
 Rd. Co., 25 la. 60.
 
 CHAPTER LXVIII. 
 
 NEGLIGENCE— RAILROADS— PASSENGER CARRIERS. 
 
 See Erroneous Instructions, same chapter head. Vol. III. 
 
 IN GENERAL, 
 
 § 1747. Degree of care required of 
 carriers of passengers — 
 Varying statements of dif- 
 ferent courts. 
 
 § 1748. Carrier not an insurer 
 against accidents. 
 
 § 1749. The passenger talies all the 
 risks (necessarily incident 
 to the mode of convey- 
 ance. 
 
 § 1750. Riding on freight or mixed 
 trains — Risks assumed by 
 passenger. 
 
 § 1751. Liability of connecting lines 
 for accidents on one an- 
 other's lines. 
 
 TEESPASSERS AND PERSONS NOW PAS- 
 SENGERS. 
 
 § 1752. Degree of care due tres- 
 passer. 
 
 5 1753. Care due persons coming to 
 train to aid or assist pas- 
 sengers. 
 
 THE PASSENGER RELATION. 
 
 S 1754. Payment of fare — As condi- 
 tion precedent to estab- 
 lishing passeugership rela- 
 tion. 
 
 5 1755. Passenger relation need not 
 
 'be specifically mentioned 
 in instruction — When in- 
 jury "alleged in declara- 
 tion" is sufficient. 
 
 5 1756. When relation of carrier 
 
 and passenger ends. 
 
 STATIONAL FACILITIES. 
 
 5 1757. Degree of care required as 
 
 to statlonal facilities. 
 
 51758. Passenger using dilapidated 
 
 or unsafe platform. 
 
 ROADBED AND TRACK. 
 
 Of 
 
 81759. Liability for condition 
 roadbed and track. 
 
 ! 1760. Derailment through em- 
 bankment giving way — 
 Measure of care as to 
 bridges and culverts. 
 
 9 1761. Injury to passenprer through 
 obstruction near or on 
 track. 
 
 11 
 
 CARS AND APPLIANCES. 
 
 § 1762. Liability as to cars and ap- 
 pliances. 
 
 § 1763. Failure to properly heat car. 
 
 § 1764. Furnishing filthy or unfit 
 car — Rule in Texas as to 
 measure of damages. 
 
 § 1765. Riding on loaded freight 
 cars belonging to another 
 carrier — Duty of carrier 
 furnishing motive power 
 as to inspection of ve- 
 hicles used. 
 
 § 1766. Liability for defective coup- 
 ling. 
 
 § 1767. Use of spark arresters on 
 engines. 
 
 SERVANTS. 
 
 § 1768. Responsibility of carrier for 
 negligence or wrongful 
 conduct of servants. 
 
 § 1769. Negligence in writing date 
 on pass no excuse for as- 
 sault by conductor. 
 
 MANAGEMENT AND OPERATION OF 
 CARS AND VEHICLES. 
 
 § 1770. Duty to run trains accord- 
 ing to schedules — Damages 
 — Burden of proof. 
 
 § 1771. Wlhen delay is presumptive- 
 ly negligent. 
 
 § 1772. Freight trains not required 
 to stop at platforms to 
 receive or discharge pas- 
 sengers. 
 
 § 1773. Negligently starting train 
 while passenger is getting 
 on. 
 
 § 1774. No obligation to stop train 
 after starting to permit 
 passenger to board it. 
 
 § 1775. Boarding train at place 
 where stop is required by 
 statute — Effect of usage. 
 
 § 1776. Duty to give notice of ar- 
 rival at stations. 
 
 § 1777. Duty to announce stations — 
 Passenger negligently fail- 
 ing to hear announcement.
 
 NEGLIGENCE— PASSENGER CARRIERS. 
 
 1129 
 
 § 1778. Effect of conductor's prom- 
 ise to come for passengers 
 at destination — Carrying 
 passengers past destina- 
 tion. 
 
 § 1779. Duty to stop a reasonable 
 time for passengers to 
 alight. 
 
 5 1780. Degree of care required of 
 carrier wiiile passenger is 
 alighting. 
 
 § 1781. Starting train while passen- 
 ger is in act of alighting. 
 
 §1782. Fall while alighting must 
 be due to negligence of 
 carrier, or his servants, to 
 render carrier liable. 
 
 i 1783. Getting off train while in 
 motion — Obeying directions 
 of sleeping car porter. 
 
 ! 1784. Obeying directions of con- 
 ductor in alighting from 
 train. 
 
 § 1785. Conductor pulling passen- 
 ger from train while in 
 motion. 
 
 §1786. Effect of agreement with 
 conductor to check speed 
 of train in order that pas- 
 sengers might alight. 
 
 §1787. Failure to warn passenger 
 of danger in alighting. 
 
 ! 1788. Stopping at suitable place 
 for passenger to alight. 
 
 § 1789. Furnishing passenger safe 
 means for alighting. 
 
 § 1790. Helping passengers to alight. 
 
 § 1791. Injury to passenger by hav- 
 ing dress stepped on while 
 alighting. 
 
 5 1792. Stopping train a reasonable 
 time for refreshments. 
 
 5 1793. Duty as to operation of 
 stock trains carrying pas- 
 sengers. 
 
 § 1794. Injury to stockman by jerk- 
 ing or jolting car M-hile 
 properly tending his stock. 
 
 5 1795. Injury to passenger through 
 collision. 
 
 § 1796. Collision prima facie negli- 
 gence. 
 
 § 1797. Derailment of car prima 
 facie negligence. 
 
 §1798. Care due passenger while 
 train is being switched. 
 
 PEOTECTION OF PASSENGER BY 
 CARRIER. 
 
 § 1799. Duty of conductor to pro- 
 tect female passenger from 
 vulgarity and obscenity. 
 
 COXTRinrXORY XEGLIGEXCE. 
 
 § 1800. Contributory negligence of 
 
 passenger. 
 § 1801. Ordinary care and prudence 
 
 required of passenger. 
 
 § 1802. Riding upon engine right- 
 fully at invitation of con- 
 ductor. 
 
 § 1803. Alighting from train en- 
 cumbered by grips and va- 
 lises. 
 
 § 1804. Passenger stumbling or 
 falling while alighting. 
 
 § 1805. Boarding moving train. 
 
 § 1806. Getting off moving train. 
 
 § 1807. Jumping off moving train 
 after sufficient time to 
 alight has been given. 
 
 § 1808. Effect of direction of car- 
 rier's servant to passenger 
 to get off moving train. 
 
 § 1809. Effect of direction of car- 
 rier's servant to passenger 
 not to get off moving train. 
 
 § 1810. Effect of carrier's discovery 
 of passenger's peril in time 
 to avoid consequences of 
 passengers contributory 
 negligence. 
 
 § 1811. Jumping from the cars 
 negligence, when. 
 
 § 1812. Jumping from moving train 
 when suddenly placed in 
 a perilous position by 
 carrier. 
 
 § 1813. Contributory negligence of 
 shipper of live stock in 
 riding on engine. 
 
 § 1814. Jumping from train on see- 
 ing another train approach- 
 ing. 
 
 § 1815. Live stock shipper remain- 
 ing in car with stock when 
 he knows his position is 
 perilous. 
 
 § 1816. Standing on platform of car. 
 
 § 1817. Passing from car to car 
 while train is in motion. 
 
 § 1818. Duty of passenger to miti- 
 gate injuries as far as 
 possible. 
 
 RULES AXD REGULATIOXS OF 
 CARRIERS. 
 
 § 1819. Right to prescribe rules. 
 
 § 1820. Carrier may set apart separ- 
 ate cars for ladies. 
 
 § 1821. When carriers may refuse to 
 receive intoxicated per- 
 sons as passengers. 
 
 TICKETS. 
 
 § 1822. When representations of 
 ticket agent are binding 
 on carrier. 
 
 § 1823. Requiring higher fare when 
 paid on train. 
 
 § 1824. Validation of reduced rate 
 round trip tickets at des- 
 tination by identification 
 and stamping. 
 
 § 1825. Effect of purchaser signing 
 a round-trip ticket.
 
 1130 
 
 FORMS OF INSTRUCTIONS. 
 
 [§ 1747. 
 
 LIMITATION OF LIABILITY. 
 
 § 1826. Limitation of liability- 
 Existence of contract a 
 question of fact for the 
 jury. 
 EJECTION OF PASSENGERS. 
 
 § 1827. CaiTier may eject person 
 refusing- to produce a 
 ticket or pay his fare. 
 
 § 1828. Carrier may eject passenger 
 using abusive or obscene 
 language. 
 
 § 1829. Right of conductor to eject 
 passenger using obscene or 
 abusive language — Rule in 
 Alabama, 
 
 § 1830. Injuries to passengers 
 brought on by refusal to 
 leave train when ordered 
 by conductor. 
 
 § 1831. Ejection of passenger from 
 train while in motion. 
 
 BAGGAGE. 
 
 § 1832. Liability for baggage. 
 
 § 1833. What term "baggage" does 
 noit extend to. 
 
 § 1834. If a trunk contains articles 
 of special value, carrier 
 should be notified. 
 
 § 1835. Carrier not bound to inquire 
 as to contents of trunk. 
 
 § 1836. Baggage — Liability of car- 
 rier for terminates, when. 
 
 SLEEPING CAK COMPANIES. 
 § 1837. Care due property of pas- 
 senger by sleeping car 
 company. 
 
 § 1838. Liability of sleeping car 
 company for theft of pas- 
 senger's diamond. 
 
 BURDEN OF PROOF. 
 
 § 1839. Rule in Georgia as to burden 
 of proof when fact that 
 plaintiff was a passenger 
 is shown. 
 
 § 1840. Burden of proof where negli- 
 gence is shown in con- 
 struction, operation or 
 maintenance of rolling 
 stock or roadbed. 
 
 § 1841. Burden of proof as to condi- 
 tion in passenger's tickets. 
 
 ELEVATORS. 
 
 § 1842. Injury to passenger through 
 fall of elevator. 
 
 This chapter does not include instructions relative to street rail- 
 roads as carriers of passengers. For such instructions see chapter on 
 NEGLIGENCE!— STREET RAILROADS. 
 
 IN GENERAL. 
 
 § 1747. Degree of Care Required of Carriers of Passengers, (a) 
 
 The jury are instructed, as a matter of law, that it is the duty of a 
 railroad company to use the highest degree of care and caution, con- 
 sistent with the praotical operation of the road, to provide for the 
 safety and security of the passenger while being transported.^ 
 
 (b) The jury are instructed that common carriers of persons are 
 required to do all that human care, vigilance and foresight can reason- 
 ably do, in view of the character and mode of conveyance adopted, to 
 prevent accidents to passengers.^ 
 
 1— Chicago C. Ry. Co. v. Pural, 
 
 224 Til. 324. 79 N. E. 686 (688). 
 
 "The point is made that the word 
 'reasonably' should have been in- 
 serted before the word 'consistent.' 
 We do not think such qualification 
 necessary to a proper presentation 
 to the jury of the law as to the 
 duty of the carrier to its passenger. 
 To be consistent with the practical 
 operation of the road means in 
 harmony with sudh operation, and 
 we fail to see that there could be 
 degrees of harmony or consistency 
 in the practical operation of a 
 railroad. Anything required not 
 consistent with the practical opera- 
 
 tion of its road would be unreason- 
 able. The word 'practical' in the 
 instruction is a full and sufficient 
 qualification, and the word 'rea- 
 sonably' would have added no 
 other element for the consideration 
 of the jury. An instruction nearly 
 identical with the one here set 
 out, and clearly open to the objec- 
 tion ihere taken, was approved by 
 this court in West Chi. St. R. R. 
 Co. v. Kronshinsky, 185 111. 92, 56 
 N. E. 110." 
 
 2— Larkin v. Chicago & G. W. 
 Ry. Co., 118 Iowa 652, 92 N. W. 891; 
 H. & St. J. R. R. Co. V. Martin, 
 111 111. 219.
 
 § 1747.] NEGLIGENCE— PASSENGER CARRIERS. 
 
 113] 
 
 (c) The utmost degree of care wliieb tlie human mind is capable 
 of inventing is not required, but the highest degree of care and dili- 
 gence which is reasonabW jDraeticable, under the circumstances of the 
 case, is required.^ 
 
 (d) You are instructed, that the law imposes upon common car- 
 riers of iDassengers the duty of providing for their safe conveyance, 
 as far as human care and foresight can reasonably secure that result; 
 and the passenger takes no risks, except such as are necessarily inci- 
 dent to the particular mode of conveyance or travel, while the carrier 
 is using the utmost care and diligence that is reasonably practicable.* 
 
 (e) The plaintiff had a right, therefore, as a passenger of the de- 
 fendant, to be safely carried and safely delivered at her destination 
 by the defendant company; and it was the duty of the defendant 
 company to use the highest degree of care and skill in carrying the 
 plaintiff from D to M, and to use the highest degree of care and skill 
 in seeing that she was safely delivered at her destination in M. 
 These are the general principles of law' which apply to all eases where 
 the relation of passenger and carrier exists.^ 
 
 (f) Railway companies are not insurers of the safety of their 
 passengers, but they are required to exercise the highest degree of 
 ca,re that very cautious, competent and prudent persons would exer- 
 cise under similar circumstances, and a failure to exercise such care 
 is negligence.® 
 
 3— Tuller v. Talbot, 23 111. 357; 
 Edwards v. Lord, 49 Me. 279; 
 Sales V. W. Stage Co., 4 la. 547; 
 Fairchild v. Cal. Stage Co., 13 Cal. 
 599; Taylor v. Day, 16 Vt. 566. 
 
 4— Holley v. B. G. Co., 8 Gray 
 131. 
 
 5— Olson v. C. M. & St. P. Ry. 
 Co., 94 Minn. 241, 102 N. W. 449. 
 
 6— St. L. S. W. Ry. Co. v. Byers, 
 — Tex. Civ. App. — , 70 S. W. 558 
 (559). 
 
 "The charge imposed upon ap- 
 pellant the duty to use the care 
 which would have been exercised 
 under like conditions by a certain 
 class of persons, and not the care 
 which would have been exercised 
 by the mo.st skillful and careful 
 individuals to be found in the class 
 of persons named. It thus fur- 
 nishes a safe and sound standard 
 for measuring the care required, 
 the criterion being what the aver- 
 age man of the given class would 
 have done under the same circum- 
 stances. That carriers of persons 
 are bound to use the care which 
 would be exercised by very cauti- 
 ous, competent and prudent per- 
 sons is so w^ell settled that it is 
 not questioned. But it is con- 
 tended thnt railway companies are 
 required to use only tha't degree 
 
 of care which would ordinarily be 
 exercised by the said class of 
 persons, and are not required to 
 use the highest degree of care 
 wihich would be exercised by such 
 persons. We are not sure of the 
 existence of the distinction which 
 the appellant attempts to draw. It 
 seems to us that ordinarily very 
 skillful and careful persons would, 
 where the personal safety of their 
 fellow men was involved, exercise 
 the highest care which the nature 
 of the case permitted. At all 
 events, a less degree of care than 
 the highest care practicable is 
 nowhere recognized as the measure 
 of the duty of a carrier of passen- 
 gers. The charge under considera- 
 tion does not require of the carrier 
 the highest possible care, but only 
 the highest care which would be 
 exercised by very cautious, compe- 
 tent and prudent persons under 
 similar circumstances, and doea 
 not, therefore, transgress the rule 
 laid down in adjudicated cases in 
 this state. Charges have been con- 
 demned which required 'all possi- 
 ble care,' 'the greatest possible 
 care and diligence,' and 'the high- 
 est degi-ee of care and diligence 
 that human judgment and fore- 
 sight are capable of." Int. & G.
 
 1132 FORMS OP INSTRUCTIONS. [§ 1747. 
 
 (g) The court instructs you, as a matter of law, that if there is 
 the least failure by a common carrier of passengers to exercise all 
 the care and diligence that is reasonably practicable, in keeping its 
 vehicles and appliances in safe condition, then the duty of the cai-rier 
 is not fulfilled, and it is answerable for any injury or damage of 
 which such neglect is the proximate cause; provided, the person in- 
 jured is himself using reasonable care and caution to avoid such 
 injuiy.'^ 
 
 (h) The court instructs the jury, that if they believe, from all 
 the evidence in this case, that on or about the 16th day of February, 
 
 , the defendant was controlling and operating a train of cars 
 
 on a railroad in this county, and that the defendant received the 
 plaintiff on its cars as a passenger, for hire, then the court instructs 
 the jury that the defendant was bound to make up its train, couple 
 its cars, and manage and control its ears and engines in such a care- 
 ful, skillful and jDrudent manner as to carry the plaintiff with reason- 
 able safety as such passenger.^ 
 
 (i) The court instructs you, as a matter of law, that it is the duty 
 of a railroad company engaged in the transportation of passengers 
 to use the highest degree of care, vigilance and foresight for the 
 safety of its i^assengers that is consistent with the proper and prac- 
 tical operation of its road, and it is liable for any injuries that may 
 result to passengers from the neglect of this duty.^ 
 
 (j) Common carriers of persons are required to do all that human 
 care, vigilance and foresight can reasonably do, consistent with the 
 character and mode of conveyance adopted, and the practical prosecu- 
 tion of the business, to prevent accidents to the passengers riding 
 upon their trains, getting upon them or alighting therefrom. ^^ 
 
 (k) It is the duty of common cai-riers to do all that human care, 
 vigilance and foresight can reasonably do under the circumstances 
 and in view of the character of the mode of conveyance adopted 
 reasonably to guard against accident and consequential injuries, and 
 
 N. Ry. Co. V. Welch, 86 Tex. 204, case affirmatively instructed the 
 
 24 S, W. 390, 40 Am. St. 829; jury that appellant was not an in- 
 
 Fordyce v. Withers, 1 Civ. App. surer of the safety of appellee, and 
 
 544, 20 S. W. 766; Fordyce v. we do not think that the jury 
 
 Chancey, 2 Civ. App. 27. 21 S. W. could have been misled to the in- 
 
 181; Gulf, C. & S. F. Ry. Co. v. jury of appellant." 
 
 Shields, 9 Tex. Civ. App. 655, 28 7— Briggs v. Taylor, 28 Vt. 180. 
 
 S. W. 709, 29 S. W. 652. 8— H. & St. J. R. R. Co. v. Mar- 
 
 "On the other hand, charges have tin, 111 111. 219. 
 
 been approved which required the 9 — 111. S. Ry. Co. v. Hubbard, 
 
 use of 'the utmost care' and 'the 106 111. App. 462 (465). 
 
 highest degree of care.' Gallagher 10 — Chicago C. Ry. Co. v. Bundy, 
 
 v. Bowie, 66 Tex. 625, 17 S. W. 210 111. 39 (47), 71 N. E. 28; Chi. & 
 
 407; Houston & T. C. Ry. Co. v. A. R. R. Co. V. Byrum, 153 111. 131 
 
 George, — Tex. Civ. App. — , 60 (134), 38 N. E. 578. 
 
 R. W. .313; Ry. Co. v. Craig, 69 S. See also C. P. & St. L. Ry. Co. 
 
 W. 239, 5 Tex. Ct. Rep. 25. v. Lewis, 48 111. App. 274 (280), 
 
 "See also Dallas Cons. F. St. Ry. aff'd 145 111. 67, 33 N. E. 960; West 
 
 Co. v. Broadhurst, 28 Tex. Civ. Chi. R. R. Co. v. Kromshinsky, 
 
 App. 630. 68 S. W. 315, and cases 185 111. 92, 56 N. E. 1110, aff'g 86 
 
 there cited. The charge in this 111. App. 17.
 
 § 1748.] NEGLIGENCE— PASSENGER CARRIERS. 1133 
 
 if they neglect so to do, they are held to be strictly responsible for all 
 consequences which flow from such neglect; that while the carrier is 
 not an insurer for the absolute safety of the passenger, it does, how- 
 ever, in legal contemplation undertake to exercise the highest degree 
 of care to secure safety of the passenger, and is responsible for the 
 slightest neglect resulting in injury to the passenger if the passenger 
 is at the time of the injury exercising ordinary care for his or her 
 safety, and this care applies alike to the safe and proper construction 
 and equipment of the road, the employment of skillful and prudent 
 operatives, and the faithful performance by them of their respective 
 duties.^^ 
 
 (1) Negligence, when applied to carriers of passengers, means a 
 failure in the performance of duty imposed by law, for the protec- 
 tion of others, to exercise that high degree of care in acting and re- 
 fraining from acting which very competent and prudent persons would 
 usi;ally exercise under the same or similar circumstances.^^ 
 
 § 1748. Carrier not an Insurer against Accidents, (a) That while 
 the defendant was bound to do all that human care, vigilance and 
 foresight could reasonably do, consistent with the practical operation 
 of the road, in order to prevent injuries to its passengers, still the 
 company does not insure the absolute safety of its passengers ; and, in 
 this ease, if the jury believe, from the evidence, that the injuiy com- 
 plained of was occasioned by an internal or hidden defect in the 
 * * * which a thorough and careful examination would not dis- 
 close, and which could not be guarded against by the exercise of a 
 sound judgment and the most vigilant oversight and care, then the 
 defendant is not liable for the injury so oecasioned,^^ 
 
 (b) The defendant was not an insurer of the personal safety of the 
 plaintiff's wife, Mrs. F., while she was a passenger on the appellant's 
 train, but owed to her the duty to exercise that high degree of care 
 for her reasonable personal safety which a veiy pi'udent person would 
 use under the same circumstances about the same matter; and a fail- 
 ure of the defendant, if any, to exercise such degree of care, would 
 be negligence.^* 
 
 (e) If you believe, from the evidence, that the injury to the plain- 
 tiff in this suit happened to him by mere accident, without any fault 
 on the part of the defendant, or its employes, then the plaintiff cannot 
 recover in this action. 
 
 (d) If you believe, from the evidence, that the defendant exer- 
 cised all reasonably practicable care, diligence and skill, in the eon- 
 
 11— Chi. & A. R. R. Co. v. By- G. T. R. D. Co., 48 N. H. 304; 
 
 rum, 153 III. 131 (134), 38 N. E. 578. McPadden v. N. C. Rd. Co., 44 
 
 12— St. L. S. W. Ry. Co. v. Harri- N. Y. 278; Sherlock v. Ailing, 44 
 
 son, 32 Tex. Civ. App. 368, 73 S. Ind. 1S4; Grand R. & Ind. Rd. Co. 
 
 W. 38. V. Bovd, 65 Ind. 526. 
 
 13— P., C. & H. L. R. R. Co. 14— St. L. S. W. Ry. Co. v. 
 
 V. Thompson, 56 111. 138; Ingalls v. Ferguson, 26 Tex. Civ. App. 460, 
 
 Biels, 9 Met. 1; Ladd v. New B. 64 S. W. 797. 
 Rd. Co., 119 Mass. 412; Taylor v.
 
 1134 FORMS OF INSTRUCTIONS. [§ 1749. 
 
 struetion, preservation and repairs of its track, and in managing and 
 operating its road, at the time of the accident, and that the accident 
 could not have been prevented by the use of the utmost practicable 
 care, diligence and skill, then the plaintiff cannot recover in this 
 action. 
 
 (e) The court instructs you, that while common carriers of pas- 
 sengers are held to the very highest degree of care and prudence 
 which is consistent with the practical operation of their vehicles and 
 the transaction of their business, still they are not absolute insurers 
 of the personal safety of their passengers. 
 
 (f) And, in this case, though you may believe, from the evidence, 
 that the plaintiff was injured while a passenger on defendant's ears, 
 still, if you further believe, from the evidence, that the defendant and 
 its servants were not guilty of any negligence which contributed to 
 such injury, then the defendant is not liable in this action. ^^ 
 
 (g) The duty of a can'ier is to safely carry passengers. It is true 
 that a carrier is not an insurer of the safety of those whom it under- 
 takes to carry, against all the risks of travel ; but nevertheless there 
 rests upon such carrier this general duty of safely carrying.^^ 
 
 § 1749. The Passenger Takes all the Risks Necessarily Incident to 
 the Mode of Conveyance, (a) The jury are instructed, that plaintiff, 
 as a passenger on the defendant's car, as a matter of law, is presumed 
 to have taken upon himself all the risks necessarily incident to that 
 mode of traveling; and if the juiy believe, from the evidence, that 
 without the fault of the defendant, but by inevitable accident, plain- 
 tiff was injured, the jury should find for the defendant. 
 
 (b) The court instructs you, as a matter of law, that a passenger 
 upon a railroad train takes all the risks attending that mode of travel, 
 except such as are caused or increased by the negligence of the rail- 
 road company, or its servants.^'^ 
 
 § 1750. Riding on Freight or Mixed Trains — Risks Assumed by 
 Passenger — Series, (a) The court instructs the jury that the defend- 
 ant did not assume the absolute safety of plaintiff while a passenger 
 on its train, but it was the duty of the defendant's agents in charge 
 of its train upon which plaintiff was a passenger to exercise the high- 
 est degree of care and diligence consistent with the mode of trans- 
 portation adopted to save him from injury. 
 
 (b) If the jury believe, from the evidence, that the agents of de- 
 fendant in charge of the train upon which plaintiff was a passenger, 
 so negligently operated said train, that plaintiff was, by a sudden 
 and violent jerk not necessary or usual in the operation of said train, 
 thrown upon the floor, and J. S. Avas thrown upon plaintiff, striking 
 him with his elbow or knee in the side or bowels, thereby causing 
 plaintiff to have rupture or hernia, they will find for plaintiff such 
 reasonable sum in damages as they may believe, from the evidence, 
 
 15— G. & C. Union R. R. Co. v. Wood. 113 Ind. 544, 14 N. E. 572. 
 Tnrwoof], 15 111. 468. 17— Grand R. & Ind. Rd. Co. 
 
 16— LouLsville, etc., R. Co. v. v. Boyd, 65 Ind. 526.
 
 § 1751.] NEGLIGENCE— PASSENGER CARRIERS. 1135 
 
 will compensate him for the physical and mental pain, if any, suffered 
 by him by reason of said injury, and for any permanent diminution 
 of power, if any, to earn money by reason of such injury, not exceed- 
 ing dollars. 
 
 (c) The court instructs the jury that it was the duty of the plain- 
 tiff to exercise reasonable care to protect himself while a passenger on 
 defendant's train, and although the jury may believe from the evi- 
 dence that the defendant was negligent, as in instruction No. 1, yet, 
 if they shall further believe, from the evidence, that the plaintiff was 
 himself negligent, and that the injury, if any, to him, would not have 
 occurred, but for such negligence on his part, the law is for the de- 
 fendant, and the jury will so find. 
 
 (d) The riding upon mixed trains composed of freight and passen- 
 ger cars is unavoidably accompanied with more discomfort and danger 
 than upon the trains devoted exclusively to passengers, and the pas- 
 senger who accepts carriage upon such a train must be deemed thereby 
 to have assumed the risk of such additional discomfort and danger 
 due to the nature of the train. Now, if you believe, from the evi- 
 dence, that the train upon which the plaintiff, J., was riding was 
 such a train, and while he was a passenger thereon the car in which 
 he was riding was forced against the one in front so as to cause the 
 injury complained of, j^et if the train and cars were properly equipped 
 and were carefully handled, and there was no more jarring or jolting 
 than is usually unavoidable in the handling of such trains, then the 
 jurj' will find for the defendant. 
 
 (e) The court instructs the jury that if they believe, from the 
 evidence, that the plaintiff or S. insisted upon taking the invalid and 
 chair into the baggage car, and attended upon the patient there, and 
 at the time there were other seats and accommodations upon the train 
 for safely carrying the patient and her attendants, and that plaintiff 
 would not have been injured except for his so riding in the baggage 
 car, they will find for the defendant. ^^ 
 
 § 1751. Liability of Connecting Lines for Accidents on One An- 
 other's Lines, (a) The court charges the jury that where two rail- 
 road companies unite to run an excursion train over both of their 
 lines, upon terms which make each of them responsible only for acci- 
 dents occurring on its own line, and tickets are sold by one of them 
 as the agent for both, expressing such limitation of liability, it mat- 
 ters not where, for the convenience of the parties, the point is estab- 
 lished for the change of crews running the train, as to the passenger 
 holding one of such tickets the liability is fixed by the point of actual 
 junction of the lines. Before charging you that, I have to explain to 
 you that that would be the law unless part of the line or track of one 
 railway is used in common by both railway companies, in which case 
 the liability is fixed, not by the point of actual junction of the lines, 
 
 18— Chesapeake & O. Ry. Co. v. Jordan, 25 Ky. L. R. 574, 76 S. 
 W. 145 (146).
 
 1136 FORMS OF INSTRUCTIONS. [§ 1752. 
 
 but by the time when the control of the train is surrendered by one 
 company and accepted by the other company. That fixes the liability. 
 
 (b) That where a railroad company, chartered under the laws of 
 this state, has, under the franchises conferred upon it, built its line 
 and established a depot, and allows another railroad company to run 
 its trains over a part of such line and into such depot, the company 
 owning such line is responsible to the public and passengers for all 
 accidents happening on such trains by negligence. I cannot charge 
 you that, unless the evidence shows that the railway company owning 
 such line had taken control of the train. One railroad company is not 
 to be held responsible for the negligence of another railroad company. 
 Each much bear its own burden. If, therefore, the company which is 
 allowed to use a line is still in control of a train, and injures a pas- 
 senger by negligence, the railroad company owning the line cannot be 
 held liable for that negligence, but the railroad company controlling 
 the train would be held liable for the negligence. 
 
 (e) That where two railroad companies unite to run an excursion 
 train over both of their lines, upon terms which make each of them 
 responsible only for accidents occurring at its own line, and tickets 
 are sold by one of them as the agent of both, expressing such limita- 
 tion of liability, it matters not whether the train is carried through to 
 its destination by the conductor and train crew employed by the initial 
 company or not. The company upon whose track the train is at the 
 time of the accident, and under whose orders the conductor is running 
 the train, is liable for the accident, and the conductor is to the passen- 
 gers on such train as the conductor of the company owning the line 
 and issuing the orders for the operating of the train. As to that, 
 gentlemen, I charge you that with this explanation: that the test is 
 not what railroad company owns the line where the accident may have 
 occurred, but what railroad company controls the train, because the 
 railroad line may lease the line or it may be allowed, as a matter of 
 favor, to run its train on the line of another railway, but the railway 
 company controlling the train on the line of another railroad is re- 
 sponsible for the injuries caused by its negligence.^^ 
 
 TRESPASSERS AND PERSONS NOT PASSENGERS. 
 
 § 1752. Degree of Care Due Trespasser. If you find, from the 
 evidence, that the plaintiff was traveling upon the train in question, 
 
 19— Oliver v. Columbia, N. & initial company, thoug-h moving, 
 
 L. R. Co., 65 S. C. 1, 43 S. E. 307 his train for said two miles unden 
 
 (322). orders of the owner of that track, 
 
 "Whore two connecting railroad the initial company is liable for 
 
 companies unite in running an ex- negligence resulting in injury to a 
 
 cursion train, and the initial com- passenger, until the passenger is 
 
 pany uses two miles of the track safely turned over to the terminal 
 
 of the terminal company before company at the point where the 
 
 surrendering the control of the train is surrendered by the one 
 
 train to the terminal company, the and accepted by the other." 
 conductor being an employe of the
 
 § 1753.] NEGLIGENCE— PASSENGER CARRIERS. 1137 
 
 and that for the purpose of avoiding the payment of fare he was 
 riding upon the platform of one of said cars, or other place outside 
 the passenger coach, then the employes of the defendant would have 
 the right to use all force and power necessary to overcome any resist- 
 ance that might be offered; but they would not have the right to 
 remove him, or push him off, or require him to jump off at a place 
 where it was unsafe to get off, or at a time when the train was run- 
 ning at such rate of speed that it would be unsafe for a person to get 
 off; and if you find that the plaintiff has established, by a preponder- 
 ance of the evidence, that the brakeman on said train, or other em- 
 ploye thereon, did push the plaintiff off of said train at a place where 
 it was unsafe to jump off, or at a time when the train was running at 
 a speed when it made such act dangerous, and that the plaintiff was 
 injured thereby, then your verdict must be for the plaintiff.-^ 
 
 § 1753. Care Due Persons Coining to Train to Aid or Assist Pas- 
 sengers. If you believe, from the evidence, that the plaintiff on the 
 day in question did not intend to become a passenger on defendant's 
 railroad, yet, if you believe the plaintiff was in good faith there wait- 
 ing to see a person out of mere friendshiiD, whom he expected to be a 
 passenger on defendant's railroad, the plaintiff had a right to be 
 upon said platfonn, although the person whom he expected did not 
 in fact arrive. And if you further believe, from the evidence, that the 
 plaintiff while so waiting and using due care and caution for his own 
 safety, was injured by the defendant's sem^ants' gross negligence or 
 recklessness (if shown by the evidence) in manner and form as 
 charged in plaintiff's declaration, then you should find for the plain- 
 tiff.2i 
 
 THE PASSENGER'S RELATION TO CARRIER. 
 
 § 1754. Payment of Fare — As Condition Precedent to Establishing 
 Passenger Relation, (a) You are instructed by the court, if you find, 
 
 from the evidence, that G. C. P., on the of , was on the 
 
 platform of one of the passenger ears of a train operated by the 
 defendant company, with the intention of riding upon said train 
 without paying any fare, then and in that case he was not a passenger 
 upon defendant's train, and the defendant railroad company as a 
 common carrier owed him no duty. 
 
 (b) It is the duty of a person, when traveling upon a railroad 
 from one station to another, to enter the passenger coaches provided 
 for the cariying of passengers, and to remain therein while such train 
 is in motion, and to procure prior to the entering therein a ticket from 
 the agents of said company, or, if such ticket be not purchased, then 
 to pay the conductor on said train the proper and legal fare. A pei'- 
 son doing this, and not guilty of misconduct on said train, would be a 
 passenger, and the railroad company would be bound under the law 
 
 20— Pledger v. C, B. & Q. R. 21—111. C. R. R. Co. v. Wall, 
 Co., 69 Neb. 456, 95 N. W. 1057. 53 111. App. 588 (590). 
 
 72
 
 1138 FORMS OF INSTRUCTIONS. [§ 1755. 
 
 to properly care for and attend to the necessary and reasonable con- 
 veniences and wants of such passenger, and would be prima facie 
 liable for any injury that such passenger received while so traveling. 
 But a person riding on the outside of such passenger train, whether 
 on the platform or some other place without, or on parts of the bag- 
 gage car, for the purpose of obtaining a ride on such train without 
 the payment of any fare therefor, would not be a passenger upon such 
 train, but would be a trespasser thereon, and such railroad would owe 
 no duty to such person, and the employes of such company would have 
 the right to put such person off the train, and the railroad company 
 would not be liable therefor, unless such removal was done in a reck- 
 less, careless, or negligent manner, and the injury, if any, was the 
 result of such negligence. -^ 
 
 § 1755. Passenger Relation Need Not Be Specifically Mentioned in 
 Instruction — When Injury "Alleged in Declaration" Sufficient. If 
 
 the juiy believe, from a preponderance of the evidence, that the de- 
 fendant is guilty of the negligence charged in the declaration, or either 
 count thereof, and that the injury to plaintiff complained of and al- 
 leged in the declaration resulted directly therefrom, and that the 
 plaintiff was in the exercise of ordinary care for his own safety before 
 and at the time of the injury, the defendant is liable and the plaintiff 
 is entitled to a verdict.-^ 
 
 § 1756. When Relation of Carrier and Passenger Ends, (a) The 
 
 court instructs the jury that the relation of carrier and passenger 
 continues, where one is a passenger upon the train of a railroad cor- 
 poration, until the passenger has reached his destination, and has a 
 reasonable opportunity to alight safely from the cars. 2* 
 
 (b) If the jury find, from the evidence, that the plaintiff had taken 
 passage on the defendant's car, and had been safely carried to his 
 place of destination, and there alighted in safety from the defendant 's 
 car, and had left the defendant's railway track before receiving the 
 
 22 — Pledger v. C, B. & Q. it did not require the jury to find, 
 
 R. Co., 69 Neb. 456, 95 N. W. 1057. from the evidence, before returning 
 
 23 — So. Ry. Co. v. Cullen, 221 a verdict against the appellant, 
 
 111. 392 (397). that the appellee wg.s a passenger 
 
 "In cases of this character, where and rightfully upon the engine 
 the declaration states a good cause while riding there. It appears 
 of action, it would seem to be from the declaration that the re- 
 axiomatic that if the evidence lation of passenger and carrier 
 showed the defendant was guilty existed between the parties hereto 
 of the negligence charged in the at the time of the accident, and 
 declaration, that the injury re- the negligence charged against the 
 suited directly therefrom, and that appellant is a failure to exercise 
 the plaintiff was in the exercise the care required by the law for 
 of ordinary care before and at the the safety of its passenger, 
 time of the injury, and had not Unless the appellee was a passen- 
 assumed the risk, there should, as ger and rightfully upon the engine 
 a matter of course, be a verdict appellant was not guilty of the 
 against the defendant. Appellant, negligence charged in the declara- 
 however, argues that this instruc- tion." 
 
 tion furnished a test of liability, 24— Sanders v. So. Ry. Co.,, 107 
 
 and that it was erroneous because Ga. 132, 32 S. E. 840.
 
 § 1757.] NEGLIGENCE— PASSENGER CARRIERS. 1139 
 
 injuries complained of, the defendant, under such circumstances, 
 under the pleadings in this case, would not be liable. ^^ 
 
 (e) If you believe, from the evidence, that the employes of defend- 
 ant stopped the train at C. a reasonably sufficient time for a passenger 
 situated as was plaintiff to depart therefrom, and if you should fur- 
 ther believe that the plaintiff delayed getting off said train from any 
 cause, and that this delay, if an}', was unknown to defendant, then 
 you are charged that his contract relation with defendant ceased at 
 the expiration of such reasonable time, if any, and the defendant 
 could become liable only through failure of its servants to exercise 
 ordinary care against inflicting injury upon plaintiff.^^ 
 
 STATION FACILITIES. 
 
 § 1757. Degree of Care Required as to Station Facilities, (a) You 
 
 are instructed that it is the duty of a carrier of passengers to provide 
 and keep the landing places and platforms used by it for discharging 
 passengers from its vehicles and all passageways leading to and from 
 such places in a reasonably safe condition for the purposes intended, 
 and for any violation of its duty in this i-espect which entails injurj 
 upon a passenger, without fault on his part, the carrier will be answer- 
 able in damages.-^ 
 
 (b) While the law holds a railway company to the highest degree 
 of care as to its cars and appliances, and railroad track, in carrying 
 its passengers, and it would be liable for the slightest negligence in 
 that respect, it is not held to such high degree of care as to its station 
 or its appliances. The degree of care that a railway company is 
 bound to exercise as to its platform and approaches is only ordinary 
 care; hence if the jury find in this case that the defendant has exer- 
 cised ordinary care as to the safety of the place selected for passen- 
 gers to alight from its cars, and that such place was reasonably safe, 
 and such a place that a person of ordinary care and prudence would 
 
 25— Kennedy v. So. Ry. Co., 59 whole made it clear to the jury 
 
 S. C. 535, 38 S. E. 169 (170). that it was the trial court's view 
 
 26— St. L. S. W. Ry. Co. v. that not the hig-hest pos.sible de- 
 Bryant, — Tex. Civ. App. — , 92 gree, but a reasonable degree of 
 S. W. 813. care was required. That at least 
 
 "As applied to this evidence the such was required of appellant in 
 special charge refused contained a the care of its station platforms is 
 correct proposition of law and sustained by the following: Beth- 
 should have been given. In the man v. Old Colony R. Co., 155 
 case of Railway Company v. Mar- Mass. 352, 29 N. E. 587; Jordan v 
 tin. — Tex. Civ. App. — , 63 S. W. N. Y. N. H. & H. R. Co., 165 Mass. 
 1089, under a very similar state of 346, 43 N. E. Ill, 32 L. R. A. 101, 
 facts, a charge practically identi- 52 Am. St., 522; Missouri Pac. Ry! 
 cal with the one here refused was Co. v. Wortham, 73 Tex. 25, 10 S. 
 approved and the refusal thereof W. 741, 3 L. R. A. 368; Wallace v. 
 by the trial court constituted one Wilmington & N. R. Co. 8 Del. 
 of the errors for which the case 529, 18 Atl. 818; Knrght v. Portland" 
 was reversed." S. Sz P. R. Co., 56 Me. 234, 96 Am' 
 
 27— Hart v. Seattle R. & S. Dec. 449: Pennsylvania Co v Mc- 
 
 Ry. Co.. 37 Wash. 424, 79 Pac. 954. Caffrey, 173 111. 169, 50 N. E. 713." 
 
 "We think the instructions as
 
 1140 FORMS OF INSTRUCTIONS. [§ 1758. 
 
 have used, then the defendant would not be liable, and the verdict 
 should be in its favor.-^ 
 
 § 1758. Passenger Using Dilapidated or Unsafe Platform. If you 
 believe, from the testimony, that the platform through which the plain- 
 tiff claims to have fallen was in a dilapidated or unsafe condition, which 
 was open and apparent to a reasonably prudent and cautious person, 
 and such person, under the circumstances, and under such opportunity 
 as plaintiff had to know the condition of the platform, would have 
 discovered that such platform was in a dilapidated or unsafe condi- 
 tion, or had holes in it, then you are charged that plaintiff would be 
 presumed to know of such conditions, and know of the holes in the 
 platform, and if, under the circumstances, you believe that plaintiff 
 went upon the platform and was any way negligent in moving about 
 or stepping from the platform, and he was thus hurt by stepping in a 
 hole in the platform, or by a plank therein breaking, and he was 
 thus thrown or fell, and was injured, then plaintiff is not entitled to 
 recover in this case, even though you may believe defendant was neg- 
 ligent.29 
 
 ROADBED AND TRACK. 
 
 § 1759. Liability for Condition of Roadbed and Track, (a) The 
 court instructs the jury that the duty of the defendant company in 
 engaging to carry passengers for hire is to exercise extraordinary 
 care and diligence; that is, that extreme care and caution which very 
 prudent persons exercise in securing and preserving their own prop- 
 erty. It is the duty of the defendant to exercise that care and dili- 
 gence, not only in the construction of the road and the laying of the 
 rails, but in the maintenance of that road and those rails; and it is 
 the duty of the defendant that extreme care and caution be used in 
 the management of its cars, through its operatives and employes. And 
 if you find that the defendant was negligent in either of these re- 
 spects, and that negligence was the proximate cause of this derailment 
 and the injury, and the plaintiff could not have avoided the conse- 
 quences of that negligence by the exercise of ordinary care, the plain- 
 tiff would be entitled to recover.^" 
 
 (b) Carriers of passengers by railroad are bound to use all rea- 
 sonably practicable precautions, as far as human foresight will go, 
 for the safety of their passengers ; and they are answerable to injured 
 passengers for slight neglect to themselves or agents, in respect to the 
 condition of the track, and conduct and management of their trains, 
 
 28 — Kennedy v. So. Ry. Co., 59 although he may have the right 
 
 S. C. 535, 38 S. E. 169 (170). still to use the platform, such use 
 
 29 — Houston, E. & W. T. Ry. must be with care proportioned to 
 
 Co. V. McCarty, — Tex. — , 89 S. the risk arising from its known, 
 
 W. 805. or obvious and apparent condition. 
 
 "A man of ordinary care would Penn. Co. v. Marion, 123 Ind. 415, 
 
 use more care and caution in 23 N. E. 973, 7 L.. R. A. 687, 18 
 
 walking upon a platform with Am. St. 330." 
 
 holes in it, or rotten planks, than 30 — Macon Cons. St. R. Co. v. 
 
 one free from these defects, and Barnes, 113 Ga. 212, 38 S. E. 756.
 
 § 1760.] NEGLIGENCE— PASSENGER CARRIERS. 1141 
 
 if injury ensues therefrom, and the passengers themselves are without 
 fault.^i 
 
 § 1760. Derailment Through Embankment Giving Way — Measure 
 of Care as to Bridges and Culverts, (a) In this cause, if you believe 
 from all the evidence, that the sleeping car in which plaintiff was a 
 passenger was derailed and overturned as a direct and proximate 
 result of a rain which was so heavy, unusual and extraordinary that 
 it could not have reasonably been expected or anticipated by defend- 
 ant railroad company, and that such unusual and extraordinary rain 
 was the cause of a portion of defendant's railroad embankment giving 
 way, and the consequent derailment of said sleeping ear in which 
 plaintiff was a passenger, and that said accident could not have been 
 prevented by the exercise of the utmost degree of care and vigilance 
 on the part of the defendant, then plaintiff cannot recover. 
 
 (b) Defendant railroad company, as a common carrier, does not in- 
 sure the absolute safety of its passenger, and is not responsible for 
 the direct and violent acts of nature, which could not reasonably have 
 been foreseen and' guarded against or prevented by the exercise of a 
 high degree of care, skill and prudence ; and if the defendant railroad 
 company maintained its culvert and the railroad embankment at the 
 point where the accident occui'red in a good condition, and the same 
 were safe for all emergencies which could reasonably have been anti- 
 cipated by it, and, at the time of the injury complained of, defendant 
 was in the exercise of the utmost degree of care and prudence both in 
 the matter of the maintenance of said embankment and in the oper- 
 ation of its trains over the same, then said defendant is not liable. 
 
 (c) If you find from the testimony that defendant was without 
 negligence in the construction and maintenance of the culvert, and 
 that the injury to plaintiff was the result of an inevitable accident, 
 and such as no human foresight could avert, then the defendant would 
 not be liable, and your verdict must be in favor of the defendant. 
 
 (d) The measure of diligence required in the maintenance of 
 bridges and culverts by railroad companies is that the character and 
 size of the stream, the extent and situation of the agricultural land 
 about it, and the nature of the rainfalls and floods affecting it shall 
 be ascertained and provided for, so far as the exercise of ordinary 
 foresight, care and skill can accomplish them ; but there is no require- 
 ment that the recurrence of cyclones, cloudbursts and the like, shall 
 be foreseen or guarded against, though it is known that they have 
 many times happened. And, therefore, if you find, from the proof, 
 that the culvert was of sufficient capacity to cany off safely all ordi- 
 nary accumulations of water, and that the defendant constnieted and 
 maintained the same with due care, and frequently inspected the 
 same, and it appeared to be amply sufficient for all purposes, then 
 the court charges you that the company would not be liable for the 
 injury suffered by the plaintiff from such extraordinary downpour of 
 
 31— G. & C. U. Rd. Co. V. Tarwood. 17 111. 509; Fuller v. N. Rd. 
 Co., 21 Conn. 557.
 
 1142 FORMS OF INSTRUCTIONS. [§ 1761. 
 
 rain or cloudburst as overtaxed the capacity of said culvert, and 
 caused a washout in same.^- 
 
 § 1761. Injury to Passenger Through Obstruction Near or on Track. 
 If you find, from the evidence in the case, that the plaintiff was at- 
 tempting to go upon defendant's coach, and that he was obstructed 
 in the way b}^ other passengers, and that he could not promptly get 
 in the coach, and while he was endeavoring to make his way in the 
 coach, the step he was standing on was knocked off by an obstruc- 
 tion on the track, and you find, from the evidence in the case, that in 
 leaving the step in that condition, and allowing an obstruction upon 
 the track, such as would knock the step from its place, the defend- 
 ant was not in the exercise of that diligence that the law requires, the 
 plaintiff would have the right to recover.^^ 
 
 CARS AND APPLIANCES. 
 
 § 1762. Liability as to Cars and Appliances. It is the duty of the 
 railroad company to use properly constructed cars, and all reasonably 
 needful appliances which extreme care and caution would suggest, in 
 order to protect the lives and persons of its passengers ; and the fail- 
 ure of a railroad company to furnish a reasonably safe passenger 
 train, reasonably provided with everything necessary to save the pas- 
 sengers against dangers, shall not afford the railroad company any 
 excuse against the duty of extraordinary diligence which the law 
 requires.^* 
 
 § 1763. Failure to Properly Heat Car. (a) If you find for the 
 plaintiff on the issue last above submitted, and you further believe 
 that, in consequence of getting cold in said ear from W to S, plaintiff 
 and his wife, or either of them, contracted cold, and you believe such 
 cold resulted in sickness to the plaintiff and his wife, or either of 
 them, as alleged by plaintiff, and you believe that the cold and sick- 
 ness of plaintiff and his wife, or either of them, if any was directly 
 and solely caused by the negligence, if any, of the servants of de- 
 fendant on its own line, or if you believe the employes of the connect- 
 ing carriers, or either of them, failed to furnish plaintiff and his wife 
 with a reasonably warm and comfortable ear to ride in after they 
 left S, and you believe the plaintiff and his wife were compelled to 
 ride in a cold and uncomfortable car after leaving S, and you believe 
 the servants of the connecting carriers, or either of them, were guilty 
 
 32—111. C. R. Co. V. Kuhn, 107 caused by a sudden jolting of the 
 
 Tenn. 106, 64 S. W. 202 (205). cars in starting- or coming to a 
 
 33 — Georgia C. & N. Ry. Co. v. stop; and a railroad company is 
 
 Watkins, 97 Ga. 381, 24 S. E. 35. not relieved from liability from 
 
 34— Macon, D. & S. R. Co. v. reason of its failure to keep all 
 
 Moore, 99 Gil. 229, 25 S. E. 460 (461). the appliances which extraordinary 
 
 "The following charge stated the diligence would require on trains 
 
 law too strongly against the de- adapted for transporting passen- 
 
 fendant company: 'A carrier is gers.' " 
 liable for injuries on its cars,
 
 § 1763.] NEGLIGENCE— PASSENGER CARRIERS. 1143 
 
 of negligence, as that term is hereinbefore defined, in failing to fur- 
 nish the plaintiff and his wife with a reasonably warm and comfortable 
 car, if you find they so failed, and you believe the negligence, if any, 
 of the connecting carriers, or either of them, was the cause of the 
 sickness of plaintiff and his wife, or either of them, then you will also 
 find for the plaintiff such sum as will now, in cash, compensate plain- 
 tiff for the ph.ysical pain and mental anguish, if any, that he and his 
 wife, or either of them, suffered and will suffer in consequence of such 
 sickness, if any, and the effect, if any, of plaintiff's sickness upon his 
 ability to labor and earn money, and all necessary and reasonable 
 sums he has paid or incurred for medicine and doctors' bills for him- 
 self and his wife in consequence of such sickness. 
 
 (b) But if you believe, from the evidence, that the defendant fur- 
 nished the plaintiff and his wife with a reasonably comfortable car 
 to ride in from W to S, then the defendant performed all the duty it 
 owed to plaintiff, and, if you so believe, your verdict will be for the 
 defendant, or if you believe the defendant did fail to furnish the 
 plaintiff and his wife a reasonably comfortable car from W to S, and 
 was negligent, and that plaintiff and his wife suffered cold from the 
 trip to S, yet you will find for the defendant on the issue of sickness, 
 unless you further believe the negligence, if any, of the defendant, 
 on its own line, contributed the cause, and concurTed in causing, the 
 sickness. Or if you believe the negligence, if any, of the connecting 
 carriers alone, was the cause of the sickness, you will find for the de- 
 fendant on the issue of sickness.^^ 
 
 (c) If you find, from the evidence, that plaintiff and his wife at 
 the time alleged in the petition became and were passengers on one 
 of defendant's passenger trains at T, and that they became and were 
 entitled to be carried or transported to G on said train, and if you 
 further find that during the time they were being carried from T to 
 G, the weather was cold and disagreeable, and that the agents and 
 
 35 — Missouri, K. & T. Ry. Co. v. car. Its negligence in furnishing 
 
 Harrison, — Tex. Civ. App. — , the defective car, under the facts 
 
 77 S. W. 1036. stated, was the proximate cause 
 
 "The charge is not subject to the of the injuries to appellee and his 
 
 criticism that it is upon the weight wife. While it was not the sole 
 
 of the evidence, in assuming that cause, it was the concurring cause 
 
 the appellant furnished the car for — such as might reasonably have 
 
 the trip. As stated, the uncon- been contemplated as involving the 
 
 troverted testimony was to the result, under the attending cir- 
 
 effect that the appellant undertook cumstances. Gozales v. Galveston, 
 
 to operate a through train without 84 Tex. 7, 19 S. W, 284, 31 Am. 
 
 change of cars from Greenville to St. 17. 
 
 Birmingham, Ala. The court was In addition to the authorities 
 
 authorized to assume this as an cited as bearing upon the ques- 
 
 established fact. Nor did the tions discussed, see Seale v. Ry. 
 
 court err in failing to limit the Co., 65 Tex. 274, 57 Am. Rep. 602; 
 
 appellant's liability to such in- Stone v. Dickinson, 5 Allen 29, 
 
 juries as were suffered by appellee 81 Am. Dec. 727; 1 Shearman & R. 
 
 and his wife on appellant's line, on Neg., par. 31; Jones v. George, 
 
 The appellant could not by con- 61 Tex. 353, 48 Am. Rep. 280; 
 
 tract relieve itself from its negli- Sutherland on Dam. (3d ed.), par. 
 
 gence in furnishing the defective 36, p. 113, and section 38, p. 116."
 
 1144 FORMS OF INSTRUCTIONS. [§ 1763. 
 
 servants in charge of said train failed and neglected to keep the coach 
 in which plaintiff and his wife rode warm and comfortable, but per- 
 mitted the same to become cold and disagreeable, and not properly 
 heated, if they did, and if you further find that plaintiff and his wife 
 were exposed to cold, and if you further find that in consequence of 
 such exposure, if any, they contracted and took cold, and they were 
 thereby injured as alleged in the petition, and if you further find that 
 the failure of the agents and servants in charge of such trains, if you 
 find there was a failure, to keep the coach, in which plaintiff and his 
 wife rode, warm or comfortable, was negligence, as that term is 
 defined in the first paragraph of this charge, and that such negligence, 
 if any, was the proximate cause of the injury of each of them, if you 
 finl that they or either of them were injured, then you wull find for 
 the plaintiff, unless you find for the defendant under the further in- 
 structions hereinafter given you.^^ 
 
 (d) By proximate cause is meant a cause which operating in nat- 
 ural and ordinaiy sequence, unbroken by any new cause, produces the 
 event, and without which such event would not have happened. If 
 you believe, from the evidence, that plaintiff or his wife has suffered 
 or is suffering from any physical pain, injury, or disability, and if 
 you believe that plaintiff and his wife were exposed to cold while on 
 defendant's cars and that defendant was negligent, then plaintiff 
 would be entitled to recover only for such pain, injury, or disability 
 as was proximately caused by such exposures, if any, and if any of 
 such pain, injury, or physical disability was proximately caused in 
 any other way than by such exposure on defendant's cars, for such 
 injury, pain, or disability so caused the plaintiff cannot recover and 
 you will so find.^'^ 
 
 (e) If you believe, from the evidence, that -the passenger coaches 
 constituting the train on which plaintiff's wife was a passenger, when 
 delivered to defendant's connecting carrier, at S, were equipped and 
 supplied with heating apparatus and appliances for making the 
 said cars warm and comfortable, of such character and in such con- 
 dition that the servants of defendant's connecting carriers could, by 
 the use of a very high degree of care, have made the said coaches or 
 the said coach warm and comfortable, the defendant is not liable in 
 this case for suffering or injuries, if any, which resulted to plaintiff's 
 
 36 — St. L. S. Ry. Co. v. Haney, general charge and special charges 
 
 — Tex. Civ. App. — , 94 S. W. 386 requested by appellant and given, 
 
 (387). wherein the jury were specially 
 
 "We are unable to see any instructed to consider only the In- 
 reversible error in this charge, juries received during the trans- 
 This paragraph limits a recovery portation from Texarkana to 
 for the injuries received to the Greenville, the objections to said 
 time plaintiff and his wife were paragraph complained of must be 
 being carried from Texarkana, held untenable." 
 Tex., to Greenville, Tex., and, 37— St. L. S. W. Ry. Co. v. 
 v/hen taken In connection with Haney, — Tex. Civ. App. — , 94 
 other paragraphs of the court's S. W. 386 (388).
 
 § 1764.] NEGLIGENCE— PASSENGER CARRIERS. 1145 
 
 wife from any cause while she was a passenger of defendant's con- 
 necting, carriers, and you will so find.^^ 
 
 § 1764, Furnishing Filthy or Unfit Car — Rule in Texas as to Meas- 
 ure of Damages, (a) Now, if you lind and believe, from the evidence, 
 that defendant's employes furnished to plaintiff's wife a car to take 
 passage in from Dallas to Grand Saline, which was not lighted, and 
 was filthy and dirty, and that plaintiff's wife's fellow passengers were 
 smoking, drinking whisky, cursing and crowding up against plaintiff's 
 wife ; and you further find that the omissions and acts, if any, were 
 negligence, as that term is herein defined ; and if you further find that, 
 as the proximate result of said negligence, if any, plaintiff's wife suf- 
 fered inconvenience, humiliation, fright, alarm and excitement, and 
 was made sick, and suffered physical pain and mental suffering — then 
 you will find for plaintiff such damages, if any, as plaintiff may have 
 suffered by reason of the loss of his wife's services, and such dam- 
 ages, if any, as plaintiff's wife may have suffered; and in estimating 
 the damages, if any, you may take into consideration the loss of time 
 of plaintiff's wife, the inconvenience, fright, alarm and excitement, if 
 any, together with her mental suffering and physical pain while sick, 
 if she was sick, which was the proximate result of the negligence, if 
 any, of defendant 's employes in charge of its train, and therefrom you 
 will ascertain and determine what amount of cash money will be a 
 fair and reasonable compensation for such injuries, if any.^^ 
 
 (b) Even though you find, from the evidence, that the train on 
 which the plaintiff took passage was an excursion train, still it was 
 the duty of the railway company to provide sufficient accommoda- 
 tions for the safety and comfort of its passengers ; and if they failed 
 to use ordinary care to keep the cars comfortably warm, or to prevent 
 plaintiff's wife from being subjected to noxious influences and mis- 
 conduct on the part of the fellow passengers on the train, and by 
 reason of such failure, if any, plaintiff's wife and child were made 
 sick, or plaintiff's wife suffered humiliation or mental anguish, and 
 by reason of the sickness of plaintiff's wife and child, if you find they 
 were made sick, plaintiff was compelled to expend money for medical 
 
 38— Missouri, K. & T. Ry. Co. v. complained of reads, 'That if the 
 
 Foster, — Tex. Civ. App. — , 87 jury found, as tiie proximate re- 
 
 S. W. 879 (881). suit of said negligence, the plain- 
 
 "This was a defensive charge, tiff's wife suffered inconvenience, 
 
 and submitted the reverse of the humiliation, fright, alarm, and 
 
 proposition upon which the plain- excitement, and was made sick, 
 
 tiff was authorized to recover, and suffered physical pain and 
 
 The charge is correct, and was mental suffering, then the jury 
 
 properly submitted." could find for the plaintiff such 
 
 39— Texas & P. Ry. Co. v. damages as may have resulted 
 
 Bratcher, — Tex. Civ. App. — , therefrom,' and again repeating 
 
 78 S. W. 531 (533). the results of such injuries in the 
 
 "Nor is the charge subject to part referring to the manner of 
 
 the ciitinism that it sets forth estimating the damages. It is not 
 
 with undue prominence the results contended that the verdict is ex- 
 
 which the jury might consider as cessive, and we think it clear that 
 
 flowing from the negligence of de- the jury were not prejudiced by 
 
 fendant. The part of the charge this repetition."
 
 1146 FORMS OF INSTRUCTIONS. [§ 1765. 
 
 services and drugs, then, in that event, plaintiff is entitled to re- 
 cover.'*" 
 
 § 1765. Riding on Loaded Freight Cars Belonging to Another Car- 
 rier — Duty of Carrier Furnishing Motive Power as to Inspection of 
 Vehicles Used. The defendant prays the court to rule that if the 
 court and jury shall find that the said S became a passenger on a 
 freight train of the defendant company, and that said freight train 
 was made up partly of loaded freight cars belonging to other com- 
 panies and received by said defendant to be forwarded over its line, 
 then the said S assumed the risks of all dangers arising from defects 
 in such foreign cars which could not be detected by the defendant by 
 careful inspection of said cars, made with due regard to the exigencies 
 of traffic, provided the defendant used all due care (in the operation 
 of said train) in the running and management of said train, and in 
 all the subsidiary arrangements necessary to the safety of the pas- 
 senger.*^ 
 
 § 1766. Liability for Defective Coupling, (a) You are instructed 
 in this ease that when the defendant received the plaintiff upon his 
 
 car as a passenger for hire upon the day of , that the 
 
 defendant was bound to make up its train, couple its cars, and man- 
 age and control the same, in such a careful, skillful and prudent man- 
 ner as to carry the plain tii3: with reasonable safety as such passenger. 
 
 (b) You are therefore instructed that if you find the plaintiff was 
 injured by reason of the negligent acts of the defendant's agents or 
 servants, whereby they used a defective link or pin to couple said 
 cars; that human care, vigilance and foresight could have reasonably 
 discovered such defect; and you further find that the defendant did 
 not contribute to such injury, and was using all reasonable care and 
 caution to avoid said injury, — then your verdict would be for the 
 plaintiff. 
 
 (c) On the other hand, you are instructed that the defendant is 
 not required to use the utmost degree of care which the human mind 
 is capable of inventing, but is only required to use the highest degree 
 of care and diligence which is reasonably practicable under the cir- 
 cumstances of the case in question. The defendant was not an insurer 
 against accidents, nor is the defendant compelled to insure the abso- 
 lute safety of its passengers. What the defendant was required to 
 do was to do all that human care, vigilance and foresight could rea- 
 
 40— St. L. S. W. Ry. Co. v. Duck, inspection is the measure of duty 
 
 — Tex. Civ. App. — , 69 S. W. 1027. which the company was hound to 
 
 41 — Western M. R. Co. v. State, perform with respect to such cars, 
 
 95 Md. 637, 53 Atl. Rep. 969. it owed no higher duty to the de- 
 
 "This prayer, as presented, ceased, who was a passenprer on 
 
 definitely ruled that tihe deceased the freight train; and when that 
 
 assumed the risks of all dangers duty was done, if done, the 
 
 arising from defects in foreign hazards incident to hidden or 
 
 freight cars when the defects latent imperfections, were of 
 
 could not be detected or discovered course assumed by the passenger 
 
 by careful inspection. As such an on such a train."
 
 § 1767.] NEGLIGENCE— PASSENGER CARRIERS. 114? 
 
 sonably do, consistent with the practical operation of the road, in 
 order to prevent injury to the plaintiff, its passenger.^- 
 
 § 1767. Use of Spark-arresters on Engines, (a) If, from the evi- 
 dence, you believe that sparks or cinders escaped from defendant's 
 engine, and got into plaintiff's eyes, which caused plaintiff's injuries, 
 but if, fi'om the evidence, you believe that the engine from which the 
 sparks or cinders escaped was equipped with the most approved spark- 
 arrester, and that the agents and employes of the defendant in charge 
 of said engine used ordinary care in operating said engine to prevent 
 the escape of sparks or cinders, then you are instructed that the prima 
 facie case made out by proof of escape of sparks or cinders is re- 
 butted, and, if you so believe, you will find for the defendant ; but if 
 you believe, from the evidence, that the defendant failed to equip its 
 engine from which the sparks or cinders escaped that caused plaintiff's 
 injuries with the most approved spark-arrester in use, or that the 
 agents and employes of the defendant engaged in operating said 
 engine failed to use ordinary care to prevent the escape of sparks 
 or cinders, then you are instructed that the prima facie case made 
 out by proof of sparks or cinders escaping and causing plaintiff's in- 
 juries has not been rebutted.*^ 
 
 (b) If you believe, from the evidence, that said engine was, at the 
 time in question, equipped with the best approved apparatus and 
 appliance then in use for the prevention of the escape of sparks or 
 cinders therefrom, and that the defendant had exercised proper care 
 to keep said appliances and apparatus in reasonably good repair and 
 condition as regards the escape of cinders, then you will find for the 
 defendant, although you may further believe that a cinder was emitted 
 
 42— Larkin v. C. & G. "W. Ry. Co. to the part of the charge last 
 
 118 Iowa 652, 92 N. W. 891 (893). quoted that it requires the jury, 
 
 43 — St. L. S. W. Ry. Co. v. before they can find for appellant. 
 
 Parks, — Tex. Civ. App. — , 73 S. to believe from the evidence that 
 
 W. 439 (440). the engine was equipped with the 
 
 "It is objected to this part of most approved spark arrester in 
 
 the charg-e that it assumes that use, appellant's contention being 
 
 plaintiff's eyes were injured by that its duty required it 'to exer- 
 
 sparks or cinders that escaped else ordinary care in selecting the 
 
 from the locomotive. We do not kind of spark arrester or netting 
 
 think that the charge is obnoxious to prevent the escape of sparks or 
 
 to the objection when construed cinders from its engines.' It is 
 
 in the light of Mo. Pac. Ry. v. said by tihe Supreme Court in M. 
 
 Lehmberg, 75 Tex. 61, 12 S. W. K. & T. Rv. Co. v. Carter, 95 Tex. 
 
 838, and Galveston, H. & S. A. 461. 68 S. W. 164: 
 
 Ry. Co. V. Waldo, — Tex. Civ. "The decision of this court estab- 
 
 App. — , 32 S. W. 783. lishes that railroad companies 
 
 "The evidence shows beyond con- must equip their locomotives with 
 
 troversy that appellee's eyes were the best approved appliances for 
 
 injured in some way, and the the prevention of the escape of 
 
 charge simply leaves it to the fire;' citing Galveston, H. & S. A. 
 
 jury to determine whether sparks Ry. Co. v. Home. 69 Tex. 646, 9 
 
 or cinders escaped from appellant's S. W. 440, from which the part of 
 
 engine, and got tnto his eyes and the charge under consideration 
 
 caused his injuries. was evidently copied, for the 
 
 "It is also urged as an objection language is identical."
 
 1148 FORMS OF INSTRUCTIONS. [§ 1768. 
 
 from said engine, and struck the plaintiff in the eye and injured him 
 as alleged in the petition.** 
 
 SERVANTS. 
 
 § 1768. Responsibility of Carrier for Negligence or Wrongful Con- 
 duct of Servants, (a) If the plaintiff was a passenger upon defend- 
 ant's road in one of defendant's coaches, as charged in her complaint, 
 the defendant's obligation was to carry her safely and properly; and, 
 if the defendant intrusted this duty to the servants of the company, 
 the law holds the defendant responsible for the manner in which they 
 execute it. The cai^rier is obliged to protect its passengers from im- 
 proper and unnecessary violence at the hands of its own servants. 
 And it is the established law that a carrier is responsible for the neg- 
 ligence and wrongful conduct of its servants, suffered or done in the 
 line of their employment, whereby a passenger is injured. 
 
 (b) A carrier of passengers for pay is responsible for injuries sus- 
 tained by a passenger through the neglect, recklessness and careless- 
 ness of the servants of such carrier, while such servants are engaged 
 in the general scope of their employment, whether the act was or was 
 not authorized by the master. 
 
 (e) If plaintiff did not receive the injuries complained of by any 
 contributing act of negligence or fault of her own, but was injured 
 at the time complained of by the carelessness and negligence or fault 
 of the defendant's servants, or one of them, committed in the general 
 scope of employment as such servants or servant, the defendant is 
 liable for such damages as she may have sustained by the injuries thus 
 received.*^ 
 
 (d) It is the duty of the defendant to exercise the highest degree 
 of care toward the plaintiff as long as she remained a passenger, and 
 you are instructed that if it is admitted by defendant that she was 
 such passenger, then she is entitled to safe can'iage to the end of her 
 destination, and if she, while such passenger, was assaulted by an 
 employe of the defendant, then the defendant is liable for such as- 
 sault and injuries sustained.*^ 
 
 § 1769. Negligence in Writing Date on Pass no Excuse for Assault 
 by Conductor. Even though the jury may find, from the evidence, that 
 
 44 — M., K. & T. Ry. Co. v. Flood, cautious person w^ould use under 
 
 35 Tex. Civ. App. 197, 79 S. W. similar circumstances. St. L. S. 
 
 1106 ni07). W. Ry. Co. v. Parks, 97 Tex. 131, 
 
 "Thf jury could not have under- 76 S. W. 740. The charge, as a 
 
 stood that by proper care the whole, submitted this issue as 
 
 charge meant a higher degree of favorably to appellant as it was 
 
 care than the care due by a car- entitled to." 
 
 rier to a passenger, and this had 45 — Louisville, etc., R. Co. v. 
 
 been correctly defined. The appel- Wood, 113 Ind. 544, 14 N. E. 572 
 
 lee being a passenger, the appellant (5.S2). 
 
 owed him that high degree of care 46— Garvik v. B., C. R. & N. Ry. 
 
 to keep its engine and appliances Co.. 124 Iowa 691, 100 N. W. 498 
 
 In repair which a very prudent and (499).
 
 § 1770.] NEGLIGENCE— PASSENGER CARRIERS. 1149 
 
 the defendant negligently wrote the date on the pass, so that it ap- 
 peared to expire May 1st, instead of May 10th, they are insti'ucted 
 that negligence in writing the date on said pass is not to be consid- 
 ered by the jury in determining the liability of the railway company 
 in this action.*^ 
 
 MANAGEMENT AND OPERATION OF CARS AND VEHICLES. 
 
 § 1770. Duty to Run Trains According to Schedules — Damages — 
 Burden of Proof, (a) The published schedules or time-tables of a 
 railway company are the representations to the public as to the time 
 of departure of its trains and of the periods within which their jour- 
 neys will be perfonned. They are public professions, up to which it 
 must use diligence to act, and, if it fail to ijerform its trips according 
 to them, it will be liable to the passenger, unless it shows that it has 
 made reasonable exertions to do so, and has been prevented by acci- 
 dents and delays not attributable to its negligence, and in order to 
 exempt itself from liability it must show that it exercised due care 
 to prevent the delay. 
 
 (b) A railway company is chargeable with damages due to delay 
 in running its trains according to schedule time, and nothing but 
 accidents resulting from causes which reasonable care could not have 
 provided against will excuse liability to the passenger for damages. 
 If the conduct of the railway company is such as to show a wanton 
 or willful disregard of duty to such passenger, exemplary or punitive 
 damages may be awarded. 
 
 (c) Willful acts, for which exemplary damages may be awarded, 
 may be shown by evidence of the recklessly omitting or neglecting 
 to do something, the failure to do which shows gross or utter disre- 
 gard. 
 
 (d) Exemplary or punitive damages are awarded as a punishment 
 to a wrongdoer, and as an example and warning to the wrongdoer and 
 others. 
 
 (e) The neglect of a railway company to run its train according 
 to its schedule may be in itself an unlawful act. When an act which 
 is in itself unlawful is committed, the law will presume that damages 
 
 47— St. L. I. M. & S. Ry. Co. v. any neg-ligence in writing the pass. 
 
 Harrison, 76 Ark. 430 (433), 89 S. Such assault certainly could not 
 
 W. 53 (54). be considered anywhere within the 
 
 "This instruction, asked at that range of the natural, ordinary and 
 
 time, was an effort on the part reasonable, or even remotely prob- 
 
 of appellant to have the court cor- able, effect of negligence in making 
 
 rect the improper argument of out the pass. St. L. I. M. & S. 
 
 counsel and nulify whatever pre- Ry. Co. v. Bragg, 69 Ark. 402, 64 
 
 judicial influence it might have S. W. 226. 86 Arn. St. 206; 1 siith. 
 
 had upon the jury. The appellant on Dam. 57; McDonald v. Snelling' 
 
 was clearly entitled to it, for the 14 Allen 295, 92 Am. Dec. 76S; 
 
 assault of the conductor on the Scheffer v. Railway Co 105 U s' 
 
 passenger bearing the pass could 252, 26 L. Ed. 1070; M. &'st P Ry' 
 
 never have been contemplated, v. Kellogg, 94 U. S. 475 24 L Ed' 
 
 even as a remote consequence of 256." '
 
 1150 FORMS OF INSTRUCTIONS. [§1771. 
 
 follow as a necessaiy consequence thereof, and no special damages 
 need be proven. 
 
 (f) When a railway company has failed to carry a passenger to 
 his destination by the time fixed in its published schedule, the burden 
 is upon the railway company to prove that it has made every proper 
 effort to prevent the delay. If it fail to prove this, it will be liable to 
 the passenger for damages.'^^ 
 
 § 1771. When Delay is Presumptively Negligent, (a) Where a 
 railway train is delayed by an obsti-uetion on the track, the law pre- 
 sumes that the obstruction, on the track is caused by the fault of the 
 railway company, and the burden is upon the railway company to 
 prove that the obstruction on the track was caused by inevitable acci- 
 dent or other causes which could not have been prevented by due care 
 and foresight. If it fail to prove this, it will be liable to the passen- 
 ger for damages. 
 
 (b) Where a delay happens from the breaking down of any of 
 the cars, engines, roadway, or other appliances or equipments under 
 the control of the railway company, or is caused by the mismanage- 
 ment or misconstruction of something over which the railway com- 
 pany has control, the law presumes that the same was caused by the 
 negligence of the railway company, and the burden is upon the rail- 
 way company to disprove this presumption, and, if it fail to disprove, 
 it will be liable to the passenger for damages, if damages result there- 
 from to a passenger.*^ 
 
 § 1772. Freight Trains Not Required to Stop at Platforms to Re- 
 ceive or Discharge Passengers, (a) The court instructs the jui-y that 
 the law does not require of railroad companies that they stop their 
 freight trains, upon which passengers are carried, at the platforms of 
 their passenger depots, for the purpose of receiving passengers, but 
 they have the right to receive passengers on such trains at the usual 
 places adopted for that mode of travel ; and you are further instructed 
 that if it appears from the evidence that the plaintiff was entitled to 
 ride upon the train in question, and that it was a freight train, and 
 tbat he undertook to board the same from the platform of the passen- 
 ger depot of defendant at F, and failed because the train did not stop 
 at the platform, and it is not shown by the evidence that it was the 
 custom of the defendant to stop that particular train at the said-plat- 
 form for the purpose of receiving passengers, there can be no recov- 
 ery, and your verdict must be for the defendant. ^° 
 
 (b) The court instructs the jury that if j'ou believe, from the evi- 
 'dence, the defendant in this ease while the plaintiff was a passenger 
 on its freight train on the day named in the declaration on the arrival 
 of its freight train at the station of K, stopped its caboose reason- 
 ably near the platform at said station of K, due regard being had to 
 
 48— Those six instructions were 49— Miller v. So. Ry. Co., suprn, 
 approved in Miller v. So. Ry. Co., 50— Ohio & M. Ry. Co. v. Brown, 
 169 S. C. 116, 48 S. E. 99. 46 111. App. 137.
 
 § 1773.] NEGLIGENCE-PASSENGER CARRIERS. 1151 
 
 the surrounding situation and location, and stopped a sufficient length 
 of time for the plaintiff to alight in safety in said village of K, and 
 if you further believe, from the evidence, that the plaintiff refused 
 to alight and depart from said car because said car had not reached 
 the depot platform, then you should find the issue for the defendant.s'^ 
 
 § 1773. Negligently Starting Train While Passenger is Getting On. 
 If the jury find, from the evidence, that plaintiff was at the depot in 
 Ft. P, and had a ticket to C, on the road of defendant, and if they 
 find that, when the train came up and stopped, she at once attempted 
 to get aboard the train, and if she was not negligent, as explained to 
 you, and if while she was going up the steps to the ladies' coach, the 
 train was suddenly moved, and if plaintiff was diligent in getting on 
 the train, and was getting on in a reasonable time after the train 
 stopped, and if she was thrown down by the sudden moving of the 
 train, and was injured thereby, then defendant was guilty of negli- 
 gence, and plaintiff would be entitled to a veixlict, if she was guilty of 
 no contributoiy negligence.^- 
 
 § 1774. No Obligation to Stop Train After Starting to Permit 
 Passenger to Board It. If the evidence shows that the train had 
 started off and was in motion, then there was no obligation, statutory 
 or otherwise, upon the defendant to cause the train to wait or to be 
 stopped to permit the plaintiff to get on the train. ^^ 
 
 § 1775. Boarding Train at Place Where Stop is Required by Stat- 
 ute — Effect of Usage, (a) The court instructs the jury that it is the 
 duty of the jury, in order to ascertain whether the defendants, or 
 either of them, by their or its conduct, invited the public to take pas- 
 sage upon the suburban trains of the defendant, C. & E. I. R. Co., 
 going southward at a place between T and T streets in the city of 
 C, to consider all the evidence in this case in relation to the manner in 
 which persons getting or attempting to get upon any of such trains 
 at that point where treated by the agents and employes of said de- 
 fendants or either of them. 
 
 51— C. & E. I. R. R. Co. v. Stone- platform, if the expectation that 
 
 cipher, 90 111. App. 511 (514). it would be pulled up to the 
 
 "In reference to the last instruc- platform was the only reason that 
 
 tion cited it is conceded by ap- she did not g-et off there, and if 
 
 pellee that passengers on freight the landing there was reasonably 
 
 trains cannot insist upon being safe and convenient and was the 
 
 landed at a platform if it is the place where passengers from said 
 
 custom of such freight trains to freight train g'oing south usually 
 
 land them at a safe place reason- landed, then her reason for not 
 
 ably near and convenient to the getting off was not a sufficient 
 
 station. The testimony of appellee reason, and if, in consequence, she 
 
 shows that she started to get off was carried past the depot, and 
 
 the train when it first stopped and landed half a mile from it, that 
 
 remained for eighteen minutes, but fact alone does not entitle her to 
 
 resumed her seat upon being told by recover damages." 
 
 some one, she don't knOw whom, 52 — Alabama C. S. R. Co. v. 
 
 that it would pull up to the plat- Siniard, 123 Ala. 557, 26 So. 6S9 
 
 form. Under the conflict of testi- (690). 
 
 mony as to the character of the 53 — Pickett v. So. Ry. Co., 69 
 
 landing where the caboose first S. C. 445, 48 S. E. 466 (469). 
 
 stopped, and its distance from the "Section 2134 of the Code of
 
 1152 FORMS OF INSTRUCTIONS. [§ 1776. 
 
 (b) The jury is instructed that, in order to determine whether the 
 plaintiff exercised due care and caution for her own personal safety 
 at the time of her alleged injury, it is their duty to consider all the 
 circumstances at the time and immediately before the plaintiff was 
 struck by the passenger train of the defendant C. & E. I. R. Co., if 
 the evidence shows that she was so struck. 
 
 (c) The juiy is instructed that, even if they should believe, from 
 the evidence, that the object of the defendant, C. & E. I. R. Co., in 
 stopping its south-bound suburban trains at a point between T and T 
 streets in C was to comply with the statutes of this state with refer- 
 ence to stopping trains for railroad crossings, yet if the jury further 
 believe, from the evidence, that the defendant, C. & E. I. R, Co., had 
 been in the habit for years of permitting passengers to board its trains 
 at said point and taking fares from them and otherwise treating 
 them as passengers, this evidence should be considered, together with 
 all the evidence introduced in the case, in order to determine whether 
 the stopping of said trains was made exclusively for the purpose of 
 complying with the statute above referred to.^* 
 
 § 1776. Duty to Give Notice of Arrival at Stations. You are in- 
 structed that it was the duty of the defendant to give plaintiff rea- 
 sonably sufficient notice of the approach and arrival of the train at C, 
 and to afford him a reasonable opportunity to get off the train; that 
 upon the arrival of said train at C, it was 'the duty of the plaintiff to 
 alight from the train at said station. If, therefore, you find, from 
 the evidence, that the employes of defendant in charge of said train 
 gave notice of the approach and arrival of said train at C in the 
 usual manner, and that the notice of such approach was given in a 
 manner reasonably calculated to inform plaintiff of the arrival of 
 said train at said station; and if you further believe, from the evi- 
 dence, that said train remained at said station a sufficient length of 
 time to enable plaintiff to alight therefrom, and that he failed to do 
 so, — then the plaintiff would not be entitled to recover, and you 
 should find a verdict for the defendant. ^'^ 
 
 Laws is as follows: 'Every rail- railroad company, and thus en- 
 road company in this state shall hance the danger to the traveling 
 cause all its trains of cars for public. It was, therefore, error to 
 passengers to entirely stop upon refuse the request." 
 each arrival at a station adver- 54 — C. & W. I. R. R. Co. v. Doan, 
 tised by such company as a sta- 93 111. App. 247 (251), aff'd 195 111. 
 tion for receiving passengers upon 168, 62 N. E. 826. 
 such trains for a time sufficient "Taken apart from each other 
 to receive and let off passengers.' and from the other evidence in the 
 It will thus be seen that the case, the above instructions are 
 statute has made provision for not free from criticism; but when 
 persons desiring to board the read in connection with the other 
 train. The railroad company owes instructions in the case, as should 
 no duty to a belated passenger to always be done, we are of the 
 stop its train in any other manner opinion "that as a whole they 
 than that required by the statute, could not have mislod the jury." 
 Creech v. Ry. Co.. 66 S. C. 528, 45 55— St. L. & S. W. Ry. Co. v. 
 S. E. 86. Ricketts. 22 Tex. Civ. App. 515, 54 
 
 "A "ontrary doctrine would tend S. W. 1090. 
 to disarrange the schedules of the
 
 § 1777.] NEGLIGENCE— PASSENGER CARRIERS. 1153 
 
 § 1777. Duty to Announce Stations — Passenger Negligently Fail- 
 ing to Hear Announcement. Gentlemen of the jury, you are instructed 
 that it is the duty of a passenger on a railroad train to use his senses, 
 and take notice of the usual announcement of stations, and if, by 
 reason of his negligence, the passenger fails to hear notice given of 
 the arrival of the train at his place or destination, and remains on 
 the train, and is carried beyond, the fault is the passenger's, and the 
 carrier is not liable therefor. If, therefore, you believe, from the 
 evidence, that defendant's servants in charge of the train gave the 
 usual announcements of stations as the train approached C and if, 
 by reason of plaintiff's negligence, he failed to hear such announce- 
 ment, the plaintiff remained on the train and was carried beyond, the 
 fault was the plaintiff's, and the defendant is not liable therefore, and 
 you should return a vei'dict in its favor.^^ 
 
 § 1778. Effect of Conductor's Promise to Come for Passenger at 
 Destination — Carrying Passenger Past Destination, (a) The jury are 
 instructed that, if the conductor had promised to come to her when the 
 train reached B, she had a right to rely on that promise, and that he 
 would come, and she was not, under those circumstances, obliged to 
 take notice of the fact that the train had got to B, and she was not 
 obliged to listen at or depend upon the call of the brakeman when the 
 train reached B as a passenger would be required to do if the passen- 
 ger had no assurance at that time from the conductor. 
 
 (b) And so, though the train got to B and stopped here, and 
 though the brakeman and conductor may have — the brakeman may 
 have — called out "B," thereby giving notice to the passengers of the 
 fact the train was at B, then if she, relying upon his promise to come 
 to her at that time, if he did make such promise, failed to hear the 
 brakeman call out the station of B, why, she would be entitled to re- 
 cover, because, if the conductor promised to come to her at B, she 
 had a right to rely on that promise, and wait in her seat until he 
 came, and she was not obliged to listen to the brakeman or listen at 
 the call of the station, but might simply expect him to come and do 
 what he promised to do.^'' 
 
 § 1779. Duty to Stop a Reasonable Time for Passengers to Alight, 
 (a) A railroad company carrying passengers for hire has not dis- 
 charged its duty, or relieved itself from liability, to them, till it 
 stopped at the end of their journey a reasonable time for them to get 
 off the train in safety.^^ 
 
 (b) The court instructs the jury that it was the duty of the de- 
 fendant company to stop its train at B station, on the occasion in 
 question, a reasonably sufficient length of time to enable plaintiff's 
 wife to alight therefrom in safety, and a failure on the part of de- 
 
 56— St. L. & S. W. Ry. Co. v. 57— Louisville & N. R. Co v. 
 Ricketts, 22 Tex. Civ. App. 515. Quick. 125 A In. 55.'?. 28 So. 14 (16). 
 54 S. W. 1090. 58— Louisville, etc., R. Co. v. 
 
 Wood, 113 Ind. 544, 14 N. E. 572. 
 73
 
 1154 FORMS OF INSTRUCTIONS. [§ 1780. 
 
 fendant's employes in charge of its train to use that high degree of 
 care to discharge such duty which very prudent and competent per- 
 sons would usually have exercised under the circumstances, would be 
 negligence of the defendant company, for which it would be liable to 
 the plaintiff for any injuries to his wife as the evidence may show was 
 the approximate and direct result of such negligence, provided that 
 plaintiff's wife was at such time not herself guilty of contributory 
 negligence. ^^ 
 
 § 1780. Degree of Care Required of Carrier While Passengers Are 
 Alighting. It is the duty of a railway company carrying passengers 
 to exercise a high degree of care to enable its passengers to alight 
 from its ears in safety — the degree of care required is such as very 
 prudent, careful and competent persons would exercise under similar 
 circumstances — and a failure to exercise such care constitutes negli- 
 gence.''*' 
 
 § 1781. Starting Train While Passenger is in Act of Alighting, 
 (a) If you find, from the evidence, that when the train on which 
 plaintiff's wife was riding reached P she used reasonable diligence, 
 situated and circumstanced as she was, to get off said train, and if 
 said train did not stop at P long enough for her to have alighted 
 therefrom in safety, and if while she was endeavoring to get off said 
 train, it was started, and if, by reason thereof, or if by reason of the 
 negligence of the parties operating said train in failing to assist her 
 to get off — if you find that such failure was negligence — she was 
 caused to fall and be injured without fault or negligence on her part, 
 then you will find for plaintiff.^^ 
 
 59 — St. L. S. Ry. Co. v. Harrison, support in the authorities, we 
 
 32 Tex. Civ. App. 368, 73 S. W. 38. thinlc it has no application to the 
 
 "It correctly defines the appel- present case, since undeniably a 
 
 lant's duty, and states the circum- passenger, while in the act of 
 
 stances under which the carrier alighting- from a railway coach, is 
 
 would be liable, and leaves it for quite fully committed to the care 
 
 the jury to determine whether the of the carrier and is not at all 
 
 circumstances existed. The ap- free to select his means and 
 
 pellant's duty to Mrs. H. did not avenues of exit. Tex. & Pac. Ry. 
 
 terminate until she had alighted Co. v. Miller, 79 Tex. 78, 15 S. W. 
 
 from the train. Railway v. Miller, 264, 11 L. R. A. 395, 23 Am. St. 
 
 79 Tex. 79, 15 S. W. 264, 11 L. R. 308; Gulf, Colorado & Santa Fe 
 
 A. 395, 23 Am. St. 308." Ry. Co. v. Butcher, 83 Tex. 309, 
 
 60— M., K. & T. Ry. Co. v. Wolf, 18 S. W. 583; Houston & Tex. Cent. 
 
 — Tex. Civ. App. — , 89 S. W. 778. R. R. v. Dotson, 15 Tex. Civ. App. 
 
 "By appropriate propositions 80, 38 S. W. 644; Tex. Mid. R. R. 
 
 under the first assignment, it is Co. v. Brown, — Tex. Civ. App. 
 
 insisted that the high degree of — , 58 S. W. 44; M. K. & T. Ry. 
 
 care required of appellant in the Co. of Tex. v. Soarhorongh. — Tex. 
 
 first paragraph of the court's Civ. App. — , 51 S. W. 356; M. & 
 
 charge is applicable only to those T. Ry. Co. of Tex. v. Mitchell, 
 
 cases where the passenger has 34 Tex. Civ. App. 394, 79 S. W. 94." 
 
 entrusted himself wholly to the 61— C. R. I. & T. Ry. Co. v. 
 
 custody of the carrier, as his Armes, 32 Tex. Civ. App. 32, 74 
 
 bailee, in short, and not to a case S. W. 77 (78). 
 
 like tlhis, where the passenger is "Our Supreme Court, in the case 
 
 in the act of alighting from the of T. & P. Ry. Co. v. Miller, 79 
 
 carrier's train. Yet, if we accept Tex. 78, 15 S. W. 264, 11 L. R. A. 
 
 the principlfi of the law contended 395. approves a charge quite 
 
 for, which appears to have some similar to tihe above clause of the
 
 §1782.] NEGLIGENCE— PASSENGER CARRIERS. 1155 
 
 (b) If you believe from the evidence that on the , plaintiff 
 
 with his father and mother, were passengers on one of the de- 
 fendant's trains, bound for the station of D; and if you further be- 
 lieve that as soon as the train stopped at D the plaintiff and his 
 father arose from their seats, and proceeded at once to leave said 
 train; and if you further believe that while attempting- to alight from 
 the train, the plaintiff reached the steps of the car; and if you further 
 believe that while plaintiff' was on the steps of the car (if you find he 
 was) the servants of the defendant in charge of the train suddenly 
 started the train; and if you further believe the servants in charge 
 of said train failed to stop the same a reasonable length of time for 
 the passengers to get off without injury to themselves; and if you 
 further believe that the sudden starting of the train (if you find it 
 was suddenly started) threw the plaintiff from the car steps to the 
 platfoiTQ below ; and if you further believe that the plaintiff fell on 
 his side, and was injured, as alleged; and if you further believe the 
 plaintiff and his father, in attempting to alight from said train (if you 
 find they did) used such haste and caution as persons of ordinary 
 prudence would have exercised under the same circumstances; and if 
 you further believe the sei'vants in charge of said train were guilty 
 of negligence in starting the train under the circumstances (if you 
 find they suddenly started the same) ; and if you further believe the 
 plaintiff's injuries, or any part of them, are the direct and proximate 
 result of the negligence of the defendant, — then, in that event, you 
 will find for the plaintiff; but unless you so believe you will find for 
 the defendant.^" 
 
 § 1782. Fall While Alighting Must Be Due to Negligence of Car- 
 rier, or His Servants, to Render Carrier Liable. The court instructs 
 the juiy that unless you find, from the evidence, that plaintiff's wife 
 was injured by falling while attempting to alight from said train, and 
 that such fall was caused by the negligence of the defendant's em- 
 ployes in charge of said train, you will find for the defendant. If her 
 injury, if she was injured, was produced by any other cause than by 
 falling while attempting to get off said train, you will find for de- 
 fendant.®^ 
 
 § 1783. Getting Off Train While in Motion — Obeying Directions of 
 Sleeping Car Porter, (a) The court instructs the juiy that if you 
 believe, from the evidence, that the plaintiff was a through passenger 
 from St. L., Mo., to N. Y. City in the State of New York, by way of 
 B, in said State of New York, and that on , the through sleep- 
 court's charge in this case. We as will enable them to alight at 
 think the court announced a cor- their destination under the usual 
 rect proposition of law, particu- and ordinary circumstances." 
 larly as applied to the facts of this 62— St. Louis S. W. Ry. Co. v. 
 case. ... It must certainly be Byers, — Tex. Civ. App. — , 70 S. 
 held as a matter of law to be the W. 558 (559). 
 
 duty of a railway company receiv- 63— Chicago, R. I. & T. Ry. Co. 
 ing passengers for transportation v. Armes, 32 Tex. Civ. App. 32, 
 to give them such reasonable time 74 S. W. 77 (78).
 
 1156 FORMS OF INSTRUCTIONS. [§ 1784. 
 
 ing car from St. L. to N. Y. City on which plaintiff was being carried 
 as such passenger, reached the E S Station at B, in. the progi-ess of 
 said journey to the city of N. Y., and that said station was then man- 
 aged and controlled by defendant; and if you further believe from 
 the evidence that said car arrived at said B station at 6:30 p. m. of 
 said day on track No. 6, and was to leave said station on the way 
 to N. Y, at 6:50 p. m. over defendant's main line, the N. Y. C. & H. R. 
 R., and that plaintiff during said interval of time between 6:30 and 
 6 :50 p. m. visited the restaurant in said station to obtain refresh- 
 ments, and upon his return to the train shed of said station, before 
 6:45 p. m. discovered that the said sleeping car on which he had been 
 traveling as a passenger, as aforesaid, was no longer standing upon 
 said track No. 6, on which plaintiff had left it, and that plaintiff did 
 not know where said sleeping car was, and thereupon endeavored to 
 find the said car, and in so doing observed a train headed towards the 
 east upon track No. 4 in said station, and that said train contained sev- 
 eral sleeping cars and had the general appearance of a through train, 
 and that, on asking the porter on one of said sleeping cars of said train, 
 plaintiff was told by him that said train was the train for N. Y., and 
 that plaintiff thereupon and in consequence of said statement of the 
 porter got on said train, believing it to be the train of which said 
 sleeping ear on which he rode from St. L. was a part, and that after- 
 wards plaintiff was informed by said porter that said train was the 
 West Shore train and that he then was directed by said porter to 
 jump off, and that plaintiff then stepped to the platform adjacent to 
 track No. 4 of said station from the step of said sleeping car of said 
 West Shore train while the latter was in motion and in so doing 
 plaintiff slipped upon said platfoi-m and fell underneath said train 
 and was run over, whereby he received personal injury in the loss of 
 part of his leg; and if you further find that said injury was so received 
 by plaintiff as a direct consequence of negligence on the part of de- 
 fendant, as defined in other instructions, and that plaintiff was not 
 guilty of any want of ordinary care on his part contributing to his 
 said injury, in so stepping from said West Shore train, — then your 
 verdict should be for the plaintiff.®* 
 
 § 1784. Obeying Directions of Conductor in Alighting from Train. 
 
 (a) A passenger is warranted in obeying the direction of the ser- 
 
 64 — Newcomb v. N. T. C. & H. was the neglect of the defendant 
 
 R. R. Co., 182 Mo. 687, 81 S. W. 1069 to point out the right train to 
 
 (1076). him. And the instruction does not 
 
 "The failure to direct the plain- place the negligence on the mis- 
 tiff to his proper train left him direction of the porter, but de- 
 to wander in search of it, and in scribes the situation and the 
 his search he fell in with the catastrophe, and then says that if 
 porter, who gave him misdirection, it was caused by the negligence 
 If there had boon no porter on the of defendant as defined in other 
 platform, and plaintiff had boarded instructions the defendant was 
 the car to inquire, the consequence liable. The other instructions re- 
 in legal effect would not have been ferred to limit the negligence to 
 different. The proximate cause the allegations in the petition." 
 of his boarding the wrong train
 
 § 1785.] NEGLIGENCE— PASSENGER CARRIERS. 1157 
 
 vants and agents of the carrier, when given within the scope of their 
 duty, unless such obedience leads to a known peril which a prudent 
 person would not encounter. 
 
 (b) If, in this ease, the jury believe, from a fair preponderance of 
 the evidence, that the plaintiff obeyed the defendant's conductor in 
 charge of the train upon which she was a passenger, in getting off 
 the train, and if she was not then apprised of any peril that she 
 would encounter thereby, she would not be guilty of contributing to 
 any injuries received by her in thus alighting from the train. °^ 
 
 § 1785. Conductor Pulling Passenger from Train While in Motion. 
 If the fact be that the defendant's conductor, having charge of the 
 train upon which plaintiff was a passenger, seized hold of her while 
 the train was in motion and was moving on, and pulled her from the 
 platform of the coach by the exercise of physical force, and thereby 
 caused her to strike the ground or other hard substance below, 
 whereby she was injured, she would not be guilty of contributing to 
 injuries received thereby.^® 
 
 § 1786. Effect of Agreement with Conductor to Check Speed of 
 Train in Order that Passenger Might Alight, (a) The court instructs 
 the jury that if the plaintiff was on the train under an arrangement 
 with the conductor, as alleged, he was rightfully on the train, and it 
 was the duty of the conductor to use reasonable diligence and care 
 to carry out the agreement, and to afford plaintiff an opportunity to 
 safely alight, provided he himself should exercise reasonable care in 
 the choosing of the occasion and in the doing of the act. Such ar- 
 rangement would not bind the conductor to make the exit of the plain- 
 tiff safe, but only by reducing the speed of the train, if it was going 
 too fast, to give plaintiff what reasonably appeared to the conductor a 
 chance to get off in safety, in the use of ordinary care on plaintiff's 
 part.^'^ 
 
 (b) If you believe, from the evidence, that plaintiff was on the 
 train with the knowledge of the conductor, under an agreement that 
 he should ride as far as about the schoolhouse; that the train would 
 then go at such a rate as that he might safely alight, provided he 
 acted with ordinary care in so doing; and that the train did not at 
 
 65 — Louisville, etc., R. Co. V. charg-e does not apply to the evi- 
 
 Wood. 113 Ind. 544, 14 N. E. 572. dence and is confusing and mis- 
 
 66 — Louisville, etc., R. Co. v. leading-.' Under the agreement, 
 
 Wood, 113 Ind. 544, 14 N. E. 572. we think the charge not objection- 
 
 67— St. L. S. W. Ry. Co. v. High- able. The agreement was that the 
 
 note, — Tex. Civ. App. — , 84 S. train was to slow up at a certain 
 
 W. 365 (366). place, and when it did slow up 
 
 "The objection urged to the at that place appellee was justified 
 
 charge is that 'it required the in believing that it was the occa- 
 
 conductnr to use reasonable dili- sion contemplated by the' agree- 
 
 gence and care to carry out the ment for him to alight, and if he 
 
 agreement, and to afford H. an used proper care in doing so he 
 
 opportunity to alight in safety, did all that wa& required of him, 
 
 and at the same time allowed H. and it was the conductor's duty 
 
 to choose the time and place in to use care to see that the train 
 
 departing from the train. The was slowed up."
 
 1158 FORMS OF INSTRUCTIONS. [§ 1787. 
 
 that place go at such speed as to afford him a reasonable opportunity 
 to safely alight, in the use of ordinary care, but was going faster than 
 was agreed, and at a rate that made it unsafe to alight; that the 
 conductor knew, or ought, in the exercise of ordinary care, to have 
 so known; and that the plaintiff, in the use of ordinary care, reason- 
 ably believing that the train had been checked in speed, and was, 
 under an agreement, going slow enough for him safely to get off, and 
 reasonably believing that he could get off with safety, alighted from 
 the train, using ordinary care in so doing, and that by- reason of the 
 fact that the train was moving too fast for him to safely alight, and 
 faster than it had been agreed it should, he, in alighting, fell and was 
 thereby injured — you will find for the plaintiff.*'^ 
 
 § 1787. Failure to Warn Passenger of Danger in Alighting. The 
 jury are instructed that if they believe, from the evidence, that the 
 plaintiff was a passenger, as alleged; that the night was dark and 
 rainy; that the brakeman called the station and opened the doors; that 
 the train came to a full stop; that thereupon plaintiff went on the 
 platform where the brakeman was standing, as if to get off, and that 
 the brakeman failed to warn him of danger, and to inform him that 
 the train had not reached the station, and that plaintiff, on account of 
 the darkness, did not and could not discover that the car was not at 
 the platform, and that, exercising ordinary care, he attempted to 
 leave the train; and that by the starting thereof he was thrown or 
 fell, and was injured, — they would be warranted in finding negli- 
 gence on the part of the defendant. *^^ 
 
 § 1788. Stopping at Suitable Place for Passenger to Alight, (a) 
 If the jury believe, from the evidence, that the defendant stopped 
 their train for passengers to alight at W station at a place which 
 
 68— St. L. S. W. Ry. Co. v. High- We are of the opinion that there 
 
 note, supra. is no merit in the second and 
 
 "The objections urged to this third objections. As to the first 
 
 charge are (1) that it makes ap- objection, we are of the opinion 
 
 pellant liable if the conductor that it is not well taken. It was 
 
 knew, or ought to have known in the duty of the conductor to use 
 
 the use of ordinary care, that the ordinary care to have the train 
 
 train was going faster than was running at that point at such a 
 
 safe, and faster than was agreed rate of speed as that the appellee 
 
 upon, at the time appellee de- could have, with the use of ordi- 
 
 parted therefrom, whether he nary care, alighted in safety, and 
 
 knew, or by the use of reasonable if he failed to use that care, and 
 
 care ought to have known, that the appellee alighted, believing 
 
 appellee intended to depart at the that it was running sufficiently 
 
 time he did depart, or knew when slow, and used ordinary care in 
 
 he did depart from the train; (2) so doing, he was entitled to re- 
 
 that it is on the weight of the cover." 
 
 evidence, and assumes that the 69— Devine v. Chicago, M. & St. 
 
 train was moving too fast for ap- P. R. Co., 100 Iowa 692, 69 N. W. 
 
 pellee to safely alight at the time 1042 (1043). 
 
 he departed therefrom; (3) that it "The matters recited in the 
 
 is upon the weight of the evidence, above paragraph of the charge are 
 
 and assumes that the rate of speed all alleged as circumstances which 
 
 was faster than had been agreed made it negligence to stop the 
 
 upon between the conductor and train, and invite or permit pas- 
 
 O'Neil at the time appellee, High- sengers to then leave it." 
 note, departed from the train.
 
 § 1789.] NEGLIGENCE— PASSENGER CARRIERS. 1159 
 
 was unsafe and dangerous for passengers to alight, and that the 
 plaintiff was told or encouraged to get off at such place, and, while 
 so doing, she was injured, then the defendant would be liable, and 
 the verdict should be for the plaintiff, if she did not contribute to 
 the accident by the want of ordinary cai'e, — by the failure to obsei^ve 
 ordinary care.'^'* 
 
 (b) If the jury believe, from the evidence, that the plaintiff 
 alighted from defendant's car at the place described in the complaint, 
 but that the place where ^^laintiff alighted was, considering the cir- 
 cumstances, a suitable place and a place of reasonable safety for pas- 
 sengers to alight, and such as a person of ordinaiy care might select 
 for such purpose, then the defendant would have discharged its duty 
 under the law, and could not, under the pleadings of this case, be 
 held liable to the plaintiff for injury accidentally occurring to the 
 plaintiff while attempting to pass to the car on the connecting roadJ^ 
 
 § 1789. Furnishing Passenger Safe Means for Alighting, (a) The 
 court instructs the juiy that a passenger who has paid his fare is 
 entitled to be carried safely to the place of his destination (that is, 
 the place to which he has paid his fare), and must be furnished at 
 said place safe means of exit and landing; and if the train is stopped, 
 and he is directed by the agents in charge of the train to get out at 
 said place, he has the right to rely on their direction, and can presume 
 that the place is safe for his exit, unless the danger thereof is open 
 and apparent to him.'^^ 
 
 (b) If you believe, from the evidence, that the box upon which 
 plaintiff stepjDed or attempted to step in alighting from defendant's 
 train was an unsafe device to be used for so alighting, by reason of its 
 size or position, or the character of the ground upon which it rested; 
 and if you further believe that by reason of said box being unsafe 
 to use as such device, the plaintiff in descending from the steps of 
 defendant's car, fell and was injured; and if you further believe 
 from the evidence that the defendant's servants were guilty of negli- 
 gence in failing to furnish plaintiff a safe means for alighting from 
 said train, or if you believe that defendant's servants upon said train 
 were guilty of negligence in failing to furnish plaintiff personal assist- 
 ance necessary to prevent her from falling; and if you further believe, 
 from the evidence, that such negligence, if any, of defendant's ser- 
 vants was the proximate cause of plaintiff's injuries, if any, then you 
 will find for the plaintiff against the defendant such sum of money as 
 damages as you believe, from the evidence, will reasonably and fairly 
 compensate plaintiff for the bodily and mental pain, if any, reason- 
 ably necessary medical expenses, if any, loss of time from her busi- 
 ness, if any, and diminished capacity to pursue her occupation in the 
 
 70— Brodie v. Carolina M. Ry. 72— Kennedy v. Southern Ry. Co., 
 Co., 46 S. C. 203, 24 S. E. 180 (182). 59 S. C. 535, 38 S. E. 169 (170). 
 
 71— Kennedy v. So. Rv. Co., 59 
 S. C. 535, 38 S. E. 169 (170).
 
 1160 FORMS OF INSTRUCTIONS. [§ 1790. 
 
 future, if any, which you believe, from the evidence, the plaintiff has 
 sustained or incurred by reason of said injuries, if any. 
 
 (c) You are further instructed that while the plaintiff was a pas- 
 senger on defendant's train, the defendant owed to her the duty to 
 exercise that high degree of care for her personal safety that a very 
 prudent person would exercise under the same circumstances, and a 
 failure, if any, to use such care w^ould be negligence in the sense that 
 the word ''negligence" is used in the foregoing portions of this 
 charge. The burden is upon the plaintiff to make out her case by a 
 preponderance of the evidence, and if she has not done so, you will 
 find for the defendant. 
 
 (d) If you believe, from the evidence, that defendant's employes 
 in charge of said train exercised that liigh degree of care for the per- 
 sonal safety of plaintiff in alighting from said train which very cau- 
 tious and prudent persons would have exercised under the same cir- 
 cumstances, then you will find that they were not guilty of negligence; 
 and if you so find you will return a verdict for the defendant.''^ 
 
 § 1790. Helping Passengers to Alight. The jury are instructed 
 that, whether or not the failure of the parties in charge of said train 
 to assist plaintiff's wife to get off said train constituted negligence is 
 a question of fact to be determined by you under the circumstances, 
 taking into consideration the failure on her part to ask for such as- 
 sistance.'^'* 
 
 § 1791. Injury to Passenger by Having Dress Stepped on While 
 Alighting. If you find that while plaintiff' 's wife was alighting from 
 the car she stepped ui3on her dress and was thereby caused to fall 
 and be injured, or if some persons behind her stepped upon her dress 
 and thereby caused her to fall and be injured, you will find for de- 
 fendant. But you are instructed that the plaintiff would be entitled 
 to recover if the injury to his wife, if she was injui'ed, was caused by 
 the negligence of defendant without negligence on her part contrib- 
 uting to it, and if you so find it will make no difference if the negli- 
 gence of defendant was contributed to by the act of some fellow pas- 
 senger.''-'' 
 
 § 1792. Stopping Train a Reasonable Time for Refreshments. If 
 you believe and find, from the evidence, that while the plaintiff was a 
 passenger from D to A, said train stopped at M Station, on its line of 
 road, and that the plaintiff alighted from said train to procure a lunch 
 at said station, and that it was usual and customary for such trains to 
 
 73— Missouri, K. & T. Ry. Co. did not allege that the negligence 
 
 V. White, 22 Tex. 424, 55 S. W. 593. of a fellow passenger contributed 
 
 74— Chi. R. I. & T. Ry. Co. v. to his wifp's injury, as it is also 
 
 Armes, 32 Tex. Civ. App. 32, 74 immaterial th;it there was no evi- 
 
 S. W. 77 C78). flenco of negligence upon the part 
 
 75 — M., K. & T. Ry. Co. v. Wolf, of any fellow passenger in step- 
 
 — Tex. Civ. App. — , 89 S. W. 778. ping on her rlress, sinee the eharge 
 
 "There Is no merit in the eriti- under cons'deration does not re- 
 eisrn of the court's charge. It is quire that the act of a fellow pas- 
 Immaterial that appellee's petition scnger be negligence. We under-
 
 § 1793.] NEGLIGENCE— PASSENGER CARRIERS. 1161 
 
 allow passengers to get lunch at said station, and if you further 
 believe, from t&e evidence, that while plaintiff was eating his lunch 
 the signal was given for passengers to board the said train, and there- 
 after a reasonably sufficient time was not given by the operatives of 
 said train to enable plaintiff to get on before the same was put 
 in motion, and that by reason thereof plaintiff was thrown down and 
 injured, as alleged in his petition, or in either of the ways therein 
 alleged, and that such failure, if any, to give such time to plaintiff to 
 board the train was negligence, and but for such negligence, if any, 
 plaintiff would not have been injured, or if you believe and find, from 
 the evidence, that after said train was put in motion the plaintiff at- 
 tempted to board the same, and while so doing the sei'vants and em- 
 ployes of the defendant in charge of and operating said train, caused 
 the same to give a sudden jerk, thereby throwing plaintiff down and 
 injuring him in the manner or in either of the waj^s alleged in his 
 petition, and that the causing of said train to give such sudden jerk 
 was negligence, and that but for such negligence, if any, plaintiff 
 would not have been injured, then, in either such case, if you so find, 
 you will find for the plaintiff such sum as will actually compensate 
 him for the damage, if any, sustained by reason of such injuries, 
 unless you find for the defendant under the instructions hereinafter 
 given you.''^ 
 
 § 1793. Duty as to Operation of Stock Trains Carrying Passen- 
 gers. The court instructs you that railroad companies have a legal 
 right to operate stock trains and to carry passengers upon them; 
 and in so doing they are required to use only such equipment as is 
 suitable for the safe operation of a stock train. They are not required 
 to have such a train equipped with appliances such as are useful and 
 necessary in handling passenger trains; and in operating such stock 
 trains they are not required to start, move or stop them with the same 
 degree of care for the safety or convenience of the passengers there- 
 on as is exacted from them in the management of passenger trains. 
 And if you believe, from the evidence in this case, that the plaintiff 
 was injured while riding upon a stock train operated by one or both 
 of the defendants, or while it was upon the track of one or both of the 
 defendants, and if you further believe, from the evidence, that such 
 train was then properly equipped for use as such stock train, and that 
 the defendant who was then moving the said train, started, moved and 
 stopped the train as prudently and carefully as such a train so 
 equipped could be started, moved and stopped, then you should find 
 both defendants not guilty.''"' 
 
 § 1794. Injury to Stockman by Jerking or Jolting Car While Prop- 
 erly Tending His Stock. If you believe, from the evidence, that the 
 
 stand that appellant would be lia- of whether or not the same was 
 ble, if its negligence concurred pleaded." 
 
 with the act of a fellow passenger, 76 — Texas & P. Ry. Co. v. Gray, 
 irrespective of whether or not that — Tex. Civ. App. — . 71 S. W. 316. 
 act be negligence, and irresoective 77 — Penn. Co. v. Greso, 102 111. 
 
 App. 252 (256).
 
 1162 FORMS OP INSTRUCTIONS. [§ 1795. 
 
 plaintiff R. was riding in the stock car in which his horses and cattle 
 and goods were being transported over defendant's road, and that 
 while the train was stationary, his cattle being down, and needing his 
 attention, he at the time, in a prudent and careful manner, attempted 
 to or did give the horses and cattle the attention or assistance which 
 they needed, and that the plaintiff was injured at that time by a 
 sudden and unusual hard jerk or jolt or bumping of the cars in which 
 he was riding, through and by the negligence of the defendant com- 
 pany or its operatives, you will find for the plaintiff, and assess actual 
 damages as hereinafter instructed.''^ 
 
 § 1795. Injury to Passenger Through Collision. If you believe, 
 from the evidence, that the plaintiff was a jDassenger on board the 
 
 cars of the defendant, in the month of last, and that those 
 
 ears came in collision with another train of cars, by and through 
 the negligence of the defendant's agents or servants, as charged in 
 the declaration, and that by reason of such negligence the plaintiff 
 was injured and sustained damage, and also that he was himself 
 using all reasonable care and caution to avoid such injury, then you 
 should find a verdict for the plaintiff, and assess his damages.''^ 
 
 § 1796. Collision Prima Facie Negligence. If you believe, from the 
 evidence, that the plaintiff was injured by the overturning of the car 
 in which he was a passenger (or by a collision of the cars, etc.), and 
 was thereby injured, without any fault upon his pai't, he thereby 
 makes out a prima facie case of negligence against the company, and 
 places upon it the burden of proving, by a preponderance of evidence, 
 that the accident resulted from a cause which could not have been 
 foreseen or prevented by the exercise of all reasonable care, vigilance 
 and foresight on behalf of the company.^^ 
 
 § 1797. Derailment of Car Prima Facie Negligence. The court in- 
 structs you that where a railway car is thrown from the track, and 
 the passenger for hire is thereby injured, the presumption is that the 
 accident resulted either from the fact that the track was out of order, 
 or the train badly managed, or both combined, and the onus is on the 
 company to show, by a preponderance of the evidence, that it was not 
 negligent in any of these respects.®^ 
 
 § 1798. Care Due Passenger While Train Is Being Switched, (a) 
 In determining the question of liability of the defendant in this ease 
 you will confine yourselves to a consideration of the following ques- 
 tions, to-wit: (1) Did the defendant, by and through its servants, 
 discover the presence of the plaintiff in one of the defendant's coaches 
 after the same had been put in motion by the switch engine at P.? 
 (2) If tlie defendant did so discover the presence of the plaintiff, then 
 
 78— Texas and P. Railway v. Thompson, 56 111. 138; Lemon v. 
 
 Rr-odor. 170 U. S. 530 (535), 18 Chanslor, 68 Mo. 340. 
 
 Sup. Ct. 705. 81— P. P. & J. R. R. Co. v. 
 
 79— C, B. & Q. R. R. V. George, Reynold.s, 88 111. 418; Fairdhild v. 
 
 19 111- 510. Cal. Stage Co., 13 Cal 599. 
 
 SO-P. C. & H. L. R. R. Co. V.
 
 §i(y9.] NEGLIGENCE— PASSENGER CARRIERS. 1163 
 
 did the defendant thereafter exex'cise ordinary care to avoid injur- 
 ing him? (3) Did the failure of the defendant, if any, to exercise 
 ordinary care to avoid injuring the plaintiff, directly and immediately 
 result in the injuries sustained by the plaintiff? (4) Was the plain- 
 tiff guilty of contributoiy negligence 1 
 
 (b) If, from the evidence, you believe that after the defendant's 
 coaches were put in motion by the switch engine at P. the defendant, 
 by and through any of its servants, to whom it had intrusted the duty 
 and authority of directing and controlling the movements of its trains 
 while the same was being switched, discovered the presence of the 
 plaintiff in one of said coaches while being so moved by the switch 
 engine, and, having so discovered the plaintiff therein, if such was the 
 fact, failed to exercise ordinaiy care with reference to his safety, and 
 that such failure, if any, to exercise ordinary care, directly and imme- 
 diately, resulted in the injuries sustained by the plaintiff, then you 
 will find for the plaintiff, unless you believe that he was guilty of con- 
 tribi;tory negligence as hereinafter defined.*^ 
 
 PROTECTION OF PASSENGER BY CARRIER. 
 
 § 1799. Duty of Conductor to Protect Female Passenger from 
 Vulgarity and Obscenity. Ir jou believe, from the evidence, that 
 plaintiff was with other passengers on the train; that the other pas- 
 
 82— Gulf, C. & S. F. Ry. Co. v. care. There is evidence in the 
 
 Shelton, 30 Tex. Civ. App. 72, 69 record that immediately upon the 
 
 S. W. 653 (655). arrival of the train at Purcell, or 
 
 "In a case where such duty a very few minutes thereafter, it 
 
 exists, the failure to use ordinary was put in motion under the direc- 
 
 care resulting in damages, an ac- tion of the switch crew, and that 
 
 tion for negligent injury may be there were coaches attached to 
 
 maintained and a recovery had for that train in which the appellee 
 
 all of the consequences of which was entitled to ride, if he had been 
 
 such failure was the proximate promptly notified of their exist- 
 
 cause. The jury, in passing upon ence. It might be true that he 
 
 and determining the question was given a reasonable oppor- 
 
 whether or not the appellant had tunity to leave the particular 
 
 exercised ordinary care after dis- coach that he was occupying, but 
 
 covering the plaintiff in the car, in view of his right of continuous 
 
 doubtless concluded that the facts transportation he was not required 
 
 introduced upon the trial and as to leave the train, and had the 
 
 set out in our findings were suf- right to ride in one of the coaches 
 
 ficient to indicate that the appel- that was going through to New- 
 
 lant had been guilty of negligence ton, Kan. The facts and circum- 
 
 in the manner as stated in the stances indicating that he was 
 
 findings of fact. In submitting entitled to protection as a passen- 
 
 the degree of care or duty resting ger are much stronger in his 
 
 upon appellant in its conduct to- favor than were the facts in the 
 
 wards appellee, the charge of the case of Texas & C. Rd. Co. v. 
 
 court was very conservative, for Dick. 26 Tex. Civ. App. 256, 63 S. 
 
 the facts in the record strongly W. 895. where, after a review of 
 
 indicate that the appellee, at the authorities, it was held that one 
 
 time he received his injuries, had who had left the train and the 
 
 not lost his status as a passenger; depot platform was entitled to 
 
 and, if such was the case, of course protection as a passenger. Our in- 
 
 the appellant was burdened with formation is that a writ of error 
 
 a higiher degree of care in its con- was denied by the Supreme Court 
 
 duct towards him than ordinary in that case."
 
 1164 FORMS OF INSTRUCTIONS. [§ 1800. 
 
 sengers, in her presence and hearing, in the same coach with her, 
 uttered profane, vulgar and obscene words, and sang obscene songs; 
 that the conductor was present, and knew of the presence of plaintiff 
 and of the using and singing of said words and songs by the passen- 
 gers, and did not restrain nor endeavor to prevent them from so 
 doing ; that the use of the words and songs alarmed and frightened the 
 plaintiff, and caused her shame, humiliation and distress of mind; 
 and if you further find that the words and songs were, in their nature, 
 calculated and likely, under the circumstances, to produce alarm, 
 fright, shame, and distress of mind in plaintiff, and that persons of 
 ordinary prudence and judgment, acting in a capacity similar to that 
 of the conductor, under like circumstances, would have commonly 
 anticipated or perceived such a result to plaintiff — you will find for 
 her in such sum as you deem just pecuniary compensation for the 
 alarm, fright, shame, and humiliation and distress of mind caused as 
 aforesaid. ^^ 
 
 CONTRIBUTORY NEGLIGENCE. 
 
 § 1800. Contributory Negligence of Passenger, (a) It is the duty 
 of every person to use such care and caution as a person of ordinary 
 prydence and caution would commonly exercise under like circum- 
 stances to avoid injury to himself; and the degree of care required 
 is always proportionate to the degree of danger indicated by the facts 
 and circumstances of the case, or that which might reasonably have 
 been foreseen by a person of ordinary prudence and a failure to 
 
 83— St. L. S. Ry. Co. v. Wright, entitled in the event the jury 
 
 — Tex. Civ. App. — , 84 S. W. 270 should find for her, and leaves the 
 
 (271). jury free to determine the amount 
 
 "It is insisted that this dharge of the .pecuniary compensation 
 is on the weight of evidence, and regardless of the evidence in the 
 assumes that profane, vulgar, and case. The first part of the para- 
 obscene words were used, and graph required the jury to find the 
 vulgar and obscene songs were language was used and the songs 
 sung, by passengers on appellant's sung, and that the use of the 
 train, in the presence of appellee, words and songs alarmed and 
 The specific part of the charge frightened plaintiff, and caused her 
 against which this contention is humiliation and distress of mind, 
 directed is 'that the conductor was The charge authorized the jury to 
 present, and knew of the presence give compensation for tihe alarm 
 of plaintiff and of the using and and fright, shame and humiliation 
 singing of said words and songs and distress of mind, caused aa 
 by the passengers.' The charge is aforesaid. Thus the jury were re- 
 nf)t subject to the criticism made, quired to find first that the words 
 In the first part of the paragraph were used and the songs sung, 
 the jury were instructed, in effect, and that thereby plaintiff was 
 that they must believe from the alarmed and frightened, and 
 evidence that profane, vulgar, and caused shame, humiliation, and 
 fii;sccne language was uttered, and distress of mind; and, if these 
 vulg.'ir songs were sung. The facts are found in the affirmative, 
 charge does not assume this fact. then they are told that they may 
 
 Again it is Insisted that the find for her pecuniary comnenpa- 
 
 charge does not confine the jurv *'ynr\ fnr p^^Vi "lor-m, fr-'.^^-* pV|o^- 
 to a cnnsideraf ion of the p\rirlr"n"^ 
 
 In df'terminiiig the componsntion i •( 
 to which the plaintiff would be
 
 § 1801.] NEGLIGENCE— PASSENGER CARRIERS. 1165 
 
 exercise such care is negligence. By contributory negligence is meant 
 some negligent act or omission on the part of the plaintiff which, con- 
 curring or co-operating with some negligent act or omission on the 
 part of the defendant, is the proximate cause of the injuries com- 
 plained of by plaintiff. 
 
 (b) If you believe, from the evidence, that plaintiff himself was 
 guilty of contributory negligence proximately contributing to his in- 
 juries, as contributory negligence has been heretofore explained and 
 defined, you will find for the defendant, even though you should be- 
 lieve that the negligence of the defendant, its servants or employes, 
 contributed to cause plaintiff's injuries. ... In determining 
 , . . as to whether or not plaintiff was guilty of negligence in 
 being upon or near defendant's track, or in his conduct while upon 
 or near defendant's track, you should consider all the facts and cir- 
 cumstances in evidence which tend to throw light upon this ques- 
 tion.^* 
 
 § 1801. Ordinary Care and Prudence Required of Passenger, (a) 
 The court instructs the jury the plaintiff, as a passenger, was not re- 
 quired by law to exercise extraordinaiy care or manifest the highest 
 degree of prudence to avoid injury. All the law required of him 
 while traveling as a passenger was that he should exercise ordinary 
 care and prudence for his safety, such as ordinarily careful persons 
 would exercise under the same circumstances as those shown in 
 evidence. ^^ 
 
 (b) *' Ordinary care and caution," as used in this charge, is that 
 degree of care and caution that a person of ordinary prudence is 
 accustomed to use under like or similar circumstances.^^ 
 
 (c) The plaintiff, as a passenger, was not required by law to 
 exercise extraordinary care, or manifest the highest degi'ee of pru- 
 
 84— St. Louis S. W. Ry. Co. v. with each other if taken in a 
 
 Cassaday, 92 Tex. 525, 50 S. W. general sense, while, if taken in a 
 
 125 (126). special sense, they are erroneous, 
 
 "We do not consider that this because they pronounce a conclu- 
 
 charge does any more than to de- sion from the evidence which the 
 
 fine contributory negligence, and jury may lawfully determine. This 
 
 inform the jury that, if plaintiff criticism is too refined. The obvi- 
 
 was guilty of such negligence, he ous and unmistakeable meaning of 
 
 could not recover, and that, in de- the instinictions is that all the care 
 
 termining whether he was so fhat was required of the plaintiff 
 
 guilty, they should look to all the was ordinary care, which is such 
 
 circumstances in evidence. It does a degree of care as ordinarily 
 
 not undertake to apply the law to careful persons would exercise 
 
 the very facts of the case, as we under similar circumstances. A 
 
 have held a party is entitled to like instruction was approved by 
 
 have done if he requests a proper this court in C. & A. R. R. Co. v. 
 
 charge. Mo. K. & T. Rv. Co. v. Fisher. 141 111. 614, 31 N. E. 406." 
 McGlamory, 89 Tex. 639. 35 S. W. 86— St. Louis S. W. Ry. Co. v. 
 
 1058; Gulf, C. & S. F. Rv. Co. v. Brown. 30 Tex. Civ. App. 57, 69 
 
 Shieder, 88 Tex. 152, 30 S. W. 902." S. W. 1010. 
 
 85 — W. C. St. R. R. Co. V. Mc- "Courts are not required to use 
 
 Nulty, 166 111. 203 (205), 46 N. E. the exact language of the books 
 
 784, aff'g 64 111. App. 549. in defining such terms to the jury 
 
 "It is said that the two sentences though it would be wiser and 
 
 of the instruction are in conflict safer to follow established defini-
 
 1166 FORMS OF INSTRUCTIONS. [§ 1802. 
 
 dence to avoid injury. All the law required of him while traveling 
 as a passenger was that he should exercise ordinary care and 
 prudence. 
 
 (d) By ordinary care the law means such a degi-ee of care, under 
 the circumstances and in the situation in which plaintiff was placed, 
 so far as that may be shown by the evidence, as an ordinaiy prudent 
 man would exercise under like circumstances and in the same situ- 
 ation to avoid apparent danger. 
 
 (e) If the jury believe, from the evidence, that the plaintiff, 
 while in the exercise of ordinary care, was injured by or in conse- 
 quence of the negligence of the defendant, as charged in the decla- 
 ration, or in either one of the counts thereof, then you should find 
 the defendant guilty.^^ 
 
 § 1802. Riding Upon Engine Rightfully at Invitation of Con- 
 ductor, (a) The court instructs the jury that if they believe, from 
 
 the evidence, that deceased was the husband of the plaintiff 
 
 in this suit, and that the said was rightfully upon the de- 
 fendant's engine by invitation and direction of the conductor and 
 manager of the same, and he was iising ordinary care for his safety 
 and was, by and through the carelessness and negligence of the de- 
 fendant's servants in running and handling the said engine, thrown 
 from the said engine to the ground and run over by a car and in- 
 jured, from which injuries the said aftei-wards died, then the 
 
 jury will find for the plaintiff, and assess her damages at such sum 
 as they believe, from the evidence, she has sustained, not exceed- 
 ing $ . 
 
 (b) The court instructs the jury that, if they believe, from the 
 evidence, that , the deceased, was rightfully on the defend- 
 ant's engine as alleged in the declaration in this case, and that 
 while he was on said engine he was using ordinary care on his part 
 for his safety and was, by and through the carelessness and negli- 
 gence of the defendant's servants in running and handling said 
 engine, thrown from said engine and injured, from which said in- 
 juries the said died, then the jury should find for the plain- 
 tiff and give her such damages as they deem a fair and just com- 
 pensation with respect to the pecuniary injuries resulting from such 
 death to the wife and next of kin of the said deceased, not exceed- 
 ing $ .88 
 
 § 1803. Alighting from Train Encumbered by Grips and Valises. 
 
 But if you find, from the evidence, that as plaintiff attempted to 
 alight from said train he carried a grip and valise on his back and 
 
 tlons. We think, however, there such person is accustomed to do 
 
 can be no valid objection to the under similar circumstances." 
 
 definition given by the court. 87— C. & A. R. R. Co. v. Fisher, 
 
 There can be no practical differ- SS 111. App. 33 (39 nnd 40), aff'd 141 
 
 enr-o between wihat a person of 111. 614, 31 N. F. 406. 
 
 ordinary prudence would ordi- SS— L. S. & M. S. Ry. Co. v. 
 
 narily do, or u.sually do, and what Brown, 123 111. 162, 14 N. F. 197, 5 
 
 Am. St. 510.
 
 §1804.] NEGLIGENCE— PASSENGER CARRIERS. 1167 
 
 in his hand, and if you further find that an ordinarily prudent per- 
 son, situated and circumstanced as plaintiff was, would not have 
 attempted to alight from said train incumbered with said grip and 
 valise, and if you further find that in attempting to so alight, if he 
 did, he failed to exercise that degi-ee of care that an ordinarily 
 prudent person would have exercised under the same or similar cir- 
 cumstances, and that such failure, if any, caused or contributed to 
 his injury, or if you find that as plaintiff was coming down the steps 
 he stumbled and started to fall, and he was caught by the defend- 
 ant's servant, and was prevented from falling, then, in either event, 
 you will find for the defendant.^^ 
 
 § 1804. Passenger Stumbling or Falling While Alighting. If 
 the plaintiff stumbled or fell while he was in the act of alighting 
 from the train, and was injured in consequence to any extent, and 
 he was caused to fall for any reason except the moving of the foot- 
 stool by the porter, then he is not entitled to recover, and you should 
 return a verdict for the defendant.^" 
 
 § 1805. Boarding Moving Train. The court instructs the jury that 
 even if defendant's train was not stopped a sufficient length of time 
 to enable plaintiff to get aboard said train safely, and if plaintiff at- 
 tempted to get aboard of said train while in motion, and was thrown 
 from the train because of said attempt to get aboard the train while 
 in motion, and was thereby injured, then she was guilty of contribu- 
 tory negligence, and cannot recover in this case.^^ 
 
 § 1806. Getting Off Moving Train, (a) If the jury believe, from 
 the evidence, that the plaintiff left the car of the defendant, C. T. T. 
 R. R. Co., while the same was in motion, and if they further believe 
 from the evidence that he knew of the proximity of the tracks of the 
 C. B. & Q. R. R. Co., they must take these facts into consideration in 
 determining whether the plaintiff was exercising due care and caution 
 for his own safety.^^ 
 
 (b) The jury are instructed that if you believe from the evidence 
 before you in this case that the deceased, G. C, left or attempted to 
 leave the defendant's train on which he was riding before the train 
 reached the accustomed place for stopping at said station, and while 
 the said train was still in motion, and that in doing so, if he did, he 
 failed to exercise that degree of care and prudence which an ordinar- 
 ily careful and prudent person would have exercised under the same 
 or similar circumstances, and that such failure, if any, contributed to 
 cause the injuries to the deceased which resulted in his death, then you 
 are instructed that the plaintiff cannot recover, and if you so find you 
 will return a verdict for the defendant, even though you should find 
 
 89— St. L. S. Ry. Co. v. Johnson, 91— Pence v. Wabash R. Co., 116 
 — Tex. Civ. App. — , 94 S. W. 163. Iowa 279. 90 N. W. 59. 
 
 90— St. L. S. W. Ry. Co. v. John- 92— C. T. T. R. R. Co. v. Schmell- 
 son, — Tex. — , 97 S. W. 1039. iner. 197 Til. 619 (625), 64 N. E. 714, 
 
 aff'f? 99 111. App. 577.
 
 1168 FORMS OF INSTRUCTIONS. [§ 1806. 
 
 from the evidence that the employes of defendant negligently failed 
 to stop said train at said station as charged by plaintiff.^^* 
 
 (c) If the speed of the train was too fast for a person of ordinary 
 prudence to undertake to alight, and if plaintiif did not know nor be- 
 lieve it was going too fast for him safely to alight, his want of knowl- 
 edge or belief did not excuse his act, unless he used ordinary care in 
 the judging and determining, and did in fact reasonably believe that 
 the train had been slowed up for him to get off and that its speed was 
 such that he could safely do so. If he believed the train was going be- 
 yond the point of his agreed destination, that was no justification for 
 his attempt to get off while the train was going at a rate that a person 
 of ordinary prudence would have perceived to be unsafe.^* 
 
 (d) If you find that said train did not stop long enough at P. to 
 enable plaintiff's wife, in her condition and circumstances, to get off 
 in safety, and if, when she was trying to get off, the train started, and 
 if while it was moving she undertook to get off and was injured, and if 
 in so trying to get off a moving train she was herself guilty of a want 
 of ordinary care as defined to you hereinafter, then you will find for 
 the defendant. 
 
 (e) If said train stopped long enough for plaintiff's wife to have 
 gotten off safely, circumstances, and conditioned as she was, and if 
 she failed to use reasonable diligence to get off, and unnecessarily and 
 negligently remained upon the train until it started and then under- 
 took to get off, and in attempting to get off fell and was injured, you 
 will find for defendant. 
 
 (f) It was the duty of plaintiff's wife to exercise ordinaiy care for 
 her own safety. Ordinary care means such care as an ordinarily 
 prudent and careful person, similarly situated and circumstanced, as 
 plaintiff's wife was, would have exercised, and a failure to exercise 
 such care would be negligence. 
 
 93 — Galveston, H. & S. A. Ry. Co. as to its being- slowed up for him 
 
 V. De Castillo, — Tex. Civ. App. to depart therefrom, and not to 
 
 — , 83 S. W. 25 (26). that of the conductor. The testi- 
 
 "It g-ave a correct enunciation of mony shows that before appellee 
 
 the law as applied to appellant's alighted he saw Martin alight and 
 
 theory of the case, and supplied a the effect it had upon him. He 
 
 clear omission in the charge of the then went back into the train, 
 
 court. That charge was abstractly pulled the bell cord, and then 
 
 correct, but it failed to define con- walked out on the steps of the 
 
 tributory negligence and render it platform, where he remained until 
 
 clear under what circumstances the train had reached its slowest 
 
 deceased should be found g-uilty of speed. He pulled the bell cord to 
 
 contributory negligence. St. L. & notify the trainmen of the agree- 
 
 f?. v. R. Co. V. Traweek, 84 Tex. ment, and when he pulled the cord 
 
 65, 19 S. W. 370; Missouri, K. & T. the whistle of the engine immedi- 
 
 R. Co. V. Miller, 8 Tex. Civ. App. ately sounded and the train began 
 
 241, 27 S. W. 905. The last case to slow up. Under these facts it 
 
 cited is very similar to this." was a question whether or not he 
 
 94 — St. Louis, S. W. Ry. Co. v. used ordinary care in acting as he 
 
 HIghnote. — Tex. Civ. App. — , 84 did. We do not think it was in- 
 
 K. W. 365 (367). cumbent upon him, under the cir- 
 
 "The objection to this charge is cumstances, to obtain the views of 
 
 thnt It left it to appellee's deter- the conductor as to the propriety 
 
 mination nnd judgment as to the of his alighting at that point." 
 pr-' 'd of the train, and his belief
 
 § 1807.] NEGLIGENCE— PASSENGER CARRIERS. 1169 
 
 (g) If you find from the evidence that plaintiff's -wife, in attempt- 
 ing to get off said train, failed to exercise ordinary care for her own 
 safety, and thereby contributed to her fall, or if she was guilty of 
 negligence (that is, if she failed to exercise ordinary care) by attempt- 
 ing to get off said train while it was in motion, if she did so, under 
 the circumstances surrounding her, and if she thereby contributed to 
 her fall — then you will find for the defendant, even though you should 
 find that the defendant was guilty of all the negligences charged 
 against it.^^ 
 
 § 1807. Jumping Off Moving Train After Sufi&cient Time to Alight 
 Has Been Given. If the jury believe from the evidence that the em- 
 ployes of the defendant, in operating the train on which the plaintiff 
 was riding as a passenger, announced the station of A. prior to the 
 train reaching said station; and if you find from the evidence that 
 said train was stopped a sufficient length of time for passengers to get 
 off, and the plaintiff failed to do so, without the fault of th€ employes 
 in charge of said train, and the conductor did not know and had no 
 reason to believe that she was still on the train in the act of getting 
 off, and gave the signal for the train to start, and that after the train 
 started, she stepped off or jumped off the train while it was in motion, 
 and was injured — then you are charged that she cannot recover, and if 
 you so find you will return a verdict for the defendant. ^^ 
 
 § 1808. Effect of Direction of Carrier's Servant to Passenger to 
 Get Off Moving Train. If the plaintiff having stepped upon the first 
 step of one of the cars of train in question, and before getting into the 
 ear, attempted to get off the same whether the train was in motion or 
 not, and fell while attempting to get off, or just after getting off, and 
 received the injuries complained of from such fall, then the de- 
 fendant is not liable for such injuries, unless she was directed to 
 get off by an employe of the defendant in charge of the operation 
 of said train, and obedience to such direction would not lead her 
 into any apparent danger such as the ordinarily prudent person 
 would not assume.®^ 
 
 § 1809. Effect of Direction of Carriers' Servant to Passenger Not 
 to Get Off Moving Train. If the jury believe from the evidence that 
 as soon as the conductor saw the plaintiff coming out of the car, 
 apparently to get off the train, after the same had started to depart 
 from the station, he told her not to get off or try to get off, but 
 wait and he would stop the train so she could get off, and she heard 
 him, but, disregarding what he told her, proceeded to get off the 
 train while the same was in motion and before the conductor had 
 time to bring the same to a full stop, and in stepping or jumping 
 
 95— C. R. I. & P. Ry. Co. V. Co., 36 Tex. Civ. App. 94, 80 S. W. 
 
 Armes, 32 Tex. Civ. App. 32, 74 S. 1023 (1024). 
 
 W. Rep. 77. 97— Pence v. Wabash R. Co., 116 
 
 96— Harris v. Gulf, C. & S. P. Ry. Iowa 279, 90 N. W. 59. 
 
 74
 
 1170 FORMS OF INSTRUCTIONS. [§1810. 
 
 off the train, if she did, was hurt, then she cannot recover, and if 
 you so find, you will return a verdict for the defendant.^^ 
 
 § 1810. Effect of Carrier's Discovery of Passenger's Peril in Time 
 to Avoid Consequences of Passenger's Contributory Negligence. The 
 court instructs the jury that, even though it should believe from the 
 evidence that the plaintiff was guilty of contributory negligence in 
 getting off of said car, and even though they should believe from the 
 evidence that her negligence contributed to the accident, yet if they 
 further believe from the evidence that the conductor, after he dis- 
 covered the plaintiff's peril, by the exercise of proper care and 
 caution could have avoided the mischief which happened, and failed 
 to do so, the plaintiff's negligence will not excuse the defendant, and 
 the plaintiff is entitled to recover.^'' 
 
 § 1811. Jumping from the Cars Negligence, When. If the jury 
 believe, from the evidence, that the plaintiff leaped from the cars, 
 at the time of the injury, under circumstances that would not have 
 justified such an act on the part of an ordinarily careful and prudent 
 man, and that the injury was caused by such jumping, and that if 
 he had remained on the car no injury would have happened, then 
 the plaintiff cannot recover in this suit.^"** 
 
 § 1812. Jumping From Moving Train When Suddenly Placed in 
 a Perilous Position by Carrier, (a) Although you may believe, from 
 the evidence, that the plaintiff jumped or stepped from the train in 
 question after it was in motion, whereby she received the injuries 
 complained of, yet if you further believe, from the evidence, that 
 while the plaintiff was descending the steps of said train the same 
 was suddenly, carelessly and without warning 'to her set in motion 
 by the defendant, and that the plaintiff was thereby placed in a peril- 
 ous position, then it is for you to determine, from the evidence, 
 whether the plaintiff acted as a reasonably prudent person would 
 have done under like circumstances; and if you believe, from the evi- 
 dence, that under the surrounding circumstances the plaintiff was not 
 guilty of negligence, but acted as a reasonably prudent person would 
 have done under like circumstances, then the fact of her so stepping 
 or jumping from said train while the same was in motion will not 
 prevent the plaintiff from recovering in this case.^ 
 
 (b) If the juiy shall find, as a matter of fact, that the negligence' 
 of the defendant placed the deceased S in a state of peril, and he had 
 at that time a reasonable ground for supposing he would be injured. 
 
 98 — Harris v. Gulf, etc., Ry. Co., "We see no error in this instruc- 
 
 36 Tex. Civ. App. 94, 80 S. W. 1023. tion. If a person while in the 
 
 99 — Richmond Passenger & Pow- exercise of due care for his own 
 
 '^.r Co. v. Allen, 101 Va. 200, 43 S. safety be placed in a perilous posi- 
 
 E. ?,r,C,. tion by the wrongful act of an- 
 
 100 — Lucas v. Taunton, etc., Rd. other, if his conduct in attempt- 
 Co., 6 Gray 64; Damont v. N. O. ing to extricate himself from that 
 etc. Rd. Co., 9 J^n. Aim. 441. peril is that of a reasonably pru- 
 
 1— C. & R. I. R. R. Co. v. Stor- dent person, acting in view of such 
 
 mfnt, 190 111. 42 (i'>), 60 N. E. 104, peril, he may recover, if injured."' 
 affg 90 111. App. 585,
 
 § 1813.] NEGLIGENCE— PASSENGER CARRIERS. 1171 
 
 by remaining on the train, then the plaintiffs are entitled to recover, 
 although the juiy may find, as a matter of fact, that the jumping of 
 the deceased S increased the peril or caused his death, and although 
 they may find that he would probably have sustained little or no 
 injury if he remained on the car.^ 
 
 (c) The court instructs the jury, that the fact, if proved, that the 
 plaintiff jumped from the cars to the ground, while said cars were in 
 motion, and thus sustained the injury complained of, will not alone 
 deprive him of his right to a recovery against defendant, if the jury 
 further believe, from the evidence, that an accident had occurred to 
 the train, which resulted from any want of reasonable care and cau- 
 tion on the part of the defendant, and that the plaintiff had reasonable 
 ground to believe, and did believe, that his life or limb was in danger, 
 and that it was necessary to leap from the ears in order to avoid the 
 danger which threatened him. The question is not so much whether 
 there was, in point of fact, any danger in remaining on the cars, as 
 whether the plaintiff reasonably apprehended danger, and so leaped 
 from the cars to escape it.^ 
 
 § 1813. Contributory Negligence of Shipper of Live Stock in Riding 
 on Engine. You are charged that if you believe, from the evidence, 
 that the engine of the train was a more dangerous place to ride than 
 the caboose thereof, and that the plaintiff, at the time he went upon 
 the engine prior to the wreck, or while he was upon said engine prior 
 to said wreck, knew that he was violating a rule of the railway com- 
 pany, or that the said engine was a more dangerous and hazardous 
 place to ride than the caboose, or by the use of such care on his part 
 as was reasonably to be expected of a boy of his age and mental 
 development would have known said facts, or either of them, and 
 that he voluntarily went on said engine or remained there, then he 
 would be guilty of negligence, and you will find for the defendants.* 
 
 § 1814. Jumping from Train on Seeing Another Train Approach- 
 ing, (a) If you find, from the testimony, that the defendant's pas- 
 senger train, upon which this plaintiff was a passenger, was stopped 
 upon the main track of defendant's line of railway by reason of a 
 freight train obstructing said track, and that while said passenger 
 train was so stopped upon said main track another freight train 
 approached said passenger train from the rear, in such close proximity 
 thereto as to make it reasonably appear to this plaintiff that there 
 was imminent danger of there being a collision between said passen- 
 ger train and said approaching freight train; and you further find 
 that by reason of the manner in which said trains were operated this 
 plaintiff had, under all the circumstances, reasonable gTounds for 
 
 2— Western Maryland R. Co. v. Bills, 9 Met. 1; Ry. Co. v. Aspell, 
 
 State, 95 Md. 637, 53 Atl. 969 (970). 23 Penn. St. 147. 
 
 3— Buell V. N. Y. Cent. R. R. Co., 4— Missouri, K. & T. Ry. Co. of 
 
 31 N. T. 314; Galena & C. Rd. Co. Texas v. Avis, — Tex. Civ. App. 
 
 V. Tarwood, 17 111. 509; S. W. Rd. — , 91 S. W. 877 (878). 
 Co. V. Paulk, 24 Ga. 356; Ingalls v.
 
 1172 FORMS OF INSTRUCTIONS. [§ 1814. 
 
 believing, and did actually believe, that there was great danger of a 
 collision of said trains, and that if he remained upon said passenger 
 train he was in imminent danger of losing his life or receiving great 
 bodily injury, and, so believing, that this plaintiff left his seat and 
 uent upon the platform of defendant's passenger coach, and that 
 while plaintiff was attempting to alight from said train the passenger 
 train was suddenly started, and that this plaintiff was thereby thrown 
 or fell to the ground and injured, as alleged in his petition; and you 
 further find that in operating its trains in such manner as to make it 
 reasonably appear to plaintiff that there was imminent danger of a 
 collision between the passenger train on which plaintiff was riding 
 and the approaching freight train, if you find they were so operated, 
 and in allowing said passenger train to move suddenly forward as 
 plaintiff attempted to alight from said train, if you find it was so 
 moved, defendant company was guilty of negligence, and that such 
 negligence, if any, was the proximate cause of plaintiff's injury, if 
 any; and you further find that plaintiff was not guilty of any negli- 
 gence that either caused or contributed to his injury, if any — then 
 you will find for plaintiff. By "reasonable grounds," as used in this 
 charge, is meant such a condition of apparent danger as would ordi- 
 narily cause an oi'dinarily prudent and considerate person to become 
 apprehensive of danger to himself under like circumstances and con- 
 ditions. 
 
 (b) If, however, you find that the defendant company used that 
 high degree of care that a very cautious, competent and prudent per- 
 son would have used under similar circumstances to prevent any 
 collision between defendant's passenger train and an approaching 
 freight train, and that its said trains were operated in such a manner 
 that an ordinarily prudent person, under all the circumstances, would 
 not have had reasonable grounds for believing that there was im- 
 minent danger of a collision of said trains, and that he was in im- 
 minent danger of losing his life or receiving great injuiy if he re- 
 mained upon said train, and that plaintiff's endeavor to get off of 
 said train at said time and place either caused or contributed to his 
 injury, if any, then you are charged that plaintiff cannot recover, and 
 you will find by your verdict. Or if you find thujt plaintiff was guilty 
 of any negligence in going upon said platform or in getting off of said 
 train, and that such negligence, if any, either caused or contributed 
 to his said injury, if any, then your verdict must be for defendant, 
 and you will so find. ''Negligence," as applied to plaintiff herein, 
 means a failure to use that degree of care that would be exercised 
 by an ordinarily prudent person under similar circumstances; and, 
 as applied to the defendant herein, means a failure to use that high 
 degree of care that would be exercised by a very cautious, competent 
 and prudent person under similar circumstances." 
 
 5— Williams v. Galveston, etc., Rv. Co., 34 Tex. Civ. App. 145, 78 
 S. W. 45 (47).
 
 § 1815.] NEGLIGENCE— PA&SENOER CARRIERS. 1173 
 
 § 1815. Live Stock Shipper Remaining in Car with Stock When 
 He Knows His Position Is Perilous. If you believe, from the evi- 
 dence, that plaintiff saw the approach of the engine and cars, and 
 that they were about to strike against the one in which his hogs were 
 contained, and if you further believe, from the evidence, that the 
 plaintiff was in a position he knew to be perilous to his safety from 
 such contact, then he would not be justified or authorized in law to 
 take the risk of remaining in or on the car to prevent his hogs from 
 escaping.® 
 
 § 1816. Standing on Platform of Car, If the jury believe, from 
 the evidence, that the plaintiff had an opportunity to take a seat in 
 the car at A, and that he voluntarily and negligently abandoned his 
 opportunity to take such a seat there, and voluntarily and negligently 
 took a position on the platfoim steps of the ear, and maintained such 
 position until he reached P, and if the jury further believe, from the 
 evidence, that the plaintiff before reaching P could by the exercise 
 of ordinary care have found sufficient standing room inside the car, 
 and that he would there have been safer, then the plaintiff can not 
 recover, and the jury should find for the defendant.' 
 
 § 1817. Passing from Car to Car While Train Is in Motion. The 
 
 jury are instructed that they must find for the defendant unless they 
 shall believe, from the evidence, that the defendant was guilty of 
 negligence. If they so believe, they must find for the plaintiff, unless 
 they further believe, from the evidence, that the plaintiff was guilty 
 of contributory negligence on his part; and, if they believe, from the 
 evidence, that the plaintiff was guilty of contributory negligence, they 
 must find for the defendant. The jury are insti'ucted that if they 
 believe, from the evidence, that the plaintiff, after getting on the car 
 he first entered, was unable to find a seat therein, by reason of its 
 crowded condition; that he was told by the conductor of the train 
 that he might find a seat in the forward car; that he went forward 
 after receiving such suggestion, and attempted to pass from the ear 
 to the next one; that, when he got out on the platform, he did 
 not remain there, but attempted to pass into the next car, with rea- 
 sonable pi'omptness; that, while so passing he exercised reasonable 
 care and caution under the circumstances; that, while so passing, he 
 was thrown fi'om the car by reason of the defendant's train being 
 run over the switch aad along the curve mentioned in the declaration 
 at a dangerous i^ate of speed, — they must find for the plaintiff. The 
 burden of proving these facts is upon the plaintiff. But if the jury 
 shall believe that he did not receive any such suggestion from the 
 conductor, or that if he received it, in passing from one car to the 
 other, or in loitering upon the platform, or in the selection of the 
 time when he undertook to so cross the platform in any other par- 
 
 6—1. C. R. R. Co. V. Anderson. 7— Chicagro & A. R. R. Co. v. 
 184 111. 294 (297), 56 N. E. 331, aff'g Fisher, 38 111. App. 33 (42), aff d 141 
 81 111. App. 137. 111. 614, 31 N. E. 406.
 
 1174 
 
 FORMS OF INSTRUCTIONS. 
 
 [§ 1818. 
 
 ticular, he did not exercise such care and caution as a reasonably 
 prudent man, under all the circumstances should have exercised for 
 his own protection, they should find for the defendant.^ 
 
 § 1818. Duty of Passenger to Mitigate Injuries as Far as Possible. 
 It was the duty of plaintiff to exercise such care as a person of ordi- 
 naiT prudence would have exercised under similar circumstances to 
 facilitate the cure of his injuries, and he cannot recover for any 
 injury which by the use of such care he could have avoided.^ 
 
 RULES AND REGULATIONS OF CARRIER. 
 
 § 1819. Right to Prescribe Rules. The jury are instructed, that 
 a railroad company has a right to require of its passengers the ob- 
 servance of all reasonable rules, calculated to insure the comfort, 
 
 &— Chesapeake & O. Ry. Co. v. 
 Clowes, 93 Va. 189, 24 S. E. Rep. 
 833 (835). 
 
 The above instruction has been 
 changed from that given by the 
 trial court by omitting the words 
 "at an unusually rapid rate of 
 speed" and inserting the words "at 
 a dangerous rate of speed." This 
 change was made to conform to 
 the following opinion of the court: 
 
 "The instructions given by the 
 court state the law correctly as 
 to the effect upon the plaintiff's 
 right to recover of his attempt to 
 pass from one car to the other, in 
 order to find a seat. The jury are 
 told that if the plaintiff was un- 
 able to find a seat in the car which 
 he first entered, and he was in- 
 formed by the conductor that he 
 might find a seat in the forward 
 car, and, in attempting to pass to 
 the next car, he exercised reason- 
 able care and caution, those cir- 
 cumstances do not constitute con- 
 tributory negligence; and in this 
 there is no error. But, while these 
 circumstances do not show con- 
 tributory negligence, on the part of 
 the plaintiff, it remains for him to 
 .show negligence on the part of the 
 defendant, to entitle him to re- 
 cover; and it is to that clause of 
 the instruction which points out 
 the negligence of the defendant to 
 which, we think, exception can 
 Justly be taken. The instruction 
 says that 'If the jury believe that, 
 while so passing, he was thrown 
 from the car, by reason of the 
 defendant's train being run over 
 the .switch and along the curve 
 mentioned in the declaration at 
 unuHunlly rapid rate of speed, 
 they must find for the plaintiff.' 
 In other words, this instruction 
 
 contains two propositions, the first 
 being that certain acts upon the 
 part of the plaintiff did not con- 
 stitute contributory negligence; 
 secondly, that running over the 
 switch and curve at an 'unusually 
 rapid rate of speed' constituted 
 negligence upon the part of the 
 defendant. In this, we think, there 
 was error. We cannot say, as a 
 matter of law, that the mere rate 
 of speed is negligence, although it 
 may be unusual. It is true that 
 'negligence' is a relative term; that 
 what may be negligence under one 
 condition of facts would not only 
 not be negligei^ce, but highest pru- 
 dence, under a different condition 
 of facts. The question for the 
 jury always is, was the act, taken 
 in connection with all of its at- 
 tending circumstances, negligent? 
 Without doubt, a rate of speed 
 may be dangerous, taken in con- 
 nection with other circumstances; 
 as, for instance, the condition of 
 the track, which would be entirely 
 safe under other circumstances. 
 The degree of curvature may be 
 such as to render more than a 
 given rate of speed dangerous, and 
 a dangerous rate of speed is negli- 
 gence. If, therefore, the instruc- 
 tion had satd that the defendant's 
 train was being run over the 
 switch and along the curve men- 
 tioned in the declaration at 'dan- 
 gerous rate of speed,' we sihould 
 have held the instruction to be al- 
 together proper, but we cannot 
 hold that what is unusual is there- 
 fore dangerous. We think that 
 the circuit court erred in this re- 
 spect in its instruction." 
 
 9— Oulf. C. & S. F. Ry. Co. v. 
 Denson, — Tex. Civ. App — , 72 
 S. W. 70.
 
 § 1820.] NEGLIGENCE— PASSENGER CARRIERS. 1175 
 
 convenience, good order and behavior of all persons on the train, and 
 to secure the proper conduct of its business; and if a passenger wan- 
 tonly disregards any such reasonable rule, the obligation to cari-y him 
 farther ceases, and the company may expel him from the train at any 
 regular station, using no more force than may be necessary for that 
 purpose. ^° 
 
 § 1820. Carrier May Set Apart Separate Cars for Ladies. The 
 court further instructs you, that whatever rules tend to the comfort, 
 order and safety of the passengers on a railroad, the companies are 
 authorized to make and enforce ; but such rules must be reasonable 
 and uniform. A rule setting apart a car for the exclusive use of 
 ladies, and gentlemen accompanied by ladies, is a reasonable rule, 
 and it may be enforced. ^^ 
 
 § 1821. When Carrier May Refuse to Receive Intoxicated Persons 
 as Passengers. A railroad company may refuse to receive as a pas- 
 senger, a person who is so intoxicated as to be disgusting, offensive, 
 disagreeable or annoying to the other passengers, generally, so long 
 as he continues in that condition, though he may have purchased a 
 ticket — though a slight intoxication, such as would not seriously 
 affect the conduct of the passenger, would not justify a railroad 
 company in refusing to receive and carry one as a passenger who had 
 purchased his tieket.^^ 
 
 TICKETS. 
 
 § 1822. When Representations of Ticket Agent Are Binding on 
 Carrier. A railway company is bound by the representations of its 
 ticket agent to the purchaser of a ticket, provided, the representa- 
 tions were made at the time of the sale of the ticket. ^^ 
 
 § 1«23. Requiring Higher Fare When Paid on Train, (a) There 
 is no question that railroad companies may make such regulations as 
 I have charged you, provided passengers are given convenient place 
 and suflScient opportunity to procure tickets previous to boarding 
 the train to become passengers, and such regulations would not be 
 unreasonable, nor oppi'essive, nor open to the objection that it makes 
 the fare charged higher than the rate allowed by law, which in this 
 state, by statutory provision, is three cents per mile. Now, you have 
 heard the testimony as to the station here at N, and you must say, 
 
 from the testimony, whether or not the defendant, on the day 
 
 of May, , had provided or built convenient places for those in- 
 tending to become passengers on their passenger trains to procure 
 
 10— Sandford v. Eighth Ave., 11— C. & N. W. Rd. Co. v. Wil- 
 
 etc, Rd. Co., 23 N. Y. 343; I. C. liams, 55 111. 185; Bass v. Chi. & N. 
 
 Rd. Co. V. Whitmore, 43 111. 420; W. Rd. Co., 36 Wis. 450; Com. V. 
 
 Crawford v. Cincinnati, etc.. Rd. Power, 7 Met. 596. 
 
 Co., 26 Ohio St. 580; State v. 12— Pittsburg, etc.. Rd. Co. v. 
 
 Chovia, 7 la. 204; Shelton v. Lake Van Dyne, 57 Ind. 576. 
 
 Shore, etc., Rd. Co., 29 Ohio St. 13— Miller v. Southern Ry. Co., 
 
 214. 69 S. C. 116, 48 S. E. 99.
 
 1176 FORMS OF INSTRUCTIONS. [§1823. 
 
 tickets for their journey, and there was sufficient opportunity afforded 
 the plaintiff, on the occasion referred to, to procure his ticket before 
 boarding defendant's passenger train for Helena. These are ques- 
 tions for you. Such regulation is conducive, says the law, to the 
 rapid, orderly and convenient dispatch of the conductor's part in the 
 collection of fares, and thus leaving him free for the performance 
 of his other duties in connection with stops at stations, the entrance 
 and exit of passengers, and the whole supervision of the safety and 
 comfort of those under his care. There may be circumstances which 
 would render the enforcement of such regulation unreasonable, — as 
 where the passengers boarded the train at a station where no tickets 
 were sold, where the office provided by the railroad company for the 
 sale of tickets was closed, or where the agent had lost the key, as in 
 one of the illustrations that counsel referred to, and in consequence 
 could not furnish the passenger with a ticket; but, ordinarily, I would 
 say, such regulations are not only reasonable but valid. Now, you 
 are to say, from the testimony, whether or not any reasons for the 
 non-enforcement of the regulation in this case existed, or if there is 
 any other valid reason proved which would exempt the plaintiff from 
 the enforcement of the regulation against him on the occasion of which 
 he complains. I say you are to take that into consideration, and 
 you are to find the testimony applicable to it, and determine that 
 question. If there was, that enforcement of the rule against him 
 would have been wrong, and his ejection under the circumstances 
 would have been unlawful. 
 
 (b) If the plaintiff boarded the passenger train of the defendant 
 at N (and that is a question for you) without a ticket, having had 
 opportunity to procure a ticket, and when called upon to pay his fare 
 refused to pay the fare, he became a trespasser on the defendant's 
 train ab initio (that is, from the beginning), and the conductor had 
 the right to put him off; for the conductor may put off a passenger 
 who refuses to pay the fare for transportation at any point on the 
 defendant's road in a proper place and in a proper manner (that is, 
 at any place where the passenger would not be injured or in danger), 
 and to use just so much force as was necessary for the purpose of 
 doing it, but no more. So, if the conductor on this occasion, if the 
 plaintiff boarded the passenger car of the defendant at N, having 
 had an opportunity to procure a ticket, and did not do so, and when 
 his fare and the excess required of passengers who get on passenger 
 cars of the defendant at stations where tickets were sold, was de- 
 manded by the conductor, the plaintiff refused to pay it, the con- 
 ductor had the right, under the regulations of the company, if you 
 are satisfied, from the testimony, that such regulations existed, and 
 that such were the circumstances as I have stated (these are the facts 
 which you must determine), to put the plaintiff off, and to use so 
 much force as was necessary for the purpose of doing it. The facts, 
 as I say, must be found by you from the testimony ; must not be what 
 you til ink about it, but you are to take the testimony as the witnesses
 
 §il824.] NEGLIGENCE— PASSENGER CARRIERS. 1177 
 
 have given it to you, and you must determine it on that. You must, 
 in determining all facts, be governed by the preponderance of the 
 evidence, as I have told you.^* 
 
 § 1824. Validation of Reduced Rate Round-Trip Tickets at Desti- 
 nation by Identification and Stamping. The jury are instructed that 
 a condition in a round-trip railroad ticket, sold at a reduced rate of 
 fare, that the purchaser will identify himself to the satisfaction of 
 the agent of the company at the point of destination, and sign the 
 same and have it 'stamped, is a reasonable condition, and the pur- 
 chaser of such a ticket is not entitled to return on such a ticket until 
 it is so signed and stamped.^^ 
 
 § 1825. Effect of Purchaser Signing a Round-Trip Ticket. The 
 jury are instructed that a person who intends traveling on a railroad 
 train, and purchases a round-trip ticket at a reduced rate of fare, and 
 signs the contract printed upon its face, is bound by all of its reason- 
 able provisions, whether she had actually read the same or not, and 
 she is presumed to know the same.^® 
 
 LIMITATION OF LIABILITY. 
 
 § 1826. Limitation of Liability — Existence of Contracts a Question 
 of Fact for the Jury. I will say to you that it takes two to make a 
 contract; that is, there must be two contracting parties. There may 
 be more than two contracting parties, but there must be one on one 
 side and one on the other; and there is no contract unless and until 
 their minds meet. They must come together on some proposition, 
 and on the proposition about which the contract is to be made. The 
 minds must meet. They must agree; must come together and discuss 
 the matter; a week, a day; no matter how long; discuss the matter 
 about which they shall contract. There will be no contract until the 
 minds meet, come together; and there will be no binding contract 
 if there is misrepresentation or fraud, because that vitiates every- 
 thing. But it is for you to say whether there was a contract between 
 these parties, plaintiff and the railroad company, by the agent of the 
 railroad or otherwise. You must say whether there was a contract, 
 then you must say what the contract was. That is a matter of fact 
 for you. I have nothing to say about that.^^ 
 
 EJECTION OF PASSENGERS. 
 
 § 1827. Carrier May Eject Person Refusing to Produce a Ticket 
 or Pay His Fare, (a) A railroad company has a right to prescribe 
 reasonable rules for the government of its employes in the conduct 
 
 14— Kibley v. Southern Ry. Co., 16— Daniels v. Florida Cent. & 
 
 62 S. C. 252. 40 S. E. 556. P. R. Co., 62 S. C. 1, 39 S. E. 762. 
 
 15— Daniels v. Florida Cent. R. 17— Daniels v. Florida Cent. & 
 
 Co., 62 S. C. 1, 39 S. E. 762. P. R. Co., 62 S. C. 1, 39 S. E. 762.
 
 1178 FORMS OF INSTRUCTIONS. [§ 1327. 
 
 of its business upon its trains, and passengers may be required to 
 conform to such rules, and a rule requiring a conductor to eject from 
 the train a passenger who refuses to produce a ticket or pay his fare 
 on demand is a reasonable one. Whether, in this case, the defend- 
 ant had such a rule and whether the plaintiff did refuse to produce a 
 ticket or pay his fare on demand, etc., etc., are all questions of fact 
 to be determined by the jury by a preponderance of the evidence.^^ 
 
 (b) A conductor or agent on a railroad train has a right to expel 
 a passenger for the non-payment of his fare or his refusal to deliver 
 his ticket within a reasonable time, but he has no right to use any 
 more force than is reasonably necessary for that purpose ; and in this 
 ease, even if you find that the plaintiff refused to pay his fare or 
 surrender his ticket, the agent of the company had no right to use 
 unnecessary force or violence toward the plaintiff, and if you should 
 find that he did use more force than was reasonably necessary, you 
 should find for the plaintiff. 
 
 (e) It is not sufficient that passenger has a ticket in his possession 
 but he must offer to surrender it, and actually tender it to the proper 
 conductor when demanded, to entitle the passenger to the rights of a 
 passenger.^'' 
 
 (d) The jury are instructed that it is the right of a railroad com- 
 pany to expel a passenger who is found upon one of its trains who 
 fails to present a valid ticket for her passage or to pay her fare. I 
 charge you that is the law, as I understand it. If the ticket is 
 wrong, the conductor must go according to the rules of the company, 
 which has to carry the public and at certain times has a great duty 
 imposed upon it; and, if he has to put off a passenger because the 
 ticket is wrong, the conductor must do that. The railroad may be 
 liable for issuing the wrong ticket, but not for putting her off.^" 
 
 (e) If the jury believe, from the evidence, that the defendant's 
 conductor demanded of plaintiff her ticket, and that on said demand 
 being made the plaintiff failed, or refused, to produce her ticket or 
 pay her fare, then said conductor had the right to eject her from the 
 train, using no more force than was necessary to eject her from the 
 
 18 — Crawford v. Rd. Co., 26 Ohio cept that excessive force was used. 
 
 St. 580; Toledo, W. & W. Rd. Co. "Appellee testified that he had 
 
 V. Wright, 68 Ind. 586. the ticket in his possession, but 
 
 19 — Terre Haute & I. R. Co. v. was unable to find it upon de- 
 
 Pritfhard, 37 Ind. App. 420, 76 N. mand; that he offered to pay his 
 
 E. 1070. fare. The conductor of appellant's 
 
 "It is contended that the giving train testified that the plaintiff re- 
 ef the first instruction was error fused to give a ticket, or to pay his 
 because, 'upon a theory not set up fare. These instructions we think 
 in the pleadings nor within the are pertinent to the pleadings and 
 evidence in the cause'; that the within the evidence. Some fault 
 complaint proceeds upon the theory is found with other instructions; 
 that the plaintiff was rightfully but, considered together, they fair- 
 upon appellant's train, and was ly present the law, and were not 
 wrongfully ejected; that the in- prejudicial to appellant." 
 Btruction is on the theory that he 20 — Daniels v. Florida C. & P. 
 was wrongfully on defendant's R, Co., 62 S. C. 1, 39 S. E. 762. 
 train and was properly ejected, ex-
 
 § 1828.] NEGLIGENCE— PASSENGER CARRIERS. 1179 
 
 train; and unless you believe, from the evidence, he used more force 
 than was necessary to eject her from the train, or that he was rude, 
 insulting, rough or boisterous in manner towards her, you should 
 find for defendant. 
 
 (f) If you believe, from the evidence, that defendant's conductor 
 in charge of its train was insulting in his manner, words, or tone 
 towards plaintiff, or that he rudely and roughly grabbed her by the 
 arm, while she was sitting in her seat, then you may, in addition to 
 compensatory damages, award her punitive damages in any sum you 
 may deem proper, not exceeding in all more than $3,000.^^ 
 
 § 1828. Carrier May Eject Passenger Using Abusive or Obscene 
 Language. The court further instructs you, that the use of grossly 
 profane and abusive or obscene language, by a passenger in a railway 
 car where there are ladies, is such a breach of decorum, no matter if 
 it is provoked, as will work a forfeiture of his rights to be carried as 
 a passenger, and the conductor has a right to cause him to be expelled 
 from the cars, using no more force than is necessary for that pur- 
 pose.22 
 
 § 1829. Right of Conductor to Eject Passenger Using Obscene or 
 Abusive Language — Rule in Alabama. Under the law in this state, 
 the conductor of a railroad train is a police officer, and not only has 
 the right, but it is his duty, to keep order on the train on which he is 
 conductor, and to eject all persons who use obscene or abusive lan- 
 guage in the presence and hearing of the passengers. ^^ 
 
 § 1830. Injuries to Passenger Brought on by Refusal to Leave 
 Train When Ordered by Conductor, (a) It is not necessary that a 
 person claiming to be, or actually being, a passenger on a train of a 
 railroad company, should forcibly resist an attempt of the conductor 
 to remove him therefi'om in order to entitle such person to maintain 
 an action against the company for a wrongful ejection. So in this 
 case, if you believe, from the evidence, that the conductor of the train 
 in question demanded the fare from the plaintiff, and that the plain- 
 tiff refused to pay the same, or to produce a ticket entitling him to 
 passage on that train, and that the conductor then told plaintiff he 
 must leave the train, and that plaintiff refused to leave the same, 
 then he cannot recover for any injury he may have sustained while 
 being put off the train, except for such injuries, if any, which were 
 caused by the use of unreasonable force by the servant or servants of 
 the defendant — if you believe such unreasonable force was used. 
 
 (b) When the conductor demanded that appellee should pay fare 
 or leave the train, he would have been justified in refusing to pay 
 fare and leaving the train on the command of the conductor; and 
 had he done so he would have received no personal injuries, and 
 
 21— Louisville & N. R. Co. v. Griffin, 68 111. 499; Vinton v. Mid- 
 Fowler, 29 Ky. Law Rep. 905, 96 diesex, 11 Allen 304. 
 S. W. 568 (570). 23— Moore v. Nashville C. & St. 
 
 22— C, B. & Q. R. R. Co. v. L. Ry., 137 Ala. 495, 34 So. 617.
 
 1180 FORMS OF INSTRUCTIONS. [§ 1831. 
 
 mio-ht then have brought his action and recovered, as before stated; 
 but when he refused to leave the train, and thus comiielled the con- 
 ductor to resort to force, he can not recover for an injury which he 
 voluntarily brought upon himself.^-* 
 
 § 1831. Ejection cf Passenger from Train While in Motion. If 
 the jury believe, from the weight of the evidence, that A. B., the 
 plaintiff in this suit, was on defendant's passenger train on defend- 
 ant 's railroad, on or about the day of , and that plain- 
 tiff, while using due care for his personal safety, was forcibly ejected 
 from said train by the brakeman thereon, employed on said train, 
 while said train was in motion, as alleged in the declaration, or any 
 count thereof, then the jury should find the defendant guilty, and 
 assess the plaintiff's damages at whatever you find he has sustained 
 by reason of injuries received thereby.^^ 
 
 BAGGAGE. 
 
 § 1832. Liability for Baggage. The jury are instructed, that a 
 common carrier of passengers, by receiving the baggage of a traveler 
 who has engaged his passage, becomes immediately responsible for 
 its safe delivery at the place of destination, and nothing but the act 
 of God or the public enemies will excuse a non-delivery. 
 
 The court instructs you that the term baggage includes a reasonable 
 amount of money in a trunk, intended for traveling expenses, and 
 such articles of necessity and convenience as are usually carried by 
 passengers for their personal use, instruction, amusement or pi'otec- 
 tion.2^ 
 
 §1833. What Term "Baggage" Does Not Extend to. (a) The 
 
 court instructs you, that the term baggage does not extend to money, 
 merchandise, or other valuables which are designed for purposes of 
 business, and not for the traveling expenses, personal use, comfort, in- 
 struction, amusement or protection of the passenger. 
 
 (b) You are instructed, that while the implied undertaking of a 
 common carrier to insure the safe delivery of baggage as against 
 everything but the act of God, and the public enemies, does not extend 
 to the contents of a trunk consisting of merchandise, money or other 
 valuables, which are designed for the purposes of trade or business; 
 still the common carrier, if he takes charge of such property for the 
 purpose of transporting, assumes the relation to it of an ordinary 
 bailee, and is bound to take such care of it, as men of ordinary care 
 
 24— C. & E. I. R. R. Co. V. Cas- Rd. Co., 42 N. Y. 326; Parmlee v, 
 
 azza, 83 111. App. 421 (427). Fischer, 22 Til. 212; Porter v. Hilde- 
 
 2r>— St. L. A. & T. H. R. R. Co. brand. 14 Penn. St. 129; Hannibal, 
 
 V. Rfajcan, 52 111. App. 488 (489). etc., Rd. Co. v. Swift, 12 Wallace 
 
 26— Wfoks V. N. Y., etc., R. R. 262; Gleason v. Goodrich T. Co., Sa 
 
 Co., 16 N. Y. Sup. Ct. 669; Hutch- Wis. 85; Toledo, etc., v. Hammond, 
 
 in^H V. Wfstern, etc.. R. R. Co., 25 23 Ind. .S79. 
 Ga. 63; Doxtor v. Syracuse, etc..
 
 §^1834.] NEGLIGENCE— PASSENGER CARRIERS. 1181 
 
 and prudence would usually take of their own property under the 
 same circumstances.^^ 
 
 § 1834. If a Trunk Contains Articles of Special Value, Carrier 
 Should be Notified. The court instructs the jury, that a traveler who 
 presents to a carrier of passengers, a trunk or valise, such as is com- 
 monly used for the transportation of wearing apparel, represents by 
 implication, that it contains only such articles as are necessary for 
 his comfort and convenience on the journey, and if it, in fact, con- 
 tains merchandise, jewelry or other valuables, and the fact is not 
 mentioned, the traveler is guilty of such a legal fraud as to absolve 
 the carrier from the extraordinary liability of insurer.^^ 
 
 § 1835. Carrier Not Bound to Inauire as to Contents of Trunk. 
 (a) The court instructs you, that a carrier of passengers is not bound 
 to inquire as to the contents of a trunk, delivered to it as ordinary 
 baggage, such as travelers usually carrj^, even if the same is of con- 
 siderable weight, but the carrier may rely upon the representation, 
 arising by implication, that it contains nothing more than baggage. 
 
 (b) The court instructs you, that where a person, under the pre- 
 tense of having baggage transported, places in the hands of the agents 
 of a railroad company, merchandise, jewelry and other valuables, 
 without notifying them of its character and value, he practices a 
 fraud upon the company, which will prevent his recovery in case of 
 loss, except it occurs through gross negligence of the company.^^ 
 
 § 1836. Baggage — Liability of Carrier for Terminates, When. The 
 court instructs the jury, that the responsibility of a railroad com- 
 pany, as a common carrier, for the baggage of a passenger, termi- 
 nates on the expiration of a reasonable time for the passenger to 
 come or send for the baggage, after the arrival of the train at the 
 passenger's place of destination. After such reasonable time, the 
 company may store the baggage in its warehouse, and it will then 
 hold it as a warehouseman only.^" 
 
 SLEEPING CAR COMPANIES. 
 
 § 1837. Care Due Property of Passenger by Sleeping Car Company. 
 
 It is the duty of a sleeping car company to exercise reasonable dili- 
 gence in looking after the person and property of passengers on its 
 car while they are asleep.^^ 
 
 § 1838. Liability of Sleeping Car Company for Theft of Passen- 
 ger's Diamond, (a) If the juiy believe, from the evidence, that the 
 
 27— Penn. Co. v. Miller, 35 Ohio 30— Chicago, etc., R. R. Co. v. 
 
 St. 541; Wood v. Devine, 13 111. 746. Boyce. 73 III. 510; Mote v. Chicago. 
 
 28— Smith et al. v. B. & M. Ry. etc., Rd. Co., 27 la. 22; Louisville, 
 
 Co., 44 N. H. 325; Magniu v. Dins- etc., Rd. Co. v. Maihn, 8 Bust. 184; 
 
 more, 62 N. Y. 35. Ross v. Mo. Rd. Co., 4 Mo. App. 
 
 29— Mich. Cent. R. R. Co. v. Car- 582. 
 
 row. 73 111. 348; Whitmore v. 31— Pullman P. C. Co. v. Adams, 
 
 Steamboat, etc., 20 Mo. 513; Doyle 120 Ala. 581, 24 So. 921, 45 L. R. A. 
 
 V. Kiser, 6 lud. 242. 767, 74 Am. St. Rep. 53.
 
 1182 FORMS OF INSTRUCTIONS. [5 1839. 
 
 diamond ring alleged to have been lost or stolen was not in a condi- 
 tion that it could have been worn, for the use, convenience, or orna- 
 ment of plaintiff, on said trip, they cannot find against defendant on 
 account of its loss. 
 
 (b) The court charges the jury that unless the ring alleged to 
 have been lost by plaintiff was in such condition that it could be of 
 sei-\'ice to plaintiff for his personal use, comfort, convenience, or 
 ornament on said trip, they cannot find against defendant for its loss 
 under the evidence in this case. 
 
 (c) Under the evidence in this case there can be no recovery for 
 the value of the diamond ring that was lost by the plaintiff, unless 
 the jury believe, from the evidence, that the diamond ring, the value 
 of which is sued for, was in such condition at the beginning and 
 during the journey made by the plaintiff that the same could be used 
 or worn by him, they cannot find against the defendant for any 
 damages for its loss.^- 
 
 BURDEN OF PROOF. 
 
 § 1839. Rule in Georgia as to Burden of Proof When Fact that 
 Plaintiff Was a Passenger Is Shown. (a) The burden is 
 on the plaintiff to establish the truth of the allegations in -the decla- 
 ration by a preponderance of the testimony, — that is to say, in a 
 case of this character, it is incumbent upon the plaintiff to establish 
 the fact {hat he was a passenger upon the car and was injured; and 
 when he has established that by a preponderance of the evidence, or 
 made it appear by any admissions in the pleadings satisfactory to 
 you, as to the fact that he was a passenger and was injured, or estab- 
 lished it by evidence to a reasonable and moral certainty, then the 
 law shifts the burden, and it is incumbent upon the defendant to 
 establish, by a preponderance of the evidence, one of two facts, — 
 either that it was without negligence, or that the plaintiff could have 
 avoided the consequence of the negligence by the exercise of ordi- 
 nary care.^^ 
 
 (b) The effect of the plea, gentlemen, is to put the burden of 
 proof on the plaintiff, the party bringing the suit, to show to your 
 satisfaction, by a legal preponderance of the evidence in the case, 
 that the allegations he makes are true. 
 
 (c) If you believe the plaintiff was a passenger of the defendant, 
 then the law would raise a presumption against the defendant com- 
 
 32 — Pullman P. Car Co. v. Adams, mere fact that a person is injured 
 
 120 Ala. 581, 24 So. 921, 45 L. R. A. while a passenger without any 
 
 767, 74 Am. St. 53. reference as to how he was injured 
 
 33 — Macon Cons. St. R. Co. v. furnishes no ground for a pre- 
 
 Barnr^s, 113 Ga. 212, 38 S. E. 756. sumption of negligence. See in 
 
 Such instructions as the one this connection Western Maryland 
 
 above are good in Georgia and sev- R. Co. v. State, 95 Md. 637, 53 Atl. 
 
 eral other states, but would be er- 969. (Editor.) 
 roneous in many jurisdictions. The
 
 § 1840.] NEGLIGENCE— PASSENGER CARRIERS. 1183 
 
 pany that it was negligent, and the burden would be on the defendant 
 to rebut that presumption by showing it was not negligent, or that 
 the plaintiif, by the exercise of ordinary care on his part, could have 
 avoided the consequences to himself of the defendant's negligence, if 
 that appears.''^ 
 
 § 1840. Burden of Proof Where Negligence Is Shown in Construc- 
 tion, Operation or Maintenance of Rolling Stock or Roadbed. If you 
 find that the plaintiff has shown conditions existing at the time and 
 place of the accident, either in the rolling stock or track involved, and 
 in use at the time and place thereof, in some respect as complained of, 
 from which the jury may find or infer that the defendant was negli- 
 gent in some manner as claimed, then the burden is cast upon the de- 
 fendant of proving that such conditions or circumstances were not 
 the cause of the alleged accident, and that it was not negligent in 
 any manner as claimed in the construction, operation or maintenance 
 of the rolling stock or roadbed at the time and place of the alleged 
 accident. ^^ 
 
 § 1841. Burden of Proof as to Conditions in Passenger's Tickets. 
 The juiy are instructed that where a railroad company issues tickets 
 with special conditions, the burden of proof is upon it to show what 
 were those special conditions, where they are relied upon to relieve 
 the railroad from liability.^^ 
 
 ELEVATORS. 
 
 § 1842. Injury to Passenger Through Fall of Elevator. The court 
 
 instructs the jury that if they believe, fi'om the evidence in this case, 
 
 34 — Freeman v. Collins Park & was bound to go further, and ex- 
 
 B. Ry. Co., 117 Ga. 78, 43 S. E. 411. culpate itself from every other 
 
 35 — Cronk v. Wabash R. Co., 123 charge of negligence stated in the 
 
 Iowa 349, 98 N. W. 884 (886). petition. If the cause were proven, 
 
 "It is said that if the jury found then the derailment could not have 
 the roadbed or rolling stock de- been occasioned by something else, 
 fective in any one of the ten or and therefore in establishing the 
 twelve particulars alleged, this cause, and its freedom from negli- 
 cast the burden of the proof upon gence, the defendant necessarily 
 the defendant to Show that it was proved that the derailment did not 
 not negligent, not only as to that result from some other cause. More- 
 one, but as to all of the specifica- over the instructions must be read 
 tions contained in the petition. It together, and the jury was dis- 
 was not incumbent upon the tinctly advised in the third para- 
 plaintiff, however, in the first in- graph, that in order to find for 
 stance, to prove any of these de- plaintiff it must appear not only 
 fects. Upon proof that the injury that he w^as injured, but that 'the 
 of plaintiff resulted from the de- defendant was negligent in some 
 railment of the train, the proof one or more of the particulars 
 shifted and was cast upon the de- charged in the petition, and that 
 fendant to show that the accident such negligence was the direct 
 was not occasioned by any negli- cause of the injury.' While the in- 
 gence on its part. Whittlesey v. struction was not as specific as 
 Railway, 90 N. W. 516; Smith v. might have been wished, we are 
 Railway, 32 Minn. 1, 18 N. W. 827, satisfied that the jury was not mis- 
 50 Am. Rep. 550. But appellant in- led thereby." 
 
 sists that, even though it then 36 — Daniels v. Florida Central & 
 
 proved the efl^cient cause of the P. R. Co., 62 S. C. 1, 39 S. E. 762 
 
 accident, under this instruction it (763).
 
 11S4 FORMS OF INSTRUCTIONS. [§1842. 
 
 that the plaintiff on or about , was rightfully in an elevator 
 
 in the possession of and operated by the defendant, and situated in 
 the defendant's building, for the purpose of being carried thereby 
 from one of the upper floors of defendant's said building to the 
 ground floor thereof; and if you further believe, from the evidence, 
 that while the plaintiff was so in such elevator, and in the exercise 
 of reasonable and ordinary care on his part, said elevator, owing to 
 the negligent and faulty construction thereof, or owing to the negli- 
 gence and carelessness on the part of the servants of the defendant 
 in operating the same, fell ; and if you further believe, from the evi- 
 dence, that the injury to the plaintiff complained of was caused by 
 the fall of such elevator, then your verdict should be for the com- 
 plainant.^^ 
 
 Degree of Care of Hotel Keeper toward Servants Riding on Passen- 
 ger Elevator, (b) The court instructs the jury that the plaintiff was 
 not in the position of a passenger upon the elevator in question, and 
 that the plaintiff was not in the position of a guest of the hotel in 
 boarding and riding upon the elevator in question, and that the de- 
 fendant did not owe to the plaintiff that highest degree of care which 
 would be owing to a passenger or guest of the hotel, but that the 
 test of the duty of the defendant toward the plaintiff was a test of 
 ordinary care on the part of his servant in charge of the elevator.^^ 
 
 37— Hartford Deposit Co. v. Sol- 111. 222; Masonic Fraternity Ass'n 
 
 litt, 172 111. 222 (224), aff'g 70 111. v. Collins, 210 111. 482). The relation 
 
 App. 166, 50 N. E. 178, 64 Am. St. of master and servant, creates 
 
 Rep. 35. very different duties, and as be- 
 
 "The evidence introduced on the fore stated, the proprietor of an 
 
 trial on the part of the plaintiff elevator does not occupy the posi- 
 
 showed that the elevator fell, and tion of a carrier of passengers as 
 
 showed the injury to the plaintiff, to his own employees. * * * rpj^g 
 
 and tended to show that the ele- plaintiff was returning to her room 
 
 vator was overloaded." for the purpose of resuming her 
 
 38— Walsh Ex'r v. Cullen, 235 111. work in the morning, and there 
 
 91 (1908). "The law makes no dis- was no evidence under which she 
 
 tinction between an undertaking could be held a passenger while 
 
 to carry passsengers in buildings being in the elevator. The court 
 
 by means of elevators and an un- erred in refusing to give the in- 
 
 dertaking to carry them upon the struction." 
 
 streets, highways, or railroads, It is manifest from the above 
 
 and the same obligation to exer- that an instruction on behalf of 
 
 else care and skill applies in each the plaintiff in substantially the 
 
 case. This has been held to be the following form would be approved: 
 
 law with respect to an elevator in The court instructs the jury that 
 
 an apartment house occupied for a master who provides a passen- 
 
 residence purpo.se (Hodges v Per- ^^^^^^^^ ^^^ pl'^mit^^his^'se?;! 
 
 cival 132 111. 53); elevators m ^^^^ ^^ ^ide upon a passenger ele- 
 
 buildmgs occupied for busine.ss ^^tor provided for passengers, 
 
 purposes (Sprmger v. Ford, 189 111. should exercise ordinary care in 
 
 430; Beidler v. Bradshaw, 200 111. the operation of such elevator, so 
 
 435); and elevators supplied for the as to make the same reasonably 
 
 Ti.se of tenants in office buildings safe for such servants while so 
 
 (Hartford Deposit Co. v. Sollitt, 172 using such elevator.
 
 CHAPTER LXIX. 
 NEGLIGENCE— RAILROADS. 
 
 See Erroneous Instructions, same chapter head. Vol. III. 
 
 MACHINERY AXD APPLIANCES. 
 
 § 1843. Duty to furnish safe ma- 
 chinery. 
 
 § 1844. Liabihty of railroad for ma- 
 licious use of appliances by 
 sei'vants. 
 
 § 1845. Negligence to put car in mo- 
 tion without proper appli- 
 ances for stopping it. 
 
 TBACK AND ROAD BED. 
 
 5 1846. Maintenance of track in 
 
 good condition when duty 
 imposed by statute. 
 
 5 1847. Turntable as attraction for 
 
 children. 
 
 OPERATION AND MANAGEMENT OF 
 TRAINS. 
 
 5 1848. Rate of speed. 
 
 § 1849. Backing engine, tender fore- 
 most, not ,of itself negli- 
 gence. 
 
 § 1850. Backing train without light 
 or flagman. 
 
 § 1851. Duty of railroad company to 
 use reasonable care to 
 avoid injuring person on 
 track. 
 
 § 1852. Degree of care due towards 
 child on track. 
 
 § 1853. Duty tov.ard helpless person 
 on track. 
 
 S 1854. Failure to keep a proper 
 lookout on down grade. 
 
 § 1855. Care due by servants of rail- 
 way company to avoid a 
 collision. 
 
 TRESPASSERS. 
 
 § 1856. Liability as to trespassers. 
 
 § 1857. Willful and wanton miscon- 
 duct toward trespasser — 
 What amounts to. 
 
 S 1858. Injury to trespasser while 
 getting on moving train. 
 
 § 1859. When person crossing track 
 is not a trespasser. 
 
 LICENSEES. 
 
 S 1860. Duty to maintain lookout as 
 to licensees on track. 
 
 75 1185 
 
 § 1S61. Temporary revocation of 
 license to public to cross 
 track ,at certain point. 
 
 INJURIES AT HIGHWAY CROSSINGS. 
 
 § 1862. Highway crossings must be 
 put in safe condition. 
 
 § 1863. Reasonable care required at 
 highway crossings. 
 
 § 1864. Necessity of greater caution 
 when large number of per- 
 sons use crossing daily. 
 
 § 1865. Other persons crossing track 
 in safety before accident 
 not evidence of safety. 
 
 § 1866. Defendant guilty of negli- 
 gence as charged in the 
 declaration. 
 
 § 1867. Rights and liabilities of 
 railroad companies and 
 travelers are equal and 
 mutual. 
 
 § 1868. Owing to force and momen- 
 tum train -has preference 
 in crossing point. 
 
 § 1869. Measuring the distance and 
 time it would take to cross 
 — Assuming risk. 
 
 § 1870. Reasonable warning should 
 be given by train in ap- 
 proaching highway cross- 
 ings. 
 
 § 1871. Engineer and fireman bound 
 to use reasonable care. 
 
 § 1872. Elements to be taken into 
 consideration — Sparsely 
 settled and populous dis- 
 tricts. 
 
 § 1873. Engineer not bound to neg- 
 lect his usual and ordinary 
 duties to keep extraordi- 
 nary lookout for danger 
 ahead. 
 
 § 1874. Liability of railroad for 
 frightening horses — Negli- 
 gence, and wanton defined. 
 
 § 1875. Frightening horses through 
 usual and ordinarj' noise. 
 
 § 1876. Frightening horses through 
 negligent unloading of cin- 
 ders.
 
 1186 
 
 FORMS OF INSTRUCTIONS. 
 
 § 1S77. Company must not suffer 
 tall weeds or brush to ob- 
 struct the view of the 
 track. 
 
 § 1878. Obstructing view of track at 
 crossing .by line of box 
 cars. 
 
 § 1879. Duty to observe ordinances 
 of municipalities. 
 
 § 1880. Running train at greater 
 speed than that allowed by 
 ordinance — Negligence per 
 
 SB. 
 
 § 1881. Speed of train when no ordi- 
 nance exists. 
 
 § 1882. Duty to ring bell— Duty of 
 person crossing tracks. 
 
 S 1883. Person may assume that or- 
 dinance as to ringing bell 
 will be obeyed. 
 
 § 1884. When failure to ring bell is 
 excused. 
 
 § 1885. Failure to sound whistle or 
 to ring bell not negligence 
 per se. 
 
 § 1886. Whistle need not be blown 
 continuously. 
 
 § 1887. Blowing whistle at insuf- 
 ficient distance while going 
 at a dangerous rate. 
 
 § 1888. When suit based on failure 
 to give signals, recovery 
 must be for such omission. 
 
 § 1889. No duty ordinarily to give 
 signals at private cross- 
 ings. 
 
 § 1890. But duty to give warning at 
 crossing made public by 
 customary use. 
 
 §1891. No absolute duty to main- 
 tain gates or flagman at 
 crossing. 
 
 § 1892. When flagman reasonably 
 necessary for safety at 
 crossing. 
 
 S 1893. Open gates as an invitation 
 to cross. 
 
 5 1894. Backing cars up after gate 
 
 is opened. 
 
 51895. When "kicking" car amounts 
 
 to willful negligence while 
 person is crossing track. 
 § 1896. Failure of defendant's ser- 
 vants to avoid threatened 
 injury when possible. 
 
 5 1897. Ordinary care towards 
 
 watchman at CTOs.sing. 
 
 5 1898. Injury at crossing through 
 
 horse balking. 
 
 § 1899. Reasonable and ordinary 
 care only required in 
 switching. 
 
 S 1900. Right to raise and lower 
 traxL'k — Duty of public au- 
 thorities as to approaches 
 thereto. 
 
 § 1901. Injury to person at crossing 
 
 by employe operating hand 
 
 car for his own private use. 
 
 § 1902. Care required of travelers. 
 
 § 1903. High rate of speed will not 
 excuse want of ordinary 
 care. 
 
 § 1904. Failure to have gate keeper 
 required by ordinance will 
 not excuse traveler from 
 using ordinary care. 
 
 § 1905. Failure to give signals does 
 not excuse traveler from 
 using ordinary care. 
 
 § 1906. Flagman's signal to cross 
 will not excuse want of or- 
 dinary care. 
 
 § 1907. Voluntarily crossing over tQ 
 a place of danger. 
 
 § 1908. Track itself is a proclama- 
 tion of danger. 
 
 § 1909. Person must use his faculties 
 in proportion to the known 
 danger. 
 
 § 1910. Duty of person crossing 
 tracks to stop, look and 
 listen. 
 
 § 1911. Failure of person at cross- 
 ing to stop, look and listen. 
 
 § 1912. Failure to select the best 
 place to stop, look and 
 listen. 
 
 § 1913. Evidence of constant habit 
 to stop, .look and listen. 
 
 § 1914. When duty to look and list- 
 en, is excused. 
 
 § 1915. Crossing track on bicycle 
 without looking and listen- 
 ing. 
 
 § 1916. Ci'ossing in covered milk 
 wagon. 
 
 § 1917. Looking out of glass at back 
 of buggy only — Contribu- 
 tory negligence defined. 
 
 § 1918. When contributory negli- 
 gence cannot be imputed 
 from fact that gates were 
 down. 
 
 § 1919. Attempting to drive upon 
 track although view ob- 
 structed — Looking and list- 
 ening. 
 § 1920. Negligence to go forward 
 when there is a permanent 
 obstruction and a trans- 
 ient noise. 
 § 1921. Presumption that party 
 crossing track stopped, 
 looked and listened. 
 § 1922. Failure of driver of vehicle 
 to turn in seat on sounding 
 of whistle or ringing of 
 bell. 
 § 1923. Discovery of approaching 
 train in time to avoid going 
 on crossing.
 
 NEGLIGENCE— RAILROADS. 
 
 1187 
 
 § 1924. Failure to heed watchman's 
 signal to stop. 
 
 § 1925. Right of railroad company's 
 servants to assume that 
 driver of vehicle will re- 
 main at a safe distance. 
 
 § 1926. Driving over tracks with 
 lines .hanging loose. 
 
 § 1927. Injury through team being 
 unmanageable. 
 
 § 1928. Negligence per se in travel- 
 er. 
 
 § 1929. Conduct in ,presence of sud- 
 den danger. 
 
 § 1930. Jury may consider sur- 
 rounding circumstances. 
 
 § 1931. Imputed negligence — Parent 
 and child. 
 
 § 1932. When negligence of driver of 
 plaintiff's vehicle in cross- 
 ing track will prevent re- 
 covery. 
 
 § 1933. Proof of death at crossing 
 must correspond with 
 plaintiff's allegation that it 
 occurred there. 
 
 § 1934. Violation 'of ordinances — 
 Negligence may be in- 
 ferred from injury at 
 crossing. 
 
 § 1935. Fact that deceased was 
 killed by cars of defendant 
 insufficient, standing alone, 
 to justify verdict for 
 plaintiff. 
 
 § 1936. When no eye witness to kill- 
 ing of person by railroad 
 train presumption of due 
 care by deceased usually 
 exists. 
 
 § 1937. Railroad company's duty in 
 crosshig tracks of another 
 railroad. 
 
 5 1938. Liability of railroad and 
 street car companies for 
 repair of tracks at cross- 
 ing. 
 
 DUTY TO SHIPPERS AND CON- 
 SIGNEES. 
 
 § 1939. Duty toward shipper loading 
 car. 
 
 §1940. Liability for injury to con- 
 signee while unloading car. 
 
 § 1941. Injury while going to car 
 although told it could not 
 be unloaded that day. 
 
 §1942. Assault upon person getting 
 freight by company's agent 
 or servant. 
 
 BTJLES AND REGULATIONS. 
 
 §1943. Right to make reasonable 
 rules for management of 
 trains. 
 
 § 1944. Expelling a person from the 
 cars. 
 
 CONTRIBUTORY NEGLIGENCE ( SEE ALSO 
 INJURIES AT HIGHWAY CROS- 
 SINGS). 
 
 § 1945. Plaintiff must exercise ordi- 
 nary care. 
 
 § 1946. Plaintiff not bound to high- 
 est degree of care and 
 prudence. 
 
 § 1947. Plaintiff must exercise rea- 
 sonable care and prudence. 
 
 § 1948. Contributory negligence of 
 children. 
 
 § 1949. Eye-witness as to care and 
 caution of party injured 
 not essential. 
 
 § 1950. Contributory negligence of 
 person injured at crossing. 
 
 § 1951. Person crossing track know- 
 ing that cars were shifted 
 at that point. 
 
 § 1952. Standing on track^Duty to 
 look and listen. 
 
 § 1953. Contributory negligence — ' 
 Failure of plaintiff to dis- 
 cover approaching train. 
 
 § 1954. Knowledge of the deceased 
 of the presence of one en- 
 gine at crossing and the 
 approach of another en- 
 gine. 
 
 § 1955. Contributory negligence — 
 Driving across track in a 
 careless or indifferent man- 
 ner. 
 
 § 1956. Contributory negligence — 
 Riding upon locomotive. 
 
 § 1957. Riding on coal car without 
 consent of defendant's em- 
 ployes. 
 
 § 1958. Contributory negligence of 
 plaintiff no defense if de- 
 fendant could have avoid- 
 ed injury after discovering 
 plaintiff's peril. 
 
 § 1959. Attendant circumstances de- 
 termine whether uncon- 
 scious person is guilty of 
 contributory negligence. 
 
 § 1960. Failure of law to regulate 
 speed does not authorize 
 wanton, reckless and dan- 
 gerous rate of speed — 
 What will not amount to 
 wanton misconduct. 
 
 § 1961. Rule that burden of proof 
 as to contributory negli- 
 gence is on defendant. 
 
 FENCING TRACK — LIVE STOCK. 
 
 § 1962. Failure to comply with law 
 negligence per se. 
 
 § 1963. Company must exercise rea- 
 sonable care. 
 
 § 1964. Company only held to 
 reasonable care — Casual 
 breach in fence.
 
 1188 
 
 FORMS OF INSTRUCTIONS. 
 
 § 1965. Stock unlawfully running at 
 large. 
 
 § 1966. Obligation to fence not lim- 
 ited to adjoining owner. 
 
 § 1967. Cattle guards. 
 
 § 1968. Plaintiff's contributory neg- 
 ligence. 
 
 § 1969. Stock escaping and running 
 at large. 
 
 FENCING TBACK. (CHILDREN.) 
 § 1970. Duty of railroad to fence 
 track is also for benefit of 
 children. 
 
 ACTIONS FOR KILLING LIVE STOCK. 
 
 § 1971. Actions for killing live stock 
 — Care due in operation of 
 trains. 
 
 § 1972. Highest duty of engineer of 
 passenger train is to his 
 passengers — Series. 
 
 § 1973. Duty to avoid injury after 
 discovei'ing dangerous posi- 
 tion of live stock. 
 
 § 1974. Injury to stock at crossing. 
 
 § 1975. Elements of liability for 
 killing of heifer. 
 
 § 1976. Failure to keep a proper 
 lookout for horses on track 
 negligence. 
 
 § 1977. Railroad company not liable 
 for injury to horse on track 
 where reasonable care used. 
 
 § 1978. Animals coming on track so 
 suddenly that accident 
 cannot be prevented. 
 
 § 1979. Failure of engineer to see 
 anim.als on track when he 
 should, under the circum- 
 stances. 
 
 § 1980. Horse Injured in flangeway 
 — Duty of railroad in con- 
 structing road across the 
 street — Series. 
 
 § 1981. Injury to animal on track — 
 Burden of proof as to neg- 
 ligence. 
 
 § 1982. Running extra train, or 
 train not on schedule time, 
 not negligence as to live 
 stock. 
 
 S 1983. Burden of proof as to place 
 of injury of live stock is on 
 plaintiff. 
 
 §1984. Neglect to ring the bell, etc., 
 prima facie evidence of 
 negligence. 
 
 § 1985. Burden of proof as to ring- 
 ing bull. 
 
 i 1986. Must exercise reasonable 
 care and watchfulness to 
 avoid injuring stock. 
 
 S 1987. Sp<;f;d through cities and vil- 
 lages. 
 
 INJURIES BY FIRE. 
 
 { 1988. Prima facie negligence. 
 
 § 1989. But not conclusive evidence 
 of negligence. 
 
 § 1990. No recovery against railroad 
 w;hen origin of fire left to 
 guess or conjecture. 
 
 § 1991. Rule that burden of proof is 
 on plaintiff to show negli- 
 gence on defendant in 
 starting fire. 
 
 § 1992. Rule in Texas as to instruc- 
 tion of juries in actions for 
 injuries by fire. 
 
 § 1993. Statutory rule in South Caro- 
 lina. 
 
 § 1994. Elements constituting neg- 
 ligence in injuries by fire. 
 
 § 1995. Heavy grade requiring en- 
 gines to be worked hard 
 and to emit sparks. 
 
 § 1996. Running engine past cotton 
 compress or yard — Series. 
 
 § 1997. Reasonable care required to 
 prevent spread of fire. 
 
 § 1998. Must provide most improved 
 apparatus to prevent es- 
 cape of fire. 
 
 § 1999. Effect of failure to use most 
 approved apparatus to 
 prevent escape of fire or to 
 use ordinary care in pre- 
 venting escape of sparks. 
 
 § 2000. Dry weeds and grass. 
 
 § 2001. Damages to turf from which 
 grass is burned. 
 
 § 2002. Degree of care required of 
 land owner. 
 
 § 2003. Effect of plaintiff's building 
 being defendant's right of 
 way. 
 
 § 2004. Reasonable care and dili- 
 gence only required by the 
 company. 
 
 OBSTRUCTING HIGHWAYS. 
 2005. Obstructing highways 
 
 leaving 
 track. 
 
 by 
 standing on 
 
 DEDICATION OF LANDS. 
 § 2006. Dedication of lands for use 
 by railroads. 
 
 SWITCHES AND FARM CROSSINGS. 
 
 § 2007. When switch presumed to be 
 permanent — Measure of 
 damages for removal. 
 
 § 2008. Establishment of "neces- 
 sary" plantation roads 
 under terms of statute. 
 
 § 200p. Less degree of care required 
 at farm crossings than at 
 public crossings. 
 
 § 2010. Injuries to stock at farm 
 crossings. 
 
 § 2011. Defective bridge over farm 
 crossing — Duty of railroad 
 company to repair it.
 
 § 1843.] NEGLIGENCE— RAILROADS. 1189 
 
 MACHINERY AND APPLIANCES. 
 
 § 1843. Duty to Furnish Safe Machinery. The court instructs the 
 jury that it is the duty of railroad companies to use all reasonable 
 means and efforts to furnish good and well constructed machinery, 
 adapted to the purposes of its use, of good material, and of the kind 
 that is found to be safest when applied to use ; and while they are 
 not required to seek and apply every new invention, they must adopt 
 such as are found, by experience, to combine the greatest safety with 
 practical use.^ 
 
 § 1844. Liability of Railroad for Malicious Use of Appliances by 
 Servants. You are instructed that if the servants of a railroad com- 
 pany, whil'e in the discharge of their duties, pervert the appliances 
 of the company to wanton or malicious purposes, to the injury of 
 others, the company is liable for such injuries.- 
 
 § 1845. Negligence to Put Car in Motion Without Proper Appli- 
 ances for Stopping It. The court instructs the juiy that it is negli- 
 gent for pei'sons engaged in using cars on a railroad track to put a 
 car in motion where it may do injury to others, without making any 
 provision for stopping it, or examining to see whether any person is 
 on or about other cars on the same track, with which the one put in 
 motion may collide ; and if injury results therefrom to one who is 
 guilty of no negligence himself, he will be entitled to recover for 
 such injury.^ 
 
 TRACK AND ROAD BED. 
 
 § 1846. Maintenance of Track in Good Condition — Duty Imposed 
 by Statute. It was the duty of the defendant railroad company to 
 maintain its track along T. street in the eit}' of A., in such condition 
 that it would be reasonably safe for persons traveling along or across 
 said street on horseback or otherwise to cross said track at any point 
 in said street.'* 
 
 § 1847. Turntable as Attraction for Children. If you find and 
 believe from the evidence that the defendant's turntable, in its con- 
 struction and place where situated, was not especially and unusually 
 
 1— St. Louis, etc., Rd. Co. v. Vali- "Article 4426, Rev. St. of Tex. 
 
 rius, 56 Ind. 511; Wedgewood v. 1895, reads as follows: 'Such cor- 
 
 Chicago, etc., Rd. Co., 41 Wis. 478; poration (meaning a railroad cor- 
 
 Pittsburgh R. R. Co. v. Nelson, 51 poration) shall have the right to 
 
 Ind. 150; Porter v. Hannibal, etc., construct its road across, along or 
 
 Rd. Co., 60 Mo. 160; T., W. & W. upon any stream of water, water 
 
 Ry. V. Fredericks, 71 111. 294. course, street, highway, plank 
 
 2 — C. B. & Q. Rd. Co. v. Dickson, road, turnpike or canal, which the 
 
 63 111. 151. route of said railway shall inter- 
 
 3 — Noble V. Cunningham, 74 111. sect or touch. But such corpora- 
 
 Cl; Quackenbush v. Chi. & N. W. tion shall restore the stream, water 
 
 R. R. Co., 73 la. 458, 35 N. W. 523. course, street, highway. plank 
 
 4 — Inter. & G. N. R. Co. v. Had- road, turnpike or canal thus intei- 
 
 dox, 36 Tex. Civ. App. 385, 81 S. W. sected or touched to its formel 
 
 1036. state, or to such state a-s not to
 
 1190 
 
 FORMS OF INSTRUCTIONS. 
 
 [§ 1848. 
 
 calculated to attract to it children of immature judgment, as a place 
 of amusement and a thing to use as a plaything, then you will find 
 for the defendant as against both plaintiffs.^ 
 
 OPERATION AND MANAGEMENT OF TRAINS. 
 
 § 1848. Rate of Speed, (a) The court instructs the jury that 
 the fact that the defendant's train was running at a greater rate of 
 speed than ten miles an hour will not of itself alone make it liable 
 for the death of this boy, unless the fact that the train was running 
 at a rate of speed in excess of the ordinary rate at the time the boy 
 was struck by the driving rod of the engine as it passed by him on 
 the crossing, was the direct and proximate cause of the accident.*^ 
 
 (b) The court instructs the jury that the mere violation of a city 
 ordinance regulating the rate of speed of a train through a city, or 
 the rules of the railroad company with reference to the management 
 of its trains, does not of itself amount to a willful and wanton mis- 
 conduct.'^ 
 
 § 1849. Backing Engine, Tender Foremost, not of Itself Negligence. 
 The jury are instructed that the fact that the engine of the train was 
 backing, tender foremost, hauling the train behind the engine, is no 
 evidence of negligence upon the part of the defendant, and is not so 
 charged in the declaration.^ 
 
 unnecessarily impair its usefulness, 
 and shall keep such crossing iu re- 
 pair.' The charge given is not 
 literally in the language of the 
 article of the statute quoted, but 
 the court must have had in mind 
 this provision of the law in giving 
 the charge complained of. The 
 charge instructs the jury that it 
 was the duty of the railway com- 
 pany to maintain its track along 
 the public street in a reasonably 
 safe condition for persons traveling 
 on or across the same. The lan- 
 guage of the statute is that said 
 street shall be restored 'to its for- 
 mer state, or to such state as to 
 not unnecessarily impair its use- 
 fulness.' The failure of the rail- 
 way company to keep the street in 
 a reasonably safe condition for 
 persons who may be entitled to 
 use the same would, to some ex- 
 tent, unnecessarily impair its use- 
 fulne.ss. The primary object of 
 streets In a city is to furnish a pas- 
 sageway, in the interest of the 
 public, to and from different points 
 in the city. They are designed to 
 be used ])y the public for the pur- 
 poses of travel, and whatever might 
 unnecessarily impair their useful- 
 ness for such purpose, by permit- 
 
 ting obstructions to remain in the 
 same of a nature described in the 
 plaintiff's petition, and shown by 
 the evidence in this case, would 
 create a condition that would make 
 the use of the street not reasonably 
 safe for persons traveling across 
 the same. The charge submitted 
 substantially embraced the require- 
 ments of the law, and, if the duty 
 was statutory, as is tiie case here, 
 it would be no defense if the appel- 
 lant had exercised ordinary care to 
 maintain its tracks along the street 
 in a proper condition." 
 
 5— Denison & P. S. Ry. Co. V. 
 Harlan, — Tex. Civ. App. — , 87 
 S. W. 732 (734). 
 
 6— C. & N. W. Ry. Co. v. Jamie- 
 son, 112 111. App. 69 (76). 
 
 7—1. C. R. R. Co. v. Leiner, 202 
 111. 624, aff'g 103 111. App. 438, 67 N. 
 E. 308. 
 
 8— Battishill v. Humphrey, 64 
 Mich. 494, 31 N. W. 894 (903). 
 
 "This request was refused and no 
 reference made to it in the charge 
 of the court. There was error in 
 this refusal, as the charge was 
 proper, and should have been given. 
 The engine being reversed, might 
 call for greater vigilance upon the 
 part of the train hands in looking
 
 § 1850.] NHGLIGBNCE— RAILROADS. 1191 
 
 § 1850. Backing Train Without Light or Flagman. If the train 
 
 was backing under the shed without displaying the light from the 
 front end of the leading ear, and without having a flagman stationed 
 thereon, and was backing without due care, and the intestate knew 
 it, and placed himself in a position of danger, his negligence was the 
 proximate cause of the injury (he had the last chance to avoid the 
 injury) ; and, this being so, he, and not the defendant, would be 
 responsible for his death. On the contrary, if P. was standing on 
 or near the track, he was not called upon to look out for a backing 
 train which displayed no light and had no flagman, if you should so 
 find, on the front of the leading car, for it was the duty of the 
 defendant, as before explained, to display the light, and have a flag- 
 man at his post, he not being bound to expect a violation of duty. 
 If, therefore, he (P.) was standing on or near the track, and the 
 defendant backed its train under the shed without the light on the 
 front end of the leading car, or in a conspicuous place thereon, or 
 without a flagman thereon, and if the jury should further find that 
 P. did not discover the train in time to escape, then the defendant was 
 negligent, and such negligence was the cause of the injury.^ 
 
 § 1851. Duty of Railway Company to Use Reasonable Care to 
 Avoid Injuring Person on Track. The court instructs the jury that 
 it is the duty of the employes of a railway company operating its 
 train to use reasonable care to discover and to avoid injuring persons 
 who may be upon its track, the degree of such care being such as 
 a person of ordinary prudence and caution would commonly exercise 
 under like circumstances, and varying as the known probability of 
 danger may vary along the different portions of the route over which 
 trains are run; and a failure to use such care by its employes is 
 negligence upon the part of such company, for which it is liable in 
 damages for any injury resulting from such negligence, unless such 
 liability is defeated by contributory negligence on the part of the 
 person injured.^" 
 
 § 1852. Degree of Care Due Towards Child on Track. As to the 
 
 degree of care and circumspection required of A., whose age is alleged 
 to have been 11 years when the accident happened, I instruct you 
 that a child of tender years is not held in the same degree of ac- 
 countability as an adult man, but the question of his intelligence and 
 mental capacity must be left for your determination from all the facts 
 and circumstances in evidence before you.^^ 
 
 out, but of itself was no evidence v. Phillips, — Tex. Civ. App. — , 37 
 
 of negligence." S. W. 621. That was a case of 
 
 9— Purnell v. R. & G. R. Co., 122 similar facts to this, and the court, 
 
 N. C. 832, 29 S. E. 953 (955). referring to several decisions of our 
 
 io — H. & T. C. R. Co. V. Harvin, supreme court, approved the 
 
 — Tex. Civ. App. — , 54 S. W. 629 charge as correct." 
 (631). 11— Texas & P. Ry. Co. v. Ball, 
 
 "This charge was copied from — Tex. Civ. App. — , 85 S. W. 456. 
 one in the case of Tex. & P. R. Co,
 
 1192 FORMS OF INSTRUCTIONS. [§ 1853, 
 
 § 1853. Duty Toward Helpless Person on Track, (a) The court 
 instructs the juiy that the law is different as to a dumb animal and 
 a human being, because of the intelligence of a human being. If a 
 human being is upon or near a track, and apparently in possession of 
 his senses, the engineer is justified in assuming that such person will 
 use his faculties for his own safety and get out of the way. 
 
 (b) But if a person on or near enough to the track to be in 
 danger is down, and in such a condition as to indicate that he is 
 helpless, then it becomes the duty of the engineer to take notice of 
 this apparently helpless condition, if he sees him in time, or could 
 have seen him in time in the exercise of due care.^^ 
 
 § 1854. Failure to Keep a Proper Lookout on Down G-rade. (a) 
 
 If you believe from the evidence that B. had charge or control of 
 the car, which ran over and injured the plaintiff, and that B., while 
 letting said car down grade, was guilty of negligence in failing to 
 keep a proper and sufficient lookout upon the track in front of the 
 ear, and that such failure was the proximate cause of the injury 
 complained of, you must find for the plaintiff, unless you further be- 
 lieve from the evidence that the plaintiff was guilty of negligence that 
 proximately contributed to his injury. 
 
 (b) If you believe from the evidence that B. had charge or con- 
 trol of the car which ran over and injured the plaintiff, and that B. 
 negligently failed to stop said car or to take proper precautions to 
 prevent the same from running over the plaintiff, and that suok 
 failure was the proximate cause of the injury complained of, you 
 must find for the plaintiff unless you further believe from the evi- 
 dence that the plaintiff was guilty of negligence that proximately 
 contributed to his injury.^^ 
 
 § 1855. Care Due by Servants of Railway Company to Avoid a 
 Collision. Tlie court instructs the jury that if you believe, from the 
 evidence in this case, that the servants of the defendant discovered 
 the slack ear, by which the deceased was killed, in motion, and dis- 
 covered that a collision was probable, in time to have stopped their 
 train and prevented such collision by the exercise of ordinary care 
 and diligence, and if the juiy believe, from the evidence, that the 
 defendant's servants did not use ordinary care and diligence, and 
 that such want of ordinary care and diligence caused the death of B. 
 while he was in the exercise of due care and caution for his own 
 safety, then you should find the defendant guilty, and assess the 
 
 12 — Stewart v. No. Carolina R. that, unless they found the intes- 
 
 Cc, 136 N. C. 385. 48 S. E. 793 (795). tate was actually down, they 
 
 "The plaintiff excepted to that should answer the third issue — the 
 
 part of the charge. He contends last clear chance, as it is called — 
 
 that the Instruction made the lia- 'NO.' The exception was too tech- 
 
 billty of the defendant in this case nical to be sustained. The jury 
 
 to depend on whether the intes- could not have been misled by it." 
 tate was actually down, and loav- 13 — L,. & N. R. Co. v. Thornton, 
 
 Ing the Jury under the impression 117 Ala. 274, 23 So. VH (779).
 
 § 1856.] NEGLIGENCE— RAILROADS. 1193 
 
 plaintiff's damages in such sum, if any, as you believe the evidence 
 warrants.^* 
 
 TRESPASSERS. 
 
 § 1856. Liability as to Trespassers, (a) The court instructs the 
 jury that the plaintiff in this ease is not entitled to recover, unless 
 you believe from the preponderances of the evidence in the case that 
 the servants of the defendant in charge of the trains in question, or 
 some of them in charge of said trains, were at the time guilty of 
 willful and wanton misconduct, and that such willful and wanton 
 misconduct resulted in, and was the cause of the death of said W.^^ 
 
 (b) The jury are instructed that if it appears from the evidence 
 in this case that the plaintiff was a trespasser upon the track or 
 bridge of the defendant receiver at the time he was struck and 
 injured, then said defendant receiver was not required, and the law 
 did not impose any duty whatever upon his engineer, to discover the 
 plaintiff's presence upon the same, but only required him after he 
 discovered the plaintiff and had knowledge that he was in a perilous 
 position to exercise reasonable care and prudence to avoid collision, 
 and if it further appears that the engineer did exercise such care and 
 prudence and did everything within his power to prevent the train 
 from colliding with the plaintiff after he discovered him, then your 
 verdict must be for the defendants. 
 
 (e) The jury are instructed that the defendants are liable in this 
 case only if the engineer failed to exercise ordinary care to prevent 
 the injury after he became aware of the danger to which the plaintiff 
 was exposed; and by ordinary care is meant such care as would be 
 ordinarily used by a prudent person performing like services under 
 similar circumstances.^* 
 
 § 1857. Willful and Wanton Misconduct toward Trespassers — 
 What Amounts to. (a) The court instructs the jury that what is 
 meant by willful and wanton misconduct is such conduct as amounts 
 
 14 — C. & A. R. R. Co. V. Ander- "The above instructions were 
 
 son, 166 111. 572 (573), aff'g 67 111. given on behalf of the defendant, 
 
 App. 386, 46 N. E. 1125. and two instructions were given on 
 
 The instruction given in the behalf of the plaintiff, and they 
 
 above case used the words "proper each lay down the same rule as to 
 
 precautions and reasonable care." the defendant's liability stated in 
 
 This the court says was technical- the foregoing instructions, and cor- 
 
 ly inaccurate, as all the defendant's rectly announce the law as held 
 
 servants were required to exercise in I. C. R. R. Co. v. Noble, 142 111. 
 
 was ordinary care. The court, how- 578, 32 N. E. 684, and W. R. R. Co. 
 
 ever held that the difference be- v. Jones, 163 111. 167, 45 N. E. 50. 
 
 tween the words used and those Moreover, it is well settled that 
 
 which ought to have been used was the defendants having asked the 
 
 so slight that the jury were not court to instruct the jury as they 
 
 misled. did cannot now be heard to ques- 
 
 15—1. C. R. R. Co. V. Leiner, 202 tion the correctness of the instruc- 
 
 111. 624, aff'g 103 111. App. 438, 67 tions given on behalf of the plain- 
 
 N. E. 398, 95 Am. St. 266. tiff to the same effect. (Cons. Coal 
 
 16— Pierce v. Waters, 164 111. 560 Co. v. Haenni, 146 111. 614, 35 N. E. 
 
 (563), 45 N. E. 1068. W2)."
 
 1194 FORMS OF INSTRUCTIONS, [§ 1858. 
 
 to an intentional wrong, or of such a reckless character as shows that 
 the person or persons guilty of such misconduct were at the time 
 acting in such manner as shows that they had an utter disregard for 
 the safety and lives of other persons. ^'^ 
 
 (b) In order that plaintiff may recover, it is not necessary that 
 the jury believe that in kicking, knocking or shoving the plaintiff 
 from the ear (if the jury believe from the evidence he was so kicked, 
 knocked or shoved) the conductor actually desired to injure plaintiff. 
 
 (c) It is not necessary for plaintiff to prove in order to recover 
 that defendant or defendant's agent had any actual desire to injure 
 him. 
 
 (d) If the jury believe from the evidence that the plaintiff wan- 
 tonly and recklessly or intentionally caused plaintiff's injuries as 
 stated in the complaint, then the jury must find for plaintiff.^^ 
 
 (e) Wantonness or willfulness is such gross want of care and re- 
 gard for the rights of others as show a disregard of consequences or 
 a willingness to inflict an injury. 
 
 (f ) You are instructed that willful or wanton conduct, whereby one 
 may be injured, does not necessarily mean ill-will or malice towards 
 the person injured, but it may consist in such lack of care for the 
 safety of the person injured, known to be in imminent peril, as 
 implies an utter disregard of consequences or a willingness to inflict 
 injury upon such person. 
 
 (g) You are instructed that the words willful and wanton as used 
 in this ease, do not necessarily imply malice or ill-will, but may mean 
 such gross or willful negligence as to indicate a total disregard of 
 consequences and indifference to the safety of others.^^ 
 
 § 1858. Injury to Trespasser While Getting on Moving Train, (a) 
 
 The jury are instructed as a matter of law that if you shall find fi'om 
 the evidence that the injury to the plaintiff was caused by an attempt 
 on his part to climb upon the train in question while the same was in 
 motion, then he is not entitled to recover and your verdict should be 
 for the defendant. 
 
 (b) If the jury shall find from the evidence that at the time of 
 
 the accident, the defendant did not have stationed at street 
 
 crossing any flagman, and that this crossing was a place of danger, 
 and that it was the duty of the defendant, at the time in question, 
 to have stationed at his crossing a flagman, but the injury to plaintiff 
 was caused by his attempting to climb upon the defendant's train 
 while the train was in motion, then you are instructed to disregard 
 the evidence as to failure to station a flagman at such crossing, or 
 as to the speed of the train, and that the plaintiff cannot recover, 
 and your verdict should be for the defendant.^" 
 
 17—1. C. R. R. Co. V. Leiner, 202 19— C. C. C. & St. L. R. Co. v. 
 
 111. 624, affg 103 111. App. 438, 67 N. Ricker, 116 111. App. 428. 
 
 E. 398, 9.'> Am. St. 266. 20— C. W. I. R. R. Co. v. Roath, 
 
 18— Highland Ave. & B, R. Co. v. 35 111. App. 349 (351). 
 Robinson, 125 Ala. 483, 28 So. 28 (29).
 
 § 1859.] NEGLIGENCE— RAILROADS. 1195 
 
 § 1859. When Person Crossing Track Is Not a Trespasser. If you 
 
 believe from the evidence that at the place where A. was struck 
 by the defendant's engine a pathway crossed said railroad track, 
 which had been commonly used by the public for a long period of time 
 prior to said accident without objection on the defendant's part, and 
 said A. was crossing said tiaek on said pathway when he was 
 struck, then the said A. would not be a trespasser in walking across 
 said traek.*^ 
 
 LICENSEES. 
 
 § 1860. Duty to Maintain Lookout for Licensees on Track, (a) 
 
 You have heard a gTeat deal about "lookout." What does that mean 
 — the duty of the railroad to keep a lookout? That means this: Take 
 all the facts and circumstances under consideration; would a man 
 of ordinary prudence and reason be expected to keep a lookout under 
 those circumstances; in other words, take into consideration the 
 character of the country, take into consideration the surrounding 
 circumstances, and ask yourself the question, would ordinary care 
 and foresight and prudence require a reasonable lookout to be kept 
 under those circumstances? Suppose a reasonable lookout had been 
 kept, was it negligence in not seeing this particular man ; would an 
 engineer of ordinary foresight, ordinary reason and prudence, if he 
 had been keeping a reasonable lookout, have discovered the presence 
 of this man if he was upon the track, in time to have stopped the 
 train and thereby avoid the injury? In determining that take into 
 consideration the surrounding circumstances; take a man of ordinary 
 firmness and reason, a man who has other duties to perform, and say 
 whether or not such a man, by the exercise of ordinary firmness and 
 reason, would have discovered this man upon the track, if he was 
 there, in time to have stopped his train and thereby avoid collision? 
 
 (b) If the jury find from the evidence that the deceased, , 
 
 was killed by a train on defendant's railroad, and at such time he 
 was in apparently helpless condition; and if they further find that 
 at the place of such killing, the public, by the pei-mission of the rail- 
 way company, had been accustomed without objection from the de- 
 fendant to travel for more than twenty years — then it would not 
 excuse the defendant simply to show that their agent in charge of 
 said train did not see the deceased in time to avoid the killing, for 
 under such circumstances it may be the duty of the defendant to 
 keep a reasonable outlook at such places to discover any apparently 
 helpless person who may be upon the track. 
 
 (e) If persons have long been accustomed to use the track of a 
 company for a passageway at certain localities, the company is 
 charged with notice of such usage, and is under obligation to exer- 
 
 21— Texas & P. Ry. Co. v. Ball,- Tex. Civ. App. — , 85 S. W. 456(458).
 
 1196 FORMS OP INSTRUCTIONS. [§ 1861. 
 
 cise reasonable care in keeping lookout at such places, among other 
 things, for apparently helpless persons. ^^ 
 
 § 1861. Temporary Revocation of License to Public to Cross Track 
 at Certain Point, (a) You are instructed that if you should find 
 from the evidence that the general public with the knowledge of the 
 railway company had been using certain spaces between the tracks 
 from L. street to G. avenue as driveways and footways at and prior 
 to the time of the accident in question yet such finding would not 
 authorize plaintiff's child to be at any other place or places than 
 those named, or to be under defendant's cars or south of its cars 
 between the rails of the scale track; and if you find from the evi- 
 dence that it was under the defendant's cars or at or near the south 
 end of them, between the rails of the scale track, at and just prior to 
 its injury, and the defendant's employes did not see it in time to 
 prevent the accident, then it was a trespasser and plaintiff is not 
 entitled to recover, and your verdict must be for defendant. 
 
 (b) You are instructed that at and just prior to the time of the 
 accident in question defendant was in the actual use and occupancy 
 of its scale tracks, where its cars were standing, and that such use 
 and occupancy, while it lasted, amounted to a suspension and revoca- 
 tion of any right, if such you find there was or had been, in the public 
 to cross said track when so occupied; and if you find from the evi- 
 dence that plaintiff's child attempted to do so by crawling under de- 
 fendant's cars, and was killed, while so doing, by the movement of 
 the cars, defendant would not be liable and your verdict should be 
 for the defendant.-^ 
 
 INJURIES AT HIGHWAY CROSSINGS. 
 § 1862. Highway Crossings Must Be Put in Safe Condition. By 
 
 the law of this State, every corporation owning or operating a railroad 
 in this State, is required to construct reasonably safe crossings at all 
 points where it intersects a public highway; and it is liable for all in- 
 juries resulting from neglect of this duty, if the party injured is 
 guilty of no negligence contributing to such injury.^^ 
 
 22— Sentell v. So. Ry. Co., 70 S. C. circuit court called the attention of 
 
 183, 49 S. E. 215. the jury to the fact that under the 
 
 "We think, under the authority consent, either express or implied, 
 
 of Jones V. Railroad, 61 S. C. 556, 39 she was there as a licensee. We do 
 
 S. E. 758, the presiding judge was not think the presiding judge erred 
 
 correct in charging the jury as to a in speaking of a lookout by telling 
 
 licensee. The trend of the testi- the jury what it meant, and under 
 
 mony was to show that for more what circumstances a defendant 
 
 than 20 years the railroad company should exercise this duty. Did not 
 
 had acquiesced in the u.se of the ordinary cars require this duty of 
 
 walk alongside of its track, and defendant in its acquiescence in the 
 
 certainly had not forbidden its use use of its track by pedestrians? 
 
 by pedestrians; also the feet of the Again, we refer to the extracts we 
 
 intestate were on the path of that have made from the case of Jones 
 
 walkway when he was stricken by v. R. R., supra." 
 
 the train of defendant, though it 23— Wagner v. C. & N. W. Ry. 
 
 Is true he was seated on a cross-tie Co., 122 Iowa 360, 98 N. W. 141 (143). 
 
 of the track. In Jones v. R. R. Co., 24— Farley v. The C, R. I. & P. 
 
 supra, ahe was walking on the Rd. Co., 42 la. 234. 
 trestle, and yet the charge of the
 
 § 1863.] NE'GLIGENCE— RAILROADS. 1197 
 
 § 1863. Reasonable Care Eeauired at Highway Crossings, (a) 
 The jury are instructed that, although a person may be improperly 
 or unlawfully upon a railroad track, that fact alone will not discharge 
 the company or its employes from the observance of reasonable care ; 
 and if such a person is run over by the train, and killed or injured, 
 the company will be responsible, if its employes could have avoided 
 the accident by the exercise of reasonable and ordinary care and 
 watchfulness.^^ 
 
 (b) If the jury believe, from the evidence, that the defendant 
 constructed a highway crossing at the point in question, and that, 
 taking into account the location, nature of the ground and all the 
 surroundings of the place, the crossing was constructed in such a 
 manner as to render it easy to approach and cross by travelers and 
 teams on the highway, without danger to persons using reasonable and 
 ordinary care, then the defendant did all that was required of it in 
 making the crossing, and would not be guilty of negligence, as re- 
 gards the manner of constructing the crossing.^^ 
 
 (c) It was the duty of the railway company to use ordinary care 
 to prevent an injury to plaintiff. By ordinary care is meant such 
 care as an ordinarily prudent person would have used under like cir- 
 cumstances.^'^ 
 
 § 1864. Necessity of Greater Caution When Large Number of Per- 
 sons Use Crossing Daily. If you find from the evidence that the 
 crossing upon which the deceased was killed was a public highway, 
 and had been used as such for a long number of years prior to the 
 accident, and if you further find that a large number of teams and 
 persons passed over said crossing each day, and at all hours of the 
 day, then I charge you that it was the duty of the engineer of the 
 train, when approaching the crossing, to have been on the lookout 
 for teams and persons on the crossing, or in such close proximity 
 thereto, as to be in danger of colliding with the train, then to use all 
 reasonable care and diligence, and make use of all the appliances at 
 his command to have the train under control, and stop, if necessary, 
 to avoid a collision with an injury to such team or persons; and if 
 you further find that the engineer was negligent in not keeping such 
 a lookout, and in not discovering the peinl of the deceased in time 
 to have avoided the accident, and that he did or could have discovered 
 
 25— Isabel v. Hannival, etc., Rd. assignments of error. The exist- 
 
 Co., 60 Mo. 475. once of no fact is assumed therein. 
 
 26— Ind., St. Li. Rd. v. Stout, 53 The court merely charged a gen- 
 
 Ind. 143. eral duty that the railway com- 
 
 27— Galveston, H. & S. A. Ry. Co. pany owed to appellee, and the 
 
 v. Vollrath, — Tex. Civ. App. — , clause should be read and con- 
 
 89 S. W. 279 (282). strued in connection with the other 
 
 "That charge is attacked on the portions of the charge. It cannot 
 
 ground that it assumes that the be logically contended that the 
 
 railway company injured appellee railway company was not under 
 
 and also assumed that it was guilty any obligations to use ordinary 
 
 of negligence. The charge is not care to prevent injury to persons 
 
 open to the criticisms stated in the on its track, at a public crossing."
 
 1198 
 
 FORMS OF INSTRUCTIONS. 
 
 [§ 1865. 
 
 him, and the peril he was in, in time to avoid the collision, if he had 
 been on the lookout, then I charge you 'that the defendant is liable 
 for the killing of 0., and the plaintiffs are entitled to recover in this 
 aetion.^^ 
 
 § 1865. Other Persons Crossing Track in Safety Before Accident 
 Not Evidence of Safety. The fact, if it is a fact, that other people 
 passed over this walk that day, is not evidence, and cannot be con- 
 sidered by you as evidence, that it was a safe place in which to pass. 
 You will determine that question from the evidence in this case, and 
 not from what some other person has done or may have done.^^ 
 
 § 1866. Defendant Guilty of Negligence as Charged in the Declara- 
 tion. The court instructs the jury, that if they believe, from the evi- 
 dence, that the plaintiif's intestate, while exercising ordinary care to 
 avoid injury, was killed by the negligence of defendant, as charged 
 in the declaration, then you can find for the plaintiff.^** 
 
 § 1867. Rights and Liabilities of Railroad Companies and Travel- 
 ers Are Equal and Mutual, (a) The court instructs the jury that 
 railroad companies, under their charters, have the same rights to 
 
 28— Olson V. Oregon S. L.. R. Co., 
 24 Utah 460, 68 Pac. 148. 
 
 29— Sosnofski v. L. S. & M. S. Ry. 
 Co., 134 Mich. 72 (76), 95 N. W. 1077 
 (1078). 
 
 30— L. S. & M. S. Ry. Co. v. Hes- 
 sions, 150 111. 546 (554), 37 N. E. 905. 
 
 "It is objected that thereby the 
 jury were left to consider the case, 
 as charged in the declaration, 
 while there was no evidence before 
 the jury to prove the negligence al- 
 leged in one or more of the counts 
 thereof. It is hardly to be sup- 
 posed that the jury would under- 
 stand the instruction to authorize 
 them to consider negligence 
 charged in the counts of the decla- 
 ration, not proved. They were to 
 believe, from the evidence, that the 
 intestate was killed by the negli- 
 gence of the defendant, as charged, 
 and were expressly told, in very 
 many instructions, that they must 
 form their judgment from the evi- 
 dence. Moreover, by the instruc- 
 tions given on behalf of the defend- 
 ant, the jury were told there could 
 be no recovery under the first and 
 sixth counts of the plaintiff's dec- 
 laration. 
 
 "It Is also urged that the in- 
 struction is faulty because it tells 
 the jury that if the deceased was 
 in the exercise of ordinary care, at 
 the time, etc., to avoid injury, that 
 will suffice, instead of requiring 
 that they should find that he was 
 in the exercise of ordinary care in 
 
 entering upon the railroad tracks, 
 etc. The instruction, we think, is 
 not subject to the criticism. (C. & 
 A. R. R. Co. V. Fisher, 141 111. 625, 
 31 N. E. 406; L. S. & M. S. R. R. Co. 
 V. Johnson, 135 111. 641, 26 N. E. 
 510; McNulty v. Lockridge, 137 111. 
 270, 27 N. E. 452.) Be this as it 
 may, in the fourth and fifth in- 
 structions on behalf of the defend- 
 ant the correct rule was given, and 
 they were told that, to entitle the 
 plaintiff to recover, the jury must 
 believe, from a preponderance of 
 the evidence, that the deceased, at 
 the time of and just prior to his 
 receiving the injury, was in the 
 exercise of due and ordinary care 
 for his safety. In cases of this 
 kind, where the party injured has 
 been struck by a moving train 
 while upon or attempting to cross 
 railway tracks, it has been repeat- 
 edly held to be error to limit the 
 requirement that he should be in 
 the exercise of ordinary care, to 
 the exact time of the injury. (I. 
 C. R. R. Co. V. Weldon, 52 111. 290; 
 C. M. & St. P. R. R. Co. V. Halsey, 
 133 111. 248, 23 N. E. 1028.) The ques- 
 tion of whether he exercised ordi- 
 nary care in going upon the track 
 is always necessarily involved. But 
 in view of the instructions given, 
 the first general and the others 
 specific, as to what should be con- 
 sidered, the jury could not have 
 been misled."
 
 § 1868.] NEGLIGENCE— RAILROADS. 1199 
 
 use that portion of the public highway over which their track passes 
 as the public have to use the same highway. Their rights and those 
 of the public, as to the use of the highway at such point of intersec- 
 tion, are mutual and reciprocal; and, in the exercise of such rights, 
 both the company and those using the highway must have due regard 
 for the safetj' of others, and use every reasonable effort to avoid 
 injury to others.^^ 
 
 (b) The court instructs the jury that both the deceased and the 
 railway company have an equal right to cross the street at the point 
 where the accident happened, and that the law imposes on both par- 
 ties the duty of using reasonable and prudent precaution to avoid ac- 
 cident and danger; and while it was incumbent upon the railroad 
 company in running its train on the occasion referred to, to give 
 the required signal by ringing the bell or sounding the whistle eighty 
 rods before reaching the crossing, it was also the duty of the deceased 
 to look out for the approach of the train and to observe all reasona- 
 ble precautions before attempting to cross the traek.^^ 
 
 § 1868. Owing to Force and Momentum Train Has Preference in 
 Crossing First, (a) You are instructed that if a railroad crosses a 
 common road on the same level or practically so, those traveling on 
 either have a legal right to pass over the point of crossing, and to 
 require reasonable care and caution of those traveling on the other 
 road to avoid a collision ; and that, while a passing train from its 
 force and momentum will have the preference in crossing first, yet 
 those in charge of it are bound to give reasonable warning, so that a 
 person about to cross with a team and wagon may stop and allow the 
 train to pass, and such warning must be reasonable and timely, taking 
 into consideration the location, situation and surroundings existing 
 at such crossing.^^ 
 
 (b) Because of the character and momentum of the defendant's 
 train, the law would not require it to stop its train and give prece- 
 dence to Mrs. M., who was on foot, to make the crossing first. It 
 was the duty of Mrs. M. to wait for the train to pass before she 
 attempted to cross, and if she could, by the exercise of due diligence, 
 have discovered the approach of defendant's train, and if she at- 
 tempted to cross in front of defendant's train knowing of its ap- 
 proach, or if by the exercise of due diligence she could have discovered 
 its approach, she would be the author of her own misfortunes, and 
 could not recover in this action, unless the jury should believe from 
 the evidence that, upon the manifestation of Mrs. M. 's peril, those 
 who controlled defendant's train failed to use the diligence to pre- 
 vent the injury, or that they wantonly or intentionally injured her.^* 
 
 31— Ind. & St. L. R. Co. v. Stables, Patohen, 167 111. 204 (212), affg 66 
 
 62 111. 313; Penn. R. Co. v. Heile- III. App. 206, 47 N. E. 368. 
 
 man, 49 Penn. St. 60; Cleveland, 33— C. C. C. & St. L. Ry. Co. v. 
 
 etc., R. Co. v. Terry, 8 Ohio St. Baker, 106 111. App. 500 (504). 
 
 570. 34— Memphis & C. R. Co. v. Mar- 
 
 32— L. N. A. & C. Ry. Co. v. tin, 117 Ala. 367, 23 So. 231 (235).
 
 1200 FORMS OF INSTRUCTIONS. [§ 1869. 
 
 § 1869. Measuring the Distance and Time It Would Take to Cross 
 — Assuming Risk. If the jury believe from the evidence that Mrs. 
 M. approached the railroad crossing, wishing to cross, and that she 
 saw or heard the train approaching and that she for herself measured 
 the distance and time it would take to cross, then I charge you that 
 she assumed the risk, and her administrator cannot hold the railroad 
 company responsible, unless Mrs. M. 's intention was apparent to the 
 employes of defendant operating the train, and after her perilous in- 
 tention and conduct became apparent, by the exercise of due care and 
 diligence, the injury could have been avoided.^^ 
 
 § 1870. Reasonable Warning Should Be Given by Train in Ap- 
 proaching Highway Crossings. The jury are instructed that if a rail- 
 road crosses a common road on the same level, those traveling on 
 either have a legal right to pass over the point of crossing, and to 
 require reasonable care and caution of those traveling on the other 
 road to avoid a collision; that while a passing train, from its force 
 and momentum, will have the preference in crossing first, yet those 
 in charge of it are bound to give reasonable warning, so that a per- 
 son about to cross with a team and wagon may stop and allow the 
 train to pass, and such warning must be reasonable and timely, so 
 far as the circumstances will reasonably admit of.^® 
 
 § 1871. Engineer and Fireman Bound to Use Reasonable Care. 
 (a) If the jury believe from the evidence that the injury complained 
 of was occasioned by a collision between the team and wagon of the 
 plaintiff and a locomotive engine of the defendant, on a public road, at 
 a place where such road crossed the railroad of the defendant, and that 
 
 "This charge requested by the following' language: "A person 
 
 defendant should have been given, wishing to cross the track of a 
 
 This charge in effect is the same railroad at a public crossing, or 
 
 as tbat approved, in the case of any place where trains are not re- 
 
 Gothard v. Ala. Ga. So. R. R. Co., quired to stop, and sees a train 
 
 67 Ala. 114." approaching, and who for himself 
 
 35 — Memphis & C. R. Co. v. Mar- measures the distance and time it 
 
 tin, 117 Ala. 367, 23 So. 231. will take to cross, and acting upon 
 
 We are of the opinion that this his own judgment, undertakes to 
 charge requested by the defendant cross, assumes the risk, and if in- 
 asserted a correct proposition of jured, cannot hold the railroad re- 
 law and should have been given, sponsible, unless his intention was 
 We find no conflict in the evidence apparent to the employees of de- 
 that after the deceased crossed, the fendant operating the train, and 
 side track and before reaching the after suoh perilous intention and 
 main track upon which the train conduct became apparent, by the 
 was approaching there was noth- exercise of due care and reasonable 
 Ing to obstruct the view for some diligence, the injury could have 
 distance. There was evidence also been avoided." The same principle 
 tending to show that deceased just is asserted in the case of Ga. Pac. 
 before stepping on the main track, Ry. Co. v. Lee, 92 Ala. 272, and in 
 halted and looked towards the Glass v. M. & C. R. R. Co., 94 Ala. 
 train, and that the train at that 590. To the same effect are the fol- 
 tlme was in sight or within hear- lowing cases: Railroad v. Houston, 
 Ing and approaching, and that she 95 U. S. 697, Schofleld v. Railroad, 
 started to run across the track. 114 U. S. 614, Gothard v. Ala. G. 
 These facts are sufficiently predi- Southern R. R. Co., 67 Ala. 114. 
 Gated In the charge. In the case 36— C, B. & Q. R. Co. v. Lee, 87 
 of Highland Ave. & B. R. R. Co. v. 111. 454. 
 Sampson, 91 Ala. 564, we used the
 
 § 1872.] NEGLIGENCE— RAILROADS. 1201 
 
 the plaintiff used ordinary care and caution to avoid a collision, and 
 that the collision was owing to the negligent, careless and unskillful 
 manner in which the servants of the defendant managed the locomotive 
 and train of cars attached, as charged in the declaration, then the 
 jury should find a verdict for the plaintiff. 
 
 (b) The court further instructs the jury, that if they believe, from 
 the evidence, that the engineer or fireman on the locomotive which 
 struck the wagon of the deceased, and caused his death — if they be- 
 lieve, from the evidence, his death was so caused — could, by the ex- 
 ercise of reasonable care and watchfulness, have seen the deceased 
 in time to have stopped said engine, and avoided the injury, without 
 danger to themselves or train, then the railroad company is liable for 
 the want of such care and watchfulness, and the injuiy occasioned 
 thereby; provided, the jury further believe, from the evidence, that 
 the deceased was, at the time, exercising all reasonable care and 
 caution to avoid the injury.^^ 
 
 (c) The court instructs the jury that it was the duty of defend- 
 ant 's servants, in the running and handling of said east-bound engine 
 and train of cars, to have exercised that degree of care and prudence 
 which an ordinarily careful and prudent person, engaged in like busi- 
 ness, would have exercised under like circumstances, and a failure to 
 exercise such a degree of care and prudence would render the defend- 
 ant guilty of negligence in that respect.^^ 
 
 § 1872. Elements to Be Taken into Consideration — Sparsely Set- 
 tled and Populous Districts. The court instructs the juiy that, in de- 
 termining the question as to whether the defendant's servants and 
 employes were guilty of negligence in the present case, the jury are 
 authorized to and should take into consideration the place at which 
 the accident occurred, the manner in which the trains were being 
 propelled, the number of dwelling houses in that vicinity, their dis- 
 tance from the track, and the probability of pedestrians being on the 
 track at that time and place, if any. What would be ordinary care 
 and prudence in running a train of ears in a sparsely-populated lo- 
 cality might be negligence in a more populous district, and it is for 
 the jury to determine, in view of all the facts and circumstances of 
 the case, whether defendant's servants did exercise ordinary' care and 
 prudence in the management of said train at the time and place men- 
 tioned in the evidence in this case.^^ 
 
 § 1873. Engineer Not Bound to Neglect His Usual and Ordinary 
 Duties to Keep Extraordinary Lookout for Danger Ahead. The de- 
 fendant's servants in this case were not bound to use extraordinary 
 care or extraordinary means to prevent accidents. They were only 
 bound to use what in that peculiar business is ordinary care and dili- 
 
 37— Chi. & A. Rd. Co. v. Murray, 39— Schmitt v. Mo. Pac. Ry. Co., 
 62 Til. 326. supra. 
 
 38— Schmitt v. Mo. Pac. Ry. Co., 
 160 Mo. 43, 60 S, W. 1043. 
 76
 
 1202 FORMS OF INSTRUCTIONS. [§ 1874. 
 
 genee, and the paramount duty of the employes on the train was the 
 protection of the passengers, the property in the train and the train 
 itself. If you believe, from the evidence, that in the usual and ordi- 
 nary management of the train for the safety of the passengers and 
 property, the engineer had to perform other duties besides watching 
 the track ahead, such as gauging his steam, watching his time table, 
 examining his machinery, watching for the station signals, then he 
 had a lawful right to perform these duties, and he was not bound to 
 neglect them in order to watch the track ahead while performing his 
 duties. And if the jury find, from the evidence, that the engineer in 
 charge of the engine was attending to any or all of these duties at the 
 time of the accident, and that for this reason the stock was not dis- 
 covered in time to save them by using ordinary means to stop the 
 train, then the defendant is not liable.'**^ 
 
 § 1874. Liability of Railroad for Frightening Horses — Negligence, 
 and Wanton Defined, (a) The court instructs the jury that a rail- 
 road company is not liable when an injury results from horses being 
 frightened from the noise or appearance of the train, when due and 
 proper care in the management of the train is used. If the engineer 
 wantonly and maliciously made unnecessary noise for the purpose of 
 searing the horses, and thereby the injury was brought about, in the 
 loss of the horses, defendant would be liable. Negligence is the fail- 
 ure to observe, for the protection of the interests of another person, 
 that degree of care, precaution, and vigilance which the circumstances 
 justly demand, whereby such other person suffers injury. An act is 
 wantonly done when it is needless for any rightful purpose, and mani- 
 fests a reckless indifference to the rights and interests of another.^^ 
 
 (b) The defendant had a legal right to use its road, engine and 
 cars upon its tracks in the usual course of business, or in any other 
 manner, so far as the rights of the plaintiff in this case are con- 
 cerned, provided, in doing so they do not negligently, needlessly and 
 wantonly increase the danger to the plaintiff in passing from a pub- 
 licly traveled highway across its track. 
 
 (c) If the defendant's servants while said engine was standing 
 still knew, or would have known by the exercise of reasonable and 
 ordinary care, which would have ordinarily been used by ordinarily 
 prudent men under like circumstances, that the plaintiff was either 
 upon the track of its railway, or just passing off the same, then the 
 defendant had no right uselessly or needlessly to blow the whistle of 
 the engine, or cause any other noise likely to frighten or cause plain- 
 tiff's team to run away. 
 
 (d) If at the time plaintiff entered upon the track of the railroad, 
 the engine was standing still, and if defendant's servants in charge 
 of the engine knew of that fact, or if they would have known such 
 
 40— Cincinnati & Z. R. Co. v. D. R. Co., 121 N. C. 519, 27 S. E. 
 Smith. 22 Ohio St. 227. 991. 
 
 41— Everett v. Receivers of R. &
 
 § 1875.] NEGLIGENCE— RAILROADS. 1203 
 
 fact by the use of ordinary care and prudence, then defendant would 
 be required to use care and prudence and refrain from mak- 
 ing a noise from the blowing of the whistle in a manner calculated 
 to frighten the team driven by plaintiff, or cause them to run away; 
 and if the said defendant's servants did so cause the whistle to be 
 blown, under such circumstances, while plaintiff was acting prudently 
 in attempting to cross said railroad track, and if such noise caused by 
 the blowing of the whistle was the cause of the runaway, producing 
 the injuries complained of, or some of them, then defendant would 
 be liable to the extent of the injuries caused by such wrongful con- 
 duct on the part of the defendant's said servants. *- 
 
 (e) If the jury believe, from the evidence, that the plaintiff on 
 the day and at the place in question and immediately before and at 
 the time of the accident in question was in the exercise of the care 
 and caution for his own safety Avhieh a reasonably prudent and care- 
 ful man under the same circumstances would have exercised; and if 
 the jury further believe, from the evidence, that the engineer or fire- 
 man of the engine in question saw the plaintiff's position at the head 
 of his team within thirty feet of the track over which said engine 
 was then passing, and then negligently or wantonly caused the whis- 
 tle of said engine to be sounded in a short, sharp, shrill and unusual 
 manner, and the steam to escape from said engine in a reckless and 
 negligent manner; and if the jury further believe, from the evidence, 
 that the sounding of said whistle as aforesaid or escaping of said 
 steam as aforesaid frightened the team of the plaintiff so that said 
 team thereupon ran away and injured said plaintiff, then the plaintiff 
 should recover.*^ 
 
 § 1875. Frightening Horses Through Usual and Ordinary Noise. 
 If you believe that the plaintiff was injured by reason of the defend- 
 ant's engine emitting a noise as described in the plaintiff's pleadings, 
 and frightening his horse, but if you further believe that such noise 
 was not occasioned by the engineer, or by any of defendant's em- 
 ployes, working its engine, but that it was occasioned merely by the 
 escape of steam through a proper, usual and necessary apparatus for 
 the escape of an excess of steam, and that such noise was usual and 
 incident to the use of its engine while under the proper amount of 
 steam, and used in its ordinary manner, then you will tind for the de- 
 fendant, provided you believe that such noise was the sole cause of 
 the plaintiff's injury,** 
 
 42 — C. R. I. & P. Ry. Co. v. that the engineer, who, it seems to 
 
 Parks, 59 Kas. 709, 54 Pac. 1052 be assumed, blew the whistle, 
 
 (1054). should have seen appellee. The 
 
 43 — C. B. & Q. R. Co. v. Yorty, fact that he saw the men and 
 
 158 111. 321 (324), aff'g 56 111. App. teams at work on the east side of 
 
 242. 42 N. E. 64. the track was sufficient to warn 
 
 "The instruction stated the law him against making any unusual 
 
 less favorably to appellee than it or unnecessary noise." 
 
 might with perfect propriety have 44 — Galveston H. & S. A. Ry. 
 
 done, for in order to create liability Co. v. Simon, — Tex. Civ. App. — , 
 
 in appellant it was not necessary 54 S. W. 309 (311).
 
 1204 FORMS OF INSTRUCTIONS. [§ 1876. 
 
 § 1876. Frightening Horses Through Negligent Unloading of Cin- 
 ders, (a) The court instructs the jury that, to justify a verdict for 
 the plaintiff, you must be satisfied from the weight of affirmative 
 evidence that cinders were negligently unloaded and in such a man- 
 ner as was calculated to frighten horses crossing the railroad, and, 
 unless you so believe, your verdict should be not guilty. 
 
 (b) The court instructs the jury that, unless you believe, from 
 the evidence, that the plaintiff has shown by a preponderance of the 
 evidence that she was exercising the care and caution of an ordinary 
 prudent woman at the time immediately preceding the accident, you 
 should find the defendant not guilty. 
 
 (c) The defendant railroad company cannot be found guilty in 
 this case unless you believe, from the evidence, that the plaintiff was 
 injured in consequence of the negligence of the defendant.*^ 
 
 § 1877. Company Must Not Suffer Tall Weeds or Brush to Ob- 
 struct the View of the Track. The court instructs the jury that it is 
 negligence in a railroad company to permit or suffer brush or tall 
 weeds to grow upon its right of way, so as materially to obstruct the 
 view of the track or approaching trains by persons about to cross 
 the track; and, in this case, if the jury believe, from the evidence, 
 that the defendant permitted and suffered brush and tall weeds to 
 grow upon its right of way, so as to obstruct materially the view of 
 the track and of approaching trains by persons about to cross the 
 railroad on the crossing in question, and that but for such obstruc- 
 tion the injury in question would not have happened, then the com- 
 pany is liable, in this case, unless the jury further believe, from the 
 evidence, that the plaintiff's own negligence directly contributed to 
 the injury.*^ 
 
 § 1878. Obstructing View of Track at Crossing by Line of Box 
 Cars. It was the duty of the defendant's lessee to use signals in ap- 
 proaching the crossing; and if the jury believe from the evidence that 
 defendant's lessee was running its train at a greater rate of speed 
 than eight miles an hour, and failed to ring its bell or blow its whistle 
 as it approached the crossing, and a line of box cars was standing 
 on the side track so as to obstruct the sight and interfere with the 
 hearing, and that its failure to give the signals under the circum- 
 stances was the proximate cause of the injury, then you should an- 
 swer the second issue, "No."'*'' 
 
 § 1879. Duty to Observe Ordinances of Municipalities. I charge 
 you tliat the duty of railroad companies includes the observance of 
 the reasonable ordinances of the city, which have been properly prom- 
 ulgated. It is necessary for them to take all reasonable care under 
 
 45—1. C. R. Co. V. Griffin, 84 111. Keeley, 23 Ind. 133; Tabor v. Mo. V. 
 
 A pp. 152 (158), aff'd 184 111. 9, 56 R. Co., 46 Mo. 353; I. & St. L. R. 
 
 N. K. 337. Co. v. Smith, 78 111. 112. 
 
 46— O'Mara v. Hudson R. R. Co., 47— Norton v. N. C. R. Co., 122 
 
 38 N. Y. 445; Artz v. C, etc., Rd. N. C. 910, 29 S. E. 886 (889). 
 Co., 34 la. 153; Ind., etc., R. Co. v.
 
 § 1880.] NEGLIGENCE— RAILROADS. 1205 
 
 the common law, and it is necessary to observe an ordinance, if such 
 ordinance of the city has been properly promulgated.*^ 
 
 § 1880. Running Train at Greater Speed Than That Allowed by 
 Ordinance — Negligence Per Se. (a) The court instructs the jury that 
 if you believe from the evidence that at the time the deceased, J., was 
 struck and killed by defendant's train of ears, such engine and cars 
 were being run at a greater rate of speed than ten miles in the cor- 
 porate limits of the city of W., and that by reason of such running 
 of cars the said J. was struck and killed without negligence on his 
 part, contributing to his death, then you should find for the plaintiff 
 in the sum of not exceeding $ .*^ 
 
 (b) If you find from the evidence that the view of the approach- 
 ing train was obstructed by buildings, trees, and ears on defendant's 
 railroad at such crossing to a traveler on such street from the north, 
 and at the time of the injury a valid ordinance of the city of W. 
 was in force limiting the rate of speed of defendant's trains to five 
 miles an hour in said city, and that the train which injured plaintiff 
 was at the time of the injury running at the rate of ten or fifteen 
 miles an hour, then the defendant was guilty of negligence; and if 
 you find that such negligence produced the plaintiff's injuiy without 
 any negligence on the plaintiff's part which contributed to the in- 
 jury, then your verdict should be for the plaintiff.^" 
 
 § 188L Speed of Train When No Ordinance Exists, (a) In the 
 
 absence of any proof of an ordinance limiting the speed of a rail- 
 road train through a city or village, the railroad company would 
 have a right to run its trains through any such village or city at any 
 rate of speed it thought proper, consistent with the safety of its train 
 and passengers, and of persons rightfully upon its right of way at 
 road crossings, who were exercising ordinary care in crossing the 
 railroad. And any person without ordinary care crossing such rail- 
 road, and receiving any injury for the want of such care, could not 
 recover therefor on account of such speed alone.^^ 
 
 48— Brasington v. So. Bound R. 50 Ind. 65; Penn. Co. v. Hensil, 70 
 
 Co., 62 S. C. 325, 40 S. E. 665 (668), Ind. 569, 36 Am. Rep. 188; Penn Co. 
 
 89 Am. St. 905. v. Stegemeier, 118 Ind. 303, 20 N. E. 
 
 49— Jackson v. K. C. Ft. S. & M. 843, 10 Am. St. 136. The instruction 
 
 R. Co., 157 Mo. 621, 58 S. W. 32 (34), does nothing more than inform the 
 
 80 Am. St. 650. jury of the law upon this subject, 
 
 50 — Penn. Co. v. Horton, 132 Ind. leaving- it to the other and subse- 
 
 189, 31 N. E. 45 (47). quent charges to direct their atten- 
 
 "Thls instruction contained a cor- tion to the subject of contributory 
 
 rect enunciation of the law relating negligence. We discover no infir- 
 
 to what it took to establish action- mity in this instruction." 
 
 able negligence on the part of the 51 — Partlow v. I. C. R. Co. 150 111. 
 
 defendant. It is negligence per se 321 (324), 37 N. E. 663. 
 
 to run a train of cars iia violation "We perceive no substantial ob- 
 
 of a city ordinance, and if any one jcction to this instruction. The 
 
 is injured in consequence of such village had passed no ordinance on 
 
 negligence, without being himself the subject, and in the absence of 
 
 guilty of contributory negligence, all instruction on the part of the 
 
 he may recover damages for such municipality, by ordinance, the 
 
 injury. Railroad Co. v. Mathias, railroad company might properly
 
 1206 FORMS OF INSTRUCTIONS. [§1882. 
 
 (b) The defendant liad the right to run the train at the time and 
 place of this collision at any speed consistent with the safety which 
 was necessary in the conduct of its business in the usual and ordinary 
 mannei', taking into consideration however all the circumstances sur- 
 rounding that crossing affecting the traveling public, and having a 
 due regard for the safety of the public using the crossing.^^ 
 
 (c) The general statutes of our State do not regulate the rate of 
 speed that a railroad company shall run its cars; yet the failure of 
 the law to regulate the rate of speed does not authorize a railroad 
 company to run its train at a wanton, reckless, and dangerous rate of 
 speed over a public crossing in an incorporated town or village, a 
 point where the people cross and recross the public crossing in num- 
 bers and frequently.^^ 
 
 § 1882. Duty to Ring Bell— Duty of Person Crossing Tracks. 
 (a) The court instructs the jury that it was the duty of the defend- 
 ant's servants in charge of said east-bound engine and train of cars, 
 while running or moving within the limits of the City of B., to cause 
 the bell on the engine thereof to be constantly sounded; and, if you 
 believe from the evidence that the bell on the engine of the train 
 in question was not constantly sounded while said train was running 
 or moving within said limits, then you should find that the defendant 
 was guilty of negligence in that respect.^* 
 
 (b) It is the duty of an engineer in charge of a running train to 
 give some signal of its approach to the crossing of a public street or 
 
 determine for itself the rate of be his duty to look at the same 
 speed, consistent with the safety time to the sides. If, however, 
 of its train and passengers, and while looking- ahead his eye takes 
 those who had occasion to cross the in a person approaching the track 
 railroad track in traveling on the at a crossing or elsewhere, he is 
 highway. As to the last clause of then bound to use ordinary care to 
 the instruction, the rule is so well prevent injury, his first care, how- 
 settled that a person cannot recov- ever, being for the safety of his 
 er for an injury unless in the exer- passengers and pi'operty on board 
 cise of ordinary care, that it will for transportation. He may pre- 
 not be necessary to cite cases in its sume that such persons will keep 
 support." away from the track until the train 
 
 52 — N. Y. C. & St. L. R. Co. v. passes, but when it become evident 
 
 Kistler, 66 Ohio St. 326, 64 N. E. 130 that the person cannot or will not 
 
 (132). keep away from the track, then he 
 
 "In Cleveland C. & C. R. R. Co. must do all he can to prevent in- 
 v. Elliott, 4 Ohio St. 474-476, this jury. * * * It has often been held 
 court held that 'The paramount by courts that when a person sud- 
 duty of the conductor of a train is denly finds himself in a position of 
 to watch over the safety of the imminent peril or danger, he can- 
 persons and property in his charge, not be held to a strict account as 
 The same is true of an engineer, to the course of conduct to be by 
 His paramount and first duty is to him pursued to avoid injury. R. R. 
 watch over and guard the safety of Co. v. Iron Mowery, 36 Ohio St. 418, 
 the persons and property in his 38 Am. Rep. 597; Elliott R. R., para, 
 charge, and that is most effectual- 1173; Penn. R. R. Co. v. Snyder, 55 
 ly done by keeping a strict outlook Ohio St. 342, 45 N. E. 559, 60 Am. 
 ahead upon the track so as to see St. 700." 
 
 any obstruction at the earliest mo- 53 — Memphis & C. R. Co. v. Mar- 
 
 ment, and thus be prepared to tin. 117 Ala. 367, 23 So. 231 (238). 
 
 avert danger to his train. * * * His 54 — Schmitt v. Mo. Pac. Ry. Co., 
 
 duty being to look ahead, it cannot 160 Mo. 43, 60 S. W. 1043.
 
 § 1882.] NEGLIGENCE— RAILROADS. 1207 
 
 highway over a railroad track; and when he fails to do so the rail- 
 road company is deemed negligent, and answerable for any injury 
 due to such omission of duty.^^ 
 
 (c) The statute requires every railroad corpoi'ation to cause a bell 
 of at least thirty pounds to be rung or a steam w'histle to be sounded at 
 the distance of at least eighty rods before a public highway is reached 
 by a train or locomotive and kept on ringing or being sounded until 
 the highway is reached, and when this is done the railroad company 
 has discharged its duty imposed by the statute, whether such signal 
 is heard or not. The statute does not require the giving of such sig- 
 nals of the approach of a train so as to enable others absolutely to 
 ascertain its approach or avoid being injured. If the railroad com- 
 pany has such bell on its engine attached to the train as the statute 
 requires, and it is rung in the manner required, then so far as the 
 giving of the signals before 'a train reaches a public highway cross- 
 ing is concerned, the company is without blame, whether the signal 
 so given is observed or heeded or not by any one attempting to cross 
 the railway track on a public highway.^^ 
 
 (d) It was the duty of the company to give proper warning at a 
 proper place of the approach of the passenger train. If the com- 
 pany through its servants performed that duty on this occasion in 
 the usual way, by blowing a w^iistle or ringing a bell, or both, de- 
 pending upon circumstances, plaintiff cannot recover. The plaintiff, 
 in order to show the company was neglectful in this particular, testi- 
 fied he listened, and that neither a bell was rung nor a whistle blown. 
 Two witnesses, docking bosses, I think, testified that they were at 
 the top of the lookout breaker and saw most of the occurrence; that 
 the whistle did not blow. The last witness said he did not remember 
 that the bell rang, and, if it had rung, he would remember it. The 
 other said he was not sure, would not say whether the bell rang or 
 not. There may have been other witnesses, but I call your attention 
 to these because it appears to be they were in a position to hear and 
 see. Upon the side of the defendant many witnesses have been 
 called — persons w^ho were upon the passenger train, workmen upon 
 other trains, and some persons who stood by — who testified just as 
 positively the whistle was blown and the bell rang. The engineer tes- 
 tified he started the bell, an automatic bell, ringing, as I remember it, 
 very near Kingston. This is a question of fact, a question as to the 
 credibility of the witnesses, and you are the judges of these facts and 
 of the credibility of these men. It is not my province and I have no 
 right to interfere where it is your duty to decide. You are to judge 
 of the men from any apparent interest or bias they may have shown 
 or have in the case, from their appearance, their manner of testifying. 
 Size them up generally as they appeared before you in the witness 
 stand, and, as you listened to the testimony, then decide upon their 
 credibility. Believe them all, if you can. If j'ou cannot, then give 
 
 55— Norton v. N. C. R. R. Co., 122 56— Cox v. C. & N. W. Ry. Co., 92 
 N. C. 910, 29 S. E. 886 (889). 111. App. 15 (19.)
 
 1208 FORMS OF INSTRUCTIONS. [§ 1882. 
 
 credit to those whom you think are entitled to credit. If you decide, 
 as testified to by several witnesses upon the part of the defendant, 
 that the whistle on the passenger locomotive was blown at or near the 
 signal post, which was in the neighborhood of 1,000 feet below the 
 crossing, the defendant did its whole duty, and however unfortunate 
 it may have been for P., he cannot recover in this action. ^^ 
 
 (e) The jury are instructed that it was the duty of defendant and 
 the employes in charge of the engine and train that struck and killed 
 L., to sound the engine whistle or ring the engine bell at a point not 
 less than 50 rods east of the crossing at which he was struck and 
 killed, and to sound the whistle or ring the bell continuously or al- 
 ternately from that point to the crossing, and if the jury believe from 
 the evidence that the location of the crossing at which L. was killed, 
 and the amount of public travel thereon, and the buildings or other 
 structures of the defendant company in proximity to the crossing, 
 obstructed the view and hearing of approaching trains, and that, for 
 these reasons, the crossing was unusually dangerous to travelers, and 
 that the sounding of the whistle and ringing the bell as directed was 
 not sufficient to give reasonable notice of the approach of trains to 
 the traveling public at said crossing, and this was known to defend- 
 ant, or by exercise of ordinary care, could have been known by it, 
 then it was the further duty of the defendant, and the persons in 
 charge of its train, to use such other means to prevent injury to 
 travelers at said crossing as, in the exercise of a reasonable judgment 
 by ordinarily prudent persons operating the railroad, might be con- 
 sidered necessary, and if the jury believe from the evidence that 
 the defendant and the employes in charge of the train that struck 
 L. failed to discharge the duty imposed by ringing the bell or sound- 
 ing the whistle, as herein set out, or to provide the other methods 
 herein set out, if considered necessary for the reasons herein stated, 
 by the persons operating the said road, and further believe that de- 
 ceased lost his life by the negligence and carelessness of defendant 
 and said employes, if any has been proven, then they should find for 
 plaintiff, unless they believe the state of facts existed that are set 
 out in instruction No. 3 (regarding contributory negligence). 
 
 (f) The jury are instructed that it was the duty of L. in crossing 
 the tracks of defendant at the place he was killed, to take such care 
 for his own safety as a reasonably prudent man would have exer- 
 cised under circumstances similar to those proven in this case, who 
 
 57— Pyne v. Delaware L. & W. R. required varies with the circum- 
 
 Co.. 212 Pa. 142. 61 Atl. 817. stances, the question of negligence 
 
 "Did the degree of care required is necessarily for the jury. Penn. 
 
 vary under the facts of this case? R. R. Co. v. "White, 88 Pa. 327; 
 
 We think it did. If so, it was for Penn. R. R. Co. v. Peters, 116 Pa. 
 
 the jury to determine whether he 206, 9 Atl. 317; Rusterholtz v. N. Y., 
 
 pfrformod his duty under all the etc., R. R. Co., 191 Pa. 390, 43 Atl. 
 
 clrcum. 'Stances. Where there is doubt 208; Cohen v. Phil. «& R. R. R. Co., 
 
 as to the inference to be drawn 211 Pa. 227. 60 Atl. 729. The charge 
 
 from the facts, or where the meas- of the learned trial judge fairly 
 
 ure of duty is ordinary and reason- and adequately presented the case 
 
 able care, and the degree of care to the consideration of the jury."
 
 § 1883.] NEGLIGENCE— RAILROADS. 1209 
 
 was acquainted with the character of the crossing, and the obstruc- 
 tions, if any, that prevented seeing or hearing approaching trains, 
 if he (L.) knew, or by the exercise of ordinary care could have 
 known, that the crossing was dangerous, if it was dangerous, on ac- 
 count of its location and the obstructions, if any; and if L. failed to 
 exercise this degree of cai'e, or if they believe from the evidence that 
 he knew, or, by the exercise of ordinary care could have known, that 
 tho train was approaching in proximity to said crossing, and failed 
 to take such care for his own safety as an ordinarily prudent man 
 would have taken, and that on account of his negligence and careless- 
 ness in these respects, if any, the injury to him that resulted in his 
 death occurred, and would not have occurred but for such negligence 
 and carelessness, if any, they should find for the defendant. ^^ 
 
 § 1883. Person May Assume That Ordinance as to Ringing Bell 
 Will Be Obeyed. In the absence of some warning or evidence to the 
 contrary, the plaintiff had the right to assume that defendant would 
 obey the city ordinance, and cause the bell attached to said locomo- 
 tive to be rung to give warning of the movement of its train. Whether 
 or not the bell was so rung in comj^liance with said ordinance is a 
 question of fact for you to determine from all the facts and circum- 
 stances shown by the evidence. If you find from the evidence that 
 the bell was not rung, then I instruct you that, in determining the 
 question whether the plaintiff was or was not guilty of contributory 
 negligence, you may in connection with all other facts and circum- 
 stances shown by the evidence consider that plaintiff had a right to 
 assume that if said train should be moved backward, some warning 
 of such movement would be given him by the ringing of the bell as 
 required by said ordinance.^® 
 
 § 1884. When Failure to Ring Bell Is Excused. The court in- 
 structs the jury that if they believe from the evidence that E. had 
 
 58— Louisville & N. R. R. Co. v. appellant in thus regard would not 
 
 Lucas, 30 Ky. L. 359, 98 S. W. 308. excuse her from the exercise of 
 
 59 — p. C. C. & St. L. Ry. Co. v. reasonable care, her conduct is to 
 
 McNeil, 34 Ind. App. 310, 69 N. E. be judged. in the light of such pre- 
 
 471 (474). sumption.' That case is in har- 
 
 "Under the authority of Louis- mony with the instruction here 
 villa, etc., R. R. Co. v. Williams, 20 given. See also Indianapolis, etc., 
 Ind. App. 576, 51 N. E. 128, the in- R. R. Co. v. McLin, 82 Ind. 435; 
 struction as given correctly stated Penn. Co. v. Stegemeier, 118 Ind. 
 ^the law. The particular objection 305, 20 N. E. 843, 10 Am. St. 136. In 
 urged to the instruction is that it Chicago, etc., R. R. Co. v. Boggs, 
 told the jury that appellee, in the 101 Ind. 522, 51 Am. Rep. 761, it was 
 absence of some warning or evi- held that a traveler at a railroad 
 dence to the contrary, had the crossing had a right to presume 
 right to assume that appellant that the railroad company would 
 would obey the city ordinance, etc. obey the law. See also Stoy v. 
 In Cleveland, etc., Ry. Co. v. Har- LouLsville E. & St. L. Cons. R. R. 
 rington, 131 Ind. 426. 13 N. E. 37. Co., 160 Ind. 144, 66 N. E. 615; Ma- 
 it was said: 'In the absence of lott (Receiver) v. Hawkins, 159 Ind. 
 some evidence to the contrary, we 127, 63 N. E. 308. It was the prov- 
 think the appellee had the right to ince of the jury to determine the 
 presume that the appellant would question of appellee's negligence in 
 obey the city ordinance.' etc. 'And the light of all the facts pertinent 
 while the wrongful conduct of the thereto."
 
 1210 FORMS OF INSTRUCTIONS. [§ 1885. 
 
 actual timely notice of the approach of the engine which struck him, 
 that is, sufficient notice to enable him to get out of the way by the 
 exercise of ordinary care, whether such notice was received by him 
 from a bystander or from hearing or seeing the engine as she ap- 
 proached, then it makes no difference in this case whether the bell 
 of the engine was ringing or not, or whether she was running at a 
 greater rate of speed than six miles per hour.^^ 
 
 § 1885. Failure to Sound Whistle or to Ring Bell not Negligence 
 Per Se. (a) The court instructs the jury that the neglect to sound 
 the whistle or ring the bell of an engine is not of itself such negli- 
 gence as will justify a recovery for damages, to person or property, 
 injured upon the track. To entitle the plaintiff to recover for such 
 injmy, it must appear, from the evidence, that the injury was the 
 result of such omission to ring the bell or sound the whistle. "^^ 
 
 (b) The jury are instructed that it is not enough to create a lia- 
 bility for injuries caused by a railroad train, to prove the bell was 
 not rung, or the whistle sounded. The jury must further believe, 
 from the facts and circumstances proved, that the accident was caused 
 by reason of such neglect. 
 
 (c) The jury are instructed that, although they may believe, from 
 the evidence, that the (cow) in question was killed by the defend- 
 ant's locomotive, and that there was a failure to ring the bell or 
 blow the whistle, for a distance of (eighty) rods before reaching the 
 crossing, still, if the jury further believe, from the evidence, that 
 there was no connection between the failure to ring the bell, or blow 
 the whistle, and the killing of the (cow), then the jury should find the 
 defendant not guilty, unless they find, from the evidence, that the in- 
 jury was occasioned by some negligence or misconduct, other than the 
 f ailufe to ring the bell or sound the whistle. 
 
 (d) The jury are instructed that, whether the failure to ring the 
 bell, or sound the whistle, on approaching the highway, by the train 
 in question, was, or was not, the cause of the injury complained of, 
 is a question of fact, to be determined by the jury, from a considera- 
 tion of all the evidence in the case.®^ 
 
 § 1886. Whistle Need Not Be Blown Continuously. The law does 
 not require tliat the whistle shall be blown more than once, or blown 
 all the time from where it is first sounded until such public crossing 
 is passed, but only requires that it shall be blown a reasonable length 
 of time to give persons warning who are about to go upon the pub- 
 lic crossing, or. may be already upon same, that the train is approach- 
 ing.«'' 
 
 § 1887. Blowing Whistle at Insufficient Distance While Going at 
 Dangerous Rate of Speed. If the jury find from the evidence that 
 
 60— East St. Ij. Con. Ry. Co. v. 62—1. C. Rd. Co. v. Benton, 69 
 
 Eppman, 71 111. App. 32 (37), aff'd 111. 174. 
 
 170 111. .W8, 48 N. E. 981. 63— Houston & T. C. R. Co. v. 
 
 61— Inrl. & St. I.. Rd. Co. v. Blan, — Tex. Civ. App. — , 62 S. W. 
 
 Blackman, 63 III. 117. 552 (553).
 
 § 1888.] NEGLIGENCE— RAILROADS. 1211 
 
 the defendant's sen-ants in charge of the train that killed said A. B. 
 gave signals by whistling once, and no more, at such distance, if it 
 exceeded 100 rods from G. street, that said A. B. would naturally 
 think that he could safely cross before the train arrived at G. street 
 if he heard such a whistle, and that he did hear it, and further find 
 that no bell was rung, and that said train was going at a greater 
 rate of speed than men of ordinary care anl prudence in like em- 
 ployment would have run it under like circumstances and conditions, 
 and that said A. B., as a reasonable man, was thereby deceived and 
 led to believe that he could cross the tracks of said defendant's rail- 
 road in safety, and that if, attempting under these circumstances, to 
 cross said tracks, without fault or negligence on his part, he was, on 
 account of carelessness upon the part of the servants of said defend- 
 ant in operating said train at an unusual and dangerous rate of 
 speed, struck and killed, then plaintiff would be entitled to recover, 
 if such carelessness was the sole cause of his injuries.*^* 
 
 § 1888. When Suit Based on Failure to Give Signals, Recovery 
 Must Be for Such Omission. Though the jury may believe the re- 
 quired signals were not given by the defendant, unless the accident 
 resulted as a consequence of such omission, the plaintiff is not enti- 
 tled to recover by reason of failure to give the signals.*^^ 
 
 § 1889. No Duty Ordinarily to Give Signals at Private Crossings. 
 The jurj- are further instructed that the statutes of this State do not 
 regrulate or prescribe the speed at which trains may be run, nor do 
 they require any whistle to be sounded or bell rung on trains ap- 
 proaching private crossings, and within the enclosed right of way of 
 the railroad company. While it is true that even at such places cir- 
 
 64 — Schweinfurth v. C. C. C. & case, it was necessary for the jury 
 
 St. L. Ry. Co., 60 Ohio St. 215, 54 to find, and they were so told, the 
 
 N. E. 89 (92). existence of the facts thus calcu- 
 
 "The objection urged to the lated to mislead the deceased, and, 
 
 charge is that it makes the defend- further, that he exercised the care 
 
 ant liable for the mistake or mis- of a person of ordinary prudence 
 
 calculation of tlie person injured, in forming his conclusion that he 
 
 But that, we think, is not its effect, could safely cross under the cir- 
 
 It does no more than hold the de- cumstances, and that the injury 
 
 fendant responsible for the proxi- he received was caused wholly by 
 
 mate consequences resulting from the negligent acts and omissions 
 
 the position in which the deceased of the defendant. If the facts 
 
 was induced to place himself by stated were established to the sat- 
 
 its negligent omission to give the isfaction of the jury, the deceased 
 
 required signals of the approaching was not guilty of contributory neg- 
 
 train where they might be reason- ligence which precluded a recovery 
 
 ably expected by persons about to by his administrator." 
 
 use the crossing, and upon the ab- 65 — St. L. A. & T. H. R. Co. v. 
 
 sence of which they might reason- Odum, 156 111. 78 (82), aff'g 52 111. 
 
 ably rely as an assurance that it App. 519, 40 N. E. 559. 
 
 was safe to cross over, and from "Under this instruction, the fact 
 
 the running of the train without that plaintiff may have been lulled 
 
 such signals at an unusual and for- into a feeling of security for the 
 
 bidden rate of speed, whereby per- reason the signals were not given 
 
 sons who otherwise might cross in as a matter of no moment. Unless 
 
 safety would be placed in a posi- the accident resulted from the 
 
 tion of extraordinaj-y peril. To give omission, a recovery could not be 
 
 the instruction applicable to the had."
 
 1212 FORMS OF INSTRUCTIONS. [§ 1890. 
 
 eumstanees may exist which would render it the duty of the engineer, 
 or person in charge of said train to ring the bell or sound the whistle 
 or stop the train, yet such duty would only arise when such facts 
 and circumstances are averred and proven as would make it a duty 
 to do so, and to show that a failure to do so would be negligence; 
 and in this ease, unless you believe, from the evidence, that such 
 facts and circumstances are proven, there was no duty to make any 
 signal or stop the train.*'^ 
 
 § 1890. But Duty to Give Warning at Crossing Made Public by 
 Customary Use. The jury are instructed that it is admitted that 
 plaintiff is the widow of E., deceased, and that suit was begun within 
 six months after his death ; and if the jury believe from the evidence 
 
 that said E. was, on or about the day of , 19 — , struck by a 
 
 locomotive engine then being run on defendant's railroad by its 
 servants and employes, and that he was thereby so injured that his 
 death resulted therefrom, and that at the place where said E. was 
 struck many people were at that time, and had been for several years 
 prior thereto, accustomed to use said track as a footpath to and from 
 points in the southern part of the city of B. and beyond, and that 
 said track had been used in this way continuously for many years, 
 and that defendant's servants and agents in charge of said train 
 could reasonably have expected to find persons on said track at that 
 place, on account of the frequent and continuous use thereof by foot- 
 men, and that no signal or warning was given by defendant's serv- 
 ants and agents in charge of its engine as it approached the de- 
 ceased, and no efforts were made by them to prevent said injury, and 
 that said E. was not conscious that said train was coming towards 
 him, and if the jury shall further find that defendant's servants and 
 agents could, by the exercise of reasonable care and diligence, have 
 seen said E. upon said track a sufficient distance ahead of said train, 
 so that by giving such signals or warnings, or taking such other action 
 as a reasonably prudent man would have done under the circum- 
 stances, said accident could have been avoided, but that defendant's 
 agents and servants in charge of said train through their carelessness 
 and negligence either failed to observe said E. upon said track, or 
 failed to give proper signals or warnings, or to take such other action 
 as a reasonably prudent man would have done to avoid said injury, 
 then the jury should find the issues for the plaintiff, notwithstanding 
 they may believe from the evidence that said E. was on said railroad 
 track without legal right, and was himself guilty of negligence in 
 being there."^ 
 
 § 1891. No Absolute Duty to Maintain Gates or Flagman at Cross- 
 ing, (a) The court instructs the jury tliat there was no al)solute 
 duty imposed by law on the defendant to maintain either gates or 
 
 66— Chi. & A. R. R. Co. v. Sand- 67— Eppstein v. Mo. Pac. Ry. Co., 
 ers, irA III. 531 (.'i34), aff' g 55 111. ' 197 Mo. 720, 94 S. W. 971. 
 App. 87, 39 N. K. 481.
 
 § 1892.] 'NEGLIGENCE— RAILROADS. 1213 
 
 a flagman at the crossing in question, and if you believe, from the 
 evidence, that there were no gates or flagmen there at the time of 
 the alleged injury, that is not of itself evidence of negligence on the 
 part of defendant. The plaintiff does not allege or claim any negli- 
 gence on the part of defendant in regard to this. Evidence as to 
 whether there were gates or a flagman at the crossing in question at 
 the time of the alleged injury was admitted by the court, and should 
 be considered by the jury, not as tending, of itself, to establish neg- 
 ligence, but solely for the purpose of showing the general condition of 
 things at the locality of such crossing at the time of the alleged in- 
 jury, so as to assist the jury to determine from all the circumstances 
 and evidence in the case, and under the instructions of the court, 
 whether the defendant was guilty of negligence as charged by the 
 plaintiff in his declaration.*'^ 
 
 (b) The railroad law of this State lays upon the railroad com- 
 missioners of this State the duty of determining the necessity of 
 establishing a flagman upon any particular street crossing of a rail- 
 way; and upon the testimony, and under the pleadings in this case, 
 the absence of a flagman at S. Avenue, is no evidence of negligence 
 upon the part of the receivers. ^^ 
 
 § 1892. When Flagman Reasonably Necessary for Safety at Cross- 
 ing, (a) If the jury believe from the evidence that such flagman 
 was reasonably necessary for said purpose (the reasonable safety of 
 those traveling over the crossing) at the time, to make such cross- 
 ing reasonably safe, then, under the law, the presence of a flagman 
 employed by the city up until just before the injury occurred, would 
 not release the defendant from its duty to provide such flagman upon 
 that crossing at the time of the injury, provided the appellant had 
 notice that their city flagman usually quit his station before the time 
 of day when the injuiy occurred.'^'* 
 
 (b) The second matter of negligence that is alleged is a failure to 
 provide a switchman or flagman at this crossing, or to provide gates 
 which should be closed and opened, so as to prevent passengers upon 
 
 68— Dick V. Marble, 155 111. 137 fused, that the jury will take such 
 
 (139), 39 N. E. 602, rev'g 51 111. App. refusal as a liberty to infer that 
 
 351. the request is wrong^ in law, unless 
 
 "We do not deem it necessary to some explanation is made by the 
 
 discuss this instruction further court of the reasons for such re- 
 
 than to say that it is fully in ac- fusal to rebut such natural infer- 
 
 cord with the views we have ex- ence." 
 
 pressed in the case of Chicago & I. 70 — P. & P. Union Ry. Co. v. Her- 
 
 R. R. Co. V. Lane, 130 111. 116, 22 man, 39 111. App. 2S7 C294, 297). 
 
 N. E. 513, and that it states the "In view of the decision, while 
 
 law applicable to this case." this instruction may not be logic- 
 
 69 — Battishill v. Humphrey, 64 ally correct, we can see no such 
 
 Mich. 494, 31 N. W. 894 (903). error in it as would be likely to 
 
 "This request of the defendant mislead a jury, and we can see no 
 should have been given. No refer- cause for reversal in the giving 
 ence was made to this matter in of that instruction. In addition 
 the charge of the court; and it may the declaration specifies as a cause 
 well be considered, when a request *of action the failure to keep a flag- 
 Is specifically made, and it is re- man at the crossing."
 
 1214 FORMS OF INSTRUCTIONS. ' [§ 1892. 
 
 the highway from being exposed to danger. The plaintiffs claim 
 that under the facts and circumstances developed in this case, that 
 this became a duty which the defendants owed to the traveling pub- 
 lic. The terms ''neglect," ''negligence," "negligent," negligently," 
 import a want of such attention to the nature or probable conse- 
 quences of the act or omission as a prudent man ordinarily bestows 
 in acting in his own concerns. Now, just simply apply that rule, gen- 
 tlemen, to the facts in this ease, and you can by that determine 
 whether or not the defendants have been guilty of negligence in this 
 matter. Did their conduct in operating this railroad track crossing, 
 this highway, under all the circumstances and facts that have been 
 detailed in evidence, import a want of such attention to the nature 
 and probable consequences of their acts as a prudent man ordinarily 
 bestows in his own concern? If it does, if there was such a want, 
 then there is negligence, and it constitutes a ground of complaint on 
 behalf of any person who is injured by reason of it. As to what a 
 prudent man would do under the circumstances, gentlemen, it is for 
 you to determine, and you are to determine it for yourselves.''^ 
 
 (c) If you find from a preponderance of the testimony that it 
 was necessary to protect the public traveling on B. avenue for the 
 defendant to keep said crossing watched and guarded, and if you find 
 fi'om the preponderance of the testimony that the defendant did not 
 exercise reasonable care to keep the crossing watched and guarded, 
 and you further find from a prejDonderance of the testi- 
 mony that the injury and death of T. was caused by the negligence of 
 the defendant in not exercising reasonable care to have said crossing 
 properly watched and guarded, you will find for the plaintiff on both 
 causes of action, unless the deceased was guilty of negligence that 
 contributed to his injury and death. ^^^ 
 
 71 — English v. So. Pac. R. Co., 13 passing over the crossing. Numer- 
 
 Utah 407, 45 Pac. 47 (49), 57 Am. St. ous railroad tracks of the three 
 
 772, 35 L. R. A. 155. railroad companies cross this 
 
 "The statutes of Utah only im- street, and engines and cars are 
 pose upon railroad companies the very frequently, and almost con- 
 duty of ringing the bells and stantly, passing and being 
 sounding the whistles upon the ap- switched one way or the other over 
 proach of trains at public cross- this street." 
 
 ings, and the appellants contend 72 — Tiffin v. St. Louis, I. M. & S. 
 
 that, if the defendants performed Ry. Co., 78 Ark. 55, 93 S. W. 564 
 
 the statutory requirement before (565). 
 
 reaching the crossing, no additional "We think that the above in- 
 duty was imposed under any cir- structiou fully placed before the 
 cumstances to prevent injury. This jury the measure of the duty of 
 question is surrounded with much the railway company, and that ap- 
 difficulty and many conflicting de- pellant was not prejudiced by the 
 f Islons. In discussing it, we must refusal to give the above instruc- 
 remember that this crossing is over tion. The instr iction given permit- 
 one of the main streets and ave- ted the jury to say, from the testi- 
 mjes of travel in Ogden city, about mony, that It was necessary, in or- 
 three blocks from the business por- der to protect travelers on the 
 tion of the city, containing 15.000 .street from danger of passing 
 people, and that the street is well trains, that the company should 
 settled ; thnt farmers and the trav- .have provided gates or other bar- 
 ellng public are almost constautly riers, or watchmen to flag trains
 
 § 1893.] NEGLIGENCE— RAILROADS. 1215 
 
 § 1893. Open Gate as an Invitation to Cross, (a) If you believe 
 
 from the evidence that on or about the day of , plaintiff 
 
 was riding in his buggy, drawn by his horse, and endeavored to cross 
 the railroad track of the defendant at the point where the track in- 
 tersects F. street, and that plaintiff drove upon the track, and as he 
 did so a car of the defendant was pushed over the railroad track by 
 the engine, and collided with plaintiff's vehicle and horse, and in 
 consequence thereof plaintiff was injured, as claimed by plaintiff in 
 his petition; and if you further believe from the evidence that no 
 warning was given of the car's approach by either ringing a bell or 
 blowing a whistle, or that the car had no lookout upon the same, and 
 had no light upon it, and that the defendant was negligent in causing 
 the car to be so moved over the railroad track, if you find it was so 
 moved, and that this negligence, if any, was the direct cause of the 
 injuries, if any, to plaintiff, and that plaintiff was not guilty of any 
 negligence which contributed to his injuries, if anj^, then your verdict 
 must be for the plaintiff. 
 
 (b) Or if you believe from the evidence that on or about the 
 
 day of , plaintiff was riding in his buggy, drawn by his horse, 
 
 and endeavored to cross the railroad track of the defendant at the 
 point where the track intersects F. street, and that plaintiff drove 
 upon the track, and as he did so a car of the defendant was pushed 
 over the track by the engine, and collided with plaintiff's vehicle and 
 his horse, in consequence of which plaintiff was injured, as claimed 
 by plaintiff in his petition ; and if you further believe from the evi- 
 dence that it was the duty of the defendant to maintain gates where 
 its tracks intersect F. street, and that the defendant did maintain 
 gates thereat ; and if you further believe from the evidence that at 
 the time plaintiff endeavored to cross the track, and if he did so en- 
 deavor to cross the track, the aforesaid gates were up, and that this 
 indicated that no cars or engines were about to cross said F. street 
 over the railroad track; and you further believe from the facts and 
 circumstances before you that the defendant was guilty of negligence 
 in allowing said gates to be up when a car was crossing the track 
 over F. street, if you so find the facts, and that such negligence, if 
 any, was the direct cause of the injuries, if any, to plaintiff, and 
 that plaintiff was not guilty of any negligence which contributed to 
 his injuries if any, then, in this event, I also charge you your verdict 
 must be for the plaintiff. '^^ 
 
 § 1894. Backing Cars Up After Gate Is Opened. If you believe 
 
 from the evidence that on or about the day of , plaintiff 
 
 was riding in a one-horse wagon or cart, with a horse attached, and 
 
 and warn travelers, and that the neglig-ence if gates were necessary- 
 failure to provide either or all of to the protection of travelers. St. 
 those means of protection was neg- L., I. M. & S. Ry. Co. v. Baker, 67 
 ligence. Therefore, no error was Ark. 531, 55 S. W. 941." 
 committed in refusing to instruct 73— San Ant. & A. P. Ry. Co. v. 
 the jury specifically that the fail- Votaw, — Tex. Civ. App. — , 81 S. 
 ure to provide gates amounted to W. 130 (131).
 
 1216 FORMS OF INSTRUCTIONS. [§ 1895. 
 
 proceeded to cross over defendant 's railroad tracks at the point where 
 the tracks intersect B. street, and if you further believe from the 
 evidence that the defendant maintained crossing gates on said B. 
 street crossing, and that the gates on said B. street crossing were 
 opened and raised by defendant, and if you further believe from the 
 evidence that the plaintiff proceeded to cross over defendant's tracks 
 at said B. street crossing, and that while doing so, if he did so, the 
 defendant moved and backed a car against plaintiff's wagon, and 
 injured him, as alleged in plaintiff's petition; and if you further be- 
 lieve from the evidence that said car came to a stop, and then was 
 moved forward, and that plaintiff's vehicle was dragged with plain- 
 tiff in it, and that plaintiff was thereby injured as alleged in plain- 
 tiff's petition; and if you further believe from the evidence that it 
 was negligence on the part of the defendant, under all the facts and 
 circumstances in evidence before you, to move said car against plain- 
 tiff's wagon, if it did so, and then to move said car forward and 
 drag plaintiff's said vehicle with plaintiff in it, if it did so, and that 
 such negligence, if any, was the direct cause of plaintiff's injuries, 
 if any, and that plaintiff was not guilty of contributory negligence, 
 then your verdict must be for the plaintiff.'^'* 
 
 §1895. When "Kicking" Car Amounts to Willful Negligence 
 While Person Is Crossing Track. The jury are instructed that, in 
 order to find a verdict against defendant in this ease and under the 
 pleadings in the case, you must believe, from the evidence, that the 
 injury to and the death of said E. was caused as stated in the 
 declaration or in some one or more counts thereof, by the defendant, 
 and that in so causing such injury at the time and place thereof, as 
 appears from the evidence, the defendant was then and there guilty 
 of a degree of negligence so gross as to amount to a willful, reck- 
 less and wanton disregard of the rights and safety of said E. It 
 is not necessary that the action of the defendant shall be shown 
 by the evidence to have been willful, in the sense that it was in- 
 tentional on the part of the defendant or its servants, but before 
 you can render a verdict against the defendant in this case you must 
 believe, from a fair and impartial consideration of all the evidence 
 in the case, that the injury to, and the death of said E. was the 
 proximate result of such a want of care and regard for the rights 
 and safety of others (in other words, of such gross negligence) as 
 justifies the presumption of willfulness or wantonness on the part of 
 the defendant.'^^ 
 
 § 1896. Failure of Defendant's Servants to Avoid Threatened In- 
 jury, When Possible, (a) Even though the jury should find that S. 
 was negligent in attempting to cross or walk upon defendant's rail- 
 road track, and that the plaintiffs were also guilty of negligence in 
 the custody and care of their said son, and even though you believe 
 
 74_Oalv. H. & S. A. Ry. Co. v. 75— C. B. & Q. R. Co. v. O'Neil, 
 Fry. — Tex. Civ. App. — , 84 S. W. 172 111. 527. aff'g 64 111. App. 623, 50 
 664 (665). N. E. 216.
 
 § 1896.] NEGLIGENCE— RAILROADS. 1217 
 
 from the evidence that the negligence of either the plaintiffs or their 
 said son, S., directly contributed to cause the injuries complained of, 
 still if you further believe from the evidence that S. had placed 
 himself in a dangerous position by going on defendant's railroad 
 track, and thereafter such dangerous position became known, or in 
 the exercise of ordinary care and diligence could have become known 
 to defendant's servants in charge of said train in question, in time 
 to have stopped said train by the exercise of oi'dinary care, and 
 avoided the injury complained of, and failed to do so, then your ver- 
 dict should be for the plaintiffs. 
 
 (b) The court instructs the jury that if they believe from the 
 evidence that the deceased saw the engine approaching, or knew of 
 its approach, before he got upon the track, or could have seen such 
 engine by looking, or could have heard it approaching by listening, 
 then the failure of defendant's servants to ring the bell of the 
 engine, if a fact, is immaterial, and plaintiff is not entitled to re- 
 cover on that ground of negligence. The court further instructs 
 the jury that plaintiffs ought not to recover in this case unless 
 they find from the evidence that the servants and agents of defendant 
 in charge of the engine saw, or by the exercise of ordinary care 
 and diligence might have seen, deceased on defendant's track in 
 time to have stopped the train, and thus averted the injury. The 
 jury are also instructed that if, after deceased entered upon the rail- 
 road track, the emjiloyes in charge of the train which struck him 
 did not have time, by the exercise of ordinary diligence, to stop 
 the train, then no negligence can be imputed to defendant com- 
 pany because they did not do so, and the verdict should be for the 
 defendant. 
 
 (c) The jury are further instructed that, while it may have been 
 the duty of defendant's servants or agents to make all reasonable 
 efforts to stop the train and avoid a collision, yet a duty also de- 
 volved upon the deceased, and if after he saw the train coming, or 
 might be looking or listening have seen or heard it coming, he could 
 have gotten out of its way, but did not, then the plaintiffs cannot 
 recover, unless you should further find from the evidence that after 
 the deceased was in a position of peril the defendant's servants in 
 charge of said train either saw him, or by the exercise of ordinary 
 care might have seen him, in time to have stopped the train, by the 
 exercise of ordinary care, before it struck him. 
 
 (d) Although the juiy may believe from the evidence that de- 
 fendant's employes were guilty of negligence in failing to discover 
 the presence of plaintiff's son, S., on the track, yet if they also be- 
 lieve from the evidence that said S. was negligent in failing to 
 discover the approach of defendant's train in time to have kept out 
 of its way, or to have gotten out of its way, if in it, then your 
 verdict will be for the defendant, unless you should further find from 
 the evidence that after the deceased was in a position of peril the 
 defendant's servants in charge of said train either saw liim, or by 
 
 77
 
 1218 FORMS OF INSTRUCTIONS. [§ 1897. 
 
 the exercise of ordinary care might have seen him, in time to have 
 stopped the train, by the exercise of ordinary care before it struck 
 him. The court instructs the jury that if they believe from the 
 evidence that the death of plaintiff's son, S., was the result of mere 
 accident or casualty, and not of negligence on the part of the de- 
 fendant, your verdict will be for the defendant.'^^ 
 
 § 1897. Ordinary Care Towards Watchman at Crossing. The court 
 instructs the jury that by ordinary care in this case the law means 
 such a degree of care, under the circumstances and in the situation 
 in which the plaintiff was placed, so far as may be shown, by the 
 evidence, as an ordinarily prudent person would exercise under the 
 same circumstances and in like situation to avoid danger.'^''' 
 
 § 1898. Injury at Crossing Through Horse Balking. If you be- 
 lieve from the evidence that the accident was caused by the plain- 
 tiff's horse balking and backing, and that such balking and backing 
 was not caused by fright from the whistle of the engine being blown, 
 then 3'ou will consider no further, but return your verdict for the de- 
 fendant.'^^ 
 
 § 1899. Reasonable and Ordinary Care Only Required in Switch- 
 ing. The coui't instructs the jury that the defendant, while using 
 the railroad track in moving cars thereon, was only bound to use 
 reasonable care to avoid injuring persons and proiDerty of people 
 being in and approaching its line of railroad. And if the jury be- 
 lieve, from the evidence in this case, that the defendant, by its 
 servants, exercised reasonable and ordinary care in moving and 
 managing the cars it was hauling, and to ascertain the condition 
 of the switches before attempting to place their cars in position for 
 the use of the X. company, then it performed its whole duty, and 
 the jury will find a verdict for the defendant."^ 
 
 § 1900. Right to Raise and Lower Track — Duty of Public Authori- 
 ties as to Approaches Thereto, (a) If the jury find from the evi- 
 dence in this case that, after defendant raised its track at the time 
 and place in question, that its crossing over said track, as well as 
 the ai^proaches thereto, were then and thei'e in good condition, but 
 that the county authorities of M. county then and there failed to 
 make a proper connection with said approaches and said crossing on 
 
 76 — Above instructions approved rence v. Hagerman, 56 III. 68; Lou- 
 
 in Schmitt v. Mo. Pac. Ry. Co.. 160 ranee v. Goodwin, 170 111. 390. 48 
 
 Mo. 43, 60 S. W. 1043. N. E. 903; 111. C. Ry. Co. v. Bannis- 
 
 77— T. P. & W. Ry. Co. v. Ham- ter, 195 III. 48, 62 N. E. 864." 
 mett, 115 111. App. 268 (276). 78— Houston & T. C. R. Co. v. 
 
 "We cannot believe appellant Carruth, — Tex. Civ. App. — , 50 
 
 was injured or prejudiced by this S. W. 1036 (1038). 
 Instruction having been given when "There was some evidence tend- 
 
 we consider all the evidence and ing to support this theory, .ind the 
 
 the other instruction in the case, charge should have been given." 
 It has been repeatedly held that all 79— C. & A. R. R. Co. v. Ander- 
 
 tho Instructions in the case are to son, 67 III. App. 386 (389), aff'd 166 
 
 be considered as one series, and 111. 572, 46 N. E. 1125. 
 read and construed together. Law-
 
 § 1901.] NEGLIGENCE— RAILROADS. 1219 
 
 the county road, then and there under the sole control of said county 
 authorities; and if they find from said evidence that whatever de- 
 fect, if any, existed in said highway at said time and place was 
 occasioned by reason of said county authorities of M. county failing 
 to make a proper or safe connection in said county road with the 
 crossing and approaches thereto constructed by the defendant, whereby 
 in driving down said approach the plaintiff was then and there thrown 
 out of his wagon on the county road, or at the junction thereto 
 with the approach to defendant's crossing, occasioned by said failure 
 of said county authorities to make a proper and safe connection be- 
 tween said county road and said crossing as aforesaid, then they 
 are instructed that plaintiff is not entitled to recover on account 
 of said injury, and your verdict must he for the defendant. 
 
 (b) The jury are instructed that the defendant had a lawful right 
 either to raise or lower its track at the place in question at any 
 time whenever, in its judgment, the interests of the traveling public 
 and the line of railroad then owned and operated by the defendant 
 required such change in track; and ii the jury find fi'om the evi- 
 dence in this case that the crossing constructed by the defendant 
 after its track was raised as aforesaid, as well as the approaches 
 
 thereto, were in proper and safe condition on the day of , 
 
 1899, and the plaintiff was not injured either upon said crossing or 
 upon said approach by reason of any defect or imperfection in said 
 crossing or said approach, then they are instructed that the plain- 
 tiff is not entitled to recover in this action, and your verdict must 
 be for the defendant. ^° 
 
 § 1901. Injury to Person at Crossing by Employe Operating Hand 
 Car for His Own Private Use — Series, (a) The plaintiff' sues the de- 
 fendant company for injuries inflicted upon the wife of plaintiff, 
 damages to his buggy and horse, and expenses incurred in the treat- 
 ment of his wife, alleging that these injuries were caused by a hand 
 ear of said comi3any striking the buggy in which they were riding 
 at the crossing of one of the streets of N. B., alleging that said hand 
 car was negligently used, and thus negligently caused this injury. 
 
 (b) The defendant company, as a defense, alleges that at the time 
 of said injuiy the hand car was not being used in the business of the 
 company, but that said car was then being used only for the private 
 use of the person operating it. 
 
 (c) The jury are charged that the uncontradicted testimony shows 
 that at the time of the injury one B., an employe of the company, who 
 had charge of the hand ear, was using said car for his own private 
 use, and was not using same for the company's business; and the 
 company would not be liable unless the evidence shows said B. to be 
 a disobedient and untrustworthy sei-\'ant, and was in the habit of 
 disobeying the company's rules in running and using said car, and 
 that said company knew, or could have known by the use of ordinary 
 care, that said B. was in the habit of disobeying the rules of the 
 
 80— Camp v. Wabash R. Co., 94 Mo. App. 272, 68 S. W. 96 (97).
 
 1220 FORMS OF INSTRUCTIONS. [§ 1901. 
 
 company which forbid the use of the hand ear at night unless by 
 order of the eomjDan}-. 
 
 (d) You will determine from all the facts and circumstances in 
 proof whether said B. was a disobedient and untrustworthy servant, 
 and did frequently use said hand car when forbidden by the rules 
 of the company, and that the company did know or could have known 
 this fact lay the use of reasonable diligence; and if you so believe, 
 then j^ou will find for the plaintiff, if said car was negligently run and 
 used, and did thus cause the injuries. If, upon the other hand, you do 
 not so believe, you should find for the defendant. If you find for the 
 plaintiff, you will find such an amount as damages as will fairly and 
 justly compensate the plaintiff for the injuries he has sustained. In 
 doing this, you will consider the pain and suffering of his wife, the 
 value of the loss of time from labor caused by the injury, the value 
 of any impairment she has suffered to labor or earn wages, and 
 whether tem20orary or permanent. You will estimate the value of 
 the injury to the buggy and horse; also the expenses incurred inci- 
 dent to her injury, such as doctor's bill and medicine, not to exceed 
 the several amounts sued for in plaintiff's petition. 
 
 (e) Negligence is the failure on the part of the defendant, while 
 resting under a legal duty or obligation to the plaintiff, to do what 
 an ordinarily prudent and careful person would have done under 
 the fac+s and circumstances surrounding the transaction complained 
 of, or the doing by the defendant, while resting under a legal duty or 
 obligation to the jDlaintiff, of some act resulting in injury to 
 the plaintiff, which an ordinarily prudent and careful person, under 
 the same or similar circumstances, would not have done. 
 
 (f) The jury are instructed that by the term ''ordinary care," as 
 used in the charge of the court, is meant such care as an ordinarily 
 prudent and careful person would have exercised under all the facts 
 and circumstances surrounding the transaction under investigation. 
 
 (g) The jury are instructed that it devolved upon the plaintiff, 
 J. B., in driving his buggy to a railroad crossing on one of the streets 
 of the city of N. B., to exercise such care as an ordinarily prudent 
 and careful person would have exercised under similar circumstances; 
 and that if he failed to exercise such care, and it contributed di- 
 rectly and proximately to producing or causing the injuries com- 
 plained of, you will return a verdict for the defendant. In this 
 connection, you are also instructed that it likewise devolved upon 
 L. B., plaintiff's wife, for alleged injuries to whom he seeks dam- 
 ages, also to exercise ordinary care in going upon the crossing; and 
 if from the evidence you believe that the said L. B. failed to exercise 
 such ordinary care, and that such failure on her part contributed 
 directly and pi'oximately to the infliction of the injuries complained 
 of, you will return a verdict for the defendant. 
 
 (h) The jury are instructed that the fact that the defendant, 
 after the happening of the accident complained of, did not discharge 
 B. for using the hand car upon his own business at the time men-
 
 § 1902.] NEGLIGENCE— RAILROADS. 1221 
 
 tioned in plaintiff's petition, does not prove or tend to prove that he 
 was using the same in furtherance of the business of the com- 
 pany.*^ 
 
 § 1902. Care Required of Travelers, (a) The jury are instructed, 
 as a matter of law, that both the plaintiff (or the deceased) and 
 the railway company had an equal right to cross the street at the 
 point whex-e the accident hajipened and that the law imposes upon 
 both parties the duty of using reasonable and prudent precautions to 
 avoid accident and danger; and, while it was incumbent upon the rail- 
 way company, in running its train on the occasion referred to, to give 
 the required signal by ringing the bell or sounding the whistle 
 (eighty) rods before reaching the crossing, it was also the duty of 
 the plaintiff (or deceased) to look out for the approach of the train, 
 and to observe all reasonable precautions before attempting to cross 
 the track. 
 
 (b) Every pei'son is bound to know that a railroad crossing is a 
 dangerous place, and he is guilty of neglect unless he approaches it 
 as if it were dangerous. And if the jury believe, from the evidence, 
 that the plaintiff (or the deceased), as he approached the railroad 
 track, did not look or listen to ascertain if a train was coming, and 
 observe all reasonable precautions to avoid danger, but, on the con- 
 traiy, drove directly onto the track, where the accident happened, 
 without taking any steps to ascertain if a train was approaching, 
 then he was guilty of such negligence as precludes a recovery in 
 this case, unless the jury believe, from the evidence, that the servants 
 of the railway company, upon such occasion, were guilty of gross 
 negligence, as explained in these instructions.*- 
 
 (c) The plaintiff' was bound to use oi'dinaiy care under the cir- 
 cumstances shown to have existed in this case. He was bound to 
 approach the railroad carefully, and to look and listen for the ap- 
 proach of trains ; and if the evidence shows that he did this with that 
 degree of care that an ordinarily prudent person would have exer- 
 cised under all the circumstances, and was unable to hear or see the 
 train ajDproaehing until it was too late to avoid the collision, then 
 he was not guilty of contributory negligence. 
 
 (d) There is no law requiring a man, in the lawful use of a public 
 street approaching a railroad crossing, to stop his vehicle before 
 crossing, but he is bound to use such care, under all the circum- 
 stances, as a man of ordinary care must have exercised under like 
 circumstances; and if you find that H. exercised such care at the 
 time of and preceding the injury, he was not guilty of contributory 
 negligence. ^^ 
 
 81 — Those instructions approved Cent., 47 N. Y. 400; Allyn v. Rail- 
 
 iu Infl & G. N. R. R. Co. v. road, 105 Mass. 77; Belief ontaine R. 
 
 Branch, 29 Tex. Civ. App. 144, 68 Co. v. Hunter, 33 Ind. 353; Pena. R. 
 
 S. W. 33S. Co. v. Beale, 73 Penn. St. 504. 
 
 82— Lake S. & M. S. R. Co. v. Mil- 83— Penn. Co. v. Horton, 132 Ind. 
 
 ler, 25 Mich. 274; C. & N. W. R. Co. 189, 31 N. E. 45 (47). 
 
 V. Hatch, 79 111. 137; Davis v. N. Y. "Counsel for the appellant con-
 
 1222 FORMS OF INSTRUCTIONS. [§ 1902. 
 
 (e) This is an action by T., as administrator of the estate of 
 M., deceased, to recover damages for the death of the latter, and 
 the court instructs you that before plaintiff: can recover he must 
 show that the deceased M. at the time and immediately before the 
 accident was in the exercise of due and reasonable care for his 
 safety, for the law requires that all persons about to cross or step 
 upon railroad tracks shall exercise such care and caution for their 
 safety as prudent and careful men would properly exercise under the 
 circumstances ; and if you find, from the evidence, that M., the de- 
 ceased, either walked upon or attempted to cross the tracks upon 
 
 which he was killed without exercising- such care and caution for his 
 safety as a reasonably prudent man under all the circumstances 
 would have exercised, and that his failure to exercise such care and 
 caution materially contributed to the accident, then your verdict must 
 be for the defendant.** 
 
 (f) If the jury should find that the defendant was negligent, and 
 should also find that the deceased, H., was himself guilty of negli- 
 gence which directly and proximately caused or contributed to the 
 accident, then the plaintiff cannot recover, and you will find for the 
 defendant. 
 
 (g) It was the duty of H. in going along S. street to exercise 
 such caution and care to avoid being injured while crossing the 
 railroad tracks as a person of ordinary prudence would have ex- 
 ercised with reference to a similar matter under similar circum- 
 stances, and if he failed to do so, it was negligence on his part.^^ 
 
 (h) The court instructs the jury that if they believe from the 
 evidence that at the time of, and immediately before, the collision 
 between the car and plaintiff's wagon, the plaintiff, by the exercise 
 of ordinary care in looking out for the approach of a car on the 
 east track of the defendant's line, could have avoided said collision, 
 and that he omitted to use such care up to the time of such collision, 
 and that his said omission directly contributed to produce the said 
 collision, then your verdict should be for the defendant. 
 
 (i) The court instructs the jury that if they find fi'om the 
 
 cede the law to be as laid down in cumstances to have shown him to 
 
 these instructions as an abstract be in the exercise of due care, it 
 
 proposition, but insist that when was not necessary, nor would it 
 
 applied to the facts of this case, have been proper, for the court to 
 
 they were too general and indefinite have entered into a discussion of 
 
 and such as tended to mislead the the facts. The court stated the 
 
 jury. We are satisfied that these law to the jury applicable to the 
 
 instructions were not only correct case, and left it to them to de- 
 
 as abstract propositions of law, termine from the evidence whether 
 
 but that, when taken in connection there had been negligence on the 
 
 with the other instructions, they part of the plaintiff contributing 
 
 correctly and fairly submitted the to the injury." 
 
 questions of law involved in the 84— Chi., M. & St. P. Ry. Co. v. 
 
 case to the jury. The objections O'Sullivan, 143 111. 48 (51), 32 N. E. 
 
 urged to these charges are that 398. 
 
 they do not state any facts, nor 85— Tex. & P. Ry. Co. v. Hagood, 
 
 :ulv<se the jury what the appellee 21 Tex. Civ, App. 442, 52 S. W. 574 
 
 should have done under the cir- (575).
 
 § 1903.] NEGLIGENCE— RAILROADS. 1223 
 
 evidence that by exercising ordinary care plaintiff, up to the moment 
 of the said collision of his wagon and the car, could have avoided 
 said collision, and that the collision occurred because plaintiff failed 
 to exercise such ordinary care to avoid it, then your verdict should 
 be for the defendant, even though you may further find from the 
 evidence that the defendant's employes in charge of the car in 
 question were also guilty of negligence in any of the particulars 
 charged or alleged by the plaintiff in this case.*® 
 
 § 1903. High Rate of Speed Will Not Excuse Want of Ordinary 
 Care. You are instructed that, although you may find from the 
 evidence that the defendant's train of cars was running at a high 
 or excessive rate of speed, that would not excuse or overcome the 
 negligence of the deceased, if he was negligent, in attempting to 
 cross the railroad track in front of a rapidly approaching train 
 without first looking and listening.®'' 
 
 § 1904. Failure to Have Gate-keeper Required By Ordinance Will 
 Not Excuse Traveler From Using Ordinary Care. The court in- 
 structs the jury that, although you may believe from the evidence 
 that an ordinance of the city of D. required the defendant to have 
 a gate at the C. street crossing, with a man in charge of the same, 
 and to lower said gate whenever a ti'ain attempted to ci'oss said 
 street, and although you may believe from the evidence that the 
 defendant company failed to provide said gate-keeper at the cross- 
 ing in question, or to have said gate lowered on the occasion of the 
 accident, and although you may believe that the defendant company 
 failed to have at the front of the train as it approached said crossing 
 a light or to signal its approach by bell or otherwise, yet the said 
 failures on the part of the company did not relieve the plaintiff's 
 intestate, R., from exercising care and caution in attempting to avoid 
 injury from the approaching train; that it was the duty of said R. 
 before attempting to cross said track, or while standing on or near 
 said track, to look in both directions, and to listen for approaching 
 trains; and that if said R. stepped upon said track without looking 
 and listening, or stood in such close proximity to said track, without 
 looking and listening, as to be struck by said train, then said R. was 
 guilty of such contributoiy negligence as precludes any recovery, and 
 the jury must therefore find for the defendant. ®® 
 
 § 1905. Failure to Give Signals Does Not Excuse Traveler From 
 Using Ordinary Care. The court instructs the jury that when the 
 railroad company fails to give the statutory signals, this will not 
 excuse the traveler from using ordinary care at a highway crossing. 
 
 (b) There is no rule of law which relieves or absolves a person 
 from looking out for the train when he goes to cross the track, 
 though no whistle may blow or bell ring. The traveler must use 
 
 86— Schafstette v. St. Louis & L. Ry. Co., 60 Ohio St. 215, 54 N. E. 
 
 M. R. R. Co., 175 Mo. 142, 74 S. W. 89 (91). 
 826 (830). 88— Rangeley's Adm'r v. So. Ry. 
 
 87— Schweinfurth v. C. C. C. & St. Co., 95 Va. 715, 30 S. E. 386.
 
 1224 FORMS OB" INSTRUCTIONS. [§ 1906. 
 
 ordinary care, and that involves the use of all his senses, and it is 
 for the jury to determine, whether, under the circumstances of each 
 particular case, the traveler used reasonable eare.^^ 
 
 (e) The court instructs the jury that if you believe from the 
 evidence that the plaintiff could have discovered the approaching 
 train by the exercise of ordinary care, in time to have enabled her 
 to avoid the accident by the exercise of ordinary care on her part, 
 and that she did not exercise such care, you will find the defendant 
 not guilty.^" 
 
 (d) If you find that at the time of and just preceding the injury 
 A. approached the railway crossing, and could, by looking in the 
 proper direction, have seen the train coming towards him in time to 
 have avoided the injury, although the engineer gave no warning of 
 his approach by ringing the engine bell or otherwise, and though the 
 train was running fifteen or twenty miles an hour, still your verdict 
 must be for the defendant ; for, if you find, under such circumstances, 
 A. omitted to look for the train, he was guilty of such negligence 
 as deprives him of the right to recover.''^ 
 
 § 1906. Flagman's Signal to Cross Will Not Excuse Want of 
 Ordinary Care. The jury are instructed, as a matter of law, that 
 under the evidence in this case, the plaintiff is not entitled to recover 
 even if the jury believe, from the evidence, that the flagman sig- 
 nalled to him to come across the track, and if the jury also believe, 
 from the evidence, that no bell was rung or whistle sounded, pro- 
 vided the juiy believe, from the evidence, that the plaintiff did not 
 exercise ordinary and reasonable care under all the circumstances as 
 shown by the evidence to discover the approach of the train and 
 prevent being injured.^- 
 
 § 1907. Voluntarily Crossing Over to a Place of Danger. The jury 
 is charged tliat if you believe from the testimony that plaintiff, C, 
 crossed over to the southeast side of defendant's track and train 
 in H. at the time he was injured in full view of defendant's running 
 trains on the switches and side tracks at H., and if you believe that 
 plaintiff voluntarily went across said track into a place of danger, 
 knowing that the place he went was not a place where defendant 
 usually received and discharged passengers in H., and knowing that 
 
 8&— Edwards v. So. Ry. Co., 63 S. icism is made of other instructions, 
 
 C. 271, 41 S. E. 458 (459). but, as no objections were made 
 
 90 — C. & E. I. R. R. Co V. Zapp, to them upon the trial, we cannot 
 
 110 111. App. 553 (556), affd 209 111. consider them now. Taken as a 
 
 339, 70 N. E. 623. whole, the instructions were quite 
 
 91— Penn. Co. v. Horton, 132 Ind. favorable to the defendant." 
 
 189. 31 N. E. 45 (47). 92— C. R. I. & P. Ry. Co. v. 
 
 "This instruction was pertinent to Clouprh. 134 111. 5S6 (595), 25 N. E. 
 
 the theory of the defense. That 664, 29 N. E. 184. 
 
 the plaintiff might, by looking, "This instruction stated the law 
 
 have seen the approaching train, in substantial conformity with the 
 
 was not objectionable on account views heretofore expressed by this 
 
 of the omission of the elements of court. See C. St. L. & P. Ry. Co. 
 
 listening, which wns fully treated v. Hutchinson, 120 111. 587, 11 N. E. 
 of In other Instructions. Some crit — '855, and authorities there cited.'-
 
 § 1908.] NEGLIGENCE— RAILROADS. 1225 
 
 the usual place for receiving passengers for defendant was safe; 
 and if plaintiff, after crossing said main track, failed to see or 
 hear the movement of said cars in time to avoid injuiy; and if you 
 further believe that such conduct on the part of plaintiff was negli- 
 gent on his part, and that it was not such care and prudence as 
 would have been exercised by a person of ordinaiT prudence and care 
 under the circumstances; and if you believe also that such negligence 
 of plaintiff contributed to his injury, then plaintiff is not entitled 
 to recover in any sum, and you will find a verdict for the de- 
 fendant, even though you should find that defendant was also negli- 
 gent.^^ 
 
 § 1908. Track Itself is a Proclamation of Danger. While it is the 
 duty of the defendant receivers to give notice of the approach of its 
 trains to a crossing, by the ringing of its bell, the blowing of the 
 whistle or otherwise, and that its failure to give such notice is negli- 
 gence, there are also reciprocal duties imposed on the plaintiff's 
 intestate; that a traveler cannot go upon the track even at a public 
 crossing, without exercising ordinary care and caution, that the track 
 itself is a proclamation of danger, and that it is the duty of anyone 
 going upon it to use his eyes and ears. He should look in either 
 direction from which the train could come and listen to ascertain 
 if it is approaching, and if his faculties warn him of the near 
 approach of a train it is his duty to keep off the track; and if a 
 traveler fails to so look and listen, as duty requires of him, and 
 attempts to cross the track in front of a moving train, and is caught 
 before he can get across, and killed, his own act and his own 
 negligence so contributed to the injury that a recovery therefor can- 
 not be sustained, and the jury must find for the defendant.''* 
 
 § 1909. Person Must Use His Faculties in Proportion to the Known 
 Danger, (a) The court instructs the jury that he must use his 
 faculties in proportion to the danger impending, and should look and 
 listen before attempting to ei'oss, provided you find that an ordinary 
 prudent man under the same circumstances would do that.'''' 
 
 (b) You are charged that it was the duty of the deceased, as he 
 approached the said crossing just before the time of the accident which 
 resulted in his death, both to listen for and looTi in the direction 
 from which the train approached, to ascertain if any train was ap- 
 proaching, and it was his duty to continue to so look and listen until 
 he had crossed said railroad. The failure of the company, if it did 
 fail, to ring the bell, sound its whistle, or give any alarm of its 
 
 93— St. Louis S. W. Ry. Co. of & T. R. Co. v. McGlamory, 89 Tex. 
 
 Tex. V. Casseday, 92 Tex. 525, .50 639. 35 S. W. 1058; G. C. & S. F. R. 
 
 S. W. 125. Co. V. Shieder, 88 Tex. 152, 30 S. 
 
 "We are of the opinion that this W. 902." 
 
 special charge applied the law to 94 — Kimball v. Frind's Adm'x, 95 
 
 the very facts of the case, and that Va. 125, 27 S. E. 901 (902). 
 
 it was error to refuse it, for which 95 — Edwards v. So. Ry. Co., 63 
 
 the judgment must be reversed, S. C. 271, 41 S. E. 458 (459). 
 and the cause remanded. Mo. K,
 
 1226 FORMS OF INSTRUCTIONS. [§ 1910. 
 
 approach, did not relieve the deceased from the obligations to per- 
 form the said duty of listening and looking, and if the said de- 
 ceased, as he approached said crossing, by the use of his senses of 
 sight and hearing in looking and listening for the approach of the 
 said train, could have discovered that it was approaching, and have 
 avoided said collision, then the plaintiffs cannot recover in this 
 ease. 
 
 (c) If without so looking and listening for an approaching train, 
 a person attempts to cross a railroad track, and is injured by a 
 passing train, his own careless conduct is deemed, in law, to have 
 assisted in bringing about the injury, and he cannot complain of 
 the other party concerned in the transaction, even though such other 
 party may also have been negligent.^*^ 
 
 (d) The court instructs the jury that if you believe and find from 
 the evidence in this case that the plaintiff and the person driving 
 the vehicle in which plaintiff was riding had knowledge of the fact 
 that a train of cars was, at the time, in the switchyards at P., Mis- 
 souri, and with such knowledge approached the railroad crossing at 
 W. street, in said city of P., then it became the duty of plaintiff, 
 before undertaking to cross the railroad tracks at said W. street 
 crossing, either by her sense of hearing or by her sense of sight to 
 determine whether or not any train of cars was about to cross said 
 street at said crossing before undertaking to cross the same, and, if 
 necessary, to stop at such distance before reaching said crossing as 
 would enable her to determine this fact; and if you find and believe 
 from the evidence that she failed to do so, then your finding must 
 be for the defendant. 
 
 (e) The admitted facts in this case disclose that from the north 
 rail of the main track to the north rail of the L. & S. track the 
 distance was 13 feet 4 inches. If, therefore, the jury believe from 
 the evidence that without any lights a person in the exercise of 
 ordinary care could have seen a moving box car at the rear of de- 
 fendant's train, at such a distance therefrom as to be able to stop 
 and avoid a collision, then it was the duty of plaintiff, before passing 
 over defendant's main track, to stop at a reasonable distance there- 
 from for the purpose of learning of the approach of said train and 
 preventing a collision. If she failed to do so, and by reason thereof 
 caused or contributed to the injuries complained of, she is not entitled 
 to recover in this action.^''^ 
 
 § 1910. Duty of Person Crossing Tracks to Stop, Look and Listen, 
 (a) The court instructs the jury, as a matter of law, that it may 
 be tlie duty of a person approaching the crossing of a railroad, 
 with a wagon and team, along a highway, to stop, to listen and to 
 
 9G— Olson v. Oregon S. L. R. Co., fined plaintiff's duty as to stopping, 
 
 24 Utah 460, 68 Pac. 148 (152). loolcing, and listening before en- 
 
 97— Montgomery v. Mo. Pac. Ry. tering upon the crossing, and were 
 
 Co., 181 Mo. 508, 79 S. W. 930 (932, as favorable as defendant had a 
 
 936). right to ask." 
 
 "The above instructions fully de-
 
 § 1910.] NEGLIGENCE— RAILROADS. 1227 
 
 look both ways along the railroad before going upon it. If, from 
 a rise in the ground or other obstructions, or if, by reason of a 
 defect of his sense of sight or hearing, he cannot determine with 
 certainty whether or not a train of cars is approaching without 
 stopping, and, if necessary, going in advance of his team to examine, 
 it is his duty to do so. If, in such case, he goes upon the track 
 without taking such precaution, he does so at his own peril, and 
 cannot recover, if injury results. ^^ 
 
 (b) If the jury believe that tiie train was running beyond the 
 rate of eight miles an hour, that no bell was ringing or other signal 
 given of the approach of the train to the crossing, still this or any 
 other negligence of the defendant did not excuse plaintiff from the 
 use of the proper care for his safety. It was his duty to have 
 looked and listened all the time until he reached the crossing; and, 
 if his failure to do so was the proximate cause of his injury, the 
 answer to the second issue should be, *'Yes. "^^ 
 
 (c) A person about to cross the track of a railroad, upon a 
 public highway, is bound to exercise all reasonable care and caution 
 to avoid injury upon the crossing. In his approach to the crossing, 
 it may be incumbent upon him to exercise care and caution by 
 stojDping, looking and listening for any train that may be approach- 
 ing, so as to avoid a collision; otherwise he cannot recover for an 
 injury so received, unless it appears that the injuiy was inflicted 
 willfully or wantonly.^"" 
 
 (d) And, on the other hand, it was the duty of S., in attempting 
 to cross or walk upon defendant's track, to have exercised that de- 
 gree of care and prudence that an ordinarily careful and prudent 
 person of his age and intelligence, under like circumstances, would 
 have exercised, and a failure to exercise such a degree of care and 
 prudence would render him guilty of negligence.^ 
 
 (e) The jury are instructed that if they believe, from the evi- 
 dence, that the said A. B. was guilty of negligence, which materially 
 contributed to the accident, by driving upon the track of the rail- 
 road without first looking and listening to see if a train was ap- 
 proaching, then the defendant cannot be found guilty in this case, 
 unless the jury believe, from the evidence, that the defendant's 
 servants were guilty of gross negligence, which caused the accident. 
 And the jury are instructed, that in this connection gross negligence 
 means a willful act or omission, or one which shows a reckless dis- 
 regard of life or property. 
 
 (f) The court further instructs the jury, that while a traveler 
 on the highway is not required to leave his wagon, or to use any 
 other unusual means to discover an approaching train, he cannot 
 
 98— C. B. & Q. R. Co. v. Lee, 87 Co., 50 Cal. 482; Toledo, etc., Rd. 
 
 111. 454; Dolan v. Delaware, 71 N. Co. v. Shuckman, 50 Ind. 42; Haines 
 
 Y. 285. v. 111. C. R. Co., 41 Iowa 227. 
 
 99— Norton v. N. C. R. Co., 122 1— Schmitt v. Mo. Pac. Ry. Co.. 
 
 N. C. 910, 29 S. E. 886 (889). 160 Mo. 43, 63 S. W. 1043. 
 
 100 — Hearne v. Southern, etc., Rd.
 
 1228 FORMS OF INSTRUCTIONS. [§ 1911. 
 
 voluntarily close his eyes to danger, or needlessly expose himself to 
 it, and then claim compensation for an injury thus received. And 
 if the jury believe, from the evidence, that the said A. B., if he had 
 looked, could have seen the approaching train, for a distance of, 
 etc., before the train reached the crossing, and that either he did not 
 look, or else paid no attention to the train, but went upon the track 
 while the train was approaching, and so near to the crossing as 
 to cause the accident, then he was guilty of gross negligence, and 
 cannot recover in this suit." 
 
 (g) If you find and believe from a preponderance of the evidence 
 in this cause that B. failed to look and listen for cars before going 
 upon the track where he was killed; and if you believe such failure 
 to look and listen for approaching cars was negligence on the part 
 of the said B., as the same is hereinbefore defined; and if you be- 
 lieve that the said B., by so looking or listening, could have dis- 
 covered the approaching cars, you will find for the defendant. 
 
 (h) If you believe from a prei^onderanee of the evidence that the 
 said B. attempted to cross the defendant's track in front of the 
 moving cars, and that he was thereby run over and killed by the cars 
 of defendant; and if you believe that the said B., in. so attempting 
 to cross said track, was guilty of negligence as the same is herein- 
 before defined, you will find for the defendant. 
 
 (i) Gentlemen of the jury, in response to your inquiry made 
 verbally in open court, you are charged that, if you find and believe, 
 from a preponderance of the evidence, that the agents and employes 
 of the defendant were guilty of negligence in running over and kill- 
 ing the said B., and you further believe, from a preponderance of the 
 evidence, that the said B. was himself guilty of negligence in going 
 upon and being upon the track of the railroad at the time, and if you 
 believe that such negligence on the part of the said B. contributed 
 proximately to his death, then, if such you find the facts to be, the 
 plaintiff cannot recover, and should, if you so find, return a verdict 
 for the defendant railroad company.^ 
 
 § 1911. Failure of Person at Crossing to Stop, Look and Listen. 
 
 (a) If the jury believe the train was running beyond the rate of 
 eight miles an hour, that no bell was ringing or other signal given of 
 the approach of the train to the crossing, still this or any other neg- 
 ligence of the defendant did not excuse the plaintiff from his use of 
 the proper care for his own safety; he should have looked and listened 
 all the time, until he reached the crossing, and, if his failure to do 
 either was the cause of his injury, the answer to the second issue 
 should be, "Yes." 
 
 (b) When the plaintiff saw the freight cars on the siding cut off 
 
 2 — Rockford, etc., Rd. Co. v. Fletcher v. Atlantic, etc., Rd. Co., 
 Byam, 80 111. 528; Benton v. Cent. 64 Mo. 484. 
 
 Rd. Co., 42 la. 192; Cleveland, etc., 3— Lumsden v. C. R. I. & P. Ry. 
 Rd. Co. v. Elliott, 28 Ohio St. 340; Co., 31 Tex. Civ. App. 604, 73 S. W. 
 
 428.
 
 § 1912.] NEGLIGENCE— RAILROADS. 1229 
 
 his view of the main line of the defendant's road, it was his duty to 
 stop and listen carefully immediately before entering upon the cross- 
 ing of the defendant's road; and if he had failed to do so, and that 
 was the proximate cause of the injuiy, the answer to the second issue 
 should be, "Yes." 
 
 (e) If the jury believe that the defendant was ringing its bell as 
 it approached the crossing, and continued to ring it up to the cross- 
 ing, or to a point where it would have given the plaintiff Avarning of 
 the approach of the train, if he had been exercising proper care, the 
 answer to the first issue should be, "No."* 
 
 (d) If the jury believe from the evidence that ordinary care on 
 the part of B. for his own safety required him, before driving to or 
 upon the track parallel with the track ujDon which he had been driv- 
 ing, at the time and place in question, and under all the circum- 
 stances in evidence, to look and ascertain whether or not a car was 
 approaching along the north-bound track, and not to drive upon said 
 track without so looking, and if the jury believe, from the evidence, 
 that B. if he had looked, could, by the exercise of ordinary care, have 
 ascertained whether or not a ear was approaching along the said 
 north-bound track, and if the jury further believe, from the evidence, 
 that B. did not so look and ascertain whether or not the car was so 
 approaching, and that he was injured in consequence, and because of, 
 his failure, if he did so fail to look and ascertain, then the court in- 
 structs the jury to find the defendant not guilty.^ 
 
 (e) It is the duty of a person approaching a railroad crossing to 
 look and listen for approaching trains. This duty requires him to 
 look in every direction from which he knew a train might approach, 
 and continue on his guard until the danger is passed; and when, by 
 the due exercise of care in this respect, the danger could have been 
 discovered and avoided, no recovery can be had. Therefore, if you 
 find from the evidence in this case that the plaintiff's intestate, T., 
 started and went on to the crossing without looking in the direction 
 from which the train came, after he started to go across the track, 
 when, by looking he could have seen the train approaching and 
 avoided the injury, then he was guilty of contributoi-y negligence 
 which bars a recovery, and your verdict must be for the defendant.' 
 
 § 1912. Failure to Select the Best Place to Stop, Look and Listen, 
 (a) There is evidence that plaintiif stopped at the first track of the 
 D. and N. road to look and listen. If so, and he did not exercise such 
 care and diligence in the selection of the proper place to stop and 
 listen, under all the circumstances, as were reasonable, and a failure 
 to do so was the proximate cause of his injury, then you answer the 
 second issue, "Yes." 
 
 4— Norton v. N. C. R. Co., 122 N. C. & E. L R. R. Co. v. Storment, 
 
 C. 910, 29 S. E. 886 (888). 190 111, 42, 60 N. E. 104." Chicago 
 
 5— "Should have beea submitted. C. R. Co. v. O'Donnoll, 208 111. 267 
 
 Mallen v. Waldowski, 203 111. 87, (275), 70 N. E. 294 (477). 
 67 N. E. 409; C. B. & Q. R. Co. v. 6— Tiffin v. St. L. I. M. & S. Ry. 
 
 Camper, 199 111. 569, 65 N. E. 448; Co., 78 Ark. 55, 93 S. W. 564 (566).
 
 1230 FORMS OF INSTRUCTIONS. [§ 1913. 
 
 (b) If, however, you find that this was not the best place to have 
 stopped, but that if a better place had been selected, and by reason of 
 defendant's failure to ring the bell or blow the whistle and the ob- 
 struction of the box cars plaintiff could not have seen or heard from 
 such better position, and such negligence of the defendants, if you 
 find that there was such, was the proximate cause oi the injury to the 
 plaintiff, you should answer the second issue, '^No. "^ 
 
 § 1913. Evidence of Constant Habit to Stop, Look and Listen. 
 Evidence has been submitted here that it has been the constant habit 
 of C. for many years to stop or check his horse on approaching the W. 
 crossing, and look and listen for approaching ti'ains. The reason for ad- 
 mitting such evidence in this class of cases is that a man is apt to 
 do by force of habit that which it is his fixed and constant practice to 
 do under the same circumstances. You are to consider C. 's habit of 
 looking and listening at this crossing only as having some tendency to 
 show that he checked his horse, looked and listened on the night of 
 the accident as usual. Upon all the evidence whether he did or not 
 act that night according to his habit is for you to say.^ 
 
 § 1914. When Duty to Look and Listen is Excused. It is the duty 
 of one approaching a known railway crossing to look along the line 
 of the railroad track, and see if any train is approaching, and if he 
 fails to take this precaution, and goes on the track, this, under ordi- 
 nary circumstances, would be negligence. If, however, in this case, 
 you shall find from the evidence that the deceased was thrown off his 
 guard and induced to refrain from taking this precaution, by seeing 
 the defendant's engine pass the crossing immediately before he 
 stepped upon the railroad track, I will submit to you the question 
 •whether or not, under all the circumstances then surrounding the de- 
 ceased, he was guilty of negligence.^ 
 
 "It has been repeatedly held by must take such precaution as could 
 
 this court that it is negligence for reasonably be expected of an ordi- 
 
 one approaching a railroad crossing narily prudent person under like 
 
 to fail to look and listen for the circumstances. It is upon this 
 
 approach of trains, and that only reason that the requirement to look 
 
 in exceptional cases is it proper and listen is based. So far as the 
 
 to submit to the jury the question precaution would be useless it is 
 
 whether or not the failure to exer- not required. Whether reasonable 
 
 cise such caution is negligence. L. caution was exercised by the in- 
 
 R. & Ft. S. Ry. Co. v. Blewitt, 65 testate in approaching depended 
 
 Ark. 235, 45 S. W. 548; St. L. & S. upon the nature and extent of his 
 
 F. R. R. Co. V. Crabtree, 69 Ark. knowledge of facts, and his op- 
 
 Vjo, 62 S. W. 64; St. L. I. M. & S. portunity for knowledge. He was 
 
 Ry. Co. V. Hitt, 76 Ark. 224, 88 S. required to act like an ordinarily 
 
 W. 911." prudent man. A prudent man's at- 
 
 7 — Norton v. N. C. R. Co., 122 N. tcntion may be diverted so that he 
 
 C. 910, 29 S. E. 886 (890). will fail to look and listen, and the 
 
 8 — Smith V. Boston & M. R. R., evidence may be such as to make 
 
 70 N. H. 53, 47 Atl. 290 (291), 85 Am. it proper to leave to the jury the 
 
 St. 596. question whether it was negligence 
 
 9 — Chicago & K. I. R. Co. v. for him to so fail. There may be 
 
 Hedges, 105 Ind. 398, 7 N. E. 801 circumstances w'hich excuse the 
 
 (804). taking of the usually necessary 
 
 "A person thus about to cross a precaution of looking and listening. 
 
 railroad, to be free from negligence, See Peuu. Co. v. Rudel, 100 111. 603;
 
 § 1915.] NEGLIGENCE— RAILROADS. 1231 
 
 § 1915. Crossing Track Swiftly on Bicycle without Looking and 
 Listening. If you believe from the evidence that the said engine ajj- 
 proached said crossing without blowing a whistle for said crossing 
 or ringing its bell, and if the gong at said crossing failed to ring, and 
 that such conduct was negligence on the part of the railroad com- 
 pany, and further believe that the said F. came out of the cut, towards 
 the crossing, at a fast rate of speed, on a bicycle, that he did not look 
 nor listen, and that the said bicycle and the said locomotive came into 
 a collision at said crossing, then the said F. was guilty of such con- 
 tributory negligence as to prevent recovery, and a verdict must be 
 found for the defendant receivers, unless after the defendant saw or 
 could, by the use of ordinary care, have seen his peril, they could 
 afterwards, by the use of ordinaiy care have prevented the accident.^" 
 
 § 1916. Crossing in Covered Milk Wagon. The court instructs the 
 jury that it is the duty of a person approaching a railway crossing 
 to look along the line of the railroad to see if a train is coming, or to 
 listen, or to use any other reasonable means of informing himself of 
 an approaching train, before going on such crossing, and if the jury 
 believe, from the evidence in this case, that the deceased, approached 
 the crossing in question in this case in a covered milk wagon, which 
 had the sides thereof closed, and that he did not look or listen for the 
 approaching train, and that if he had looked or listened for the ap- 
 proach of said train he might have seen or heard said train before 
 driving or going on said crossing, and that in so doing he failed to 
 exercise ordinary care to avoid the injury which he received, then the 
 plaintiff cannot recover, even though the jury may further believe, 
 from the evidence, that the defendant's servants or employes failed to 
 ring the bell or sound the whistle as required by law, and were running 
 said train at a greater rate of speed than ten miles an hour.^^ 
 
 § 1917. Looking Out of Glass at Back of Buggy Only — Contribu- 
 tory Negligence Defined, (a) If you find that Mr. P. did all that 
 the ordinarily careful and pi'udent man would do under like cir- 
 cumstances, and with his knowledge of this crossing, and of the 
 trains passing over it, in api^i'oaching this crossing, to ascertain if 
 any train was coming on this track, then and in that ease he is not 
 guilty of contributory negligence, and so far as that question is con- 
 cerned, plaintiffs would be entitled to recover. 
 
 Laverenz v. Chicago, etc., R. Co., or not. See Penn. R. Co. v. Ogier. 
 
 6 Amer. & Eng. R. Cas. 274; Phila- 35 Pa. St. 60 (71). 
 delphia, etc., R. Co. v. Troutman, It would be a hard rule to im- 
 
 Id. 117; Smedis v. Brooklyn, etc., R. pute to the injured person as his 
 
 Co., 88 N. Y. 13. negligence a want of vigilance 
 
 In Ind., etc., R. Co. v. McLin, 82 which could be said to have been 
 
 Ind. 435, 452, it was said that while produced by the defendant's negli- 
 
 it was true that the failure of a gence. Negligence cannot be im- 
 
 railroad company to give warning puted to one who is deceived by 
 
 does not relieve a person about to appearances calculated to deceive 
 
 cross the track from exercising an ordinarily prudent man." 
 care to avoid injury, yet the ab- 10 — Kimball v. Friend's Adm'x, 
 
 sence of such warning is a circum- 95 Va. 125, 27 S. E. 901 (902). 
 stance to be taken into considera- 11— Terre H. & I. R. Co. v. Voel- 
 
 tion in determining whether he did ker, 129 III. 540 (550), 22 N. E. 20. 
 exercise the degree of care required
 
 1232 FORMS OF INSTRUCTIONS. [§ 1917. 
 
 (b) Contributory negligence in the law may be defined as an act 
 by the injured person which an ordinarily prudent man would not 
 have done under the same circumstances, or the omission to do that 
 which an ordinarily careful and prudent man would have done under 
 the circumstances and which act or acts directly aid in causing or 
 contributing to the injury received. If the mind of an ordinarily pru- 
 dent man would be impressed with the belief of danger, under the 
 circumstances existing and surrounding him at the time of the in- 
 jury, he has no riglit to incur the danger. But, on the other hand, 
 if the mind of an ordinarily prudent man would not be impressed with 
 the belief of danger by the circumstances surrounding and existing at 
 the time of the injury, he is not guilty of contributory negligence. 
 
 (c) Therefore you will understand that it is a very important 
 question in this case for you to determine whether or not the de- 
 ceased, P., was exercising the care and caution which he should have 
 exercised as he approached this track, for unless it be shown that he 
 gave proper attention — that is exercising due and proper care in the 
 question of whether there was an approaching train — then he can- 
 not recover; and if the train was easily to be seen, had he stopped 
 and looked for it, or had looked attentively enough without stopping, 
 and the approaching train would have been seen by him if he had 
 used due care and caution and given proper attention, then he was 
 guilty of such a degree of negligence as would prevent a recovery in 
 this case. 
 
 (d) There is no particular act necessary to be found en which to 
 base contributory negligence. It may exist in a variety of ways. It 
 may be inferred from the failure of the plaintiff or decedent to stop 
 his horse or to look in the direction of the approaching train, or a 
 failure to hear the approaching train because of the noise of the 
 buggy, or any other noise, if you find there was any, or by being 
 occupied in conversation with his companion, and various other things 
 which may occur may be considered as contributory negligence. Any- 
 thing in the way of inattention to the approaching train, which in the 
 mind of the jury contributed to the injury of the deceased, and the 
 injury would not have occurred, had it not been for such inattention, 
 is contributory negligence. The attention which is required of Mr. P. 
 is the same attention and observation that is used and exorcised by an 
 ordinarily careful and prudent man under the same circumstances. 
 
 (e) You are also instructed that the plaintiffs are not entitled to 
 recover in this case simply because there was an accident which re- 
 sulted in the death of Mr. P. for whom the plaintiffs claim to act as 
 administrators. The fact that Mr. P. was killed at this crossing is 
 of itself no evidence whatever of any negligence on the part of de- 
 fendant, or of any liability on its part to respond in damages. While 
 it is true that simply because an accident liad occurred, negligence is 
 not to be presumed, still in determining the question of negligence, 
 the fact that an accident has occurred may and should be taken into
 
 § 1918.] NEGLIGENCE— RAILROADS. 1233 
 
 consideration in connection with all the other facts and circumstances 
 in the case for the purpose of determining whether in fact there was 
 negligence; and if you find fi'om the evidence that when Mr. P. and 
 his companion Mr. W. had reached a point in the highway which was 
 somewhere in the neighborhood of fifty feet or six or seven rods from 
 the track, as estimated by various witnesses, he stopped his horse and 
 looked and listened for the train, then started up again, and as he 
 started, Mr. W. looked out of the glass at the back of the buggy, 
 where he could only see a few rods of the track and the parties then 
 passed onto the track without any further looking in the direction of 
 the approaching train, or any further attempt to find whether there 
 was an approaching train, then such acts constituted contributory neg- 
 ligence, and plaintiffs could not recover.^- 
 
 § 1918. When Contributory Negligence Cannot Be Imputed from 
 Fact That Gates Were Down. The juiy are instructed that if you 
 believe from the evidence that the gates at the crossing where the 
 deceased received his injury were generally kept down at night from 
 10:30 or 11 o'clock until the early morning, without regard to the ap- 
 proach or presence of a car, a train, or trains or locomotives, and 
 shall further conclude from all the facts and circumstances of the 
 case that the deceased had knowledge of that fact, then the circum- 
 stance that the gates at the intersection of S. street were down at the 
 time of the accident was not of itself a warning to him of the presence 
 of danger, and contributory negligence cannot be imputed to him from 
 that fact alone. ^^ 
 
 § 1919. Attempting to Drive Upon Track Although View Ob- 
 structed — Looking and Listening, (a) If the jury believe, from the 
 evidence, that as the plaintiff drove upon the railroad of the defend- 
 ant his view of the approaching train was obsti'ucted, that he had 
 knowledge of such obstruction while attempting to drive upon the 
 railroad, and that he drove upon the railroad without taking all rea- 
 sonable precautions to ascertain whether or not a train was approach- 
 ing, and if the jury believe, from the evidence, that in the manner in 
 which he approached said crossing he failed to exercise ordinaiy care 
 and prudence for his own safety, then the law is that the plaintiff can- 
 not recover, and the jury must find the defendant not guilty, inde- 
 pendently of all other questions in the case.^* 
 
 (b) Befoi'e attempting to cross the track, the plaintiff was bound 
 to look and listen, and if by looking and listening he might have 
 seen and heard the train in time to avoid being struck he cannot re- 
 cover. 
 
 12 — These instructions approved 14 — Wabash R. Co. v. Jenkins, 84 
 
 in Proper v. L. S. & M. S. Ry. Co., 111. App. 511 (513). 
 
 136 Mich. 352, 99 N. W. 283 (284). "This is the only instruction 
 
 13 — Baltimore & P. R. R. v. asked upon that particular view of 
 
 Landrigan, 191 U. S. 461 (472), 24 the case, and it is presented in 
 
 S. Ct. 137. none other. . . . The instruction 
 
 is considered proper." 
 
 78
 
 1234 FORMS OF INSTRUCTIONS. [§ 1919. 
 
 (c) That if the east-bound train obstructed his view, but it was 
 moving out of his way so that in a short space of time he would have 
 had a clear view of the west-bound train approaching, and he, with- 
 out Avaiting, and as soon as the gate was open, drove across, and in 
 consequence was injured, he was guilty of contributory negligence and 
 cannot recover.^^ 
 
 (d) You are instructed that if you find from the evidence that the 
 deceased or his son stopped, looked, and listened before driving upon 
 the track, and further believe that by reason of the obstructions on 
 the side track — the arc light maintained by the town and the head- 
 light of the freight engine, if you believe these lights were burning — 
 could not see the headlight of the passenger train, or the reflection 
 thereof, in time to have avoided the injury, and that no signals were 
 given as defined in these instructions, and that the deceased and his 
 son took such precautions as would have enabled them to have seen 
 or heard the train if such signals had been given, you may find for 
 the plaintiff as to the issue of contributory negligence. 
 
 (e) If you believe from the evidence that the death of the de- 
 ceased was caused by the negligence of the defendant company, a re- 
 covery cannot be defeated on the ground of contributory negligence 
 unless it appears from the evidence that the deceased himself failed in 
 the exercise of ordinary prudence, and that such failure so contributed 
 to the injury that it would not have occurred if he had been without 
 fault. Contributory negligence will not be presumed, but must be 
 proven by a preponderance of the evidence. ^*^ 
 
 15 — Kane v. N. Y. N. H. & H. R. the weight of the evidence. It is 
 
 R. Co., 132 N. Y. 160, 30 N. E. 256 further urged against the first that 
 
 (257). it has singled out certain parts of 
 
 "It is well settled that a traveler the evidence in favor of the plain- 
 approaching a crossing guarded by tiff, and disregarded every item of 
 gates is not required to exercise contributory negligence, and, with- 
 the same vigilance to look and out referring to the same, in a 
 listen as when he approaches one counter statement, has said the 
 not so guarded. Rodrian v. N. Y. weight of this specific evidence is 
 N. II. & H. R. R. Co., 125 N. Y. sufficient to set aside all the evi- 
 526, 26 N. E. 741; Oldenburg v. N. Y. dence establishing contributory 
 C. & H. R. R. Co., 124 N. Y. 414, negligence. If there is evidence to 
 26 N. E. 1021; Palmer v. N. Y. C. sustain a particular theory of a 
 & H. R. Co., 112 N. Y. 234, 19 N. E. case, the court should properly in- 
 678. Under the evidence in this struct the jury as to such theory. 
 case, it was a fair question of fact Smith v. State, 50 Ark. 545, 8 S. W. 
 for the jury to determine whether 941. Instructions should declare the 
 the plaintiff, by his own negli- law as applicable to any view of 
 geiice, contributed to the accident the facts which upon the evidence 
 which ciiused the injury, and we may be taken by either of the par- 
 do not think the defendant is in a ties to the cause on trial. Luckin- 
 poBltlon to take advantage of in- bill v. State, 52 Ark. 45, 11 S. W. 
 fltructions which were perhaps too 963. Every instruction should be 
 favorable to It." hypothetical, i. e., predicated upon 
 
 16— St. Louis. I. M. & S. Ry. Co. the supposition that, if certain evi- 
 
 V. Ilitt, 76 Ark. 227, 88 S. W. 908 dence be true, then the legal conse- 
 
 (509). quence resulting therefrom is one 
 
 "The point urged agninst these way or the other. State Bank v. 
 
 InHtruftions Is that thoy displayed McCuire, 14 Ark. 530; Collins v. 
 
 to th»' Jury an <:xprcsHion of opinion Mack, 31 Ark. 684. 
 Upon the part of the court upon It is error to refuse to give a
 
 § 1920.] ■ NEGLIGENCE— RAILROADS. 1235 
 
 § 1920. Negligence to Go Forward When There is a Permanent 
 Obstruction and a Transient Noise, (a) The duty of a iDerson to 
 look and listen before crossing a railroad includes the duty to do that 
 which will make looking and listening reasonably effective. If there 
 is a permanent obstruction to sight that -will make danger invisible, 
 and a transient noise that would make it inaudible, it is negligence to 
 go forward at once from a place of safety to a possible danger. Pru- 
 dence requires delay until the transient noise has abated, and hear- 
 ing again becomes efficient for protection. You are instructed that 
 if the deceased was familiar with the G. street railroad crossing, and 
 drove towards it at a rate of speed such as he was unable to check 
 and stop his vehicle in time to escape a collision with a passing train, 
 after arriving at a point where he must have seen it if he had looked, 
 and where he could have avoided it, he was guilty of contributory 
 negligence, and the plaintiff cannot recover.^^ 
 
 (b) You are instructed that the care which is required of persons 
 driving near or approaching a railroad crossing is such care as an 
 ordinarily prudent person would use under the circumstances; and if 
 therefore you believe from the evidence that the plaintiff knew that 
 his view of defendant's track was obstructed by houses, trees, and 
 the lay of the ground, and that he further knew or by the use of ordi- 
 nary care might have known, that the team which he was driving 
 would or might become frightened at the appearance or ordinary noise 
 made by a railroad train ; and if you further believe from the evidence 
 that he knew or by the use of ordinary care might have known, that 
 the frightening of his team or near approaching with said team to a 
 railroad crossing, would result in the injury or fright to his wife in 
 her condition; and if you further believe from the evidence that the 
 plaintiff did not use that degree of care which an ordinarily prudent 
 person would have used under like circumstances; and if you further 
 believe from the evidence that the plaintiff's failure to do so caused 
 or contributed to the accident — then you will find for the defendant. ^^ 
 
 § 1921. Presumption That Party Crossing Track Stopped, Looked 
 and Listened. In the absence of all evidence tending to show whether 
 the plaintiff' 's intestate stopped, looked and listened before attempting 
 to cross the south track, the presumption would be that he did. But 
 that presumption may be rebutted by circumstantial evidence, and 
 it is a question for the juiy whether the facts and circumstances 
 
 specific instruction correctly and case which they desired drawn 
 
 clearly applying the law to the sharply to the attention of the 
 
 facts in the case, even though the jury. The court fails to find error 
 
 law, in a general way, is covered in them, and, taken together, they 
 
 by the charge given. Ry. v. Crab- consistently present the whole case, 
 
 tree. 69 Ark. 134, 62 S. W. 64. generally and specifically." 
 
 Applying these settled principles 17 — Schweinfurth v. C. C. C. & 
 
 to the instruction in question, it St. L. Ry. Co., 60 Ohio St. 215, 54 
 
 cannot he said they are open to the N. E. 89 (92). 
 
 objections urged. Each side prayed 18 — Texas M. R. Co. v. Booth, 
 
 and was granted many specific in- 35 Tex. Civ. App. 322, 80 S. W. 121 
 
 structious, covering phases of the (124).
 
 1236 FORMS OF INSTRUCTIONS. [§ 1922. 
 
 proved in this case rebut that presumption, and if they find that they 
 do, they should find that he did not stop, and look and listen, but if 
 the facts and circumstances fail to rebut such presumption, then the 
 jury should find that he did so stop and look and listen. In order 
 to justify them in finding that he did not, all the evidence tending to 
 show that should be weightier in the minds of the jury than that 
 tending to show the contrary.^^ 
 
 § 1922. Failure of Driver of Vehicle to Turn in Seat on Sounding 
 of Whistle or Ringing of Bell, (a) If the jury believe, from the 
 evidence, that the defendant's employes sounded the whistle, or rung 
 the bell of the engine for (eighty) rods before reaching the crossing, 
 and used all such ordinaiy care and diligence as is generally used 
 by careful and skillful engineers, brakemen, and employes of railroad 
 companies under like circumstances, and if the jury further believe, 
 from the evidence, that the said A. B. was sitting on his wagon, with 
 his back turned in the direction of the approaching train, so as to 
 prevent his seeing it, and that he could have seen the train in time to 
 avoid the injuiy if he had turned and looked in the direction of the 
 approaching train, then the jury must find the defendant not guilty. 
 
 (b) The court instructs the jury, as a matter of law, that it was 
 the duty of the deceased, in approaching the railroad crossing, to 
 have exercised that degree of care and prudence for his personal 
 safety, which an ordinarily prudent man would do, and if the jury 
 believe, from the evidence, that the deceased, by the exercise of that 
 degree of care and prudence, could have discovered the approaching 
 train in time to stop his team and avoid the collision, then the plaintiff 
 cannot recover, unless the jury find, from the evidence, that the injury 
 was caused by the willful conduct of the person in charge of the 
 engine, or by conduct so utterly reckless as to show an utter disre- 
 gard for the life of the deceased.-** 
 
 § 1923. Discovery of Approaching Train in Time to Avoid Going 
 on Crossing. If one sees or hears an approaching train in ample 
 time, by the exercise of ordinary care, to keep from going on the rail- 
 way track just in front of such train, it is his duty to stop before 
 entering upon such track just in front of the engine; and if he, 
 knowing of its approach, and of the dangers attendant upon his act, 
 does go on the track, and by reason of this is struck and injured, and 
 tlie jury believe that in going on such track he failed to exercise 
 ordinary care, and this failure contributed as a pi-oximate cause to 
 his injury, then he cannot recover damages of the railroad on account 
 thereof.-* 
 
 8 1924. Failure to Heed Watchman's Signal to Stop. If the jury 
 believe from tiie evidence that Watchman L , with a lighted lan- 
 tern in Ills hand, was standing in W. street, within eight or ten feet 
 
 19— P.nltlmoro & P. R. R. v. 20— C. B. & Q. R. Co. v. Lee, 68 
 LanrlilKan, 191 U. S. 461 (471), 24 111. r,7S. 
 
 8. Ct. 137. 21— Gosa v. So. Ry. Co., 67 S. 0. 
 
 347, 45 S. E. 810 (813).
 
 § 1925.] NEGLIGENCE— RAILROADS. 1237 
 
 of defendant's main track when plaintiff passed over the latter, and 
 said watchman either signaled to plaintiff or to train crew with his 
 lantern, then the plaintiff is not entitled to recover, and your verdict 
 must be for the defendant, provided you further find that plaintiff saw 
 such signal, or by the exercise of ordinary care and prudence could 
 have seen such signal, in time to have stopped the horse and buggy in 
 time to have avoided the accident or collision. ^^ 
 
 § 1925. Right of Railroad Company's Servants to Assume That 
 Driver of Vehicle Will Remain at a Safe Distance, (a) The de- 
 fendant's servants in charge of the engine which struck the deceased 
 had a right to assume that he was rational, and would exercise rea- 
 sonable care and caution to keep himself out of danger until they saw 
 something in his conduct which was inconsistent with such assump- 
 tion. And if the jurj^ believe, from the evidence, that when the per- 
 sons in charge of the engine first came in sight of the deceased, he was 
 so far removed from the track as to be free from danger of collision, 
 then they had a right to assume that he would remain at such safe 
 distance, unless thei-e was something in the circumstances calculated 
 to rebut such presumption, or until he manifested a purpose to place 
 himself in a dangerous position.-^ 
 
 (b) If a train of cars hauled by a locomotive engine upon a rail- 
 road, and a citizen traveling in a wagon upon a public highway, are 
 both api^roaehing a crossing of such highway w'ith such railroad, 
 under circumstances indicating that a collision between them is likely 
 to -occur, if they both proceed on their way without stopping, the 
 engineer in charge of such train, if he has sounded the required sig- 
 nals with the engine whistle, and is ringing the bell of the engine, has 
 a right to pi'esume that the citizen will stop before he drives upon 
 the crossing, and has a right to proceed on his way with his engine 
 and train until he discovers that the citizen does not stop, when it is 
 too late to stojD his train in time to avoid the collision, and for that 
 reason a collision occurs and injury results therefrom, the railroad 
 company would not be liable therefor. But if the engineer makes the 
 discover}^ before it is too late that the citizen does not stop, and if, 
 after making such discoveiy, the engineer could have stopped his 
 train, and did not, then, in that view of the ease, the railroad com- 
 pany would be liable for the injui-y inflicted upon the citizen by such 
 collision.-* 
 
 (c) Railway companies have a legal right to run their trains and 
 engines over their roads and over public crossings, and they are liable 
 to other persons for such damages only as result from theii- negli- 
 
 22 — ^Montgomery v. Mo. Pac. Ry. appellant was to inform the jury as 
 
 Co., 181 Mo. 508. 79 S. W. 930 (933). to what the general legal rule was. 
 
 23— C, R. I. & P. R. Co. V. Austin, in the opinion of the trial court, 
 
 69 111. 426. when a train of cars and a person 
 
 24 — B. & O. S. W. Ry. Co. v. Con- in a wagon were both approaching 
 
 oyer. 149 Ind. 524, 48 N. E. 352 (354). a public crossing, under circum- 
 
 "The evident purpose or theory stances indicating that a collision 
 
 Of the instruction asked for by the would result."
 
 1238 FORMS OF INSTRUCTIONS. [§ 1926. 
 
 gence or disregard of the rights or safety of such other persons. If 
 you believe from the evidence that at the time plaintiff drove his team 
 over defendant's railroad the engine was sixty or more feet away 
 from said public crossing, and was moving at a moderate rate of 
 speed, so that plaintiff had ample time to take his wagon and team 
 over the said railway before the said engine would reach the crossing, 
 and if you believe defendant's servants operating the said train at 
 the time acted as men of ordinary prudence would have acted under 
 the circumstances, then in that event plaintiff cannot recover dam- 
 ages in this suit, and you Avill find for the defendant.^^ 
 
 § 1926. Driving Over Tracks With Lines Hanging Loose, You are 
 
 further instructed that if you believe from the evidence that plaintiff 
 drove his team over defendant's railway at the time and place alleged 
 in the petition; and further believe that at the time, and after cross- 
 ing said railway, plaintiff permitted his lines to hang loose in such 
 manner that he had no control of his team ; and if you further believe 
 from the evidence that the act of plaintiff in so driving ^his team 
 over the said railroad at that time and place, and under the circum- 
 stances surrounding plaintiff, caused or contributed to plaintiff's 
 injuries; and if you further believe from the evidence that a man of 
 ordinary prudence would not, under the circumstances then surround- 
 ing plaintiff, have driven his team over said railroad with the lines 
 hanging loose, — then in that event plaintiff is not entitled to recover 
 in this suit, and you will find for the defendant.'*^ 
 
 § 1927. Injury Through Team Being Unmanageable, (a) To re- 
 cover damages from the defendant for the killing of W. by the defend- 
 ant's train, all the following matters must appear from the evidence: 
 First, that the defendant was negligent in some one or more of the 
 particulars complained of in plaintiff's petition; second, that such 
 negligence on defendant 's part caused the death of W. ; third, that W. 
 was not guilty of negligence on his part that contributed to the 
 injury; fourth, that the estate of W. suffered injury by reason of his 
 death. The burden rests with plaintiff to show all of said matters by 
 the greater weight or preponderance of evidence. If all of said mat- 
 ters are thus shown, the i^laintiff will be entitled to recover; but, if 
 any one or more of said matters are not thus shown by the evidence, 
 then your verdict must be for the defendant. 
 
 (b) Unless it appears from the evidence that the defendant was 
 negligent in the running and management of its train in one or more 
 of the ways complained of, as before explained, then the plaintiff can- 
 not recover; but, if such negligence is shown by the evidence, then it 
 must also appear from the evidence that such negligence on the part 
 of defendant caused the death of W. That is, it must appear from 
 tlie evidence that but for such negligence tlie accident and consequent 
 death of W. would not have occurred. If it appears from the evidence 
 
 25— St. L. S. W. Ry. Co. v. Hall, 20— St. L. S. W. Ry. Co. v. Hall, 
 98 Tex. 480. 85 S. W. 780 (789). supra.
 
 § 1928.] NEGLIGENCE— RAILROADS. 1239 
 
 that tlae defendant company was negligent in some one or more of the 
 particulars complained of, as in failure to ring the bell or blow the 
 whistle on approaching the crossing, still, if it appears from the 
 evidence that, by reason of the team driven by W. being unmanage- 
 able, the giving of said signals, or placing of a flagman at the said 
 crossing, would not have prevented the injury, then it cannot be said 
 that the failure of the defendant to give said signals, or to station 
 said flagman at the crossing, caused the injury.-'^ 
 
 § 1928. Negligence per se in Traveler, (a) The court instructs 
 the jury, as a matter of law, that it is not the exercise of ordinary 
 care and prudence for a pei'son to drive with a team directly onto a 
 railroad crossing, wdthout making an effort, by stopping or listening, 
 or otherwise, to ascertain whether a train is approaching, or whether 
 it is safe to drive onto the track with his team. 
 
 (b) The jury are instructed, that ordinary care and caution is 
 that degree of care and caution w^hich persons of common prudence 
 are accustomed to exercise for their own safety, and in this case the 
 driver was bound to use that degree of care and caution to avoid 
 injuiy; and if the jury believe, from the evidence, that by the exercise 
 of that degree of care and caution on his part, the injury complained 
 of might have been avoided, then the plaintiff cannot recover in this 
 suit. 
 
 (c) If the jury believe, from the evidence, that the driver of the 
 wagon, before he drove onto the crossing, knew that he was approach- 
 ing and about to cross the railroad track at the time in question, and 
 that by looking and listening he might have discovered the train in 
 time to have avoided the injury, and he did not make any effort by 
 looking, listening or otherwise, to ascertain whether a train was ap- 
 proaching, but drove directly onto the track as he approached it, 
 then this was such negligence on his part as will prevent a recovery 
 by the plaintiff in this suit.-^ 
 
 § 1929. Conduct in Presence of Sudden Danger, (a) The jury 
 are instructed that in the face of sudden, unexpected and deadly 
 danger, a person is not expected or required to be cool and collected, 
 and to act with perfect prudence and deliberate judgment; in such 
 ease he is only required to use such degree of prudence and judgment 
 as ordinarily careful and prudent men would be likely to exercise 
 under the same or similar circumstance. And if the juiy believe, 
 from the evidence, that the deceased used ordinary care and pi'udence 
 to avoid accident in approaching the crossing, and that when he 
 became aware of his danger, he used such care as men of ordinary 
 prudence under like circumstances would be likely to use to avoid or 
 escape injury, then his negligence did not contribute to the injury.^^ 
 
 27— Pratt v. C. R. I. & P. Ry. Co., v. Elliott, 28 Ohio St. 340, Penn Co. 
 
 107 la. 287, 77 N. W. 106-1 (1066). v. Rathgab, 32 Ohio St. 66. 
 
 "We think the instructions were 29— Ind. & St. L. R. Co. v. Stout, 
 
 sufficiently full and explicit." 53 Ind. 143; C. & N. E. Ry. Co. v. 
 
 28— Cleveland, C, C. & I. Ry. Co. Miller, 46 Mich. 532, 9 N. W. 841.
 
 1240 FORMS OF INSTRUCTIONS. [§ 1930. 
 
 (b) If the juiy believe, from the evidence, that at the time oi 
 the accident in question, the plaintiff was seated in his wagon near 
 the track of defendant's road (or as the case may be) and that the 
 servants or agents of defendant were guilty of negligence in, etc., and 
 that the plaintiff was thereby put in great danger of life or limb, or 
 had reasonable ground to believe, and did believe, that he was thereby 
 put in such danger, and that it was necessary to leap from his wagon 
 in order to avoid the threatened danger, and that in consequence of 
 such belief he did jump from his wagon, and thereby caused the 
 injury complained of, when, if he had remained in the wagon he would 
 have sustained no injury, this alone would not deprive him of the 
 right to recover in this suit, provided you find from the evidence, 
 under the instruction of the court, that the defendant is otherwise 
 guilty and the plaintiff otherwise entitled to recover.^" 
 
 § 1930. Jury May Consider Surrounding Circumstances. The de- 
 fendant in its answer denies the allegations of the complaint and 
 alleges that the plaintiff was also guilty of negligence that contributed 
 to the injury, and it is for the gentlemen of the jury, in the light of 
 all the evidence, after carefully considering it, to determine, first, 
 whether the defendant was guilty of the negligence described in the 
 complaint; second, if you should find that defendant was guilty of 
 the negligence described in the complaint, it is then your duty to con- 
 sider and determine whether the plaintiff' himself was guilty of negli- 
 gence that contributed to fhe injury. In determining the question of 
 negligence, both on the part of the plaintiff and defendant, you should 
 consider all the circumstances under which the defendant caused the 
 acts to be performed, as alleged in the complaint, and under which 
 its agents or servants failed to act, if you find they did fail in such 
 respect. You have a right to take into consideration the conditions 
 surrounding the injury, the situation of the parties, the location of 
 both the railroad tracks and the wagon road, if j'ou believe there was 
 a wagon road from the evidence, and their location with respect to 
 each other, and the fact that the plaintiff was hauling ore, if you 
 believe that he was (as to that, I presume, there is no dispute). You 
 have a right to take into consideration the ears of the defendant and 
 their situation and location upon the ore track. You have a right to 
 take into consideration the crossing, as to whether the defendant 
 placed the crossing there for the plaintiff and others to travel over 
 and upon the wagonway, if you believe there was a wagonway on 
 which persons usually travelled, and that the plaintiff at the time of 
 the injury was travelling upon the wagonway. You have a right to 
 take into consideration that the train of cars, one of which struck 
 plaintiff's wagon (as to that, I presume, there is no dispute) — you 
 have a right to take into consideration the fact that it came down 
 grade without an engine attached to it, and then passed up a slight 
 grade at the time it struck the plaintiff's wagon, if you believe 
 
 30— Dyer v. Erie R. Co., 71 N. T. 496; Schultz v. Chicago, etc., R. Co., 
 228; Roll v. N. Cent. R. Co., 16 Hun 44 Wis. 638.
 
 § 1931.] NEGLIGENCE— RAILROADS. 1211 
 
 from the evidence that it did so pass down and up. It is your duty 
 to take into consideration all of the evidence bearing upon the ques- 
 tion of negligence, and, in the light of it all, you must determine 
 whether the defendant was guilty of the negligence charged or whether 
 the plaintiff was guilty of negligence contributing to the injury.^^ 
 
 § 1931. Imputed Negligence — Parent and Child, (a) The court 
 instructs the jury that it was the duty of the plaintiffs, in the care 
 and custody of their son, to have exercised such degree of care and 
 prudence, in keeping him off defendant's railroad track and out of 
 danger, which was reasonable and prudent under like circumstances, 
 as shown by the evidence, and a failure to exercise such a degree of 
 care and prudence would render plaintiffs guilty of negligence. 
 
 (b) If, therefore, the jui-y believe from the evidence that S., ou 
 
 the day of , , was the unmarried son of plaintiffs, 
 
 and that on said day he was walking eastwardly on defendant's rail- 
 road track between N. and L. avenues, in the city of St. L., and that 
 while so walking he was run over and killed by defendant's east- 
 bound engine and train of cars in charge of defendant's servants, 
 then your verdict should be for the plaintiffs, provided you further 
 believe from the evidence that the injury complained of occurred 
 while plaintiffs were exercising that degree of care as to the care and 
 custody of their son, as that term is explained in instruction No. 4 (a) 
 and while the said S. was himself exercising that degree of care and 
 prudence for his own safety that an ordinarily careful and prudent 
 person, of his age and intelligence, under like circumstances, would 
 have exercised, and provided that you further believe fi'om the evi- 
 dence that the injuiy was caused by the negligence of the defendant's 
 servants, as the term "negligence" is explained in either the first or 
 second of the foregoing instructions.^^ 
 
 (c) The court instructs the jury that, by the laws of this state, 
 eveiy railroad comjjany is required to have a bell of at least thirty 
 pounds weight and a steam whistle placed and kept on each locomo- 
 tive engine, and to cause the bell to be rung or the whistle to be 
 sounded by the engineer or fireman at the distance of at least eighty 
 rods from the place where the railroad crosses any public highway, 
 and shall keep the same ringing or whistling until such highway is 
 reached. And in this case, if the jury believe, from the evidence, that 
 the defendant's servants in charge of the engine in question omitted 
 to ring a bell or to sound a whistle as required by law until the 
 highway crossing at which said child was killed was reached (if the 
 jury believe, from the evidence, said child was killed at a highway 
 crossing as alleged), such omission constitutes o. prima facie case of 
 negligence on the part of the defendant. And if the jury further 
 believe, from the evidence, that such negligence was the proximate 
 cause of the injuiy complained of, and that the parents of said child 
 were at the time exercising such care and foresight over his person 
 
 31— Rio Grande W. R. v. Leak, 32— Schmitt v. Mo. Pac. Ry. Co., 
 163 U. S. 280 (282), 16 S. tt. 1020. 160 Mo. 43, 60 S. W. 1043,
 
 1242 FORMS OF INSTRUCTIONS. [§ 1932. 
 
 as ordinarily careful and judicious persons would have exercised 
 under like circumstances, and that said child, being on said highway, 
 was run over and killed, as charged in the declaration, in consequence 
 of the failure to so ring the bell or sound the whistle, then the jury 
 should find for the plain tiff. ^^ 
 
 § 1932. When Negligence of Driver of Plaintiff's Vehicle in Cross- 
 ing Track Will Prevent Recovery, (a) According to the admitted 
 facts in this case, the plaintiff (or deceased), at the time of the acci- 
 dent, was being driven across the railroad track by one E., in a lumber 
 wagon, and you are insti-ueted by the court, if you believe, from the 
 evidence, that there was any negligence on the part of the driver of 
 the wagon, which contributed to the injury in question, then that neg- 
 ligence has the same effect on the plaintiff's right to recover as if the 
 negligence had been that of the plaintiff (or deceased) himself.^* 
 
 (b) If the jury believe, from the evidence, that the driver of the 
 wagon was employed by the plaintiff to drive, etc., and that there was 
 negligence on the part both of the defendant and of the driver, which 
 contributed directly to the accident, then the jury have no right to 
 strike a balance between them, so as to find a verdict for the plaintiff, 
 but in such case the jury should find a verdict for the defendant. 
 
 (c) If you believe, from the evidence, that the defendant was 
 guilty of negligence or a want of ordinary care and skill in the con- 
 struction of its track at the road crossing in question, and that the 
 plaintiff was injured thereby in attempting to cross the track, and 
 that he was not himself guilty of any negligence that contributed 
 directly to such injury, and that such injury caused his death, then 
 your verdict should be for the plaintiff.^^ 
 
 (d) The jury are instructed, that the defendant had a right to 
 build its road across the highway described in the complaint, but, in 
 doing so, it was required to restore the highway to its former state of 
 usefulness, so far as it was reasonably practicable, and so as not un- 
 necessarily to impair the usefulness of the highway or render it un- 
 necessarily dangerous in crossing. But whether, in this case, the de- 
 
 33— C. & A. R. R. Co. V. Logue, ticular time of the injury and 
 
 158 111. 621 (628), aff'g 58 111. App. tended to call their attention to 
 
 142, 42 N. E. 53. the approach of the train. It is not 
 
 "The child in this case was about alone a question whether the child 
 twenty-one months old. The con- could have appreciated or known 
 tention is that a child of tender of the danger, but whether by giv- 
 years, as in this case, could not ex- ing the signals the injury might 
 erclse discretion or intelligence in have been avoided by increased 
 caring ffir itself, and the giving of vigilance on the part of the par- 
 the signals could not have affected ents, who would thereby have been 
 the question of the injuries, as able to prevent the accident by res- 
 doing so would not have caused cuing the child. Under the particu- 
 the child to exercise care for its lar facts of the case, we are of 
 own safety. It was requisite that opinion it was not error to give this 
 parents should exercise reasonable instruction." 
 
 care and c.iution in caring for the 34 — I^. S. & M. S. Rd. Co. v. Mil- 
 child, find the giving of the signals ler, 25 Mich. 274. 
 
 requln-d by the statute might have 35— Ind. & St. L. Rd. Co. v. Stout, 
 
 caused a greater degree of watch- 53 lud. 143. 
 
 fulness on their part at th*^ oar- ♦
 
 § 1933.] NEGLIGENCE— RAILROADS. 1243 
 
 fendant was guilty of a want of ordinary care and skill, etc., arc 
 questions of fact to be determined by the jury from all the evidence in 
 the case. 
 
 (e) If 3'ou believe from the evidence, that the driver of the team 
 was guilty of any degi-ee of negligence, which contributed directly 
 to the injury, then the jury should find for the defendant, even though 
 you believe, from the evidence, that the negligence of the defendant, 
 in some measure, caused the injury complained of. 
 
 (f) Although the jury may believe, from the evidence, that at the 
 time of the injury complained of, the plaintiff was riding in a wagon 
 driven by one A. B., and that the said A. B., as such driver, was 
 guilty of negligence which contributed directly to the injury com- 
 plained of, still, if the jury further believe, from the evidence, that 
 the plaintiff was merely riding for pleasure with the said A. B., and 
 upon his invitation, and that the plaintiff had no right nor authority 
 to control the movements of the said horses and wagon or their driver, 
 and did not exercise any such control, then the contributory negli- 
 gence of the driver would not prevent a recovery by the plaintiff in 
 this suit, provided the jury further believe, from the evidence, that 
 the defendant was guilty of negligence, as charged in the declaration, 
 and that the plaintiff was injured thereby, and also, that the plaintiff 
 was not himself guilty of any negligence which contributed to the 
 injuiy.^^ 
 
 § 1933. Proof of Death at Crossing Must Correspond with Plain- 
 tiff's Allegation That It Occurred There, (a) The court instructs 
 the juiy that it is your duty to determine from the evidence where 
 the deceased was when he was strack. The plaintiff alleges that the 
 deceased was struck at S. street while he was passing along S. street 
 over and across the railroad tracks, and this is denied by the defend- 
 ant company. Unless from the evidence you believe that deceased 
 was struck by the engine of the defendant while passing along S. 
 street over and across the railroad ti"acks, you must find the de- 
 fendant not guilty, — or, in other words, if from the evidence you be- 
 lieve that the deceased was struck and killed by an engine of the 
 defendant, and further believe from the evidence that deceased, when 
 he was struck by such engine, was not passing along S. street but was 
 on the railroad track several hundred feet from S. street, then you 
 must find that the evidence does not support the allegation of plain- 
 tiff that deceased was struck while passing along S. street, and that 
 unless you find that that allegation has been proved, you must find the 
 defendant not guilty.^'' 
 
 36 — Dyer v. Erie Rd. Co., 71 N. Y. clearly the law applicable to such 
 
 228. theory, and directed the jury in a 
 
 37 — B. & O. R. R. Co. v. Stanley, plain strong statement of the law 
 
 158 111. 396 (400), aff' g 54 111. App. that the plaintiff could not recover 
 
 215, 41 N. E. 1012. at all unless it was shown that it 
 
 "The instruction given by the was at the public crossing where 
 
 court embodied the theory upon plaintiff's intestate was struck by 
 
 which the plaintiff claimed a right defendant's train." 
 of recovery, and announced very
 
 1244 FORMS OF INSTRUCTIONS. [§ 1934. 
 
 (b) You are instructed that it is the duty of the defendant com- 
 pany to exercise ordinary care in operating its cars to prevent injury 
 to persons at places used as crossings by the public over its tracks; 
 
 and if you believe from the evidence that on or about the day of 
 
 , , the plaintiff, E., was crossing on foot the track of 
 
 defendant at or near a point where P. avenue intersects S. street, in 
 the city of , Texas; and if you further believe from the evi- 
 dence that the said P. street, at the place where it crosses said track, 
 was used by the public as a crossing; and if you further believe from 
 the evidence that, while the plaintiff was crossing the said track at 
 said point, defendant's employes pushed one of its flat cars forward 
 upon its track, in an easterly direction, upon and over a part of the 
 right foot of the plaintiff, E., as set forth in plaintiff's petition; and 
 if you find from the evidence that the plaintiff received the injuries as 
 described in said petition; and if you further find from all the facts 
 and circumstances in evidence that the collision, if any, between the 
 plaintiff and the said car was caused by negligence of the defendant, 
 and that such negligence, if any, was the proximate cause of the said 
 injuries, if any, of the plaintiff, — then you are instructed to find for 
 the plaintiff, unless you find that the plaintiff himself was guilty of 
 negligence which contributed to cause his injuries, if any. On the 
 other hand, if you do not believe that the defendant was guilty of 
 negligence proximately causing plaintiff's injuries, if any, or if you 
 believe from the evidence that the plaintiff was injured on defendant's 
 track in its private yard, at a place other than the crossing at P. 
 street, above referred to, or if you believe the plaintiff was guilty of 
 negligence himself that contributed to or caused his injuries, then, in 
 either of these events, you should find for the defendants.^* 
 
 VIOLATION OF ORDINANCES. 
 
 § 1934. Negligence May Be Inferred From Injury at Crossing. It 
 
 is a question of fact for you to say, under the evidence in this ease, 
 whether or not the defendant has violated the provisions of the ordi- 
 nance giving it a right of way through certain streets of the city of 
 C, or in fact of any of the ordinances that have been introduced in 
 evidence. I charge you, however, that if you find from the evidence 
 that any of the provisions of the city ordinances have been violated, 
 and that the injury complained of resulted from such violation, then 
 such violation is a circumstance from which negligence may be in- 
 ferred."'" 
 
 § 1935. Fact That Deceased Was Killed by Cars of Defendant In- 
 sufficient, Standing Alone, to Justify Verdict for Plaintiff. The court 
 instructs the jury that it is not enough to justify the jury in finding 
 
 3«— O. H. & S. A. Ry. Co. v. Kief, 39— Brasington v. So. B. R. Co., 62 
 — Tex. Civ. App. — , 58 S. W. 625 S. C. 325, 40 S. E. 665 (668), 89 Am. 
 (626). St. 905.
 
 § 1936.] NEGLIGENCE— RAILROADS. 1245 
 
 a verdict for the plaintiff that it shall appear from the evidence that 
 deceased was killed by cars of the defendant, or that, looking at the 
 facts and surroundings in evidence after the accident, it can now be 
 seen that something not done by the defendant's servants at the time 
 might have avoided the injury. But if the jury believe from all the 
 evidence in the case that defendant's servants at the time of the acci- 
 dent used due and ordinary care in the operation of defendant's 
 train under the circumstances, then the verdict must be for the de- 
 fendant.^o 
 
 § 1936. When No Eye Witness to Killing of Person by Railroad 
 Train Presumption of Due Care by Deceased Usually Exists. You 
 are instructed that, where there are no eye-witnesses to the accidental 
 killing of a person by a railroad train, the presumption is, in the ab- 
 sence of other evidence and circumstances to the contrary, that the 
 deceased was exercising due care, but this presumption is not con- 
 clusive, and may be rebutted by evidence to the contrary; and if you 
 then find, taking into consideration the location of the highway with 
 reference to said crossing, and the distance fi'om said crossing on said 
 highway, from which said approaching train could have been seen, 
 and taking into consideration all other circumstances surrounding said 
 injury, as disclosed by the evidence in this case, you should find that 
 plaintiff's intestate could not have been at or immediately prior to 
 said accident in the exercise of reasonable care on his part, or you 
 find that by the exercise and use of his senses of seeing and hearing 
 he could have discovered the approaching train in time to have avoided 
 injury thereby, with the exercise of reasonable care on his part, then 
 said presumption as to due care is not to be given any weight by you, 
 and, unless there is other evidence from which you can find that 
 plaintiff's intestate did not contribute to said injury by his own negli- 
 gence, then your verdict should be for the defendant.*^ 
 
 § 1937. Railroad Company's Duty in Crossing Tracks of Another 
 Railroad. A railroad corporation must exercise ordinary care when 
 approaching a crossing of another railroad, and, when means are not 
 provided by which a collision at a railroad crossing is rendered im- 
 possible, the rule to stop, look and listen is not less imperative on a 
 train approaching such crossing than ujDon a traveler about to ap- 
 proach a railroad crossing, who must stop, look and listen for ap- 
 proaching trains before entering upon such crossing.*^ 
 
 40— C. & A. R. R. Co. V. Ander- spies, — Ind. App. — , 76 N. E. 1015 
 
 son, 67 111. App. 386 (388), aff* d 166 (1019). 
 
 111. 572, 46 N. E. 1125. "The objection urged to this in- 
 
 41 — Rietveld v. Wabash R. Co., struction is that it told the jury in 
 
 129 la. 249, 105 N. W. 515 (516). substance, that a railroad com- 
 
 "This, or something conveying pany, in backing its train over the 
 
 the same thought, should have been crossing of another railroad com- 
 
 given. See Amos v. Transit Co., 120 pany, was required to observe the 
 
 la. 640, 95 N. W. 161; Beem v. I. & same care that a traveler about 
 
 T. El. R. R. Co., 104 la. 563, 73 N. to approach a railroad crossing 
 
 W. 1045." must before crossing over the road. 
 
 42— B. «& O. S. W. R. Co. V. Klee- As applied to the facts in this case,
 
 1246 FORMS OF INSTRUCTIONS. [§ 1938. 
 
 § 1938. Liability of Railroad and Street Car Companies for Repair 
 of Tracks at Crossing. (a) If the jury believe from the evidence that 
 both the railroad company and street car line so negligently main- 
 tained their tracks and crossing, as charged in the declaration, that 
 the engine upon which G. was riding was caused to rock or sway, 
 and thereby to project the foot-board of said engine against some 
 obstruction, and if the jury further believe from the evidence that the 
 said negligence of said defendants, if they were negligent, was the 
 sole proximate cause of the injury to G., and that said G. at the time 
 of the accident exercised ordinary care for his own safety, then the 
 jury should find the defendant street ear line and the railroad com- 
 pany guilty and the City Railway Company not guilty. The word 
 "proximate" used in this instruction means closely connected with 
 the injury in the order of events ">and so connected with the injury but 
 that for the negligence of street ear line and the railroad company, if 
 they were negligent, the injury would not have happened. 
 
 (b) The court instructs the jury that the law did not impose 
 solely upon the defendant Chi. C. Ry. Co. the duty of maintaining the 
 crossing of the Chi. C. Ry. Co. and the Chi. J. R. Co., but the law 
 required the Chi. J. R. R. Co., as well as the Chi. C. Ry. Co., to 
 exercise ordinary care to see that said crossing was reasonably safe; 
 and if the jury further believe from the evidence that the City Ry. Co. 
 did exercise ordinary care in repairing and maintaining the said cross- 
 ing in a reasonably safe condition, and that the Chi. J. R. R. Co. did 
 not exercise ordinary care to rej^air or maintain in a reasonably safe 
 condition its tracks, then the jury must find the defendant Chi. C. Ry. 
 Co. not guilty, and if the juiy further believe from the evidence that 
 the proximate cause of the injury to G. was said failure on the part 
 of the Chi. J. R. R. Co. to repair or maintain its track, if there was 
 such a failure on its part, and that G. exercised ordinary care for his 
 own safety, then the jury must find the defendant Chi. J. R. R. Co. 
 guilty. "3 
 
 we do not think the instruction is see no reason why those who put it 
 wrong. If it is subject to criticism, in jeopardy, whether it be a rail- 
 It is because it is not as drastic as road corporation or not, should not 
 it might be. In it the court told the be charged with the exercise of the 
 jury that a railroad com.pany 'must highest degree of care, so as to 
 exercise ordinary care when ap- avert danger to life. In this case 
 proaching the crossing of another where the signals given to both 
 railroad," etc. We think the court companies by their servant gave 
 would have been justified in say- to the Pennsylvania Company the 
 Ing to the jury that it was the duty right to pass over the crossing, it 
 of such railroad company to ex- was the duty of the appellant in 
 ercise the highest degree of care the face of such signal, to refrain 
 under the circumstanees. The facts from undertaking to back its train 
 here show thut this railroad cross- over the crossing while the Penn- 
 ing was dangerous and unsafe, sylvania train was passing, and 
 The evidence does not show that the degree of care it was required 
 an Interlocking switch was main- to exercise was not too strongly 
 tained, whereby accidents of this stated in the instruction." 
 character might have been averted. 43 — Brccher v. Cliicago J. R. Co., 
 Where human life Is at stake, we 119 111. App. 555.
 
 § 1939.] NEGLIGENCE— RAILROADSo 1247 
 
 DUTY TOWARD SHIPPERS AND CONSIGNEES. 
 
 § 1939. Duty Toward Shipper Loading Cars, (a) If you believe, 
 from the preponderance of the evidence, that plaintiff had car fur- 
 nished him by defendant to be loaded with hogs for shipment over 
 defendant 's road, and at time of alleged injury in first count, plaintiff 
 was loading or fastening said car, it became the duty of defendant 
 to exercise due care to prevent doing personal injury to plaintiff 
 while engaged in loading car; and if you believe, from a preponder- 
 ance of evidence, at time of injury, plaintiff was rightfully in car, in 
 exercise of due care and caution for his safety, such as a reasonably 
 prudent man would exercise under like circumstances, and that de- 
 fendant, by its employes, negligently or willfully ran an engine against 
 said car upon which plaintiff' was, thereby knocking him off, and in- 
 jured him, then your verdict should be for plaintiff in such sum as, 
 from all the evidence, you believe he is entitled to receive.** 
 
 (b) When a railroad company puts unloaded cars upon the side 
 track for the purpose of being loaded by the owners of the freight, 
 and such owners, their agents or servants, with the expi'ess or im- 
 plied consent of the company, proceed to load the car, the company in 
 such case has no right, without reasonable notice or warning, to run 
 or back a train upon the side track while the cars are being loaded. 
 And while in such case those engaged in the work of loading are not 
 permitted to close their eyes or ears to what comes within the range of 
 their senses, yet they may give their undivided attention to their work, 
 and they are justified in assuming that the company will not molest 
 them or render their jDosition hazardous without such notice or 
 warning.*^ 
 
 § 1940. Liability for Injury to Consignee While Unloading Car. 
 
 (a) If an agent of defendant at P., with authority to direct or pro- 
 vide for the unloading of the car, knew in time to notify the train- 
 men before the engine went upon the side ti'ack that plaintiff was 
 taking the corn from the car when the engine was run upon the side 
 track, and in such position that he might probably be injured by the 
 running of the engine against the car, it became the duty of the per- 
 sons operating the engine to use ordinary care to so operate it as not 
 to thereby cause injury to plaintiff, though they did not know he was 
 there.'**' 
 
 (b) You are instructed that where a carrier of freight on its ar- 
 rival at the place of destination, places the car containing such freight 
 upon one of its side tracks, and notifies, invites or requii'es the con- 
 signee to remove such freight from its car, that the owner, who in 
 pursuance of such notice, invitation or request proceeds to remove 
 such freight from such car, while so engaged has the right to rely 
 
 44—1. C. R. R. Co. V. Anderson, 45— Copley v. U. Pac. Ry. Co., 26 
 184 111. 294 (296), aff'g 81 111. App. Utah 361, 73 Pac. 517 (520). 
 137, 56 N. E. 331. 46— St. L. S. W. Ry. Co. v. Kenne-
 
 1248 FORMS OF INSTRUCTIONS. [§ 1941. 
 
 upon the carrier to exercise reasonable care not to injure him while 
 so employed; and if you believe from the evidence in this case that 
 the plaintiff was notified, invited or requested by the defendant to 
 remove certain freight from a car placed by it upon one of its side 
 tracks for the purpose of enabling the plaintiff to remove his goods 
 therefrom, that while plaintiff was in said car for the purpose of so 
 removing his freight, and in the exercise of due care for his own 
 safety, the defendant's servants in charge of one of its freight trains 
 either knowing of plaintiff's presence in said car, or the circum- 
 stances being such that they ought in the exercise of ordinary care 
 on their part to have known of his presence therein, thereafter negli- 
 gently ran into said car with such force and violence, as to overturn a 
 safe therein contained upon the plaintiff, thereby injuring him, then 
 you should find the defendant guilty.*^ 
 
 § 1941. Injury While Going to Car, Although Told It Could Not 
 Be Unloaded That Day. (a) If you believe from the evidence that 
 the plaintiff went late in the evening, after business hours, to the 
 yards of the defendant, and after he had been told by the person 
 whose duty it was to seal or open the cars, that he could not get into 
 the car that day, then he would be a trespasser, and the railroad com- 
 pany owed him no duty until his presence there was discovered by 
 the persons in charge of the train; and if you believe from the evi- 
 dence that they had not seen him, and did not know of his presence 
 near the car, until after the injury, your verdict must be for the 
 defendant. 
 
 (b) One who voluntarily goes into the yards of a railroad com- 
 pany after it is getting dark, crossing one or two tracks to get there, 
 and after he knows the car has been sealed up to prevent any more 
 unloading that day, is a trespasser, and would be guilty of contribu- 
 tory negligence, and cannot recover for injuries received while there. 
 
 (c) It is the duty of all persons running trains in this state upon 
 any railroad to keep a constant lookout for persons and property 
 upon the track of any and all railroads, and if any persons or prop- 
 erty shall be killed or injured by the neglect of any employes of any 
 railroad to keep such lookout the company owning and operating any 
 such railroad shall be liable and responsible to the persons injured for 
 all damages resulting from neglect to keep such lookout and the bur- 
 den shall devolve upon such railroad to establish the fact that his 
 duty has been performed. But you are further instructed that the 
 failure to keep a constant lookout would not render the railroad liable 
 if the ])lainlil"f himself was a trespasser in going upon said track or 
 
 more, — Tex. Civ. App. — , 81 S. W. Court .saying: "Wc have carefully 
 
 802 (803). considered the propriety of the 
 
 47 — C. & K. I. II. R. Co. V. Bur- court's action In passing upon in- 
 
 rldge, 107 111. App. 23 (27), rev'd structions, and are of the opinion 
 
 211 III. 9, 71 N. E. 838, for the re- that no error was committed except 
 
 funal of two other instructions in refu:?ing iippellant's refused in- 
 
 UHked by appellant, the Supreme structions No. 6 aud No. 7."
 
 § 1942.] NEGLIGENCE— RAILROADS. 1249 
 
 was guilty of any act of negligence contributing to the injury of 
 which he complains. 
 
 (d) If you find that the employes of defendant who had charge 
 of looking after the unloading of cars on its tracks knew that plain- 
 tiff was engaged in unloading a car and that he was upon defendant's 
 yards for that purpose after business hours and you further believe 
 from the evidence that the plaintiff did not know that he was violat- 
 ing any rule or custom of the company, then you will find that de- 
 fendant owed him the duty not to injure him by any negligent act of 
 its employes in moving cars on said yard. 
 
 (e) You are instructed that if from the evidence that the plaintiff 
 had spoken to the watchman of the defendant, that he was going to 
 return for the last of his freight in a car, and that said watchman 
 knew that plaintiff was hauling freight from said car and that said 
 watchman had the right and it was his duty to close said car and that 
 plaintiff did return and found said car at the same place and in the 
 same condition as when he left the same and you further find that 
 the plaintiff believed as an ordinary prudent man that he had a right 
 to unload his freight at the time, then he would not be a trespasser 
 and if he was injured by negligence of any employe in charge of said 
 train you will find for the plaintiff. 
 
 (f ) The burden is on the plaintiff to show, by a preponderance of 
 the evidence, that the defendant was guilty of negligence, and that 
 he was injured by such negligence, to entitle him to recover in this 
 action; and if you find from the evidence, that the defendant was 
 negligent, and that the plaintiff was injured therebj", then, in order 
 to defeat his recovery on the ground that he was guilty of contribu- 
 tory negligence, the burden is on the defendant to show such contrib- 
 utory negligence by a preponderance of the evidence.'** 
 
 § 1942. Assault upon Person Getting Freight by Company's Agent 
 or Servant, (a) If you believe from the preponderance of the evidence 
 that, at the time of the difficulty between plaintiff and the said M. 
 and R., it was a part of the duties of said M. and R., as such em- 
 ployes of defendant, to cai'e foi", and protect from injury, interference 
 or rough handling, the fi'eight situated in defendant's said depot, and 
 if you further believe from a preponderance of the evidence that the 
 said M. and R. did commit an assault upon the plaintiff as alleged 
 in his petition, and if you further believe from a preponderance of 
 the evidence that the said M. and R., in committing such assault, if 
 you find that they did so, committed the same for the pui-pose and 
 with the intention of protecting the freight situated in said depot, or 
 any of it, from injury, interference or rough handling by plaintiff, 
 then you will return a verdict for the plaintiff. Unless you so find from 
 a preponderance of thj evidence, you will return a verdict for the de- 
 fendant. 
 
 48 — This series of six instructions S. W. R. Co. v. McQueeney, 78 Ark. 
 were approved in Little RoRk & H- 22. 92 S. w. 1120 
 
 79
 
 1250 FORMS OF INSTRUCTIONS. [§ 1943. 
 
 (b) If 3'ou believe, fi'om a preponderance of the evidence, that, at 
 the time of the difficulty between the plaintiff and the said M. and R., 
 it was a part of the duty of said M. and R., as employes of defendant 
 at its said depot, to care for, and protect against injury, interference 
 or rough handling, the freight situated in said depot, then you are 
 instructed, as a matter of law, that the defendant would be responsible 
 for the wrongful acts if any, of the said M. and R., or either of them, 
 committed for the purpose of caring for or protecting such freight 
 against injury, interference or rough handling, although such wrong- 
 ful acts, if any, had not been expressly authorized by defendant, and 
 although such wrongful acts, if any, had been expressly forbidden by 
 defendant. The defendant would not be responsible for the wrongful 
 acts, if any, of the said M. or said R., committed for a purpose other 
 than discharge of some duty for which the one so committing such 
 wrongful act, if any, was employed.*^ 
 
 RULES AND REGULATIONS. 
 
 § 1943, Right to Make Reasonable Rules for Management of Trains. 
 
 A railroad compan^y has the lawful right to make all reasonably neces- 
 sary rules for the conduct of its employes, and also of its passengers. 
 And whether such rules are adequate to secure the safety of others, 
 and the safe management of its trains, is a question of fact for the 
 jury.s" 
 
 § 1944. Expelling a Person from the Cars, (a) The jury are in- 
 structed, that if the conductor", or other person in charge of a train of 
 cars, attempts to expel a person, who, by the rules of the company, 
 has no right to ride thereon, he must use no more force than is neces- 
 sary to accomplish that purpose; and if he does use more force than 
 is necessary and the person so put off is thereby injured, the com- 
 pany will be liable. 
 
 (b) If a person gets on a railroad car, in order to ri<le without pay- 
 ment of fare and without the consent of the persons in charge of the 
 train, he may be ejected from the cars, prudently, and in such a man- 
 ner as not unnecessarily to endanger his personal safety; but if rea- 
 sonable care and prudence are not exercised, and the person is thereby 
 injured, the company will be liable, and it cannot excuse itself upon 
 the ground that the wrong was mutual. ^^ 
 
 CONTRIBUTORY NEGLIGENCE. 
 
 8 1945. Plaintiff Must Exercise Ordinary Care, (a) The court 
 instructs the jury, that in an action against a railroad company to 
 recover for injuries occasioned by the alleged negligence of the com- 
 
 49— H. & T. C. R. Co. V. Bell, — len, 84 III. 109; Stoue v. C. etc., Rd. 
 Tex. Civ. App. — , 73 S. W. 56 (59). Co., 47 la. 82. 
 60— C. B. & Q. R. Co. V. McLal- 51— Breon v. Tex. & P. Rd. Co., 
 
 50 Tex. 43.
 
 § 1946.] NEGLIGENCE— RAILROADS. 1251 
 
 pany, in running its train, although the servants of the company may 
 have been guilty of negligence, contributing to the injury complained 
 of, still, if the plaintiff could, by the exercise of ordinary care and 
 prudence, have avowed the injury, he cannot recover.^- 
 
 (b) One who is injured by the mere negligence of another cannot 
 recover, either at law or in equity, any compensation for the injury, 
 if he, by his own ordinary negligence contributed to produce the in- 
 jury of which he complains, so that but for his concurring and co- 
 operating fault the injuiy would not have happened to him; there- 
 fore, if you find from the evidence in this case that the plaintiff's 
 own negligence or fault either caused or contributed to the injury he 
 cannot recover. 
 
 (c) If you believe from the evidence that the servants in charge 
 of the train which caused the injui'y did what men of ordinary pru- 
 dence and caution would have done, under the circumstances, then 
 defendant was not guilty of negligence, and is not liable; but even 
 if you should believe that defendant is guilty of negligence, still, if 
 plaintiff by his own negligence or fault, contributed to the injury, 
 or if his negligence or fault co-operated with the acts of the defend- 
 ant and caused the injury, your verdict must be for the defendant. ^^ 
 
 § 1946. Plaintiff Not Bound to Highest Degree of Care and Pru- 
 dence, (a) The court instructs you, that while a pei'son walking on 
 a public highway is bound to use all reasonable care and caution to 
 avoid injuiy, yet he is not held to the highest possible degree of pre- 
 caution and prudence; and to authorize a recover^^ for injuries negli- 
 gently inflicted, it is only necessaiy that it appear, from the evidence, 
 that he was using reasonable cai'e and caution. 
 
 (b) The court instructs you, that when a person is injured by 
 the negligence of another, he must, after the injury is received, act 
 as an ordinarily reasonable and prudent man would under the cir- 
 cumstances, and use reasonable diligence to know whether medical 
 aid is required, and to use all reasonable efforts to have himself 
 cured; and if he does not do so, he cannot recover of the defendant 
 for any suffering, injury or damage which results from his failure to 
 exercise such care and diligence."* 
 
 § 1947. Plaintiff Must Exercise Reasonable Care and Prudence. 
 
 The jury are instructed, that the phiintiff was bound to exercise 
 ordinary care and prudence in attempting to cross the street, and 
 though the jury may believe, from the evidence, that the crossing 
 in question was dangerous, still, if they further believe, from the 
 evidence, that the accident in question is attributable to the want of 
 ordinary care on the part of the plaintiff, then she cannot recover in 
 this suit, unless the jury further believe, from the evidence, that the 
 
 52— Chi. & A. Rd. Co. v. Jacobs. Co. v. McQueeney, 78 Ark. 22, 92 
 63 111. ITS. S. W. 1120. 
 
 53— Little Rock & H. S. W. R. 54— Toledo, W. & W. Rd. Co. V. 
 
 Eddy, 72 111. 138.
 
 1232 FORMS OF INSTRUCTIONS. [§ 1948. 
 
 defendant was guilty of such gross negligence as implies willful or 
 wanton injury.^^ 
 
 § 1948. Contri'butory Negligence of Children, (a) As to the de- 
 gree of care and circumspection required of A. B.', whose age is al- 
 leged to have been eleven years when the accident happened, I in- 
 struct you that a child of tender years is not held in the same degree 
 of accountability as an adult man, but the question of his intelligence 
 and mental capacity must be left for your determin/ation from all 
 the facts and circumstances in evidence before you.^^ 
 
 (b) If the jury shall find from the evidence that the act of the 
 child itself in going under the gates and onto the crossing as the de- 
 fendant 's engine and train were about to pass over said crossing was 
 the sole cause of the accident, then they are instructed that the plain- 
 tiff cannot recover, and their verdict must be for the defendant.^'^ 
 
 § 1949. Eye-Witness as to Care and Caution of Party Injured Not 
 Essential. The court insti-uets the jury that evidence of the general 
 habit of A. & B. in crossing railroad crossing may be taken into con- 
 sideration by the jury, together with all the facts and circumstances 
 in evidence, in determining the degree of care used by the deceased 
 while attempting to cross the defendant's railroad at the time they 
 were killed, and that it is not necessary that the plaintiff should show 
 by an eye-witness as to said A. & B.'s care and caution exercised by 
 tliem at the crossing at the time they were killed, in order for the 
 plaintiff in this case to recover, provided you believe, from the evi- 
 dence, and all the facts and circumstances in evidence, that they were 
 exercising ordinaiy care and caution for their own safety at the time 
 they attempted to cross the said railroad track.^^ 
 
 § 1950. Contributory Negligence of Person Injured at Crossing, (a) 
 The plaintiff cannot recover in this case unless it is proved, by a pre- 
 ponderance of the evidence, not only that the defendants were guilty 
 of the negligence charged against them in the plaintiif 's declaration, 
 
 55 — Indianapolis, etc., R. Co. v. general habit of A of looking and 
 
 McClure, 26 Ind. 370; Litchfield, listening and of care and caution 
 
 etc., Co. V. Taylor, 81 111. 590; when approaching or attempting 
 
 Brown v. Hannibal, etc., Rd. Co., to cross railroad tracks was in 
 
 50 Mo. 461; Cooper v. Cent. R. Co., evidence. The instruction called 
 
 44 la. 134. the attention of the jury to this 
 
 56— Tex. & P. Ry. Co. v. Ball, 'general habit' of A. & B. and in 
 
 — Tex. Civ. App. — , 85 S. W. 456 connection therewith used the ex- 
 
 (458). pressions 'at the time they were 
 
 57— C. & N. W. R Co. V. Jamie- killed' and 'at the time they at- 
 
 son, 112 111. App. 69 (76). tempted to cross the railroad 
 
 58 — McNulta v. Lockridge, 137 111. track.' The jury could not reason- 
 
 270 (275), 27 N. E. 452, 31 Am. St. ably have understood the instruc- 
 
 362. tion otherwise than as referring to 
 
 "It Is urged that this instruction the occasion on which the intes- 
 
 was erroneous, that it limited the tates attempted to cross the track 
 
 inquiry of the jury as to the ex- and were killed. As was said by 
 
 erc'l.se of ordinary care by the de- this court in L. S. & M. S. Ry. Co. 
 
 cea.sod to the moment of time when v. Johnsen, 135 111. 641, 36 N. E. 
 
 they were killed, and to the im- 520: 'the words "at the time" as 
 
 mediate timt.' they were in the act used in the instruction refer to the 
 
 of crossing the railroad track. The whole transaction.' "
 
 S 1951.] NEGLIGENCE— RAILROADS. 1253 
 
 or some count thereof, but that C. was using reasonable care for his 
 safety at the time of the accident; and if the jury shall find, from 
 the evidence, that C. did not use reasonable or ordinary care for his 
 own safety immediately befoi'e and at the time of the accident com- 
 plained of, then the plaintiff cannot recover, and their verdict should 
 be for the defendants.^'' 
 
 (b) You are instructed that the law did not require of the de- 
 ceased the exercise of an extraordinary degree of care. All that was 
 required of him was the exercise of oi'dinary cai-e, and what is or- 
 dinary care depends upon the circumstances of each particular case, 
 and is such care as a person of ordinary prudence and intelligence 
 would usually exercise under the same or similar circumstances. '''' 
 
 S 1951. Person Crossing Track Knowing That Cars Were Shifted 
 at That Point. If the i^laintiff had long been a resident of D., and 
 had frequently crossed the raih'oad a^; the point, and knew the trains, 
 both passenger and freight, were frequently passing on this and 
 other parallel roads, and that cars were frequentlj^ being shifted on 
 this and other roads, and that the train which struck him was due 
 about that time, and attempted to cross at this point then, and to 
 exercise his senses of sight and hearing all the time and all the way 
 across; and, when he saw his view of the main line obstructed by the 
 cars on the side track, he should have been the more diligent; and if 
 he was negligent in these i^artieulars, and by reason thereof he was 
 injured, and that negligence was the 2^1'oximate cause of the injury, 
 you should find the issues for the defendant. ^^ 
 
 § 1952. Standing on Track — Duty to Look and Listen. The court 
 insti'ucts the jury that, notwithstanding the negligence of the defend- 
 ant company, the plaintiff's intestate E, had no right to stand on 
 said track, or so near thereto as to be in danger from passing trains 
 without keeping a lookout in both directions for their appi'oaeh; and 
 that if in consequence of his position, and of his failure to look and 
 listen, he was struck and killed, there can be no recovery in this 
 case.^^ 
 
 § 1953. Contributory Negligence — Failure of Plaintiff to Discover 
 Approaching Train. The court instructs the jury that if you be- 
 
 59 — C. & E. I. R. Co. v. Coggins, ordinary prudence would have ex- 
 
 212 111. 369, 72 N. E. 376. ercised under the same or similar 
 
 60 — C. & A. R. R. Co. v. Pearson, circumstances. It is said that the 
 
 184 111. 386 (393), aff'g 82 111. App. question involved was the kind of 
 
 605, 56 N. E. 633. care a person of ordinary prudence 
 
 "It is objected to this that it left exercises when acting prudently, 
 
 the way open for the jury to un- and that the care an ordinarily 
 
 derstand that, if the plaintiff usual- prudent person usually exercises 
 
 ly exercised the care of au ordinar- may be a very different kind of 
 
 ily prudent person, that would be care from that which a person ex- 
 
 sufflcient, although he might not ercises when acting prudently. We 
 
 have done so in the particular in- do not think it was subject to the 
 
 stance when the accident occurred, objection." 
 
 We do not think it would admit of 61— Norton v. N. C. R. Co., 122 
 
 such an interpretation, but that it N. C. 910. 29 S. E. 886 (890). 
 required hiin to exercise on that 62 — Rangeley's Adni'r v. So. Ry. 
 
 occasion the care which a person of Co., 95 Va. 715, 30 S. E. 386 (387).
 
 1254 FORMS OF INSTRUCTIONS. [§ 1954. 
 
 lieve, from the evidence, that the plaintiff could have discovered the 
 approaching train, by the exercise of ordinary care, in time to have 
 enabled her to avoid the accident by the exercise of ordinary cai^e 
 on her part, and that she did not exercise such care, you will find the 
 defendant not guilty.*'^ 
 
 § 1954. Knowledge of the Deceased of the Presence of One Engine 
 at Crossing and the Approach of Another Engine. AYhile knowledge 
 by the deceased of the presence of the F. engine on the north track 
 or partly upon the S. C. street crossing and the approach of No. — 
 upon one of the central tracks at or near the time of the accident 
 might or w'ould indicate the presence of danger on or near those 
 tracks, it is for the jury to determine upon all the facts of this case 
 whether it was a want of ordinary or reasonable care and prudence 
 upon his part to be upon the south track, at the point upon said last- 
 named track at which they shall find from the evidence the accident 
 occurred.^* 
 
 §1955. Contributory Negligence — Driving Across Track in a Care- 
 less or Indifferent Manner, (a) If you find from the evidence that 
 plaintiff' at said time and place passed over said railway in a care- 
 less, indifferent or negligent manner; or if you find from the evidence 
 that at said time plaintiff did not have his team under control, and 
 made no effort to keep or hold his team under control, but at the time 
 of crossing said railway permitted the lines to hang loose, or swing 
 loose and hang down almost to the ground and that the lines were in 
 such position when jDlaintiff's team ran away; and if you find that 
 the plaintiff was thereby guilty of negligence, as that term is herein- 
 before defined, and that such negligence, if any, caused or contributed 
 to his injury — you will find for the defendant. Railway companies 
 have a legal right to run their trains and engines over their roads 
 and over public crossings, and they are liable to other persons for 
 such damages only as result from their negligence or disregard of 
 the rights of safety of such other persons. If you believe from the 
 evidence that at the time plaintiff drove his team over defendant's 
 railroad the engine was sixtj' or more feet away from said public 
 crossing, and was moving at a moderate rate of speed, so that plain- 
 tiff had ample time to take his wagon and team over the said rail- 
 way before the said engine would reach the crossing, and if you be- 
 lieve defendant's seiwants operating the said train at the time acted 
 as men of ordinary prudence would have acted under the circum- 
 stances, then in that event plaintiff' cannot recover damages in this 
 suit, and you will find for the defendant."^ 
 
 G^ — C. & R. I. R. Co. V. Zapp, "As we have stated, there was no 
 
 209 111. 339 (343), 70 N. E. 623. instruction given affirmatively oall- 
 
 64 — lialtimore & P. R. R. v. Ing to the attention of the jury any 
 
 LarKlrixaii, 191 U. S. 461 (472), 24 view of the facts which would 
 
 S. Ct. 1.37. acquit the defendant of liability, 
 
 6.'> — Ht. L. S. W. Ry. Co. of Texas except that upon the subject of 
 
 V. Hall, 98 Tex. 480, 85 S. W. 789 contributory negligence. That a 
 
 (790). party is entitled, when he requests
 
 § 1956.] NEGLIGENCE— RAILROADS. 1255 
 
 (b) You are further instructed that if you believe from the evi- 
 dence that plaintiff drove his team over defendant's railway at the 
 time and place alleged in the petition ; and further believe that at the 
 time, and after crossing said railway, plaintiff permitted his lines to 
 hang loose in such a manner that he had no control of his team; and 
 if you further believe from the evidence that the act of plaintiff in 
 so driving his team over the said railroad at that time and place, and 
 under the circumstances surrounding plaintiff, caused or contributed 
 to plaintiff's injuries; and if you further believe from the evidence 
 that a man of ordinary prudence would not, under the circumstances 
 then surrounding plaintiff, have driven his team over said railroad 
 with the lines hanging loose — then in that event plaintiff is not en- 
 titled to recover in this suit, and you will find for the defendant. ^^ 
 
 § 1956. Contributory Negligence — Riding upon Locomotive. The 
 jury are instructed that, if they believe, from the evidence, that a 
 man of ordinary care and prudence would not ride upon a locomotive 
 
 engine in the position and manner that said was shown to have 
 
 been riding at the time of the accident, and you further believe from 
 the evidence that his injury was caused by his not exercising ordinary 
 care and prudence, then the plaintiff cannot recover.*''' 
 
 § 1957. Riding on Coal Car without Consent of Defendant's Em- 
 ployes. If the jurj' should find from the evidence that the plaintiff, 
 on the night of the alleged injury, voluntarily, and in order to get a 
 ride on the defendant's train without paying for it, got on the end of 
 a coal car composing a part of the defendant's freight train, without 
 the knowledge or consent of the engineer or fireman or other em- 
 ploye of the defendant, and was on said coal car while the train was 
 running over defendant's track, and if thereby the plaintiff volun- 
 tarily placed himself in a dangerous position on the train, and on ac- 
 count thereof fell off the train and was thereby injured, then the jury 
 should answer the first issue, "No."^® 
 
 it by correct instructions, to have of the evidence which the jury 
 
 the facts establishing his cause of might have talien, and the rule on 
 
 action or ground of defense, with the subject required that it be 
 
 the law applicable to them, affirm- given, if it truly stated the law. 
 
 atively stated by the court to the We are unable to see wherein it is 
 
 jury, is the settled rule of practice incorrect. It refers, it is true, to 
 
 established by many decisions of particular facts, but submits to 
 
 this court. Texas T. Ry. Co. v. the jury whether or not those facts 
 
 Ayres, 83 Tex. 269, 18 S. W. 684; existed, and constituted negligence 
 
 Mo. K. & T. Ry. Co. v. McGlam- on the part of the defendant. It 
 
 mory, 89 Tex. 639, 35 S. W. 1058. has no reference to the question of 
 
 It is no answer to a complaint that negligence on the part of the plain- 
 
 this was not done that the jury tiff, and lays down no rule on that 
 
 might negatively have inferred the subject, but merely seeks an ap- 
 
 proposition expressed in the re- propriate instruction in the ques- 
 
 quest from the instructions stat- tion of defendant's negligence." 
 
 ing the case of the opposite party. 66— St. L. S. W. Ry. Co. of Tex. 
 
 The right is, upon proper request, v. Hall, supra. 
 
 to have the law plainly and affirm- 67 — L. S. & M. S. Ry. Co. v. 
 
 atively stated in its application to Brown, 123 111. 162 (183), 14 N. E. 
 
 facts supported by evidence under 197, 5 Am. St. 510. 
 
 which the party would be entitled 68— Lewis v. Norfolk & W. Ry. 
 
 to a verdict. The instruction in Co., 132 N. C. 382, 43 S. E. 919 (921). 
 question was applicable to a view
 
 1256 FORMS OF INSTRUCTIONS. [§ 1958. 
 
 § 1958. Contributory Negligence of Plaintiff No Defense If De- 
 fendant Could Have Avoided Injury after Discovering Plaintiff's 
 Peril, (a) If you believe, from the evidence, that the defendant was 
 guilty of negligence, as charged in the declaration, and that the 
 plaintiff was injured thereby, and that the plaintiff was himself guilty 
 of some slight degree of negligence, this would not alone prevent a 
 recovery, provided the jury further believe, from the evidence, that 
 the act of defendant which caused the injury was done by the defend- 
 ant after discovering the plaintiff's negligence and that the defendant 
 could have avoided the injury by the exercise of reasonable care."* 
 
 (b) The jury are instructed that if they believe and find from the 
 evidence that defendant approached and passed the depot at a greater 
 rate of speed than six miles an hour, then such rate of speed was 
 excessive, and negligence on the part of the defendant. And if you 
 further believe and find from the evidence that such excessive speed 
 caused, or materially contributed to, the death of the child; or if 
 you believe and find from the evidence that defendant's engineer saw 
 the perilous position of the child upon the track, or about to place 
 itself in a perilous position upon the track, or that he could have 
 seen and known it by the exercise of ordinary care; or if you 
 believe and find from the evidence that such omissions of duty and 
 acts of negligence, if proven, contributing together, caused or ma- 
 terially and directly contributed to the death of the child, — then your 
 verdict should be for the plaintiff. 
 
 (c) Although you may believe from the evidence that the engineer 
 had the danger signal for D. and others on or near the track, and 
 exhausted a part of his air to slow his train to avoid injury to them, 
 and that it was a matter of prudence for him to do so, yet, so soon 
 as the engineer discovered that said parties were off the track and in 
 a position of safety, then it was his duty to be on the lookout for 
 the safety of persons on the depot platform; and if you believe from 
 the evidence that said engineer negligently failed to do so, and 
 thereby failed to see the child, and in consequence thereof the child 
 was struck and killed in consequence of his negligence, — then your 
 finding should be for the plaintiff. 
 
 (d) You are further instructed that it is conceded in this case that 
 the engineer did not see the child before she was struck and killed. 
 Now, if you believe from the evidence that he could have seen her, by 
 the exercise of ordinary care, in time to stop his engine before he 
 struck her, or in time to slow his train for the child to cross over 
 the track before being struck, but negligently failed to do so, then 
 your finding should be for the plaintiff. 
 
 (e) You are further instructed that in coming into a station, 
 such as that at M., the law required the employes of the train to be 
 watchful, and on the lookout, to avoid accidents and injury to those 
 
 69_Morrl3 v. Tho C. B. & Q. R. Hannibal & St. J. Rd. Co., 50 Mo. 
 Co.. 45 la. 29; I.«iboll v. N. Y. & N. 464. 
 H. Rd. Co., 27 Conn. 393; Brown v.
 
 § 1959.] NEGLIGENCE— RAILROADS. 1257 
 
 on or about the platform. And if you believe from the evidence that 
 in cominf? into the station at M. the defendant's engineer or other 
 servants of the defendant saw the child in a perilous position, or saw 
 it about to place itself in a perilous position by running upon the 
 track, or could have seen the same, by the exercise of ordinary care, 
 in time to have avoided the injury and saved the life of the child, 
 but negligently failed to do so, then the defendant is liable, and the 
 finding must be for the plaintiff. 
 
 (f) If you believe from the evidence that the child took fright 
 and ran across the depot platform in a northwestei'ly direction to- 
 wards the railroad track, while the engine and cars were approaching, 
 in a manner to indicate to a person of ordinary prudence and caution 
 that she intended to and would run upon the track, and that defend- 
 ant's engineer or other employes saw her, or could have seen and 
 known of her design and peril, by the exercise of ordinary care, in 
 time to have avoided the injury and saved her life, but negligently 
 failed to do so, then the defendant is liable, and the verdict must be 
 for the plaintiffs, although j'ou may further believe from the evidence 
 that the engineer did not have time to stop the train and avoid strik- 
 ing her after she got upon the track."" 
 
 § 1959. Attendant Circumstances Determine Whether Unconscious 
 Person Is Guilty of Contributory Negligence, (a) The court in- 
 structs the jury that if he, the plaintiff, was hit in the side by a piece 
 of iron, and the force of the blow caused him to step back upon track 
 5, or if he through a natural impulse, caused by the blow in front, 
 threw himself backwards upon the track in a moment of mental per- 
 turbation or excitement, why then his stepping upon the track 
 couldn't be said to be a voluntary act on his part, but would be an 
 incident to his attention to his business; and if he then fell faint 
 upon the track, not having the time or ability to get off of it, such 
 conduct on his part would not be contributory negligence. 
 
 (b) If he voluntarily stepped upon the track for any reason what- 
 soever, except that he was caused to be there by the blow that he 
 received, then his stepping upon that track would be contributory 
 negligence which would prevent his recovery. 
 
 (c) If he was struck a blow by the link, but through inadvertence, 
 through forgetfulness, or through anything of that sort, he steijped 
 back upon track number five, and then was hurt, and there fainted 
 upon the track, and then was run over, then he was guilty of 
 contributory negligence in being on that track, and would not be en- 
 titled to recover. A man may be unconscious upon a track and be 
 guilty of contributory negligence in being there. It is not lying on 
 the track in an unconscious condition that determines whether a per- 
 son is guilty of contributoiy negligence in being there, but the cir- 
 cumstances attendant upon going upon the track, before he became 
 
 70 — Above instructions approved in Living^ston v. Wabash R. Co., 
 170 Mo. 452, 71 S. W. 136 (139).
 
 ]25S FORMS OF INSTRUCTIONS. [§1960. 
 
 unconscious, determine whether or not he is guilty of contributory 
 negligence.''^ 
 
 § 1960. Failure of Law to Regulate Speed Does Not Authorize 
 Wanton, Reckless and Dangerous Rate of Speed — ^What Will Not 
 Amount to Wanton Misconduct, (a) The general statutes of our 
 State do not regulate the rate of speed that a railroad company shall 
 run its cars, yet the failure of the law to regulate the rate of speed, 
 does not authorize a railroad company to run its trains at a wanton, 
 reckless and dangerous rate of speed over a public crossing in an 
 incorporated town or village, a point where the people cross and re- 
 cross the public crossing in numbers, and frequently.''^ 
 
 (b) Neither the placing of cars on the sidetrack as shown by 
 the evidence nor the failure to ring the bell of the engine, or blow- 
 ing the whistle, nor the speed of the train, before the peril of Mrs. 
 M. became manifest, under the evidence, is evidence of wanton, reck- 
 less or intentional misconduct on the part of defendant's servants. 
 
 (c) If the jury believe from the evidence that the manifestation of 
 the peril of Mrs. M. and her being struck by the engine was so close, 
 in point of time, that the train could not have been stopped in time 
 to have avoided the injury to her, then the defendant's agents in 
 charge of the train cannot be deemed guilty of wanton, reckless or in- 
 tentional misconduct.''^ 
 
 § 1961. Rule That Burden of Proof as to Contributory Negligence 
 Is on Defendant. The court insti'ucts the juiy that the plaintiff need 
 not affirmatively prove that his decedent stopped, looked and listened. 
 The presumption is that he did so, and the burden of proof that he 
 did not stop, look and listen is on the defendant railway company, 
 and must be proved by a preponderance of the testimony on its 
 part."* 
 
 71 — Louisville & N. R. Co. v. sldered, assert correct propositions 
 
 Thorntou, 117 Ala. 274, 23 So. 778 of law. The injury there was at a 
 
 (781). public road crossing, but not in a 
 
 "These charges contain no error, town or populous district, and 
 
 certainly of which defendant can there was no question of wanton 
 
 complain. Helton v. Ala. M. R. R. Injury arising from the character 
 
 Co., 97 Ala. 275, 284, 12 So. 276." of the public crossing. The charges 
 
 72 — Memphis & C. R. Co. v. Mar- requested were calculated to mis- 
 tin, 117 Ala. 367, 23 So. 231. lead a jury in the present case and 
 
 "This charge given for plaintiff the court committed no reversible 
 
 asserts a correct proposition of error in refusing them." 
 
 law. We refer to this charge spe- 74— Pittsburg C. C. & St. L. R. 
 
 daily, because this conclusion dis- Co. v. Reed. 36 Ind. App. 67, 75 N. 
 
 poses of chiirge six requested by E. 51. 
 
 the defendant, and others which "In the absence of evidence to 
 
 asserted that there can be no the contrary, the presumption is 
 
 wanton negligence, in the absence that a person injured or killed by 
 
 of an ordinance or statute regu- collision with a train at a railroad 
 
 lating the speed of trains." crossing, through the negligence of 
 
 73 — Memphis & C. R. Co. V. the railrod company, exercised or- 
 
 M;irllri, supra. dinary care; and where, to do so, 
 
 "These charges requested by the he would stop, look and listen, the 
 
 f]cf«rii(];int were approvod in the presumption, where there is no 
 
 cnse of Ga. Pac. R. R. Co. v. Lee, evidence on the subject, in an ac- 
 
 92 Ala. 2*',l-272, and abstractly con- tion to recover for his injury or his
 
 1962.] NEGLIGENCE— RAILROADS. 1259 
 
 FENCING TRACK (LIVE STOCK). 
 
 Note. — The obligation of railroad companies to fence the track of 
 their roads, to give warning at highway crossings, and their liability 
 for damages occasioned by fire escaping from their locomotives, are 
 mainly imposed or regulated by the statutes of the several States ; and 
 these statutes differ somewhat in their details. The following in- 
 structions can readily be adopted to the statutes of the different 
 States, by making the changes necessaiy for that purpose. 
 
 § 1962. Failure to Comply with the Law, Negligence Per Se. (a) 
 The jury are instructed, as a matter of law, that if a railroad com- 
 pany, or its servants, fail to perform a duty prescribed by statute or 
 ordinance, such failure is negligence of itself; provided, it is the 
 proximate cause of an injuiy to the person or property of another.'^ 
 
 (b) The first paragraph of the complaint is based upon a statute 
 of the State which requires railroad eomi^anies operating roads in 
 the State to securely fence in the tracks of their roads. A railroad 
 company operating a railroad in this State is required to securely 
 fence in its track, and where this is not done, the railroad company 
 so operating the road is liable for all damages done to stock by its 
 locomotives and cars while being operated upon its road, without re- 
 gard to the question whether such injury was the result of willful 
 misconduct or negligence or the result of unavoidable accident.'^® 
 
 § 1963. Company Must Exercise Reasonable Care, (a) The court 
 instructs the jury, as a matter of law, that when, by the use of or- 
 dinary- care and diligence, on the part of the servants of a railroad 
 company, animals straying upon its tracks can be saved from injury, 
 
 death, is that he stopped, looked, R. Co., 32 Ind. App. 600, 70 N. E. 
 and listened. The care to be exer- 407; Chi. & E. R. R. Co. v. La 
 cised by a traveler on a highway Porte, 33 Ind. App. 691, 71 N. E. 
 approaching- a railroad crossing is 166; Continental Imp. Co. v. Stead, 
 not diminished by reason of the 95 U. S. 161, 24 L. Ed. 403; Texas & 
 enactment of 1899, relating to P. R. R. Co. v. Gentry, 163 U. S. 
 pleading and evidence in such 353, 16 Sup. Ct. 1104, 41 L. Ed. 186; 
 cases (section 359a, Burns' Ann. St. So. Ind. Ry. Co. v. Peyton, 157 Ind. 
 1901); but the presumption in the 690, 61 N. E. 722. If the contribu- 
 absence of evidence on the subject tory negligence constituting a de- 
 is that he did exercise such requi- fense appears from the evidence, it 
 site care, his contributory negli- is not material whether it appears 
 gence being by that statute made from the evidence of the defendant 
 matter of defense. The burden of or that of the plaintiff. Cleveland 
 establishing such evidence is upon C. C. & St. L. R. R. Co. v. Coff- 
 defendant and so continues man, 30 Ind. App. 462, 469, 64 N. E. 
 throughout the case. It must be 233, 66 N. E. 179; Evansville v. 
 presumed in such case that the Christy, 29 Ind. App. 44, 63 N. E. 
 person killed or injured was free 867; Howard v. Indianapolis St. L. 
 from contributory negligence in all R. Co., 29 Ind. App. 514, 518, 64 N. 
 respects until the defense of con- E. 890." 
 
 tributory negligence has been suf- 75— Penn. Co. v. Hensil, 70 Ind. 
 
 ficently proved. See Nichols v. 569. 
 
 Baltimore, etc.. R. Co.. 33 Ind. App. 76— Louisville N. A. & C. Ry. 
 
 229, 71 N. E. 170; Chi. I. & L. R. R. Co. v. Grantham, 104 Ind. 353, 4 N. 
 
 Co. v. Turner, 33 Ind. App. 264. 69 E. 49 (51). 
 N. E. 484; Harris v. Pittsburg, etc..
 
 1260 FORMS OF INSTRUCTIONS. [§ 1964. 
 
 then it is the duty of such servants to exercise that degree of care, 
 and a failure to do so, if proved, renders the company liable for any 
 damages thereby sustainedJ^ 
 
 (b) The court further instructs you, that when a railroad com- 
 pany fails to fence its track, as required by statute, it must see that 
 its servants so conduct its trains that injuries shall not result to 
 stock that may get upon its track, if it can be done by care and cau- 
 tion. If the company fails to fence its track, it takes upon itself 
 the hazard, and when injuiy results therefrom it must respond in 
 damage/^ 
 
 § 1964. Company Only Held to Reasonable Care — Casual Breach 
 in Fence. (a) The court instructs the jury, that while railroad 
 companies are not required to keep such a guard on their roads as 
 to see a breach in the fence and repair it the instant it occurs, still 
 the law does require them to keep such a force as will discover 
 breaches and openings in their fences, and to close them within a 
 reasonable time; and if they neglect to do so within a reasonable 
 time, it is a neglect of duty that will render them liable for an injury 
 to stock escaping onto the road through such openings; provided, the 
 owner or the person having the stock in charge is guilty of no negli- 
 gence which contributed to the injury. ''''* 
 
 (b) If you believe, from the evidence, that the defendant had 
 erected a fence suitable and sufficient to prevent horses and cattle, 
 sheep and other stock from getting upon the railroad at the point 
 where the animals in question got upon the track, and had maintained 
 the fence in good repair up to (the evening before the accident), and 
 that the injury was occasioned by the fence being broken down at the 
 time of the accident, then negligence on the part of the defendant 
 ought not to be inferred, unless you further find, from the evidence, 
 that the servants of the company knew of the fence being down, or 
 else that it had been down for such a length of time that, in the exer- 
 cise of reasonable care and watchfulness, they ought to have known 
 of its being down, and failed to repair it within a reasonable time 
 thereafter."" 
 
 (c) The court further insti'uets you, as a matter of law, that when 
 a railroad is inclosed by a suitable and sufficient fence, and a casual 
 breach occurs therein, without the knowledge or fault of the com- 
 pany, and through such breach stock get upon the track and are in- 
 jured, the company is not liable, unless it has had a reasonable time 
 to discover such breach, or has been notified and fails to repair within 
 a reasonable time, and before the injury occurred.^^ 
 
 77— T., P. & W. R. Co. v. Ingra- 80— C. & A. R. Co. v. Umphenour, 
 
 ham, 58 111. 120; Parker v. Rd. Co., 69 111. 198. 
 
 34 la. :599, Cinciniiiiti & Z. R. Co. 81— Robinson v. Grand Trunk R. 
 
 V. Sinith, 22 Ohio St. 227. Co., .32 Mich. 322; Davis v. Chicago, 
 
 78— Toledo, P. & W. R. Co. v. R. I. & P. Rd. Co., 40 la. 292; In- 
 
 Lnvery. 71 111. 522; Toledo, W. & W. diannpolis, P. & C. Rd. Co. v. Truitt, 
 
 R. Co. v. MfGlnnia, 71 111. 346. 24 Ind. 162; Ind. & St. L. R. Co. v. 
 
 79— C. & N. W. R. Co. v. Harris, Hall, 88 111. 368. 
 F,4 111. 528.
 
 § 1965.] NEGLIGENCE— RAILROADS. 1261 
 
 (d) If you believe, from the evidence, that on (the day before 
 the injury) the defendant had a good and sufficient fence to prevent 
 horses, cattle, sheep, hogs and other stock from getting onto the 
 track, at the point in question, and that after that it was blown down, 
 or broken down by trespassers or otherwise, without the fault of the 
 defendant, and that while the fence was so down, the plaintiff's 
 stock got through the broken fence and was injured, before the de- 
 fendant had a reasonable time in which to repair it, then the de- 
 fendant would not be liable for injuries resulting from the fence be- 
 ing out of repair. 
 
 (e) If 5'ou believe, from the e\ndence, that defendant had a good 
 and sufficient fence on the side of its road, through plaintiff's farm 
 or pasture, until shortly before the accident, and that it was broken 
 down by trespassers, or by unruly stock, or blown down by wind, and 
 that plaintiff's horses got through the fence before defendant had 
 reasonable time to repair it, then you should find for the defendant. 
 
 (f ) The court further instmets you, that when a railroad company 
 builds and maintains a good and sufficient fence through a farm, and 
 it. is blown down, burnt down, or thrown down by trespassers, and 
 without the fault of the railroad company-, then the company has a 
 reasonable time in which to repair the fence, and it is not responsi- 
 ble for any damages which may ensue solely from the insufficiency 
 of the fence until such reasonable time has elapsed. ^^ 
 
 § 1965. Stock Unlawfully Running at Large, (a) The court in- 
 stracts the jury, that at the time in question it was unlawful to per- 
 mit cattle or horses to run at large, at and within, etc., and if the 
 juiy believe, from the evidence, that the plaintiff voluntarily permit- 
 ted the horse in question to run at large at and within, etc., and un- 
 der such circumstances that it might reasonably have been foreseen or 
 anticipated that the horse might get upon the defendant's track, then 
 the plaintiff cannot recover of the defendant for the killing of the 
 horse by one of its trains, upon the ground alone that the company 
 had failed to fence its track at the place where the animal was 
 killed.83 
 
 (b) The fact that the owner of stock permits it to iim at large, in 
 violation of the act prohibiting domestic animals from running at 
 large, does not relieve railroad companies from their duty to fence 
 their roads, nor from their liability for stock injured in consequence 
 of their failure to do so; and the question whether the owner of the 
 stock has been guilty of contributory negligence in permitting them 
 to run at large, is one of fact to be determined by the jury from all 
 the circumstances of the ease. And to render the owner of the stock 
 guilty of contributory negligence, in permitting his stock to run at 
 
 82—1. C. R. R. Co. v. Swearingen, 75 111. 577; Indiana R. Co. v. Shimer, 
 
 47 111. 206; Gill v. Rd. Co., 27 Ohio 17 Ind. 295; Jef., etc., Rd. Co. v. 
 
 St. 240. Adams, 43 Ind. 402; Pearson V. 
 
 83~P. P., & J. R. Co. V. Champ, Milwaukee, etc., 45 la. 496.
 
 1262 FORMS OF INSTRUCTIONS. [§ 1965. 
 
 large, it must appear, from the evidence, that he did so under such 
 circumstances that the natural and probable consequences of so doing 
 was that the stock would go upon the railroad track and be injured.®* 
 
 (c) A railroad company owes no duty to the owner of stock which 
 strays upon its track, except to keep a constant and careful lookout 
 upon the track, and to use reasonable and ordinary care at the time to 
 avoid striking it. So, if you believe from the evidence in this case 
 that the engineer in charge of the train was keeping such a lookout, 
 and did use such care to avoid striking the animals in controversy as 
 an ordinarily prudent man would have used under the circumstances, 
 but, on account of the close proximity of the animals to the moving 
 train when the engineer discovered them on the track, he was unable 
 to stop the train in time to avoid striking them, then the company 
 was not guilty of such negligence as will entitle the plaintiff to re- 
 cover, and your verdict will be for the defendant.®^ 
 
 (d) The court instructs you, that the fact, if proved, that the 
 plaintiff peraiitted his stock to run "at large, in violation of the law 
 prohibiting domestic animals from running at large, does not re- 
 lieve the defendant from its duty to maintain a suitable and sufficient 
 fence along the line of its road, if you find, from the evidence, under 
 the instructions of the court, that the defendant was otherwise bound 
 to do so; nor from liability for stock injured in consequence of its 
 failure to do so, if you find, from the evidence, under the instructions 
 of the court, that the defendant is otherwise liable therefor.^^ 
 
 (e) The question whether the plaintiff was guilty of contributory 
 negligence in permitting his cattle to run at large, is one of fact to 
 be determined by the jury from all the circumstances of the case. 
 And to render him guilty of contributory negligence, in permitting his 
 stock to run at large, the jury must believe, from the evidence, that 
 he did so under such circumstances that the natural and probable con- 
 sequence of so doing was, that the stock would go upon the railroad 
 track and be injured. 
 
 (f) In the absence of an order of the county commissioners (or 
 a vote of the inhabitants, etc.,) permitting stock to run at large, the 
 plaintiff was in duty bound to keep his stock on his own premises, or 
 to use all ordinary and reasonable means and appliances for that pur- 
 pose, and if he knowingly and voluntarily suffered his stock to run 
 at large, in the immediate vicinity of that part of defendant's road 
 where it was not bound by law to fence, as explained in these instruc- 
 tions, and if you further believe, from the evidence, that the (colts), 
 while so suffered to run at large, got upon the track of defend- 
 ant's road at a point where it was not bound by law to fence as 
 explained, etc., and were then killed, the plaintiff cannot recover un- 
 less such killing was willful or wantonly reckless.**^ 
 
 84— Ewlng V. C. & A. R. Co., 72 28 Mich. 510; L. N. A. & C. R. Co. 
 
 III. 2.1. V. Whitesell, 68 Ind. 297; White v. 
 
 85— St. L. I. M. & S. R. Co. v. TTtioa, etc., Rd. Co., 15 Hun 333: 
 
 Norton. 71 Ark. 314, 73 S. W. 109.5. Cairo Rd. Co. v. Murray, 82 111. 76. 
 
 8ft-Fllnt & P. M. R. Co. v. Lull, 87— Ind. & C. & L. R. Co. v.
 
 § 1966.] NEGLIGENCE— RAILROADS. 1263 
 
 § 1966, Obligation to Fence Not Limited to Adjoining Owner, 
 (a) The obligation to construct and maintain fences upon both sides 
 of their roads, imposed by the laws of this State upon railroad com- 
 panies, is not limited to owners and occupiers of adjoining lands, but 
 extends to the public generally. 
 
 (b) Where cattle running at large without the fault of the owner, 
 enter the inclosed field of another person through which a railroad 
 passes, and thence go upon the track of the road by reason of a 
 want of sufficient fence, and are injured, the railroad company will 
 be liable, provided they have not built a good and sufficient fence 
 (according to the statute) or bad allowed the fence to become out 
 of repair after notice thereof, and a reasonable time for its repair.** 
 
 §1967. Cattle Guards, (a) In order to keep its road securely 
 fenced, the statute of this State requires a railroad company to con- 
 struct and keep in repair cattle guards on each side of its track at all 
 highway crossings.*^ 
 
 (b) It is however provided in this same statute that a cattle guard 
 that has been approved by the railroad commissioner of the State 
 shall be deemed a reasonable and sufficient cattle guard; and if this 
 cattle guard had been kept as it was originally placed, and if there 
 was no question about the space between the cattle guard and the 
 fence, then there would not be any case here, and the plaintiff could 
 not recover. 
 
 (c) If the cattle passed the cattle guard, if they crossed it be- 
 cause it was out of repair, or if they passed beside the cattle guard 
 and between it and the fence, and were killed by the cars of the de- 
 fendant, then the plaintiif is entitled to recover the value of the 
 cattle — the full market value of the cattle at that time. 
 
 (d) The defendant has offered evidence to show that some of the 
 cattle at least passed over that portion of the guard which it is not 
 alleged was defective, and for at least so many of such cattle as 
 passed over the guard where it was not defective no recovery what- 
 ever can be had; and unless you find that some of the cattle passed 
 over said guard by reason of its defective condition no recovery can 
 be had.9o 
 
 § 1968. Plaintiff's Contributory Negligence. The jury are in- 
 structed, that when a railway company fences its track, as required 
 by statute, and the fence aftenvards becomes defective, an action 
 against the comjDany for injuries to horses or cattle straying upon the 
 track, through such defective fence, cannot be maintained, if it ap- 
 pears that the owner of the animals was guilty of negligence, which 
 naturally and directly contributed to such injury.^^ 
 
 Harter, 38 Ind. 557; Eames v. S. & 90— Johnson v. Detroit & M. R. 
 
 L. R. Co., 98 Mass. 560. Co., 135 Mich. 353. 97 N. W. 760 (761). 
 
 88— Rd. Co. V. Stephenson, 24 Ohio 91— Jones v. Sheboygan & F. du 
 
 St. 48. L. R. Co., 42 Wis. 306. 
 
 89— Pittsburg. C. & St. L, R. Co. 
 V. Eby, 55 Ind. 567.
 
 1264 FORMS OF INSTRUCTIONS. [§ 1969. 
 
 § 1969. Stock Escaping and Running at Large. If the jury be- 
 lieve, from the evidence, that the horse in question broke out of the 
 pasture and went upon the railroad track, without any fault or negli- 
 gence on the part of the plaintiff, and was there killed, and that such 
 killing was the result of negligence, and of a want of ordinary care 
 and reasonable caution on the part of defendant's servants, then the 
 plaintiff was not guilty of such contributory negligence as will prevent 
 a recovery in this case.''^ 
 
 FENCING TRACK (CHILDREN). 
 
 § 1970. Duty of Railroad to Fence Track Is Also for Benefit of 
 Children. If you are satisfied from the evidence that by reason of 
 or on account of its failure to so erect and maintain such fence at 
 the point where you may conclude it is reasonable to infer that the 
 child went ujDon the track, and if you are convinced from the evi- 
 dence that the plaintiff got upon the track at the time he was hurt 
 on account of the fence not being there, — in other words, that he 
 would not have done so if such fence had existed to impede his prog- 
 ress; and, furthermore, if you believe that he got upon the track 
 without fault on the part of those who should be held accountable 
 for his care and custody, in consequence of the neglect of the rail- 
 road company, as above stated, to erect and maintain the requisite 
 fence, you would be warranted in finding that there was such negli- 
 gence on the part of the defendant in this particular as would afford 
 the plaintiff a remedy for the injuries received by him.^^ 
 
 92— T. P. & W. Rd. Co. V. John- roads this barrier against danger 
 
 son, 74 111. 83. of injury to 'his cattle and other 
 
 93 — Key.ser v. C. & G. T. Ry. Co., animals,' and deny it to his infaut 
 
 66 Mich. 390, 33 N. W. 867 (871). children who are not yet old 
 
 "I think this is a correct state- enough to enable them to compre- 
 ment of the law as heretofore held hend such perils and dangers. The 
 by this court. See this case in 56 legislature never intended any such 
 Mich. 559, 23 N. W. 311; Marcott v. limitation upon the protection to 
 Marquette, H. & O. R. Co., 47 be furnished by the fencing re- 
 Mich. 9, 10 N. W. 53 and 49 Mich, quired by the statute, and no de- 
 99, 13 N. W. 374. cision of any court giving the 
 
 "The statute requires the defend- statute such construction can re- 
 ant to fence its road with a fence ceive my approval. I know it is 
 'sufficient to prevent cattle or other said it is the duty of the parent or 
 animals from getting on such rail- guaidian of such children to re- 
 road." This clause quoted is only strain them from going into such 
 descriptive of the sufficiency of the dangers, but the experience of any 
 structure to furnish the required man acquainted with the large 
 protection. The duty of the com- families of the poor in this country 
 pany in this resi:)ect is a positive is that at best this duty can be 
 one;. The public, as well as the only imperfectly performed by the 
 company, are entitled to the bene- parents, and that it is not infre- 
 flt and protection it affords against quently the case that these little 
 the perils and dangers incident to ones are seen wandering from the 
 the use made of the road, and it Immediate care of the mother, 
 would be stranpe reasoning, in- whose domestic affairs absolutely 
 deed, thr-t would give to the citi- preclude her at times from being 
 zen living along the line of these with her children; and the present
 
 § 1971.] NEGLIGENCE— RAILROADS. 1265 
 
 ACTIONS FOR KILLING LIVE STOCK. 
 
 § 1971. Actions for Killing Live Stock — Care Due in Operation of 
 Trains, (a) The court instructs the jury that if the railroad em- 
 ployes used ordinary and proper precaution to ascertain as to whether 
 its path was obstructed, and, if it was obstructed, it used proper and 
 ordinary care such as a prudent and cautious engineer would use 
 under the same circumstances, then the railroad company could not 
 be said to be negligent in the operation of its railroad. 
 
 (b) It was his duty in the first instance to avoid a collision if he 
 could by the use of ordinaiy care, such care as a prudent ordinary 
 engineer would have used under the circumstances.^* 
 
 § 1972. Highest Duty of Engineer of Passenger Train Is to His 
 Passengers — Series, (a) The negligence for which it would be liable 
 is the failure of its engineers or employes operating its engines and 
 trains to exercise reasonable care to discover animals on the track, 
 and to avoid striking them after they have discovered them. Reason- 
 able care is the care which a prudent person would use in like agen- 
 cies and under like circumstances. If you believe from the evidence 
 that the defendant's employes operating its engines were guilty of 
 lack of reasonable care in endeavoring to discover animals upon its 
 track and to avoid striking them, and by reason of said lack of care 
 injury was inflicted upon the animals (in this case a horse), and 
 that such injury would not have occurred but for the failure on the 
 part of the defendant's engineer or employes operating its engines to 
 exercise reasonable care to discover the horse upon the track and 
 avoid striking him, then you should find for the plaintiff. 
 
 (b) If you find that the defendant's engine and train did actually 
 kill the stock, but that there was not a failure upon the part of its 
 employes operating its engines to exercise reasonable care, that is, the 
 care which a reasonable, prudent man with like agencies and under 
 like circumstances would exercise to discover animals upon the track 
 and avoid striking them or inflicting injuries upon them, the defend- 
 ant would not be liable, and as to such horse, where you find there 
 was not a failure to exercise such care, your verdict should be for 
 defendant. 
 
 (e) The court instructs you that it does not necessarily follow 
 that when an engineer discovers an animal upon the track that he is 
 negligent if he does not stop his train. Regard must be had for his 
 own safety and for the safety of his fellow employes and passengers, 
 and if a reasonable, prudent man, under circumstances in which an 
 
 would seem to be one of those gives her. The testimony received 
 
 rases; and. if accidental injury showing the defendant had omit- 
 
 overt-^kes them, it is a misfortune, ted to fence its road was properly 
 
 but not negligence on her part, admitted." 
 
 Npgligence assumes ability to do 94 — Long v. S. Ry. Co., 50 S. C. 
 
 otherwise, and better. She is at 49, 27 S. E. 531 (532). 
 least entitled to the aid the law 
 80
 
 1266 FORMS OF INSTRUCTIONS. [§ 1972. 
 
 engineer may be shown to have been by the evidence when the ani- 
 mal was discovered, would not have checked the train in the exercise 
 of reasonable prudence and caution, then he would not be guilty of 
 negligence, and the company would not be liable in that case. If, 
 however, in the exercise of such care after discovery of the animal, 
 having due regard to his own safety and the safety of his fellow 
 employes and passengers, he could have stopped the train or slackened 
 its speed or avoided striking the animal, and the evidence failed to 
 show that he exercised reasonable care in that particular, then the 
 defendant would be liable for such injury. 
 
 (d) The degree of care to be exercised is to be determined by 
 the exigencies of the situation, having regard not only to the killing 
 or avoiding injury to the animal, but also to the safety of the engi- 
 neer and his fellow employes. If in the exercise of ordinary care he 
 could have stopped or slackened his speed or avoided the injury as 
 I have told you, and he failed to do so, it would be negligence for 
 which the company would be liable. If he could not do these things, 
 having regard to the safety of himself and fellow emploj'es and pas- 
 sengers, he would not be negligent. Of this matter you are the judges 
 under the evidence. 
 
 (e) The burden is upon the plaintiff to show negligence on the part 
 of the company's employes operating its engines, and, if he has failed 
 to show a failure upon the part of the company's employes to exercise 
 ordinary care as thus defined to you, then your verdict will be for 
 the defendant. 
 
 (f) If it is shown that such failure to exercise that degree of care 
 resulted in the injury to the stock in question, then your verdict will 
 be for the plaintiff. 
 
 (g) If you find for the plaintiff, you must find a reasonable mar- 
 ket value for the animal so killed because of the negligence of its 
 employes under the instructions that I have given you. Gentlemen, 
 you are the sole judges of the credibility of the witnesses, and weight 
 to be given to their testimony. You will take into consideration all 
 the testimony in the case, and if you find by a preponderance of the 
 evidence that the plaintiff has made out his case according to the 
 instructions I have read you, then your verdict should be for the 
 plaintiff' in such sum as the evidence shows the horse was worth; 
 and if you fail to so find by a preponderance of the testimony, then 
 your verdict should be for the defendant. 
 
 (h) If, however, in the exercise of such care after the discovery 
 of the animal, having due regard to his own safety, that of his fel- 
 low employes, and, in this case I would say to the passengers on the 
 train lie could have stopped the train or slackened its speed or avoided 
 striking the animal, and the evidence showed that he failed to exer- 
 cise reasonable care in that particular, resulting in the injury to the 
 animal, tlien the defendant would be liable for such injury. 
 
 (i) Of course, gentlemen of the jury, the servants of the train, 
 in charge of the train, the highest duty of the servants and engineers.
 
 § 1973.] NEGLIGENCE— RAILROADS. 1267 
 
 would be to the passengers upon the train, if the proof shows that it 
 was a passenger train, and the engineer and servants of the defend- 
 ant would not be required, it would not be their duty, to injure their 
 passengers in an attempt to save a horse. '^^ 
 
 § 1973. Duty to Avoid Injury After Discovering Dangerous Posi- 
 tion of Live Stock, (a) Although you may believe, from the evi- 
 dence, that the stock in question got upon the railroad track of the 
 defendant, without any negligence upon the part of the company, 
 still, if you further believe, from the evidence, that the person in 
 charge of the engine by the exercise of reasonable and ordinary' care, 
 and without danger to his engine and train, could nave avoided the 
 injury, and did not do so, then the company would be liable for such 
 injury; provided, that you further believe, from the evidence, that 
 the owner of the stock, or the persons having it in charge were guilty 
 of no negligence which contributed to such injury.'*® 
 
 (b) The court instructs the jury, that if they believe, from the 
 evidence, that the persons in charge of the engine and train of cars 
 in question, by ordinary care, skill and prudence, could have seen 
 the animals, or that they did see them in season, so' that by the use of 
 ordinary care and skill and without danger to the train, they might 
 have stopped the train before striking the animals, and thus avoided 
 the injury, and did not do so, this would be such negligence as would 
 render the defendant liable for the injury and damage sustained by 
 the plaintiff; provided, the jury believe, from the evidence, that the 
 animals were injured, and that plaintiff thereby sustained damage, 
 in manner and fonn as charged in the declaration; and also that 
 plaintiff's own fault or negligence did not contribute to the injury.^^ 
 
 § 1974. Injury to Stock at Crossing, (a) The jury are instructed, 
 as a matter of law, that it would be gross negligence, in persons in 
 charge of an engine, net to see and observe stock if they are on or 
 near a railroad crossing, at least (forty) rods before reaching that 
 point, if there was nothing in the way to prevent them seeing, if they 
 had looked. 
 
 (b) And in this case, if the jury believe, from the evidence, that 
 the plaintiff's horse was injured by the defendant's engine, while the 
 horse was on a highway crossing, and that the persons in charge of 
 the engine could have seen the horse on the track, or in dangerous 
 proximity to it, in season to have stopped the cars and prevented the 
 injuiy, and did not see him, or seeing him, in season to have avoided 
 the injuiy, did not do so, this would be gross negligence, for which 
 the company would be liable unless the jury believe, from the evi- 
 dence, that the plaintiff was himself guilty of negligence, which con- 
 tributed directly and materially to the injury.^^ 
 
 95 — These instructions approved. Railroad, 37 Cal. 409; Shephard v. 
 
 Mo. K. & T. Ry. Co. v. Webb. — Railroad. 35 N. Y. 641. 
 
 Ind. Ter. — . 97 S. W. 1010. 97— T. P. & W. R. Co. v. Bray, 
 
 96— Chi. & N. W. R. Co. v. Barrie, 57 111. 514. 
 
 55 111. 226; Eames v. S. & L,. R. Co., 98— C. B. & Q. R. Co. v. Cauff- 
 
 98 Mass. 560; Locke v. St. Paul, man. 38 111. 424; Parker v. Railroad 
 
 etc., 15 Minn. 350; Needham v. Co., 34 la. 399.
 
 1268 FORMS OF INSTRUCTIONS. [§ 1975. 
 
 § 1975. Elements of Liability for Killing of Heifer. The court in- 
 structs the jury that in deciding whether a heifer belonging to the 
 plaintiff was injured by defendant's train, you will take into consid- 
 eration the testimony tending to show where the heifer was before 
 and at the time of the alleged injury ; when and where she was found ; 
 the nature of the injury; the presence or absence of other causes to 
 account for such injury; what trains, if any, had passed after the 
 heifer was seen before the injury and the time she was found to be 
 injured ; and all facts as you find them to be proven, fairly tending to 
 show whether the heifer, if injured, was injured by defendant's train 
 of cars.'*^ 
 
 § 1976. Failure to Keep a Proper Lookout for Horses on Track 
 Negligence, (a) The court charges the jury that if they believe 
 from the evidence that the horse sued for was killed on account of 
 negligence on the part of the engineer, then they must find for the 
 plaintiff. 
 
 (b) The court charges the jury that if they believe from the evi- 
 dence that the engineer in charge of the train that killed the horse 
 sued for could by keeping a proper lookout, have seen the horse be- 
 fore he got on the track, in time to check or stop the train and thereby 
 save the life of the horse, and that he failed to keep such proper 
 lookout, then the defendant is liable for the value of the horse.^**" 
 
 § 1977. Railroad Company Not Liable for Injury to Horse on 
 Track Where Reasonable Care Used, (a) If the jury believe from 
 the evidence that the train which it is alleged struck the mare in 
 question was running at a lawful rate, and had the customary appli- 
 ances and force of trainmen, and the mare, when seen by the en- 
 gineer, or might, with due care, have been seen, was so close that the 
 train could not be stopped, with ordinary care and diligence, in time 
 to avoid striking it then the plaintiff cannot recover. 
 
 (b) If you find from the evidence that plaintiff's mare, or the 
 mare in question, was grazing near the railroad track, and, becoming 
 frightened at an approaching train, ran a short distance, and then 
 jumped upon the track, and was struck and killed, and that ordinary 
 oare was used by the engineer after the animal was in danger of 
 being struck, then your verdict must be for the railroad company.^ 
 
 § 1978. Animals Coming on Track So Suddenly That Accident 
 Cannot Be Prevented. If the jury believe from the evidence tliat the 
 animals came suddenly from the left-hand side of the' track, and so 
 close to the train that the engineer could not stop in time to prevent 
 the accident, then they must find for the defendant.^ 
 
 99— Taylor v. Chi., St. P. & K. C. and the giving- of them free from 
 Ry. Co., 76 la. 753, 40 N. W. 84 (85). error. Chattanooga So. Ry. Co. v. 
 
 100— Central of Ga. Ry. Co. v. Wilson, 124 Ala. 444, 27 So. 486." 
 Edmondson, 135 Ala. 336, 33 So. 480 1— Sims v. So. Ry. Co., 59 S. C. 
 (482). 246, 37 S. p]. 836. 
 
 "Written charges 1 and 2 (a. b.) 
 given at the request of tho plaintiff 
 on a case wlmilar in its facts to the 
 present case were pronounced good, 
 
 2— Louisville & N. 
 
 R. Co. V. 
 
 Brinckerhoff, 119 Ala. 
 
 606, 24 So. 
 
 892 (894). 

 
 § 1979.] NEGLIGENCE— RAILROADS. 1269 
 
 § 1979. Failure of Engineer to See Animals on Track When He 
 Should, under the Circumstances. Although the jury may believe 
 from the evidence that the engineer did not see the animals till they 
 were falling from the pilot, still, if they believe that, under the cir- 
 cumstances, the engineer should have seen them in time to avoid the 
 injury, then the jury should find for the plaintiff.^ 
 
 § 1980, Horse Injured in Flangeway — Duty of Railroad in Con- 
 structing Road Across Street — Series, (a) If you find from the evi- 
 dence that the space necessary for flangeway in said crossing should 
 be only three inches, and if you further find that plaintiff's horse 
 was injured, as alleged, by getting his foot fast in such flangeway in 
 said crossing, and that said space thereon where he got his foot in 
 and was injured was at the time more than three inches wide, and 
 wider than was necessary for proper flangeway of the cars of defend- 
 ant passing over their road, you are authoi'ized from these facts to 
 find that said crossing was not in proper condition for the safe pas- 
 sage of horses ridden or driven across the same, and that the defend- 
 ant was negligent in so permitting the same to remain in that con- 
 dition, before and at the time the plaintiff's horse was injured. 
 
 (b) The court instructs the jury that if you find from the evi- 
 dence that defendant did so leave said space between the plant and 
 iron wider than was so necessary, and that in consequence thereof 
 plaintiff's horse got his foot fast therein, and was injured without 
 any fault or negligence of plaintiff or his employe B., your verdict 
 should be for the plaintiff for the injury so sustained by him. 
 
 (c) That if the plaintiff or his employe B., by any negligence or 
 want of care on their part contributed to produce the injury to 
 plaintiff's horse, it would prevent the plaintiff from recovering. If, 
 however, you find from the evidence that said B. at the time the 
 horse was injured was riding it in a walk over said crossing, at a 
 place thereon where horses ridden or driven usually passed on crossing 
 the same, and was so riding said horse across the same in such way 
 and manner as a prudent and careful person should do under the same 
 circumstances in view of the known danger, if any, you are from 
 ■these facts authorized to find that said B. was not in fault in pro- 
 ducing said injury to said horse. 
 
 (d) It w^as the duty of the defendant to construct its road over 
 said street so as to not interfere with the free use of the same, in 
 such manner as to afford security for life and property, and in a man- 
 ner not to necessarily impair its usefulness or injure its franchises, 
 and a part of its duty in so constructing the same is to leave space 
 for flangeway between the iron rail and plant on the inside of track 
 over the crossing no larger than is necessary for the safe and proper 
 passage of its cars; and if you find that such space for flangeway on 
 its track over said crossing was left wider than was necessary, then 
 as to that matter, you are authorized to find that defendant was neg- 
 
 3— Louisville & N. R. Co. v. Brinckerhoff, supra.
 
 1270 FORMS OF INSTRUCTIONS. [§ 1981. 
 
 ligeiit and careless; and if you further find that, in consequence 
 thereof, plaintiff's horse was injured thereby, without eontributoiy 
 negligence on the part of plaintiff, or said B., your verdict should be 
 for the plaintiff. 
 
 (e) If you find from the evidence that in May, 1889, plaintiff's 
 horse was injured, as alleged, on said crossing by getting his foot fast 
 in the space for flangeway between the rail and plank of the cross- 
 ing, and if 3'ou further find that said crossing had been in that con- 
 dition for a long time previously without being repaired, these are 
 facts that you should consider in determining whether said crossing, 
 at the time of the alleged injury, was in a safe condition, for the 
 travel of horses across it, and whether the defendant was not care- 
 less and negligent in permitting it to remain in that condition. 
 
 (f) And if you further find that, some three or four months be- 
 fore said alleged injury to plaintiff's horse, a horse driven by X. got 
 his foot in the space left for flangeway on said crossing, and that one 
 of Y. 's horses, driven by Z., got its foot fast in said space left for 
 flangeway while passing over said crossing near a year prior to said 
 alleged injury to plaintiff's horse, these are facts you are authorized 
 to consider as to whether defendant had notice of the condition of 
 said crossing prior to said alleged injury of plaintiff's horse.* 
 
 § 1981. Injury to Animal on Track — Burden of Proof as to Negli- 
 gence. The question for the jury to decide in this case is not alone 
 whether or not the plaintiff's cow was killed by the defendant's com- 
 pany, but before you can find for the plaintiff you must be reasonably 
 satisfied from the evidence that the killing was caused by the negli- 
 gence of the defendant or its employes, and the burden of proving 
 such negligence rests in this case upon the plaintiff, and the negli- 
 gence is not presumed against the defendant from the mere proof 
 of striking the cow.^ 
 
 § 1982. Running Extra Train, or Train Not on Schedule Time, Not 
 Negligence as to Live Stock. The court instructs the jury that the 
 defendant had the right to run trains over its road at any hour of 
 the day or night, and the fact that the train in question was an extra 
 train, or not running on schedule time, could not constitute negli- 
 gence." 
 
 § 1983. Burden of Proof as to Place of Injury of Live Stock Is on 
 Plaintiff. Your verdict must not be founded on mere guesses, specula- 
 tions or far-fetched inferences. You must confine yourselves to facts 
 
 4— Toledo, St. I>. & K. C. R. Co. 5— Kansas C. M. & B. R. Co. v. 
 
 v. Milllgan, 2 Ind. App. 578, 28 N. Henson, 132 Ala. 528, 31 So. 590 
 
 E. 1019 (1020). (592). 
 
 "The ln.structions objected to, "This charge should have been 
 
 and those not objected to, when g-iven. The latter is an exact copy 
 
 foiisldered together, embraced all of the one in Ala. Gr. So. R. Co. v. 
 
 the Issues in the case, and con- Boyd, 124 Ala. 525, 27 So. 408, which 
 
 talned a statement of the law of this court said should have been 
 
 the case that certainly should fur- given." 
 
 nlsh appellant no good cause for 6— Craybill v. C. M. & St. P. R. 
 
 Domplaint." Co., 112 la. 738, 84 N. W. 946 (948).
 
 § 1984.] NEGLIGENCE— RAILROADS. 1271 
 
 directly proven, and the inferences that fairlj' arise therefrom. It is 
 not for the defendant to prove that the colt was struck in the high- 
 way, but it is for the plaintiff to prove it was not struck in the high- 
 way, but was struck on the right of way. That is, if the evidence 
 fails to show where the colt was struck, then your verdict should be 
 for the defendant, as well as if it shows that it was struck on the 
 highway; but if the facts directly proven, and the fair and natural 
 inferences arising thei'efrom, fairly prove that the colt was struck on 
 defendant's right of way, then your verdict may be for the plaintiff.'^ 
 
 § 1984. Neglect to Ring the Bell, etc., Prima Facie Evidence of 
 Negligence. The jury are instructed that in a suit against a railroad 
 company for killing stock at a road crossing, an omission, on the part 
 of the company, to ring a bell or sound a whistle continuously for a 
 distance of at least (eighty) rods before reaching the crossing, if 
 proved, constitutes a prima facie ease of negligence against the com- 
 pany.® 
 
 § 1985. Burden of Proof as to Ringing Bell. The court instructs 
 the jury, that it is not for the defendant to prove that the bell was 
 rung and kept ringing for eighty rods before the engine reached the 
 highway crossing. It is incumbent upon the plaintiff to prove, by a 
 preponderance of the evidence, that said bell was not rung and kept 
 ringing for eighty rods before the engine reached said crossing.^ 
 
 § 1986. Must Exercise Reasonable Care and Watchfulness to Avoid 
 Injuring Stock, (a) If the jury believe, from the evidence, that the 
 (cow) in question was killed by a passing train of cars on the de- 
 fendant's road, and that before she was killed she was in plain view 
 of the engine driver and fireman in charge of the engine, and that 
 she was seen, or could have been seen, by them by the use of ordinary 
 care and attention, in time to have slackened the speed of the train, 
 and avoided the accident, and that no efforts were made by them in 
 that direction, this was such negligence as renders the company lia- 
 ble; provided, the jury find, from the evidence, that plaintiff's own 
 negligence did not contribute to the injury. 
 
 (b) The court instructs the jury, as a matter of law, that a rail- 
 road company is liable for stock killed upon its track, where such 
 killing results from the want of ordinaiy care and caution in the run- 
 ning of its trains, and the plaintiff's own negligence does not ma- 
 terially contribute to the injury. To render the company liable in 
 such cases, it is not necessary that the killing should be wantonly or 
 willfully done by its servants or employes.^" 
 
 § 1987. Speed Through Cities and Villages — ^Limited by Ordinance, 
 (a) The jury are instructed, that when a railroad company runs its 
 trains through a city, incorporated town or village, at a greater rate 
 of speed than is permitted by the ordinance of the city, town or vil- 
 
 7— Croddy v. C. R. I. & P. R. Co., 9— P. D. & E. R. Co. v. Foltz, 13 
 91 la. 598, 60 N. W. 214 (216). 111. App. 535. 
 
 8—1. C. R. Co. v. Gillis, 68 111. 317. 10— Rockford, R. I. & St. L. R. 
 
 Co. v. Rafferty, 73 111. 58.
 
 1272 FORMS OF INSTRUCTIONS. [§ 1987. 
 
 lage, and stock is killed by such train while so running, the killing 
 will be presumed to have been done through the negligence of the 
 company.^^ 
 
 (b) The court instructs the jury that it is negligence on the part 
 of a railroad company to run its trains through a city, ineoriDorated 
 town or village, at a rate of speed prohibited by law; and if a rail- 
 road company does so run its trains, and thereby injures or destroys 
 the property of a person who is himself in the exercise of reasonable 
 care and caution to avoid injury to such property, the company will 
 be liable.^2 
 
 (e) The court instructs the jury, that it is gross negligence on 
 the part of a railroad company to run its trains through a city, in- 
 corporated town or village, at a rate of speed prohibited by law; and 
 if a railroad company does so run its trains, and thereby causes the 
 death of a person, who is himself in the exercise of reasonable care 
 and caution to avoid injury, the company will be liable. ^^ 
 
 (d) It is the duty of a railroad company, whose road runs through 
 a city or village, to run its trains while in the city or village at such 
 a rate of speed as to have them under control, so as to be able to 
 avoid injury to persons or property, though there is no ordinance of 
 such city or village on the subject; and if it fail to do so, it will be 
 guilty of negligence.^* 
 
 (e) The court instructs the jury that although the law presumes 
 that where a train is running at a rate of speed in excess of that 
 fixed by the ordinance of a village, and property is struck and in- 
 jured by the train, that the injury was the result of negligence on 
 the part of the railroad company, yet such presumption of negligence 
 may be rebutted by the evidence; and in this case, if you believe from 
 the evidence that the injury in question was not caused by reason of 
 the north-bound train running at a rate of speed in violation of the 
 ordinance of the village of M., but that it was caused by the de- 
 fendant's horses becoming frightened at the train, and that the horses 
 were not frightened by reason of the speed of the train, but because 
 they were afraid of a locomotive, then you are instructed that the 
 plaintiff cannot recover upon the ground alone that the train was 
 running at a greater rate of speed than that fixed by the ordinance of 
 the village of M.^° 
 
 11— T. P. & W. R. Co. V. Deacon, 111. App. 558, aff'd 214 111. 602, 73 N. 
 
 63 III. 91; Monahan v. Keokuk, etc., E. 865. 
 
 R. Co., 44 la. 523; Brusberg- v. Mil- "This instruction fully and cor- 
 
 waukee. etc., R. Co., 50 Wis. 231, 6 rectly stated the law on this sub- 
 
 N. W. 821. ject, and supplied the omission 
 
 12— C. & v.. T. R. Co. V. Crose, 113 from appellee's instruction. It is in- 
 Ill. App. 547 (555), aff'd 214 111. 602, slsted that appellee's instruction is 
 73 N. K. 865. a positive statement that a rail- 
 
 13 — O. & A. R. Co. V. Becker, 84 road company is liable for all dam- 
 Ill. 4S3; C. & E. I. R. Co. v. Cross, ape done by its trains v/hile run- 
 113 111. App. 547 (555), aff'd 214 111. ninj? through an incorporated city 
 C02. 73 N. E. 865. or village at a prohibited rate of 
 
 14 — Chi. & A. R. Co. V. Engle, 84 speed if the injured party wns ex- 
 Ill. 3n7. orcisinp: reasonable rare and cau- 
 
 15 — C. & E. I. R. Co. V. Crose, 113 tion, and is irreconcilable with, and
 
 § 1988.] 
 
 NEGLIGENCE— RAILROADS. 
 
 1273 
 
 INJURIES BY FIRE. 
 
 § 1988. Prima Facie Negligence, (a) The court instructs the 
 jury, that if they believe, from the evidence, that the plaintiff's prop- 
 erty was injured by fire, caused by fire or sparks escaping from de- 
 fendant's locomotive, while passing along the railroad, in manner and 
 form as charged in the plaintiff's declaration, then, under the laws 
 of this state, these facts make a prima facie case of negligence against 
 the defendant; and the burden of proof is then upon the defendant to 
 rebut this prima facie ease, by showing affirmatively that at the time 
 in question the engine was properly constructed and equipped with 
 the best approved appliances for preventing the escape of fire; that 
 these appliances were all in good repair and condition, as regards the 
 escape of fire, or that all reasonable care and caution had been taken 
 to keep them in such repair and condition, and that the engine was 
 carefully and skillfully handled, as regards the escape of fire there- 
 
 could not be cured by appellant's 
 instruction above quoted. In C. B. 
 & Q. R. Co. v. Haggerty. 67 111. 113, 
 the Supreme Court say immediate- 
 ly following- the quotation we have 
 above given: 'Had defendant's 
 counsel been apprehensive that the 
 jury might be misled by the in- 
 struction as to the character of the 
 presumption, he might have asked, 
 on his part, an explanatory in- 
 struction to the effect that the pre- 
 sumption was not a conclusive but 
 only a prima facie one. And such, 
 in effect, may be considered the 
 fourth instruction which was given 
 on behalf of the defendant.' That 
 instruction was to the effect that if 
 plaintiff's cow was on the track 
 she was wrongfully there, and if 
 the jury believed, from the evi- 
 dence, that she was injured with- 
 out the fault of the defendant and 
 while its employees in charge of 
 the train were exercising proper 
 care and diligence to avoid injury, 
 then it would not be liable. If the 
 Instruction complained of in that 
 case could be cured by the one 
 given, it appears to us that there 
 is equally as strong or stronger 
 ground for holding that appellee's 
 fourth in.=!truction in this case was 
 cured by the one we have quoted 
 given for appellant. But if the jury 
 were told in plain and explicit 
 terms that while the law presumes 
 an injury inflicted by a train run- 
 ning at a prohibited rate of speed 
 was the result of negligence of the 
 company, still such presumption is 
 
 subject to be rebutted by proof, 
 and that if the jury believe that 
 appellee's injury was not caused by 
 the train running at a rate of speed 
 prohibited by the ordinance but 
 was caused by the horses becom- 
 ing frightened at the train because 
 they were afraid of the locomotive 
 and not because of its speed, then 
 no recovery could be had on the 
 ground that the train was running 
 at a prohibited rate of speed." 
 
 "In I. C. R. R. Co. v. Ashline. 171 
 111. 313, 49 N. E. 521, an instruction 
 was given for plaintiff telling the 
 jury that running a train at a pro- 
 hibited rate of speed within the 
 city limits 'would be negligence in 
 and of itself.' The giving of this 
 instruction was assigned for error 
 in the Supreme Court, and that 
 court said: 'The writer of the in- 
 struction no doubt supposed that it 
 was authorized by the foregoing 
 section of the statute. It is, how- 
 ever, manifest, that the instruction 
 goes somewhat further than the 
 statute. Under the statute, negli- 
 gence is presumed from a violation 
 of its provisions, while under the 
 instruction the running of trains at 
 a rate of speed in violation of the 
 ordinance is of itself negligence. 
 We think the instruction was er- 
 roneous, but the error was so slight 
 we do not think the jury could 
 have been misled, and if they were 
 not misled the error was harmless.' 
 In that case no other instruction 
 appears to have been given upon 
 this question."
 
 1274 FORMS OF INSTRUCTIONS. [§ 1988. 
 
 from; provided, the plaintiff was guilty of no fault or negligence con- 
 tributing to the injury.^*' 
 
 (b) If the jury are reasonably satisfied fi'om the evidence that 
 plaintiff's cotton was burned or damaged as the result of the negli- 
 gence on the part of defendant, either in the construction and equip- 
 ment of its engine, or in the operation and management of the engine 
 at the time, then the jury should find a verdict for the plaintiff.^'^ 
 
 (c) If the jury believe, from the evidence, that plaintiff's prop- 
 erty was injured by fire escaping from defendant 's engine, while pass- 
 ing along the railroad, as charged in plaintiff's declaration, then this 
 makes a prima facie case of negligence against the defendant; and it 
 is not enough to rebut this prima facie case to show that the engine 
 was originally constructed with the best and most approved appli- 
 ances and improvements to prevent the escape of fire. The law im- 
 poses upon the company and its employes the duty of keeping a 
 vigilant, careful watch to see that the engine is kept in proper repair, 
 so as not to be unnecessarily dangerous to property in the vicinity 
 of the road ; and unless the defendant has shown, by a preponder- 
 ance of evidence, that the engine in question was in such good 
 repair and condition at the time of the injury complained of, or that 
 all reasonable precautions had been taken to have it in such repair 
 and condition, then the defendant has not rebutted such prima facie 
 case made against it; provided the jury believe, from the evidence, 
 that the plaintiff's own fault or negligence did not contribute to the 
 injury.!'* 
 
 (d) If 3'ou find from the evidence that the fire mentioned in plain- 
 tiff's petition escaped from defendant's engine at the time and place 
 charged by plaintiff, and that the fire spread to plaintiff's pasture, 
 and injured his property, then such facts constitute a prima facie ease 
 of negligence on the part of defendant and in the absence of rebut- 
 ting evidence sufficient to overcome such prima facie ease of negli- 
 gence, will render the defendant liable for the injury, if any, caused 
 thereby. 
 
 (e) But if you believe from the evidence that sparks of fire 
 escaped from the engine of the defendant mentioned in plaintiff's pe- 
 tition, whejeby fire was communicated to defendant's pasture, and 
 burned his grass and posts thereon, and destroyed the turf thereon, 
 whereby the land was injured, yet if you believe from the evidence 
 that defendant's engine from which the sparks escaped was equipped 
 with the most improved spark arresters in use, and that the agent 
 and employes of the defendant in chai'ge of said engine used ordinary 
 care in operating said engine to prevent the escape of sparks, then 
 you are instructed to find for the defendant on this issue. ^^ 
 
 16— P. C. «& St. L. R. Co. V. Camp- 18— C. «fe A. R. Co. v. Quaintance, 
 
 hfll. 86 111. 44;?; Kfillogf? v. C. & N. 58 111. 389. 
 
 W. R. Co., 26 Wis. 223; Kesee v. 19— San An. & A. P. Ry. Co. v. 
 
 C. & N. W. R. Co., 30 Ta. 78. Tl.se, — Tex. Civ. App. — , 59 S. W. 
 
 17— So. Ry. Co. V. Wilson. 138 Ala. 564 (565). 
 
 379, 35 So. 561 (564). "That this charge is a correct
 
 § 1989.] NEGLIGENCE— RAILROADS. 1275 
 
 § 1989. But Not Conclusive Evidence of Negligence. The jury are 
 instructed that the mere fact that fire from the defendant's locomo- 
 tive caused the plaintiff's damages is only prima facie evidence and 
 not conclusive.-" 
 
 8 1990. No Recovery Against Railroad When Origin of Fire Left to 
 Guess or Conjecture. If the evidence, fairly considered, leaves this 
 matter in doubt, so that you are left to guess or conjecture as to 
 whether the fire from defendant's right of way or some other fire 
 caused the damage complained of, there can be no recovery for the 
 plaintiffs by reason thereof, and your verdict upon that issue must 
 be for the defendant.-^ 
 
 S 1991. Rule That Burden of Proof Is on Plaintiff to Show Negli- 
 gence on Defendant in Starting Fire. The jury are instructed that 
 the burden of proof is on the plaintiff to show conclusively that the 
 fire that burned his barn or granary was negligently and carelessly 
 set out by the defendant ; and unless he should so show you must find 
 for the defendant. In considering this you will bear in mind that, 
 though the plaintiff shows that the defendant's engine did set out the 
 fire, this of itself is not negligence, for if the defendant shows that 
 the engine alleged to have set the fire was provided with all the ap- 
 pliances commonly used in preventing fire from escaping it will not 
 be liable, for such a precaution will not allow the plaintiff to recover. 
 The jury will bear in mind that, if the plaintiff does show that the 
 fire was caused by the defendant, it is competent for the defendant 
 to show that the engine or engines alleged to have caused the fire 
 were provided with the best known appliances for preventing fire 
 from escaping from the smokestack or ashpan ; and if the defendant 
 does prove that it has used all due care and caution to prevent fire by 
 
 statement of the law applicable to & A. R. R. Co. v. Clampit, 63 111. 
 
 the facts in this case has been ex- 95; C. & A. R. R. Co. v. Quaint- 
 
 pressly decided by our supreme ance, 58 111. 389; T. W. «& W. Ry. 
 
 court in a number of cases. Int. «& Co. v. Larmon, 67 111. 68; P. C. & 
 
 G. N. R. Co. V. Timmerman, 61 St. L. Ry. Co. v. Campbell, 86 111. 
 
 Tex. 660; Ryan v. Railway Co., 65 443.)" 
 
 Tex. 20, 57 Am. Rep. 289; F. W. & 21— Clifford v. Minneapolis, St. 
 
 D. C. R. Co. V. Hogsett, 67 Tex. P. & S. S. M. R. Co., 105 Wis. 618, 
 
 685, 4 S. W. 365; Gal. H. & S. A. R. 81 N. W. 143 (145). 
 
 Co. V. Home, 69 Tex. 643, 9 S. W. "This was the whole gist and 
 
 440." substance of the instruction re- 
 
 20— C. & E. I. R. Co. V. Goyette, quested, namely, that the jury 
 
 133 111. 21 (29), 24 N. E. 549. must find from the evidence that 
 
 "To overcome the prima facie the damage was caused by a .fire 
 inference of negligence which for which the defendant was re- 
 arises by force of the statute from sponsible, and, if their conclusion 
 the mere fact that damages had to that effect could be only the re- 
 been caused by fire communicated suit of conjecture or guess, they 
 from a locomotive engine, it must could not allow the damages. It 
 appear not only that the engine was not necessary for the courtto 
 was provided not only with the indulge in repetition of this in- 
 best and most approved appliances, struction by applying it to the 
 but also that they were at the several places where damage was 
 time in suitable order and repair, claimed to have occurred, or to 
 and that there was no negligence any of them." 
 in their use and management. (C.
 
 1276 
 
 FORMS OF INSTRUCTIONS. 
 
 [§ 1992. 
 
 equipping- the engine with such appliances, and that its engine or 
 engines were handled by competent and careful men, and in a safe 
 manner, you must find for the defendant, even though you may be- 
 lieve the fire was caused by the defendant's engine. That is, if the 
 defendant has used care to prevent fire, it has done all that is required 
 of it, and will then not be liable.-^ 
 
 § 1992. Rule in Texas as to Instruction of Juries in Actions for 
 Injuries by Fire, (a) But if you further believe from the evidence that 
 the engine from which such sparks escaped was equipped with the 
 most approved spark aiTester in use, and that such engine was oper- 
 ated at the time in a skillful manner, so as to avoid the escape of fire, 
 as nearly as could be by the use of reasonable care, then you are in- 
 sti-ucted that the prima facie case arising from the mere fact of set- 
 ting out the fire by sparks from said engine is rebutted, and if you 
 so find you will find for defendant. If, from a consideration of all 
 the evidence, the defendant has failed to show that the engine was 
 at the time of the fire equipped with the most approved spark ar- 
 resters in use, and was in good i-epair and skillfully handled in refer- 
 ence to preventing the escape of fire, then the prima facie case made 
 out by proof of sparks escaping and causing the fire (if so proved) 
 has not been rebutted.-^ 
 
 (b) The jui-y are instructed that if, from the evidence, they believe 
 
 22— Union Pac. Hy. Co. v. Keller, 
 36 Neb. 189, 54 N. W. 420 (422). 
 
 "When, however, the evidence 
 shows that a fire originated from 
 an engine running over the de- 
 fendant's railway, it is unneces- 
 sary for the plaintiff to show af- 
 firmatively any defect in the con- 
 struction or condition of the en- 
 gine, or any negligence in its man- 
 agement. Burlington & Mo. R. 
 Co. v. Westover, 4 Neb. 268. In 
 the case cited it is said: 'There is 
 a direct conflict of authorities in 
 fhis country on this question; in 
 many of the cases, particularly 
 the early ones, it being held that 
 it devolved on the plaintiff to 
 prove negligence on the part of 
 the defendant. The better rule ap- 
 pears to be, where it is shown that 
 a fire has originated from sparks 
 thrown out by an engine, to re- 
 quire the company to show that 
 their engine was properly con- 
 structed, equipped, and operated. 
 The reason for the rule, as stated 
 In a ]i)J.c case in Wisconsin, being, 
 'that the agents and employes of 
 the road know, or are, at least, 
 bound to know, that the engine is 
 properly eqiilpped to prevent fire 
 from escaping, and that they 
 know whether any mechanical con- 
 trivances were employed for that 
 
 purpose, and, if so, what was their 
 character; while, on the other 
 hand, persons not connected with 
 the road, and who only see trains 
 passing at a high rate of speed, 
 have no such means of informa- 
 tion. Spaulding v. Railroad Co., 30 
 Wis. 122, 11 Am. Rep. 550, 8 Am. & 
 Eng. Enc. Law 9, 10, and cases 
 cited.' " 
 
 23— Texas & P. Ry. Co. v. Rice, 
 24 Tex. Civ. App. 374, 59 S. W. 833 
 (834). 
 
 "Appellant assigns error to this 
 charge upon the ground that it is 
 upon the weight of the evidence. 
 We can answer the objection made 
 no better than to quote the coun- 
 ter proposition of the learned 
 counsel for the appellee: 'As a gen- 
 eral rule of practice, it is not per- 
 missible for the court to instruct 
 the jury that proof of certain facts 
 will establish the fact of negli- 
 gence upon which the action may 
 be maintained, but in this class of 
 actions a different rule has been 
 established by the supreme court 
 of this state, and the charge above 
 given, in substance, is not subject 
 to the objection that it is upon 
 the weight of the evidence.' Gulf 
 C. & S. F. R. Co. V. Johnson, 92 
 Tex. 591, 50 S. W. 563."
 
 § 1993.] NEGLIGENCE— RAILROADS. 1277 
 
 that sparks of fire escaped from the defendant's engine, and set fire 
 to the bed and clothing of the plaintiff 0. J., and that said fire was 
 communicated to said plaintiff, and injured her, then such facts con- 
 stitute a prima facie case of negligence on the part of the defend- 
 ant, and, in the absence of rebutting evidence sufficient to overcome 
 such prima facie case of negligence, will render the defendant liable 
 for the injury occasioned thereby. If, from the evidence, they be- 
 lieve that sparks of fire escaped from the defendant's engine, and 
 set the fire which caused the plaintiff's injuries, but if, from the evi- 
 dence, they believe that the engine from which the sparks escaped 
 was equipped with the most approved spark arresters in use, and 
 that the agents and employes of the defendant in charge of said 
 engine used ordinary care in operating said engine to prevent the 
 escape of sparks, then they are instructed that the prima facie 
 ease made out by proof of escape of sparks and fire resulting there- 
 from is rebutted, and if they so believe they will find for the de- 
 fendant ; but if, from the evidence, they believe that the defendant 
 failed to equip its engine from which the sparks escaped that caused 
 the fire with the most approved spark arrester in use, or that the 
 agents and employes of the defendant engaged in operating said 
 engine failed to use ordinary care to prevent the escape of sparks, 
 then they are instructed that the prima facie case made out by proof 
 of sparks escaping and causing the fire has not been rebutted.-* 
 
 § 1993. Statutory Rule in South Carolina. If you come to the 
 conclusion that this land was burnt, as charged in the complaint, then 
 your next inquiry will be whether or not it was injured by the fire 
 communicated by a locomotive engine of the defendant company, or 
 a fire originating within the limits of the right of way of the road. 
 If it did, the plaintiff is entitled to receive whatever damages you 
 think he is entitled under the evidence. ^^ 
 
 24 — Gulf C. & S. F. Ry. Co. v. which it may be held responsible, 
 
 Johnson, — Tex. Civ. App. — , 51 and may procure insurance there- 
 
 S. W. 531 (532). on in its own behalf.' This sec- 
 
 25— Wilson v. So. Ry. Co., 65 S. tion of our statutory law has al- 
 
 C. 421, 43 S. E. 964 (966). ready been construed by this court. 
 
 "The circuit judge read to the See Thompson v. R. R. Co., 24 S. 
 jury the exact language of the C. 370; McCandless v. R. R. Co., 38 
 statute. This section is as fol- S. C. 103, 16 S. E. 429, 18 L. R. A. 
 lows: 'Every railroad corporation 440; Rogers v. R. R. Co., 31 S. C. 
 shall be responsible in damages to 378, 9 S. E. 1059; Hunter v. R. R. 
 any person or corporation whose Co., 41 S. C. 91. 19 S. E. 197. Now, 
 buildings or other property may the circuit judge had read the en- 
 be injured by fire communicated tire section to the jury, but he 
 by its locomotive engines, or orig- was very careful to tell them that 
 inating within the limits of the they could find damages for the 
 right of way of said road, in con- fire set out by the sparks from the 
 sequence of the act of any of its engine, as the complaint only cov- 
 authorized agents or employes, ex- ered injuries from that source. 
 cept in any case where property The testimony was confined to this 
 shall have been placed on the right issue. No harm could result to the 
 of way of such corporation unlaw- railroad company from any other 
 fully or without its consent, and source. This is what governed the 
 shall have an insurable interest in jury." 
 the property upon its route for
 
 1278 FORMS OF INSTRUCTIONS. [§ 1994. 
 
 § 1994. Elements Constituting Negligence in Injuries by Fire. 
 
 (a) It is not necessary that any specific act of negligence be pointed 
 out, if the circumstances established are such as a jury may infer 
 negligence from, such as running at a high rate of speed, working the 
 engine hard, overloading it, and other acts indicating an unusual 
 course in operating the engine — are things the jury may consider in 
 determining whether or not the defendant was guilty of negligence. 
 
 (b) You have a right to take into consideration every fact and 
 circumstance which tends to demonstrate, subject to the explanation 
 of the defendant, the kind of care and caution usually exercised by 
 defendant's employes in charge of the engine which alleged to have 
 set the fire, and also the sufficiency of the equipments for preventing 
 the escape of fire used by the defendant on this train in operating the 
 same, and to judge as to the probable state of repair in which the 
 engines which hauled this train were.-*' 
 
 (c) To warrant the jury in finding for the plaintiff, you must first 
 determine from the evidence whether fire which occasioned the dam- 
 age complained of originated from the engine of defendant, as averred 
 in plaintiff's petition; and, in addition thereto, you must find that 
 the fire originated from the negligence of defendant's servants by 
 means of their carelessness, or by means of defective engines or ma- 
 chinery, and the plaintiff did not directly by his own negligence eon- 
 tribute towards the destruction of the house and oats sued for herein. 
 
 (d) If the evidence fails to satisfy you that the fire which caused 
 the injury originated from the defendant's engine, you will inquire 
 no further, and at once render a vei'dict for the defendant; and you 
 will bear in mind that it is incumbent upon the plaintiff, by a pre- 
 ponderance of the evidence, to satisfy you that the fire which did the 
 injury originated from the defendant's engine. 
 
 (e) If 3^ou are satisfied that the fire did originate from the de- 
 fendant's engine, as claimed, then the burden is upon the defendant 
 to remove a presumption, though small, indeed, of negligence ; to show 
 you that the engine of the defendant from which the fire escaped was 
 in good order, properly constructed and provided with the usual ap- 
 pliances and spark arrester to prevent the escape of fire; and if you 
 so find, then it is your duty to find for the defendant, as the defendant 
 would not be liable if it used the most approved appliances, engine 
 and machinery, and it was carefully handled and managed by the 
 servants of the defendant, unless the jury believe the defendant or 
 its employes were guilty of actual negligence. 
 
 (f) Though the jury believe from the evidence that the engine 
 of defendant was supplied with a ** spark arrester" and other con- 
 trivances to prevent the escape of fire from the engine, of the most 
 approved style and pattern, yet, if the jury believe from the evidence 
 that the employes or servants of defendant operating its locomotives 
 at the time of the fire mentioned in the petition failed or neglected 
 
 26— Norwich Ins. Soc. v. Oregon R. Co., 46 Ore. 123, 78 Pac. 1025 
 
 (1026).
 
 § 1995.] NEGLIGENCE— RAILROADS. 1279 
 
 to exercise due care and caution in so operating and running said lo- 
 comotives, and that for want of such due care and caution the said 
 fire was communicated by said locomotives or engines to the house of 
 plaintiff, described in the petition, then they will find for the plain- 
 tiff. 
 
 (g) You are the sole judges of the credit that ought to be given 
 to the testimony of the different witnesses, and you are not bound to 
 believe anything to be a fact because a witness has stated it to be, 
 provided the jui-y believe from all the evidence that such witness is 
 mistaken or has knowingly testified falsely. Take this case, and from 
 all the facts and circumstances of the ease return such a verdict as 
 you believe to be just.^'^ 
 
 § 1995. Heavy Grade Requiring Engines to Be Worked Hard and 
 to Emit Sparks. I instruct you that it is the duty of the railroad 
 company to see to it that its engines and trains are skillfully and 
 carefully managed. And in this connection I instruct you that if you 
 should find from the evidence that there was a heavy grade at the 
 point where the alleged fire occurred, and that a train passing said 
 point just prior to the discovery of the fire was so heavily loaded as 
 to require the engines to be worked hard, and to cause them to emit 
 an unusual quantity of sparks, these are circumstances which you 
 have a right to consider in determining whether or not the engines 
 attached to said train were skillfull}' and carefully managed.-^ 
 
 § 1996. Running Engine Past Cotton Compress or Yard — Series, 
 (a) Even if the jury should believe from the evidence that the spark 
 which started the fire originated from a locomotive of the defendant, 
 the statute only makes it prima facie evidence of the want of reasona- 
 ble skill and care on the part of the serv^ants of the company in refer- 
 ence to the fire, liable to be rebutted by proof of such reasonable care 
 and skill; and if the jury should further believe from the evidence 
 that the fire was set out from a locomotive of the defendant, never- 
 theless, if they should further believe from the evidence that the lo- 
 comotive was properly constructed and in good order with a reason- 
 ably safe and proper spark arrester, and that the locomotive was han- 
 dled with due care, and that the spark arrester was in good condi- 
 
 27 — Union Pac. Ry. Co. v. Keller, dence may be wholly circumstan- 
 
 36 Neb. 189, 54 N. W. 420 (421). tial,--as, first, that it was possible 
 
 "These five instructions, taken for lire to reach the plaintiff's 
 together, submit the questions in- property from the defendant's en- 
 volved fairly, as shown by the gines; and, second, facts tending 
 testimony, to the jury. It devolves to show that it probably origin- 
 on the plaintiff to prove by a pre- ated from that cause, and no 
 ponderance of the evidence that other. Field v. Railroad Co., 32 
 the fire was communicated by N. Y. 339; Karsen v. Railroad Co., 
 sparks or cinders from the railway 29 Minn. 12, 11 N. W. 122; Longa- 
 engines. It need not be shown baugh v. Railway Co., 9 Nev. 271; 
 that any particular engine was at Grand Trunk R. Co. v. Richard- 
 fault, but it will be sufficient if son, 91 U. S. 454, 8 Am. & Eng. 
 the fire is proved to have been set Enc. of Law 7, 8, and cases cited." 
 by any engine passing over the 28 — Anderson v. Oregon R. Co., 
 defendant's railway; and the evi- 45 Ore. 211, 77 Pac. 119 (121).
 
 1280 FORMS OF INSTRUCTIONS. [§ 1996. 
 
 tion, but on account of a high wind prevailing at the time, or other 
 causes over which defendant had no control, a spark was accidentally 
 blown or carried onto the cotton, and that it was accidentally set on 
 fire, without any negligence or fault on the part of defendant or those 
 in charge of the locomotive and train, then the jury will find for the 
 defendant. 
 
 (b) If the jury believe from the evidence that, after the M. & O. 
 railroad was built, the compress or yard at which the cotton was 
 burned was established along side its right of way and close to the 
 railroad track, then those in charge of the compress and yard and 
 those who stored cotton there, are presumed to know that trains are 
 expected to be run with regularity, and if there are any special risks 
 arising from no want of care in the proper equipment and manage- 
 ment of the engines and trains those risks are not chargeable to the 
 railroad, but are incident of the situation, and the extra risk from 
 accident must devolve on the owners and insurers of the cotton. There 
 was no obligation on those in charge of the locomotive to shut off 
 steam, and while they must act in reference to circumstances, so as 
 not to create an unusual or unnecessary danger, still they are enti- 
 tled to transact the business in the usual and necessary manner; and 
 if the jury further believe from the evidence that those in charge of 
 the locomotive from which the fire is claimed to have originated, were 
 operating it at the time in the usual and necessary manner, and there 
 was no want of care in the proper equijiment and management of the 
 locomotive, they will find for the defendant. 
 
 (c) If the jury believe from the evidence that the locomotive by 
 which the fire is claimed to have been set was properly constructed 
 and supplied with the approved appliances to prevent the escape of 
 fire, which were in good repair at the time, and that the engineer and 
 firemen were competent, and ran the locomotive under a light head of 
 steam, and were not running over six miles an hour, and were not 
 guilty of negligence, then the defendant had discharged his whole 
 duty to the owners and insurers of the cotton, and no recovery can 
 be had, even though the fire was set out by the locomotive. 
 
 (d) If the jury believe from the evidence that the fire in contro- 
 versy was actually set out by a locomotive of the defendant and that 
 it was at the time within the corporate limits of the city of W. and 
 was running more than six miles an hour, and while, if nothing more 
 appeared, the plaintiff under the law would be entitled to recover, 
 yet, if more does appear from the evidence, and all the facts and 
 circumstances in evidence before the juiy, then they should take into 
 consideration, in arriving at their verdict, all such facts and circum- 
 stances, and if from all these they believe that there was proper 
 care in the proper and reasonable equipment and management of the 
 locomotive, and that such excess of speed had nothing to do with the 
 fire, and that the fire was in no way caused or contributed to by such 
 excess of speed, they will find for the defendant on that issue. 
 
 (e) If the jury believe from the evidence that the cotton in con-
 
 § 1997.] NEGLIGENCE— RAILROADS. 1281 
 
 troversy was set on fire by the locomotive of the defendant which 
 was at the time running more than six miles an hour within the cor- 
 porate limits of the city of W., but if they further believe from the 
 evidence that the faster a locomotive drawing a train runs, the less 
 liable it is to emit sparks or to set fire to contiguous objects, and that 
 the locomotive in controversy was in fact less liable to throw out fire 
 or sparks by reason of the fact that it was running more than six 
 miles an hour, then they are authorized to disregard the rate of speed; 
 and if they further believe from the evidence that otherwise there 
 was no want of care in the proper usual and reasonable equipment 
 or management of the locomotive, they are entitled to find for the 
 defendant. 
 
 (f ) The court instructs the jury for the defendant, that although 
 you may believe from the evidence that the defendant ran its engine 
 and trains past the property of the plaintiff at the time the fire oc- 
 curred at a rate of speed exceeding six miles an hour, yet unless you 
 are satisfied from the evidence that the fire was caused by sparks from 
 one of their engines or trains, you must return a verdict for defend- 
 ant railroad. ^^ 
 
 § 1997. Reasonable Care Rectuired to Prevent Spread of Fire, (a) 
 It is the duty of a railroad company to take all reasonable precau- 
 tions to prevent the spread of fire from its locomotives. And while 
 property owners adjoining take the risk of injuries unavoidably pro- 
 duced by fire used for generating steam, yet, for any negligence in 
 the use of it, the company will be liable. 
 
 (b) Proof of the destruction of property, by fire escaping from a 
 locomotive, raises a prima facie case of negligence, which the defend- 
 ant must rebut by showing the absence of negligence, by • a prepon- 
 derance of evidence, or that the plaintiff's own fault or negligence 
 eonti'ibuted to the injuiy."*' 
 
 § 1998. Must Provide Most Improved Apparatus to Prevent Escape 
 of Fire, (a) The jury are instructed, that railroad companies are 
 required by law to keep constantly in use the most approved ma- 
 chinery and apparatus to prevent the escape of fire from their en- 
 gines, to the injury of property along their lines, so far as this can 
 be done by the exercise of all reasonable care, skill and vigilance. ^^ 
 
 (b) If you find by a preponderance of the evidence that the fire 
 was started by sparks emitted and' thrown from one of the defend- 
 ant's engines while being operated on defendant's railroad, the de- 
 fendant will be liable, unless you further find that at that time it had 
 in use on said engine the best appliances for the preventing of the set- 
 ting out of fires, and that the said engine was at the time properly 
 handled.^2 
 
 29— Clisby v. Mobile & O. R. Co., nell, 94 111. 449; C. & A. R. Co. v. 
 
 78 Miss. 937, 29 So. 913 (915). Quaintance, 58 III. 389. 
 
 30— Coale v. Hannibal, etc., R. 32— German Ins. Co. v. C. & N. 
 
 Co.. 60 Mo. 227. W. Ry. Co., 128 la. 386, 104 N. W. 
 
 31— T. P. & W. R. Co. v. Pindar, 361 (363). 
 53 111. 447; C. & A. R. Co. v. Pen- 
 81
 
 1282 FORMS OP INSTRUCTIONS. [§1998 
 
 (c) The law does not require a railroad company to provide and 
 use the veiy best known appliances that mechanical skill and inge- 
 nuity have been able to devise and construct to prevent the escape 
 of sparks from its locomotives, but they are required to use all rea 
 sonable means to that end, and where a new improvement of such ap- 
 pliances has been made, or a new invention introduced, which has 
 been tested and generally approved as better than that it is using, it 
 is required to adopt and use the better appliances.^^ 
 
 (d) The court instructs you, that the defendant was not bound 
 to furnish the very best or most improved kind of machinery or ap- 
 paratus to prevent the escape of fire from its engine; and if you be- 
 lieve, from the evidence, that the engine, etc., connected with the same 
 were reasonably safe, and such as are ordinarily used for the purpose 
 for which these were intended, and that the defendant was not other- 
 wise guilty of negligence, then the defendant would not be liable in 
 this case. 
 
 (e) Although you may believe, from the evidence, that an improve- 
 ment has been made and patented upon engines similar to the one in 
 question, or upon the apparatus used in connection therewith, for pre- 
 venting the escape of fire, yet the defendant was not, on that account, 
 bound to purchase or use such improvement; the defendant was only 
 under obligation to use reasonable and ordinary care in providing 
 suitable and safe machinery, and to provide such as was reasonably 
 safe.3* 
 
 (f) The court charges the jury that if they believe from the evi- 
 dence that one of the defendant's engines threw sparks upon plain- 
 tiff's shed, or directly against it, and that the sparks so thrown 
 themselves set fire to the shed, and that the burning shed communi- 
 cated the fire to the plaintiff's other property; and, further, that 
 such engine was furnished with a spark arrester and other appliances 
 of approved character to prevent, so far as possible, throwing sparks, 
 and was properly handled by the engineer, and that such spark ar- 
 rester and other appliances were in good condition, then they ought 
 to find a verdict for the defendant. ^^ 
 
 (g) If you believe from the evidence that fire was communicated 
 from a locomotive or locomotives of the defendant to the premises of 
 plaintiffs and interveners at a point or points without defendant's 
 right of way, as alleged in their petition and plea, and that said fire 
 or fires burned over the premises of plaintiffs and interveners, or 
 part or parts thereof and destroyed any grass, cane, or wood thereon, 
 or destroyed or injured any grass turf, or destroyed or injured any tim- 
 ber thereon, as alleged in plaintiff's petition and interveners' plea, and 
 if you further believe from the evidence that the defendant had used 
 ordinary care to have its locomotives equipped with the best appli- 
 
 33— Toledo, W. & W. Rd. Co. v. 35— Louisville & N. R. Co. v. 
 Corn, 71 111. 493. Sullivan T. Co., 138 Ala. 379, 35 So. 
 
 34— Camp Point Mfg. Co. v. 327 (Xn.). 
 Ballou, 71 111. 417.
 
 § 1998.] NEGLIGENCE— RAILROADS. 1283 
 
 ances in general use by railway companies for preventing the escape 
 of fire and sparks, and that defendant had used ordinary care to keep 
 such appliances in repair and serviceable condition, and that defend- 
 ant's employes in charge of its locomotives used ordinary care to op- 
 erate the said locomotives, so as to prevent the escape of fire and 
 sparks, then ujDon all claims made by plaintiffs and interveners in 
 their pleadings for damages, if any, resulting from fires so communi- 
 cated at points without defendant's right of way, you will find for de- 
 fendant.^*' 
 
 (h) You are instructed that if you find from the evidence that the 
 plaintiff's lands were burned over by fire at or about the time, as 
 alleged in his petition, and that said fires w'ere set out by sparks emit- 
 ted fi'om the engines of the defendant company, and you further find 
 that the engines of the defendant company were properly equipped 
 with the most approved spark arresters and api^liances determined 
 by practical railroad men to be among the best in use on railroads 
 for the prevention of the escape of sparks, fire, and cinders from lo- 
 comotives, and that such apparatus and appliances were in good or- 
 der and repair and that the engines were carefully and properly han- 
 dled by competent employes of the defendant company at the time 
 of the alleged setting out of the fires complained of by said plaintiff, 
 then you are instrucis. .;at although you may believe that the fires 
 were set out by the defendant's engines the burden of proof is upon 
 the plaintiff to show that the damages complained of was the result 
 of the negligent act or omission of the defendant or its employes; 
 and if you find from the evidence that the said fires (if any) were 
 so caused by the negligence of said defendant or its employes, then 
 you will find for the plaintiff such an amount as damages as you 
 find from the evidence he has sustained ; but if you find from the 
 evidence that said fires (if any) were caused or originated from some 
 other source than from the defendant or its employes or its engines, 
 and was not set out by defendant's engines or by it or its employes, or 
 
 36 — St. L. S. W. Ry. Co. v. Con- it has used ordinary care to have 
 
 nally, — Tex. Civ. App. — , 93 S. W. its locomotives equipped with the 
 
 206 (208). best appliances in general use by 
 
 "It is contended that a charge railway companies for preventing 
 
 that requires a railroad company to the escape of fire and sparks, and 
 
 have its locomotives equipped with that it has used ordinary care to 
 
 the best appliances in general use keep such appliances in repair, and 
 
 by railway companies for prevent- that defendant's employes in 
 
 ing the escape of fire and sparks, charge of its locomotives used or- 
 
 and that requires such com- dinary care in operating the said 
 
 pany to use ordinary care to keep locomotives to prevent the escape 
 
 said appliances in repair and ser- of fire and sparks. Biering v. Rail- 
 
 viceable condition, imposes a bur- way, 79 Tex. 586, 15 S. W. 576; 
 
 den on such company not war- Dillingham v. Whittaker, — Tex. 
 
 ranted by law. We understand. Civ. App. — , 25 S. W. 723; Gulf C. 
 
 where fire is communicated by the & S. F. R. Co. v. Reagan, — Tex. 
 
 locomotives of the defendant to Civ. App. — , 32 S. W. 846; St. L. S. 
 
 the premises of the plaintiff lying W. R. Co. v. Gentry, — Tex. Civ. 
 
 outside of the right of way, the App. — , 74 S. W. 607. The charge 
 
 law is that the defendant, to make was in accord with this principle 
 
 out its defense, must show that and is correct."
 
 1284 FORMS OF INSTRUCTIONS. [§ 1999. 
 
 if you find that said fires (if any) were set out by the defendant or 
 its employes or engines, but that neither said defendant nor em- 
 ployes were guilty of negligence in so setting out said fires (if any) 
 then the plaintiff should not recover, and you will find for the de- 
 fendant.^'^ 
 
 8 1999. Effect of Failure to Use Most Approved Apparatus to Pre- 
 vent Escape of Fire or to Use Ordinary Care in Preventing Escape 
 of Sparks, (a) The court instructs the jury that if, from the evi- 
 dence, they believed that sparks of fire escaped from the defendant's 
 engine, and set fire to the bed and clothing of the plaintiff, J., and 
 that said fire was communicated to said plaintiff, and injured her, 
 then such facts constitute a prima facie case of negligence on the part 
 of the defendant, and, in the absence of rebutting evidence sufficient 
 to overcome such prima facie case of negligence, will render the de- 
 fendant liable for the injury occasioned thereby. If, from the evi- 
 dence, they believe that sparks of fire escaped from the defendant's 
 engine, and set the fire which caused the plaintiff's injuries, but if, 
 from the evidence, they believe that the engine from which the sparks 
 escaped was equipped with the most improved spark arresters in use, 
 and that the agents and employes of the defendant in charge of said 
 engine used ordinary care in operating said engine to prevent the 
 escape of sparks, then they are instructea i :•.. uhe prima facie ease 
 made ont by proof of escape of sparks, and fire resulting therefrom, 
 is rebutted, and, if they so believe, they will find for the defendant; 
 but if, from the evidence, they believe that the defendant failed to 
 equip its engine from which the sparks escaped that caused the fire, 
 with the most improved spark arresters in use, or that the agents 
 and employes of the defendant engaged in operating said engine 
 failed to use ordinary care to prevent the escape of sparks, then they 
 are instructed that the prima facie case made out by proof of sparks 
 escaping and causing the fire has not been rebutted. ^^ 
 
 (b) If you believe from the evidence that sparks escaped from 
 
 37— St. Li. S. W. Ry. Co. v. Con- tablish the fact of negligence upon 
 
 nally, — Tex. Civ. App. — , 93 S. W. which the action may be miiin- 
 
 206 (208). tained; but in this class of actions 
 
 "This special charge applied the a different rule has been estab- 
 
 law to the facts, and affirmatively lished by the decisions of the su- 
 
 submitted the defenses which the preme court of this state, and the 
 
 evidence in any way tended to sup- charge before copied is not subject 
 
 port." to the objection that it is upon the 
 
 38— Gulf C. & S. F. Ry. Co. v. weight of the evidence. Int. & G. 
 
 Johnson, 92 Texas 591, 50 S. W. 563. N. R. Co. v. Timmermann, 61 Tex. 
 
 "The charge in this case did not 6C0; Ryan v. M. K. & T. R. Co., 65 
 
 shift the burden of proof from the Tex. 13; Mo. Pac. R. Co. v. Bart- 
 
 plalntlff to the defendant, as is lett, 69 Tex. 79, 6 S. W. 549; Gulf 
 
 claimed, but, as in every other C. & S. F. R. Co. v. Benson, 69 
 
 case where a prima facie right is Tex. 407, 5 S. W. 822, 5 Am. St. 74; 
 
 established, it called upon the de- Gal. H. & S. A. R. Co. v. Home, 
 
 fendant to meet the case made in 69 Tex. 643, 9 S. W. 440; Campbell 
 
 order to defeat the plaintiffs right v. Goodwin. 87 Tex. 273, 28 S. W. 
 
 of recovery. As a general rule of 273; Tex. & P. R. Co. v. Levine, 87 
 
 practice, it is not permissiljle for Tex. 4.37, 29 S. W. 466; Railroad Co. 
 
 the court to Instruct the jury that v. McDonough, 1 White & W. Civ. 
 
 the proof of certain facts will es- Cas. Ct. App. 354."
 
 § 2000.] NEGLIGENCE— RAILROADS. 1285 
 
 one of defendant's engines and set out a fire which destroyed plain- 
 tiffs' property, and if you further believe from the evidence that the 
 plaintiffs did not contribute to the starting of said jfire, then you 
 will find for plaintiffs the market value of all their property so de- 
 stroyed at the date of its destruction, with interest thereon at the 
 rate of six per cent, per annum from the 25th day of August, , un- 
 less you find from the evidence that said engine was equipped with 
 the most approved spark arresters in use, in good order, and that the 
 agents and employes of defendant in charge of said engine used or- 
 dinary care in operating said engine to prevent the escape of sparks 
 therefrom.^^ 
 
 § 2000. Dry Weeds and Grass, (a) If the jury believe, from the 
 evidence, that the defendant, negligently and carelessly, allowed dry 
 gi-ass, weeds, and other combustible material, to accumulate on its 
 right of way adjoining plaintiff's premises so as to unnecessarily in- 
 crease the hazard from fire, and that by reason of such accumulation 
 of combustible material, the fire was kindled, and communicated to 
 the fence and field of the plaintiff, and further, that the plaintiff's 
 own negligence in no manner conti'ibuted to the kindling or the 
 spreading of the fire, then the jury should find for the plaintiff the 
 amount of damages, if any, which are proved to have resulted from 
 said fire. And in such case it makes no difference whether the best 
 appliances to prevent the escape of fire were or were not used on the 
 engine from which the fire escaped, if the jury believe, from the evi- 
 dence, that the fire did escape from defendant's engine.**' 
 
 (b) That if the jury find from the evidence that the defendant 
 company permitted dead grass and straw, dried-up leaves, and an 
 accumulation of combustible matter to exist on its right of way, so 
 near the track as to catch fii'e from the engine, and it did catch from 
 the engine, and the firie spread across the lands of another person to 
 plaintiff's lands, defendant company would be liable to plaintiff for 
 damages sustained. There is no evidence of contributory negligence 
 upon the part of plaintiff.*^ 
 
 (c) The jury are instructed, that in determining the question, 
 whether or not the defendant was guilty of negligence, which con- 
 tributed to the fire in question, in permitting grass, dry weeds or 
 leaves to accumulate within its right of way at the point where the 
 fire in question occurred, the jury should consider and determine 
 from the evidence, whether the defendant permitted such an accumu- 
 lation of diy grass, weeds and leaves or other combustible material 
 upon its right of way at the point in question, as would not have been 
 
 39— Tex. & P. R. Co. v. Wool- etc., R. Co., 8 Allen 438; I. C. R. 
 
 dridge. — Tex. Civ. App. — , 63 S. Co. v. Nunn, 51 111. 78; Poepper v. 
 
 W. 905 (907). M., etc., R., 67 Mo. 715; Jones v. 
 
 40— Flvnn v. San Francisco R. M. C. R. Co., 59 Mich. 437, 26 N. W. 
 
 Co., 40 Cal. 14; Martin v. W. U. R. 622. 
 
 Co., 23 Wis. 437; I-Iewey v. Noui'se, 41 — Blue v. Aberdeen & W. E. R. 
 
 54 Me. 256; IngersoU v. Stockridge, Co., 116 N. C. 955, 21 S. E. 299 (300).
 
 1286 FORMS OF INSTRUCTIONS. [§ 2000. 
 
 likely to be permitted by an ordinarily careful and prudent man upon 
 his own premises, if his property were exposed to the same hazard.*^ 
 
 (d) If you find from the evidence that the defendant negligently 
 and carelessly permitted dry grass, weeds and other combustible ma- 
 terials to accumulate on its right of way adjoining the plaintiff's 
 premises, so as to unnecessarily increase the hazard from fire, and 
 that by reason of such accumulation of combustible materials, fire 
 escaping from the defendant's engine was kindled therein, and thence 
 communicated to plaintiff's property, which was thereby destroyed, 
 without the negligence of the plaintiff in any manner contributing 
 thereto, you should find for the plaintiff, even though the escape of the 
 fire from such engine was without any fault on defendant's part.*^ 
 
 (e) If you believe from the evidence that the defendant negli- 
 gently permitted grass and weeds to accumulate and become dry on 
 its right of way, and that fire was communicated from locomotives of 
 defendant to such grass and weeds and spread therefrom to premises 
 of plaintiffs and interveners or any of them, and burned over part or 
 parts of said premises, and destroyed grass and cane thereon, and 
 destroyed any cord wood thereon and damaged and injured or de- 
 stroyed grass, turf or trees thereon, as alleged in their petition and 
 plea, then you will find for the plaintiffs and intei'veners for all such 
 damages, if any, so caused. 
 
 (f) If you believe from the evidence that the fire was communi- 
 cated from defendant's locomotive or locomotives to the premises of 
 plaintiffs and interveners, or either of them, at a point or points with- 
 out defendant's right of way, and that such fire burned over the 
 premises of plaintiffs and interveners, or a part or parts thereof, and 
 destroyed any cane or grass growing thereon, and destroyed any cord 
 wood, corded thereon, or damaged and injured plaintiffs' or inter- 
 veners' land by destroying or injuring the grass turf thereon, or de- 
 stroying and injuring any forest trees thereon, as alleged in their peti- 
 tion and plea, then you will find for plaintiffs and interveners all 
 such damages, if any, as were caused by fire communicated, unless 
 you find for the defendant under other instructions hereinafter 
 given.** 
 
 (g) If, at the time the property in question was destroyed, the de- 
 fendant's right of way at the place where the fire started, if it started 
 on the right of way, was free and clear from dry grass, weeds and 
 other combustible materials, then in that case the defendant would 
 not be liable in this action on the second ground above mentioned.'"' 
 
 (h) Although a railroad company has the right to use fire in gen- 
 
 42 — Snyder v. Pittsburg-, etc., R. again recognized in Omalia F. & 
 
 Co.. 11 W. Va. 14. Ex. Ass'n v. Mo. Pac. R. Co., 42 
 
 43— Union Pac. R. Co. v. Ray, 46 Neb. 105, 60 N. W. 3.30." 
 
 Neb. 750, 65 N. W. 773. 44— St. L. S. W. R. Co. v. Con- 
 
 "The correctness of the general nally, — Tex. Civ. App. — , 93 S. 
 
 principle stated in this instruction W. 206. 
 
 1h established by Railroad Co. v. 4.5— Union Pac. R. Co. v. Ray, 46 
 
 Westover, 4 Nob. 268, and was Neb. 750, 65 N. W. 773 (774).
 
 § 2001.] NEGLIGENCE— RAILROADS. 1287 
 
 erating steam, yet if, by negligence in the condition of its property, 
 which contributed to the damage by reason of such fire, such rail- 
 road is liable for any damage that may so result. 
 
 (i) A railroad has a right to use its property in the running 
 of its trains. It has also the right to use fire to generate steam 
 for the purpose of running its trains. But, while this is true, I 
 charge you that the railroad must so use its property and the fire 
 necessary for the generating of steam, in such manner, as to prevent 
 injury to adjoining property, if it can reasonably do so. 
 
 (j) If the jury should believe from the evidence that this fire 
 was caused by sparks from the engine of the railroad company, 
 then, though they should further find that the engine was pj'operly 
 equipped with improved spark arresters, and was in all respects 
 properly managed, should the proof satisfy the jury that the railroad 
 company failed to keep its track and right of way clean of grass, 
 likely to be ignited by sparks, this fact, if it be a fact, will make 
 the defendant liable for the damage resulting from the fire. 
 
 (k) It is a matter of common knowledge that, in the month of 
 February, Bermuda grass, in this latitude, is not in a green or grow- 
 ing state. 
 
 (1) If it be a fact shown in this case that the railroad company 
 permitted dry grass to be and remain on its right of way, liable to 
 be ignited by sjDarks from its engine, then I charge you that this fact 
 may be overlooked by the jury to determine whether the railroad 
 company was guilty of negligence. 
 
 (m) If the jury find from the evidence that the fire was discov- 
 ered immediately after the passing of the engine along where the 
 fire was, then the burden of proof is cast upon defendant to show 
 that the fire did not originate from its engine, or that its engine and 
 property were in good order and properly managed. 
 
 (n) If it be a fact shown in this case that the railroad company 
 permitted dry grass to be and remain on its right of way, liable to be 
 ignited by sparks from its engine, then I charge j^ou that this was 
 negligence on the railroad company.'*^ 
 
 § 2001. Damages to Turf from Which Grass Is Burned. If you find 
 that the turf, from which the grass was burned, was injured by said 
 fire, you will find for the plaintiffs such additional damages, if any, 
 as the evidence may show will compensate plaintiffs for such injury 
 to the turf.*^ 
 
 46 — Louisville & N. R. Co. v. Mil- market value of the land imme- 
 
 ler, 109 Ala. 500, 19 So. 989 (990). diately before the injury and im- 
 
 47— Texas & P. R. Co. v. Rice, 24 mediately thereafter. This is the 
 
 Tex. Civ. App. 374, 59 S. W. 833 general rule, but in this case, 
 
 (834). where the allegations and proofs 
 
 "The objection assigned to this were as to damages resulting from 
 
 charge is that the proper measure the diminished power of the turf 
 
 of damages is not given; that, in- to produce grass for pasturage 
 
 jury to the turf being injury to purposes the succeeding year, we 
 
 the land itself, the true measure think the court's charge was cor- 
 
 of damages is the difference in the rect, and the rule as given therein
 
 1288 FORMS OF INSTRUCTIONS. [§ 2002. 
 
 § 2002. Degree of Care Required of Land Owner, (a) The court 
 instructs the jury, that the owner of land adjoining a railroad track 
 is as much bound to keep his land free from unusual and dangerous 
 accumulations of combustible matter as a railroad company is its right 
 of way. And if the owner or occupant permits an unusual and dan- 
 gerous accumulation of dead grass, dry leaves, or other combustible 
 material to accumulate on his land next to the company's right of 
 way, and a fire is ignited on the right of way, and is thence communi- 
 cated to the fields adjoining, by means of such unusual and dangerous 
 accumulations of combustible material, then the negligence of the 
 owner will be held to have contributed to the loss and injury, and in 
 such a case the owner of the property injured cannot recover for 
 such injury, unless the jui'y believe, from the evidence, that his negli- 
 gence was but slight, and the negligence of the railroad company was 
 gross, as explained in these instructions.*^ 
 
 (b) While the owner of property in danger of loss is charged with 
 the duty of saving it from destruction if he can do so with the exer- 
 cise of reasonable care and precaution, yet he is not bound to use 
 unusual care and caution in anticipation that it may be negligently 
 destroyed by another, so that if in this case the plaintiff's property 
 was negligently set on fire by sparks from one of the locomotives of 
 the defendant, while it was the duty of appellant to save it from 
 destruction if he could do so by the exercise of reasonable care and 
 caution, yet it was not bound to use the care and precaution of pro- 
 viding waterworks and appliances as means of extinguishing the 
 fire, and its failui-e to do so would not constitute contributory negli- 
 gence.*^ 
 
 (e) The court instructs you, as a matter of law, that it is not 
 negligence on the part of the owner, or occupant, of property in- 
 jured by fire escaping from an engine passing along a railroad, that 
 he has used the property in the manner, or permitted the same to 
 be used, or remain in the condition in which it would have been used 
 or remained, had no railroad passed through or near it.^" 
 
 (d) If you believe fi'om the evidence that jalaintiff, knowing that 
 the straw in question was .easily set on fire, placed same, in an un- 
 protected condition, nearer defendant's railroad tracks, where he 
 knew it was daily operating trains, than a man of ordinai'y prudence 
 and caution would do, then plaintiff would be guilty of contributory 
 negligence, and would not be entitled to recover in this case.^^ 
 
 (e) But if you believe from the evidence that the said engine 
 
 more appropriate to the case al- monson, 25 111. 504; Ohio & M. R. 
 
 leged and proved than the rule Co. v. Shanefect, 47 111. 497. 
 
 contended for would have been. 49 — Indiana Clay Co. v. B. & O. 
 
 Gulf C. & S. F. R. Co. V. Jagoe, — S. W. R. Co., 31 Ind. App. 2'^8, 67 
 
 Tex. Civ. App. — . 32 S. W. 717; Ft. N. E. 704. 
 
 W. & N. O. R. Co. v. Wallace. 74 50— Flynn v. S. F. & S. J. R. Co., 
 
 Tex. 581, 12 S. W. 227; Gulf C. & 40 Cal. 14; Kellogg v. C. & N. W. 
 
 S. F. R. Co. V. Jones, 1 Tex. Civ. R. Co., 26 Wis. 223; Del. L. & W. 
 
 App. 372, 21 S. W. 145." R. Co. v. Salmon. 39 N. J. L. 299. 
 
 48— C. & N. W. R. Co. v. Si- 51— Ft. Worth & R. G. R. Co. v.
 
 § 2003.] NE'GLIG-ENCE— RAILROADS. 1289 
 
 was equipped with the most approved spark arresters in use, in 
 good order, and that the agents of the defendant in charge of said 
 engine used ordinary care in operating said engine to prevent the 
 escape of sparks, then you are instructed that lohvintiffs cannot re- 
 cover unless you believe from the evidence that the defendant com- 
 pany, by failing to use ordinary care, had permitted combustible 
 material to be and accumulate on its right of way, and that sparks 
 escaping from said engine set fire to the combustible material on 
 said right of way, and communicated to and destroyed the plaintiffs' 
 property. If you find from the evidence that the plaintiffs or their 
 emplo3'es, through want of proper care, as above defined, negligently 
 caused or permitted shucks or other combustible material to be on 
 or about their premises in close proximity to their buildings, or to 
 accumulate on defendant's right of way, and if you believe that such 
 negligence on the part of plaintiffs or their employes, if it was negli- 
 gence, aided or contributed in starting the fire, then you will find 
 for the defendant, even though you may find that the defendant 
 company was guilty of all the negligence charged against it.°- 
 
 § 2003. Effect of Plaintiff's Building Being on Defendant's Right 
 of Way. (a) If you should find that the plaintiff's building which 
 was burned was on the defendant's right of way, and was not used 
 as a warehouse for storing goods awaiting shipment, and that plain- 
 tiff, or the one of whom he purchased the building, was ordered by 
 the defendant to remove the building from the ground, and neglected 
 and refused to comply with such order, he cannot recover, and you 
 must find for the defendant, for, after being warned to remove from 
 the right of way, the law presumes he took all the risk upon himself 
 of loss in not complying with the demand, and, remaining there, did 
 so at his own risk. You cannot presume that he was ignorant of the 
 danger and exposure to fire. 
 
 (b) If you find that the plaintiff was on the defendant's right of 
 way by vii-tue of a lease, either verbal or written, made with the 
 defendant, or from any one as a sublessee, to whom it had rented 
 the ground, and that one of the conditions of the lease was that the 
 lessee assumed all risks of damage by fire caused by defendant as a 
 part of the consideration, he cannot recover and you must find for 
 the defendant. Such a release from damages would be valid, and 
 constitute a bar to plaintiff's recovering.^^ 
 
 § 2004. Reasonable Care and Diligence Only Required by the Com- 
 pany. Although the jury may believe, from the evidence, that the 
 injury complained of was caused by sparks escaping from defend- 
 ant's locomotive, this alone is not sufficient to prove negligence on 
 the part of defendant. In order to warrant a verdict in this case, 
 the jury must believe, from the evidence, not only that the injury 
 
 Dial, — Tex. Civ. App. — , 85 S. W. dridge, —Tex. Civ. App. — , 63 S. 
 22 (24). W. 905 (907). 
 
 52— Texas & P. R. Co. v. Wool- 53— Union Pac. R. Co. v. Keller, 
 
 36 Neb. 189, 5i N. W. 420.
 
 1290 FORMS OP INSTRUCTIONS. [§2005. 
 
 was caused by sparks escaping from defendant's engine, but it must 
 further appear from a preponderance of the evidence, that the de- 
 fendant was guilty of negligence in permitting such sparks to escape, 
 or in permitting (as alleged in the declaration).^* 
 
 OBSTRUCTING HIGHWAYS. 
 
 § 2005. Obstructing Highway by Leaving Cars Standing on Track. 
 
 You are instructed that if you believe from the evidence that the ser- 
 vants and employes of the defendant railroad company obstructed 
 said public highway by leaving cars or a car standing on its tracks, 
 w^iere the track intersects or crosses said H. street, at the times 
 mentioned in the declaration, and that the ears were not standing 
 there for the purpose of receiving or discharging passengers, or to 
 receive necessary fuel and water, then the railroad company is liable 
 and you will find for the plaintiff for each offense proven by the evi- 
 dence, such a sum as you may think proper, not to exceed one hundred 
 dollars, nor less than ten dollars for each offense so proven.^^ 
 
 DEDICATION OF LANDS. 
 
 § 2006. Dedication of Lands for Use by Railroads, (a) The court 
 instructs the jury that a railroad corporation is a public corpora- 
 tion, and is an ever existing grantee, capable of taking lands by 
 conveyance or by dedication by plat by the owner for railroad 
 purposes. 
 
 (b) The court instructs the jury that the word ''dedication" used 
 in these instructions means an appropriation or division or setting 
 apart by the former owners of the land in question for railroad pur- 
 poses by a plat. The dedication may be made by plat and survey 
 alone, without any declaration, either oral or on the plat, when it 
 is noted on the face of the plat that it was intended to set apart 
 certain grounds for the use of the public or for the use of a certain 
 corporation.''" 
 
 SWITCHES AND FARM CROSSINGS. 
 
 § 2007. When Switch Presumed to be Permanent — Measure of 
 Damages for Removal. If you find from the evidence that plaintiff 
 made an agreement with the defendant to place a switch track on 
 its right of way near his farm, and that in pursuance of such an 
 agreement plaintiff did, with defendant's consent, and by the terms 
 of said agreement, furnish ties and did grading for said switch, then, 
 
 54— Ruffner v. C, etc., R. Co., 34 56— L,. E. & W. R. Co. v. Whit- 
 
 Ohlo St. 96. man, 155 111. 514 (526), 40 N. E. 1014, 
 
 55—1. C. R. Co. V. People. 59 111. 28 L>. R. A. 612. 
 App. 256 (258).
 
 § 2008.] NEGLIGENCE— RAILROADS. 1291 
 
 in the absence of evidence to the contrary, you are to presume that 
 said switch was to be permanent; and if defendant removed the same 
 without ijlaintiff's consent, plaintiff is entitled to recover the amount 
 expended by him in obtaining said switch, not to exceed sixty dol- 
 lars."^ 
 
 §2008. Establishment of "Necessary" Plantation Roads Under 
 Terms of Statute, (a) While the crossing must be over a necessary 
 plantation road, the word "necessary" is not to be construed in the 
 sense that the road must be absolutely essential to the use of the plan- 
 tation. The jury will take into consideration the size and location 
 of the plantation, the uses to which it is devoted, the location of the 
 railroad, and all the other facts in evidence, in determining whether 
 the road was a necessary one for the plaintiff in the reasonable use 
 of her plantation. 
 
 (b) Under the second count in her declaration, the plaintiff sues for 
 the penalty prescribed by section 3561 of the Code of 1892, which 
 requires railroad companies to make and maintain convenient and 
 suitable crossings over its tracks for necessary plantation roads. This 
 statute does not require the defendant to make an indefinite number 
 of crossings for any particular person, nor that the number of cross- 
 ings shall be increased to suit the caprice or promote the convenience 
 of any single proprietor. The crossing must be for a necessary plan- 
 tation road ; and the plaintiff, to recover, must show an actual neces- 
 sity for the plantation road; mei'e convenience to her is not sufficient 
 to sustain a claim to the penalty prescribed by the law, which is to 
 be strictly construed. ^^ 
 
 57— Scholten v. St. L. & S. F. with it, certainly put the law on 
 
 R. Co., 101 Mo. App. 516, 73 S. W. this point, to the jury, as favora- 
 
 915 (916). bly to appellant as could reason- 
 
 "If it be conceded that by impli- ably be asked. Dubbs v. Railroad 
 cation the railroad was accorded Co., 148 Pa. St. 66, 23 Atl. 883, is a 
 the right to remove the switch, case strikingly in point, and in 
 when its operation had ceased to support of our view. There, as 
 be profitable and plaintiff had here, it was urged that, by making 
 ceased to furnish shipments of a detour of half a mile, the cross- 
 freight sufficient to warrant its ing already established could be 
 further maintenance, yet it is but reached, and would thus be made 
 just that the railroad make resti- to serve all necessary uses. But 
 tution to plaintiff of that portion the court said: 'Thus by making 
 of the cost of its construction con- a detour of half a mile, he can 
 tributed by him, and this is at- reach the southern side of his 
 tained by the verdict of the jury farm. If it were a detour of five 
 for plaintiff in the amount of the miles, the principle would be the 
 value of the cross-ties furnished same. The plain object of the act 
 by him (which the testimony shows of 1849 was to compel railroad com- 
 the defendant removed and con- panics to give the owners of farms 
 verted) together with the cost of a convenient mode of access from 
 the grading paid by him." one part to the other, when di- 
 
 58— Ala. & v. R. Co. v. Odeneal, vided by a railroad, "^liile it may 
 
 73 Miss. 34, 19 So. 202 (203). not be impossible for a farmer, in 
 
 "The second instruction for gathering his crops, to make a de- 
 plaintiff is a very clear and accu- tour of half a mile in getting from 
 rate expression of the law upon one field to an adjoining field, It 
 this subject; and the appellant's would manifestly be intolerably iU; 
 fourth instruction, in connection convenient.' "
 
 1292 FORMS OF INSTRUCTIONS. [§ 2009. 
 
 § 2009. Less Degree of Care Required at Farm Crossings than at 
 Public Crossings, (a) The court instructs the jury that railroad 
 companies are not required to make and maintain in repair farm 
 crossings or private crossings in the State of Illinois for the con- 
 venience of adjoining- land owners so that the same will be safe for 
 persons on foot at all times, but such farm crossings or private cross- 
 ings for the convenience of adjoining land owners are erected and 
 maintained to facilitate the business of fai'ming, and the law does 
 not require that such crossings shall be kept in repair for the benefit 
 of foot passengers to the same extent and in the manner as public 
 crossings, the duty of the railroad company in such case being only 
 to use ordinary care in the construction and maintenance of the same 
 with respect to the uses and purposes for which such crossings are 
 maintained, namely for farm purposes. 
 
 (b) The court instructs the jury that the law requires of persons 
 using a farm crossing over a railroad the exercise of a higher degree 
 of care and caution in the use of such farm crossing to avoid injury 
 from trains being operated along such railroad than it requires of 
 persons using a public crossing at a public highway, and the jury are 
 instructed that the law imposes upon the railroad company a corre- 
 spondingly less degree of care in the operation of its trains over a 
 farm crossing than if the place was a public crossing.^^ 
 
 § 2010. Injuries to Stock at Farm Crossings. The court instructs 
 the jury that it was the duty of the defendant, prior to and at the 
 time of the accident referred to in evidence in this case, to erect and 
 maintain lawful fences on the sides of its railroad where the same 
 passed through, or along, or adjoining, inclosed or cultivated lands, 
 or uninclosed lands, with openings and gates therein to be hung and 
 having hooks or latches so that they could be easily opened and shut, 
 at all necessary farm crossings on its road; and if you believe from 
 
 the evidence that the plaintiff's mare on or about , 19 — , 
 
 while lawfully upon inclosed lands through which defendant's road 
 ran in B. township, P. county, Missouri, entered upon the defendant's 
 railroad track, through an open gate in defendant's fence along its 
 railroad, at a necessary farm ci'ossing where the defendant, if such 
 is the fact, had failed or neglected to erect and maintain a gate 
 having a latch or hook thereon, and that the same was not inside the 
 limits of any city, town, or village, nor at the crossing of any public 
 road and that said mare, while on said railroad track, was struck by 
 defendant's passing locomotive or cars, and was thereby so crippled 
 and mangled as to become entirely worthless. And if you further 
 believe that said mare got upon said track and was crippled as above 
 stated by reason of the failure and neglect, if any, of the defendant 
 to provide and maintain a gate having a latch or hook as aforesaid, 
 then your verdict must be for the jDlaintitf for the value of the 
 mare at the time of the injury."" 
 
 59— -R. & O. S. W. R. Co. V. 60— Roberts v. C. & A. R. Co., 119 
 Keck, 84 111. App. 1.^,9 (168), aff'd Mo. App. 372, 94 S. W. 838 (839). 
 185 111. 400, 57 N. E. 197.
 
 § 2011.] NEGLIGENCE— RAILROADS. 1293 
 
 § 2011. Defective Bridge Over Farm Crossing — Duty of Railroad 
 Company to Repair It. If the crossing was reasonably well con- 
 structed, the next question will be this: Was it permitted to become 
 unsafe throug-h the negligence of the railway company? Negligence, 
 gentlemen, is the omission to do something which a reasonable per- 
 son, guided by these considerations which ordinarily regulate human 
 conduct, would do, or the doing of something which a reasonably 
 prudent person would not do. In other words, one who fails to use 
 the care and caution ordinarily used in like occasion by reasonably 
 careful and prudent persons is negligent. In this case, was the 
 defendant reasonably careful and prudent in caring for the crossing 
 in question after its construction? So long as the bridge remains 
 standing, and so long as the gates were not nailed up or otherwise 
 permanently closed, or no notice given of imperfection in the bridge, 
 it was the duty of the railway company to have kept it in reasonably 
 good repair, considering the place at which it was situated, and the 
 use to which it might naturally and reasonably be put. It is not 
 necessary as suggested by counsel for the railway company, to keep 
 men in constant attendance upon or any watch over a bridge, nor to 
 take extraordinary care of one. It is, however, required to be reason- 
 ably careful. Now, then, considering the age of the bridge, its man- 
 ner of construction, the character of the stringers and sills, the or- 
 dinary life of similar kinds of timber, the use to which it has been 
 subjected, and any other facts in evidence pertinent to the question, 
 it is for you to find whether the railway company was or was not 
 reasonably vigilant or careful in the premises, and whether it did or 
 did not act as a reasonably prudent person would have acted under 
 like circumstances.®^ 
 
 61— Stewart v. C. W. & M. R. Co., 89 Mich. 315, 50 N. W. 852 (856).
 
 CHAPTER LXX. 
 
 NEGLIGENCE— STREET RAILROADS. 
 
 See Erroneous Instructions, same chapter head. Vol. III. 
 
 IN GENERAL. 
 
 §2012. Street railroad companies 
 not liable for injuries due 
 to mere accident. 
 
 § 2013. Negligence complained of 
 must be proximate cause 
 of injurj"— Effect of prior 
 disability of person in- 
 jured. 
 
 § 2014. Effect of change of juris- 
 diction over highway from 
 county to city. 
 
 § 2015. No duty rests on plaintiff to 
 inform defendant of injury. 
 
 § 2016. But a failure to inform de- 
 fendant of injury may be 
 considered by jury. 
 
 § 2017. No prejudice should exist 
 against street railway cor- 
 porations as such — Reading 
 of instruction by the law- 
 yers. 
 
 § 2018. When fact of injury ad- 
 mitted and assumed on 
 both sides. 
 
 § 2019. Withdrawing portions of or- 
 dinance from consideration 
 of jury by agreement. 
 
 LIABILITY FOR NEGLIGENCE AS 
 CARRIERS OP PASSENGERS. 
 
 § 2020. Degree of care due passen- 
 gers — Varying statements 
 of different courts — Negli- 
 gence defined. 
 
 § 2021. Although not insurers of 
 safety of passengers, street 
 railroads must exercise 
 highest degree of care rea- 
 sonably consistent with 
 practical operation of ve- 
 hicle. 
 
 5 2022. When burden of proof as to 
 degree of care used shifts 
 to defendant. 
 
 S 2023. Street railroad company not 
 liable when passenger is 
 injured by his own mis- 
 conduct. 
 
 § 2024. 
 
 § 2025. 
 § 2026. 
 
 § 2027. 
 § 2028. 
 
 § 2029. 
 
 § 2030, 
 § 2031. 
 
 2032, 
 
 2033. 
 
 § 2034, 
 
 § 2035. 
 
 2036. 
 
 § 2037. 
 
 2038. 
 
 2039 
 
 2040, 
 
 Injury to passenger through 
 negligent equipment, man- 
 agement or operation of 
 vehicle. 
 
 High rate of speed — Attend- 
 ing circumstances. 
 
 High rate of speed — Jump- 
 ing from car to avoid 
 danger — Overcrowding — 
 Thrown from platform. 
 
 Collision between cars of 
 same company. 
 
 Collision between cars of 
 street car company and 
 other vehicles — Fire de- 
 partment engines and wag- 
 ons. 
 
 Injuries to passengers 
 through defective condition 
 of vehicles. 
 
 Inspection of vehicle. 
 
 Presumptive liability when 
 car derailed. 
 
 Presumptive liability when 
 passenger injured thi'ough 
 collision. 
 
 Injury through panic of 
 passenger produced by ex- 
 plosion on car. 
 
 Slowing down car for pas- 
 senger to board — Car sud- 
 denly started. 
 
 Burden of proof on plaintiff 
 to show slowing down of 
 car could be construed as 
 invitation to board. 
 
 Negligently starting car 
 while plaintiff is in act of 
 boarding it — Taking hold 
 of hand rail. 
 
 Motorman must act under 
 directions of conductor- 
 Knowledge of either mo- 
 torman or conductor that 
 plaintiff is boarding car 
 sufficient. 
 
 Effect of failure of conduc- 
 tor to see intending pas- 
 senger. 
 
 Effect of stranger ringing 
 bell and starting car. 
 
 Negligently starting car 
 while passenger is alight- 
 ing. 
 
 1294
 
 NEGLIGENCE— STREET RAILROADS. 
 
 1295 
 
 9 2041. Slowing car up and then 
 starting suddenly when 
 passenger is in act of 
 alighting. 
 § 2042. Movement of car must be 
 attributable to act of men 
 in charge. 
 5 2043. Conductor must see that no 
 passenger is in act of 
 alighting. 
 § 2044. Ringing bell to go ahead 
 while passenger is alight- 
 ing. 
 
 § 2045. Failure of conductor to warn 
 passenger of danger known 
 to conductor, but unknown 
 to passenger. 
 
 § 2046. Passenger alighting near 
 parallel track. 
 
 § 2047. Alighting passenger struck 
 by car coming from oppo- 
 site direction. 
 
 § 2048. Duty of motorman on ap- 
 proaching cars. 
 
 § 2049. Failure to check reckless 
 rate of speed of approach- 
 ing car. 
 
 § 2050. Passenger raising umbrella 
 while alighting. 
 
 § 2051. When relation of passenger 
 and carrier ceases — Injury 
 through backward move- 
 ment after alighting. 
 
 § 2052. Carrying passenger past 
 destination. 
 
 § 2053. Injury through over-crowd- 
 ing of car. 
 
 § 2054. Assaults on passenger by 
 company's servants. 
 
 § 2055. Wrongful ejection of pas- 
 senger from car — Presump- 
 tion that natural and prob- 
 able consequences of 
 wrongful act are intended. 
 
 § 2056. Use of more force than 
 necessary in ejectment. 
 
 § 2057. Posted warnings in cars. 
 
 § 2058. Separation of white and 
 colored passengers — Series. 
 
 § 2059. Regulations as to transfers. 
 
 § 2060. Giving wrong transfer. 
 
 § 2061. Entering car without trans- 
 fer — Negligence of first 
 conductor. 
 
 S 2062. Contributory negligence of 
 passengers — In general. 
 
 S 2063. States holding burden of 
 proof is on plaintiff to 
 prove freedom from con- 
 tributory negligence. 
 
 S 2064. States holding burden of 
 proof is on defendant to 
 show contributory negli- 
 gence of plaintiff. 
 
 5 2065. Deafness of passenger. 
 
 8 2066. Standing on platform when 
 car is overcrowded. 
 
 § 2067. Leaving seat and standing 
 on platform to accommo- 
 date lady passengers. 
 
 § 2068. Standing on platform by di- 
 rection of employes in 
 charge of car. 
 
 § 2069. Riding on running board. 
 
 § 2070. Obeying instructions to 
 move to another part of 
 the car. 
 
 § 2071. Getting on car while in mo- 
 tion. 
 
 § 2072. Getting off car while in mo- 
 tion. 
 
 § 2073. Jumping from moving car 
 at command of conductor. 
 
 § 2074. Failure to move away after 
 alighting — Injury by trail- 
 er. 
 
 § 2075. Injury to passenger while 
 trying to escape from ap- 
 parently imminent danger. 
 
 § 2076. Payment of fare in genuine 
 coin. 
 
 LIABILITY FOR INJURIES TO PER- 
 SONS OTHER THAN PASSEN- 
 GERS OR e:mployes. 
 
 § 2077. Degree of care due pedes- 
 trians. 
 
 § 2078. Not liable for mere accident 
 or misadventure. 
 
 § 2079. Degree of care due persons 
 riding in wagons or other 
 vehicles along tracks. 
 
 § 2080. Degree of care due infant 
 trespasser. 
 
 § 2081. Statutory, municipal and 
 other regulations of the 
 public authority. 
 
 § 2082. Joint liability with other in- 
 dividuals or corporations. 
 
 § 2083. Care of roadbeds and tracks. 
 
 § 2084. Cars and appliances. 
 
 § 2085. Sounding bells and gongs. 
 
 § 2086. Use of proper brakes. 
 
 § 2087. Allowing running board to 
 extend over sidewalk. 
 
 § 2088. Rate of speed. 
 
 § 2089. As to infant trespassers. 
 
 § 2090. Frightening animals — Car 
 operated in ordinary man- 
 ner. 
 
 § 2091. Car not operated in ordi- 
 nary manner. 
 
 § 2092. Right of way of street cars 
 over other vehicles along 
 track — Collision with same. 
 
 § 2093. Street crossings — Pedestri- 
 ans. 
 
 § 2094. Street crossings — Vehicles 
 crossing track. 
 
 § 2095. Street crossings — Fire en- 
 gines crossing track. 
 
 § 2096. Collision with other street 
 cars.
 
 1296 
 
 FORMS OF INSTRUCTIONS. 
 
 [§ 2012. 
 
 § 2097. Collision with persons on or 
 near track. 
 
 § 2098. Child run over by car — 
 Series. 
 
 § 2099. Failure to check speed of 
 car when danger imminent 
 to person on track. 
 
 § 2100. Contributory negligence of 
 persons other than passen- 
 gers or employes — In gen- 
 eral. 
 
 § 2101. Rule that burden of proof 
 is on defendant to prove 
 contributory negligence. 
 
 § 2102. Rule as to children. 
 
 § 2103. Rule as to intoxicated per- 
 sons. 
 
 § 2104. Rule to stop, look and listen. 
 
 § 2105. Bicyclist — Collision with car. 
 
 § 2106. Failure of driver of vehicle 
 passing along or near track 
 to use reasonable care. 
 
 § 2107. Care due by driver of ve- 
 hicle crossing track — Ordi- 
 nary care defined. 
 
 § 2108. Pedestrian suddenly going 
 upon track without warn- 
 ing to motorman. 
 
 § 2109. Injury avoidable notwith- 
 standing contributory neg- 
 ligence of plaintiff. 
 
 § 2110. Negligence of driver of ve- 
 hicle. 
 
 § 2111. Imputable negligence — Rule 
 in Illinois. 
 
 § 2112. Imputable negligence — Rule 
 in Wisconsin. 
 
 § 2113. Imputable negligence — Par- 
 ent and child. 
 
 This chapter does not include instructions relative to railroads as 
 carriers of passengers. For such instructions see Chapter on NEG- 
 LIGENCE—RAILROADS — PASSENGER CARRIERS. 
 
 IN GENERAL. 
 
 § 2012. Street Railroad Companies Not Liable for Injuries Due 
 to Mere Accident, (a) The court instructs the jury that the plain- 
 tiff can in no event recover in this case unless you believe from the 
 evidence that she was injured, and that her injuries were directly 
 due to negligence on the part of defendant's servants; and if you 
 believe from the evidence that the injuries sustained by plaintiff 
 were not due to negligence on the part of defendant's servants, but 
 were due to mere accident or misadventure, then and in that case 
 your verdict must be for the defendant.^ 
 
 (b) The court instructs the jury that the mere happening of the 
 accident together with proof of the exercise of ordinaxy care by the 
 plaintiff does not raise a presumption of negligence on the part of 
 the defendant. 
 
 (c) The court further instructs the jury that the bv;rden of proof 
 is not upon the defendant to show that it is not guilty of the specific 
 negligence charged in the declaration or some count thereof, but 
 the burden is upon the plaintiff to prove that the said defendant 
 was guilty of such negligence, and this rule, as to the burden of 
 proof, is binding in law and must govern the jury in deciding this 
 case. The jury have no right to disregard said rule or to adopt any 
 other in lieu thereof, but in weighing the evidence and coming to a 
 verdict the jury should apply said rule and adhere strictly to it. No 
 presumption that the defendant was negligent arises from the mere 
 fact that the accident happened.^ 
 
 (d) The court instructs the jury that, if they believe from the 
 evidence that the injury to the plaintiff was the result of an acci- 
 
 1— Johnson v. St. L. & S. Ry. 2— Wolf v. Chi. U. Traction Co., 
 Co., 173 Mo. 307, 73 S. W. 173 (176). 119 111. Appi. 481 (482).
 
 §2013.] NEGLIGENCE— STREET RAILROADS. 1297 
 
 dent which occurred without the negligence of the defendant, as 
 charged in the declaration, they should return a verdict of not 
 guilty.'' 
 
 (e) If you believe from the evidence that the injury to the plain- 
 tiff in this suit happened to him by mere accident, and without any 
 fault on the part of defendant or its employes, then the plaintiff 
 cannot recover in this action. The defendant is not an insurer of 
 safety of its passengers, and it is only liable when injuries are in- 
 curred without fault on the part of the person injured, and because 
 of negligence on the i^art of the defendant.'^ 
 
 (f) If the jury believe, from the evidence, that the injuries sus- 
 tained by the plaintiff were merely the result of accident, then your 
 verdict must be for defendant.^ 
 
 § 2013. Negligence Complained of Must Be Proximate Cause of 
 Injury — Effect of Prior Disability of Person Injured, (a) The jury 
 are instructed that even though the defendant was liable for the ac- 
 cident in question, still you are instructed that she could not re- 
 cover in this case for any damage which was not the natural and 
 necessai'y result of the accident and injury then sustained, if you 
 find, from the evidence, she sustained injury at the time of the acci- 
 dent; and if you find, from the evidence, that the plaintiff has now, 
 or has had, any other disability resulting from conditions which 
 existed in the plaintiff prior to said accident and of which the acci- 
 dent in question was not the proximate cause, then you are not per- 
 mitted, by law, to allow her anything for such disability, and should 
 not do so from motives of sympathy or any other motive.® 
 
 (b) Before the plaintiff can have a verdict in this case, the law 
 requires him to prove to your satisfaction, by a preponderance or 
 greater weight of the evidence, negligence (of the kind submitted to 
 you) on the part of defendant, and also that such negligence (if any 
 is proved) was a proximate cause of the accident and hurt received 
 by plaintiff'; and if the plaintiff has not so proved negligence of the 
 kind submitted to you on the part of defendant, or its motorman in 
 charge of the mail car, and that such negligence was a proximate 
 cause of the accident, then your verdict must be for the defendant.'' 
 
 § 2014. Effect of Change of Jurisdiction Over Highway from 
 County to City. If you find that at the time said track was placed 
 in said highway the territory at the point in controversy was not in 
 said city, and that said ti'ack was so placed by consent of and con- 
 tract with the board of county commissioners, but that thereafter 
 said territoiy was annexed to and became part of said city, and the 
 
 3— N. C. St. R. R. Co. v. Smad- Met. St. Ry. Co., 183 Mo. 582, 82 
 
 raff, 89 111. App. 411 (416), 189 111. S. W. 126. 
 
 155, 59 N. E. 527. 6— C. C. Ry. Co. v. Saxby, 213 111. 
 
 4— Fitch v. Mason City & C. L. 274 (280), 72 N. E. 755. 104 Am. St. 
 
 T. Co.. 124 Iowa 665, 100 N. W. 618 218. 
 
 (622). 7— Deschner v. R. R. Co., 200 Mo. 
 
 5— Feary v. Met. St. Ry. Co., 162 310, 98 S. W. 737 (743). 
 Mo. 75, 62 S. W. 452 (458); Logan v. 
 82
 
 1298 FORMS OF INSTRUCTIONS. [§ 2015. 
 
 city undertook, by ordinance, to name terms and conditions for the 
 maintenance of said track for the purpose of preserving the public 
 highway at that point in a reasonably safe condition for public use 
 and travel, and said street railroad company accepted the terms of 
 said ordinance, then the ordinance terms would be binding on said 
 company, and any violation of the terms of said ordinance render- 
 ing said highway dangerous to travelers would be negligence; and 
 if said condition proximately caused the death of B., and he was at 
 the time using due care, the defendant company would be liable 
 therefor.^ 
 
 § 2015. No Duty Rests on Plaintiff to Inform Defendant of In- 
 jury. Plaintiff owed defendant no duty to inform defendant that 
 plaintiff had been hurt before the filing of the suit. Neither plain- 
 tiff nor his counsel owed defendant any duty to give defendant any 
 information before the filing of this suit, to enable defendant to get 
 witnesses or gather information.^ 
 
 § 2016. But a Failure to Inform Defendant of Injury May Be 
 Considered by Jury, (a) In arriving at your verdict in this cause, 
 I charge you, gentlemen of the jury, that, in connection with all the 
 other evidence in this case, you have the right to consider that the 
 plaintiff did not inform the defendant that he had been hurt, before 
 the filing of the complaint, if from the evidence you believe that 
 the plaintiff did not give the defendant such information before the 
 commencement of this suit. 
 
 (b) In arriving at your verdict in this ease, I charge you that, in 
 connection with all the other evidence in this ease, you have the 
 right to consider that the plaintiff's counsel did not inform the de- 
 fendant that the plaintiff had been hurt, before the filing of the 
 plaintiff's complaint, if from the evidence you believe that the plain- 
 tiff's counsel did not give the defendant such information before the 
 commencement of this suit.^° 
 
 8— Citizens' St. R. Co. v. Ballard, highway remained a public high- 
 
 22 Ind. App. 151, 52 N. E. 729 (731). way, no matter within what juris- 
 
 "We fail to see wherein this in- diction it might be. The iiistruc- 
 
 struction is objectionable. Even tion is directed simply to the duty 
 
 if the street railway was built un- of the company to keep the track 
 
 der a contract with the county in such condition as not to render 
 
 commissioners, when the highway the street unsafe for public use 
 
 became a part of the city, it was and travel." 
 
 the duty of the company to main- 9 — Birmingham Ry. & E. Co. v. 
 
 tain its track so as to preserve the Wildman, 119 Ala. 547, 24 So. 548 
 
 I'ublic highway in a reasonably (549). 
 
 safe condition for public use and 10— Birmingham Ry. & E. Co. v. 
 
 travel; and it was its duty to do .Vildman, 119 Ala. 547, 24 So. 548 
 
 this whether there was any ordi- (549, 550). 
 
 nance requiring it to be done or "At the request of the plaintiff 
 
 not. It was the duty of the com- the court properly instructed the 
 
 pany to keep its tracks in such jury that neither the plaintiff nor 
 
 condition as not to render the high- his counsel owed defendant any 
 
 W!iy unsafe for the public, regard- duty to inform it that plaintiff had 
 
 less of any privilege granted or been injured, but, when requested 
 
 attempted to be granted by the by defendant, refused to charge, 
 
 board of commissioners; and this that in connection with all the 
 
 duty continued as long as the other evidence in the case, the
 
 §2017.] NEGLIGENCE— STREET RAILROADS. 1299 
 
 § 2017. No Prejudice Should Exist Against Street Railway Cor- 
 porations, as Such — Reading of Instructions by the Lawyers. This 
 case should be considered by the jury the same as if it were a con- 
 test between two persons of equal standing in the community. The 
 fact that one of the parties is a corporation should not affect your 
 minds in any way; but the rights of the parties should and must 
 be determined upon the evidence introduced in the ease, and the 
 instructions given to the jury, which is the law, and only law to guide 
 you in your deliberation. These instructions, although read to you 
 by the lawyers, are the court's instructions, and must be taken and 
 considered by the jury as if they had been read by the judge from 
 the bench.^^ 
 
 § 2018. When Fact of Injury Admitted and Assumed on Both 
 Sides. The court instructs the jury that, if you believe, from the 
 weight of the evidence, that the injuries comj^lained of by the plain- 
 tiff in his declaration were caused by the negligence or carelessness 
 of the servants or employes of the defendant or any of them, in the 
 course of their employment as such servants or employes, in manner 
 and form as charged in the declaration, and without any fault on 
 the part of the plaintiff, which contributed to the injury complained 
 of, then the defendant is liable in this case.^- 
 
 § 2019. Withdrawing Portions of Ordinance from Consideration of 
 Jury by Agreement. The jury are instructed that the plaintiff's in 
 this case make no claim that the car which ran over the child was 
 not stopped within the shortest time and space possible after any 
 of the defendant's employes became aware of the presence of danger, 
 and that plaintiffs do not base any charge of negligence upon the 
 failure of the gripman in charge of the car to stop the car in the 
 shortest time and space possible after he first became aware of any 
 danger to the child, A. ; and you are therefore instructed that that 
 portion of the ordinance of the city of S. read in evidence which 
 provides that on the first appearance of danger to persons, either on 
 the track or moving towards it, the car should be stopped in the short- 
 jury had a right to consider that tiff suffered the injuries complained 
 plaintiff did not inform defendant of in his declaration. That he was 
 that he had been injured. As injured to some extent is admit- 
 stated above, the fact that no no- ted and assumed on both sides. 
 tice or information concerning the The law is that where a fact is 
 accident had been given defendant admitted or assumed by each 
 being in evidence, the jury had a party to the trial, the court, in 
 right to consider this fact. The giving an instruction may assume 
 latter charge should therefore such fact as proven. It is further 
 have been given, as, in a, sense, ex- objected that the instruction reads 
 planatory of the former." without any 'fault' on the part of 
 
 11— Logan v. Met. St. Ry. Co., the plaintiff, instead of without 
 183 Mo. 582, 82 S. W. 126 (129); any 'negligence' upon his part. The 
 Feary v. Met. St. Ry. Co., 162 Mo. substitution of the word 'negli- 
 75, 62 S. W. 452 (458). gence' for the word 'fault' would 
 
 12 — North C. St. R. R. Co. v. not materially change the sense 
 Rodert, 105 111. App. 314 (315), aff'd or the meaning of the instruction. 
 203 111. 413. 67 N. E. 812. Chicago & N. W. Ry, Co. v. Ryan, 
 
 "The objections are: That the in- 70 111. 215." 
 struction assumes that the plain-
 
 1300 FORMS OF INSTRUCTIONS. [§2020 
 
 est time and space possible, has no application to the facts of this 
 case, and the jury are instructed to disregard that portion of the 
 said ordinance, and that portion of said ordinance is withdrawn from 
 j'our consideration at the request of plaintiffs.^^ 
 
 LIABILITY FOR NEGLIGENCE AS CARRIERS OF PAS- 
 SENGERS. 
 
 § 2020. Degree of Care Due Passengers — Varying Statements of 
 Different Courts — Negligence Defined, (a) The court instructs the 
 jury, as matter of law, that it is the duty of a railroad company to 
 use the highest degree of care and caution, reasonably consistent 
 with the practical operation of the road, to provide for the safety and 
 security of passengers while being transported.^* 
 
 (b) The court instructs the jury that if the defendant's servants 
 and employes exercised all the care and foresight that was reason- 
 ably practicable, then there was no negligence, and in determining 
 any issue as to negligence on defendant's part, submitted to you in 
 these insti'uetions, you are instructed that, if there was exercised all 
 the care that was reasonably practicable, then there was no negli- 
 gence.^^ 
 
 (c) The court instructs the jury that the defendant is required 
 to use all reasonable means, care, vigilance and foresight, in view 
 of the character and modes of conveyance adopted by it, to prevent 
 injuiy to passengers, and while said company is not an insurer of 
 absolutely safe carriage of its passengers, yet it is held to the exer- 
 cise of the highest degree of care, skill and diligence practically con- 
 sistent with the operation of its road.^*' 
 
 13 — Schmidt v. St. Louis R. Co., and foresight' The instruction 
 
 163 Mo. 645, 63 S. W. 834 (835). under consideration requires 'all 
 
 14 — W. C. St. R. R. Co. v. John- the care and foresight that was 
 
 son, 180 111. 285 (286), 54 N. E. 334, reasonably practicable.' The law 
 
 aff'g 77 111. App. 142. requires nothing that is unreason- 
 
 "This instruction states an ab- able. If a carrier exercises the 
 
 stract proposition of law correctly, care so required, there will be no 
 
 The principle announced in this in- injuries, except in cases of inevi- 
 
 struction has been held to be the table or unavoidable accident or 
 
 law in I. C. R. R. Co. v. O'Con- casualty. The instruction is as 
 
 noil, 160 111. 641, 43 N. E. 704, and broad as the liability of the carrier 
 
 N. C. St. R. R. Co. v. Cotton, 140 should be made." 
 
 111. 486, 29 N. E. 899." This same instruction was also 
 
 Practically the same instruction upheld in Logan v. Met. St. Ry. 
 
 was given in the case of W. C. St. Co., 183 Mo. 582, 82 S. W. 126 (129). 
 
 R. R. Co. v. Kromshinsky, 86 111. In Abbitt v. St. L. T. Co., 106 
 
 App. 17 (19). Mo. App. 640, 81 S. W. 484, the 
 
 15 — Feary v. Met. St. Ry. Co., court uphold an instruction requir- 
 
 162 Mo. 75, 62 S. W. 452 (460). ing "the highest practical degree 
 
 "This instruction is claimed to of care of a very prudent person 
 
 be erroneous, because the care engaged in that business, in the 
 
 and foresight required by it is same circumstances as those shown 
 
 .such as is 'reii.sonably practicable,' in evidence at and immediately 
 
 and It is Insisted it should have preceding the time of the alleged 
 
 exacted of defendant the 'utmost injury to said plaintiff." 
 
 practicable human skill, diligence, 16— N. Chi. St. R. R. Co. v.
 
 § 2020. 
 
 NEGLIGENCE— STREET RAILROADS. 
 
 1301 
 
 (d) The law requires of carriers of passengers that they exercise 
 not only ordinary care but that they exercise the highest practicable 
 degree and kind of care for the safety of their passengers, and any 
 failure in this respect constitutes negligence. ^^ 
 
 (e) It was the duty of the B. Company and its employes in charge 
 of the car to use the utmost cai'e to pi'event injury to plaintiff's 
 wife, if she were, as alleged, a passenger on said car at the time she 
 is alleged to have been injured; and if, through lack of care, 
 she was injured, defendant is liable in this case for damages arising 
 from such injuries.^^ 
 
 (f) By the term ''negligence," as used with i-eference to said 
 motorman, is meant a failure to use that high degree of care that 
 a very prudent person would have used under like circumstances.^'-' 
 
 (g) Negligence, when applied herein to the defendant's servants, 
 means the failure to exercise that high degree of care that a vei-y 
 cautious and prudent person would have exercised under the same or 
 similar circumstances.-" 
 
 (h) The court instructs you that a common carrier of persons, 
 such as a street car corjwration, is bound to use the highest degree of 
 care for the safety of its passengers.-^ 
 
 Schwartz, 82 111. App. 493 (496); 
 C. U. T. Co. V. O'Brien, 117 111. 
 App. 184; C. U. T. Co. v. Kalberg, 
 107 111. App. 90. 
 
 17 — Crump v. Davis, 33 Ind. App. 
 88, 70 N. E. Rep. 8S6 (Ss7), the 
 court upheld the above instruction, 
 citing- Citizens' St. Ry. Co. v. Hoff- 
 bauer, 23 Ind. App. 614 (620), 56 N. 
 E. 54; Louisville N. A. & C. Ry. 
 Co. V. Snyder, 20 N. E. 284, 3 L. 
 R. A. 434, 10 Am. St. Rep. 60; 
 Terre Haute & T. Ry. Co. v. 
 Sheeks, 155 Ind. 74, 56 N. E. 434; 
 4 Elliott on Ry. 15S5. 
 
 1&— Knauff V. San Ant. T. Co., — 
 Tex. Civ. App — , 70 S. W. 1011. 
 
 "The requested charge of appel- 
 lant embodies the law as applica- 
 ble to carrier and passenger. It 
 has been held a number of times 
 in Texas that common carriers are 
 required to exercise the 'utmost 
 care' for the safety of their pas- 
 sengers. Gallagher v. Bowie, 66 
 Tex. 266, 17 S. W. 407; Int. & G. 
 N. Railway Co. v. Welch, 86 Tex. 
 203, 24 S. W. 390, 40 Am. St. 829; 
 Ft. Worth & D. C. Railway Co. v. 
 Kennedy, 12 Tex. Civ. App. 654, 35 
 S. W. 335; Gulf C. & S. F. Railway 
 Co. v. Brown, 16 Tex. Civ. App. 
 93, 40 S. W. 608. In the case of 
 Int. & G. N. Railroad Co. v. Hal- 
 loren, 53 Tex. 53, 37 Am. Rep. 744, 
 the rule is announced as follows: 
 'Railroad companies, however, are 
 not insurers of the safety of their 
 passengers further than could be 
 
 required by the exercise of such 
 high degree of foresight as to pos- 
 sible dangers, and such a high de- 
 gree of prudence in guarding 
 against them, as would be used by 
 very cautious, prudent and compe- 
 tent persons under similar circum- 
 stances.' This rule was commended 
 in Railway Co. v. Welch, above 
 cited, and it seems to have been 
 the intention in that case to hold 
 that the rule in the Halloren case 
 was the same as the rule an- 
 nounced in Gallagher v. Bowie. 
 The court quoted approvingly the 
 following from Hutchinson on Car.: 
 'Although the form of expression 
 is sometimes varied, and the rule 
 is stated as requiring "the great- 
 est possible care and diligence," 
 "the utmost care and diligence of 
 very cautious persons," "the most 
 perfect care of a cautious and 
 prudent man," and other similar 
 phrases, the real meaning intended 
 by them all is that the care and 
 circumspection to be required is 
 the utmost which can be exercised 
 under all the circumstances short 
 of a warranty of the safety of the 
 passengers.' " 
 
 19— San Ant. T. Co. v. Warren, 
 — Tex. Civ. App. — , 85 S. W. 26. 
 
 20— Denison & S. Ry. Co. v. Free- 
 man. — Tex. Civ. App. — , 85 S. 
 W. 55 (56). 
 
 21— Ilges v. St. L. T. Co., 102 
 Mo. App. 529, 77 S. W. 93 (91). 
 
 "Defendant contends, not that
 
 1302 
 
 FORMS OF INSTRUCTIONS. 
 
 [§2020. 
 
 (i) Defendant was not an insurer of the safety of plaintiff, L,, nor 
 was it required to exercise any degree of care of foresight that was 
 not reasonably practicable. Therefore you are instructed that the 
 mere fact that an accident occurred and plaintiff was injured, if you 
 
 the instruction erroneously de- 
 clares the law in the abstract, but 
 that the term 'the highest degree 
 of care' should have been defined, 
 or the instruction modified, and 
 cites Dougherty v. Missouri R. Co., 
 97 Mo. 647, 8 S. W. 900, 11 S. W. 
 251; Smith v. C. & A. Ry. Co., 108 
 Mo. 243, 18 S. W. 971; Jackson v. 
 Grand Ave. Ry. Co., 118 Mo. 199, 
 24 S. W. 192; and Freeman v. Rail- 
 way, 95 Mo. App. 94, 68 S. W. 
 1057, in support of its contention. 
 Dougherty v. Mo. R. Co., supra, 
 was a suit by a passenger for 
 damages caused by a sudden, vio- 
 lent start of the defendant's horse 
 car. Instruction No. 3 given for 
 the plaintiff told the jury that, 
 under the circumstances of the 
 case, it was the duty of the man- 
 ager or driver of the car to exer- 
 cise the 'utmost human foresight, 
 knowledge, skill and care.' The in- 
 structirn was approved, but on a 
 rehearing the majority of the Su- 
 preme Court were of the opinion 
 that the instruction stated the ab- 
 stract proposition too broadly as 
 to the degree of care incumbent on 
 the defendant. In Smith v. C. & 
 A. Ry. Co., supra, it is said an 
 instruction that 'the law imposes 
 on a common carrier of passengers 
 the utmost care in carrying them 
 safely is not erroneous, where an 
 instruction is also given that the 
 carrier is not an insurer of the 
 safety of passengers, and that neg- 
 ligence on the part of its servants 
 must be shown.' In Jackson v. 
 Railroad, 118 Mo. loc. cit. 225, 24 
 S. W. 192, the Dougherty and 
 Smith cases are approvingly cited. 
 In Freeman v. Met. St. Ry. Co., 
 95 Mo. App. 94, 68 S. W. 1057, an 
 instruction which declared the de- 
 fendant (a passenger carrier) 'guil- 
 ty of negligence, unless he exer- 
 cised the utmost human skill, dili- 
 gence and foresight to prevent the 
 accident' to the passenger, was 
 held erroneous. Leslie v. St. L. 
 & P. Ry. Co., 88 Mo. 50, was a 
 .suit by a passenger for damages 
 occasioned by the negligence of 
 the carrier. In respect to the duty 
 of the carrier to the pass^enger, the 
 ronrt Instructed the jury that the 
 dcffndant was lirjuiid to use the 
 highest degree of care. The court 
 
 held that, as a general statement 
 of the liability of the carrier, the 
 instruction was not objectionable, 
 and that the fact that the instruc- 
 tion proceeded to state hypothetic- 
 ally the facts upon which the 
 plaintiff might recover, sufficiently 
 qualified the general proposition. 
 The instruction under consideration 
 is not qualified in any manner, nor 
 is there any other instruction given 
 in the case which hypothetically 
 sets out facts upon which the 
 plaintiff might recover. The sec- 
 ond instruction, in general terms, 
 tells the jury that if the motor- 
 man was negligent, and his neg- 
 ligence caused the car to lurch, 
 etc., the plaintiff could recover. 
 The two instructions, when consid- 
 ered together, in effect, told the 
 jury that it was the duty of the 
 motorman to exercise the highest 
 degree of care, and if he failed 
 to exercise such high degree of 
 care, and the car lurched, and 
 plaintiff was thrown into the 
 street, she could recover. In Fur- 
 nish V. Railroad. 102 Mo. 438, 13 
 S. W. 1044, 22 Am. St. 781. an in- 
 struction defining the skill, dili- 
 gence and foresight required of a 
 passenger car driver was defined 
 as 'such skill, diligence and fore- 
 sight as is exercised by a very cau- 
 tious person under like circum- 
 stances.' In Feary v. Railroad, 
 162 Mo. 75, 62 S. M?", 452, an in- 
 struction telling the jury 'if de- 
 fendant's servants and employes 
 exercised all the care and fore- 
 sight that was reasonably practi- 
 cable, then there is no negligence,' 
 was approved. The court, through 
 Marshall, J., said: 'The instruc- 
 tion under consideration requires 
 all the care and foresight that was 
 reasonably practicable. The law 
 requires nothing that is unreason- 
 able.' The highest degree of care 
 signifies nothing short of the ex- 
 ercise of the utmost human skill 
 and care. There can be no degree 
 of care higher than the highest. 
 'Carriers of prissengcrs.' says Story 
 (Story on Bailments (2d ed.), par. 
 600), 'bind themselves to carry 
 safely those whom they take into 
 their coaches, ;is far as human 
 care and foresight will go; that is, 
 with the utmost care and diligence
 
 2021.] 
 
 NEGLIGENCE— STREET RAILROADS. 
 
 1303 
 
 believe he was, does not of itself entitle plaintiff to recover in this 
 case; and if you find that defendant had used all the care and fore- 
 sight that were reasonably practicable under all the circumstances, 
 and that the accident hai>pened without negligence on the part of 
 defendant, then the plaintiff cannot recover under any circumstances, 
 but your verdict must be for defendant. ^- 
 
 § 2021. Although Not Insurers of Safety of Passengers, Street 
 Railroads Must Exercise Highest Degree of Care Reasonably Consist- 
 ent With Practical Operation of Vehicle. The court instructs the 
 jury that the fact that the law does not make a common carrier an 
 insurer of the safety of its passengers does not even to the slightest 
 extent relieve such common carriers of its legal duty to exercise the 
 highest degree of care for the safety of its passengers, reasonably 
 consistent with the practical operation of its vehicle. In this case, 
 if the jury find from the evidence, by a preponderance thereof, that 
 the plaintiff became a passenger of the defendant and was injured 
 because of the negligence of the defendant, while he w-as in the exer- 
 cise of ordinary and reasonable care for his own safety, as alleged 
 in his declaration, then you should find the defendant guilty .^^ 
 
 of very cautious persons.' la Gil- 
 son v. Railway Co., 76 Mo. 282, 
 the court said: 'The care required 
 is that care, prudence and cau- 
 tion which a very coinpetent and 
 prudent person would use and 
 exercise in a like business and un- 
 der like circumstances.' In Shear- 
 man & Redfield Neg. (4th ed.), par. 
 405, it is said:" 'The obligation of a 
 common carrier is said to be the 
 utmost care and skill which pru- 
 dent men are accustomed to use 
 under similar circumstances.' In 
 Dodge V. Steamship Co., 148 Mass. 
 207, 19 N. E. 373, 2 L. R. A. 83, 
 12 Am. St. 541, the words 'utmost 
 care and skill' were held not to 
 mean the utmost care and dili- 
 gence which men are capable of 
 exercising, but to mean the ut- 
 most care, consistent with the 
 carrier's undertaking, and with 
 due regard for all the other 
 matters which ought to be con- 
 sidered in conducting the business. 
 In Libby v. Railroad Co., 85 Me. 
 34, 26 Atl. 943, 20 L. R. A. 812, it 
 is said: 'A common carrier of 
 passengers, although not an in- 
 surer, must do all that human 
 care, vigilance and foresight can 
 do, under the circumstances, con- 
 sidering the character and mode 
 of conveyance ,to prevent accident 
 to passengers.' While, as an ab- 
 stract proposition, common carriers 
 of passengers are bound to use the 
 utmost care and skill to prevent 
 
 injuries to their passengers, yet 
 the rule should be applied in a 
 practical manner. That it may be 
 so applied, the text-books and 
 many of the cases have set up 
 some standard (usually the stand- 
 ard of care, skill and foresight 
 which a very competent and pru- 
 dent person would be expected to 
 use and exercise under like or sim- 
 ilar circumstances) by which the 
 jury may measure the degree of 
 care required. And it seems to us 
 that some such standard should 
 somewhere be incorporated in the 
 instructions to the jury in this 
 class of cases, so that they may 
 not be left to set up a standard of 
 their own, and to run it up as high 
 as their imaginations will allow 
 them. But if it is not done, the 
 omission has never, so far as we 
 are informed, been held to be re- 
 versible error. This very question 
 has, at the present term of this 
 court, in the case of Fillingham v. 
 St. Louis Transit Company, 102 
 Mo. App. 573, 77 S. W. 314, been 
 so fully and exhaustively treated 
 in an opinion by Goode, J., that 
 nothing remains to be said." 
 
 22— Logan v. Met. St. Ry. Co., 
 183 Mo. 582, 82 S. W. 126 (129). 
 
 23— Chi. IT. T. Co. v. O'Brien, 117 
 111. App. 184 (189, 190). 
 
 "It is objected to above instruc- 
 •tion that it assuines that defend- 
 ant was negligent, and that it per- 
 mits the jury to find the defendant
 
 1304 FORMS OF INSTRUCTIONS. [§ 2022. 
 
 § 2022. "When Burden of Proof as to Degree of Care Used Shifts 
 to Defendant. The court instructs the jury that while the burden 
 of proof is upon the plaintiff to show the negligence of defendant, 
 yet if you find from the evidence introduced upon the trial that 
 plaintiff was not guilty of contributory negligence, as explained in 
 these instructions, and that plaintiff was thrown from the car sub- 
 stantially as claimed by him, and that such accident would have 
 happened under ordinary circumstances, had the defendant, its 
 officers and employes, exercised the utmost care and foresight, as 
 explained in another paragraph hereof, a presumption of negligence 
 against the defendant is raised, and the burden is then cast on the 
 defendant to rebut this presumption. To this end, the defendant 
 must prove that, as the matter which the circumstances indicate 
 were the cause of said incident, its officers and emploj^es exercised 
 that high degree of care which the law requires of them.-'* 
 
 § 2023. Street Railroad Company Not Liable When Passenger Is 
 Injured by His Own Misconduct. If the railroad company on its part 
 is properly discharging with due diligence and in a suitable manner 
 its duties, and a passenger is hurt from a cause disconnected, over 
 which the railroad has no control, or if the passenger is hurt by 
 reason of his own conduct or misconduct, and the act or doing of 
 the railroad company in no way contributed towards it, or if the 
 passenger's conduct was the primary or real reason of his or her 
 injury, the railroad company would not be responsible.-^ 
 
 S 2024. Injury to Passenger Through Negligent Equipment, Man- 
 agement or Operation of Vehicle. The jury are instructed that it is 
 the duty of defendant not to expose its passengers to any danger 
 which human care and foresight could reasonably anticipate and pro- 
 vide against, and to exercise the highest degree of care and diligence 
 reasonably consistent with the practical operation of its railroad and 
 the conducting of its business. And, if from the evidence introduced 
 upon the trial, you believe that the plaintiff, while a passenger on 
 the car of defendant, received an injury, resulting from the careless- 
 guilty, if they find certain facts whether the defendant was guilty 
 from the evidence, without requir- of negligence. The words, 'if the 
 ing them to find such facts under jury find from the evidence, by a 
 the instructions of the court, preponderance thereof,' apply to 
 Neither of these objections is ten- the 'negligence of the defendant' 
 able. The instruction concludes equally as to the words 'that the 
 with the following sentence: 'In plaintiff became a passenger of 
 this case, if the jury find from the the defendant.' It is not neces- 
 evldence, by a preponderance sary for the court to state in ev- 
 thereof, that the plaintiff became ery instruction that the jury, in 
 a passenger of the defendant, and passing on the facts, must be gov- 
 was injured because of the negli erned by the instructions of the 
 gence of the defendant, while he court." But see S 3966. 
 was in the exercise of reasonable 24 — Fitch v. Mason C. & C. L. 
 care for his own safety, as alleged T. Co.. 124 Iowa 665, 100 N. W. 
 in the declaration, then you should 618 (620). 
 
 find the defendant guilty.' Mani- 25— Wade v. Columbia Kl. St. 
 festly, the Instruction submitted R. L. & P. Co., 51 S. C. 296, 29 
 to the Jury, as a question of fact, S. E. 233 (235), 64 Am. St. 676.
 
 § 2025.] NEGLIGENCE— STREET RAILROADS. 1305 
 
 ness or negligence of the defendant or its employes in providing a 
 seat without any guards, substantially as alleged, or in running, 
 managing, and operating said car, or in constructing or maintaining 
 its track at the place alleged, you should find for the j^laintiff, pro- 
 vided you further believe from the evidence that plaintiff's own neg- 
 ligence did not contribute to such injury.'*^ 
 
 § 2025. High Rate of Speed — Attending Circumstances, (a) The 
 court instructs the jury that high rate of speed of a railway train 
 will not of itself establish or prove negligence of the railway companj'. 
 Railway companies may run their cars at such speed as, under all 
 the circumstances, shall comport with the rule of law which requires 
 them to exercise the utmost care and foresight for the safety of their 
 passengers reasonably consistent with the practical operation of their 
 roads and the conducting of their business. And whether a given 
 rate of speed comports with the rule depends on the circumstances, 
 such as the condition and curvature of the track, the danger, if any, 
 to passengers occupying any and all seats where passengers are ac- 
 customed and permitted to ride, of being thrown from the car by 
 the movement thereof, and all the facts and circumstances surround- 
 ing the particular time and place in question, as you find same to be 
 shown by the evidence introduced upon the trial.-' 
 
 (b) The court instructs the jury that the defendant owed the 
 plaintiff the duty to exercise the utmost care and skill which prudent 
 persons exercise under similar circumstances to prevent said car 
 from running at a rate of speed which was dangerous, and that their 
 failure to exercise such care is, in law, negligence.-^ 
 
 § 2026. High Rate of Speed — Jumping from Car to Avoid Danger 
 — Overcrowding — Thrown from Platform, (a) If you believe from 
 the evidence that the defendant at or about the time and place men- 
 tioned in the plaintiff's petition was operating one of its electric 
 cars on which the plaintiff was riding as a passenger at a high and 
 dangerous rate of speed, and that at said time the trolley wires and 
 guy wires stretched over the line of its track at said point broke 
 and fell upon the car or ground, and the trolley poles Avere thrown 
 down and fell along the side of the car, and that the speed at which 
 said car was being propelled, in connection with the breaking and 
 falling of the trolley w'ires and guy wires and poles, caused said car 
 to pitch and jump with such force and violence upon the track as 
 to throw the plaintiff from the car upon the ground, or if you believe 
 that the breaking of said wires and said poles appeared to the 
 plaintiff to render his position in the car dangerous, and that plain- 
 
 26— Fitch V. Mason C. «& C. L. T. tion was said to state the law cor- 
 
 Co., 124 Iowa 665, 100 N. W. 618 rectly, although it might have 
 
 (621). been couched in language less sub- 
 
 27— Fitch V. Mason C. & C. L. T. ject to criticism. 
 
 Co., 124 Iowa 665, 100 N. W. 618 See also in this connection Alton 
 
 (621). L. & T. Co. V. Oiler. 119 111. App. 
 
 £8— In South Cov. & C. St. Ry. 181 (189, 190). affd 217 111. 15, 75 
 
 Co. V. Constans. 25 Ky. L. 155. 74 N. E. 419. 
 S. W. 705 (706), the above instruc-
 
 1306 FORMS OF INSTRUCTIONS. [j 2027. 
 
 tiff, acting upon apprehension of immediate danger of injury to 
 himself, and in order to avoid danger attempted to escape therefrom, 
 in so doing then and there jumped from said car and fall upon the 
 ground, or in such attempt to escape did then and there fall from 
 the same on or against the ground, and that as a proximate cause 
 of said fall, was thereby injured in one or more particulars, sub- 
 stantially as alleged in his petition, you will find for plaintiff, and 
 assess his damages, if any, as hereinbefore directed, unless you should 
 find for the defendant under other portions of this charge.^^ 
 
 (b) You are instructed that if you believe from a preponderance 
 of the evidence that the deceased, N. P. H., was permitted to ride 
 by the defendant upon the platform of defendant's car; that the de- 
 fendant carelessly and negligently failed and neglected to provide 
 and have on said car a gate, railing or other protection around the 
 platform thereof, and that thereby said car was rendered an unsafe 
 and dangerous conveyance, in that passengers on said platform were 
 unprotected and liable to be thrown therefrom; and you further 
 believe that defendant permitted said car to become overcrowded with 
 passengers, and failed to provide said H. with a seat on said ear, 
 but i^ermitted him to be crowded and jostled by other passengers like- 
 wise upon said platform; and if you further believe that said car 
 ran into said curve at a high rate of speed, without warning or notice 
 to said H. ; that thereby said car was caused to lurch and jerk as it 
 went around said curve, causing said H. to be thrown therefrom, and 
 to receive injuries of which he died, then your verdict will be for 
 plaintiff, etc.^° 
 
 § 2027. Collision Between Cars of Same Company. The court in- 
 structs the jury that if you believe from the evidence 'that a collision 
 occurred between the car on which plaintiff was riding and another 
 car, and that plaintiff by said collision had his wrist sprained or 
 dislocated, and that said collision and injury would not have occurred 
 if the motorman of defendant company had been in the exercise of 
 the care and skill hereinbefore defined, and that the collision was 
 the result of the motonnan's negligence, if he was guilty of negli- 
 gence, your verdict will be for the plainiiff.^^ 
 
 § 2028. Collision Between Cars of Street Car Company and Other 
 Vehicles — Fire Department Engines and Wagons, (a) Although 
 the jury should find from the evidence in this case that the em- 
 ployes of the city fire department did not exercise ordinary care in 
 driving the hook and ladder wagon, and although the jury should 
 find from the evidence that such want of care, if there was such 
 want of care, directly contributed to cause the collision by which 
 the plaintiff was injured, yet if the jury find from the evidence that 
 defendant's servants in charge of its car in which the plaintiff 
 
 29— Hou.ston El. St. Ry. Co. v. 35 Wa.sh. 600. 77 Pac. 1058 (1062). 
 
 Elvis. 31 Tex. Civ. App. 280, 72 S. 31— Galveston C. Ry. Co. v. 
 
 W. 216. Chapman, 35 Tex. Civ. App. 551, 80 
 
 30— Halverson v. Seattle El. Co., S. W. 856.
 
 § 2028.] NEGLIGENCE— STREET RAILROADS. 1307 
 
 ivas such passenger, if they had exercised a high degree of care, such 
 as would have been exercised by very prudent, careful and skillful 
 railroad men under the same or similar circumstances, would have 
 averted said collision and injury, then plaintiff is entitled to re- 
 cover. 
 
 (b) The court instructs the jury that if they believe from the 
 evidence that the gripman, as the train was approaching N. street, 
 was exercising that high degree of care described in another instruc- 
 tion, and was looking ahead and attending to his duties, as defined 
 in the instructions, and before he reached it he did not see or hear 
 any persons signaling to him to stop, and did not hear the gong of 
 the hook and ladder wagon, and did not know that the hook and 
 ladder wagon was approaching, and that as soon as he got to N. 
 sti'eet he saw the hook and ladder wagon coming, and he then, while 
 exercising that high degree of care described in other instructions 
 (if the jury believe from the evidence he was exercising such care), 
 had good reason to believe, under all the circumstances, and did 
 believe, that from the speed at which the hook and ladder was com- 
 ing, and the train was going, if he stopped the train, or tried to 
 stop it, it would place the train in N. street, and in front of the 
 approaching hook and ladder wagon, and there would be a collision 
 between it and the hook and ladder wagon, and that if he went ahead 
 at full speed he might avoid a collision; then the court instructs 
 the juiy that it was his duty to go ahead, and the juiy will find their 
 verdict for the defendant, notwithstanding the hook and ladder 
 wagon ran into the trailer car, and the plaintiff was injured thereby. 
 
 (c) The court instructs the jury that the defendant by its servants 
 in charge of its cars, in one of which the plaintiff wr a passenger, 
 was bound, in law, to exercise a high degree of care, as defined in 
 the instruction, to watch and listen for any appi'oaching vehicle 
 at the crossing of N. street, where defendant's car crossed such 
 street, and was bound, also, to use such care to avoid collision with 
 any such vehicle. And if the defendant's servants in charge of the 
 said cars failed, even in a slight degree, to use such care, and thereby 
 directly contributed to cause plaintiff's injury, then defendant is 
 liable, although the juiy should find from the evidence that the 
 employes of the citj' fire department also failed to exercise ordinary 
 care, and thereby contributed to cause said collision. ^2 
 
 (d) If the jury believe from the evidence that C. R. while riding 
 on the footboard of the defendant's, C. C. Ry. 's, car in question, was 
 injured by reason of a wagon coming in contact with the side of 
 the said ear, and if the juiy further believe from the evidence that 
 the servants in charge of said car, under all the circumstances shown 
 by the evidence, could not have avoided the collision between the said 
 wagon and the said car by the exercise of the highest degree of 
 care and caution reasonably consistent with the practical operation 
 
 32— Olsen v. Citizens' Ry. Co., 152 Mo. 426, 54 S. W. 470 (471).
 
 1308 FORMS OF INSTRUCTIONS. [§ 2028. 
 
 of said car, and if the jury further believe from the evidence that 
 the said collision was caused by the swinging or turning of said 
 wagon after the front of the ear had passed it, so that some part 
 of said wagon swung into or struck against the side of the said 
 car and caused the injury complained of, then the jury should find 
 the defendant, C. C. R, Co., not guilty.^^ 
 
 (e) If the jury believe, from the evidence, that the plaintiff while 
 in the exercise of ordinary care, if you believe from the evidence 
 he was in the exercise of ordinary care, was injured by or in conse- 
 quence of the negligence of the defendants, if you believe from the 
 evidence defendants w^ere negligent, as charged in the declaration, 
 then you should find the defendants guilty.^^ 
 
 (f) The court instructs the jury that if they believe from the 
 evidence that the grip ear in question was suddenly and without 
 negligence on the part of the defendant's servants, placed in a posi- 
 tion of danger, then in order to charge the defendant with a duty 
 to avoid injuring the persons on the said grip ear the plaintiff must 
 show by the greater weight of the evidence that the circumstances 
 were such that the gTipman had time and opportunity, by the exer- 
 cise of the highest degree of practicable care on his part, to become 
 conscious of the facts giving rise to such duty, and further that he 
 had a reasonable opportunity to perform said duty. And if the 
 jury further believe from the evidence that the circumstances as 
 shown by the evidence did not charge the defendant with a duty as 
 thus defined, or if the jury believe from the evidence that said grip- 
 man did not have a reasonable opportunity to jDerform, by the exer- 
 cise of the highest degree of practicable care on his part, such duty 
 as thus defined, then they should find the defendant not guilty.^^ 
 
 33 — C. C. Ry. Co. v. Math, 114 sumption is caused by agencies 
 
 III. App. 350 (352). The plaintiff wholly under the control of the 
 
 was injured by a collision of the carrier. Under such conditions a 
 
 car with a wagon while plaintiff prima facie case of negligence may 
 
 was riding on the footboard of the be made by showing the happen- 
 
 car. ing of the accident and a conse- 
 
 34 — C. U. T. Co. v. Mee, 119 111. quent injury to the passenger, 
 
 App. 332, 336, aff'd 218 111. 9, 75 himself in the exercise of ordinary 
 
 N. E. 800. Passenger was injured care. The duty would then be im- 
 
 by a collision of the car with a posed upon the carrier to explain 
 
 hay wagon. or account for the accident and 
 
 35— Wolf v. C. U. T. Co., 119 111. to show in defense that it resulted 
 
 App. 4S1 (483). A chemical engine from a cause for which the carrier 
 
 of the fire department struck a car. was not responsible. But where 
 
 Commenting on the instruction the plaintiff's own evidence shows 
 
 as given, the appellate court said: the accident to have been due to 
 
 "It is insisted by the attorneys a cause beyond the control of the 
 for plaintiff in error that the mere carrier, as vis major or the tort 
 fact of the collision causing an of a stranger, the reason for pre- 
 iiijury to plaintiff while he was sumirig it to have been caused by 
 riding as a passenger on defend- negligence on the part of the car- 
 ant's car, and himself in the exer- rier is entirely wanting. Where a 
 else of ordinary care, raises a pre- collision occurs between cars of 
 sumption of negligence; and that the same company, such presump- 
 hfnce the instructions above set tion may be indulged. But where 
 forth were erroneous and should some vehicle unconnected with and 
 not have been given. Such pre- beyond the control of a railroad
 
 § 2029. 
 
 NEGLIGENCE— STREET RAILROADS. 
 
 1309 
 
 § 2029. Injuries to Passengers Through Defective Condition of 
 Vehicles, (a) The court instructs the jury that the defendant owed 
 to its passengers the duty of exercising great care and caution to 
 keep the machinery and appliances of its cars in a reasonably safe 
 condition and repair, and to exercise like caution in the operation 
 of its cars.^*' 
 
 company has collided with one 
 of the latter's cars on its own 
 track no such prima facie case is 
 ordinarily made out as suffices to 
 throw the burden upon the carrier 
 to prove itself not guilty of negli- 
 gence. In Chi. C. Ry. Co. v. Rood, 
 163 111. 477-483, 45 N. E. 238, it is 
 said: 'It is reasonable that a pre- 
 sumption of negligence should 
 arise against the carrier in cases 
 where the cause of the accident is 
 under its control, because it has 
 in its possession the almost exclu- 
 sive means of knowing what oc- 
 casioned the injury, and of ex- 
 plaining how it occurred, while the 
 injured party is generally ignorant 
 of the facts. But where the cause 
 of the accident is outside of and 
 beyond any of the instrumentali- 
 ties under the control of the car- 
 rier, its means of knowledge may 
 not be and is not necessarily bet- 
 ter than those of the passenger.' 
 To the same effect are Federal St. 
 & P. V. Ry. Co. V. Gibson, 96 Pa. 
 St. 83; Potts V. Chicago C. Ry. 
 Co., 33 Fed. 610 (611); C. City Ry. 
 Co. V. Catlin, 70 111. App. 98-99; 
 Elwood V. C. C. Ry. Co., 90 111. 
 App. 398 (399); N. C. St. R. R. v. 
 O'Donnell, 115 111. App. 110. The 
 question as to when the presump- 
 tion against the defendant carrier 
 arises and when the burden is 
 upon the plaintiff to prove the de- 
 fendant guilty of the negligence 
 charged, seems to have depended 
 in some cases on the facts of the 
 particular case. Thus in L. & N. 
 R. R. Co. V. Kuhn, 86 Ky. 578, 6 
 S. W. 441, cited in W. C. St. R. R. 
 Co. V. Martin, 154 111. 523-529, 39 
 N. E. 140, the plaintiff was a pas- 
 senger on a street car which was 
 run into by a train while passing 
 a railroad crossing at night. It 
 was held the burden of proof was 
 on the street car company to show, 
 if such was the case, that the in- 
 jury did not result from its own 
 want of diligence, but from the 
 negligence of the railroad com- 
 pany. See also Osgood v. Los An- 
 geles T. Co., 137 Cal. 280 (283), 70 
 Pac. 169." 
 
 36— Dallas C. Elec. St. Ry. Co. v. 
 Broadhui-st, 28 Tex. Civ. App. 630, 
 68 S. W. 315 (318). 
 
 "The objection made to the 
 above chai-ge is that it imposes 
 upon the defendant a higher de- 
 gree of care than is required by 
 law. In the case of Levy v. Camp- 
 bell, — Tex. — , 19 S. W. 438, the 
 court charged that the defendant 
 was required to use the 'utmost 
 care.' This charge was held to be 
 correct. In the case of Gallagher 
 V. Bowie, 66 Tex. 265, 17 S. W. 407, 
 the same expression, 'the utmost 
 care,' was used by the trial judge 
 in the charge to the jury, and the 
 charge was sustained as correct 
 by our supreme court. In the 
 latter case. Justice Robertson says 
 that 'the degree of care required 
 of carriers is generally described 
 by the authorities as the utmost, 
 and the use of this expression in 
 the charge was not objectionable.' 
 In the case of Gulf C. & S. F. 
 Railway Co. v. Smith, 87 Tex. 352, 
 353, 28 S. W. 522, it was held that 
 the expression 'great care and pru- 
 dence' was too high a degree of 
 care in the case of an employe 
 suing his master; that in such case 
 the defendant is only required to 
 use ordinary care. In discussing 
 that expression used in the charge, 
 the court said, speaking through 
 Justice Brown: 'This imposed the 
 highest degree of care known to 
 the law, which is that degree of 
 care prescribed for the government 
 of railroad companies toward their 
 passengers;' citing Shear. & R. 
 Neg. par. 51. Houston & Tex. C. 
 R. Co. V. Gorbett, 49 Tex. 573. 
 
 In the Gorbett case, the language 
 used in the charge was 'greatest 
 care and prudence.' As to this 
 charge Justice Gould said: 'The 
 charge required the greatest de- 
 gree of care and prudence of de- 
 fendant as being a carrier of pas- 
 sengers, and at the same time held 
 defendant not responsible if the 
 injury was the result of a mere ac- 
 cident or casualty, there being no
 
 1310 FORMS OF INSTRUCTIONS. [§2029. 
 
 (b) If the jury believe and find from the evidence in this ease 
 
 that on or about the day of , , plaintiff 
 
 was a passenger on a west-bound car of defendant ; that on said date, 
 while rounding a curve between C. avenue and R. place in a north- 
 Avesterly direction, the car on which plaintiff was a passenger was 
 being run at a high rate of speed, and that the said car left or 
 jumped the track, and ran across the ties and along the ground for 
 a space of about fifty feet, and against a large pole with great force 
 and violence, causing plaintiff's injuries described in the testimony; 
 and that the said car left or jumped the track by reason of the 
 flange on one of the wheels of said car being in a worn or broken 
 condition, which rendered it unsafe and dangerous as a vehicle for 
 the transportation of passengei's; and that that condition, if you 
 believe and find from the evidence it was in such condition, was 
 known to the defendant, or its agents, servants and officers in charge 
 of said car and railroad, or could by the exercise of reasonable 
 care and diligence have been known to them a sufficient length of 
 time prior to said car's leaving the track to have prevented it so 
 doing — if you believe and find these facts, then and in that event 
 your verdict should be for plaintiff. 
 
 (c) The court instructs the jury that plaintiff is not entitled to 
 recover in this case merely because one of defendant's cars was 
 derailed by the breaking of the flange of a wheel. That if you 
 believe from the evidence that the derailment of the car in question 
 at the curve near F. avenue was due solely to the breaking off 
 of pieces to have flange immediately in said curve, and that said break- 
 ing could not be foreseen or anticipated upon close examination by 
 a competent inspector, then and in that case the defendant was 
 guilty of no negligence in connection with the breaking of such 
 flange, and you will find your verdict for the defendant. 
 
 (d) The court instructs the jury that if you believe from the 
 
 want of care or skill on the part 103, the degree of care due to a pas- 
 
 pf the company or its ag-euts.' The senger by a carrier is stated to be 
 
 charge was sustained, and the 'the utmost care and foresight 
 
 judgment of the court below af- reasonably compatible with the 
 
 firmed. In the case of Levy v. prosecution of its business.' In the 
 
 Campbell, supra, it was held that case at bar, the charge required 
 
 the use of the term 'utmost care' the exercise by the carrier of 'great 
 
 in the charge, without defining the care and caution' in keeping its 
 
 same, was not error. It was also machinery in repair and in the 
 
 held that, if any explanation of operation of its cars. We are of 
 
 such expression was deemed neces- the opinion that the charge does 
 
 sary, a special charge should have not impose a higher degree of care 
 
 been asked to that effect. In the upon the carrier than is required 
 
 case of Gallagher v. Brown, above by law. 
 
 cited, wherein the same expression Again, complaint is made of the 
 
 'utmost care' was used, Judge court's failure to define the words 
 
 Robertson said: 'If it needed ex- 'great care and caution' as used in 
 
 phuiation or qualification, appel- the charge. If there was any er- 
 
 lant should have requested a spe- ror in tiiis respect, it was one of 
 
 rial charge.' In the language quot- omission, and the plaintiff in error 
 
 ed above from the Lauricclla case, cannot be heard to complain in the 
 
 Mf'x. rV'nt. R. Co. V. Lauricella, si absence of a speci;il (■hatg(> de- 
 
 Tex. 278, 28 S. W. 278, 27 Am. St. signed to correct such omission."
 
 §2030.] NEGLIGENCE— STREET RAILROADS. 1311 
 
 evidence that, when defendant's ear reached S. street, it was ex- 
 amined by an inspector, who found that a small piece of flange of 
 one wheel had chipped out; and if you further believe from the 
 evidence that there was no danger of derailing on account of such 
 portion of the flange being out of said wheel ; and that it was im- 
 possible for defendant's said inspector to discover by examining 
 said wheel, any defect that would lead a competent inspector to sus- 
 pect or infer that other pieces of said flange would break out during 
 the running of said car in its ordinary course to D. ; and if you 
 further believe from the evidence that, after examining said car, 
 the inspector told the motorman to proceed with said car, and 
 that thereafter when said car was going round a curve at C. avenue, 
 other and larger pieces of such flange broke out, and that thereby 
 said car was derailed, then and in that case the defendant was guilty 
 of no negligence, and your verdict must be for the defendant.^^ 
 
 § 2030. Inspection of Vehicle. If the jury find from the evidence 
 that prior to the accident in question here defendant had employed 
 competent inspectors to inspect the controller and motors, and other 
 electrical appliances in use on defendant's cars, and that such in- 
 spector had used a very high degree of care in making reasonable 
 inspection of the ear upon which plaintiff was injured a short time 
 prior to the time of her injury, and that such inspection failed to 
 disclose any defect in the said controller, motors or electrical appli- 
 ances, and that said car and its appliances were apparently in a 
 reasonably safe condition for the purposes for which it was being 
 used by defendant, and that the accident in question here could not 
 have been reasonably anticijjated, foreseen, or prevented by de- 
 fendant by the exercise of a verj^ high degree of care in inspecting 
 said car, and its appliances, then plaintiff cannot recover in this 
 action and your verdict must be for the defendant.^^ 
 
 § 2031. Presumptive Liability When Car Derailed, (a) • The jui-y 
 are instructed that if you believe, and find from the evidence, that 
 on or about the — day of — , defendant Avas operating a street 
 railway, and engaged in the business of carrying ijassengers thereon 
 for hire ; that plaintiff was a passenger, having taken passage upon 
 one of defendant's cars on said road, and that while he was so a 
 passenger, being carried thereon upon defendant's road, the said 
 ear was thrown from or left the track upon which it was running, 
 and suddenly stopped, at or near the intersection of N. and M. 
 streets, in K. C, Mo., and that plaintiff was then himself exercising 
 ordinary care, and that he was by such stopping and derailment of 
 the car thrown from said car and injured thereby — then the law pre- 
 sumes that such injury to plaintiff was caused by defendant's negli- 
 gence, and such facts, if proved by a prei^onderance of the evidence, 
 
 37— Johnson v. St. Louis & S. Ry. for the plaintiff and the two last 
 Co., 173 Mo. 307, 73 S. W. 173, 176, for the defendant. 
 177. The first instruction was given 38— Bred v. St. Louis T. Co., 115 
 
 Mo. App. 202, 91 S. W. 993 (996).
 
 1312 
 
 FORMS OF INSTRUCTIONS. 
 
 [§ 2031. 
 
 make out a presumptive ease for the plaintiff, and you should find 
 a verdict for the plaintiff, unless you further believe from the evi- 
 dence that, notwithstanding this presumption, the defendant at the 
 time of the hai3pening of the injury in fact had then fully performed, 
 or was then fully performing, its duty as defined and stated in other 
 instructions herein towards plaintiff as such passenger, or that such 
 injury to plaintiff, if any, did not occur because of any failure of 
 the defendant in such respect.^^ 
 
 (b) Defendant is not required to prove what caused the train to 
 leave the tracks or come to a standstill, and even if the jury cannot 
 find from the evidence the exact cause, or if such is unknown and 
 has not been shown, still if, after considering all the testimony in 
 the case, not only that offered by defendant, but that offered by 
 
 39— Logan v. Met. St. Ry. Co., 
 183 Mo. 583, 83 S. W. 127. 
 
 "If there is anything well set- 
 tled by the courts of this state, it 
 is that, where a passenger for hire 
 upon a train of cars is injured, the 
 fact of the derailment of the cars 
 and his injury makes out a prima 
 facie case of defendant's negli- 
 gence, which, unless explained, en- 
 titles him to a recovery; and in or- 
 der to overcome this prima facie 
 case and right to recover, it de- 
 volves upon the carrier to explain 
 how these things occurred, in some 
 way not inconsistent with its du- 
 ties to the plaintiff as such car- 
 rier. In other words, when a pas- 
 senger for hire shows the derail- 
 ment of the train upon which he is 
 traveling, and as a result thereof 
 he is injured, he makes out a prima 
 facie case, and the burden then 
 rests upon the carrier to explain 
 how these things occurred, and in 
 a way not inconsistent with its 
 duty to the plaintiff as a passenger. 
 
 In the case of Furnish v. Mo. 
 Pac. Ry. Co., 102 Mo. 438, 13 S. W. 
 1044, 22 Am. St. Rep. 781, it is said: 
 'Regarding the instruction (marked 
 "D") placing the burden of proof 
 upon defendant to show that the 
 injury did not occur through any 
 omission to discharge its legal 
 duty in the premises, it should be 
 remarked that the same instruc- 
 tion first required plaintiff to es- 
 tablish that the car in which she 
 was a passenger "ran off the track 
 of defendant's railroad and fell 
 down the embankment thereof," 
 and that she was thereby injured. 
 Thus framed, the instruction cor- 
 rectly expressed the law on the 
 subjer-t. The mere injui-y of plain- 
 tiff while a passenger did not call 
 for explanation or proof from de- 
 
 fendant. It first devolved on plain- 
 tiff to show some fact with ref- 
 erence to it from which negligence 
 on defendant's part as a carrier 
 might be fairly inferred. Here it 
 was shown that the car ran off 
 the track and over the embank- 
 ment. The condition of the road- 
 way at that point warranted the 
 inference that the injury was oc- 
 casioned thereby. In that state of 
 the case, if the jury found that 
 plaintiff had been injured by the 
 derailment of the car and her fall 
 down the embankment, it then de- 
 volved on defendant to explain 
 how these things occurred without 
 breach of its duty to plaintiff as 
 a carrier. This is what the court 
 said in effect, and it committed no 
 error in so doing. Hipsley v. Rail- 
 road, 27 Am. & Eng. R. Cas. 287, 
 88 Mo. 348; Breen v. Railroad, 109 
 N. Y. 297, 16 N. E. 60, 4 Am. St. 
 450; Seybolt v. Railroad, 95 N. Y. 
 562, 47 Am. Rep. 75.' It may not be 
 entirely in accord with technical 
 nicety to instruct that the burden 
 of proof shifts to defendant in the 
 course of such a trial. It might 
 be more accurate to say (in proper 
 form for the purposes of a jury 
 trial) that the facts of the derail- 
 ment of the cars and of plaintiff's 
 injury thereby make out a prima 
 facie case of defendan,t's negli- 
 gence, which, unexplained, would 
 justify a recovery; but, in the or- 
 dinary course of administering 
 law, it has become usual to de- 
 clare that on a certain showing 
 by plaintiff in such cases the bur- 
 den of proof then rests on de- 
 fendant to prove that it has not 
 been negligent. Olscn v. Citizens' 
 Ry. Co., 152 Mo. 426, 54 S. W. 470; 
 Clark V. Railway Co., 127 Mo. 197, 
 29 S. W. 1013."
 
 §2031.] NEGLIGENCE— STREET RAILROADS. 1313 
 
 plaintiff, you find there was not any negligence on the part of the 
 defendant of the character submitted for your consideration, then 
 defendant must have the verdict, even though L. was its passenger, 
 and received his injury, if any, without any fault upon his part. 
 
 (c) Even though the plaintiff, L., was hurt without any fault upon 
 his part, still under no circumstances can a verdict be rendered 
 against the defendant unless the jury find that the train left the 
 track or came to a sudden stop by reason of the negligence of de- 
 fendant's agents, servants, or employes. If the train by reason of 
 an unavoidable casualty or accident got off the tracks or came to a 
 sudden standstill, in that way causing plaintiff's injury, if any, then 
 there was no negligence, and your verdict must be for defendant.*** 
 
 (d) The court instructs the jury that the defendant in this case 
 was, at the time of the injuiy complained of, a can-ier of passengers 
 
 for hire in , and as such it was bound to provide reasonably 
 
 safe track, roadbed, and roadworthy cars, and careful employes to 
 manage the same, so far as practicable human skill, diligence, and 
 foresight could provide; and it is responsible for all injuries to 
 passengers resulting from negligence on the part of its agents or 
 servants. If therefore, the jury believe from the evidence that on 
 or about the — day of — , the plaintiff, , boarded one of de- 
 fendant's cai-s on its line of road, and paid his fare to be trans- 
 ported to defendant's depot at avenue, in said ; and you 
 
 further find that there is a descent in defendant's track or roadbed 
 
 from a point near street, down to defendant's depot at • 
 
 avenue ; and you further find and believe from the evidence that 
 said train (by the carelessness and negligence of defendant 's servants, 
 agents, and employes) got beyond the control of the servants of 
 defendants, and ran rapidly down said descent, and the car upon 
 which the plaintiff was a passenger left the track and was over- 
 turned, and plaintiff was thereby injured without fault or negligence 
 on his part, — then it devolves upon defendant to prove to your satis- 
 faction that the accident was caused by inevitable accident, that 
 could not have been detected or known to its agents or servants by 
 the exercise of the utmost practicable human skill, diligence, and 
 foresight, and unless it is so shown you should find for plaintiff. 
 
 (e) If the jury find and believe from the evidence that the plain- 
 tiff boarded one of the cars of defendant in K. City, to be carried 
 by it as a passenger from W. street to its depot at U. avenue, 
 
 on or about the 27th day of , and that said ear and train was 
 
 carelessly and negligently permitted to rapidly run down a descent 
 on defendant's road with unusual speed and force, that the car was 
 derailed and turned over, and that plaintiff received injuries by rea- 
 son thereof, without fault on his part, then the burden of proof is 
 shifted upon the defendant to show to the satisfaction of the jury that 
 the accident occurred through no fault, negligence, license, or care- 
 
 40 — Logan v. Metropolitan St. Ry, Co., supra. 
 83
 
 1314 FORMS OF INSTRUCTIONS. [§ 2032. 
 
 lessness of defendant's agents or servants, and unless it is so shown 
 the jury should find a verdict for plaintiff. 
 
 (f) By the utmost practicable human skill, diligence, and fore- 
 sight used in these instructions is meant such skill, diligence, and 
 foresight as is exercised by reasonably cautious persons under like 
 circumstances. 
 
 (g) What the court says in the instructions read by plaintiff's 
 counsel as to the burden being on defendant does not mean that you 
 are confined to the testimony offered by defendant in determining 
 whether the burden has been established. You are to consider all 
 the facts and circumstances in evidence, whether developed in the 
 examination of plaintiff' 's or defendant's witnesses, and, if you find 
 therefrom that there was no negligence of the character submitted, 
 then the burden has been sustained by the defendant, and it is en- 
 titled to the verdict, even though you find that F. was a passenger, 
 and was injured without fault on his part. 
 
 (h) Defendant is not required to prove what caused the train to 
 get beyond the control of the trainmen; and even if the jury can not 
 find from the evidence the exact cause, or if such cause is unknown 
 and has not been shown, still if, after considering all the testimony 
 in the case, not only that offered by defendant, but also that offered 
 by plaintiff, you find that there was not any negligence on the part 
 of defendant of the character submitted to your consideration, then 
 the defendant must have the verdict, even though F. was its passen- 
 ger, and received his injury without any fault upon his part. 
 
 (i) Even though the plaintiff, , was hurt without fault on 
 
 his part, still under no circumstances can a verdict be rendered 
 against the defendant, unless the jury find that the train went down 
 the incline by reason of the negligence of defendant's agents, 
 servants, and employes. If the car, by reason of an unavoidable 
 casualty, got from the control of the gripman, then there was no 
 negligence, and ,your verdict must be for the defendant. ^^ 
 
 § 2032. Presumptive Liability When Passenger Injured Through 
 Collision, (a) If the jury find from the evidence in that case that the 
 defendant, on the day of was operating the cars men- 
 tioned in the evidence for the purpose of carrying passengers for 
 hire as a street railway; and if the jury further find from the evir 
 denee that the defendant, by its servant in charge of one of said 
 cars, received plaintiff as a passenger thereon at or near W. 
 Station, to be carried as such passenger upon said car to a point 
 
 on defendant's railroad at or near race track in St. L., Mo., 
 
 and that the plaintiff paid his fare as such passenger; and if the 
 jury further find from the evidence in this ease that whilst the plain- 
 tiff was such passenger on said ear, being so carried to his point 
 of destination aforesaid, and before he reached his said point of 
 destination, the car in which he was such passenger was collided 
 
 41— The above six instructions Ry. Co., 162 Mo. 75, 62 S. W. 452- 
 were upheld in Feary v. Met. St. 460.
 
 §2033.] NEGLIGENCE— STREET RAILROADS. 1315 
 
 with by another of defendant's cars going the opposite direction on 
 the same track, and that thereby plaintiff was injured — ^^then the 
 defendant is liable in this case, if the defendant's servants in charge 
 of its said ear could have prevented said collision by the exercise of 
 a high degree of care, such as would have been exercised by careful, 
 skillful road employes under the same and similaj* circumstances. 
 
 (b) The jury are instructed that if the jury believe from the 
 evidence that plaintiff was a passenger lawfully on board of the 
 defendant's street ear at the time of the collision appearing in evi- 
 dence, and received injuries therein, then the burden of proof is 
 shifted u2>on the defendant to show to the satisfaction of the jui'y 
 that said collision was caused through no negligence or carelessness 
 of defendant's agents, and unless it is so shown the jury should find 
 a verdict for plaintiff. ■*- 
 
 § 2033. Injury through Panic of Passengers Produced by Explosion 
 on Car. The court instructs the jury that if you believe and find 
 from the evidence that the plaintiff was a passenger on one of the 
 defendant's ears, and while such passenger, as she was in the exer- 
 cise of ordinaiy care for her own safety, an explosion occurred on 
 said car by reason of which a panic was caused among the passengers 
 on said car, in consequence of which the plaintiff, without fault on 
 her part, was pushed from said car and thereby injured, then the 
 plaintiff has made out a prima facie case of negligence against the 
 defendant, and this places ujDon the defendant the burden of re- 
 butting that presumption by proving that the explosion could not 
 have been prevented by all that human care, vigilance and foresight 
 could reasonably do consistent with the mode of conveyance and the 
 practical ojjeration of the road.*^ 
 
 § 2034. Slowing Down Car for Passenger to Board — Car Suddenly 
 Started, (a) The court instructs the jury that if they find from 
 
 42 — Robinson v. St. Louis & S. in allowing the explosion, is taken 
 
 Ry. Co., 103 Mo. App. 110, 77 S. W. from the jury, and the mere fact 
 
 493 (495). of the explosion itself is treated 
 
 "In what particular the above as sufficient evidence of negli- 
 instructions are erroneous is not gence.' Conceding that the in- 
 specifically pointed out by defend- struction, technically considered, 
 ant. That they properly declared should have contained the element 
 the law of the case we have no that the controller was in the con- 
 doubt. The collision of the cars trol of the appellant, as by the 
 running in opposite directions on use of the words, in the controller 
 the same track was prima facie of the car, or in the appliances of 
 evidence of defendant's negligence, the car, immediately next after the 
 When shown, the burden was shift- words, 'explosion occurred on said 
 ed on defendants to show by a pre- car,' this cannot prejudice appel- 
 ponderance of the evidence that lant, because it is an uncontested 
 the collision was not due to its fact, and is admitted in the argu- 
 fault. Malloy v. Railway, 173 Mo. ment of appellant's counsel, thev 
 75, 73 S. W. 159; Clark v. Railroad saying: 'Suddenly th..re was a 
 Co., 127 Mo. 197, 29 S. W. 1013." flash and a report from the con- 
 
 43— Chi. U. T. Co, v. Newmiller, troller, on the front platform of the 
 
 116 App. 111. 625 (629), aff'd 215 111. car.' It is not error for the court, 
 
 383, 74 N. E. 410. in instructing the jury, to assume 
 
 "The objection urged to above the existence of an uiicontroverted 
 
 Instruction is that 'the element of and admitted fact." 
 the defendant's alleged negligence,
 
 1316 FORMS OF INSTRUCTIONS. [§2034. 
 
 the evidence in this ease that on the day of , the defendant 
 
 was operating the car mentioned in the evidence for the purpose 
 of carrying passengers for hire; and if the jury further find from 
 the evidence that on said day the plaintiff, at the crossing of D, 
 
 street and G. avenue, in the city of , signaled the motorman 
 
 of said car of his intention to become a passenger on said ear at 
 said place; and if the jury further find from the evidence that said 
 place was where the defendant received passengers on its eastbound 
 car; and if the jury further believe from the evidence that defend- 
 ant's said motorman on said ear, in obedience to said signal, slowed 
 said car down, approaching and at said place, to enable the plaintiff 
 to get upon said ear as a passenger, and that the plaintiff, whilst 
 said car was so slowed down for said purpose, attempted to get upon 
 said ear as a passenger — then it was the duty of defendant's motor- 
 man in charge of said car to use a high degree of care, such as would 
 be exercised by a skillful and careful motorman under like circum- 
 stances, to so control and manage said car as to enable the plaintiff 
 to safely get upon said ear, and reach a place of safety as a passenger, 
 (b) If the jury believe from the evidence in this case that on the 
 
 day of , the defendant was opei'ating the ear mentioned 
 
 in the evidence for the purpose of carrying passengers for hire from 
 one point to another in the city of St. L. by street railway; 
 and if the jury further find from the evidence in this case that on 
 
 the day of , the plaintiff was on the east crossing of G. 
 
 avenue and D. street, in the city of , intending to become a 
 
 passenger upon defendant's eastbound car at said place, and said 
 place was where the defendant received passengers on its eastbound 
 car; and if the jury further find from the evidence that whilst so 
 at said crossing the plaintiff signaled defendant's motorman in charge 
 of its eastbound car, approaching said point, of his intention to be- 
 come a passenger upon said ear at said place; and if the jury further 
 find from tlie evidence that said motonnan, in obedience to said signal 
 slowed said ear down as it approached said crossing for the purpose 
 of receiving the i^laintiff as a passenger on said car while it was so 
 slowed down and moving slowly at said crossing; and if you further 
 find from the evidence in this ease that, after said ear was so slowed 
 down, it was so moving slowly at said crossing, and while so moving 
 slowly the plaintiff stepped upon the step of the rear platform of 
 said ear for the purpose of becoming a passenger on said ear, and 
 that whilst the plaintiff was so getting upon said ear, and before he 
 had a reasonable time or opportunity to get upon said car as a pas- 
 .sengei*, defendant's motorman in charge of said car caused or suf- 
 fered said car to suddenly go forward with increased speed and 
 shock, and that thereby the plaintiff was caused to be thrown and 
 fall from said car and sustain injuries; and if the jury believe from 
 [he evidence that the defendant's motorman so in charge of said car, 
 while plaintiff was in the act of getting on the car, failed to exercise 
 such high degree of care as would be exercised by a skillful and
 
 §2035.] NEGLIGENCES-STREET RAILROADS. 1317 
 
 careful motorman under the same or similar circumstances, and 
 thereby directly caused said movement of said car, and plaintiff's 
 injuries; and if the jury find from the evidence that the plaintiff 
 was exercising ordinary care at the time in so getting upon said car, 
 and whilst on said car — then the plaintiff is entitled to recover. 
 
 (c) If the jury find from the evidence that the car was slowed 
 down while passing around the curve leading from G. avenue to 
 D. street for the purpose of making it safe in getting around 
 said curve, and that such slowing down was not done for the purpose 
 of enabling the plaintiff to get upon the car, then such slowing down 
 of the car was not an invitation to plaintiff to attempt to get upon 
 the same, and if the motorman did not know, and had no reasonable 
 cause to think, that the plaintiff was attempting to get on said car 
 while it was in motion, then it was not negligent or improper in 
 the motorman to accelerate the motion of said car when leaving said 
 curve, and such facts, if j'ou find them to be true from the evidence, 
 do not authorize the jDlaintiff to recover.** 
 
 § 2035. Burden of Proof on Plaintiff to Show Slowing Down of 
 Car Could Be Construed as Invitation to Board. The court instructs 
 the jury that the charge of negligence made against the defendant 
 in the plaintiff's petition is that the motorman of defendant's car 
 slowed down the said car to a stopping point, inducing plaintiff to 
 believe that said ear had stopi^ed to receive him as a passenger, and 
 that while plaintiff was in the act of boarding said ear the same was 
 
 suddenly, and in violation of the ordinances of the city of , 
 
 started, throwing plaintiff to the ground and injuring him. With 
 respect to the foregoing charge of negligence, j^ou are instructed that 
 the burden is upon the plaintiff throughout the whole case of estab- 
 lishing to your satisfaction, by the pi-eponderance or greater weight 
 of testimony, that the defendant's car did slow down, either for the 
 purpose of receiving plaintiff as a passenger, or to so slow a speed 
 as to cause the plaintiff to believe that it was slowing down for the 
 purpose of receiving him as a passenger, and that the same was so 
 suddenly started while plaintiff was in the act of boarding the same 
 as to cause him to be injured; and unless the plaintiff has so proven 
 he is not entitled to recover, and your verdict must be for defendant.*^ 
 
 § 2036. Negligently Starting Car While Plaintiff Is in Act of 
 Boarding It — Taking Hold of Hand Rail, (a) The court instructs 
 the jury that if you find and believe from the evidence that on 
 
 or about the day of , the defendant was operating certain 
 
 lines of street railroads in the city of St. L., Mo., and par- 
 ticularly a double-track line of railroad running east and west on 
 M. avenue, past the intersection of M. and E. avenues, in 
 said city; and if you further find and believe from the evidence 
 
 44 — The above instructions ap- 45— Maguire v. St. L. T. Co., 103 
 proved in Kikenberry v. St. Louis Mo. App. 459, 78 S. W. 838, 840. 
 T. Co., 103 Mo. App. 442, 80 S. W. 
 360 (361, 362).
 
 1318 FORMS OF INSTRUCTIONS. [§ 2036. 
 
 that the plaintiff attempted to board one of the defendant's eastbound 
 cars on M. avenue, at the intersection of said M. and E. 
 avenues, and on the east side of said E. avenue, and south side of 
 said M. avenue, at a place where defendant's cars were in the 
 habit of stopping to receive passengers, and that plaintiff, at said 
 time and place, had reason to believe, and did believe, that said car 
 was stopping for passengers to board said car at said place; and if 
 you further believe and find from the evidence that the plaintiff took 
 hold of the hand rail of said car at the rear end thereof for the 
 purpose of becoming a passenger on said car; and if you find from 
 the evidence that the defendant's servants in charge of said ear knew, 
 or by the exercise of ordinary care should have known, that plaintiff 
 was attempting to board said ear as a passenger; and if you further 
 believe from the evidence that after the plaintiff had so taken hold 
 of the handrail of said car at the rear end thereof for such purpose 
 the said servants in charge of said car suddenly started the same 
 before the plaintiff had a reasonable time to get upon said car and 
 to a place of safety therein, and that the injury complained of was 
 caused by the failure to stop the car and by such sudden starting of 
 the car under such circumstances ; and if you further believe from 
 the evidence that the plaintiff at the time exercised ordinary care 
 in attempting to board the car in the manner shown by the evidence — 
 then your verdict should be for the plaintiff.'**^ 
 
 (b) If the jury find from the evidence that on the day of 
 
 the plaintiff was standing at the corner of E. and A. avenues 
 
 in the city of , intending -to board one of the cars operated by 
 
 defendant along and upon E. avenue; and if you further find 
 from the evidence that a ear of the defendant stopped at the corner 
 of E. and A. avenues at the usual stopping place for taking 
 on passengers, and that while said car was so stopped the plaintiff 
 took hold of the hand rail with the purpose and intention of boarding 
 said car and become a passenger thereon, and raised one foot towards 
 or onto the step of the platform of said car, and, while in such posi- 
 tion, the car started before the plaintiff had reasonable time to get 
 aboard, if you find that it did so start; and if you further find that 
 in consequence of such starting the plaintiff was injured — your ver- 
 dict should be for the plaintiff'.*^ 
 
 46 — Maguire v. St. L. T. Co., 103 speedily overturned, and the 
 
 Mo. App. 459, 78 S. W. 838 (840). reasonable proposition adopted tliat 
 
 47 — Shanahan v. St. L. T. Co., instructions in a case are to be 
 
 109 Mo. App. 228, 83 S. W. 783 (784). talten as a whole, and can be un- 
 
 The court said: derstood by the jury, as composed 
 
 "Error is imputed to this in that of men of common sense, in no 
 It authorized a verdict for plaintiff, other way, and that a single in- 
 ignoring any evidence of contribu- struction need not cover the whole 
 tory negligence, and without limit- case. Owens v. Railway, 95 Mo. 
 Ing the right of recovery to the 169, 8 S. W. 350, 6 Am. St. 39." 
 absence of such contributory neg- "Nor does this instruction predi- 
 ligence on his part. This fallacious cate a right of recovery upon an 
 doctrine w.-is enunciated in Sulli- act of negligence not the proxi- 
 van v. Railroad, 88 Mo. 169, but mate cause of the accident, as af-
 
 §2037.] NEGLIGENCE— STREET RAILROADS. 1319 
 
 § 2037. Motorman Must Act Under Directions of Conductor — 
 Knowledge of Either Motorman or Conductor That Plaintiff Is Board- 
 ing Car Sufficient. If you believe from the evidence that the plaintiff 
 was standing upon the rear platform of defendant's car for the 
 purpose of requesting passage thereon from the conductor, while the 
 
 same was stopped and standing at , that said car was in charge 
 
 of and being operated by its motorman and conductor, and that in 
 operating the same the motorman had control of the power which 
 caused its motion, and so controlled the stopping, starting and speed 
 of the car, and said motorman was under the direction of the con- 
 ductor, and was required to stop and start said car upon signals 
 from the conductor by means of a bell to be rung by the conductor; 
 that either of them — the said conductor or motorman — knew, or by 
 the exercise of ordinaiy care would have known that plaintiff was 
 so standing upon said platform, and failed to exercise ordinary care 
 for the safety of the plaintiff in the starting of said car, and that 
 such failure caused the said car to be started suddenly, and without 
 notice or warning to plaintiff, at a rapid rate of speed, upon a curve 
 in the track, and thereby caused the plaintiff to be thrown from 
 the said platform of the car and injured, as the result of such failure 
 in the exercise of ordinary care — then you should find that such fail- 
 ure constituted negligence.** 
 
 § 2038. Effect of Failure of Conductor to See Intending Passenger. 
 
 If the jury believe from the evidence that the plaintiff came up to 
 the car from the rear, and was not upon the car, but was in a position 
 where the conductor, in the exercise of ordinary care in looking for 
 intending passengers, at the rear step of his car, would not ordinarily 
 see plaintiff, and the conductor, in the exercise of ordinary care in 
 looking for intending passengers at the rear step, did look there, 
 and in so looking saw no intending passenger, and at once gave the 
 signal to go ahead, and the car thereupon started, then there could 
 be no reeovei'y in this ease, and your verdict will be for the de- 
 fendant. ^^ 
 
 § 2039. Effect of Stranger Ringing Bell and Starting Car. If the 
 jury believe, from the evidence, that some person not in the em- 
 ployment of the defendant company rang the bell which started the 
 
 firmed by appellant. The joint in view of the objection, if the 
 specifications of negligence in motorman was not under the di- 
 starting the car before the plain- rection of the conductor, how the 
 tiff was afforded a reasonable op- car could be run orderly, and with 
 portunity to safely get on, and in safety to passengei's? It is a mat- 
 not stopping subsequently to avert ter of common knowledge that 
 the peril impending in his jeopard- motormen stop and start street 
 ous situation of being dragged and cars in response to signals given 
 clinging to the car, in themselves by the conductor, and that such 
 are not inconsistent, and both find cars could not be operated with 
 abundant support in the testi- any degree of safety in any other 
 mony." manner." 
 
 48— Brock v. St. L. T. Co., 107 49— Gaffney v. St. Paul C. Ry. 
 
 Mo. App. 109, 81 S. W. 219 (222). Co., 81 Minn. 459, 84 N. W. 304 (305). 
 
 "It might be pertinent to inquire,
 
 1320 FORMS OF INSTRUCTIONS. [§ 2040. 
 
 train at the time in question, still that fact ^vill not exempt the de- 
 fendant company from liability in this ease ; provided the juiy believe, 
 from the evidence, that the conductor could, by use of due care and 
 diligence, have countermanded the unauthorized signal for starting 
 the train in time to have prevented anj^ injury to the plaintifi, if he, 
 the conductor, had exercised due care and diligence in the discharge 
 of his duties ; and provided the jury believe, from the evidence, that 
 the plaintiff at the time in question was in the exercise of reasonable 
 care and diligence for his own safety.^" 
 
 § 2040. Negligently Starting Car While Passenger Is Alighting. 
 (a) The jury are instructed that the law requires the employes of 
 street railways to do more than to stop reasonably long enough 
 for passengers to safely alight from cars. They are bound and re- 
 quired to ascertain and know that no passenger is in the act of 
 alighting from the ear before putting it in motion again. If an 
 emjDloye fails in that respect, then such failure is imputed to his 
 employer, and is actionable negligence on the part of the employer, 
 and it is no excuse for the em^Dloye or his employer to show that the 
 ear on the particular occasion was operated in the usual manner.^^ 
 
 (b) The court instructs the jury that if they believe from the 
 evidence that on or about the plaintiff, Mrs. A., was a pas- 
 senger upon one of defendant's street cars running north on B, 
 
 street in the city of , and had paid her fare ; and that said ear 
 
 stopped at B. avenue, or near that point, for the purpose of 
 permitting said Mrs. A. to alight therefrom, and that while she was 
 in the act of alighting from said car the said ear was without warning 
 started forward with a sudden movement which caused Mrs. A. to be 
 thrown to the ground and injured, while she was exercising ordinary 
 care on her part; and if you further find and believe from the evi- 
 
 50 — N. C. St. R. R. Co. v. Cook, in the discharge of his duties he 
 
 145 111. 551 (557), 33 N. E. 958. could know, whether any person 
 
 "We see no objection to the in- was attempting to get on or off his 
 struction. It was the duty of the train or car before permitting the 
 appellant to stop its car a suf- same to start in such manner as 
 ficient length of time to enable ap- would be likely to injure a person 
 pellee to get fully and safely on so getting on or off the same. It 
 same. City R. Co. v. Mumford, 97 was a duty appellant owed to the 
 111. 560; 2 Shear. & Red. Neg. sec. public to be discharged through its 
 508; Thompson on Car. Pass., sec. conductors or other agents whom 
 16; Dougherty v. Mo. Pac. Ry., 81 it might select to afford its pas- 
 Mo. 330, 51 Am. Rep. 239; C. & A. sengers time and opportunity to 
 R. R. Co. v. Wilson, 63 111. 167; Chi. board and depart from its cars in 
 W. D. Ry. Co. v. Mills, 105 id. 63; safety. The fact, therefore, if it 
 C. & A. R. R. Co. v. Arnot, 144 111. be conceded that the signal for 
 261, 33 N. E. 204, 19 L. R. A. 313. starting was given by an unau- 
 
 Carriers of passengers are held to thorized person would not exempt 
 
 the exercise of the utmost or high- the railroad company from liabn- 
 
 est degree of care, skill and dill- ity if the conductor or agents of 
 
 gence for the safety of the passen- the railway company in chai-ge by 
 
 ger that is consistent with the the exercise of due care and dili- 
 
 mode of conveyance employed. The gence could have prevented the 
 
 car or train was in the control of moving of the car and thereby 
 
 the conductor, and he was re- avoided the injury." 
 
 quired to know, if by the exercise 51 — Crump v. Davis, 33 Ind. App. 
 
 of due care, caution and diligence 88, 70 N. E. 886, 887.
 
 § 2040.] NEGLIGENCE— STREET RAILROADS. 1321 
 
 dence that said sudden movement of said car was directly produced by 
 the defendant's agent or employe in charge of the movement of said 
 car, and that his said act in so causing the said ear to be suddenly 
 started, as aforesaid, amounted to a want of such care as devolves 
 on a carrier of passengers (as defined in another instruction), and 
 that as a direct consequence of such omission of such care by said 
 agent of defendant Mrs. A. received injury — then your verdict should 
 be for the plaintiffs.^- 
 
 (c) If the jury believe, from the evidence, that the defendant con- 
 trolled and operated, for the purpose of carrying passengers for 
 
 hire, certain street cars upon. avenue in the city of , 
 
 County, , and that the plaintiff, on or about the day of 
 
 was a passenger for hire on one of the said cars of the de- 
 fendant, and that the defendant, by its servant, caused the said car 
 to be stopped for the purpose of allowing passengers to alight there- 
 from, and the plaintiff was in the act of alighting from said car 
 while said car was so stopped, and while in the act of alighting from 
 said car was using all reasonable care and caution to avoid the 
 injuiy complained of in the declaration, and that the defendant, 
 through its servant, negligently and carelessly caused said car to be 
 set in motion while the plaintiff was so alighting from said car, and 
 that thereby the plaintiff was injured, then the jury should find the 
 defendant guilty.^^ 
 
 (d) If you believe from the evidence that on or about the 
 
 day of plaintiff boarded one of defendant's street cars, and be- 
 came a passenger thereon, and that she attempted to alight therefrom 
 after said car had been stopped, and if you further believe from the 
 evidence that while she was in the act of alighting from said car the 
 car was suddenly put in motion, without giving her sufficient time 
 to alight, and if you further find from the evidence that the defendant 
 was guilty of negligence in failing to give the plaintiff sufficient time 
 
 52 — Abbitt v. St. L. T. Co., 106 ment that there was no evidence 
 
 Mo. App. 640, 81 S. W. 484. upon which the instruction should 
 
 "It seems to us that it would be be predicated might be regarded 
 
 quite difficult, if not impossible, as well taken. But, upon exami- 
 
 to embody in an instruction a nation of the record, it will be 
 
 more accurate expression of the found that there is evidence tend- 
 
 law as applicable to any given case ing to prove ordinary care on the 
 
 than that embodied in that of part of the plaintiff. The objec- 
 
 plaintiff. Dawson v. Transit Co., tions that the instruction entirely 
 
 102 Mo. App. 277, 76 S. W. 689; Bat- omits the question as to whether 
 
 ten v. Transit Co., 102 Mo. App. the negligence was the proximate 
 
 285, 76 S. W. 727." cause of the injury, and that it re- 
 
 53— N. C. St. R. R. Co. v. Brown, quired the plaintiff to exercise 
 
 178 111. 187 (188), aff'g 76 111. App. reasonable care but did not in- 
 
 654. 52 N. E. 864. struct the jury as to what was 
 
 The court, in its opinion, said: reasonable care, are obviated in 
 
 "It may be conceded that plaintiff other instructions given by the 
 
 could not recover unless she was court." 
 
 in the exercise of ordinary care at For a similar instruction, see 
 
 the time of the accident, and if Springfield Ry. Co. v. Hoeffner, 
 
 there was no evidence whatever 175 III. 634, 51 N. E. 884, aff'g 71 
 
 in the record tending to show or- 111. App. 162. 
 dinary care on her part, the argu-
 
 1322 FORMS OF INSTRUCTIONS. [§ 2041, 
 
 to alight from its car, and in suddenly starting said car, if you so 
 find the facts to be, and that such negligence, if any, directly caused 
 plaintiff to fall, and that she was injured thereby, then your verdict 
 should be for the plaintiff, unless you find, under the charge herein- 
 after given you, that the plaintiff was guilty of negligence herself 
 that contributed to her injury.^'* 
 
 (e) I instruct you also, gentlemen, that it is the duty of a railway 
 company such as this to use the degree of care which I have defined 
 as being the duty of railway companies, to see to it that passengers 
 intending to alight have a reasonable time in which to alight and 
 detach themselves in safety from the car in which they are traveling. 
 
 (f) And that it is also the duty of such railroad companies, in 
 the event that a passenger is alighting, or is in the act of alighting, 
 to use that same high degree of care that I have defined, to prevent 
 injury to that passenger, in not starting the car while that passenger 
 is in a position of danger, and when the employes of the company 
 either know, or ought to know by the exercise of the same degree of 
 care that the laws impress upon them, that the passenger is in that 
 condition of danger or apparent danger. Any breach of the perform- 
 ance of his duty which I have thus more specifically defined would 
 be such negligence, under the issues in this case, that the jury could 
 take cognizance of.^^ 
 
 § 2041. Slowing Car Up and Then Starting Suddenly While Pas- 
 senger Is in Act of Alighting, (a) If you find from the evidence 
 that, before the injuries complained of were received, plaintiff noti- 
 fied the conductor of the train that she desired to leave the same 
 at C. street, that the conductor notified the gripman of this fact; 
 and you find that, while crossing C. street, the defendant let go the 
 cable, and put on the wheel brake, and slowed down so that after 
 arriving on the straight track, north of the north line of C. street, 
 said train was then moving at a rate of from two to three miles per 
 hour; and if you find from the evidence that plaintiff then arose, 
 and stepped on the platform, as if to descend from the car, that the 
 gripman turned once or twice to observe her ; and if you further find 
 that about this time, or before plaintiff' left her position, the gripman 
 suddenly let off the brake, and permitted the car to start with a sud- 
 
 54 — San Ant. T. Co. v. Welter, to plaintiff's recovery, is submitted 
 
 — Tex. Civ. App. — , 77 S. W. 414. by the charge for the jury's deter- 
 
 The court said in part: "It is mination. San Ant. & A. P. Ry, 
 
 urged under the assignment, as an v. Belt, 24 Tex. Civ. App. 281, 59 
 
 objection to the charge, that it 'as- S. W. 610; G. H. & S. A. Ry. Co. 
 
 sumed the fact to be that defend- v. Waldo, — Tex. Civ. App. — , 32 S. 
 
 ant's car had stopped when plain- W. 783; and authorities cited. A 
 
 tiff undertook to alight therefrom,' charge should be taken as a whole, 
 
 when the existence of such fact and when the part complained of 
 
 was an issue made both by the is taken and considered with the 
 
 pleadings and the evidence. We do fourth paragraph, it is too clear 
 
 not think the charge obnoxious to for argument that it does not as- 
 
 the objection. In our opinion, the sume such fact." 
 question of the existence of such 55 — Oilmore v. Seattle & R. Ry. 
 
 fact, as well as all others essential Co., 29 Wash. 150, 69 Pac. 743 (745).
 
 §2042.] NEGLIGENCE— STREET RAILROADS. 1323 
 
 den jerk, by reason whereof plaintiff was violently thrown to the 
 ground and received the injuries complained of; and, if you find that, 
 at the time the plaintiff arose to get off the car, she had reasonable 
 ground to believe that the car was about to stop, and that h^r posi- 
 tion did not contribute to her fail and injuries, — then the defendant 
 would be liable to plaintiff in such sum as the evidence shows you 
 she sustained, not exceeding the amount claimed in the petition, 
 unless you further find from the evidence that plaintiff could, by 
 the exercise of due care, have avoided the consequence of the negli- 
 gent act of the defendant, if you find it was so negligent, and if you 
 rfind such to be the facts. 
 
 (b) If you, gentlemen of the jury, find from the testimony in 
 'this case that the plaintiff, A., was a passenger on the defendant's 
 cars at the time alleged in the petition, that the servants of the 
 company in charge of those cars knew at what point she desired to 
 alight, she was entitled to be carried by the defendant company, with 
 proper and reasonable care, to the place where she desired to alight, 
 and have the cars stop at that point a sufficient length of time to 
 permit her to alight with reasonable care and diligence. And if you 
 further find from the testimony that, when the defendant's ears 
 reached that point, they had commenced slowing up, but did not 
 stop, but passed beyond such point, and then continued to slow up, 
 and while going very slow, as if to immediately stop, the plaintiff, 
 A., arose from her seat and stepped upon the platform or guard on 
 the side of the car, which platform or guard was used for alighting 
 from the car, and that as she stepped on that platform or guard, 
 for the purpose of alighting when the car should stop, the gripman 
 propelling the car saw her, and moved the cars suddenly forward, 
 with a jerk, before stopping them and giving A., the plaintiff, an 
 opportunity to alight, and that by such sudden movement forward 
 she was thrown to the ground and injured, and that she herself was 
 free from blame, under all the circumstances of the case, then your 
 verdict should be in favor of the plaintiff.°^ 
 
 § 2042. Movement of Car Must Be Attributable to Act of Men in 
 Charge. The jury are instructed that, if tiiey believe from the evi- 
 dence that there was a sudden movement of the car at the instant of 
 time when the plaintiff was attempting to get off from the car, such 
 fact alone does not show negligence on the part of the railway com- 
 pany; for, in order to show negligence on the part of the railway 
 company, there must be some evidence of a sudden movement of the 
 car, attributable to some act or action of the men in charge of the 
 train, and that such act of negligence on the part of the men in 
 
 56 — Omaha St. Ry. Co. v. Craig, that thfe instructions were correct 
 
 39 Neb. 601. 58 N. W. 209 (213). in every particular. As has been 
 
 "The complaint made of these stated above, it was not for the 
 
 instructions is that they fail to court to say what acts or omis- 
 
 state what would have constituted sions of — rendered her g-uilty of 
 
 contributory negligence on contributory negligence. That was 
 
 part. But we are of the opinion for the jury."
 
 1324 FORMS OF INSTRUCTIONS. [§2043. 
 
 charge of the train cannot be determined by the jury from mere 
 conjecture. ^^ 
 
 § 2043. Conductor Must See That No Passenger Is in Act of 
 Alighting. The jury are instructed that it is the duty of a conductor 
 of a street ear operated by electricity, when his car has been stopped 
 for passengers to alight, to see and know that no passenger is in the 
 act of alighting, or is otherwise in a position which would be ren- 
 dered perilous by the motion of the car, when he again puts the ear 
 in motion."'^ 
 
 § 2044. Ringing Bell to Go Ahead While Passenger Is Alighting. 
 
 (a) If you tind in this ease that while the plaintiff was attempting 
 to alight from the car the conductor rang the bell, and the car started 
 up, and the accident occurred in that manner, then the plaintiff would 
 be entitled to recover, because it would amount to actionable negli- 
 gence on the part of the conductor to ring the bell while the plaintiff 
 was in the act of alighting. There can be no question about that. 
 
 (b) If you believe the plaintiff's theory, and believe that the ac- 
 cident occurred by reason of the negligence of the car conductor, 
 by ringing the bell while he was in the act of alighting, then he is 
 entitled to recover such damages as the evidence shows you he has 
 suffered. 
 
 (c) If on the contrary you believe the plaintiff attempted to alight 
 from the street car of the defendant while holding a large package 
 in his left hand and before the car was brought to a standstill, and 
 in consequence thereof suffered the injury shown, then the plaintiff 
 cannot recover, and your verdict must be for the defendant, because, 
 obviously', it would be an act of negligence on his part to alight from 
 a car which was in motion, and if he did that thing, the proximate 
 cause of the injury would be his own negligence, and not negligence 
 on the part of the company. ^^ 
 
 § 2045. Failure of Conductor to Warn Passenger of Danger Known 
 to Conductor, but Unknown to Passenger. If you believe from the 
 evideiu-e that the phiintiti: was a passenger as claimed, and was about 
 to alight at the time and place he claims, and had not safely alighted, 
 and that the conductor of the car upon which plaintiff is claimed to 
 have been riding saw and knew that plaintiff was exposed to danger 
 in alighting from the car, which danger plaintiff was ignorant of, 
 and could not, in the exercise of ordinary care, perceive, nevertheless 
 allowed plaintiff to alight and be injured; and if you believe that in 
 so doing, if he did, the conductor was guilty of negligence (that is, 
 failed in the exercise of extraordinary diligence) and that such negli- 
 
 57 — Omaha St. Ry. Co. v. Craig, "The charge must be taken as a 
 
 3S Neb. 601, 58 N. W. 209.(215). whole, and we think the jury must 
 
 58 — Birmingham Tiy. & El. Co. have understood the charge to 
 
 V. Wlldman, 119 Ala. 547, 24 So. mean that it would be negligence 
 
 548 (549). on the part of the conductor to 
 
 59— Kirchner v. Detroit C. Ry. ring the boll and start the car 
 
 Co., 91 Mich. 400, 51 N. W. 1059 while the plaintiff was attempting 
 
 (1060). to alight."
 
 §2046.] NEGLIGENCE— STREET RAILROADS. 1325 
 
 gence, if there was such negligence, caused plaintiff's injun', and that 
 plaintiff could not by ordinary care have avoided the consequences 
 to himself of defendant's negligence, if shown, — the plaintiff would 
 be entitled to recover.'''* 
 
 § 2046. Passenger Alighting Near Parallel Track. If you believe 
 from the evidence that the phiintiff was a passenger as claimed, at 
 the time and place, and was about to alight as claimed, and had not 
 safely alighted from the car; and if you believe from the evidence 
 that it was dangerous, and that defendant knew it, or ought to have 
 known it in the exercise of extraordinary diligence, to allow a pas- 
 senger to alight on the side of the car next a parallel track and took 
 no steps to prevent it ; and if you believe that that was negligence 
 (that is the failure to exercise extraordinary diligence) and thereby 
 plaintiff was injured and that plaintiff could not by the exercise of 
 ordinary care have avoided the consequences to himself of defendant's 
 negligence, if shown, — the plaintiff would be entitled to recover.^^ 
 
 § 2047. Alighting Passenger Struck by Car Coining from Opposite 
 
 Direction. If you believe from the evidence that on or about , 
 
 at the place alleged in this suit, the plaintiff was a passenger on one 
 of the defendant's electric cars, and that as the plaintiff was in the 
 act of alighting from the car, and just before he had safely landed, 
 another car of the defendant approached from the opposite direction, 
 running at a reckless and unusual rate of speed, struck and injured 
 plaintiff; and if you believe such running of said ear was negligent 
 (that is the absence of extraordinary diligence) and that such negli- 
 gence, if you find it to be negligence, caused plaintiff's injury, and 
 that by ordinary care plaintiff" could not have avoided the conse- 
 quences to himself of defendant's negligence, if you find that to have 
 existed as explained — the plaintiff would be entitled to recover.^- 
 
 § 2048. Duty of Motormen on Approaching Cars. If you believe 
 from the evidence that at the place alleged, and at the time the plain- 
 tiff was a passenger on defendant's electric car and that as the plain- 
 tiff was in the act of alighting from the car, and before he had safely 
 landed, the employes on the car which it is claimed struck plaintiff 
 saw that the car on which plaintiff is claimed to have been riding 
 had stopped to let a passenger off, if you believe they did see and 
 know that the car had stopped for that purpose, or could in the exer- 
 cise of extraordinary diligence have so seen and known, and failed 
 to stop the car, which is claimed to have struck plaintiff, or check 
 up and get same well under control; and if you believe that in the 
 exercise of extraordinary diligence they could have stopped said car, 
 or checked up and got the same well under control, and that in the 
 exercise of such diligence they ought to have done so, and their failure 
 to do so, if there was such a failure, was slight negligence; and if 
 
 60— Atlanta Consol. St. Ry. Co. 61— Atlanta Cons. St. Ry. Co. v. 
 V. Bates, 103 Ga. 333, 30 S. E. 41 Bates, supra. 
 
 (46). 62— Atlanta Cons. St. Ry. Co. v. 
 
 Bates, supra.
 
 1326 FORMS OF INSTRUCTIONS. [§ 2049. 
 
 you believe that such negligence, if you find it to have existed, caused 
 plaintiff's injury, and that by ordinary care plaintiff could not have 
 avoided the consequences to himself of defendant's negligence, if 
 shown, — the plaintiff would be entitled to recover.^^ 
 
 § 2049. Failure to Check Reckless Rate of Speed of Approaching 
 
 Car. If you believe from the evidence that the plaintiff was a pas- 
 senger, as claimed, at the time and place, and was about to alight, 
 as claimed, and had not safely alighted from the car, and the of- 
 ficers (motorman and conductor, one or both) on the car which it is 
 claimed struck the plaintiff became aware of plaintiff's danger, if 
 he was in danger, and then continued to go forward at a reckless 
 rate of speed, under the facts and circumstances of the case; and 
 if you believe that doing so was slight neglect towards the plaintiff, 
 and that thereby plaintiff was injured, and that by the exercise of 
 ordinary care he could not have avoided the consequences to himself 
 of defendant's negligence, if shown, then the plaintiff would be 
 entitled to recover.*^* 
 
 If you believe from the evidence that the plaintiff was a pas- 
 senger as claimed at the time and place, and was about to alight as 
 claimed; and had not safely alighted, and if you believe from the 
 evidence that the car which is claimed to have run against the 
 plaintiff, was not provided with a proper brake chain, so as to enable 
 it to be checked up with sufficient quickness, and that therein the 
 defendant was guilty of slight neglect towards the plaintiff, and that 
 such negligence caused plaintiff's injury, if injured, and that by ordi- 
 nary care plaintiff could not have avoided the consequences to him- 
 self of defendant's negligence, if shown, then the plaintiff would 
 be entitled to recover. *^^ 
 
 § 2050. Passenger Raising Umbrella While Alighting. The plain- 
 tiff contends that on that occasion he did all that in the exercise of 
 ordinary care he should have done, and he claims that his observation 
 of the defendant in letting off passengers under similar circumstances 
 led him to act as he did, and not to anticipate danger in getting off 
 the car; that his attention for the moment was withdrawn by the 
 rain, and in raising or preparing to raise his umbrella, and that in 
 all of these facts, if they appear from the evidence, and all the sur- 
 rounding circumstances, he was not negligent, but exercised all the 
 care that the law required of him — exercised ordinaiy care. To 
 determine the truth of this issue, you will examine all the evidence 
 and facts of the case that will illustrate the question and find the 
 truth; the rule of law being the precise thing which every prudent 
 person who is a passenger is bound to do before stepping from an 
 electric street railroad car in a city at a street crossing, when the 
 car had stopped to let him off, on the side next a parallel track, as 
 
 63— Atlanta Cons. St. Ry. Co. v. 65— Atlanta Cons. St. Ry. Co. v. 
 Bates, supra. Bates, supra. 
 
 64— Atlanta Cons. St. Ry. Co. v. 
 Bates, supra.
 
 §2051.] NEGLIGENCE— STREET RAILROADS. 1327 
 
 near the track on which the stopped car is standing as the evidence 
 may show in the case, is that which every prudent man who is a 
 passenger would do under like circumstances. If prudent men who 
 were passengers would look and listen so must everyone else who is 
 a passenger, or take the consequences, so far as the consequences 
 might have been avoided by that means.^^ 
 
 § 2051. When Relation of Passenger and Carrier Ceases — Injury 
 Through Backward Movement After Alighting. The court instructs 
 the juiy that, after the plaintiff alighted in the street from the de- 
 fendant's car, so as to be free from injury by its forward movement, 
 the defendant ceased to owe the plaintiff any further duty, except to 
 use ordinary care to avoid injuring him; and if the jury believe 
 from the evidence that the plaintiff was injured by a backward move- 
 ment, or movement towards the car, on his part, caused by an ap- 
 proaching vehicle in the street, or from any other cause over which 
 the defendant had no control, and that by ordinaiy care on the part 
 of the defendant's employes in charge of said car the injury to the 
 plaintiff could not have been avoided after they discovered, or could 
 by ordinary care on their part have discovered, plaintiff's peril, and 
 by the exercise of ordinary care could then have avoided injuring him 
 by stopping the car, the law is for the defendant, and the jury should 
 so find.*^'^ 
 
 § 2052. Carrying Passenger Past Destination, (a) The jury are 
 further instructed that any failure of the defendant company, if 
 such there was, to stop at the exact point where the company is 
 accustomed to stop its cars, is not of itself negligence on the part of 
 the company. 
 
 (b) The jury are further instructed that, if the plaintiff believed 
 that the train was about to pass the place of her destination without 
 stopping, such fact did not justify her in attempting to get off of the 
 car while it was still in motion. 
 
 (c) The jury are further instructed that under no circumstances 
 can the plaintiff recover, unless the defendant, by its agents and 
 servants in charge of the train, did some act, or was guilty of some 
 negligence, which contributed to the injury.*^^ 
 
 § 2053. Injury Through Over-crowding of Car. (a) The court 
 instructs the jury that the acts of negligence charged against the 
 
 66 — Atlanta Cons. St. Ry. Co. v. der what circumstances the duty- 
 Bates, supra. would cease. It presented to the 
 
 67^Louisville Ry. Co. v. Megle- jury the theory of the case on 
 
 mery, 25 Ky. 1587, 78 S. W. 217 (218). which alone all the testimony in- 
 
 "The above instruction, which troduced by the defendant was 
 was refused by the court, states given, and, on the whole case, we 
 the law correctly, and, with this conclude that the refusal to ^ive 
 instruction before thorn, the mind the instruction was prejudicial to 
 of the jury would have been the substantial rights of the de- 
 brought more directly to the issue fendant." 
 
 they were to try. It defines the 68— Omaha St. Ry. Co. v. Craig, 
 
 duty owing by the defendant to 39 Neb. 601, 58 N. W. 209 (215). 
 plaintiff, and shows when and un-
 
 1328 
 
 FORMS OF INSTRUCTIONS. 
 
 [§ 2054. 
 
 defendant in plaintiff's declaration are negligence in permitting its 
 cars on -which the plaintiff rode to be over-crowded, and negligence 
 in running its ear on -which the plaintiff rode at an excessive rate of 
 speed. 
 
 (b) The court instructs the jury that if you believe, from the 
 preponderance of the evidence in this case, that the plaintiff, F., on 
 
 the day of , 19 — , became a passenger on one of defendant's 
 
 cars, and that while he was a passenger of such car, he, while exer- 
 cising due care for his own safety, was injured by the negligence of 
 the defendant, as charged in plaintiff's declaration or some count 
 thereof, then, in law, the defendant is liable for such injury, and the 
 jury should so find by their verdict.*'^ 
 
 § 2054. Assaults on Passengers by Company's Servants, (a) The 
 court instructs the jury that if you believe from the evidence that on 
 
 or about the day of , the plaintiff was a passenger on one 
 
 of defendant's cars running on F. avenue, in this city, and that while 
 plaintiff was on said ear as a passenger, the conductor in charge of 
 said car, and while in the discharge of his duties as such conductor 
 without cause, excuse, or provocation therefor, did strike, assault, 
 beat or mistreat plaintiff, thereby knocking plaintiff down, and eject- 
 ing him from said car, by reason of which plaintiff was hurled to the 
 pavement on said street, and by reason of which plaintiff sustained 
 injuries to his person, then your verdict should be for the plaintiff.''*' 
 
 69— Alton Lgt. & T. Co. v. Oiler, 
 217 111. 15 (18), 75 N. E. 419. 
 
 "Counsel says that No. 4 (b), 
 standing by itself, was not ob- 
 jectionable, but that considered in 
 connection with No. 3a (a) it was 
 seriously hurtful to the appellant 
 company. Counsel insists tliat in- 
 struction 3a applies to both counts 
 of the declaration, and does not 
 state fully the essential elements 
 of the negligence charged in either 
 count; that the jury were likely to 
 understand from instruction 4 (b) 
 considered in connection with in- 
 struction 3a (a), that proof that 
 the car was overcrowded, merely, 
 would sustain the issue made un- 
 der the first count. Both counts of 
 the declaration charged that the 
 company was guilty of negligence 
 in cau.^ing and permitting the car 
 to be overcrowded. The first count 
 charged that the motion of the car 
 forced the other passengers against 
 the appellee and thus pushed him 
 from the car. The second count 
 charged like negligence in over- 
 crowding the car, and that the 
 motion of the car, the speed being 
 rapid and dangerous, threw the 
 appfllce from the car. The over- 
 crowding of the car and the mo- 
 tion or movement of the car were 
 
 elements of negligence in both 
 counts, and the manner in which 
 the motion operated to throw the 
 appellee from his place on the 
 steps was stated differently in the 
 two counts. The first count was 
 based upon the theory that the ap- 
 pellant company induced and per- 
 mitted the car, the platforms and 
 the steps thereof to be so crowded 
 with passengers that the move- 
 ment or motion of the car at an 
 ordinary rate of speed was danger- 
 ous to passengers, and that there- 
 fore the appellant company failed 
 in its duty towards its passengers 
 by attempting to run the car so 
 overcrowded, in the same manner 
 and the same speed and motion as 
 would have been employed had it 
 contained no more passengers than 
 it was intended to accommodate 
 and convey in safety. The second 
 count chai-ged the same negligence 
 as to the overcrowding of the car, 
 and alleged in addition, that the 
 company negligently propelled its 
 car at even a greater than the or- 
 dinary rate of speed. Instruction 
 No. 3a (a) therefore, though not 
 carefully drawn, did not misdirect 
 the jury as to the issues." 
 
 70— Sonnen v. St. L. T. Co., 102 
 Mo. App. 271, 76 S. W. 691 (692).
 
 §2054.] NEGLIGENCE— STREET RAILROADS. 1329 
 
 (b) I charge you, gentlemen of the jury, that abusive language 
 or opprobrious epithets alone never justify the commission of an 
 assault by a conductor in charge of a train upon a passenger. '^^ 
 
 (c) If the juiy find from the evidence that, while the conductor 
 in charge of defendant's car, was in the orderly discharge of his 
 duties, plaintiff pi'ovoked or brought on a difficulty with said con- 
 ductor, and by striking or threatening to strike said conductor, so 
 aroused his passions that he assaulted and injured said plaintiff, 
 then and in that event the court declares to you that said conductor 
 alone is responsible to plaintiif for whatever injuries he may have 
 inflicted upon said plaintitf, and the plaintiff cannot recover in this 
 case. 
 
 (d) The court instructs the jury that while plaintiff was on de- 
 fendant 's car, riding as a passenger thereon, it was his duty to deport 
 himself orderly and obey all reasonable requests that might be made 
 of him by the conductor in charge of said car for the benefit or con- 
 venience of other passengers. And if you believe from the evidence 
 that the plaintiff took a position on the rear platform of said car, 
 in a place where his presence would and did interfere with other 
 passengers in getting on or off of said car, then it was his duty, 
 when requested by the conductor so to do, to remove to some other 
 part of said car, where he would not obstruct the passage or inter- 
 fere with passengers getting on or off the car, and if plaintiff refused 
 when so requested to so change his position upon said car, then the 
 conductor in charge of said car had a right to remove the plaintiff 
 out of the passageway, and if in so doing he used no more force than 
 was reasonably necessaiy to accomplish such purpose, and plaintiff 
 because of such effort on the part of the conductor to so remove him 
 from such position on the platform, either struck or attempted to 
 strike the conductor, then the conductor had a legal right to defend 
 himself against such assault, in whatever manner, and with whatever 
 means were apparently necessary to prevent plaintiff from doing him, 
 the conductor, bodily harm. And if the jury find that the assault 
 complained of by plaintiff occui'red under the circumstances and in 
 the manner above set forth, then your verdict must be for the de- 
 fendant.'^ 
 
 (e) If the jury find from the evidence that the plaintiff intended 
 to end his journey as a passenger at Sixth street and W. avenue, 
 and went to the rear platfoiTn of the car for the purpose of alighting 
 and was given reasonable opportunity to alight at that point, but 
 because a controversy arose between the plaintiff and the conductor 
 about the past occurrence of the conductor refusing a transfer to 
 plaintiff, and that the plaintiff remained upon said car for the pur- 
 pose of continuing the controversy, and that when the car reached 
 S. and L. streets the jDlaintiff was in the act of alighting, and the con- 
 
 71— Birmingham Ry. L. & P. Co. 72— Sonnen v. St. L. T. Co.. 102 
 V. Mullen, 138 Ala. 614, 35 So. 701 Mo. App. 271, 76 S. W. 691 (692). 
 (702). 
 
 84
 
 1330 FORMS OF INSTRUCTIONS. [§ 2055. 
 
 ductDr put his hand upon the plaintiff, pushed him off, and that there- 
 upon the plaintiff again got upon the car, struck and assaulted the 
 conductor, then the conductor had lawful right to use such force 
 as was reasonably necessaiy in resisting the plaintiff to prevent 
 injury to himself; and if, while the conductor and plaintiff were 
 engaged in their struggle and scuffle, the motorman came to the rear 
 platform, and the plaintiff struck him or attempted to strike him, 
 then the motorman had the lawful right to use such force as was 
 reasonably necessary to prevent injury to himself in resisting the 
 plaintiff; and if the jury find from the evidence that the alleged as- 
 sault upon plaintiff occurred substantially under these circumstances, 
 and that neither said conductor nor said motorman used any more 
 force than was reasonably necessary to protect themselves against 
 the plaintiff, then the plaintiff is not entitled to recover for the al- 
 leged assaults made upon him.'^^ 
 
 § 2055. Wrongful Ejection of Passenger from Car — Presumption 
 That Natural and Probable Consequences of Wrongful Act Are In- 
 tended. The jury are instructed that the gist of this action is the 
 alleged wrongful ejection of the plaintiff from the defendant's car. 
 He cannot recover upon proof of mere negligence, however gross 
 such negligence. The cause of action alleged by the plaintiff is not 
 for negligence, and does not require proof of plaintiff's freedom from 
 negligence. The plaintiff's only right of recovery under his complaint 
 is for willful injury, if proven. A willful injuiy is that which flows 
 from an injurious act, purposely committed, with the intent to com- 
 mit injury. In determining whether the injury, if any, was committed 
 willfully, you may consider, with other circumstances of the case, 
 the manner of the conductor, the force, if any, used by him, and the 
 effects of his acts, together with the presumption that every person 
 intends the natural and probable consequences of his wrongful acts; 
 and an unlawful intent may be inferred from the conduct which 
 shows a reckless disregard of consequences, and a willingness to in- 
 flict injury by purposely and voluntarily doing the act, with knowledge 
 that some one is in a situation to be unavoidably injured thereby.'^* 
 
 73— Murphy v. St. L. T. Co., 96 ed, however, that the use of the 
 
 Mo. App. 272, 70 S. W. 159. article 'the' preceding- the word 
 
 74 — Citizens' St. R. Co. v. ■Willoe- 'conduct' in this instruction, con- 
 by, 134 Ind. 563, 33 N. E. 627 (628). veyed to the mind of the jury the 
 
 "This instruction, we 'think, idea that the court was character- 
 states the law correctly. It puts iziiig the conduct of the conductor 
 the case upon the theory outlined who is alleged to have inflicted the 
 in the complaint as we construe it, injuries for which suit is brought 
 and nnnouuced correct rules for as reckless, and in disregard of 
 arriving at a just conclusion on consequences, and as exhibiting a 
 this theory. The rule that every willingness to inflict an injury by 
 one is presumed to intend the na- doing an act purposely and vol- 
 tural and probable consequences untarily, with a knowledge that 
 of his own wrongful acts is ele- someone was in a situation to be 
 rnontary. The definition of a will- unavoidably injured thereby. We 
 ful injury Is correct, under all the cannot agree with counsel in this 
 authorities upon that subject. Pal- construction of the language used 
 mor v. C. St. T.. & P. R. Co., 112 in this instruction. It is plain, we 
 Ind. 250, 14 N. E. 70. It is contend- think, when the whole instructicia
 
 § 2056.] NEGLIGENCE— STREET RAILROADS. 1331 
 
 § 2056. Use of More Force Than Necessary in Ejectment. The 
 
 jury are instructed that, even if the jury believe, from the evidence, 
 that the plaintiff did not pay his fare or someone pay it for him 
 when riding on the defendant's car, and the conductor of the said 
 defendant's car then in charge of the car did not undertake to re- 
 move him in a peaceable manner, using no more force than was neces- 
 sary, but pushed or threw him off the car while the car was in motion, 
 and without any immediate warning, and he was injured thereby, then 
 the defendant is liable for such injurj- and damage. '^^ 
 
 § 2057. Posted Warnings in Cars. The court instructs the jury 
 that the fact that no notices were posted in the cars warning pas- 
 sengers to keep off the inner footboard was not of itself such neg- 
 ligence as authorizes the plaintiff to recover in this action."*' 
 
 § 2058. Separation of White and Colored Passengers — Series, 
 (a) If you believe from the evidence that the conductor used no 
 more force than was reasonably necessary to enforce in a proper man- 
 ner a rule requiring colored passengers to sit in the front part of the 
 car, then I charge you that your verdict must be for the defendant. 
 
 (b) If you believe from the evidence that, at the time plaintiff 
 claims she was ejected from the car, the defendant had in force on 
 its railroad a rule requiring colored passengers to sit in the front 
 part of the car, and white passengers to sit in the rear part of the 
 ear, and if j'ou further believe from the evidence that the conductor 
 used no more force than was reasonably necessary to enforce such 
 rule in a proper manner, you must find for the defendant. 
 
 (c) If you believe from the evidence that the conductor requested 
 the plaintiff to take a seat in the forward end of the car; that she 
 refused to comjDly with the request ; that she could have found in the 
 forward end of the car a vacant seat; that at the time there was a 
 rule in force requiring colored passengers to sit in the forward end 
 of the car; that the conductor used no more force than was necessary 
 to reasonably enforce such rule in a reasonable and proper manner, — 
 you must find for the defendant. 
 
 (d) The court charges the juiy that the defendant was not re- 
 is taken together that the court show misconduct on his part. Other 
 was announcing to the jury a gen- instructions told the jury that the 
 era! proposition of law, leaving conductor would be justified in 
 them to determine from the evi- putting appellee off the car for us- 
 dence in this case whether such ing vulgar and indecent language 
 principle was applicable to the con- in a voice loud enough to annoy 
 duct of the conductor who is al- or disturb other passengers. While 
 leged to have inflicted the injury this would be true, the law would 
 of which the appellee is making not justify unreasonable or exces- 
 complaint." sive force, or permit his removal 
 
 75 — Chicago C. Ry. Co. v. Pelle- from the car at a place or under 
 tier, 134 111. 120 (123), 24 N. E. 770. circumstances dangerous to his 
 
 "The instruction was not directed life or liimb. The instruction com- 
 to the right to eject appellee, but plained of went only to that branch 
 to the manner of doing it, and it of the case, and correctly stated 
 could not have been understood as the law." 
 
 excluding from the jury a consid- 76 — Allen v. St. L. T. Co., 183 Mo. 
 eration of the testimony tending to 411, 81 S. W. 1143 (1148).
 
 1332 FORMS OF INSTRUCTIONS. [§ 2058. 
 
 quired to keep and maintain separate compartments or ears for its 
 white and colored passengers. 
 
 (e) If you believe from the evidence that the motorman did not 
 aid or assist in the ejection of the plaintiff, you must find for the 
 defendant. 
 
 (f) I charge you, gentlemen of the jury, that under the law the 
 defendant "was not required to provide a separate car for the colored 
 race on its E. railroad; nor was the defendant, under the law, re- 
 quired to divide its cars on such railroad by partitions, so as to se- 
 cure for the races separate accommodations. 
 
 (g) If you believe from the evidence that on and before the 
 
 day of , there was in force on the defendant's E. railroad a rule 
 
 requiring colored passengers to sit in the front part of the car, and 
 for white passengers to sit in the rear part of the car; that the 
 conductor requested the plaintiff to take a seat in the front end of 
 the car, and that the jDlaintiff refused to take a seat in the front end 
 of the car when so requested, and there was room for her to take a 
 seat in the front part of the car; that no more force was used than 
 was necessary to have her comply with such rule, — then I charge 
 you that you must find for the defendant. 
 
 (h) If you believe from the evidence that on and before the 
 
 day of , there was a rule in force on the defendant's railroad 
 
 requiring colored passengers to sit in the front part of the car, and 
 for white passengers to sit in the rear part of the ear, I charge you 
 that such rule was reasonable. 
 
 (i) I charge you, gentlemen of the jury, that if, under the evi- 
 dence in this case, if you believe it, you should find that there was 
 in force, at the time plaintiff claims to have been injured, a rule on 
 the defendant's line of street railroad requiring negro passengers to 
 ride in the front end of the ear, and white passengers to ride in the 
 rear end of the car, such rule is reasonable, and you are not author- 
 ized from the evidence to find that it was the duty of the defendant 
 to put in its car a partition to separate negro and white passengers, 
 instead of such reasonable rule.'^^ 
 
 77 — Bowie v. Birmingham Ry. & car of the defendant at Pliiladel- 
 
 Elec. Co., 125 Ala. 397, 27 So. 1016, phla to go to Oxford, and toolc a 
 
 82 Am. St. 247, 50 L. R. A. 632. seat at or near the middle of it. 
 
 "The que.stion here presented was A rule of the road required the 
 
 ably considered in an opinion de- conductor to make colored persons 
 
 livered by Justice Agnew, of the sit at one end of the car. He got 
 
 supreme court of Penn. in the case a seat for her at the place fixed by 
 
 of R. Co. v. Miles, 55 Pa. St. 209, the rule, and asked her to take it. 
 
 from which we quote at length, as She declined, positively and per- 
 
 the reasons he gave for sustaining sistently to do it. The conductor 
 
 the reasonableness of the regula- told her of the rule, requesting her 
 
 lion are .so forcibly .stated, and the to take the other seat, warned her 
 
 status of the two races with refer- that he must require her to leave 
 
 cnce to each other as stated by the cars if she refused, and at last 
 
 hhn to exist in Pennsylvania in put her out. The simple question 
 
 1S67 is the status of the two in is whether a public carrier may, in 
 
 Alabama today. The facts of that the exercise of his private right of 
 
 cane were these: M., a colored property, and in the due perform- 
 
 woman (the plaintiff), got into the ance of his public duty, separate
 
 2059. 
 
 NEGLIGENCE— STREET RAILROADS. 
 
 1333 
 
 § 2059. Regulations as to Transfers, (a) The court instructs the 
 jury that the regukition of the defendant company that persons trans- 
 ferred from one car to another can ride upon the second car without 
 paying fare only upon the production of a transfer check from the 
 conductor of the first car is a reasonable, valid, and binding regula- 
 
 passengers by any other well-de- 
 lined characteristic than that of 
 sex. The ladies' car is known upon 
 every well-regulated railroad, im- 
 plies no loiss of equal right on the 
 part of the excluded sex, and its 
 propriety is doubted by none. This 
 question must be decided upon 
 reasonable grounds. If there be no 
 clear and reasonable difference to 
 base it upon, separation cannot be 
 justified by mere prejudice. Nor 
 is merit a test. The negro may be 
 proud of his service in the field as 
 a defender of his country. But it 
 is not thought indefensible to sep- 
 arate even white soldiers from 
 other passengers. There was a 
 clear and well-founded difference 
 between the civil and military 
 character, and the separation of 
 soldiers from citizens implied no 
 want of equality, but a sound regu- 
 lation of the right of transit. The 
 right of the carrier to separate his 
 passengers is founded upon two 
 grounds — his right of private prop- 
 erty in the means of conveyance, 
 and the public interest. The priv- 
 ate means he uses belong wholly 
 to himself, and imply the right of 
 control for the protection of his 
 own interest, as well as the per- 
 formance of his public duty. He 
 may use his property, therefore, in 
 a reasonable inanner. It is not an 
 unreasonable regulation to seat 
 passengers so as to preserve or- 
 der and decorum, and to prevent 
 contacts and collisions arising from 
 natural or well known customary 
 repugnancies, which are likely to 
 breed disturbances by a promiscu- 
 ous sitting. This is a proper use 
 of the right of private property, 
 because it tends to protect the in- 
 terest of the carrier as well as the 
 interests of those he carries. If the 
 ground of regulation be reasonable, 
 courts of justice cannot interfere 
 with his right of property. The 
 right of the passenger is only that 
 of being carried safely, and with a 
 due regard to his personal com- 
 fort and convenience, which are 
 promoted by a sound and well- 
 regulated separation of passengers. 
 An analogy and illustration are 
 found in the case of au iim-keeper, 
 who, if he have room, is bound to 
 
 entertain proper guests; and so a 
 carrier is bound to receive pas- 
 sengers. But a guest in an inn 
 cannot select his room or his bed 
 at pleasure; nor can a voyager 
 take possession of a cabin or a 
 berth at will, or refuse to obey the 
 reasonable orders of the captain 
 of a vessel. But, on the other hand, 
 who would maintain that it is 
 reasonable regulation, either of an 
 inn or a vessel, to compel the pas- 
 sengers, black and white, to room 
 and bed together? If a right of 
 private property confers no right 
 of control, who shall decide a con- 
 test between passengers for seats 
 or berths? Courts of justice may 
 interpose to compel those who per- 
 form a business concerning the 
 public, by the use of private 
 means, to fulfill their duty to the 
 public, but not a whit beyond. The 
 public also has an interest in the 
 proper regulation of conveyances 
 for the preservation of the public 
 peace. A railroad company has 
 the right, and is bound, to make 
 reasonable regulations to preserve 
 order in its cars. It is thfe duty 
 of the conductor to repress tu- 
 mults as far as he reasonably can, 
 and he may, on extraordinary oc- 
 casions, stop his train and eject 
 the unruly and tumultuous. He 
 cannot interfere in the quarrel of 
 others at will, merely. In order to 
 preserve and enforce his authority 
 as the servant of the company, he 
 must have a power to establish 
 proper regulations for the carriage 
 of passengers. It is much easier to 
 prevent difficulties among passen- 
 gers by regulations for their sepa- 
 ration, than it is to quell them. 
 The danger of breach of the peace 
 engendeied by the feeling of 
 aversion between individuals of 
 the different races cannot be de- 
 nied. It is the fact with which the 
 company must deal. These views 
 are sustained by high authority. 
 Judge Story, in his Law of Bail- 
 ments, stating the duty of pas- 
 sengers 'to submit to such reason- 
 able regulations as the proprietors 
 may adopt for the convenience and 
 comfort of the other passengers, 
 as well as for their own proper in- 
 terests,' says, 'The importance of
 
 1334 
 
 FORMS OP INSTRUCTIONS. 
 
 [§ 2059. 
 
 ticn; and if the plaintiff knew of it, and transferred from one car to 
 another without asking the conductor for a transfer cheek, and with- 
 out his telling her none was necessary, she cannot recover. 
 
 (b) The court instructs the jury that if, by the custom or regula- 
 tion of the defendant company, passengers paying on one car could 
 
 the doctrine is felt more strikingly 
 in cases of steam boats and 
 railroad cars.' Story, Bailm. sec. 
 591a. See also, Id. sec. 476a; Angell 
 Carr. sec. 528; 1 Am. Ry. Cas. 393, 
 394. The right to separate being 
 clear in proper cases, and it being 
 the subject of sound regulation, the 
 question remaining to be consider- 
 ed is whether tliere is such a 
 difference between the white and 
 black races within this state, re- 
 sulting from nature, law, and cus- 
 tom, as makes it a reasonable 
 ground of separation. The ques- 
 tion is one of difference, not of 
 superiority or inferiority. Why the 
 Creator made one black and the 
 other white, we know not; but the 
 fact is apparent, and the races dis- 
 tinct, each producing its own kind, 
 and following the peculiar law of its 
 constitution. Conceding equality, 
 with natures as perfect and rights 
 as sacred, yet God has made them 
 dissimiliar, with those natural in- 
 stincts and feelings which He al- 
 ways imparts to His creatures 
 when He intends that he shall not 
 overs'tep the natural boundaries He 
 has assigned to them. The natural 
 law which forbids their inter-mar- 
 riage, and that social amalgamation 
 which leads to a corruption of 
 races, is as clearly divine as that 
 which imparted to them different 
 natures. The tendency of inthnate 
 social intermixture is to amalga- 
 mation, contrary to the law of 
 races. The separation of the white 
 and black races upon the surface 
 of the globe is a fact equally ap- 
 parent. Why this is so,* is not 
 necessary to speculate, but the fact 
 of a distribution of men by race 
 and color is as visible in the provi- 
 dential arrangement of the earth 
 as that of heat and cold. The nat- 
 ural separation of the races is 
 therefore an undeniable fact, and 
 all social organizations which lead 
 to their amalgamation are repug- 
 nrint to the law of nature. From 
 social amalgamation it is but a step 
 to illicit intercourse, and but an- 
 other to intermarriage. But to as- 
 sert separnteness is not to declare 
 Jii''nriority in either. It is not to 
 df'olare one a slave and the other 
 a freeman. That would be to draw 
 
 the illogical sequence of inferiority 
 from difference only. It is simply 
 to say that, following the order of 
 Divine Providence, human author- 
 ity ought not to compel these 
 widely separated races to intermix. 
 The right of such to be free from 
 social contact is as clear to be free 
 from intermarriage. The former 
 may be less repulsive as a condi- 
 tion, but not less entitled to pro- 
 tection as a right. When, there- 
 fore, we declare a right to main- 
 tain separate relations as far as is 
 reasonably practicable, but in a 
 spirit of kindness and charity, and 
 with due regard to equality of 
 rights, it is not prejudice, nor caste, 
 nor injustice of any kind, but 
 simply to suffer men to follow the 
 law of races established by the 
 Creator himself, and not to com- 
 pel them to intermix contrary to 
 their instincts. Never has there 
 been an intermixture of the two 
 races, socially, religiously, civilly, 
 or politically. By uninterrupted 
 usage the blacks live apart, visit 
 and entertain among themselves, 
 occupy separate places of public 
 worship and amusement, and fill no 
 civil or political stations; not even 
 sitting to decide their own causes. 
 In fact, there is not an institution 
 of the state in which they have 
 mingled indiscriminately with the 
 whites. Even the common-school 
 law provides for separate schools 
 when their numbers are adequate. 
 In the military service, also, they 
 were not intermixed with the 
 white soldiers, but were separated 
 into companies and regiments of 
 color; and this is not by way of 
 disparagement, but from motives 
 of wisdom and prudence, to avoid 
 the antagonisms of variant and 
 immiscible races. Law and cus- 
 tom having sanctioned a separation 
 of races, it is not the province of 
 the judiciary to legislate it away. 
 We cannot say there was no dif- 
 ference in fact, when the law and 
 the voice of the people had said 
 there was. The laws of the state 
 are found in its constitution, stat- 
 utes, institutions, and gcmeral cus- 
 toms. It is to these sources judges 
 must resort to discover them. If 
 they abandon these guides, they
 
 § 2059.] 
 
 NEGLIGENCE— STREET RAILROADS. 
 
 133e 
 
 ride on another one by presenting upon the second car a transfer 
 check procured from the first, and the plaintiff failed to procure such 
 transfer check and present it on the ear to which she transferred 
 then she was not entitled to ride on the car to which she transferred 
 without the payment of fare. The conductor was not authorized to 
 
 pronounce their own opinions, not 
 the laws of those whose officers 
 they are. Following these guides, 
 we are compelled to declare that 
 at the time of the alleged injury 
 there was that natural, legal, and 
 customary difference between the 
 white and black races in this state 
 which made their separation as 
 passengers in a public conveyance 
 the subject of a sound regulation 
 to secure order, promote comfort, 
 preserve the peace, and maintain 
 the rights both of carriers and 
 passengers.' 
 
 "In Hall V. DeCuir, 95 U. S. 485, 
 24 L. Ed. 547, which was a suit by a 
 negro woman against the owner of 
 a steamboat for refusing her ac- 
 commodations, on account of her 
 color. In the cabin specially set 
 apart for white persons, the court 
 after citing approvingly the case 
 above quoted from, said: 'Where 
 the passenger embarks without 
 making any special contract, and 
 without knowledge as to what ac- 
 commodations will be afforded, 
 the law implies a contract which 
 obliges the carrier to furnish 
 suitable accommodations '.accord- 
 ing to the room at his disposal; 
 but the passenger in such a case 
 is not entitled to any particular 
 apartments of special accommoda- 
 tions. Substantial equality of 
 right is the law of the state and 
 of the United States; but equality 
 does not mean identity; as, in the 
 nature of things, identity is the ac- 
 commodation afforded to passen- 
 gers, whether colored or white, is 
 impossible, unless our commercial 
 marine shall undergo an entire 
 change. Adult male passengers are 
 never allowed a passage In the 
 ladies' cabin; nor can all be ac- 
 commodated, if the company is 
 large, in the state rooms. Pas- 
 sengers are entitled to proper diet 
 and lodging, but the laws of the 
 United States do not require the 
 master of a steamer to put persons 
 in the same apartment who would 
 be repulsive or disagreeable to each 
 other. Steamers carrying pas- 
 sengers as a material part of their 
 employment are common carriers, 
 and as such enjoy the rights and 
 
 are subject to the duties and obli- 
 gations of such carriers; but there 
 was and is not any law of congress 
 which forbids such a carrier from 
 providing separate apartments for 
 his passengers. What the passenger 
 has a right to require is such ac- 
 commodation as he has contracted 
 for, or, in the absence of any 
 special contract, such suitable ac- 
 commodations as the room and 
 means at the disposal of the car- 
 rier enable Jiim to supply; and. in 
 locating his passengers in apart- 
 ments and at their meals, it is not 
 only the right of the master, but 
 his duty, to exercise such reason- 
 able discretion and control as will 
 promote, as far as practicable, the 
 comfort and convenience of his 
 whole company.' 
 
 "Booth, St. Ry. Law, Sec. 325, 
 says: 'The doctrine that, in the 
 absence of statutory inhibition, a 
 common carrier may lawfully make 
 color a basis of classification, but 
 require its white and colored pas- 
 sengers to. occupy separate cars 
 or different parts of the same car 
 when like accommodations are pro- 
 vided, has received the support of 
 many of the courts, both state and 
 federal, and is the rule which has 
 been followed in the greater num- 
 ber of decisions heretofore ren- 
 dered.' See. also, cases cited bv 
 Booth. St. Ry. Law, note 3, p. 443, 
 and note 1, p. 444; Plessy v. Fergu- 
 son, 163 U. S. 537, 16 Sup. Ct. 1138. 
 41 L. Ed. 256. 
 
 "The other question presented is 
 whether the reasonableness of the 
 rule is a mixed question of law 
 ind fact, or purely a question of 
 law for the court. The principle 
 upon which the reasonableness of 
 the rule is sustained in this case 
 is that the carrier's right of prop- 
 erty in the means of the convey- 
 ance and the public interest is best 
 subserved by a separation of negro 
 and white passengers; that their 
 separation tends to secure order, 
 promote comfort, preserv'e the 
 peace, and maintain the rights of 
 both carrier and passengers. 
 When the rule is established by 
 the evidence, and its violation 
 shown by a passenger, undisputed-
 
 1336 FORMS OF INSTRUCTIONS. [§ 2060- 
 
 allow her to ride on his car without the payment of fare or the pre- 
 sentation of such transfer cheekJ® 
 
 § 2060. Giving Wrong Transfer, (a) The court instructs the jury 
 that if you believe from the evidence that the agents of the defend- 
 ant made a mistake in giving to the plaintiff a transfer ticket and in- 
 stead of giving him a P. Avenue transfer gave him an S. Street trans- 
 fer, the plaintiff is entitled to recover, and in assessing the damages 
 the plaintiff is entitled to have reasonable damages compensatory for 
 the treatment which he received. The defendant company was bound 
 to see to it that the plaintiff was provided with a proper transfer, and 
 if a mistake was made the responsibility therefor rested upon the 
 company and not upon the plaintiff. 
 
 (b) And the court further instructs the jury that if, upon the 
 ■other hand, they believe that the conduct of the agents of the com- 
 pany was wanton and malicious, and that they purposely gave him 
 the wrong transfer, and that they maliciously and wantonly ejected 
 him from the ear because of personal dislike or animosity, then the 
 plaintiff is entitled to recover, and in assessing damages, in that view 
 of the case, the plaintiff is entitled to recover not only compensatory 
 but vindictive damages.'^^ 
 
 § 2061. Same Subject — Entering Car Without Transfer — Negli- 
 gence of First Conductor. The jury are instructed that if you believe 
 from the evidence that it was the rule or custom of the company to 
 require a transfer ticket at the point at which plaintiff made the 
 change, but if you should further find that her entering the car with- 
 out procuring a transfer ticket was the result of the negligent conduct 
 of the conductor of the first car, and that the plaintiff, as a reasonably 
 prudent person, had a right, under the circumstances, to assume from 
 the conduct and statements of the first conductor that she would be 
 carried on W. ' M. without such transfer ticket or further payment 
 of fare, then she was entitled to be carried by the second car without 
 further payment of fare.^° 
 
 § 2062. Contributory Negligence of Passengers — In G-eneral. (a) 
 The court instructs the jury that the plaintiff' was bound to use rea- 
 sonable care on her part to avoid injury, to which defendant's negli- 
 gence, if any, may have exposed her. Reasonable care may be defined 
 
 ly, it is a question of law for tlie writing-; leaving for consideration 
 
 court. It is of no consequence that by the jury, as it did, the single 
 
 the defendant company operated question whether the conductor 
 
 other lines, and no such regulation used more force than was neces- 
 
 is enforced by it upon them. The sary in enforcing the rule, under 
 
 fact that it does not exercise fhe the circumstances." 
 
 right to establish and enforce such 78— Little Rock T. & E. Ry. Co. 
 
 a regulation upon its other lines v. Trainer, 68 Ark. 106, 56 S. W. 
 
 affords no reason for saying that 789 (790). 
 
 the regulation established and en- 79— Carpenter v. Washington & G. 
 
 forced in this case is unreason- R. Co., 121 U. S. 474 (476), 7 S. Ct. 
 
 able, or that the company has no 1002. 
 
 right to establish such a rule. 80— Little Rock T. & Elec. Ry. 
 
 "On this phase of the case the Co. v. Trainer, 68 Ark. 106, 56 S. 
 
 court could have instructed the W. 789 (790). 
 Jury afJirmatively, if requested in
 
 §2062.] NEGLIGENCE— STREET RAILROADS. 1337 
 
 to be that degree of care which a prudent person would have exer- 
 cised under the circumstances in which the plaintiff found herself at 
 that time. By this test, was the plaintiff free from negligence? Might 
 she, situated as she was, by the exercise of ordinary prudence, have 
 avoided injury to herself, notwithstanding the negligent conduct of 
 the defendant? If so, she cannot recover, if she failed to exercise 
 such care. In considering this question, all the evidence bearing 
 upon the points indicated in the foregoing instruction as to defend- 
 ant's negligence is proper to be considered also. If, in the light of 
 all of these circumstances in evidence, a reasonably prudent person, 
 exercising her faculties of sight and hearing, would have seen or 
 heard and avoided the danger, or if the danger was apparent and 
 easily avoidable to a person exercising reasonable care as before de- 
 fined, the plaintiff cannot recover, if she negligently failed to avoid 
 it, and must suffer the consequences of her own carelessness.^^ 
 
 (b) The court instructs the jury that if the plaintiff on the occa- 
 sion complained of, acted in a manner which an ordinarily prudent 
 person would not have acted and this conduct was the cause of or 
 contributed materially to her injury, she cannot recover.^- 
 
 (c) The court instructs the jury that if you believe that F. was 
 injured by reason of the U. T. C. 's carelessness, or the carelessness 
 of its employes, and that his injuries were not contributed to by care- 
 lessness or negligence on his own part, he would be entitled to a ver- 
 dict; otherwise he would not.^^ 
 
 (d) The court further instructs you that a person who enters a 
 street car to be transported to a certain place, and pays his fare, is 
 a passenger, and that there is a corresponding obligation on the part 
 
 81 — Prothero v. Citizens' St. Ry. and to avoid danger, as an ordi- 
 
 Co., 134 Ind. 431, 33 N. E. 765 (767). narily prudent person would under 
 
 "Persons traveling, entering cars the circumstances; leaving it for 
 or vehicles or structures of the the jury to take into consideration 
 character of the one in this case, all facts and circumstances de- 
 are required to use their senses of veloped by the evidence in the 
 sight and hearing to avoid the ap- case, and say whether or not the 
 parent danger. In all cases, a per- appellant was guilty of negligence 
 son is required to exercise ordinary which contributed to the injury, 
 prudence to avoid danger. Such The instruction does not go to the 
 prudence may require more or less extent of holding that appellant 
 exercise of the senses, owing to the was required to exercise her facul- 
 situations and surroundings. In ties of sight and hearing and men- 
 some instances, a person of ordi- tal power to their full extent and 
 nary prudence would give but little capacity, or to any particular de- 
 heed to the things surrounding him; gree, but that she was required to 
 in others, where danger was quite exercise them to the extent which 
 apparent, he would exercise a a reasonably prudent person would 
 much higher degree of diligence to have done under all the circum- 
 avoid danger. The extent to which stances. The instructions correct- 
 one's faculties must be exercised ly stated the law. Stewart v. 
 to constitute ordinary care de- Penn. Co., 130 Ind. 242, 29 N. E. 
 pends upon the particular sur- 916." 
 
 roundings. The instruction in this 82— Selma St. & S. Ry. Co. v. 
 
 case lays down the rule that the Owen, 132 Ala. 420, 31 So. 598 (600). 
 
 appellant was required to exercise 83— Foster v. Un. T. Co., 199 Pa. 
 
 such care and diligence in the ob- 498, 49 Atl. 270. 
 servation of the things around her,
 
 1338 FORMS OF INSTRUCTIONS. [§2063. 
 
 of the passenger to act with prudence, and to use the means provided 
 for his safe transportation with the same reasonable circumspection 
 and care that is required on the part of the carrier, for the law does 
 not prescribe a different rule or measure of care with respect to 
 parties, and, if his negligent act solely contributes to bringing about 
 the injury of which he complains, he cannot recover.** 
 
 (e) The court instructs the jury that to escape the responsibility 
 of contributory negligence, a plaintiff, in an action for damages for 
 an alleged negligence of another, is not required to exercise more 
 care than is usual under similar circumstances among careful persons 
 of the class to which such plaintiff belongs.*^ 
 
 § 2063. Same Subject — States Holding Burden of Proof Is on 
 Plaintiff to Prove Freedom from Contributory Negligence. The court 
 
 instructs the jury that before the plaintiff is entitled to recover, he 
 must establish three things by a fair preponderance of the evidence : 
 (1) That he received the injuries or some part thereof alleged in his 
 complaint; (2) that the carelessness and negligence of the defendant 
 company, its agents or servants, were the proximate cause of said in- 
 juries; (3) that he himself was free from any carelessness or negli- 
 gence which contributed to said injury. If he has established by such 
 preponderance of the evidence all three of said propositions, then he 
 would be entitled to recover in this action. If, however, plaintiff has 
 failed to establish either one of said propositions by such preponder- 
 ance, then he is not entitled to recover.*** 
 
 84— Memphis St. Ry. Co. v. Shaw, 'To escape the responsibility of 
 
 110 Tenn. 467, 75 S. W. 713 (714). contributory negligence, the plain- 
 
 "The criticisin is in the use of tiff is not required to exercise more 
 the word 'solely,' and the conten- care than is usual under similar 
 tion is that the court should have circumstances among careful per- 
 told the jury that, if both plaintiff sons of the class to which he be- 
 and the company were negligent, longs.' We think this instruction 
 the plaintiff could not recover. To correctly propounds the law nppli- 
 give to tlie word 'contribute' its le- cable to this case. All persons are 
 gal signification would make the not chargeable with the same de- 
 charge unintelligible, as one act gree of care, and the jury, in pass- 
 oannot 'contribute' solely to effect ing upon the care that the plaintiff 
 a given result, but only in connec- should exercise at the time of the 
 tion with some other act, and there accident, had the right to con- 
 can be no sole contributory cause sider the class to which she be- 
 of an accident. We may assume longed, and had the right to take 
 therefore, that the trial judge into consideration all the circum- 
 meant, if the negligence act of the stances surrounding the accident, 
 plaintiff produced or was the sole as they would appear to a person 
 cause of the injury, she could not of her class." 
 recover." 86 — Citizens St. Ry. Co. v. Merl, 
 
 85— Normile v. Wheeling T. Co., 26 Ind. App. 284, 59 N. E. 491 (493.) 
 
 57 W. Va. 132, 49 S. E. 1031 (1033). "The burden of proof is upon the 
 
 "There is no objection pointed plaintiff to show by a fair pre- 
 out to this instruction, and it seems ponderance of the evidence that at 
 to have been taken from the case the time of the accident and injury 
 of Dimmey v. Ry. Co., 27 W. Va. to the plaintiff's intestate he (the 
 32, 55 Am. Rep. 292, in which the plaintiff's iiit(>state) was in the ex- 
 court gave to the jury an instruc- ercise of such care as a prudent 
 tion In substantially the same man would have exercised under 
 language, and also the court laid all the circumstances; and in de- 
 down the law in that case to be: termining this proposition the jury
 
 §2064.] NEGLIGENCE— STREET RAILROADS. 1339 
 
 § 2064. Same Subject — States Holding Burden of Proof Is on De- 
 fendant to Show Contributory Negligence of Plaintiff, (a) The jury 
 are instructed by the court that if the defendant relies upon the con- 
 tributory negligence of the plaintiff to defeat the plaintiff's action, 
 the burden of proving such contributory negligence rests upon the 
 defendant, and it will not avail the defendant unless it has been estab- 
 lished hj preponderance of the evidence. ^^ 
 
 (b) Contributory negligence on the part of a passenger cannot be 
 presumed from the mere fact of injury, but must be proved. On the 
 other hand, the proof of an injury to a passenger on the car of a 
 common carrier casts ujwn the common carrier the burden of proving 
 that the injury was occasioned by inevitable casualty, or some other 
 cause which human care and foresight could not prevent, or by con- 
 tributory negligence of the plaintiff, unless the proof on the part of 
 the plaintiff' tends to show that the injury was occasioned by the con- 
 tributory negligence of the passenger, or by inevitable casualty, or 
 by some other cause which human care and foresight could not pre- 
 vent.^* 
 
 (c) While the burden of proof is upon the defendant to establish 
 the contributory negligence of the plaintiff, yet this does not relieve 
 the plaintiff" of the burden of proving that her injuries were solely 
 caused by the negligence of the defendant, as stated in these instruc- 
 tions. The burden of proving the fact rests upon the plaintiff through- 
 out the entire case, and if the jury find that her negligence, either in 
 whole or in part, caused or directly contributed to cause her injuries, 
 then plaintiff is not entitled to recover, and your verdict must be for 
 the defendant.®^ 
 
 § 2065. Same Subject — Deafness of Passenger. The court instiiicts 
 the jury that on the question of ordinary care required of the plaintiff 
 himself to avoid the consequences to himself of defendant's negli- 
 gence, if such is shown, the fact that he was partially deaf, if such 
 was the fact, would not affect or lessen the degree of care required 
 of him; that care being the degi-ee of care which every prudent man 
 would exercise under the same or similar circumstances."" 
 
 have the right to take into ac- 88 — Boone v. Oakland T. Co., 139 
 
 count the darkness of the night, Cal. 490, 73 Pac. 242 (244). 
 
 the position which the plaintiff's 89 — Gharst v. St. L. T. Co., 115 
 
 intestate was sitting or standing Mo. App. 403, 91 S. W. 453 (457). 
 
 upon the running board of the car "The instruction given, we think, 
 
 at the time of the accident and in- fairly submitted the issue of 
 
 jury to him, and the fact whether plaintiff's contributory negligence 
 
 or not a prudent man, would, un- to the jury, not with as much de- 
 
 der all the circumstances, have tail and particularity as would 
 
 been riding upon the running board have the one refused, but it is 
 
 of the car at the time and place of equally comprehensive, and, we 
 
 the accident." think, correctly states the law." 
 
 Approved in Stone v. Lewiston 90 — Atlanta C. St. Ry. Co. v. 
 
 B. & B. St. Ry., 99 Me. 243, 59 Atl. Bates, 103 Ga. 333, 30 S. E. 41 (49). 
 
 56 (58). "The charge is altogether as 
 
 87 — Washington. A. & Mt. V. E. favorable to the defendant com- 
 
 Ry. Co. V. Quayle, 95 Va. 741, 30 pany as could be asked. The in- 
 
 S. E, 391 (394). struction was to the effect that
 
 1340 FORMS OF INSTRUCTIONS. [§2066. 
 
 § 2066. Same Subject — Standing on Platform When Car Is Over- 
 crowded. You are instructed that it is the duty and obligation of 
 common carriers for hire to furnish passengers with seats for their 
 accommodation, and, if you believe from the evidence in this ease the 
 defendant received the said N. as a passenger, the said N. thereby 
 became entitled to a seat; and, if he was prevented from obtaining 
 a seat by reason of the ear being overcrowded, you are instructed 
 that it ■was not negligence for said N. to stand or be upon the plat- 
 form of said car, providing you believe that in standing upon said 
 platform the said N. was exercising ordinary care and prudence, and 
 would have been safe from injury if the ear had been run in a care- 
 ful manner.^^ 
 
 § 2067. Same Subject — Leaving Seat and Standing on Platform to 
 Accommodate Lady Passenger. The court instructs the juiy that if 
 you find from the evidence in the cause that the plaintiff was a pas- 
 senger on one of defendant's cars, and was occupying a seat inside 
 in a safe place; and you further find that said car was crowded with 
 passengers, and all the seats were taken, and that the plaintiff arose 
 and vacated his seat to accommodate some lady passengers who en- 
 tered the car, and that on account of the crowded condition of said 
 ear, instead of standing therein, he voluntarily left it and passed out 
 to the platform, and remained standing on the outside, where the 
 accident occui-red, — then as to whether or not in so con- 
 ducting himself he was guilty of negligence is a question of 
 fact, which I submit to you. If his conduct in this respect, in doing 
 what he did under the circumstances, was the conduct of an ordinarily 
 prudent and cautious man, then he was not guilty of negligence. If, 
 on the other hand, in going out upon the platform, under the circum- 
 stances, he did that which a prudent and cautious person would and 
 ought not to do, then he would be guilty of negligence. °- 
 
 plaintiff's deafness could not les- or other motor cars, running less 
 
 sen the degree of care required; swiftly, and for that reason great- 
 
 that, notwithstanding his defect er care is necessary upon steam 
 
 he should exercise the same cau- railway trains. But the principle 
 
 tion 'which every prudent man is the same in both cases. Both 
 
 would exercise under the same or must care for the safety of their 
 
 similar circumstances.' This did passengers. It would not be negli- 
 
 not imply that he was required to gence per se for a street car com- 
 
 exercise only that care which a pany to fail to furnish a seat to 
 
 prudent man who could hear would each of its passengers; but, where 
 
 use, but which a prudent man in scats are not furnished, and pas- 
 
 the same condition as to the im- sengers are permitted or required 
 
 pairment of his hearing would ex- to stand upon cars, greater care is 
 
 ercise." required in the operation of its 
 
 91 — Halverson v. Seattle El. Co., cars than where all are provided 
 
 35 Wash. 600, 77 Pac. 1058 (1061). with seats. Nor is it negligence 
 
 "The obligation of street car per se for a passenger to ride or 
 
 companies to furnish seats for stand upon the platform of a car. 
 
 their passengers rests upon the Graham v. McNeill, 20 Wash. 466, 
 
 same principle as that of steam 55 Pac. 631, 43 L. R. A. 300, 72 Am. 
 
 railways, viz., the accommodation St. 121; T. & F. St. P. Ry. Co. v. 
 
 and safety of their passengers. No Boudrou, 92 Pa. St. 475, 37 Am. 
 
 doubt, swiftly moving steam rail- Rep. 707; Cattano v. IVIet. St. R. 
 
 way trains are more dangerous to Co., 173 N. Y. 565, 66 N. E. 563." 
 
 standing passengers than electric 92 — Terre Haute E. Ry. Co. v.
 
 §2068.] NEGLIGENCE— STREET RAILROADS. 1341 
 
 § 2068. Same Suljject — Standing on Platform by Direction of Em- 
 ployes in Charge of Car. The court instructs the jury that it is the 
 duty of the passengers on the car to follow the reasonable instructions 
 and directions of those in charge of the car, in regard to moving from 
 one point of the car to another, unless it is apparent to the passen- 
 ger, in exercising ordinary care, that the movement would be attended 
 with danger; and a passenger may rightfully assume that the serv- 
 ants in charge of the car are familiar with its operations, and that 
 they have a reasonable knowledge of what is safe and prudent for 
 the passenger, in giving such instructions or directions. Therefore 
 if in this case one of the servants of the defendant, — the conductor 
 in charge of the car, — directed the plaintiff to stand on the platform, 
 where he was standing when the accident occurred, it was the duty 
 of the plaintiff to do so, unless it was known and apparent to him 
 at the time that it would be unsafe for him, in the exercise of ordi- 
 nary care and prudence, to leave the car and stand upon the plat- 
 form; and if, while standing upon the platform, you find he was in- 
 jured without any fault of his, but while standing there at the direc- 
 tion of the servant of the company, then, under these circumstances, 
 even though you should find that his position was an unsafe one, yet 
 this would not defeat 23laintiff's right to recover, provided the danger 
 was not apparent to him when he obeyed the instructions given, and 
 took his position on the platform.^^ 
 
 § 2069. Same Subject — Riding on Running Board, (a) The court 
 instructs the jury that if they shall find that the plaintiff's intestate 
 voluntarily assumed the position in which he was riding, sitting upon 
 the running board of the car, and bringing portions of his body out- 
 side the line of the car and running boards, when he could have rid- 
 den upon the front or rear platform of the car, taking into account 
 the rate of speed at which the car was going, the darkness of the 
 
 Lauer, 21 Ind. App. 466, 52 N. E. be the same in either instance. 
 
 703 (705). We think it clear too that it is 
 
 93 — Terre Haute El. Ry. Co. v. the duty of the passenger to fol- 
 
 Lauer, 21 Ind. App. 466, 52 N. E. low the reasonable instructions 
 
 703 (705). and rely on the judgment of those 
 
 "The proposition that it is not in charge of the car, in regard to 
 negligence per se, but a question moving from one part of the car 
 of fact for the jury, for a passen- to another, unless it is apparent 
 ger on a street railway to ride up- to the passenger that the move- 
 on the platform, has been decided ment would be attended with 
 in many decisions. Marion St. danger. Prothero v. Railway Co., 
 R. Co. V. Shaffer, 9 Ind. App. 486. 134 Ind. 431, 33 N. E. 765; Cincin- 
 36 N. E. 861 ; Nolan v. Railroad Co., nati, H. & J. R. Co. v. Carper, 
 87 N. Y. 63, 41 Am. Rep. 345; Ma- 112 Ind. 26, 13 N. E. 122, and 14 N. 
 guire V. Railroad Co., 115 Mass. E. 352; Louisville & N. R. Co. v. 
 239; Burns v. Railway Co., 50 Mo. Kelly, 92 Ind. 371. 
 139; Chi. & A. R. Co., v. Fisher, 141 The fact that appellee responded 
 111. 614, 31 N. E. 406; Beal v. Rail- to a general request, which ap- 
 way Co., 157 Mass. 444, 32 N. E. pealed to him as directly as to 
 653. anyone else in the car, should not 
 
 Whether one rides on the plat- deprive him of any right he would 
 form of his own motion, or upon have had, growing out of a corn- 
 request of the conductor, would pliance with a request addressed 
 not be material. The rule would to him individually."
 
 1342 FORMS OF INSTRUCTIONS. [§ 2070. 
 
 night, and the insecurity of the plaintiff's intestate's position on the 
 running board, the jury have the right to consider all of these facts 
 as bearing upon the question whether at the time and place of the 
 accident the plaintiff's intestate was in the exercise of such care 
 and prudence as an oi-dinarily careful and prudent person would 
 exercise under like circumstances.^* 
 
 (b) An act or a failure to act under such circumstances that a 
 person of ordinary care, caution and prudence would not have appre- 
 hended danger therefrom, is not an act or failure to act, in law, as 
 would amount to contributory negligence. So in this case, if you 
 find from the evidence that the car upon which the plaintiff took 
 passage Avas full of passengers, the seats being all filled; that after 
 getting on said car he stood upon the running board of said car, 
 holding to the handholds upon said car — such act of so riding upon 
 said running board of said car would not constitute negligence ujDon 
 his part, such as would bar a recovery in this action. ^^ 
 
 § 2070. Same Subject — Obejring Instructions to Move to Another 
 Part of the Car. The court instructs the jury that it is the duty of 
 a passenger on a car to follow the reasonable instructions of those 
 in charge of the car in regard to moving from one part of the car to 
 another, unless it is apparent to passenger that the movement would 
 be attended with danger ; and a passenger may rightfully assume that 
 the servants in charge of the car are familiar with the operations 
 of the car, and that they have a reasonable knowledge of what is 
 safe and prudent for the passengers, in giving such instructions. 
 Therefore, if you find from the evidence that one of the servants of 
 the defendant directed the plaintiff' to move to that part of the car 
 
 94 — Stone v. Lewiston B. & B. disputed.' In Graham v. McNeill, 
 
 Ry Co., 99 Me. 243, 59 Atl. 56 (57). 20 Wash. 466, 55 Pac. 631, 43 L. R. 
 
 In C. C. Ry. Co. v. Schmidt, 117 A. 300, 72 Am. St. 121, it was held 
 
 111. App. 213 (215), aff'd 217 111. 396, that: 'It is not contributory negli- 
 
 75 N. E. 383, it was held that it was gence as a matter of law, for a 
 
 not negligence per se for a passen- passenger to stand on the plat- 
 
 ger to ride on the bumper of the form, when the cars are full, in a 
 
 car, and an instruction that it was position in which a person exercis- 
 
 regligence was held properly re- ing ordinary care would be safe if 
 
 fused. the train was run in a careful 
 
 95 — Indianapolis St. R. Co. v. manner.' To the same effect are 
 
 Haverstick, 35 Ind. App. 281, 74 N. the following cases: Pendergast 
 
 E. 35. V. Union R. Co., 10 App. Div. 207, 
 
 "The instruction correctly states 41 N. Y. S. 927; Met. Ry. Co. v. 
 
 an abstract proposition of law. Snashall, 3 App. D. C. 420; Congs- 
 
 Marion St. Ry. Co. v. Shaffer, 9 well v. West St. & N. E. El. Co., 
 
 Ind. App. 486, 36 N. E. 861. In 5 Wash. 46, 31 Pac. 411; Clark on 
 
 Pomaski v. Grant, 119 Mich. 675, 78 'Accident Law' 37; Nellis on 'Street 
 
 N. W. 891, the court said: 'Error Surface Railroads,' 472. Upon the 
 
 is assigned on an instruction to question as to whether appellee 
 
 the jury that it was not negligence was guilty of contributory negli- 
 
 for the plaintiff to ride on the run- gence, the court fully and cor- 
 
 nhig board of this car. We think rectly instructed the jury in its 
 
 in view of the testimony of the seventh and ninth instructions. 
 
 case, there was no error in this. These instructions were applicable 
 
 The plniritiff testified that the car to the evidence, and we cannot be- 
 
 was full, and that he could not get lieve that the jury was misled by 
 
 Inside, and this testimony was not the aJbove instruction."
 
 § 2071.] NEGLIGENCE— STREET RAILROADS. 1343 
 
 where the accident occurred, it was the duty of the plaintiff so to do, 
 unless it was known and api^arent to her that it would be unsafe for 
 her to do so, and, in the absence of apparent danger, she had a right 
 to assume that it was safe for her to move to and stand at the place 
 where the defendant's servants directed her to move to in the car. 
 And if you find that it was an unsafe place for the plaintiff to stand, 
 and that without her fault she was required by reason of her moving 
 to stand at such place, then your finding should be for the plaintiff.^*' 
 
 § 2071. Same Subject— Getting on Car While in Motion, (a) The 
 jury are instructed that it is not of itself in law an act of negligence 
 for one intending to become a passenger on a street car to board the 
 car while it is in motion. Whether or not it is an act of negligence 
 to do so is a question of fact for the jury to determine ; and in de- 
 termining in this case whether or not the plaintiff boarded the de- 
 fendant's car at the time and place in question, and, if he did, 
 whether or not his doing Avas negligence on his part, the jury should 
 consider all the evidence and all the circumstances established by the 
 evidence, and from these determine that issue. And if the jury find 
 from the evidence, by a preponderance thereof, that the management, 
 operation and speed of the said car at the time in question were 
 such as to invite passengers and to make it seem reasonably safe for 
 a person exercising ordinary and reasonable care for his own safety 
 to board the defendant's car, and if you also find from the evidence 
 that at that time the plaintiff intended to become a passenger on said 
 car and exercised ordinary and reasonable care for his own safety, 
 then he was not guiltj^ of contributory negligence; and if you further 
 find that the defendant did not exercise the highest degree of care 
 consistent with the pi"actical operation of its car, for the safety of 
 the plaintiff, and that his injuries, if any, resulted from such failure 
 of the defendant to exercise such degree of care, then you should 
 find the defendant guilty.^^ 
 
 (b) The court instructs the jurj' that the plaintiff in attempting 
 to enter the car in question was required by law to use ordinary care 
 and caution to avoid injury to himself, and if the jury believe from 
 
 96 — Prothero v. Citizens' St. R. constitute negligence. The first 
 
 Co., 134 Ind. 431, 33 N. E. 765 (768), reason we have sufficiently con- 
 
 97 — Chicago U. T. Co. v. O'Brien, sidered in passing on the objec- 
 
 117 III. App. 183 (190), rev'd 219 111. tious to instructions 7 and 9. We 
 
 •303, 76 N. E. 341, for the giving of do not think the jury could have 
 
 another instruction. been misled by the first sentence 
 
 The Appellate Court said: of the instruction, which states the 
 
 "This instruction is also claimed law as we understand it. By the 
 to be erroneous, first, because it second sentence of the instruction 
 assumes that the plaintiff was a the jury were plainly told that 
 passenger on the car; second, be- whether or not the so boarding a 
 cause it is misleading in stating car was an act of negligence was 
 that it is not, of itself, in law, an a question of fact for them to de- 
 act of negligence for one intending termine from all the evidence. The 
 to become a passenger on a street court also submitted to the jury, 
 car, to board the car while it is in by appellant's instruction 13, the 
 motion; and, third, that it is er- question whether appellee was or 
 roneous in stating that certain not exercising ordinary care when 
 facts, if found by the jury, do not he attempted to enter the car."
 
 1344 FORMS OF INSTRUCTIONS. [§ 2071. 
 
 the evidence that a person of ordinary prudence and caution, exer- 
 cising ordinary care for his own safety, for one of his age, intelli- 
 gence, capacity and experience, under such circumstances as attended 
 the plaintiff's attempt to enter the car in question, as shown by the 
 evidence, would not have attempted to enter such car while it was in 
 motion, and if the juiy further believe from the evidence that the 
 plaintiff did attempt to enter the said car while it was in motion, and 
 that he was injured in consequence of his attempting to enter said 
 car while it was in motion, if he did so attempt to enter said car, 
 then the jury should find the defendant not guilty.^* 
 
 (c) The jury are instructed that if they find that plaintiff sig- 
 naled the car, and that its speed was slackened at or near a crossing 
 where defendant was accustomed to receive passengers, and that it 
 was apparently safe for him to board the car, it was not necessarily 
 negligence as a matter of law for him to attempt to get on the car 
 while it was in motion. The plaintiff had a right to rely upon the 
 watchfulness and care which it was the duty of the conductor to 
 bestow toward persons about to take passage, and that he was not 
 bound to anticipate that the ear would start I'apidly or that he might 
 be thrown against the pole and injured. 
 
 (d) The jury are instructed that it is not necessarily negligent for 
 a passenger to get upon a street car, even though he knew the track 
 was being repaired, or that there were iron poles in close proximity 
 to the track on the side of the track on which he was about to enter; 
 for if the car stopped or slackened its speed at his signal, and he 
 was allowed to get on the running board, such acts on the part of 
 the company were an invitation to the person to take passage; and 
 he had a right to presume that the company would use due care to 
 avoid danger to passengers incident to the dangerous condition of 
 the track, and the close proximity of the poles thereto; that the pas- 
 senger had a right to assume that the company's employes would 
 warn him of any danger, and that they would exercise such care as 
 a person of highest degree of skill and foresight, with knowledge of 
 the existing circumstances, would use, in view of such dangers, to 
 guard against accidents to passengei-s by reason thereof. 
 
 (e) Negligence of the defendant in running past the plaintiff 
 upon the street, whether he had signaled or not, or whether he was 
 at a station for receiving passengers or not, would not authorize or 
 make it right for the plaintiff to commit an act of negligence in get- 
 ting upon the car to prevent being left behind. And if you are of 
 the opinion that, at the time of his accident, plaintiff voluntarily 
 threw himself upon a known or perfectly apparent danger, or as- 
 sumed a perfectly clear or palpable risk, he cannot now recover dam- 
 ages of the defendant, even though the servants of the defendant 
 were also negligent.^^ 
 
 98— Chicago U. T. Co. v. O'Brien, Merl, 26 Ind. A/pp. 284, 59 N. E. 
 supra. 491, the above three instructions 
 
 99— In Citizens' St. R. Co. v. were upheld.
 
 §2072.] NEGLIGENCE— STREET RAILROADS. 1345 
 
 (f) The court instructs the jui-y that if they find from the evidence 
 that the plaintiff was not on the step of the car when it started, but 
 attempted to board it after it was in motion, she can not recover in 
 this suit ; but if the jury find that while the car was still waiting 
 and receiving passengers she presented herself as an intending pas- 
 senger, and gained a position on the lower step before the car was set 
 in motion, and the conductor, in the exercise of ordinaiy care in the 
 discharge of his duty,, ought to have seen her in that position, then 
 the jury should find that she was a passenger on the car at the time 
 of the aecident.^*^" 
 
 §2072. Same Subject— Getting Off Car While in Motion, (a) 
 The court instructs the jury, if you should find and believe from the 
 evidence that plaintiff's wife attempted to alight from one of de- 
 fendant's oars while the same was in motion, and before it had 
 stopped for passengers to alight therefrom, and should further find 
 and believe that a person of ordinary care would not have so acted 
 under similar circumstances, to return your verdict for the de- 
 fendant.^ 
 
 (b) The court instructs the jury that if you believe from the 
 evidence in the ease, that, after M. A. had safely boarded defendant's 
 car and obtained a seat therein, she did, while said car was still in 
 motion, and before it reached the regular stopping place for leaving 
 and taking passengers at the point of her destination, to-wit, — , in 
 
 the city of , leave her seat and walk off of said ear, and step 
 
 down on the running board of said car, and stepped from the running 
 board of said ear onto the street, after having been warned by the 
 conductor not to do so, whereby she sustained the injuries complained 
 of, then the plaintiff cannot recover in this suit, and your verdict 
 must be for the defendant. 
 
 (c) The act of negligence stated in the plaintiff's petition is de- 
 nied in the answer of defendant. The defendant further pleads in 
 said answer that the deceased's death was caused by her own negli- 
 gence in stepping off of defendant's oar while the same was in mo- 
 tion. If, therefore, you find from the evidence that deceased's death 
 was not caused by a start of the car, but by her act in stepping off 
 of defendant's car while the same was in motion, after being warned 
 by the conductor not to do so, then plaintiff is not entitled to recover, 
 and your verdict must be for the defendant. ^ 
 
 (d) The fact that the plaintiff undertook to alight from the car 
 at a time when the car was still in motion does not necessarily maks 
 
 100 — Gaffney v. St. P. Ry. Co., 81 submitted to the jury, and having 
 
 Minn. 459, 84 N. W. 304. requested a proper charge, it 
 
 1— Dallas C. El. St. R. Co. v. should have been given. Gulf C. 
 
 Ison, — Tex. Civ. App. — , S3 S. W. & S. F. R. Co. v. Mangham, 95 
 
 408. Tex. 413, 67 S. W. 765; Pelly v. 
 
 "The court gave a general Denison, etc., R. Co.. — Tex. Civ. 
 
 charge on contributory negligence, App. — , 78 S. "W. 542." 
 
 but under the pleadings and evi- 2— Behen v. St. L. T. Co., 186 Mo. 
 
 dence the defendant was entitled 430, 85 S. W. 346 (349). 
 to have its defense affirmatively 
 
 85
 
 1345 FORMS OF INSTRUCTIONS. [§2072. 
 
 her guilty of contributory negligence. As to whether she could alight 
 from the car at the time she undertook to do so with safety, is a 
 question of fact for you, gentlemen, to determine from all the facts 
 and circumstances in the case. If you find from the evidence, that, 
 at the time she undertook, to alight from the ear, she could have done 
 so with safety, by the exercise of due diligence and care, then she 
 would not be guilty of contributory negligence, even though you find 
 that the car had not come to a full stop but was still moving.^ 
 
 (e) The juiy lare instructed, as a matter of law, that if you believe 
 from the evidence that the plaintiff got off defendant's car at an 
 improper place, or in an improper manner, and if you further be- 
 lieve that such action on the part of the plaintiff was a want of 
 ordinary care, which contributed to the injuries complained of, then 
 your verdict must be for the defendant. 
 
 (f) Although you may believe that the plaintiff got off from the 
 car at the north side of D. street, w^hen the usual place for alighting 
 was on the south side of D. street, that fact alone would not justify 
 you in finding her guilty of negligence as would bar a recovery in 
 the case, unless you believe and find that it was the proximate cause 
 of the injury.* 
 
 (g) The court instructs the jury that, in determining the ques- 
 tion whether the plaintiff Avas negligent in and about alighting from 
 the street car in question under the circumstances under which the 
 jury find, from the evidence, the plaintiff did so, they are to take in- 
 to consideration not alone the age and condition of the plaintiff at 
 the time, but also the relative danger and risks attending the act of 
 alighting from a car propelled by cable, as the one in question was, 
 and the character and condition of the locality and the plaintiff's 
 prior knowledge of its chai"aeter and condition, as shown by the evi- 
 dence ; and they are instructed that the plaintiff was required to 
 exercise care for her safety in proportion to the dangers and risks 
 attending the act of alighting fi'om a cable car under such circum- 
 stances, and a failure on her part to exercise this care is negligence 
 which deprives her of the right of recovery in this action ; and if the 
 jui-y believe, from the evidence, in this case, that the plaintiff did 
 not exercise such care, and was guilty of such negligence, and that 
 such failure to use such care and such negligence contributed in any 
 way to the injury complained of in this action, then the jury should 
 find the defendant not guilty.'' 
 
 (h) The jury are instructed that if they find from the evidence 
 that the plaintiff was injured while alighting from the car while it 
 was in motion, and that such conduct on her part was a want of 
 ordinary care for her own safety which contributed to the injupy 
 complained of, then she cannot recover in this case, and your verdict 
 should be for the defendant." 
 
 3— Wabash R. T. Co. v. Baker, 5— W. C. St. R. Co. v. Manning, 
 
 — Ind. — , 78 N. E. 196 (19S). 170 111. 417 (427), 48 N. E. 958, aff'g 
 
 4— N. C. St. R. Co. v. Eldridge, 70 111. App. 239. 
 
 151 111. 542. 38 N. E. 246. 6— In Chi. C. R. Co. v. Canevin,
 
 §2072.] 
 
 NEGLIGENCE— STREET RAILROADS. 
 
 1347 
 
 (i) That while it was the duty of defendant to stop its car to 
 afford the plaintiff an opportunity to alight, yet the failure to do 
 so would not give the jolaintiff the right to jump from the moving 
 car.'^ 
 
 72 111. App. 81, the court held the 
 above instruction should have 
 been given, and that the trial 
 court erred in modifying it by add- 
 ing the word "materially" before 
 the word "contributed"' was revers- 
 ible error. See comment of the 
 court in this case in Erroneous In- 
 structions, Vol III, same heading. 
 
 7 — The above short instruction 
 approved in McDonald v. City El. 
 R. Co., 137 Mich. 392, 100 N. W. 
 592 (593). 
 
 Compare that with the follow- 
 ing group of instructions found in 
 Omaha St. R. Co. v. Craig, 39 
 Neb. 601, 58 N. E. 209 (214, 215). 
 
 "The jury are instructed that if 
 the plaintiff attempted to get off 
 a moving cable car while the speed 
 of the train was being slackened, 
 ibut before the train had been 
 brought to a full stop, she was 
 guilty of contributory negligence 
 which bars her right of recovery, 
 if this be true, although the men 
 in charge of the train did not im- 
 mediately comply with her re- 
 quest to stop the train. 
 
 The jury are further instructed 
 that if the plaintiff signaled the 
 car to stop, and the car immedi- 
 ately began to slacken speed, and 
 the plaintiff, without w\iiting for 
 the car to stop, did step from the 
 car while it was in motion, and 
 was thereby injured, she cannot 
 recover. 
 
 The jury are further instructed 
 that if they believe from the evi- 
 dence that the plaintiff, in at- 
 tempting to step off from the car 
 while still in motion, stepped di- 
 lectly out from the car, at right 
 angles from the car, and that, by 
 reason of the momentum of the 
 car and her own body, she was 
 caused to fall over northwards — 
 the direction in which the car was 
 moving — she was guilty of con- 
 tributory negligence, and cannot 
 recover. 
 
 The jury are further instructed 
 that if they believe from the evi- 
 dence that the plaintiff thought 
 she could step from the car with 
 safety to herself, even while the 
 car was in motion, the fact that 
 she so believed she could stop from 
 the car is not of itself proof that 
 she wns guilty of contributory 
 negligence. 
 
 If the jury should be satisfied 
 from the evidence that, when the 
 plaintiff signaled the car to stop 
 by the ringing of the bell for that 
 purpose, the car immediately be- 
 gan to slacken its speed, and that 
 the plaintiff, without waiting for 
 the car to stop, undertook to and 
 did step from the car while it was 
 still in motion, and was thereby 
 injured, she cannot recover, and 
 the defendant is entitled to the 
 verdict. 
 
 The jury are further instructed 
 that if you find from the evidence 
 that the plaintiff, without wait- 
 ing for the men in charge to bring 
 the same to a stop, attempted to 
 get off the train while the same 
 was in motion, and that injury re- 
 sulted to her by reason of her own 
 act in attempting to get off of the 
 train while the same was in mo- 
 tion, and while the same was be- 
 ing brought to a stop, then the 
 plaintiff cannot recover. 
 
 The jury are further instructed 
 that the plaintiff assumed the re- 
 sponsibility of danger in attempt- 
 ing to step from the car while in 
 motion, and if they find from the 
 evidence that she did so, the fact 
 that she misjudged her ability to 
 get from the car with safety, does 
 not show negligence on the part 
 of the defendant company, and 
 does not create any liability on the 
 part of the defendant company. 
 
 The jury are further instructed 
 that, if the plaintiff was injured 
 by the accident caused by her at- 
 tempting to jump off of a moving 
 cable car, the defendant company 
 is not liable, unless the proof sat- 
 isfies them that some negligent act 
 on the part of the company's ser- 
 vants in charge of the train pro- 
 duced the injury shown by the 
 evidence." 
 
 A shorter Nebraska instruction 
 is found in Omaha St. R. Co. v. 
 Boeson. 68 Neb. 437, 94 N. W. Rep. 
 619 (622): 
 
 "The jury are instructed that if 
 you believe from the evidence that 
 the plaintiff was not thrown from 
 the car, but that he attempted to 
 get off the car while it was in 
 motion, and fell into the street, 
 then he cannot recover damages, 
 and your verdict should be for 
 the defendant."
 
 1348 FORMS OF INSTRUCTIONS. [§ 2073. 
 
 (j) If you find from the evidence that the conductor of the north- 
 bound car was walking on the running board on the outside of the 
 same for the purpose of collecting a fare from a passenger who had 
 boarded it, and that he neither said nor did anything to the deceased, 
 who was on the running board on the opposite side of the car, and 
 that the deceased jumped off and was killed, there cannot be a re- 
 covery against the defendant.^ 
 
 (k) But, if you believe that a reasonable stop was made — that is, 
 a stop for a reasonable length of time — at or near G. street and that 
 she had given no notice or signal that she desired to get off at this 
 place, and shall further believe that afterwards, after it started, it 
 occurred to her that she ought to have gotten off at this place at 
 G. street, or where it stopped, and shall believe that she attempted to 
 go out of the car while it was in motion, and after it had started 
 again, and shall believe that by reason of its being in motion was 
 the cause of her falling off, then she cannot recover in the action.^ 
 
 § 2073. Same Subject — Jumping From Moving Car at Command 
 of Conductor. The court insti-ucts the jury that, if you believe, from 
 the evidence, that the defendant's east-bound car, at the time and 
 place in question, was running at such a high rate of speed as to be 
 dangerous for deceased, or any ordinary person so situated, to jump 
 from said car, and that said conductor, while acting within the scope 
 of his authority as such conductor if he was so acting, will- 
 fully and wantonly compelled deceased to jump from said car in 
 manner and form as charged in the declaration, if he did so, and while 
 it was running at such rate of speed, and that said conductor's con- 
 duct in this regard showed a reckless disregard of deceased's safety, 
 and that deceased was thrown down on the adjoining track and ren- 
 dered helpless, and while so lying upon said track was run over and 
 killed by the west-bound car before it could be stopped, then you 
 should find the defendant guilty, even though you should find, from 
 
 8 — In Memphis St. R. Co. v. jured, it will then be your duty, 
 
 Newman, 108 Teun. 666, 69 S. W. gentlemen, to find your verdict In 
 
 269, it was held vital error to re- favor of the defendant in this 
 
 fuse the above instruction. case." 
 
 lu Gilmore v. Seattle R. Co., 29 The instruction was held good 
 
 "Wash. 150, 69 Pac. 743 (745), an by a reference to another iustruc- 
 
 instruction was given as follows: tion in the following words of the 
 
 "If you believe from the fair pre- court: 
 
 ponderance of all the evidence "The instruction, standing alone, 
 
 that the plaintiff had a reasonable would seem to apply that the ap- 
 
 time, ns I will define that to you, pellant was permitted to hold on 
 
 In which to alight from the car, to the stanchion or hand rail of 
 
 and that she did, as a matter of the car for a reasonable time after 
 
 fact, alight from the car, but that alighting; but the court makes his 
 
 she retained her hold upon the meaning clear by a further in- 
 
 guard rail or stanchion of the car struction to the effect that a pas- 
 
 for a longer time that would be senger could not be said to be off 
 
 reasonably sufFiciont for a person the car so long as he was sup- 
 
 of ordinary prudence and activity, porting himself thereby, and being 
 
 considering all her conditions and still in the act of alighting." 
 
 surroundings, and if you find that 9 — Champagne v. La Crosse C 
 
 by reason of her so retaining hold R. Co., 121 Wis. 554, 99 N. W. 334 
 
 of that guard rail she was in- (335).
 
 §2074.] NEGLIGENCE— STREET RAILROADS. 1349 
 
 the evidence, that there was no fault upon the part of the motorman 
 of the west-bound car.^** 
 
 § 2074. Same Subject — Failure to Move Away After Alighting — 
 Injury by Trailer, (a) The court instructs the jury that it was 
 the dutj'- of the defendant B. to use the utmost care and skill that pru- 
 dent men, engaged in the same or like business, are accustomed to 
 use under the same or similar circumstances, to enable the plaintiff, 
 A., to alight from the car in safetj', and to move far enough from 
 said ear, if such moving away was necessary after so alighting, to pre- 
 vent his being struck or injured by the trailer with said car; and if 
 you believe from the evidence that the defendant failed to use such 
 care, and that by reason of such failure the plaintiff was prevented 
 from getting out of the way of defendant's car after he alighted 
 therefrom and was injured thereby, then the law is for the plaintiff, 
 and you will so find. 
 
 (b) It was the duty of the plaintiff, A., to exercise ordinary care 
 for his own safety in alighting from said car and moving away 
 from the same, if such moving away was necessary ; and if you believe 
 from the evidence that the said A. negligently failed to exercise such 
 care, or negligently remained so close to said car as that he was 
 struck by the trailer and injured, and, but for such negligent failure 
 on the part of the plaintiff to move away from said car when he 
 alighted therefrom, said injuiy would not have been received by 
 him, then the law is for the defendant, and you will so find.^^ 
 
 § 2075. Injury to Passenger While Trying to Escape From Ap- 
 parently Imminent Danger, (a) The court instructs the jury 
 that if they believe from the evidence that, while defendant was 
 operating with electricity, street cars as a common earner of passen- 
 gers for hire, the plaintiff on November , took passage on 
 
 one of defendant 's said cars, and paid her fare, and while she was 
 being carried as such passenger, there was an explosion under the 
 ear occasioned by some part of the apparatus, and that such explo- 
 sion was followed by fiame and fire in said car, from which the car 
 took fire and began to bum, and that said explosion, flame, fire, and 
 burning of said ear, were calculated to alarm and fill with fear and 
 dread of injuiy or death from fire any reasonably prudent person 
 who was a passenger upon said car; and if the jury further believe 
 from the evidence that, thereupon, plaintiff became so alarmed and 
 filled with fear and dread of being burned that she endeavored to 
 
 10 — Chi. C. R. Co. v. O'Donnell, jured. In order to find for the 
 
 207 111. 478 (483), 69 N. E. 882 (884). defendant under instruction 2, it 
 
 11 — Louisville Ry. Co. v. Meglem- was not necessary for the jury to 
 
 ery, 25 Ky. 1587, 78 S. W. 217 (218). believe from the evidence that the 
 
 "We are unable to see that there plaintiff's negligence was the sole 
 was any error in instructions 1 cause of his injury. If it was due 
 and 2 given by the court. They in part to the plaintiff's negli- 
 are to be read together, and, when gence and in part to the defend- 
 so read, state plainly that the ant's negligence, then he could not 
 plaintiff cannot recover if he failed recover, if, but for his own negli- 
 to exercise ordinary care, and but gence. the injury would not have 
 for this would not have been in- happened."
 
 1350 FORMS OP INSTRUCTIONS. [§ 2076. 
 
 escape from said car through the window thereof, in order to avert 
 what she believed to be an imminent peril to her life, and that while 
 she Avas thus endeavoring to escape, she exercised such care as a 
 reasonably prudent person would exercise under the same circum- 
 stances; and that in so attempting to escape she was hurt by being 
 violently thrown upon the paved street; and if the jury further be- 
 lieve from the evidence that such explosion, flame, and fire and burn- 
 ing of said car wei'e occasioned by any defect in the condition of 
 said car or the apparatus thereof, or by any improper management 
 of said car, and if such defective condition or improper management 
 resulted from any negligence on the part of the defendant, or its 
 agents or servants, that is, any failure on their part to exercise the 
 highest degree of care, skill and foresight of reasonably cautious per- 
 son engaged in operating electric street cars, then the jury will find 
 for the plaintiff, and assess her damages, as stated in another in- 
 struction; unless the jury further find that plaintiff was guilty of 
 negligence directly contributing to her injuries.^^ 
 
 (b) The court instructs the jury that if a person without fault 
 on her part, is confronted with sudden danger, or apparent sudden 
 danger, the obligation resting upon her to exercise ordinary care for 
 her own safety does not require her to act with the same delibera- 
 tion and foresight which might be required under ordinary circum- 
 stances.^^ 
 
 § 2076. Payment of Fare in Genuine Coin. If you find from the 
 evidence in the case that the plaintiff boarded defendant's car, in- 
 tending to become a passenger, he was entitled to all the rights and 
 privileges of a passenger,— that is, there was due him the 
 
 12— Brod V. St. L. T. Co., 115 13— Chi. U. T. Co. v. Newmiller, 
 
 Mo. App. 202, 91 S. W. 993 (995). 116 App. 111. 625 (629, 630), aff'd 
 
 "Defendant criticizes the instruc- 215 111. ^83, 74 N. E. 410. 
 
 tlon on several grounds, one of "The objections urged to the in- 
 
 which is that it submits a cause struction are that it is an abstract 
 
 of action not stated in the peti- proposition of law, and is errone- 
 
 tion. The instruction, in no way, ous in omitting the qualification 
 
 materially departs from the alle- that the danger must be such as 
 
 gations of the petition. The pe- to be apparent to a person of rea- 
 
 tition is broad and so is the in- sonatole prudence and common 
 
 struction. Plaintiff did not allege sense. We do not think the in- 
 
 thc specific cause of the explosion struction abstract in the sense 
 
 of the car nor did she prove the that there is no basis for it in the 
 
 exact location or cause of the ex- evidence. If, as was testified to 
 
 plosion and fire. She and her wit- by some of the witneses, the flame 
 
 nesses testified that the noise of reached into and nearly to the 
 
 the explosion came from beneath center of the car, then, certainly 
 
 the bottom of the car, on the left there was sudden and apparent 
 
 side and near the front end, and danger of fire, and we think it 
 
 that the fire enveloped the left would so appear to a person of 
 
 side of the car. Plaintiff could ordinary prudence. Apparently the 
 
 not know and therefore was not passengers generally so thought. 
 
 required to allege the cause of and it can hardly be predicated of 
 
 the explosion and fire. She made all those who sought to escape the 
 
 a prima facie case by showing the apparent danger that they were all 
 
 unusual occurrence and it is this lacking in ordinary prudence or 
 
 prima facie case the Instruction common sense." 
 submitted to the jury."
 
 §2077.] NEGLIGENCE— STREET RAILROADS. 1351 
 
 exercise of ordinary care ; and if he tendered to the conductor a gen- 
 iiine coin of the denomination as alleged, — United States silver coin, 
 — in payment of his fare, it was the duty of the conductor to accept 
 the coin, and transport him to his destination. If the coin presented 
 was not a genuine coin, — in other words, if it was a counterfeit coin, — 
 the conductor ought not to have accepted it, and if the plaintiff 
 failed to pay the fare demanded of him he had the right to expel 
 him from the ear. But if the coin, as I have stated, was a genuine 
 silver coin of the United States Government, the conductor should 
 have accepted it, and returned to him the change that was proper, 
 and conveyed him to his destination. It is a question of fact to be 
 determined by you under the testimony in the case. The coin is in 
 evidence, and you have the right to inspect it, in passing upon that 
 question.^* 
 
 LIABnJTY FOR INJURIES TO PERSONS OTHER THAN 
 PASSENGERS OR EMPLOYES. 
 
 § 2077. Degree of Care Due Pedestrian, (a) The court instructs 
 the juiy that before the plaintiff can recover against the defendant 
 in this action it is incumbent upon her to prove to the satisfaction 
 of the jury that the employes of defendant in charge of the car in 
 question failed and neglected to exercise ordinaiy care and diligence 
 in stopping its car in time to have avoided the injury to the de- 
 ceased, A. H. ; and, unless the plaintiff has shown by the evidence 
 such want of ordinary care on the part of the defendant company's 
 employes in charge of said car, then the jury will find their verdict 
 for the defendant. 
 
 (b) The court instnicts the jury that before the plaintiff can re- 
 cover from the defendant in this action it is incumbent upon her to 
 establish to the satisfaction of the jury that the employes of the de- 
 fendant company in charge of its car, after they saw, or by the 
 exercise of ordinaiy care might have seen, the danger to the de- 
 ceased, A. H., were guilty of carelessness or negligence in failing and 
 neglecting to stop said car in time to have averted the injury to said 
 deceased, A. H. 
 
 (c) The court instructs the jury that the employes of the defend- 
 ant company owed to the deceased, A. H., only that degree of care 
 which an ordinarily careful and prudent person engaged in the same 
 business would have exercised under like and similar circumstances ; 
 and, if the jury believes from the evidence that the employes of the 
 defendant company exercised such care, then the juiy will find their 
 verdict in favor of the defendant. ^^ 
 
 § 2078. Same Subject — Not Liable for Mere Accident or Misad- 
 venture, (a) If you believe and find from the evidence that the 
 
 14— Atlanta Con. St. R. Co. v. 15— Holwerson v. St. L. «fe S. R. 
 Keeny, 99 Ga. 266, 25 ». E. 629 Co., 137 Mo. 216, 57 S. W. 770. 
 33 L. R. A. 824.
 
 1352 FORMS OF INSTRUCTIONS. [§ 2079. 
 
 said K. was at the north sidewalk of A. street when defendant's car 
 was crossing C. avenue, and then suddenly started from her position 
 at the sidewalk to cross A. street, and without regard for her own 
 safety, or without looking for or seeing the car, ran into the same, 
 and that such conduct on her part was the sole cause of her injury 
 and death, without any negligence or want of ordinary care on the 
 part of the motorman in charge of the car causing or contributing to 
 such injury or death, then you should hnd for the defendant. 
 
 (b) If you believe and find from the evidence that the injury 
 and death of the said K. were the result of mere accident or misad- 
 venture without the fault or negligence of any one, then you should 
 find for the defendant.^® 
 
 § 2079. Degree of Care Due Persons Riding in Wagons or Other 
 Vehicles Along Track, The court instructs the juiy that if the plain- 
 tiff was injured in the manner complained of in the petition, and that 
 the accident and consequent injury, if any there was, was caused by 
 the failure of the defendant or its employes to exercise reasonable 
 and ordinaiy care in the operation of its car, then the law is for the 
 plaintiff, and the jury should so find. However, the court further 
 instructs the jury that the plaintiff was bound to exercise that degree 
 of care and caution for his own safety that a person of ordinary 
 prudence would exercise under the same and similar circumstances, 
 and if the jury believes that the plaintiff did not exercise such a 
 degree of care and caution, and the accident was occasioned thereby, 
 then the law is for the defendant, and the jury should so find, unless 
 the jury should further find that the defendant did or could have 
 discovered the peril of the plaintiff in time to have avoided the injury 
 to him by the exercise of reasonable diligence. ''Ordinary care," as 
 used in these instructions, means that degree of care which a person 
 of ordinaiy prudence would exercise under the same or similar cir- 
 cumstances.^''' 
 
 16 — Koenig- v. Union D. Ry. Co., moving cars propelled by electri- 
 
 194 Mo. 564, 92 S. W. 497. city it is incumbent on those hav- 
 
 17 — Greene v. Louisville Ry. Co., ing charge of them in the crowded 
 
 27 Ky. Li. 316. 84 S. W. 1154. highway to exercise care commen- 
 
 "It is incumbent on all travelers surate with the circumstances for 
 
 on the highway to exercise ordi- the protection of others, and to this 
 
 nary care for the safety of others end they must keep a lookout 
 
 using the highway. The operators ahead of the car. The failure of 
 
 of street cars are bound by this the court to so instruct the jury 
 
 rule no less than other persons on was prejudicial to appellant under 
 
 the highway. The only difference the facts of the case. Shearman 
 
 between a street car and other ve- & Redficld on Negligence, par. 485; 
 
 hides is that it cannot turn aside Thompson on Neg*ligence, par. 1383; 
 
 as other vehicles, but must stay Robinson v. Louisville Ry. Co., 112 
 
 on the track, and it is entitled to Fed. 484, 50 C. C. A. 357; Louisville 
 
 the use of the track without ob- R. Co. v. Wood, 2 Ky. L. 387; Cen- 
 
 struction from other vehicles; but tral P. R. Co. v. Chatterson, 14 
 
 it can no more run down another Ky. L. 663; Owensboro R. Co. v. 
 
 vehicle by negligence than any Hill, 21 Ky. L. 1638, 56 S. W. 21. 
 
 other traveler on the highway Tf appellant was obstructing with 
 
 may do so, although the vehicle his wagon the railway track, he 
 
 may be upon its track. In oper- might be punished for this under 
 
 ating in public streets rapidly the city ordinance; tout he was
 
 § 2080. 
 
 NEGLIGENCE— STREET RAILROADS. 
 
 1353 
 
 § 2080. Degree of Care Due Infant Trespasser, (a) The jury are 
 further instructed by the court that if the plaintiff, H. R. W., at the 
 time of the injury, was a child of tender age of 7 years, and was 
 
 riding upon the defendant 's car in the city of , whilst the same 
 
 was in motion, and that the defendant's servants in charge of said 
 car knew of his presence on the car and ordered him to get off, it was 
 their duty to have reduced the speed of said car, before ordering the 
 plaintiff to leave the same, to such a rate of speed as the plaintiff 
 might depart from the car with safety, notwithstanding the jury may 
 believe that the plaintiff was at the time a trespasser upon the defend- 
 ant 's car. But in order to find for the plaintiff the jury must believe 
 that the order of the conductor was given in such a manner as to 
 frighten or intimidate the plaintiff to such an extent as to cause him 
 to jump from the car while it was in motion ; taking into consideration 
 the age and capacity of the plaintiff.^* 
 
 lawfully upon the highway, and 
 had the right to use one part of 
 it no less than another, although 
 occupied by the track of the street 
 railway. If, while on the street 
 car track, he was struck by the 
 car without negligence on the part 
 of those in charge of the car when 
 his presence on the track could not 
 be discovered by them in the exer- 
 cise of ordinary care in time to 
 avert the injury, he cannot re- 
 cover. But he was not a trespas- 
 ser on the track, and he had the 
 right to anticipate that a proper 
 lookout would be kept by those 
 in charge of the cars, and that or- 
 dinary care would be exercised by 
 them as in the case of other ve- 
 hicles to avoid running into him. 
 In 27 Am. & Eng. Ency. of Law. 
 p. 70, the rule is thus stated: 
 'While it is the duty of vehicles 
 moving along street railway tracks 
 to leave the tracks on the ap- 
 proach of cars, so as not to ob- 
 struct their passage, still those in 
 charge of the cars must use rea- 
 sonable diligence to prevent col- 
 lisions, and the company is liable 
 for injuries resulting from their 
 failure to do so. Thus, where a 
 vehicle is seen moving on the 
 tracks ahead of a car, the motor- 
 man, gripman, or driver should 
 bring his car under control, if pos- 
 sible, so as to avoid a collision 
 if the driver of the vehicle fails 
 to leave the track; but he is not 
 required to bring the car to a stop 
 unless the vehicle is sufficiently 
 near to be reasonably considered 
 in a position of dTnger. It has 
 been held that, where a street car 
 approaching from the rear runs 
 down a wagon driving along the 
 
 track, this is of itself sufficient 
 evidence of negligence on the part 
 of the street railway company, in 
 the absence of special circum- 
 stances excusing such act, to car- 
 ry the question to the jury. Where 
 a street car is approaching from 
 the rear a vehicle moving along 
 the track, the person operating the 
 car has not the right to proceed 
 without regard to the presence of 
 the vehicle, in anticipation that 
 the vehicle will leave the track in 
 time to give free passage to the 
 car.' " 
 
 IS— Richmond T. Co. v. Wilkin- 
 son, 101 Va. 394, 43 S. E. 622 (623). 
 
 The above instructions "are ob- 
 jected to upon the ground that 
 there is no evidence to support 
 them; that they assume that it 
 must be dangerous for a boy of 7 
 to jump off a car in motion; that 
 they assume that the running 
 board of a street car is a dan- 
 gerous place for a boy of 7 years 
 of age to stand; and, further, that 
 these instructions would forbid 
 the conductor to order a trespass- 
 ing boy off his car when the car 
 was going slowly enough for him 
 to do so with perfect safety to the 
 boy. These objections are not well 
 taken. The evidence was ample 
 to sustain the instructions, and 
 they do not assume that the run- 
 ning board of a car is a dangerous 
 place for a boy 7 years of age to 
 stand, or that it is dangerous for 
 a boy of that age to jump from 
 a moving car. Those questions 
 were submitted to the jury upon 
 the evidence, and they are charged, 
 in reaching their conclusion, to 
 consider whether the plaintiff ex-
 
 1354 FORMS OF INSTRUCTIONS. [§ 2080. 
 
 (b) If the jury further believe from the evidence that the em- 
 ployes of defendant knew (or could have known by the exercise of 
 reasonable care), the plaintiff was on said car, in a dangerous situ- 
 ation, considering his age 'and experience and understanding, that 
 then it was their duty to slow up sufficiently to permit said plaintiff 
 to leave said ear in safety, if the same was in motion, and, if the 
 said car had not been started, not to start same until said plaintiff 
 had gotten to a place of safety; and, if the jury believe from the 
 evidence that the injury resulted to the plaintiff from the failure of 
 said employe in either one of these particulars, they must find for 
 the plaintiff"; provided they believe from the evidence that the plain- 
 tiff exercised such a degree of care and caution as under the circum- 
 stances might reasonably be expected from one of his age and in- 
 telligence. 
 
 (c) If you believe from the evidence that the motorman or con- 
 ductor knew (or could have known by the exercise of reasonable 
 care), that when the car was about to start off on its return trip 
 that the said plaintiff occupied a dangerous position for a child of 
 tender years, that then it was the duty of the said conductor and 
 motorman not to start the car while the plaintiff was so occupying 
 said position; and, if you believe from the evidence that they did so, 
 negligence may be imputed to the defendant, if the jury believe that 
 the accident was occasioned by said negligence; provided the jury 
 shall believe from the evidence that the plaintiff exercised such a de- 
 gree of care and caution as under the circumstances might reasonably 
 be expected from one of his age and intelligence.^® 
 
 ercised such a degree of care and tended, making it tlie duty of 
 caution as under the circumstances the defendant to keep a lookout 
 might reasonably be expected for trespassers. Ordinarily, it is 
 from one of his age and intelli- not the duty of a railroad com- 
 gence. Nor does it appear that pany, operating its trains, to use 
 these instructions are subject reasonable care to discover and 
 to the objection that they would avoid injuring persons trespassing 
 forbid the conductor to order a upon its tracks. C. & O. R. Co. v. 
 trespassing boy off his car when Rogers, 100 Va. 324, 41 S. E. 732. 
 the car was going slowly enough Whether or not this rule applies 
 for him to do so with safety to the to street railways in a populous 
 boy. Whether the car was going city, where children of tender 
 slowly enough to justify the con- years are constantly coming in 
 ductor in ordering a child 7 years dangerous proximity to street cars, 
 of age to jump off was a question we need not now consider, for the 
 for the jury, and, under the in- instructions under consideration, 
 structions given in this case, the when applied to the facts of the 
 jury were chai-ged with the duty case at bar, are free from objec- 
 of determining that question." lion. The employes of the defend- 
 19 — Richmond T. Co. v. Wilkin- ant company knew that the chil- 
 pon, 101 Va. 394, 43 S. E. 622 (624). dren were on the car. The motor- 
 Objections were also made to the man admits that he saw plaintiff, 
 above instructions upon the together with other children, on 
 "ground that they tell the jury, the running boards of the car just 
 If the employes of the defendant before it started, and that he 
 could have known by the exercise moved off when the bell was rung, 
 of reasonable care that the plaintiff without looking back to see if they 
 was on the car in a dangerous sit- were off. The conductor admits 
 uation, etc., thereby, it is con- that he saw as many as three boys
 
 2081.] 
 
 NEGLIGENCE— STREET RAILROADS. 
 
 1355 
 
 § 2081. Statutory, Municipal and Other Regulations of the Public 
 Authority, (a) The court instructs you that there is an ordinance 
 of the city of Memphis, a violation of which is a misdemeanor, which 
 provides as follows : 
 
 Article 39, paragraph 5: "Conductors and drivers of each car 
 shall keep a rigid lookout for all teams, carriages, and persons, on 
 foot, and especially children, either on the track, or moving towards 
 it, and on the first appearance of danger to such team or persons, or 
 other obstructions, the car shall be stojiped in the shortest time and 
 space possible." 
 / Also another section, namely : 
 
 Article 39, paragraph 25: "At no point within the city limits 
 shall they (meaning the street cars) run at a greater speed than 15 
 miles per hour. ' ' 
 
 (b) The court instructs you that a failure to comply with the 
 city ordinances above cjuoted, within the city limits, is negligence per 
 se, and will render the railway company liable, if its negligence was 
 the proximate cause of the accident and injui-y.^" 
 
 on the car, and that they turned 
 some of tlje seats. He says that 
 he thought they were off, but ad- 
 mits that he did not see but two 
 get off. If, therefore, it were im- 
 proper for these instructions to use 
 the expression, 'or could have 
 known by the exercise of reason- 
 able care,' it was harmless error, 
 for the employes knew, at or 
 about the time the car started, 
 that the children were on the car, 
 and the conductor ordered them 
 off." 
 
 20— Memphis St. R. Co. v. 
 Haynes, 112 Tenn. 712, 81 S. W. 374 
 (375). 
 
 "In the case of Queen v. Day- 
 ton C. & I. Co., 95 Tenn. 45S, 32 
 S. W. 460, 30 L. R. A. 82, 49 Am. 
 St. 935, it was held that the em- 
 ployment of an infant in a mine 
 in violation of the statute forbid- 
 ding such employment, and de- 
 claring it a misdemeanor, consti- 
 tuted per se such negligence as 
 rendered the employer liable for 
 all injuries sustained by the in- 
 fant in the course of the employ- 
 ment. In Riden v. Grimm Bros., 
 97 Tenn. 220, 36 S. W. 1097, 35 L. 
 R. A. 587, it was held that the 
 sale of intoxicating liquors to an 
 habitual drunkard, after notice 
 from the latter's wife forbidding 
 it, in violation of Acts 1889, c. 68, 
 making such sale a misdemeanor, 
 was per se such negligence as ren- 
 dered the seller liable to the wife 
 for the death of the husband, or 
 other injury resulting to her from 
 
 &uch sale. In Schmalzried v. 
 White, 97 Tenn. 36, 36 S. W. 393, 32 
 L. R. A. 782, the court had under 
 consideration the question whether 
 the violation of a city ordinance 
 would impose the same liability as 
 the violation of a statute. The 
 ordinance under examination there 
 concerned the erection of fire es- 
 capes on buildings. In that case 
 the court used the following lan- 
 guage: 'It is insisted that the ordi- 
 nance of 1890 imposed no duty 
 upon the owners of this building, 
 for a breach of which a civil ac- 
 tion can be maintained by one sus- 
 taining injury for such breach, 
 and that therefore the trial judge 
 was in error in letting this go to 
 the jury. It is conceded that for 
 a violation of a general statute a 
 civil action will lie at the instance 
 of a party injured thereby. Queen 
 V. Da>-ton C. & I. Co., 95 Tenn. 458, 
 32 S. W. 460, 30 L. R. A. 82, 49 Am. 
 St. 635. But it is insisted that this 
 is not true with regard to a viola- 
 tion of a municipal ordinance. An 
 examination of the authorities will 
 show much diversity of judicial 
 opinion on this question. The cases 
 of Bott V. Pratt, 33 Minn. 323. 23 
 N. W. 237. 53 Am. Rep. 47; Osborne 
 V. McMasters, 40 Minn. 103. 41 N. 
 W. 543, 12 Am. St. 698; Hayes v. 
 Mich. C. R. R., Ill U. S. 228. 4 
 Sup. Ct. 369, 28 L. Ed. 410, and 
 Salisbury v. Hochenroder. 106 
 Mass. 458, 8 Am. Rep. 354, hold that 
 for the violation of a municipal
 
 1356 
 
 FORMS OF INSTRUCTIONS. 
 
 [§ 208L 
 
 (e) You are instructed, gentlemen of the juiy, that it is the duty 
 of the street railway company to exercise ordinary care to keep 
 level with the balance of the street the space between their rails and 
 tracks and two feet on each side of the same, and keep the tops of 
 the rails of their tracks on a level with the surface of the street. It 
 
 ordinance an action can be main- 
 tained by a private individual in- 
 jured tliereby. The cases of Pliil- 
 adelphia R. R. v. Ervin, 89 Pa. 71 
 33 Am. Rep. 726; Flynn v. Canton 
 Co., 40 Md. 312, 17 Am. Rep. 603 
 Heeney v. Sprague, 11 R. I. 456 
 23 Am. Rep. 502, and Vandyke v 
 Cincinnati, 1 Disn. (Ohio) 532, talce 
 the contrary view. At the April 
 term, 1903, of this court, at this 
 place, in the case of Memphis St. 
 R. Co. v. Williford (no opinion 
 filed), error was assigned upon the 
 charge of the circuit judge, sub- 
 stantially the same as that now 
 complained of. Indeed, the same 
 city ordinances which are copied 
 supra were involved in that case, 
 and were the subjects of the 
 charge of the circuit judge there. 
 The court held in an oral opinion 
 delivered by Mr. Justice Shields, 
 that the same rule laid down in 
 Queen v. Dayton C & I. Companj', 
 supra, in respect of statutes, ap- 
 plied to city ordinances. We have 
 again examined the question, but 
 deem it unnecessary to go into an 
 extended discussion of it. To what 
 has already been said in our cases 
 we shall only add that we are un- 
 able to find any convincing force 
 in the suggestion, occurring in 
 many of the cases, that a distinc- 
 tion should be made between stat- 
 utes and ordinances, in respect 
 of the question referred to, on the 
 ground that the former can create 
 a cause of action between private 
 individuals, or a civil cause of ac- 
 tion in any sense, and the latter 
 cannot. If an ordinance be passed 
 for the protection of the individ- 
 uals composing the public, as dis- 
 tinguished from the municipality 
 itself, and be within the legislative 
 power of the corporation, and any 
 member of the public suffer an in- 
 jury peculiar to himself by reason 
 of the violation of such ordinance 
 by some other person, it is difficult 
 to see why, on any sound theory, 
 4ie may not have an action there- 
 for against the offender. Such or- 
 dimncps are devised for the pur- 
 pose of creating rulf^s of conduct 
 for the fruidance of the people, just 
 as statutes are, and they may be 
 
 said to emanate ultimately from 
 the Legislature, since municipali- 
 ties, in this state at least, can ex- 
 ercise no powers which are not ex- 
 pressly or by implication conferred 
 upon them by that body. 
 
 It is true that the ordinance does 
 use the expression 'on the first 
 appearance of danger to such 
 teams or persons . . . the car 
 shall be stopped,' etc., but this 
 language must be given a reason- 
 able construction. Taking into con- 
 sideration the purpose intended to 
 be served by the ordinance, we are 
 of opinion that it means, when 
 the danger of a collision becomes 
 imminent, the car shall be stopped. 
 The danger to be apprehended is 
 always that of a collision. It is 
 always potential when street cars 
 and other vehicles, horsemen and 
 pedestrians are using the same 
 thoroug'hfare. It does not become 
 actual until it is perceived to be 
 imminent. It may be then said 
 to first appear as a real danger. 
 
 When the danger of a collision is 
 imminent, it is certainly not un- 
 reasonable to require the railway 
 company to stop its cars in the 
 shortest time and space possible. 
 This, of course, implies that the 
 machinery and appliances shall be 
 in proper condition, and also that 
 the servants of the company shall 
 do all that men of reasonable care, 
 prudence and alertness in the same 
 situation and with the same appli- 
 ances could do to stop the car and 
 prevent the collision. Citizens' St. 
 Ry. Co. v. Dan, 102 Tenu. 320-325, 
 52 S. W. 177. 
 
 Nor is this rule in conflict with 
 that laid down in Citizens' St. Ry. 
 V. Shepherd, 107 Tenn. 444, 64 S. W. 
 710. 
 
 In that case the court held that, 
 when the danger of a collision be- 
 came imminent, then it became the 
 duty of the motorman to use ordi- 
 nary care to stop his car and pre- 
 vent an accident. But ordinary 
 care under such circumstances — 
 that is, when the danger of a col- 
 lision is imminent — is that degree 
 of care which is described in the 
 next, but one, preceding para- 
 graph."
 
 §2082.] NEGLIGENCE— STREET RAILROADS. 1357 
 
 is also their duty to stop their cars at least five feet before approach- 
 ing a railroad crossing. It is also the duty of the emjaloye of the 
 defendant company operating their cars, when they discover a person 
 in peril on their track, to use reasonable diligence to stop the car and 
 avoid injury to such person.-^ 
 
 § 2082. Joint Liability With Other Individuals or Corporations. 
 The court instructs the jury that the plaintiff has filed her declaration 
 containing one count' which states her cause of action; that in and by 
 said declaration she charges both the defendants with negligence 
 causing said injury; that the juiy may find one or both of the de- 
 fendants guilty or not guilty, as the jury may determine from all the 
 evidence in the case; that before the jury can find the defendant, the 
 S. Ry. Co. guilty, they must believe, from a preponderance of the 
 evidence, that the said S. Ry. Co. is guilty of the negligence charged 
 against it in said declaration ; that the injury, if any, sustained by the 
 plaintiff w^as a natural consequence of the negligence charged against 
 the said S. Ry. Co., flowing directly and immediately, in unbroken 
 sequence, from said alleged negligence. 2- 
 
 § 2083. Care of Road Beds and Tracks, (a) The eoui-t instructs 
 the jury that though they may believe from the evidence that the 
 plaintiff, B., saw the heap of snow, alleged to have been piled or 
 thrown by the defendant company, and knew that it was of a danger- 
 ous character, but knew that other persons had crossed there, and 
 reasonably believed that by the exercise of reasonable care, she could 
 cross the same in safety, her attempt is not contributory negligence. ^^ 
 
 (b) If the jury find from the evidence that the defendant's street 
 car track was in an unsafe condition, and that the rails projected 
 above the surface of the street to such an extent as to render cross- 
 ing over the same dangerous at the point where the said G. attempted 
 to cross, the same, and that the said G. actually saw or discovered 
 the dangerous condition of said track or rail, or in the exercise of 
 ordinary care ought to have seen it, and attempted to cross the same 
 with a loaded wagon, and was injured thei'eby, and that an ordinarily 
 prudent person would not have done so, and that he was negligent in 
 so doiijg, then and in this event the plaintiffs could not recover, and 
 you will find for the defendant.-* 
 
 (c) The jury are instructed that if there was a hole in the top of 
 the culvert as alleged, and that the defendant was negligent in fail- 
 
 21 — Dallas Cons. El. St. R. Co. v. in part." The plaintiff was riding 
 
 Ely, Tex. Civ, App. , 91 in a cab at the time of the acci- 
 
 S. W. 887 (888). dent, and, on bringing- suit against 
 
 22 — Springfield Cons. R. Co. v. the cab company and the street 
 
 Putenny, 200 111. 9, 65 N. E. 442, railway company jointly, each 
 
 aff'g 101 111. App. 95. In this case tried to exculpate itself by incul- 
 
 it was held proper for the trial pating the other. 
 
 court to have struck out at the 23 — Newport N. & O. P. R. & E. 
 
 end of the above instruction the Co. v. Bradford, 99 Va. 117, 37 S. E. 
 
 following words, "without any 807 (809). 
 
 possible intervening and probable 24 — Citizens' R. Co. v. Gossett, 
 
 efficient cause to which such injury Tex. Civ. App. , 85 S W. 
 
 might have been due, in whole or 35 (36).
 
 1358 FORMS OF INSTRUCTIONS. [§ 2084. 
 
 ing to repair it, and that plaintiff, without negligence on his part, 
 was injured by falling into the hole, then j^ou will find for plaintiff, 
 and allow him such damages as the proof may show he has sustained, 
 if any.-^ 
 
 (d) The jury are instructed that the defendant had no jurisdic- 
 tion or control over that part of the street outside of its tracks and 
 right of way, and could in no manner regulate and control the action 
 of storekeepers or other persons, and could not prevent them from 
 shoveling the snow off from the sidewalk or from making paths 
 through the snow and throwing the snow into piles or heaps upon the 
 street outside of its tracks and right of way. And if the jury believe 
 from the evidence that certain storekeepers or other persons did at 
 the time and at the place where the accident to the plaintiff happened, 
 shovel snow and ice from the sidewalk out into the street, and did 
 shovel paths in the snow and ice, throwing it to either side, making 
 piles of snow and ice in the street outside of defendant's tracks and 
 right of way at the place in ciuestion, and at the time in question, and 
 that such accumulations or piles of snow and ice were the cause of 
 the accident complained of, then the jury should find the defendant 
 not guilty.-^ 
 
 (e) The jury are instructed that it was the duty of the city of 
 
 and not of the defendant to remove the accumulations of snow 
 
 and ice, if any, which had become lodged between the defendant's 
 tracks and right of way and the sidewalk at the time and at the 
 place when and where the accident comiDlained of occurred. So if 
 the jury believe from the evidence that the plaintiff was injured by 
 reason of an accumulation of ice and snow in the street outside of 
 defendant's tracks and right of way, and that such accumulation 
 of snow and ice at the time and place in question was the cause of 
 the accident, then the jury should find the defendant not guilty (un- 
 less you further find from the evidence that such accumulation of 
 snow and ice was caused by the defendant.)-'' 
 
 § 2084. Cars and Appliances, (a) The court instructs the jury 
 that the cars of said railway shall be of modern type, propelled by 
 electricity or any other motive power, except steam, which is or may 
 become suitable for railway purposes, and must be properly lighted 
 in the nighttime, whether standing or running.-** 
 
 (b) A street railway company is required to use cars that will 
 not unduly endanger the lives and limbs of persons using the streets 
 and crossing its tracks. It may not use old and obsolete cars that 
 are difficult to control or without good equipment to stop; and if by 
 such use an injury is inflicted, when the use of a more modern or 
 
 25— Laredo El. & R. Co. v. Ham- 134 Mich. 195, 96 N. W. 34 (35). 
 
 ilton, 23 Tex. Civ. App. 480, 56 S. "We think this instruction fairly 
 
 W. 998 (1000). presented the question to the jury. 
 
 26— Kornazsewka v. W. C. St. R. See Rascher v. St. R. Co., 90 Mich. 
 
 Co., 76 111. App. 366 (369). 413, 51 N. W. 463, 30 Am. St. 447; 
 
 27— Ibid McGee v. St. R. Co., 102 Mich. 107, 
 
 28— Ensley v. Detroit U. R. Co., 60 N. W. 293, 26 L. R. A. 300, 47 
 
 Am. St. 507."
 
 §2085.] NEGLIGENCE— STREET RAILROADS. 1359 
 
 complete car with good equipment to stop, such as is generally in 
 use, would not have caused the injury, then such company in the use 
 of such old and obsolete car without good equipage to stop it, is 
 guilty of neglect. This rule, however, does not require the company 
 to use the most recent pattern or kind of car or brake manufactured, 
 but it does I'equire it to use such a pattern or kind of ear and brake 
 as is in general use in cities or towns of the size where it is used.-'-* 
 
 § 2085. Sounding Bells and Gongs. The court instructs the jury 
 that it was the duty of the defendant's gripman to sound his gong 
 or bell when approaching L. avenue, so as to give notice to persons 
 desiring to cross said street of the approach of the train of cars ; and 
 if you find from the evidence that said gripman failed to sound his 
 gong or bell, or give any other warning, when approaching said 
 avenue, and that, but for his failure to so sound his gong or bell or 
 give such warning, the accident complained of would not have hap- 
 pened, your verdict should be for the plaintiffs, unless you also find 
 from the evidence that B., at the time she was killed by defendant's 
 cars, was not using that degree of care in going upon defendant's 
 tracks which, in the ordinary experience of mankind, was to be ex- 
 pected of a girl of her age and capacity under the circumstances 
 shown in the evidence.^'^ 
 
 § 2086. Use of Proper Brakes, (a) The court instructs the jury 
 that the law requii-es that the defendant's servants should be watch- 
 ful to see that the way is clear in the direction in which the train is 
 going, and that, where they have reason to anticipate the sudden and 
 unexpected appearance of children upon or approaching the track, 
 they should so manage the grip and brakes of the cars as to be able 
 to stop the cars quickly and readily, should occasion require. If, 
 therefore, under all the circumstances detailed in the evidence, you 
 
 29— Indianapolis St. R. Co. v. negligence per se. Such failure be- 
 
 Schomberg, Ind. App. , 71 comes negligence only when the 
 
 N. E. 237 (239), aff'd 164 Ind. Ill, circumstances render the ringing 
 
 72 N. E. 1041. of the bell necessary, and, if the 
 
 "The use of an old car without circumstances are in dispute, 
 good equipment to stop it ought to whether the occasion is such as 
 be an act of negligence, but the in- calls for the sounding of the bell 
 struction does not require the use is a question of fact for the jurj\ 
 of cars and brakes of the most But is it the duty of the court to 
 recent patterns, but only such as require the jury to find facts that 
 are in general use in cities and are undisputed and established by 
 towns of the size where it is used, the evidence of both sides? We 
 It characterizes the act as one of think, under the unquestioned cir- 
 negligence. It certainly could not cumstances of this case, it was the 
 be considered one of due care. It duty of the grripman to have sound- 
 does make the liability of defend- ed his gong on the approach of 
 ant depend absolutely upon cir- Lemp avenue; and the inference 
 cumstances." is strong that if he had done so the 
 
 30— Schmidt v. St. L. R. Co., 163 child, who according to the grip- 
 Mo. 645. 63 S. W. 834 (836). man's own evidence, probably 
 
 "There is no statute making it could not see the car on account of 
 
 the duty of the gripman to sound the buggy, would have heard the 
 
 the gong or bell at the approach gong, and would not have run into 
 
 of a street crossing, and there is danger. We see no error in that 
 
 no law making a failure to do so Instruction."
 
 1360 FORMS OF INSTRUCTIONS. [§ 2087. 
 
 find that there was reason to anticipate the sudden and unexpected 
 appearance of children upon or approaching the track at the inter- 
 section of L. avenue with B., and you further find that defendant's 
 servants in charge of its train of cars were not so managing its grip 
 and brakes so as to be able to stop said train quickly, should occa- 
 sion require, and you further find that the death of the plaintiffs' 
 daughter was caused by the failure of defendant's servants to so 
 manage said grips and brakes, then your verdict must be for the 
 
 plaintiffs, unless you should also find from the evidence that , 
 
 at the time she was killed by defendant's cars, was not using that 
 degree of care in going upon defendant's tracks, which, in the ordi- 
 naiy experience of mankind, was to be expected of a girl of her 
 age and capacity under the circumstances shown in the evidence.^i 
 
 (b) You are instructed that defendant was under no obligation 
 to supply the safest or most effective brakes that could be obtained, 
 or to use the utmost care in keeping the brakes on its cars in repair, 
 but was bound to use only ordinary care in the selection of its brakes 
 and in maintaining and keeping the same in repair; but ordinary care 
 in such a case requires the care usually exercised in the operation of 
 electric street car lines, and it is the duty of a party, in operating 
 an electric car, to use the best- appliances in common use, and to 
 exercise great care in keeping its appliances for stopping cars in 
 good condition. ^2 
 
 § 2087. Allowing Running Board to Extend Over Sidewalks. It 
 
 was the duty of defendant, in running its cars on the highway, to use 
 reasonable care to avoid injury to persons using the highway; and 
 what is reasonable care depends upon the circumstances of the ease; 
 and, as the danger of accident increases, the degree of care should 
 also increase. It was the duty of the defendant to the plaintiff to 
 exercise such care as would be exercised by a reasonably prudent man 
 under all the circumstances. At places where there is more danger 
 the speed must be greatly reduced, and the gong should be sounded 
 to give warning; and if the defendant company was operating a car, 
 the running board of which, at curves, extended over a part of the 
 sidewalk, it was its duty to use reasonable care and diligence to pre- 
 vent injui-y thereby to any person standing on the sidewalk at such 
 place; and it is the duty of the motorman operating such car to use 
 reasonable care to avoid injuiy to persons on the sidewalk at places 
 where there is such overlapping of the running board ; and reasonable 
 care may mean great care, depending upon the circumstances, and 
 the greater the overlapping, the greater degree of care must be exer- 
 
 31— Schmidt v. St. L. R. Co., 163 streets of a great city, witli any 
 
 Mo. 645, 63 S. W. 834 (837). degree of safety to pedestrians and 
 
 32— Mock V. Los A. T. Co., 139 others, except by 'keeping- its ap- 
 
 Cal. 616, 73 Pac. 454 (455). pliances for stopping cars in good 
 
 "We think the law should be, condition.' Therefore ordinary pru- 
 
 and is, as stated in this instruc- dence requires that 'great care' 
 
 lion. Of course, a street car can- should be exercised in this direc- 
 
 not be operated upon the public tion."
 
 §2088.] NEGLIGENCE— STREET RAILROADS. 1361 
 
 eised. It is his duty to avoid injury to persons lawfully using the 
 public street, whether crossing it or whether on the sidewalk.^^ 
 
 § 2088. Rate of Speed, (a) The court instructs you that while 
 the defendant company was permitted by ordinance to run its cars 
 at the point where the accident happened at a speed not exceeding — 
 miles per houi', yet such permission fixed the highest rate of speed at 
 which the defendant company was peiTuitted under any circumstances 
 to run, and did not authorize the defendant company to mn at such 
 rate, regardless of any and all cii'cumstances and conditions that 
 might exist. If, therefore, you find from the evidence that the plain- 
 tiff was run over and injured, as alleged, by defendant's car, at a 
 point on the defendant's tracks where the defendant's servants and 
 agents had reason to anticipate the appearance of children and other 
 persons upon the track, and if you further find that the defendant 
 at the time of the injuiy was running its said car at a rate of speed 
 which, under the facts and circumstances shown by the evidence, was 
 careless, negligent and dangerous, and in consequence thereof ran over 
 and injured said plaintiff, and provided you further find from the 
 evidence that said B. at the time exercised such care for her own 
 safety as could be reasonably expected of a child of her age and 
 capacity, then your verdict should be for plaintiff, although you 
 
 should also find that such rate of speed did not exceed the rate of 
 
 miles per hour.^* 
 
 (b) You are further instructed, that, if the car of the defendant 
 was being propelled at a greater rate of speed than — miles an hour, 
 such speed was, in law, negligence, and if such speed was the direct 
 and immediate cause of the death of T., that but for such negligent 
 speed, if you so find it was, the accident would not have occurred, the 
 plaintiff is entitled to recover. If, however, the speed of the car was 
 less than fifteen miles an hour, the same was not negligence, and the 
 plaintiff cannot recover, if you believe the deceased was lying on the 
 car track, unless she has proved that the motorman in charge of the 
 car could by use of the means reasonably within his power have 
 stopped the ear, after he saw T., in time and distance sufficient to 
 avoid striking T.^^ 
 
 (c) With respect to the alleged negligence of defendant operating 
 
 33 — Hayden v. P. H. & W. R. instructions in Birmingham R. & 
 
 Co., 76 Conn. 355, 56 Atl. 613 (616). E. Co. v. City S. Co.. 119 Ala. 547, 
 
 "We think this was a fair state- 24 So. 558 (559), 43 L. R. A. 385. 
 ment of the law relative to the "(a) The duty of a motorman on 
 duty of the defendant and its serv- an electric car varies, to some ex- 
 ants towards the plaintiff in this tent, according- to the locality in 
 case, and that it was well adapted which he is running. He rnay be 
 for the guidance of the jury." permitted to run at a speed in open 
 
 34 — Heinzle v. Met. St. R. Co., country, where there are no cross- 
 
 182 Mo. 528. 81 S. W. 848 (853). ings, which would not be permitted 
 
 35 — Taylo'r v. Houston El. Co., where he would be likely to en- 
 
 Tex. Civ. App. , 85 S. W. counter people and vehicles upon 
 
 1019 (1020), where an intoxicated the track. 
 
 person lying on the track was (b) It would be proper for him 
 
 killed. to run the car at one speed in one 
 
 See also the following series of part of the town, and not to run 
 86
 
 1362 
 
 FORMS OF INSTRUCTIONS. 
 
 [§ 2088. 
 
 its cars at a high and excessive rate of speed, you are instructed that, 
 under the ordinance of the City of St. L., defendant had the right to 
 operate its car at the place mentioned in the testimony at a rate 
 of speed not exceeding 10 miles per hour. Before, therefore, you can 
 find against the defendant on account of the excessive speed, you must 
 find either that the defendant operated its ear in excess of the speed 
 of 10 miles an hour, or at such a speed which, under the evidence and 
 under the circumstances given in the testimony, amounted to negli- 
 gence, and unless you so find, and also further find that such exces- 
 sive or negligent speed was the cause of the death of plaintiffs' son, 
 then plaintiffs are not entitled to recover on account of such speed.^* 
 
 at such rate of speed at another 
 part of the town, where it was 
 more densely populated. 
 
 (c) In determining- whether he 
 was guilty of negligence in this 
 case, gentlemen of the jury, you 
 will consider the locality where 
 he was running; whether or not 
 there was danger of his striking a 
 vehicle or person upon the track 
 at any crossing, and how fast he 
 was running; how far his light 
 would enable him to observe dan- 
 gers in front of him; within what 
 distance he could stop the car, — 
 and from all the circumstances 
 which the evidence discloses to 
 you, surrounding this matter, you 
 will determine whether or not he 
 was guilty of negligence in running 
 the car. 
 
 (d) It is the duty of the motor- 
 man, when h.e is running where 
 he may come into collision with 
 some person or vehicle at a cross- 
 ing, at some place where the per- 
 son or vehicle has a right to be, 
 to keep his car under such control 
 as that he may stop it in time to 
 avoid the injury, if he had, with 
 proper diligence, discovered the 
 danger. While he may run with 
 greater or less speed according to 
 the locality in which he is running, 
 it is his duty to at least retain 
 control over his car; and that con- 
 trol must be such that he may, in 
 case he encounters danger and dis- 
 covers it, by doing those things 
 which will control his car, so reg- 
 ulate his speed that he will come 
 to a full stop before he does the 
 injury to the person or vehicle that 
 may be in front of him, or give 
 that person or vehicle an oppor- 
 tunity to get out of the way. He 
 is not bound to anticipate that 
 anybody will do anything in get- 
 ting upon the track, which he 
 ought not to do, but "he is bound to 
 
 know that other people have a 
 right upon the track, besides him- 
 self, and in running the trains he 
 must so run them that he may dis- 
 cover danger, if he can discover it 
 by the exercise of proper diligence, 
 so as to stop the car, and avert 
 the injury which might happen to 
 a person in his way upon the 
 track. If the night is dark and 
 he cannot see further ahead than 
 his light, of course it is his duty 
 to take that fact into consideration 
 in determining the speed of his 
 car. If he cannot see but a little 
 way ahead, he must run more 
 slowly than if he could see a long 
 way ahead. 
 
 (e) If he fails in any such duty, 
 he is guilty of negligence; and if 
 the injury results to any persons 
 upon the track, or to property 
 which is where it has a right to be, 
 then the company for whom the 
 motorman is acting is liable for 
 the result." 
 
 36 — Masterson v. Transit Co., 204 
 Mo. 507 (517), 98 S. W. 505. 
 
 "Plaintiffs interpret this to mean 
 that the jury were instructed that 
 defendant had the absolute right 
 to run its car then and there at 
 the rate of 10 miles an hour re- 
 gardless of the circumstances. 
 That is a misunderstanding of the 
 instruction. Plaintiffs, in their pe- 
 tition, had counted on the ordi- 
 nance and at the trial, to obviate 
 the necessity of introducing the or- 
 dinance in evidence, it was admit- 
 ted by counsel on both sides in 
 open court that the speed limit 
 fixed by the ordinance was 10 mile.s 
 an hour. The plaintiffs having in- 
 voked the ordinance as one of the 
 measures of speed to be observed 
 by the defendant, the latter had 
 the right, in view of the admission, 
 to have the jury instructed that 
 so far as the ordinance was con-
 
 § 2089.] NEGLIGENCE— STREET RAILROADS. 1363 
 
 (d) The court instructs the jury that plaintiff's petition charges 
 
 that its servant was, on , about p. m., driving his stake 
 
 wagon drawn by three horses, one of them being in the lead, south 
 on E. avenue, and that at the intersection of E. and H., while said 
 wagon was being driven from the north side towards the south side 
 thereof, an east-bound ear of the defendant company struck said lead 
 horse. The negligence charged against said defendant is: First, that 
 said ear, while approaching said crossing, was being operated at an 
 excessive and dangerous rate of speed to persons and animals cross- 
 ing H. avenue at its intersection with E. ; second, that the motorman 
 thereof failed to give 'any warning of the approach of said car on E. 
 avenue. The court instructs you that in regard to those allegations 
 of negligence the burden of proof is upon the plaintiff to show by the 
 preponderance or greater weight of the evidence that said accident 
 was caused b}' either one or both said alleged acts of negligence. By 
 "burden of proof" is meant that the evidence to sustain a proposition 
 thus to be proved is greater in weight and credibility in your judg- 
 ment than the evidence to the contrary.^^ 
 
 § 2089. Same Subject — As to Infant Trespassers. The jury are 
 further instructed by the court that, if the plaintiff at the time of the 
 injury, was a child of tender age of thirteen years, and was riding 
 upon the defendant's ear in the city of A., whilst the same was trav- 
 eling at a fast rate of speed, that it was the duty of the defendant's 
 motorman in charge of said train to have reduced the speed of said 
 train, before ordering the plaintiff to leave the same, to such a rate of 
 speed as the plaintiff' might depart from the train with safety, not- 
 withstanding the jury may believe that the plaintiff was at the time 
 a trespasser upon the defendant's car.^^ 
 
 § 2090. Frightening Animals — Car Operated in Ordinary Manner. 
 If the defendant was operating an interurban railroad on and along 
 a public highway, and if while mnning its cars along and upon its 
 said railroad, plaintiff's horse became frightened at the running of 
 said ear, or at the appearance of said car, aside from said sign or 
 banner, and said car was being run and operated in the ordinary 
 way of operating said car, then the court instructs you that said fright 
 of said horse under such condition could not be chargeable to the 
 defendant.^^ 
 
 earned, defendant had the right to to negligence, the plaintiffs could 
 
 run its car at the rate of 10 miles not recover on the issue as to 
 
 an hour. But the instruction did speed. We find no fault with that 
 
 not say that the car could be law- instruction." 
 
 fully run 10 miles an hour regard- 37 — Sanitary D. Co. v. St. L. T. 
 
 less of the circumstances; its nat- Co., 98 Mo. App. 20, 71 S. W. 726. 
 
 ural meaning was that if the car 38 — Washington A. & Mt. V. E. 
 
 was not run in excess of 10 miles R. Co. v. Quayle, 95 Va. 741, 30 S. 
 
 an hour there was no violation of E. 391 (394). 
 
 the ordinance, and it said if the 39 — Indianapolis & G. R. T. Co. 
 
 car was not run in excess of 10 v. Haines, 33 Ind. App. 63, 69 N. E. 
 
 miles an hour or at such a speed 1S7 (188). 
 
 which under the circumstances "It would be a strained construc- 
 
 shown in the evidence amounted tion of the language used in this
 
 1364 FORMS OF INSTRUCTIONS. [§ 2091. 
 
 § 2091. Same Subject — Car Not Operated in Ordinary Manner. 
 
 If the jury believe from the evidence that the horse of plaintiff was 
 frightened by the noise and smoke arising from the machinery of the 
 car of defendant, and that said noise and smoke was not incident to 
 the ordinary operation of their cars they are instructed tbat this 
 raises the presumption that such noise and smoke would not have 
 been caused if those who had the providing, maintaining and care of 
 defendant's machinery had used proper care thereto, and in the 
 absence of an explanation on the part of the defendant showing due 
 care on its part, they may infer that the defendant was guilty of 
 negligence ; and if they further believe that such negligence caused 
 the accident as set forth in the declaration, and that the plaintiff was 
 free from fault, they must find for the plaintiff.*'' 
 
 § 2092. Right of Way of Street Gary Over Other Vehicles Driven 
 Along Track — Collision With Same, (a) The jury are instructed 
 that, by reason of its convenience to the public as a carrier of pas- 
 sengers, and because of the inability of its cars to .turn out, a street 
 railway company is invested with the right of way over other vehicles 
 over the portion of street occupied by its tracks, and it is the duty 
 of the drivers of such vehicles to turn out and allow its cars to pass, 
 and to use care not to obstruct and delay the same, and if the jury 
 believe, from the evidence, that the plaintiff, while neglecting such 
 duty and failing thereby to use ordinary care for his own safety, was 
 injured, then he cannot recover in this case.*^ 
 
 instruction to say that the jury sumption of negligence from the 
 
 would understand it to mean that simple occurrence of an accident 
 
 appellee might recover if his horse arises where the accident proceeds 
 
 became frightened at the running from an act of such a character 
 
 of the car unless it was shown that that when due care is taken in its 
 
 the car was being run and operat- performance, no injury ordinarily 
 
 ed in the ordinary way of operat- ensues from it in similar cases, or 
 
 Ing the car. A careful considera- where it is caused by the misman- 
 
 tion of the instruction discloses agement or misconstruction of a 
 
 nothing prejudicial to appellant." thing over which the defendant 
 
 40— Richmond R. & E. Co.- v. has immediate control, or for the 
 
 Hudgins, 100 Va. 409, 41 S. E. 736 management and construction of 
 
 (738). which he is responsible. Transpor- 
 
 " 'As a rule negligence is not pre- tation Co. v. Downer, 11 Wall 129, 
 
 sumed. But there are cases where 20 L. Ed. 160; Phil. W. & B. R. Co. 
 
 the maxim res ipsa loquitur is di- v. Anderson, 72 Md. 519, 20 Am. 
 
 rectly applicable, and from the St. 493, 20 Atl. 2 (note), 8 L. R. 
 
 thing done or omitted negligence A. 673; Railway Co. v. Locke, 
 
 or care is presumed.' 16 Am. & 312 Ind. 404, 14 N. E. 391, 2 Am. St. 
 
 Eng. Inc. Law 448. 'When the 193; Hayes v. Railroad Co., Ill U. 
 
 physical facts of an accident them- S. 228, 4 Sup. Ct. 369, 28 L. Ed. 
 
 selves create a reasonable proba- 410.' " 
 
 bility that it resulted from negli- 41— North C. E, Ry. Co. v. Peu- 
 
 gonce, the physical facts them- ser, 190 111. 67 (70), 60 N. E. 78. 
 
 selves are evidential, and furnish "Street railway companies are 
 
 what the law terms 'evidence of public carriers of passengers and 
 
 negligence' in conformity with the are given corporate existence to 
 
 maxim res ipsa loquitur. Seybolt v. enable them to provide the means 
 
 R. Co., 95 N. T. 562, 47 Am. Rep. of rapid transportation for the 
 
 75; 2 Jag. Torts 938; Whart. Neg., convenience of the people and the 
 
 §421; Cooley, Torts 799; Bigelow, promotion of the public welfare. 
 
 Torts 596; Shear & R., § 59. A pre- The cars of such corporations can-
 
 §2092.] NEGLIGENCE— STREET RAILROADS. 1365 
 
 (b) You are instructed that, although you believe from the evi- 
 dence that the wagon which the street car collided with was driven 
 in front of the ear for some distance near the railroad track, but in 
 a place of safety, these facts would not, under the law, make it the 
 duty of the motorman to stop his ear; and if you believe said motor- 
 man rang his gong on seeing said wagon near said track, as afore- 
 said, so as to warn said persons on said track on said wagon that the 
 car was approaching, he (the motorman) had a right to anticipate 
 that the wagon would be kept out of danger and give him the right 
 of way, and under the circumstances he would not be called upon to 
 stop the car or to check the same until he saw the driver was ignorant 
 of the approach of the car, and that a collision would likely occur.*^ 
 
 (c) The jury are instructed that by reason of its convenience to 
 the public as a carrier of passengers, and because of the inability 
 of its cars to turn out, a street railway company is vested with the 
 right of way over other vehicles over the jDortion of the street occu- 
 pied by its tracks, and it is the duty of the drivers of such vehicles 
 to turn out and allow its cars to pass, and to use care not to obstruct 
 and delay the same. And if the jury believe from the evidence that 
 the plaintiff, while neglecting such duty, if he did neglect such duty, 
 and failing thereby to use ordinaiy care for his own safety, was in- 
 jured, then the plaintiff cannot recover in this ease.*^ 
 
 (d) A street car has 'the right of way upon that portion of the 
 street upon which it alone can travel. If, therefore, a private vehicle 
 
 not give and take the road — turn his presence there serves to impede 
 to right or left — as can ordinary the passage of the cars. A street 
 vehicles, but must move on and railway company is charged with 
 along the rails laid down in the the knowledge that the public may 
 street for that purpose. The grant lawfully use the entire street, and 
 to such corporation of the right to it must, in operating its cars on 
 use the streets of a city must by the streets, employ all reasonable 
 necessary implication be held to means to avoid injuring those 
 confer the right of passage along whom it knows may rightfully use 
 its tracks superior to the right of that part of the streets occupied 
 a horseman or one driving a ve- by its tracks. The principles we 
 hide on that portion of the street have pronounced are supported by 
 occupied by the tracks of the rail- adjudicated cases in this court and 
 way company. Such companies do the consensus of modern author- 
 not, however, have an exclusive ity. Chicago W. D. R. Co. v. Bert, 
 right to the use of that part of 69 111. 388; North C. St. R. Co. v. 
 the streets occupied by their Smadraff, 189 id. 155. 59 N. E. 507; 
 tracks. The public are not deprived Elliott on Roads & Streets, 2d ed., 
 of the right to use all parts of sees. 761-2. It was an error to re- 
 the street in the ordinary manner, fuse to grant the instruction." 
 but retain such right, subject to See also the instructions ap- 
 the superior right of passage. A proved in C. C. Ry. Co. v. Rohe, 
 citizen passing along the street in 118 III. App. 322 (326); C. C. Ry. Co. 
 a carriage, buggy or like vehicle, v. Manger, 105 111. App. 579 (584), 
 subject to the rule must exercise and Purington Brick Co. v. Eck- 
 ordinary care for his own safety man, 102 111. App. 183 (186). 
 and not obstruct the passage of 42 — Hot Spr. St. R. Co. v. Hil- 
 the car. may drive on the track dreth, 72 Ark. 572, 82 S. W. 245 
 rails laid in the street by the street (248). 
 
 car company, and drive along and 43 — Chi. C. R. Co. v. Meinheit, 
 
 upon such track or rails without 114 111. App. 497 (498). 
 
 becoming a trespasser, but it is his "In North C. E. R. Co. v. Peu- 
 
 duty to leave the track whenever ser, 190 111. 67, 60 N. E. 78, the same
 
 1366 FORMS OP INSTRUCTIONS. [§ 2092; 
 
 in traveling upon the public highway, meets with a street oar, the 
 private vehicle must yield the right of way to the street car.** 
 
 (e) The court instructs the jury that while, if you believe from the 
 evidence, that the occupants of the sleigh in question were driving 
 along the street in such a position that they were likely to be injured 
 by the defendant's car, the motorman in charge of the defendant's 
 car was bound to use ordinary care to prevent such threatened injury, 
 if he knew, or by the exercise of ordinary care might have known, of 
 the danger, and if by the use of ordinary care he might have avoided 
 it, yet if the jury believe from the evidence that the said sleigh was 
 driven in front of the ear so suddenly that the said motorman had no 
 such notice of any danger to the occupants of said sleigh as to give 
 such motorman an opportunity to avoid the danger by the exercise of 
 such presence of mind and of such ordinary care as is to be expected 
 from men of ordinary coolness and prudence under such circumstances 
 as were then suiTounding him, and if the jury further believe from 
 the evidence that at the time of the accident and prior thereto the 
 car of the defendant was being operated with ordinary care, then the 
 plaintiff has no right to a verdict in her favor.*^ 
 
 (f) You are instructed that while the plaintiff had the right to 
 use the street, and any and all parts of it, as might be necessary in 
 traveling thereon, yet the defendant in operating its cars on a fixed 
 track, is not expected nor required to turn out for persons occupying 
 its tracks, but so far as passage along its tracks is concerned, it has 
 the superior right of passage, and men driving horses must turn out 
 and allow the cars to pass.'*'' 
 
 (g) If you further find from the evidence that there was no 
 obstruction in the way to prevent the motonnan from seeing S. as he 
 drove out of B. avenue and drove along V. street, and S. drove upon 
 the track at 'a distance far enough ahead of the ear, which was being 
 operated by A., the motorman, to have enabled any ordinarily careful 
 person to have stopped his car, if need be, to avoid a collision, where 
 the motorman had been on the lookout and had his car under con- 
 trol, then the court charges you that it was negligence on the part 
 of A., the motorman, to have collided with S., the wagoner, and what- 
 ever injuries S. received in consequence of such injuries he has the 
 right to recover for; the jury are instructed in this connection that a 
 motorman has a right to assume that a person who is upon the track 
 and apparently capable of taking care of himself will leave it before 
 
 instruction was asked by the de- struck the waggon and the plaintiff 
 fendant and refused and because was thrown out and injured." 
 of such refusal the judgment was 44 — Doolin v. Omnibus C. Co., 140 
 reversed. In that case the wagon Cal. 369, 73 Pac. 1060 (1061). 
 in which the plaintiff was, and the 45— West C. St. R. Co. v. Pet- 
 street car, were upon the same ters, 95 111. App. 479 (482), aff'd 196 
 track, going the same way. the car 111. 298. 63 N. E. 662. See also 
 behind the wagon. The driver at- W. C. St. R. Co. v. Kautz, 89 III. 
 tempted to turn his horse and App. 309. 
 
 wagon from the track and while 46 — Met. St. R. Co. v. Rouch, 66 
 
 the hind wheels of the wagon were Kans. 195, 71 Pac. 257. 
 still on or near the track, the car
 
 § 2093.] NEGLIGENCE— STREET RAILROADS. 1367 
 
 the ear reaches him, and that the motorman can indulge in this pre- 
 sumption until the danger of a collision becomes imminent."*^ 
 
 § 2093. Street Crossings — Pedestrians, (a) The court instructs 
 the jury that a traveler upon a street crossing, desiring to cross the 
 street car track there situate, has not the same right to require the 
 speed of a car to be slackened, to enable him to pass over the track, 
 as the person in charge of the car has to require him to give way to 
 allow the car to pass. 
 
 (b) It is as much his duty, as a matter of law, to see an approach- 
 ing car which is in plain sight and in dangerous proximity to the 
 crossing, and not to negligently place himself in the way of it, as it 
 is to look for the car. Testimony of a person or any number of per- 
 sons that he or they, when approaching a street car track with a 
 view of crossing it, looked along the track for a coming car, and did 
 not see one, although a car was in plain sight, and so near the point 
 of observation as to render'an attempt to cross the track in front of 
 it dangerous, is inconsistent with all reasonable probabilities.*^ 
 
 (c) The court instructs the jury that if they believe from the evi- 
 dence that the employes of defendant in charge of the car in question 
 used ordinary care in the management of said ear at and near the 
 place where the deceased, A., was injured, and that as soon as they 
 saw the deceased. A., in a position of danger, or by the exercise of 
 ordinary care might have seen that he was in danger, they used such 
 care and caution in stopping said car to avoid injury to said deceased, 
 A., as a person of oi'dinary care and prudence would have exercised 
 
 47_Citizens' R. Co. v. Shepherd, diligence and care to cross over 
 
 107 Teiin. 444, 64 S. W. 710. the defendant's said tracks and 
 
 48— Lightfoot v. Winnebago T. get off the same so as to avoid a 
 
 Co., 123 Wis. 479, 102 N. W. 30 (32). collision; and if they further be- 
 
 The court further instructs the lieve, from the evidence, that the 
 
 jury that, if they believe, from the defendant's servants and agents 
 
 evidence, that the said C, deceased, who were managing said car saw 
 
 attempted to cross over the de- the said C, or by the exercise of 
 
 fendanfs tracks at or near M. ave- ordinary care could have seen him, 
 
 nue, in the city of , on or in time, after he started to cross 
 
 about the of , as al- said tracks, to have slowed up its 
 
 leged in the plaintiffs declaration said car and have prevented said 
 
 or some count thereof, and that collision, then it was their duty to 
 
 while crossing over the same he have done so, and a failure to per- 
 
 was struck by one of the defend- form such duty would be negli- 
 
 ant's cars, and was injured there- geuce upon the part of defendant's 
 
 by. and that at the time he at- agents as would render the defend- 
 
 tempted to cross the same he saw ant liable, provided they further 
 
 defendant's car coming along said believe, from the evidence, that a 
 
 tracks, and that a reasonably pru- failure to check the speed of said 
 
 dent man would have reason to car was the proximate cause of 
 
 believe, from the distance said car said injury, and that the plaintiff's 
 
 was away, there was sufficient intestate was in the exercise of 
 
 time to cross over said tracks safe- due care for his own safety at and 
 
 ly before said car would reach before the time of the collision, 
 
 the place where the deceased was In W. C. St. R. Co. v. Foster, 175 
 
 attempting to cross; and if they 111. 396 (.398), 51 N. E. 690, aff'g <4 
 
 further believe from the evidence. HI. App. 414. the court m comment 
 
 that the ^aid C deceased, acted on above said: "This instruction is 
 
 upon the belief and was using due objectionable in some respects, in-
 
 1368 FORMS OF INSTRUCTIONS. [§ 2094. 
 
 under like and similar circumstances, then the verdict of the jury- 
 must be for the defendant.-*^ 
 
 § 2094. Street Crossings — Vehicles Crossing Track, (a) The court 
 instructs the jury that neither the defendant for the operation of its 
 ears, nor the plaintiff for crossing the street had the exclusive right 
 to the use of T. avenue at its intersection with S. street west. Neither 
 had a superior right over the other, and each would be obliged, in so 
 far as the undertaking in which each was engaged and the car or 
 vehicle each was using would reasonably permit, to take reasonable 
 precaution to avoid collision each with the other.^° 
 
 (b) It is the duty of the defendant, by its agents or servants, to 
 use reasonable care to see vehicles which may be passing across its 
 tracks ; and if you believe from the evidence that the motorneer of 
 
 the defendant did not use ordinary care to observe while he 
 
 was passing across the track of the defendant upon a public street, 
 and that if said motorneer had used such ordinary care, he could 
 have seen the carriage in time to have stopped his car or slackened 
 
 its speed, so as to have avoided injury to said carriage and and 
 
 , and that the plaintiff, while using ordinaiy care, was injured 
 
 as charged in the declaration on account of such neglect, the jury 
 must find a verdict for the plaintiff.^^ 
 
 (c) The court instructs the jury that if they believe from all the 
 evidence that the agents or servants of the defendant corporation at 
 the time of the injuries to plaintiff, carelessly and negligently ran 
 said car or ears upon plaintiff's team, and that by the exercise of 
 ordinary care they could have avoided doing so, and that such negli- 
 gence, and not negligence on the part of the plaintiff, was the cause 
 of the injuries to plaintiff, they should find for the plaintiff.^^ 
 
 (d) If the jury shall find from the evidence that both the motor- 
 man and the plaintiff supposed that the plaintiff would be able to get 
 across the track without being struck by the ear, and that in so 
 doing they both erred in their judgment in respect to the matter, 
 and that the accident was due to such error in judgment on their 
 part, then the plaintiff can not recover, and their verdict must be for 
 the defendant.'*^ 
 
 form, but not seriously so. In 49— Holverson v. St. L. St. R. 
 
 substance it tells the jury that if Co., 137 Mo. 216, 57 S. W. 770. 
 
 they believe the plaintiff's intes- 50 — Stanley v. Cedar R. & M. C 
 
 tate was injured in a certain man- R. Co., 119 Iowa 526, 93 N. W. 489 
 
 ner, while he himself was in the (492). 
 
 exercise of due care and caution, 51 — Springfield C. R. Co. v. Clark, 
 
 and if they believe the defendant's 51 111. App. 626 (632). 
 
 servants did or omitted to do cer- 52 — Twelkemeyer v. St. Ij. T. Co., 
 
 tain things, the plaintiff is entitled 102 Mo. App. 190, 76 S. W. 682 (684), 
 
 to recover. Either party is en- 11 L. R. A. 323. 
 
 titled to have the jury instructed 53 — Holmstrom v. Oldham Bank, 
 
 as to his theory of the case." 69 111. App. 110 (112). 
 
 See the exhaustive comment on a The court instructs the jury that 
 
 like instruction in Snyder v. Peo- the rights of plaintiff and defend- 
 
 ple's Ry. Co., Del. , 53 Atl. ant to travel in the street in ques- 
 
 433. tion were equal. It was also the
 
 § 2095.] NEGLIGENCE— STREET RAILROADS. 1369 
 
 § 2095. Street Crossings — Fire Engines Crossing Track, (a) If 
 the jury find and believe, from the evidence, that G. and S. streets 
 
 were, on the day of , open public streets within the 
 
 city of St. L. ; and if the jurj- further find and believe, from the evi- 
 dence, that at said time the defendant was using the tracks, railway 
 and ear mentioned in the evidence for the purpose of transporting 
 persons for hire from one point to another in said city, as a street 
 
 railroad operated by electricity, and that on said day was 
 
 plaintiff's husband, and an employe of the fire department of the city 
 of St. L., and was discharging his duty therein as the driver of a fuel 
 wagon, said fuel wagon being at the time a part of the fire apparatus 
 of said department and then being used in the business of said depart- 
 ment, and that plaintiff's said husband was at said date driving the 
 horses attached to said fuel wagon along G. street, going in a west- 
 wardly direction; and if the jury further find and believe, from the 
 evidence, that while plaintiff's said husband was so driving the horses 
 attached to said fuel wagon along G. street, and across S. street at 
 its intersection with G. street, defendant's car ran into and collided 
 
 with said wagon, causing the said to be thrown from said 
 
 wagon and injured to such an extent as to cause his death; and if 
 the jury fm-ther find and believe, from the evidence, that defendant's 
 agents, servants or employes in charge of and operating said car 
 either saw, or by keeping a vigilant watch for vehicles moving toward 
 the track upon which said car was being propelled could have seen, 
 said horses and fuel wagons moving toward and across said track and 
 in danger of injury, and that after seeing said horses and fuel wagons 
 moving toward said track, or, after they could have seen by keeping 
 a vigilant watch as aforementioned, defendant's ag'ents, servants and 
 employes, or either of them, could by stopping said ear within the 
 shortest time and space possible under the circumstances, have averted 
 said collision and injury, and neglected to do so; and if the jury find 
 
 and believe, from the evidence, that said exercised ordinary 
 
 care and prudence in driving toward and across said track, — then your 
 verdict should be for the plaintiff. 
 
 (b) The court instructs the jury that by the terms of the ordi- 
 nance (No. ) read in evidence, the defendant's motorman, con- 
 ductor or other persons in charge of its car mentioned in evidence, 
 were bound to keep a vigilant watch for vehicles moving toward de- 
 fendant 's track, and upon the first appearance of danger to such 
 vehicle the person or persons in charge of said car were bound to 
 
 duty of the servants of the defend- were exercising reasonable care for 
 
 ant to take notice of the ordinary their own safety, and who were 
 
 use to which said street was put about to cross the tracks would be 
 
 by the traveling public, and it was warned of the approach of the car 
 
 also their duty to expect that ve- by the ringing of bells or other 
 
 hides would be driven across the necessary warning, 
 
 tracks in front of approaching Above instruction approved in 
 
 cars, and to keep a vigilant look- Burns v. Met. St. R. Co., 66 Kan. 
 
 out for such travelers, and so to 188, 71 Pac. 244 (246). 
 operate the cars that persons who
 
 1370 FORMS OF INSTRUCTIONS. [§2096. 
 
 stop said ear within the shortest time and space possible, and a 
 failure to keep such vigilant watch, and to stop said car (if you find 
 from the evidence that defendant's servants, agents or employes did 
 so fail) was negligence upon the part of defendant. 
 
 (c) The court instructs the jury that by the terms of ordinance 
 No. , read in evidence, the person or persons in charge of de- 
 fendant's car mentioned in the evidence were required to give to the 
 
 fuel wagon driven by (if you find from the evidence that said 
 
 fuel wagon was a part of the fire apparatus of the city of ), the 
 
 right of way upon the street over which it was passing (if you find 
 from the evidence said fuel wagon was going upon said street in re- 
 sponse to an alarm of fire) ; and if, from the evidence, you find that 
 the person or persons in charge of said car either carelessly or wan- 
 tonly obstructed or interfered with said fuel wagon while going to a 
 fire, such conduct on the part of said person or persons is negligence 
 on the part of defendant. 
 
 (d) The court also instructs the jury that it was the duty of 
 
 the deceased, , to exercise ordinary care upon his part to 
 
 make use of his faculties on approaching the crossing of defend- 
 ant's track; that, whether the servants operating defendant's car 
 
 by electricity gave signals or not, it was the duty of to 
 
 look and listen before driving on defendant's track, and if, from 
 the evidence, the jury believe that failed to exercise or- 
 dinary care, and failed to look and listen, and thereby directly 
 contributed to the wagon and defendant's car coming into contact 
 
 and causing the injuries which produced said 's death, then 
 
 their verdict should be for the defendant company. 
 
 (e) The court also instructs the jury that if, from the evidence, 
 they believe that the motorman of the ear had no warning, nor 
 could have know^n thereof by keeping a vigilant watch, as indi- 
 cated in other instructions given, regard being had to the circum- 
 stances and surroundings, until both the ear and the wagon had 
 reached the intersection of S. and G. streets, and the jury also 
 believe that the wagon and car were then both going at such speed 
 that it was impossible for defendant's motorman to avoid a col- 
 lision between them, then the jury should find a verdict for the 
 defendant.'""'* 
 
 (f) The court instructs the jury that it was the duty of the 
 defendant to give audible signals of the approach of its cars, and 
 that nonperformance of this duty was evidence of negligence on 
 the part of the defendant, and that, if the evidence satisfied the 
 jury that a failure to give signals was the proximate cause of the 
 injury complained of, that was actionable negligence.^'^ 
 
 § 2096. Collision with Other Street Cars, (a) The court instructs 
 the jury that it was the duty of the defendant company in the 
 
 54— Guinney v. Southern E. Co., 55— Cons. T. Co. v. Chenowith, 61 
 167 Mo. 595, 67 S. W. 296. N. J. L. 554, 35 Atl. 1067 (1068).
 
 §2097.] NEGLIGENCE— STREET RAILROADS. 1371 
 
 operation of its ears to use ordinary care to prevent collision, and 
 to observe that provision of the city ordinance which give to the 
 east and west bound ears the right of way at intersecting points 
 over north and south bound cars. It was at the time the duty 
 of the plaintiff in the operation of the east bound car to exercise 
 for his own protection ordinary care to avoid collision, and not- 
 withstanding his right of way, because of his being on an east 
 bound ear, it was his duty to avoid collision if he saw danger 
 ahead, or in the exercise of ordinary care would have seen danger, 
 in time to have stopped his car or otherwise have averted the acci- 
 dent; and if you believe from the evidence plaintiff failed to exer- 
 cise such care or perfonn such duty, and that such failure in any 
 way contributed to his injury, then he is not entitled to recover, 
 (b) By "ordinary care" is meant such care as a person of 
 ordinary prudence would, under the same or similar circumstances, 
 exercise. The absence of such care is negligence. If, therefore, 
 from the evidence, you believe that the defendant company operated 
 
 upon a public open street of the car which collided with 
 
 the car of the Company, and that in its operation at the 
 
 time of the accident the defendant company, by its servants or em- 
 ployes in charge of said car, failed to give the east-boujnd car the 
 right of way, and negligently ran its car so as to collide with 
 the east-bound car, and that by reason of such collision the plain- 
 tiff was injured, and that he was himself at the time of the acci- 
 dent exercising ordinary care for his own protection as herein 
 defined, then your verdict should be for the plaintiff. The burden 
 of proving any negligence of defendant or failure to obsen'e the 
 city ordinance regarding the right of way is upon the plaintiff 
 throughout the entire case to establish it by a preponderance or 
 greater weight of the testimony. The burden of so proving any 
 contributory negligence on the part of the plaintiff is upon the de- 
 fendant.^^ 
 
 § 2097. Collision with Persons on or Near Tracks, (a) The 
 court instructs the jury, as a matter of law, that if they believe 
 from the evidence that eveiything was done that could be done 
 by the defendant 's servants to stop the car as soon as they saw, 
 or by the exercise of ordinary care could have seen, the danger of 
 the plaintiff, then the jury should find the defendant not guilty.^'^ 
 
 (b) The law of this ease is, and the court so instructs you, that 
 it was the duty of the motorman in charge of the defendant's car 
 on S. street, near L. Place, to run his car at a reasonable rate of 
 speed, and to keep a lookout, and to keep his car under reasonable 
 control at such place as he might reasonably expect persons to be 
 
 56 — McLain v. St. L. & S. R. instruction was rightfully asked by 
 
 Co.. 100 Mo. 374, 73 S. W. 909 (912). appellant, and that the refusal of 
 
 57 — West C. St. R. Co. v. Camp, the trial court to ^ve it was such 
 
 46 111. App. 503 (504). error as to demand a reversal of 
 
 The court says that the above the judgment.
 
 1372 FORMS OF INSTRUCTIONS. [§ 2098. 
 
 on the track of said ear, and to exercise ordinary care for the 
 safety of persons using the track or street; and if you further be- 
 lieve from the evidence in this case that the motorman in charge 
 of this ear, which collided with the deceased and killed her, negli- 
 gently failed in any of these particulars that I have just announced 
 to you, and that by reason of such failure the deceased^, E., was 
 killed, then the law is for the plaintiff, and you should so jfind. 
 
 (c) But unless you believe from the evidence that the motor- 
 man in charge of defendant's car negligently failed in some of the 
 particulars which I have announced to you, and that E. was killed 
 as a result of such negligent failure on the part of the motorman, 
 then the law is for the defendant, and you should so find.^^ 
 
 § 2098. Same Subject— Child Run Over by Car— Series, (a) The 
 jury are instructed that if they believe and find from the evidence 
 that plaintiffs are the parents of B., deceased; that said deceased 
 at the time of his death was a minor, unmarried and of the age 
 of seven years; and that defendant on and prior to about the 
 day of , was engaged in the business of transport- 
 ing passengers, for hire, from one point to another within the city 
 of St. L., by a street railway, and for that purpose used and op- 
 erated its railway, and a certain gripear and trailer composing the 
 train ; and if the jurors further believe and find from the evidence 
 that Morgan street at said time was an open public street of the 
 city of St. L. at the place hereinafter mentioned ; and if the jurors 
 
 further believe and find from the evidence that on the of 
 
 that said child was in said M. street, at a point at or near the 
 
 crossing on the east side of T. street, and whilst on said street at 
 said place he was run over by defendant's said gripear, and there- 
 by injured, and died from the effect thereof; and if the jurors 
 further believe and find from the evidence that defendant's grip- 
 man in charge of said gripear just before and at the time of so 
 running over and injuring said child was not keeping a vigilant 
 watch for all persons on foot, especially children, either on its 
 said track, or moving towards it, or that said gripman did not stop 
 said gripear in the shortest time and space possible, under the 
 circumstances, upon the first appearance of danger to said child; 
 and if the jurors further believe and find from the evidence that 
 s'aid gripm'an, by the keeping of such vigilant watch, would have 
 seen said child moving towards the track, or upon the track and 
 in danger, and could, in the exercise of ordinary care, by so stopping 
 said gripear in the shortest time and space possible under the cii'- 
 cumstanees, have averted the injury from said child ; and if the 
 jurors further believe and find from the evidence that plaintiffs exer- 
 cised ordinary care in the custody of said child, in keeping it from 
 being exposed to said injury, according to their condition in life, 
 and that said child exercised the degree of care which is reasonably 
 to be expected from a child of his years and experience under the 
 
 58— Eirk's Adm'r v. Ry. Co., — Ky. — , 98 S. W. 293.
 
 §2098.; 
 
 NEGLIGENCE— STREET RAILROADS. 
 
 1373 
 
 eireumstanees, — then your verdict should be for the plaintiff, and, 
 if you find for the plaintiffs, you will assess their damages in the 
 sum of not exceeding five thousand dollars. 
 
 (b) The jurors are instructed that if the defendant was engaged 
 in the business of transporting passengers, for hire, from one point 
 
 to another within the city of St. L., on or about the day of 
 
 , then, by Ordinance No. 17188, read in evidence, it became 
 
 the duty of the gripman in charge of the gripcar to keep a vdgilant 
 watch for persons on foot, especially for children, either on its track 
 or moving towards it, and, on the first appearance of danger to such 
 person or child, it was the duty of the griioman to stop the car in his 
 charge in the shortest time and space possible under the circum- 
 sitances. The court instructs the jury that the degree or measure 
 of care or caution which said infant child, B., was required to ex- 
 ercise, was that which is ordinarily exercised, and which is reason- 
 ably to be expected from a child of his years and exiDerience, under 
 the circumstances he was in, as shown by the evidence, and, before 
 the jury can find him guilty of contributoiy negligence, they must 
 find that he failed to exercise such care or caution as might reason- 
 ably be expected of a child of his years and experience under the 
 circumstances; and the burden of proving contributory negligence 
 is on the defendant to establish by a pi-eponderance of the evi- 
 denee.^^ 
 
 59 — Hogan V. Citizens' Ry. Co., 
 150 Mo. 473, 51 S. W. 473 (474). 
 
 The following- instructions were 
 approved in the same case, and, 
 together with the instructions in 
 the text, constitute a series. 
 
 The court instructs the jury 
 that in considering this case they 
 should not indulge in any mere 
 suppositions or imaginings as to 
 what may or may not have been 
 done or occurred at the time of the 
 occurrence, but must decide the 
 case upon the evidence of the wit- 
 nesses and the instruction of the 
 court. And the court further in- 
 structs the jury that they are the 
 sole judges of the credibility of tlie 
 witnesses and the weight to be 
 given to their testimony, and in 
 weighing the testimony the jury 
 should take into consideration, not 
 only what they have testified to, 
 but also their manner of testify- 
 ing, and their bias, if any is shown, 
 towards or against plaintiffs or 
 defendant, their ability at the time 
 to clearly see what occurred, and 
 now to clearly recall and relate the 
 facts; and, if the jury believe from 
 the evidence that any witness has 
 knowingly sworn falsely to any 
 material fact, then the jury may 
 disbelieve the whole or any part 
 of such witness' testimony. 
 
 The court instructs the jury 
 that, though there was a crowd of 
 people at the northeast corner of 
 M. and T. street, the gripman was 
 not required, under the allegations 
 of the petition and the law, to slow 
 down his train to one, two or three, 
 or four, or five, or six miles an 
 hour, or to stop it, or try to stop it, 
 before the rush of the people to- 
 wards the track; and the jury 
 must not impute any negligence to 
 the gi-ipman because he did not 
 stop, or try to stop, or was not 
 running very slowly, before the 
 rush of the crowd occurred, or the 
 first appearance of danger. 
 
 The court instructs the jury that 
 there is no evidence in this case 
 tending to prove the cars were be- 
 ing run at a greater rate of speed 
 than eight and one-half miles an 
 hour, and therefore the jury 
 should not consider the allegations 
 of negligence that the train was 
 being run at a greater rate of 
 speed than eight and one-half 
 miles an hour. And the court fur- 
 ther instructs you that if you ber 
 lieve from the evidence that as the 
 train was approaching Twelfth 
 street the gripman rang the bell, 
 and it could be heard at the north- 
 east corner of T. and M. streets, 
 then the court instructs you that
 
 1374 
 
 FORMS OF INSTRUCTIONS. 
 
 [§ 2099. 
 
 § 2099. Failure to Check Speed of Car When Danger Imminent 
 to Person on Track, (a) It is the duty of a motonnan in charge of 
 a street ear to exercise reasonable care and diligence to discover 
 any person or vehicle upon or near to the track in front of the car 
 which he is operating, and if he discovers a vehicle in charge of a 
 person upon said track, or so near as to be likely to be struck by 
 said ear, and he has reason to believe that said person is uncon- 
 scious of his danger, or unable to avoid it, it is his duty to use every 
 reasonable effort to stop the car, and if in such case he causes or 
 permits said car to run with unabated speed, and without effort to 
 check or stop the same, until it runs into and strikes said vehicle, 
 destroying it, injuring the horses attached to it, and the pei*son in 
 charge of it, the company would be guilty of negligence, and a re- 
 covery could be had for any injuiy sustained.^'' 
 
 (b) If you find from the evidence that upon the day and at the 
 time of the accident, it was clear, and the view at the point where 
 
 he performed his whole duty un- 
 der the alleg-ations of negligence 
 in that regard, and under the law, 
 and he was not required to be 
 ringing it as he was crossing T. 
 street and approaching the east 
 crossing, and you must find that 
 allegation of negligence concern- 
 ing the not ringing of the bell in 
 favor of the defendant. And the 
 court further instructs you that 
 all the evidence in this case shows 
 that the child, B., was on the pave- 
 ment, in the crowd, and if the 
 jury believe from the evidence that 
 the gripman and conductor were 
 keeping a vigilant watch for all 
 persons on foot, especially chil- 
 dren, as mentioned in these in- 
 structions, as the train was cross- 
 ing T. street and approaching the 
 east crossing, and that as soon as 
 the crowd surged or rushed to- 
 wards the track the gripman 
 stopped the train in the shortest 
 time and space possible under the 
 circumstances, then your verdict 
 must be for the defendant, not- 
 withstanding the gripman did not 
 notice the boy as he ran from the 
 pavement and onto the track, or 
 thereafter. 
 
 The court further instructs the 
 jury that an accident may happen, 
 and a person be injured or killed 
 therein, that is not caused by the 
 negligence of any person connected 
 therewith; and if the jury believe 
 from the evidence that the death 
 of the child, B., was the result of 
 such mere accident or misadven- 
 ture, then your verdict must be for 
 the defendant. 
 
 The court Instructs the Jury that 
 
 while the child, B., was required 
 to use only such care and caution 
 as could be reasonably expected of 
 a child of his years and experi- 
 ence, nevertheless he was required 
 to use such care and caution; and 
 if the jury believe from the evi- 
 dence that he did not do so, and 
 was himself negligent in running 
 right in front of and close to the 
 car, and his being run upon by the 
 car was the result of his negli- 
 gence, in not exercising such care, 
 then the jury will find their ver- 
 dict for the defendant. 
 
 The court instructs the jury 
 that, under the pleadings and evi- 
 dence, no want of care or negli- 
 gence can be imputed to the de- 
 fendant because it did not have 
 other or different appliances about 
 its gripcar than it had, and there- 
 fore the jury must not consider 
 that matter at all. 
 
 60— Indianapolis T. & T. Co. v. 
 Smith, — Ind. App. — , 77 N. E. 1140 
 (1143). 
 
 "The above instruction as an en- 
 tirety correctly states the law. We 
 are unable to see anything in it 
 that assumes that the car could 
 have been stopped. It is the the- 
 ory and contention of appellee 
 that the motorman could, by the 
 exercise of reasonable care, have 
 seen the wagon by reason of the 
 light from the electric light and 
 the headlight of the car. 
 
 "Upon the point of omitting from 
 the instruction the question of ap.. 
 pellee's contributory negligence 
 does not render the instruction er- 
 roneous when construed in connec- 
 tion with the other instructions."
 
 §2099.] NEGLIGENCE— STREET RAILROADS. 1375 
 
 it occurred was unobstnacted, so that the motorman could have seen 
 plaintiff's wagon, on or near the track, if he had exercised ordinary 
 diligence, and further find that the motomian had knowledge of the 
 conditions existing at the place of the collision, and that he could 
 have seen the plaintiff's peril in time to have stopped the car and 
 prevented the accident, by the exercise of reasonable care, then I 
 instruct that his failure to do so, thus causing the injury, would 
 constitute negligence upon the part of the company defendant, and 
 you should find for the plaintiff, unless you further find that plaintiff, 
 by his own negligence, caused or contributed to the injury com- 
 plained of.*'^ 
 
 (c) It is the duty of a motoimam, running and operating a 
 street car along and upon the street of a city to have it under such 
 control that it may be stopped within a short distance, if occasion 
 requires. From his failure to exercise reasonable care in that re- 
 gard, negligence may be inferred. It is also the duty of a motorman 
 to exercise the highest degree of care to avoid injury to a person 
 after discovering his peril. If you find from a preponderance of 
 the evidence that on , 190 — , the defendant company was run- 
 ning and operating a line of railway along and upon I. avenue, in 
 the city of C, having double tracks thereon; that at a point near 
 where said line of railway intersects B. street said I. avenue is nar- 
 row, said street being 60 feet wide, and no more; that at said time, 
 and at said place on said street, and on the southwest side of said 
 street, thei'e was a ditch II/2 feet deep and 5 feet wide which was 
 filled with water, snow, and ice, and was in a dangerous and unsafe 
 condition to drive upon or over with a vehicle, and there was not 
 sufficient space between said ditch and the tracks of defendant's 
 railway for a person to drive with ,a vehicle, without obstructing said 
 street cars; that said company and its employes had full knowledge 
 of the condition of said street, and of the dangerous condition of 
 said ditch for the passage of vehicles; that on , 19 — , plain- 
 tiff, in the transaction of his business, was driving a horse and 
 loaded wagon along I. Ave.; that before he reached or entered upon 
 said narrow place he stopped, and looked to see if any car was in 
 sight or approaching; that there was none; that thereupon he drove 
 carefully along a narrow space, the wheel of his wagon being upon 
 said track or very near to it, that as he was so driving, he saw one of 
 the defendant's cars ai^proaching from the northwest running at a 
 high and dangerous speed; that he was in plain view of said car 
 and there was nothing to prevent the conductor and motorman in 
 charge of said car from seeing him or his wagon in the perilous 
 
 61— Indianapolis T. & T. Co. v. fairly state the law applicable to 
 
 Smith, Ind. App. , 77 N. E. the facts that we do not deem 
 
 1140 (1144). it either necessary or important to 
 
 "This instruction, of which ap- take up the objections and discuss 
 
 pollant complains and against them separately. The instruction 
 
 which counsel urg^e some objec- is a correct statement of the law." 
 tions, seems to us to so clearly and
 
 1376 FORMS OF INSTRUCTIONS. [§2100. 
 
 situation in which he was ; that no warning was given ; that the speed 
 of said ear was not lessened, nor was said ear stopped nor at- 
 tempted to be stopped; that plaintiff endeavored to drive out of the 
 way and avoid said ear, but could not do so; that said car was negli- 
 gently run against his said wagon, overturning it and throwing it 
 in the ditch; plaintiff was thrown to the ground; his leg was broken 
 and he was otherwise injured, as in complaint set out, then I in- 
 struct you that you should find for the plaintiff, unless you should 
 further find that plaintiff, by his own negligence, contributed to the 
 injury.62 
 
 § 2100. Contributory Negligence of Persons Other Than Passen- 
 gers or Employes — In General, (a) The court instructs the jury, 
 if you believe from the evidence that plaintiff was guilty of negli- 
 gence, and that this negligence combined with the negligence of 
 defendant to produce the accident, so that both acts together con- 
 stituted the proximate cause of the injury, then the negligence of 
 the plaintiff, however slight, would bar a recovery, and you should 
 find for the defendant.^^ 
 
 (b) If the jury believe, from the evidence, that the sole efficient 
 cause of the injury to the plaintiff was the negligent manner in 
 which plaintiff's horse was driven at the time and place in question, 
 if you believe from the evidence said horse was negligently driven, 
 then you should find the defendant not guilty."* 
 
 (c) If you find from the evidence that the plaintiff's injuries, if 
 any, were directly and proximately caused by the negligence, if any, 
 of the defendant, as explained to you in the second and third in- 
 structions, then it is your duty to .ascertain and determine whether 
 the plaintiff was himself, at and previous to the time of receiving 
 
 62— Indianapolis T. & T. Co. v. quences of negligence will probably 
 
 Smith, Ind. App. , 77 N. be serious injury to others, and 
 
 E. 1140 (1143). where the means of avoiding in- 
 
 "Assuming that there was evi- fliction of injury to others is com- 
 
 dence tending to support all of the pletely within the party's power, 
 
 facts to which the court referred ordinary care requires almost the 
 
 in this instruction, we do not think utmost degree of human vigilance 
 
 there was any error in directing and foresight." 
 
 the jury that under such facts 63— Memphis St. R. Co. v. 
 
 the motorman was charged with Haynes, 112 Tenn, 712, 81 S. W. 374 
 
 the exercise of the highest de- (380). 
 
 gree of care. In Lake Erie, etc., "The instruction stated a correct 
 
 Co. V. Juday, 19 Ind. App. 436, 49 rule of law, and should have been 
 
 N. E. 843, the question under con- given to the jury. Memphis St. R. 
 
 sideration was embraced in the Co. v. Wilson, 108 Tenn. 618, 69 S. 
 
 quotation from that case which W. 265; Nashville St. R. Co. v. 
 
 appears in a former part of this Norman, 108 Tenn. 331, 67 S. W. 
 
 opinion. In the case of Gagg v. 479; Saunders v. R. R., 99 Tenn. 
 
 Vetter, 41 Ind. 242, 13 Am. Rep. 13.^, 41 S. W. 1031; Barr v. R. R., 
 
 322, the court quoted from Kelsey lOf) Tenn. 547. 58 S. W. 849." 
 
 v. Barney, 12 N. Y. 425, and ap- 64— N. C. St. R. Co. v. Smadraff, 
 
 proved the following: Under the 89 111. App. 411 (416), aff'd 189 111. 
 
 same circumstances a very high 155, 59 N. E. 527. See also Chi. U. 
 
 degreo of vigilance is demanded, T. Co. v. Leach, 117 III. App. 169 
 
 even under the requirements of or- (173), aff'd 215 111. 184, 74 N. E. 119. 
 dinary care. Where the conse-
 
 § 2100.] NEGLIGENCE STREET RAILROADS. 1377 
 
 his injuries, if any, exercising such ordinary care as a man of 
 reasonable caution and prudence would have exercised under like 
 circumstances; and if you find that his failure so to do directly 
 contributed to his injuries, if any, then your verdict should be for the 
 defendant; and upon the issue of the exercise of ordinaiy care by the 
 plaintiff the burden of proof is upon him to establish the same to your 
 satisfaction by a fair preponderance of the evidence.*'^ 
 
 (d) But if you find that the plaintiff by any act or omission on 
 his part was guilty of negligence as hereinbefore defined and that 
 such negligence directly contributed in causing the collision and in- 
 juries, if any, then you will find for the defendant, regardless of 
 whether or not it or its servants were also negligent."^ 
 
 (e) It was the duty of the deceased, E., to exercise that degree 
 of care which persons of her age, experience, and intelligence usually 
 exercise for her own safety in using the street, and although you 
 may believe from the evidence that the motorman in charge of the 
 car was negligent, as submitted to you by another instruction, yet, 
 if you further believe from the evidence that E. failed to exercise 
 that degree of care, to wit, such care as persons of her age, experi- 
 ence, and intelligence usually exercise under like or similar circum- 
 stances, and that such failure on her part so contributed to bring 
 about her injury that but for such failure she would not have been 
 injured, then the law is for the defendant, and you should so find.*'^ 
 
 (f) The court instructs the jury that if, from the evidence, they 
 believe that both the plaintiff and the servant of defendant operating 
 said defendant's car were guilty of negligence, and that plaintiff's 
 negligence directly contributed to the accident, then the verdict 
 should be for the defendant.^^ 
 
 65— Stanley v. Cedar R. & M. C. the danger that a person of ordi- 
 
 R. Co., 119 Iowa 526, 93 N. W. 4S9 nary prudence, caution and intel- 
 
 (491). ligence would usually exercise un- 
 
 The court instructs the jury that der the same or similar circum- 
 
 while it is true that if the plaintiff stances, then you should find that 
 
 was guilty of contributory negli- the plaintiff was not guilty of con- 
 
 gence, that fact alone would re- tributory negligence, 
 
 lieve the defendant company from Approved in Chi. U. T. Co. v. 
 
 all liability, yet in order to find Chugren, 110 111. App. 545 (546-7), 
 
 the plaintiff guilty of contributory Justice Ball holding that the use 
 
 negligence j'^ou must believe from of the word "usually" was equiv- 
 
 the evidence that the plaintiff alent to "ordinary." But see C. C. 
 
 failed to exercise that care merely Ry. Co. v. Schonler, 111 111. App. 
 
 which the law requires, and he 470 (472), where Justice Stein holds 
 
 is only required by law, to exer- in a similar instruction that the 
 
 cise such care and foresight as an use of the word "usually" was re- 
 
 ordinarily prudent man possessing versible error. 
 
 ordinary intelligence would exer- 66 — Met St. R. Co. v. Rouch, 66 
 
 cise under circumstances similar Kans. 195, 71 Pac. 257 (258). 
 
 to those surrounding the plaintiff 67 — Eirk's Adm'r v. Ry. Co., — 
 
 at the time of the alleged injury. Ky. — , 98 S. W. 293. 
 
 And if you believe from the evi- 68— Septowsky v. St. L. T. Co., 
 
 denre that the plaintiff in endeav- 102 Mo. App. 110, 76 S. W. S93 (697). 
 
 oring to cross over the tracks of The jury are instructed that by 
 
 said company and while on said the term "ordinary care and pru- 
 
 tracks, or either of them, exercised dence," as used in these instruc- 
 
 that care and foresight to avoid tions, is meant that degree of care 
 
 87
 
 1378 FORMS OP INSTRUCTIONS. [§2101. 
 
 § 2101. Rule That Burden of Proof is on Defendant to Prove 
 Contributory Negligence. The jurors are instructed that negligence 
 cannot be presumed, and the burden of proof is upon the plaintiff 
 to establish by the preponderance or greater weight of the evidence 
 the facts necessary to a verdict in his favor under these instructions. 
 And the jurors are further instructed that, while the burden of proof 
 is upon the defendant to prove the contributory negligence of the 
 plaintiff alleged, yet this does not relieve the plaintiff from proving 
 by a preponderance or greater weight of the evidence that the in- 
 juries alleged and complained of were caused solely by the negli- 
 gence of the defendant's servants in charge of said ear. The burden 
 remains upon the plaintiff throughout the entire case, and if the 
 jurors believe and find from the evidence that the alleged injuries 
 were caused by plaintiff driving in front of said oar so close that the 
 motorman in charge thereof was unable by the use of ordinary care 
 to stop the same in time to avoid the collision, or if you believe that 
 the alleged injuries were caused by the combined or concunring negli- 
 gence of the plaintiff and defendant's servants in the particulars 
 set out in these instructions, or if you believe that the alleged in- 
 juries were due to an accident or misadventure for which neither 
 party is responsible, then the plaintiff is not entitled to recover and 
 your verdict must be for the defendant.*® 
 
 § 2102. Same Subject — Rule as to Children, (a) The court in- 
 structs the jury that the conduct of an infant is not of necessity to 
 be judged by the same rules which govern that of an adult; that 
 while it is the general rule in regard to an adult or grown person 
 that, to entitle him or her to recover damages for an injuiy result- 
 ing from the fault or negligence of another, he or she must have 
 been free from fault, such is not the rule in regard to an infant of 
 tender years. The care and caution required of a child is according 
 to its maturity and capacity wholly, and this is to be detennined by 
 the circumstances of the ease and the evidence before the jury, and 
 the law presumes that a child between the ages of 7 and 14 cannot 
 be guilty of contributory negligence, and, in order to establish that 
 a child of such age is capable of contributory negligence, such pre- 
 
 that would be used by a person of not preponderate in favor of plain- 
 ordinary prudence under the same tiff, then the verdict should be for 
 or similar circumstances; and a defendant. 
 
 failure to exercise ordinary care as If, from the evidence, the jury 
 so defined is negligence. The bur- believe that both the deceased, G.. 
 den of proving that G. did not ex- and the servant of defendant op- 
 ercise ordinary care to avoid the erating its car, were equally guilty 
 collision and injury which resulted of negligence which directly con- 
 in his death is upon the defendant, tributed to the injury and death 
 The charge of negligence made of said G., then the verdict should 
 by plaintiff against defendant by be for the defendant, 
 this action must be proved to the Above instructions approved in 
 satisfaction of the jury by the pre- Guinney v. So. El. Co., 167 Mo. 595, 
 ponderance of the evidence. The 67 S. W. 296. 
 
 jury have no right to prosume neg- 69 — Freymark v. St. L. T. Co., 
 
 llgence, and, if the evidence does 111 Mo. App. 208, 85 S. W. 607 (608).
 
 § 2102.J 
 
 NEGLIGENCE— STREET RAILROADS. 
 
 1379 
 
 sumption must be rebutted by evidence and circumstances establish- 
 ing his maturity and capacity."" 
 
 (b) Upon the issue as to whether the deceased was guilty of neg- 
 ligence contributing to her death, such as will prevent the plaintiffs 
 from recovering in this case, the court instructs you that the law 
 
 requires all persons situated as deceased, , was, when and 
 
 before the accident happened, to exercise ordinary care and caution 
 to avoid injury to themselves, and that the absence of such care 
 and caution constitutes negligence. In determining, however, 
 
 whether the deceased, , was exercising such oare and caution, 
 
 the jury should take into consideration her age and capacity, since 
 the law requires of a child nine years old only such care and cau- 
 tion as might reasonably be expected of one of her age and capacity 
 under similar circumstances. If, therefoi'e, you find that the de- 
 ceased, , in going upon defendant's track, was using that 
 
 degi'ee of care which, in the ordinarj^ experience of mankind, was 
 to be expected of one of her age and capacity under similar circum- 
 stances, then she was not guilty of negligence, within the meaning 
 of the law and these instructions. The court further instructs you 
 
 70— Richmond T. Co. v. Wilkin- 
 son, 101 Va. 394, 43 S. E. 622 (623). 
 
 See also the three following in- 
 structions in the same use: 
 
 The court further instructs the 
 jury that if they believe from the 
 evidence that the plaintiff was in- 
 jured by jumping from a moving 
 electric car of the defendant, 
 whilst being propelled through the 
 streets of the city of R., and that 
 the plaintiff's act of jumping from 
 the car was caused by the orders 
 of the defendant's motorman or 
 conductor in charge of the car, 
 given while the car was in motion, 
 then they must find for the plain- 
 tiff, provided the jury shall believe 
 that the plaintiff, by reason of his 
 age and want of judgment and 
 discretion, was unable to exercise 
 care and caution to resist the or- 
 ders of the defendant's motorman 
 or conductor. The jury must be- 
 lieve from the evidence that the 
 conductor ordered the plaintiff to 
 get off, while the car was moving. 
 In such a threatening manner as 
 to intimidate the plaintiff, consid- 
 ering his age and capacity and 
 thereby caused him to jump from 
 said car. 
 
 The court instructs the jury that 
 if they believe from the evidence 
 that the plaintiff, W.. at the time 
 of the injury was a child of tender 
 years, and had boarded a car of 
 the defendant company whilst the 
 same was standing at the eastern 
 
 terminus of the defendant's road, 
 and that the agents and employes 
 of the defendant company Itnew, 
 or could have known by the exer- 
 cise of ordinary care, of his pres- 
 ence on said car, and that said 
 child was standing on the step of 
 said car, and that step, was a 
 place of danger for a child, 
 that it was the duty of the agents 
 or employes of said company to 
 take notice of the danger of the 
 plaintiff; and if they believe from 
 the evidence that the conductor 
 or motorman allowed the car to 
 start while the plaintiff occupied 
 such position, which action in per- 
 mitting the said plaintiff to remain 
 on the car resulted in the injury 
 to said plaintiff, then they shall 
 find for the plaintiff provided the 
 jury shall believe from the evi- 
 dence that the plaintiff, by reason 
 of his age and want of judgment, 
 and discretion, was not guilty of 
 contributory negligence as hereto- 
 fore defined in these instructions. 
 "The court instructs the jury 
 that, even if they may believe 
 from the evidence that the plain- 
 tiff was guilty of contributory neg- 
 ligence, that they are instructed 
 that still the plaintiff would be en- 
 titled to recover against the de- 
 fendant, if they believe from the 
 evidence that the servants and 
 agents of the defendant company 
 in charge of said car did not do all 
 they could to avoid the injury
 
 1380 
 
 FORMS OF INSTRUCTIONS. 
 
 [§ 2102. 
 
 that the burden of proving that the deceased, 
 
 -, was guilty 
 
 of negligence contributing to her death, is upon the defendant.'^^ 
 (e) The jury are instructed that although they may find from 
 the evidence that, at the time of the accident to the plaintiff, de- 
 fendant's train was running at a gi'eater rate of speed than five 
 miles an hour, that would not justify a recovery in this case in favor 
 of the plaintiff, unless the jury further find that the plaintiff taking 
 into consideration his age and experience and understanding, by 
 reason of the threatening language of the motorman had reasonable 
 ground for believing that the motorman intended to inflict physical 
 violence upon the plaintiff, or to eject him from the ear, or so ter- 
 rorized the plaintiff as to compel him against his will to jump fi-om 
 the oarJ- 
 
 after his danger was known, or 
 might have been known by the ex- 
 ercise of ordinary care. 
 
 71— Schmidt v. St. L. R. Co., 163 
 Mo. 645, 63 S. W. 834 (836). 
 
 The court, in its opinion, said: 
 
 "The objection offered to this is 
 that it assumes that the child was 
 9 years old. A fact which is really 
 in dispute should never be as- 
 sumed in an instruction, but a 
 minor point, about which there is 
 no dispute, which, though tech- 
 nically in issue, is virtually con- 
 ceded, may sometimes be assumed 
 without rendering the instruction 
 reversible error. In this case, the 
 only evidence as to the child's age 
 was given by her father, who said 
 she was 9 years old. There was 
 no question or contradiction of 
 that. She was spoken of by the 
 witnesses for defendant, as well as 
 for plaintiff, as a young child, and 
 "the little girl." fill through the 
 trial. The defendant refers to her 
 as such in the instructions it 
 asked. The exact age of the child 
 was not made a point of dispute, 
 and a year or two younger or older 
 would have made no difference in 
 the case." 
 
 72— Washington, etc., Ry. Co. v. 
 Quayle, 95 Va. 741, 30 S. E. 391 (393). 
 
 The four following instructions 
 are taken from the same case: 
 
 The jury are instructed that al- 
 though they may believe from the 
 evidence that the motorman called 
 to the plaintiff and his compan- 
 ions to get off the car, yet to en- 
 title the plaintiff to recover in this 
 action, the jury must believe that 
 said call of the motorman was of 
 such a threatening character as to 
 Justify the belief in the mind of 
 tho plaintiff, taking into consid- 
 eration his age, that the motorman 
 Intended to do him bodily harm, or 
 
 to eject him from the said car 
 while it was in motion and the 
 plaintiff through fear of such 
 threat jumped from the car and 
 was injured, and that the jury 
 must further believe that it was 
 within the scope and duty of said 
 motorman to order the plaintiff 
 to get off of said car. 
 
 The court further instructs the 
 jury that if they shall believe from 
 the evidence that the plaintiff was 
 injured by jumping from a moving 
 train of the defendant whilst be- 
 ing propelled through the streets 
 of the city of A., at the unlawful 
 rate of speed of from ten to twelve 
 miles per hour, and that the plain- 
 tiff's act of jumping from the train 
 was caused by the orders of the 
 defendant's motorman or conduct- 
 or in charge of the train, then they 
 may find for the plaintiff, provided 
 the jury shall believe that the 
 plaintiff by reason of his age and 
 want of judgment and discretion 
 was unable to exercise sufficient 
 care and caution to resist the or- 
 ders of the defendant's said motor- 
 man. 
 
 The court doth further instruct 
 the jury that the conduct of an in- 
 fant is not of necessity to be 
 judged by the same rule which 
 governs that of an adult; thai 
 while it is the general rule in re- 
 gard to an adult or grown person, 
 that to entitle him to recover dam- 
 ages for any injury resulting from 
 the fault or negligence of another, 
 he must have been free from fault, 
 such is not the rule in regard to 
 an infant of tender years; the care 
 and caution required of a child is 
 according to his maturity and ca- 
 pacity wholly, and this is to be 
 determined by the circumstances 
 of the case and the evidence before 
 the jury.
 
 2103.1 
 
 NEGLIGENCE— STREET RAILROADS. 
 
 1381 
 
 (d) A child that is not over three years of age cannot be guilty 
 in law of negligence contributing to its injury; and it is the duty 
 of all persons and corporations to take this rule of law into con- 
 sideration in the transaction of business, and in the operation of 
 machinery or other mechanical devices, and in the use of streets, 
 highways and public places. The defendant in the operation of 
 
 cars in the streets of was chargeable with notice of this rule, 
 
 and cannot avoid its liability by merely showing that the action or 
 
 conduct of the child , if he were not over three years of age, 
 
 contributed to the injury."^ 
 
 § 2103. Same Subject — Rule as to Intoxicated Persons, (a) If 
 
 ■the jury believe from the evidence that the plaintiff's decedent, on 
 the evening when he met with the accident that resulted in his death, 
 was intoxicated from drink, and that, being so intoxicated, he at- 
 tempted to cross defendant's railway track in front of a moving car 
 that was approaching him, so close to said ear that he could not move 
 beyond the point on the track that he first reached before the car 
 struck him, then you are instructed that the plaintiff cannot recover 
 in this action.''* 
 
 The court further instructs the 
 jury that the ordinances of the city 
 of A. require tliat no engine or car 
 shall be drawn or propelled by the 
 defendant company over its rail- 
 way tracks on F. street, within the 
 corporation limits of the city at a 
 rate of speed exceeding five miles 
 per hour; and if the jury shall be- 
 lieve from the evidence that the 
 plaintiff was riding upon the de- 
 fendant's car on the day of the 
 injury, which was being propelled 
 or drawn at a greater rate of speed 
 than five miles per hour within the 
 limits of said city, to wit, from 
 ten to twelve miles per hour and 
 whilst said car was being so 
 drawn and propelled by the de- 
 fendant, the plaintiff was ordered 
 by the defendant's motorman or 
 conductor in charge of the train 
 to get off said car. and thereby 
 frightened or intimidated the 
 plaintiff to such an extent as to 
 cause him to jump from the car 
 while running at the unlawful rate 
 of speed aforesaid, and that the 
 plaintiff's injury was caused by 
 the order of the defendant's 
 agent and the speed of the car. 
 they shall find for the plaintiff 
 providing they believe from tl.e 
 evidence that the plaintiff exer- 
 cised such a degree of care and 
 caution as under circumstances 
 might reasonably be expected from 
 one of his age and intelligence. 
 
 73— In Indianapolis St. R. Co. v. 
 
 Schomberg, — Ind. App. — , 71 N. 
 E. 237, 238, aff'd 164 Ind. Ill, 72 N. 
 E. 1041, the above instruction was 
 said to state correctly the rule ap- 
 plicable to young children. 
 
 74 — Richmond T. Co. v. Martin's 
 Adm'x., 102 Va. 209, 45 S. E. 886 
 (SS7). 
 
 "The well-known rule in this 
 class of cases is that a plaintiff 
 seeking to recover damages for an 
 injury caused by the negligence of 
 the defendant must himself be free 
 from negligence, and, if it appears 
 that his negligence has contributed 
 as an efficient cause to the injury 
 of which he complains, the court 
 will not undertake to balance the 
 negligence of the respective parties 
 for the purpose of determining 
 which was most at fault. The law 
 recognizes no graduations of fault 
 in such case, and where both 
 parties have been guilty of negli- 
 gence, as a general rule there can 
 be no recovery. There is really no 
 distinction between negligence in 
 the plaintiff and negligence in the 
 defendant, except that the negli- 
 gence of the former is called 'con- 
 tributory negligence.' " 
 
 If the jury believe that the plain- 
 tiff was intoxicated, and that by 
 the exercise of ordinary prudence 
 could have avoided the accident 
 if sober, he is guilty of contrib- 
 utory negligence, and cannot re- 
 cover; or if the accident was part- 
 ly due to the intoxication of the
 
 1382 FORMS OF INSTRUCTIONS. [§ 2104. 
 
 (b) If you find and believe from the evidence that the plaintiff 
 herein, as he approached the scene of the accident complained of 
 herein, failed to look and listen for the approach of defendant's car, 
 and that such failure on his part contributed to the accident com- 
 plained of herein, and that a person of ordinaiy prudence would not 
 have so acted under the same or similar circumstances, then you are 
 instructed that this would constitute contributory negligence on the 
 part of the plaintiif. 
 
 (e) If you find and believe from the evidence that, when the plain- 
 tiff discovered the approach of the defendant's car, he failed to 
 check the speed of his horse in sufficient time to avoid an accident, 
 and that a person of ordinary jDrudence would and could have cheeked 
 the speed of his horse in time to have avoided an accident, then you 
 are instructed that this would constitute contributory negligence on 
 the part of the plaintiff. 
 
 (d) If you find and believe from the evidence that at the time of 
 the accident complained of herein, the plaintiff was in a state of in- 
 toxication or semi-intoxication, and that such state of intoxication 
 or semi-intoxication placed him in such condition that he was unable 
 to and failed to exercise that caution and care required of him under 
 instructions heretofore given, and that such condition contributed to 
 the accident complained of herein, then you are instructed that this 
 constituted contributory negligence on the part of the plaintiff.''^ 
 
 § 2104. Rule to Stop, Look and Listen, (a) The court instructs 
 the jury that it was the duty of the plaintiff' to take notice of the 
 fact that ears were liable to pass along the tracks of the defendant 
 at any time, and that they could not turn out of the track, and it was 
 his duty to make a vigilant use of his senses of sight and hearing 
 W'hen about to cross the track of the defendant, to ascertain if there 
 was a present danger in crossing, and if he failed so to do, and if by 
 looking and listening for approaching cars, he would have discovered 
 
 plaintiff he cannot recover. But English, — Tex. Civ. App. — , 93 
 
 you must find before you can take S. W. 1096 (1098). 
 up the consideration of these re- "It is settled law that the defend- 
 
 quests that he was intoxicated, ant in a case like the present has 
 
 It must not be conjecture on your the rigrht to prepare and demand 
 
 part or guess work. It does not the giving of a charge requiring 
 
 follow that because the man sang the jury to find whether the evi- 
 
 in his wagon, or asked, perhaps, dence establishes the existence of 
 
 foolish questions of passers-by, or any fact or specified group of facts 
 
 that his breath smelled of liquor, which if true would in law estab- 
 
 that he was intoxicated. That is lish its plea of contributory negli- 
 
 some evidence of the fact, but you gcnce; and this is true if proper 
 
 must find, in order to invoke the charges are asked as to each of the 
 
 law of these requests, that he was several special pleas of contribu- 
 
 intoxicatod, and that that intoxi- tory negligence presented by the 
 
 cation contributed to the accident record. Gulf. C. & S. F. R. Co. v. 
 
 —that is, that a sober man would Shieder, 88 Tex. 152, 30 S. W. 902, 
 
 not have been hurt. 28 L. R. A. 538; M. K. & T. R. Co. 
 
 Above instruction upheld in v. McOlamory, 89 Tex. 635, 35 S. 
 
 Shelly v. Brunswick T. Co., 65 N. W. 1058; M. K. & T. R. Co. v. 
 
 J. L. 639. 48 Atl. 562 (564). Rogers, 91 Tex. 52, 40 S. W. 956." 
 
 75— Dallas Cons. E. St. R. Co. v.
 
 §2104.] NEGLIGENCE— STREET RAILROADS. 1383 
 
 the car in question approaching in time to have avoided colliding 
 with it, then he cannot recover. '^*^ 
 
 (b) If you find from the evidence that plaintiff looked to the 
 north for an approaching car before going upon the track, and you 
 further find that at the time she so looked the said ear was there 
 approaching and within view of her, then you are instructed that 
 plaintiff is chargeable with knowledge of its approach, although 
 plaintiff claims that she did not see said car approaching. '^'^ 
 
 (e) Although you may believe from the evidence that the car 
 was being operated at a speed exceeding 15 miles per hour, and that 
 the defendant's agents in charge of said car failed to observe that 
 the plaintiff was in danger of being struck by the car, still, if you 
 further believe from the evidence that the plaintiff, by looking or 
 listening, could have seen or heard the approaching car in time to 
 have stopped before going on the track over which it was running, 
 and thereby have avoided the injury, and that plaintiff did not stop 
 and look and listen before going on the track, then your verdict must 
 be for defendant. 
 
 (d) Even if you do find from the evidence that the motorman in 
 charge of the car saw the plaintiff was going upon the track in front 
 of the car, and could, by the exercise of care on his part, have stopped 
 ■the car before reaching plaintiff, yet if you further -find from the 
 evidence that, after said motorman knew plaintiff was going on the 
 track, the plaintiff knew, or by looking or listening for the approach- 
 ing car could have known, of its approach, and that it was not likely 
 to stop before reaching him, and that he could have then desisted 
 from stepping on the track in front of said ear and thereby have 
 avoided the injury, and that the plaintiff did not stop and look and 
 listen before going on the track, then your verdict must be for de- 
 fendant.'''® 
 
 (e) If the jury believe from the facts and circumstances given in 
 evidence that the plaintiff situated as he was in the wagon, would in 
 the exercise of ordinary care have seen the approaching car on 13th 
 street in time to have warned the driver of its approach, and in time 
 to have prevented the collision, then it was his duty to have done so, 
 and if he failed to do so then he cannot recover, and your verdict 
 must be for the defendant, notwithstanding the defendant may too 
 have been negligent. 
 
 (f ) The court instructs the jury that it is the duty of persons on 
 
 76 — Burns v. Met. St. Ry. Co., 66 correctly the law in these instruc- 
 
 Kans. 188, 71 Pac. 244 (245). tions." 
 
 "This direction was amplified by 77 — Met. St. R. Co. v. Agnew, 
 
 another in which the jury were 65 Kas. 478, 70 Pac. 345. 
 
 told that if the plaintiff could by 78— Deitring v. St. L. T. Co., 109 
 
 looking or listening 'or by other Mo. App. 524, 85 S. W. 140 (147). 
 
 careful and prudent acts' have dis- See also the instructions in Hol- 
 
 covered the approach of the car in verson v. St. L. & S. R. Co., 137 
 
 time to have avoided the collision, Mo. 216, 57 S. W. 770, and in Sani- 
 
 he could not recover. "We are well tary D. Co v. St. L. T. Co., 98 
 
 satisfied that the trial court stated .Mo. App. 20, 71 S. W. 726.
 
 1384 FORMS OF INSTRUCTIONS. [§2104. 
 
 public streets, whether on foot or in vehicles, to be ordinarily prudent 
 and careful in crossing street car tracks and to both look and listen 
 for approaching cars, and even though the jury should find in this 
 case that the gong of the car was not sounded still if the plaintiff 
 could, by exercising ordinary care with respect to the speed with 
 which he approached the track, and in looking for the approach of 
 cars have caused the said wagon to be stopped in time to avert the 
 collision then your verdict will be for the defendant.^^ 
 
 (g) If you find from the evidence that the deceased was walking 
 along and upon B. street for the purpose of crossing defendant's 
 track in said street, then it was the duty of the deceased, while ap- 
 proaching defendant's street car track, to look in the direction from 
 which the car was approaching, and also to listen for the purpose of 
 ascertaining whether a car was approaching or not ; and if he found 
 from such means that a car was approaching so near as that there 
 was danger of a collision, then it was deceased's duty to stop before 
 going upon the track, and to let the car pass without interference or 
 delay. If the jury find from the evidence that the deceased failed to 
 look or to listen, or that if he did look and listen that he failed to 
 heed what he saw or heard, and that the situation was such that by 
 looking or listening he might have seen or heard the approach of the 
 car in time to have avoided the accident, and that he failed to do so, 
 and that such failure directly contributed to causing deceased's injury 
 and death, then the plaintiff cannot recover, and your verdict must be 
 for the defendant. 
 
 (h) While the burden of proof is upon the defendant to establish 
 its plea of contributory negligence upon the part of the deceased, yet 
 this does not relieve the plaintiff from establishing by a preponder- 
 ance or the greater weight of the evidence that the sole cause of de- 
 ceased 's injury was the negligence of the defendant 's agent, as defined 
 in the other instructions, and, notwithstanding defendant's plea of 
 contributory negligence, that the burden of proof rests upon the plain- 
 tiff throughout the trial of the case; and if the juiy find from the 
 evidence that the death of the deceased was caused by an accident for 
 which neither party is responsible, or from the combined and con- 
 curring negligence of the deceased and the motorman, in the manner 
 set out in these instructions, then the plaintiff is not entitled to re- 
 cover, and your verdict must be for the defendant. 
 
 (i) Even if the jury do find from the evidence, that the motorman 
 in charge of said car saw the plaintiff's husband approaching the 
 track in front of the car, the motorman had the right to assume and 
 act upon the presumption that the plaintiff's husband would stop 
 before going upon the track, and was under no duty to attempt to 
 stop the car until he became aware that the plaintiff's husband was 
 going to get on the track in front of the ear, or until his conduct and 
 actions Wf)u]d have led a person of ordinai-y prudence to conclude that 
 he was going to do so.^" 
 
 7»— Holden v. Missouri R. Co., 177 80— Kckhard v. St. L. T. Co., 190 
 Mo. 456, 76 S. W. 973 (975). Mo. 593, 89 S. W. 602.
 
 §2104.] NEGLIGENCE— STREET RAILROADS. 1385 
 
 (j) Although the jury may find from the evidence that defendant's 
 the St. L. T. Co. 's agents in charge of the car did fail to sound any 
 bell or gong on said car, and did not stop or slow up said car and 
 avert the collision, and did not keep a watch for persons on or ap- 
 proaching the track, and did not stop the ear in the shortest time and 
 space possible after the first appearance of danger, still, if you find 
 from the evidence that plaintiff saw the approaching car, or, by 
 looking, could have seen said car in time to have kept the horse and 
 wagon off the track and avoid the collision, and failed to see or heed 
 what he saw, then the plaintiff cannot recover and your verdict must 
 be for the said defendant. If the jurj' find from the evidence that 
 the plaintiff's alleged injuries were caused by the mutual and con- 
 curring negligence of plaintiff and the defendant 's, the St. L. T. Co. 's 
 motoi-man in charge of said car, and that the negligence of either, 
 without the concurrence of the negligence of the other, would not 
 have caused the injury, then your verdict must be for the said de- 
 fendant. 
 
 (k) If the jury believe from the evidence that plaintiff was driv- 
 ing a wagon south on Nineteenth street, and that Nineteenth street 
 was crossed by the railroad tracks of the defendant, St, L. T. Co., 
 laid in 0. street, then it was the duty of plaintiff, in approaching 
 said street railway tracks to look in the direction from which the 
 ear was approaching and also to listen for the purpose of ascer- 
 taining whether a ear was approaching or not, and if he found by 
 such means that a car was approaching so near that there was 
 danger of a collision, then it was the plaintiff's duty to stop before 
 going upon the track and let the car pass without delay or hinderance ; 
 and if the jury find from the evidence that the plaintiff failed to look 
 or listen, or if he looked or listened, that he failed to heed what he 
 saw or heard, and to stop his horse and keep off the track, and that 
 said failure directly contributed to plaintiff's alleged injuries, then 
 the plaintiff cannot recover and your verdict must be for the de- 
 fendant.®^ 
 
 (1) The jurors are instructed that it was the duty of the plaintiff 
 before driving on or across the track of the defendant, to look and 
 listen for approaching cars; and if you find and believe from the 
 evidence that plaintiff failed so to do, and that by looking and listen- 
 ing he could have seen or heard the approaching ear of defendant in 
 time to have kept off the track, and averted the injury to himself, 
 then you must find a verdict for the defendant, unless you further 
 believe and find from the evidence that defendant's servants in 
 charge of said car, after they saw, or by the exercise of ordinary 
 care might have seen that plaintiff was in, or intended to place him- 
 self or wagon in a position of peril, failed to use such care and cau- 
 tion in stopping said car to avoid injury to plaintiff as a person of 
 ordinary care and prudence would have exercised under the same or 
 similar cireumstanees.**- 
 
 81— Rodgers v. St. L. T. Co., 117 82— Freymark v. St. L. T. Co.. 
 Mo. App. 678, 92 S. W. 1157. Ill Mo. App. 208, 85 S. W. 606 (608).
 
 1386 
 
 FORMS OP INSTRUCTIONS. 
 
 [§ 2105. 
 
 (m) It was the duty of plaintiff to look and listen for the ap- 
 proach of the ear, before attempting- to pass over the track, and if 
 you believe from the evidence that he failed to look and listen, and 
 that such failure was the direct and proximate cause of the accident, 
 or directly contributed to it as its proximate cause, your verdict 
 should be for the defendant.^^ 
 
 § 2105. Bicyclist — Collision With Car. If the jury shall find from 
 the evidence that plaintiff ran his bicycle into the side of defendant's 
 ear, and thereby caused the accident, then they are instructed that, 
 under the declaration in this case, their verdict must be for the de- 
 fendant.^* 
 
 § 2106. Failure of Driver of Vehicle Passing Along or Near Track 
 to Use Reasonable Care, (a) If you find from the evidence that 
 phiintiff was driving eastwardly beside the track at the time of the 
 accident, and so near the rails as to prevent the car from passing the 
 rear without collision, and that while so driving he failed to look 
 back from time to time along the track, or to listen for signals from 
 
 83— Nashville Ry. Co. v. Norman, 
 108 Tenu. 324, 67 S. W. 479 (481). 
 See also the instruction on this 
 subject in Citizens' Ry. Co. v. 
 Ford. 25 Tex. Civ. App. 328, 60 S. 
 W. 680 (681). 
 
 In Georgia, in Macon Ry. & L. 
 Co. V. Barnes, 121 Ga. 443, 49 S. E. 
 282, it has been held not erroneous 
 to refuse to charge the jury that 
 one who drives on and along a 
 street railway track laid in a pub- 
 lic highway "should be careful to 
 look and listen with ordinary care 
 to avoid a collision." 
 
 The court said: 
 
 "Whatever may be the rulings 
 on the subject in other jurisdic- 
 tions, it is well settled in this state 
 that it is not incumbent upon the 
 court to instruct the jury that it is 
 the duty of one who attempts or 
 Intends to cross a railroad track 
 to use his senses of hearing and 
 seeing before stepping on the track. 
 'The precise thing which any man 
 should do before stepping upon a 
 railroad track is that which any 
 prudent man would do under sim- 
 ilar circumstances. If prudent 
 men would look and listen, so must 
 every one else, or take conse- 
 quences, so far as the consequences 
 mlglit hnvc been avoided by that 
 means. The court cannot instruct 
 the jury what a prudent man 
 would do, for, in legal contempla- 
 tion, the Jury know it better than 
 the fourt.' Richmond & D. R. Co. 
 v. Howard, 79 Ga. 44, 53, 3 S. E. 
 426: Richmond & D. R. Co. v. John- 
 ston, 89 Ga. 560, 15 S. E. 908; Met. 
 
 St. R. Co. v. Johnson, 90 Ga. 500, 
 16 S. E. 49. 'What particular means 
 or measures of diligence would be 
 appropriate under the circum- 
 stances should be left to the jury.' 
 Ins. Co. of N. Am. v. Leader, 121 
 Ga. 260, 48 S. E. 972. If the court 
 should charge in a case of this 
 character that it was the duty of a 
 party to do a specific thing, would 
 it not be equivalent to saying that 
 the omission to do that thing 
 would be negligence? It is true 
 that in the opinion rendered in 
 Savannah Ry. Co. v. Beasley, 94 
 Ga. 142, 146, 21 S. E, 285, 286, it 
 was said that 'people who intend 
 ,to cross its (the street railroad's) 
 track should be careful to look and 
 listen to avoid a collision.' " 
 
 84— So. C. C. R. Co. V. Kinnare, 
 96 111. App. 210 (215). 
 
 In Harrington v. Los A. Rv. Co., 
 140 Cal. 514, 74 Pac. 15, 20, 98 Am. 
 St. Rep. 285, an instruction direct- 
 ing a verdict in defendant's favor, 
 if certain facts were found, was 
 modified by the court adding: 
 
 "Unless you shall also find that 
 the motorman in charge of defend- 
 ant's car, after perceiving the dan- 
 gerous situation then and there ex- 
 isting, did recklessly or wantonly 
 send his car forward. Whether or 
 not such reckless or wanton con- 
 duct of the defendant did occur 
 and cause the collision is a ques- 
 tion of fact for you to determine 
 from the evidence, the same as 
 you must determine from other 
 facts submitted,"
 
 §2106.] NEGLIGENCE— STREET RAILROADS. 1387 
 
 an approaching ear, or if you find that, thus driving' along the track, 
 he failed to turn out and leave the track unobstructed on the approach 
 of the ear from the rear, or if you find that plaintiff drove upon the 
 track in front of an approaching car without looking or listening for 
 same, or so short a time before the wagon was struck as to prevent 
 any possibility of stopping the ear in time to prevent an accident, 
 then it is your duty to determine whether, in doing or omitting to do 
 any one of these acts, plaintiff was guilty of contributoiy negligence. 
 
 (b) And in doing this you may consider all the facts and circum- 
 stances proven at the trial, as surrounding the accident, including, so 
 far as proven, the topogra^Dhy of the locality at the j^laee of the acci- 
 dent ; the character of the vehicle in which plaintiff was riding; the 
 position of the vehicle at the time of the accident; the speed of the 
 approaching car; the distance at which it could have been seen or 
 heard by the driver of the wagon if he had looked and listened — in 
 fine, to every minute detail of the accident ; and if you find, after 
 considering all the facts and circumstances proven to you, that plain- 
 tiff was guilty of contributory negligence in any of these respects, and 
 that such contributory negligence was the proximate cause of (that is 
 to say, the cause which led to or directly contributed to produce) the 
 accident and injury, then there can be no recovery, and your verdict 
 should be for the defendant. 
 
 (e) It is the duty of a driver of a private vehicle, while on the 
 track, or so near to it as to prevent a ear passing without a collision, 
 not only to turn off when called upon b}^ the servant of the railroad 
 company, but to listen to whatever signal there may be of an ap- 
 proaching car; and he should also look behind him from time to time, 
 so that he may, if the car be so near, turn off and allow it to pass 
 without hindrance or any slacking of ordinary speed, and, if he fail 
 to observe this precaution, he does so at his own risk.^^ 
 
 (d) The court instructs the jury that if they believe from the ev'u 
 dence that, after the plaintiff's horse became frightened by the car, 
 plaintiff pulled him so suddenly to the left as to cause plaintiff to 
 fall from the wagon, and that in so doing the plaintiff did not exercise 
 reasonable care, and received the injury complained of in this ease in 
 consequence thereof, they must find for the defendant. 
 
 (e) In considering the question as to whether or not plaintiff acted 
 with reasonable care in pulling the reins, they must consider all the 
 circumstances by which he was surrounded at the time, and particu- 
 larly whether by the negligence of the defendant he had been so 
 flurried or excited as to make it reasonable for him to act as he did.^® 
 
 (f) If you find from the evidence that plaintiff saw the car ap- 
 proaching, and afterwards had time to avert the alleged collision by 
 
 85— Memphis St. R. Co. v. as above set out when they are all 
 
 Haynes, 112 Tenn. 712, 81 S. W. 374 taken together." 
 
 (378). 86— Richmond Ry. & E. Co. v 
 
 "We do not think that the plain- Hudgins, 100 Va. 409, 41 S. E. 736 
 
 tiff in error iias anything to com- (740). 
 plain of in the instructions given
 
 1388 FORMS OF INSTRUCTIONS. [§ 2107. 
 
 using ordinary care in turning out and getting off the track and out 
 of the way of the car; and if you further find that plaintiff, after he 
 saw the ear approaching, did not use ordinary care in turning out 
 and getting off the track and out of the way of the car — then plain- 
 tiff was guilty of negligence; and if you so find, and find that such 
 negligence w^as a proximate cause of the injuries, if any, sustained 
 by the plaintiff, without which they would not have been sustained, 
 then your verdict must be for the defendant.*^ 
 
 (g) If you believe from the evidence in this ease that when the 
 wagon with which the street car collided occupied a position which 
 enabled the car 'to pass in safety and without sti'iking said wagon, 
 and that w-hile said wagon occupied said position, and while the car 
 was approaching it from the rear, the motorman on said car rang 
 the gong of said car as a warning, and that said driver and plaintiff 
 could have heard the warning by the exercise of ordinary care and 
 attention to it, and after said warning said wagon was driven sud- 
 denly in front of said car, and sufficiently close to it to make it im- 
 possible to stop said car by exercise of ordinary care and reasonable 
 effort, and said plaintiff was injured by the collision which ensued, 
 he cannot recover in this action.®** 
 
 § 2107. Care Due by Driver of Vehicle Crossing Track — Ordinary 
 Care Defined, (a) The court instructs the juiy that ordinary cai-e, 
 as mentioned in these instructions, is that degree of care which an 
 ordinarily prudent person, situated as the deceased was before and 
 at the time of the accident, would exercise for his own safety. 
 
 (b) If you believe, from the evidence, that the plaintiff became 
 frightened or alarmed or confused just before coming into collision 
 with defendant's car on account of getting suddenly into a position 
 of peril, then such sudden peril will not excuse him for a failure, if 
 there was any, to exercise ordinary care, if you believe, from the 
 evidence, that he brought himself into such position of peril by reason 
 of his ow-n negligence, if he was negligent, or by reason of running 
 
 87 — Kimbal v. St. L. & S. R. Co., her case as she alleges it, and de- 
 
 108 Mo. App. 78, 82 S. W. 1096 (1099). fendant was entitled to have the 
 
 88 — Hot Spr. St. R. Co. v. Hil- jury instructed iu accordance with 
 
 dreth, 72 Ark. 572, 82 S. W. 245 the evidence of those two wit- 
 
 (248). nesses that, if they believe their" 
 
 In W. C. St. R. Co. V. Kautz, 89 evidence that appellee jumped out 
 
 111. App. 309, the following instruc- of the wagon, then thiit the verdict 
 
 tion was asked for and refused: should be for the defendant. I. C. 
 
 "If you believe, from the evi- R. Co. v. C. T. & Trust Co., 79 
 
 dence, that the plaintiff jumped 111. App. 623; Wabash & W. R. Co. 
 
 from the wagon, you should find a v. Friedman, 146 111. 583-8, 30 N. E. 
 
 verdict in favor of the defendant." 353. It is not a simple matter of 
 
 The appellate court, on appeal, variance of proof from the decla- 
 
 said: ration which was not called to the 
 
 "This Instruction should have attention of the court as contend- 
 
 been given. Two of the witnesses ed by counsel for appellee. The 
 
 te.stlflfd that appellee jumped from matter was presented to the court 
 
 the wagon. The declaration as we by the instruction asked, and it 
 
 have Hpon allogoa thnt plaintiff was error to refuse it. McCormirk, 
 
 Wiis thrown out by the force of the etc., Co. v. Sendzikowski, 72 111. 
 
 collision. The plaintiff must prove App, 402-7, and cases there cited."
 
 §2108.] NEGLIGENCE— STREET RAILROADS. 1389 
 
 the risk of an obvious and serious danger merely to avoid incon- 
 venience. 
 
 (c) When the court instructs the jury that the plaintiff can not 
 recover unless C. was in the exercise of ordinary care at the time of 
 the injury, the court means that C. was required to exercise such 
 care for his own safety not only at the precise time of the injury, but 
 during the time and circumstances preceding the injury as well ; and 
 if you believe, from the evidence, that he failed to exercise ordinary 
 care for his own safety in getting into the position he was in when 
 injured it will be your duty to find for the defendant, the same as if 
 he failed to exercise ordinary care at the pi-ecise instant of the 
 injuiy.^^ 
 
 (d) What constitutes ''ordinary care," as mentioned in these in- 
 structions, depends on the facts of each particular case. It is such 
 care as a person of ordinaiy prudence would exercise (according to 
 the usual and general experience of mankind) in the same situation 
 and circumstances as those of the person or persons in this case with 
 reference to whom the term "ordinary care" is used in these instruc- 
 tions. The omission of such care is negligence in the sense in which 
 that word is used in these instructions.^" 
 
 (e) By ordinary care is meant such care as a man of ordinary 
 care and prudence would have exercised under circumstances like to 
 those disclosed by the testimony in this case.^^ 
 
 § 2108. Pedestrian Suddenly Going Upon Track Without Warning 
 to Motonnan. 1 further instruct j'ou that if you believe from the 
 evidence that without such an act on her part that would indicate 
 to the motorman, in the exercise of ordinary care, that she was about 
 to go upon the track, the plaintiff's intestate, E., suddenly and with- 
 out the knowledge of the motorman, and without warning of her in- 
 tention, went upon the track so near in front that the motorman, in 
 the exercise of ordinarj' care, could not stop the car to warn her in 
 time to avoid injuring her, then the law is for the defendant, and 
 you should so find.^- 
 
 89— So. Chi. C. Ry. Co. v. Kin- at the time he was injured, as w^ell 
 
 nare, 216 111. 451 (456), 75 N. E. 179. as his couduct while in such po- 
 
 "As a criticism upon this in- sition or situation. There is 
 
 struction it is urged that 'it as- nothing- in the instruction which 
 
 sumes that an ordinarily prudent would lead the jury to infer that 
 
 and cautious person might find if deceased exercised due care in 
 
 himself in the situation that the his endeavors to avoid injury or 
 
 plaintiff was in at the time of the extricate himself from a position 
 
 accident, and assumes that he was of danger plaintiff might recover, 
 
 not guilty of contributory negli- regardless of whether deceased had 
 
 gence in being in the position in by his own negligence brought 
 
 which he found himself at the in- himself into such position of peril." 
 
 jury.' We see nothing in the in- 90— Sanitary D. Co. of Mo. v. St. 
 
 struction from which any such as- L. T. Co., 98 Mo. App. 20, 71 S. "w! 
 
 sumption is indicated. The in- 726 (727). 
 
 struction fairly directed the minds 91— Hanlon v. Milwaukee E. Ry. 
 
 of the jury to the acts of the de- & L. Co., 118 Wis. 210. 95 N. W. 100 
 
 ceased connected with his going to (104). 
 
 the left of the buggy and bringing 92— Eirk's Adm'r v. Ry. Co., — 
 
 himself into the situation or posi- Ky. — , 98 S. W. 293. 
 lion in which he found himself
 
 13'jO forms of instructions. [§ 2109, 
 
 § 2109. Injury Avoidable Notwithstanding Contributory Negli- 
 gence of Plaintiff, (a) The court charges the jury all that is meant 
 by wanton or willful or intentional negligence is the conscious failure 
 on the part of the motorman to use reasonable care to avoid the 
 injury after discovering the danger to the wagon, if the jury believe 
 from the evidence that there was such failure and the injuiy re- 
 sulted therefrom ; and in such case any negligence on the part of the 
 plaintiff, whether it contributed to the injury or not, is not a defense 
 or excuse to the defendant for injuring the plaintiff. 
 
 (b) Although the plaintiff may have been guilty of negligence in 
 allowing the wheel of the wagon to be on the track or near ithe track, 
 yet this negligence Avill not defeat the plaintiff's right to recover, if 
 the motoiTnan actually saw, or by keej^ing a constant and vigilant 
 lookout could have seen, the exposed condition of danger of the 
 wagon or of the plaintiff in time to have avoided the injury by the 
 exercise of reasonable care, and negligently failed to exercise such 
 reasonable care; and if the jury are reasonably satisfied from the 
 evidence that such negligent failure of the motorman was the proxi- 
 mate cause of the injury to the plaintiff, then the defendant is liable, 
 and the verdict of the juiy should be for the plaintiff. 
 
 (c) It w^as the duty of the motorman to keep a constant and vigi- 
 lant lookout for persons and things on the track; and if the jury are 
 reasonably satisfied from the evidence that the motorman, by keeping 
 such constant and vigilant lookout, could have seen the exposed con- 
 dition of danger of the wagon on or near the track, or of the plaintiff 
 in time to have avoided injuring the plaintiff by the exercise of rea- 
 sonable care, then the law charges the motorman with seeing the ex- 
 posed condition of the wagon or of the plaintiff within the time stated 
 above in this charge, whether he saw them or not. 
 
 (d) Although the plaintiff may have been guilty of negligence in 
 exposing herself to injury by allowing the wagon wheel or any part 
 of the wagon to remain on or near the track, yet such negligence will 
 not defeat her right to recover, if the motorman saw the exposed 
 condition of danger of the wagon or of the plaintiff in time to have 
 avoided the injury by the exercise of reasonable care, and by the 
 use of all means at his command, and negligently failed to exercise 
 such reasonable care; and if the jury are reasonably satisfied from 
 the evidence that such negligent failure of the motorman was the 
 proximate cause of the injury to the plaintiff, then the defendant is 
 liable, and the verdict should be for the plaintiff'. 
 
 (e) If the jui-y should be reasonably satisfied from the evidence 
 the plaintiff was guilty of negligence in allowing the wagon wheel or 
 wagon to be on or so near to the track as to expose it to danger by the 
 ruiiDiiig of the ear, yet such negligence would not be considered as 
 contributory negligence to the injury, if the jury believe from the 
 evidence to their reasonable satisfaction that the motorman saw the 
 exposed condition of tlie wagon to danger on or near the track in 
 time to avoid the injury by reducing the rate of speed in time so as
 
 §2109.] NEGLIGENCE— STREET RAILROADS. 1391 
 
 to so control it and avoid the injuiy, and the motorman negligently 
 failed to give such warning and reduce the speed or stop said car, 
 and failed to use all means at his command to avoid the injury, this 
 negligence of the motorman was the proximate cause of the injury to 
 the plaintiff.93 
 
 (f) If the jury find and believe from the evidence that F. street 
 
 and B. street were, on , 19 — , open, public streets within the 
 
 city of S. ; and if the jury further find and believe from the evidence 
 that, at said time, the defendant operated an electric railway along 
 and upon B. street, was using the tracks, and owned and operated 
 the railway car mentioned in the evidence, for the pui-pose of trans- 
 porting persons for hire from one point to another in said city, and 
 that on said day E. was the husband of plaintiff, that plaintiff's said 
 husband was at said date crossing from the west to the east side of 
 B. street at its intersection with F. street, and that while he was so 
 crossing, defendant's south bound car run upon said crossing and 
 street at a violent, excessive, and negligent speed, knocking down, 
 running upon, and dragging the said E. and injuring him to such an 
 extent as to cause his death; and if the jury further find and believe 
 from the evidence that defendant's agents, servants, and employes 
 in charge of and operating said car either saw, or by keeping a vigi- 
 lant watch for persons moving toward the track upon which said car 
 was being propelled could have seen, said E. moving toward and 
 across said track, and in danger of injury, and that after seeing said 
 E. moving towards and upon said track, or, after they could have 
 seen, by keeping a vigilant watch as aforementioned, defendant's 
 agents, servants, and employes, or either of them, could, by stopping 
 said car within the shortest time and space possible under the cir- 
 cumstances, have averted said injury, and neglected so to do; and if 
 the jury further find and believe, from the evidence, that said E. 
 exercised ordinary care and prudence in Avalking towards and across 
 said track — then your verdict should be for the plaintiff.^* 
 
 (g) Even if the jury believe from the evidence that plaintiff negli- 
 gently placed himself in a dangerous situation, yet if the defendant's 
 motorman operating its car saw, or by the exercise of reasonable 
 care might have seen, plaintiff upon the street and in the act of pass- 
 ing over defendant's track, and in a dangerous situation, in time to 
 have avoided injuring him by the exercise of ordinai*y care, but that 
 he negligently failed to do so, then its verdict should be for the 
 plaintiff.":^ 
 
 (h) If you believe from the evidence that E. got upon the track 
 of the street car, or was in the act of approaching the track in such 
 I way as to indicate to the motoi-man, or apprise the motorman in 
 ..'luiige of the car, that she was in the act of going upon the track, 
 
 93 — Above instructions approved 94 — Eckhard v. St. L. T. Co., 190 
 
 in Birmingliam Ry. L. & P. Co. Mo. 593, 89 S. W. 602. 
 
 V. Brantley, 141 Ala. 614, 37 So. 95— Deitring v. St. L. T. Co., 109 
 
 698 (699). Mo. App. 524, 85 S. W. 140 (147).
 
 1392 FORMS OF INSTRUCTIONS. [§ 2110. 
 
 or about to go upon the track, far enough ahead of the car that the 
 motorman, in the exercise of ordinary care, could have seen that fact 
 in time, either by stopping the ear, or arresting its motion, or giving 
 a signal of its approach so as to notify her, and you believe from the 
 evidence that the motorman failed so to do, then the law is for the 
 plaintiff, although you may believe that she herself was negligent; 
 that is, failed to use such care as I have said persons of her age, 
 experience, and intelligence usually exercise under such circum- 
 stances.°'' 
 
 (i) Though the act of a person in crossing or driving alongside the 
 track in front of a street railway car which is moving towards him, 
 near enough to be struck, may be negligence, yet, if the motorman 
 in charge of the car observes the negligence, or could have observed 
 the negligence, by the use of ordinary care, when the peril of a col- 
 lision became imminent, and might have avoided its effect, by due 
 care, in time to prevent an accident, and failed to do so, the company 
 would in that event be liable."'^ 
 
 § 2110. Negligence of Driver of Vehicle, (a) It is the duty of 
 the defendant's motorman, when running the defendant's cars through 
 
 the streets of the city of , to keep a lookout ahead, to keep the 
 
 cars under reasonable control, and to exercise ordinary care to pre- 
 vent injury to other people who may be using the street, and, if there 
 is a person or vehicle likely to be imperiled from the car, to give 
 timely notice of the approach of the car by the usual and ordinary 
 signal; and if you shall believe from the evidence that at the time 
 mentioned in the petition the motorman, in charge of the car which 
 collided with the wagon on which Mr. H. was, failed to exercise any 
 of those duties, and by reason of such failure the ear collided with 
 the wagon, and Mr. H. was thrown from it, and his death resulted 
 therefrom, then the law is for the plaintiff, and you should so find, 
 unless you shall believe from the evidence that Mr. H. or the driver 
 in charge of the wagon was negligent, and thereby helped to cause 
 or bring about the collision and consequent injury, and but for which 
 negligence upon the part of Mr. H. or the driver in charge of the 
 wagon, if any there was, the injury would not have occurred. 
 
 (b) But if you shall believe from the evidence that the motorman 
 in charge of the car observed those duties of which I have spoken to 
 you, then the law is for the defendant, and you should so find, not- 
 witlistanding the injury which occurred to Mr. H. ; or if you shall be- 
 lieve from the evidence that the driver of the wagon or Mr. H. was 
 negligent, and thereby helped to cause or bring about the injury which 
 resulted to Mr. li., and that he would not have been injured but for 
 sucli contributory negligence, if any there was, then the law is for the 
 defendant, and you should so find, unless you shall believe from 
 the evidence that, when the wagon became imperiled from the ear, 
 
 96— Elrk's Adm'r v. Ry. Co., — 97— Memphis St. R. Co. v. 
 Ky. — , 98 S. W. 293. Haynes, 112 Tenn. 712, 81 S. W. 374 
 
 (375).
 
 §2110.] NEGLIGENCE— STREET RAILROADS. 1393 
 
 the motorman could by the exercise of ordinary care have stopped 
 the car, if necessaiy, and have prevented the collision. If such 
 was the fact the law is for the plaintiff. 
 
 (e) It was the duty of Mr. H. and the driver of the wagon, when 
 he turned to cross the street, to exercise ordinary care for the pro- 
 tection of themselves, and if either of them failed to exercise that 
 degree of care, and thereby helped to cause or bring about the injurj' 
 complained of in this action to Mr. H., and the injuiy would not have 
 occurred but for the failure to exercise ordinary care, either by Mr. 
 H. or by the driver, then the law is for the defendant, and you should 
 so find, unless you shall believe from the evidence that, when the 
 wagon became imperiled from the car, the motorman could by the 
 exercise of ordinary care have stopped the car, if necessary, and have 
 prevented the collision, as mentioned in instruction No. 2. 
 
 (d) If you find for the plaintiff, you should find in such sum as 
 will reasonably and fairly compensate the estate of Mr. H. for the 
 destruction of his power to earn money, not exceeding the sum of 
 
 $ , the amount claimed in the petition ; and in that connection 
 
 you may consider the amount that Mr. H. was earning, if any, as 
 shown by the evidence, immediately prior to his death, and all the 
 other circumstances shown by the evidence touching his capacity to 
 earn money. If you find for the defendant, you will simply say so, 
 and no more.^^ 
 
 (e) In determining whether or not the plaintiff in this ease was 
 guilty of contributory negligence, you shall consider her own acts and 
 conduct, and all the other circumstances shown in evidence surround- 
 ing the accident and injury, if any, to the plaintiff. And if you shall 
 find from the preponderance of all the evidence that the plaintiff 
 acted as a person of ordinary prudence under all the circumstances, 
 you should find her free from contributory negligence although you 
 may find that her husband was guilty of negligence in the driving and 
 management of his horse and vehicle. In other words, no negligence 
 of the husband in the di'iving and management of said horse can be 
 imputed to the plaintiff, if you find that she herself was free from 
 any fault or negligence, and was merely the passive guest of her 
 husband, without any authority to direct or control the conduct or 
 movements of her said husband in the driving and management of said- 
 horse.^^ 
 
 98 — Louisville Ry. Co. v. Hoskins, question of the plaintiff's contrib- 
 
 Adm'r, 28 Ky. L. 124, 88 S. W. 1087 utory negligence was to be consid- 
 
 (lOSS). ered alone, to the exclusion of the 
 
 99 — Indianapolis St. R. Co. v. negligence on the part of her hus- 
 
 Johnson, 163 Ind. 518, 72 N. E. 574. band. It Is insisted that the jury 
 
 "It is insisted that this charge must have understood by the 
 
 is bad for the reason that it in- charge that the fact that the plain- 
 
 vades the province of the jury in tiff was merely a passive guest of 
 
 stating to them that they shall her husband was equivalent to es- 
 
 consider the conduct of the plain- tablishing her freedom from fault 
 
 tiff and other circumstances, etc.; or negligence. It is further con- 
 
 the further contention being that tended that it was not proper fa^ 
 
 by this statement of the court, the the court to use the words 'shaii 
 88
 
 1394 FORMS OF INSTRUCTIONS. [§ 2111. 
 
 § 2111. Imputable Negligence — Rule in Illinois. If the jury find, 
 from the preponderance of the evidence, that the plaintiff was injured 
 as charged in her deehxration, by reason of the alleged negligence of 
 the defendant, and that at and before the time of receiving such in- 
 jury, the plaintiff was in the exercise of ordinary care for her own 
 safety, and that when injured she was riding in the cutter in ques- 
 tion as the invited guest of X., then, even though it should appear 
 that said X. was guilty of some want of care that contributed in some 
 measure toward the bringing about of the accident in question, such 
 want of care, if any, on the part of said X., will not be imputable to 
 the plaintiff.^oo 
 
 § 2112. Imputable Negligence — Rule in Wisconsin. The court in- 
 structs the jury that if the driver of the vehicle in question was 
 guilty of any want of ordinary care and prudence at the time in 
 question, then the law imputes such negligence to the plaintiff, who 
 was riding with her.^ 
 
 § 2113. Imputable Negligence — Parent and Child, (a) If the 
 jurj^ shall believe from the evidence that the mother accompanied and 
 was in charge of the child, and negligently permitted it to go upon 
 the track when the ear was approaching, or when, by the exercise 
 of ordinary care and watchfulness, she could have known that the 
 car was approaching, and but for the negligence of the mother in per- 
 mitting the child to go upon the track the injury would not have hap- 
 pened, the jury should find for the defendant. 
 
 (b) Although the jury may find from the evidence that the mother 
 was guilty of negligence in permitting the child to go upon the track, 
 yet if the injury of the child could have been avoided by the motor- 
 man after he knew, or could, by the exercise of ordinary care have 
 known, that there was reasonable ground to believe that the child 
 would go upon the track, then the jury must find for the plaintiff.- 
 
 and 'should' as they are employed an opinion by Chief Justice Ryan, 
 in the instruction. That the that 'the driver of a private con- 
 charge is not rendered bad for veyance is the agent of the person 
 the latter reason is fully settled in such conveyance, so that his 
 by the decision of this court in negli-gence contributing to the in- 
 Strcbin v. Lavengood, Wi Ind. 478, jury complained of by such person, 
 71 N. E. 494, and cases there cited." . . . will defeat the action.' Pri- 
 
 100— West C. St. R. Co. v. Pet- deaux v. Mineral Point, 43 Wis. 
 
 ters, 196 111. 298 (303), aff'g 95 111. 513 (526-531), 28 Am. Rep. 558. Such 
 
 App. 479, 63 N. E. 662. ruling has been steadily adhered 
 
 "We think that the contention to during these many intervening 
 
 by appellant that under this in- years. Otis v. Janesville, 47 Wis 
 
 struction, if the jury concluded 422, 2 N. W. 783, 40 L. R. A. 831; 
 
 from the evidence that the plain- Ritger v. Milwaukee, 99 Wis. 190* 
 
 tiff had been injured by an act ot 197, 74 N. W. 815; Olson v. Town of 
 
 the defendant, and that such act Luck, 103 Wis. 33, 35, 79 N. W 29 
 
 was alleged to be negligent, they if the rule contended for is to pre- 
 
 then might reconcile it with their vail, it is for the Legislature to 
 
 ron.sclences to find a verdict for say so." 
 
 the plaintiff in reliance upon this 2— Toner's Adm'r v. South C. & 
 
 Instruction is frivolous." c. St. R. Co., 109 Ky. 41, 58 S. W. 
 
 I— Lightfoot V. Winnebngo T. Co., 439 (410) 
 
 ^^;L^.'"- '*^'*' ^'>" ^- ^'^- -'^ (^^'')- "In <^'inal Co. v. Murphy. 9 
 
 This court held 27 years ago, in Bush (Ky) 522, where the death
 
 § 2113.] 
 
 NEGLIGENCE— STREET RAILROADS. 
 
 1395 
 
 (c) The fact that the wife of the plaintiff may have been guilty 
 of negligence, if such was the ease, in permitting H. to go on or into 
 the street where and when the defendant was operating cars over its 
 tracks, will not prevent the plaintiff recovering in this ease, if the 
 motorman, after he became aware of the danger of the child, could 
 have avoided injuiing him by the use of such care as the dangerous 
 position of the child and its age required him under the circumstances 
 to exercise.^ 
 
 of a little girl 5 years old was sued 
 for, this court said: 'The child, 
 by reason of its tender years, can- 
 not be said to have been g-uilty of 
 any negligence. She was non sui 
 juris, and her conduct, if negligent, 
 must be regarded as the negli- 
 gence of the parents, and not that 
 of the infant. Parents are the 
 legal and natural custodians of 
 their children, and, when the chil- 
 dren are so young as not to be 
 capable of exercising any discre- 
 tion, their parents must exercise it 
 for them. This control and care 
 over children must be such as par- 
 ents of ordinary prudence exer- 
 cise.' In the subsequent case of 
 Schlenk's Adm'r v. Cent. P. Ry. 
 Co., 15 Ky. L. 409, 23 S. W. 589, 
 where a child three and one-half 
 years old was killed by a street 
 car, by reason of the negligence 
 of his nurse having him in charge, 
 this court, affirming the judgment 
 in favor of the defendant, said: 
 'If there was any negligence it 
 was on the part of the inexper- 
 ienced nurse, by reason of nonage, 
 having the boy in charge, and as 
 she was the agent of the plain- 
 tiff, in the temporary control and 
 custody of the boy, her negligence 
 must be imputed to the father.' 
 Under the statute, a recovery in 
 this case, if had, would go to the 
 father and mother, one moiety to 
 each. Every reason that would 
 charge the father with the negli- 
 gence of the nurse would apply 
 with equal force in a suit of this 
 
 character, where the wife has the 
 custody of the child at the time of 
 the injury, and the court did not 
 err in so instructing the jury. Be- 
 sides, the pivotal question in the 
 case was whether the child ran 
 suddenly out on the track, and 
 was struck before he could be 
 saved by ordinary care on the part 
 of the motorman, or whether he 
 was loitering near the track as the 
 car approached slowly, and ran in 
 front of the car some 25 or 30 
 feet, while the mother was calling 
 on the motorman not to run over 
 her child, and he might by or- 
 dinary care have avoided doing so, 
 as the evidence for appellant 
 tended to show. This issue was 
 fairly submitted to the jury by the 
 instructio2is given by the court; 
 for the jury was expressly told 
 that notwithstanding the negli- 
 gence of the mother, and without 
 regard to it, 'yet if the injury of 
 the child could have been avoided 
 by the motonnan after he knew, 
 or could, by the exercise of ordin- 
 ary care, have known, that there 
 was reasonable ground to believe 
 that the child would go upon the 
 track, then they must find for 
 the plaintiff.' The real issue in 
 the case having been clearly sub- 
 mitted to the jury, and fairly tried 
 by them, their verdict should not 
 be disturbed." 
 
 3 — Indianapolis St. R. Co. v. 
 Schomberg, — Ind. App. — , 71 N. 
 E. 237 (239), aff'd 164 Ind. Ill, 72 
 N. E. 1041.
 
 CHAPTER LXXI. 
 
 NEGLIGENCE— TELEGRAPH COMPANIES. 
 
 See Erroneous Instructions, same chapter head. Vol. III. 
 
 § 2114. "Negligence" in delivery of 
 telegram defined. 
 
 § 2115. Duty of telegraph company 
 to make prompt delivery 
 of telegram. 
 
 § 2116. Telegraph company not in- 
 surer of absolute safety 
 and accuracy of telegrams. 
 
 § 2117. Incorrect or insufficient ad- 
 dress given by plaintiff to 
 defendant a good defense 
 in actions for non-deliv- 
 ery. 
 
 § 2118. Nature of knowledge of 
 agents of telephone com- 
 pany as to purpose of call. 
 
 § 2119. Failure to consummate bus- 
 iness trade through non- 
 delivery of telegram. 
 
 § 2120. No duty on part of plain- 
 tiff's agent to inform tele- 
 graph company of his 
 agency. 
 
 § 2121. Care due while working 
 with cable above public 
 street. 
 
 § 2122. Lineman — Degree of care re- 
 quired while working near 
 electric wires. 
 
 § 2123. Electric wires — Presumption 
 of danger. 
 
 §2114. "Negligence" in Delivery of Telegram Defined. ''Negli- 
 gence," as used in this charge, is defined to mean the failure to ex- 
 ercise ordinary care, and ** ordinary care" is defined to mean such 
 care as a person of ordinary prudence would have exercised under the 
 same or similar circumstances.^ 
 
 § 2115. Duty of Telegraph Company to Make Prompt Delivery of 
 Telegram, (a) This is an action by plaintiifs for damages they 
 chiim tliey suffered by the nondelivery of a telegram by the defend- 
 ant. Coming right to the points in issue, it is the duty of the tele- 
 graph company to promptly deliver any message which is given to 
 them for transmission and delivery, and a failure to deliver promptly 
 makes them liable in damages, and it is a question for you to find, 
 from the facts in this case, whether there was prompt delivery of the 
 
 1— Hargrave v. Western U. T. 
 Co.. — Tex. Civ. App. — 60 S. W. 
 687 (689). 
 
 "Appellants object to this defini- 
 tion because, they say, 'when the 
 telegraph company, for hire, as- 
 sumes to deliver a telegram such 
 ns a death message, the highest 
 dcgrffi of care and diligence is 
 rff|uirod of them in the speedy and 
 prompt delivery thereof.' Such is 
 not the law. The jury were in- 
 structed that, if the company 
 'fulled to exercise ordinary care 
 and diligence to deliver said mes- 
 Bage to H, then they will find for 
 
 the plaintiffs, and assess their 
 damages.' The charge gave the 
 correct measure of diligence. Ap- 
 pellee would have been liable for 
 the failure of any of its employes 
 charged with the duty of deliver- 
 ing the message to exercise ordi- 
 nary care and to have defined its 
 care as including skill, fitness, and 
 diligence on the part of its ser- 
 vants would have added nothing 
 to the definition. The definiti<m 
 given was not erroneous, and. if 
 appellants thought it was not suffi- 
 ciently full, they should have re- 
 quested a fuller one." 
 
 1396
 
 § 2116.] NEGLIGENCE— TELEGRAPH COMPANIES. 1397 
 
 message in question. People send messages by telegram instead of by- 
 mail because they are in need of haste, and when a message is so 
 sent and received it must be delivered with reasonable dispatch in all 
 eases, and if not, the company must pay damages for failure to so 
 deliver. And it is for you to say whether, under all the circumstances 
 of this case, there was such prompt delivery of the message as will 
 relieve the defendant company from liability. The telegram in ques- 
 tion demonstrated upon its face that it was an urgent message, and 
 must be delivered with haste, and in such cases a greater degree of 
 diligence must be exercised than if no such urgency was expressed, 
 and you will take this into consideration in considering the facts and 
 making up your verdict. The telegram is resorted to by the public to 
 secure the speediest mode of communication, and the prompt delivery 
 is the very essence of the undertaking by the company. Hence a 
 failure to make such prompt delivery, if shown in this case, requires 
 a verdict at ynur hands for the plaintiffs as hereinafter indicated. 
 
 (b) If you find from the evidence that the defendant sent the mes- 
 sage in question with reasonable promptness, and delivered the same 
 to Mr. D. with reasonable diligence, your verdict must be for the de- 
 fendant. On the question of prompt delivery you are to take into ac- 
 count the distance of the place of delivery from defendants' office, 
 the distance of the office from the sehoolhouse, and the necessary time 
 it would take to get there. The burden is on the plaintiffs to show 
 by the preponderance of the evidence that the allegations in the dec- 
 laration are true, and if the evidence on behalf of the j^laintiffs fails 
 to do this, or such evidence is fully met by evidence on behalf of the 
 defendant, then I instruct you that the plaintiffs cannot recover. The 
 plaintiffs cannot recover unless by the neglect of some duty the com- 
 pany owed them; and if the message was delivered to Mr. D. with 
 reasonable diligence your verdict must be for the defendant. 
 
 (c) If you find that the company did not deliver this telegi-am, as 
 I have indicated, wdth such promptness as was required under the 
 circumstances, and are liable for a failure to so deliver, then you will 
 find for the plaintiffs such an amount as will be reasonable under all 
 the facts in the case. In other words if you find for plaintiffs your 
 verdict will be for what the services of Mr. K. would reasonably be 
 worth before the commissioners, on trying the client's case at the rate 
 per day as shown by the evidence in this ease.^ 
 
 § 2116. Telegraph Company Not Insurer of Absolute Safety and 
 Accuracy of Telegrams. You are charged that if the mistake made in 
 the transmission or delivery of the message was caused or brought 
 about on account of or by reason of negligence on the part of the de- 
 fendant, or its agents or servants, then, in that event, the conditions 
 and stipulations pleaded by defendant cannot avail it anything in this 
 action. The telegraph company is not an insurer of absolute safety 
 and accuracy in the transmission of messages.' 
 
 2_Sweet v. W. U. Tel. Co.. 139 3— W. U. Tel. Co. v. Odom, 21 
 Mich. 322, 102 N. W. 850 (852). Tex. Civ. App. 537. 52 S. W. 632 
 
 (634).
 
 1398 FORMS OF INSTRUCTIONS. [§ 2117. 
 
 S 2117. Incorrect or Insufficient Address Given by Plaintiff to De- 
 fendant a Good Defanse in Actions for Non-Delivery. The jui-y are 
 instructed that if from the evidence they believe that M., who de- 
 livered the message in question to the defendant company for trans- 
 mission, gave to the defendant an incorrect or insufficient address, and 
 that in so doing he was guilty of negligence, as that term has been 
 hereinbefore defined, and if the jury further believe from the evidence 
 that such negligence on his part, if any, contributed to the failure to 
 deliver the message to H., then the plaintiff cannot recover, even 
 though the defendant may have also been negligent.* 
 
 § 2118. Nature of Knowledge of Agents of Telephone Company as 
 to Purpose of Call. I further instruct you that any testimony as to 
 the knowledge of the fact (if it was a fact) that the employes of de- 
 fendant knew of the death of Mrs. M., and that the purpose of the 
 call to get G. M. at C. in communication with A. B., in order to notify 
 plaintiff of his mother's death, must have come to the knowledge of 
 the said employes through some transaction or act while they were 
 transacting the business of the defendant in connection with the call 
 put in.^ 
 
 § 2119. Failure to Consummate Business Trade Through Non-De- 
 livery of Telegram. Where, in an action against a telegraph com- 
 pany for failnre to deliver a message, it is sought to recover damages 
 for losses which would have been prevented by a sale which the mes- 
 sage was designed to complete, it must appear that the delivery of 
 the message to the party to whom it was directed would have effected 
 a valid and binding contract. It does not mean, though, that the con- 
 tract would not have been binding. It does not mean that there might 
 have been a defense between A. and B., the persons to whom the goods 
 were to be sold, if one complained by reason of the fact that he did 
 not make a contract, as the result of the non-delivery of the telegram. 
 Matters of defense they might set up you cannot consider here, but 
 if tlie persons fairly intended to complete and perfect the sale con- 
 tract, that is enough. It is for you to say in any given case whether 
 or not that was the purpose, and, if it had gone, how far; and I so 
 charge you. Where one partner, who has received an offer in the 
 usual course of trade, telegraphs his co-partner for advice as to ac- 
 cepting it, and, not hearing from him, on account of the negligent 
 failure of the telegraph companj^ to deliver the message, voluntarily 
 
 4 — Hargrave v. W. U. Tel. Co., knowledge of the agent being 
 
 — Tex. Civ. App. — , 60 S. W. 687 imputed to the principal, says: 
 
 (689). 'Thi.s principle only applies where 
 
 f) — Morrill V. S. W. Tel. & Tele- the agent acquires his knowledge 
 
 phone Co., 31 Tex. Civ. App. 614, in the transaction of his princi- 
 
 73 H. W. 422 (423). pal's business, and we therefore 
 
 "The rule is laid down by our think that the doctrine of imputed 
 
 Sur»reme Court in Tox. Loan Agon- notice should be limited to ca.ses 
 
 ry V. Taylor, 88 Tex. 49, 29 S. W. of that character.' The charge was 
 
 1').'7, and Kauffmnnn v. Robey, 60 in strict accord with these authori- 
 
 Tex. .308. 48 Am. Rep. 264. In the ties, and was applicable to the 
 
 first caKe cited, Mr. Gaines, C. J., facts; hence not erroneous." 
 in speaking of the doctrine of
 
 §2120.] NEGLIGENCE— TELEGRAPH COMPANIES. 1399 
 
 acts upon his own judgment and declines the offer, such negligence of 
 the telegrajDh comi^any is not the proximate cause of the loss sus- 
 tained by failure to consummate the trade, and the defendant is not 
 liable in damages upon proof that if the message had been reasonably 
 delivered the co-partner would have advised acceptance, and the trade 
 would have been made.'' 
 
 § 2120. No Duty on Part of Plaintiff's Agent to Inform Telegraph 
 Company of His Agency. The court charges the jury that it was not 
 the dutj' of F. L. to inform the defendant company of the fact that 
 in sending the message described in the complaint, if from the evi- 
 dence you believe that he was acting as the agent of plaintiff, that 
 he was the agent of plaintiff, in order to make the defendant liable 
 to plaintiff in this cause.' 
 
 § 2121. Care Due While Working With Cable Above Public Street. 
 The public had a right to use the public streets of P. City in the exer- 
 cise of due care, and if defendant undertook to handle or work with 
 a cable above the public street, it was the duty of defendant to use 
 care to prevent the cable from falling on any person who may have 
 been on such street.^ 
 
 § 2122. Lineman — Degree of Care Required While Working Near 
 Electric Wires, (a) If the jury believe from the evidence that it 
 was dangerous for R. to stand upon the strand or messenger cable, 
 which made a perfect circuit between any charged electrical agency 
 in the hand of R. and the ground, and that R. knew or by the exercise 
 of ordinary care would have known, that standing upon said mes- 
 senger cable was dangerous, and if the jury further believe from the 
 evidence that a man of ordinary prudence under such circumstances 
 as surrounded R., would not have stood upon said messenger strand 
 or messenger cable while holding a telephone wire suspended over 
 electric wires, then the juiy must find the defendant not guilty. 
 
 (b) If the jury believe from the evidence that a man of ordinary 
 prudence, exercising ordinary care for his own safety under such cir- 
 cumstances as surrounded R. at the time of this accident, would have 
 worn and used a safety belt, and that R. did not at the time of this 
 accident wear a safety belt, and if the jury further believe from the 
 evidence that the death of R. would have been prevented if the de- 
 ceased had worn a safety belt, then the jury must find the defendant 
 not guilty. 
 
 (c) The court instructs the jury that ordinary care, as mentioned in 
 these instructions, is that degree of care which an ordinarily prudent 
 person, with deceased's knowledge or means of knowledge of electrical 
 affairs, and situated as deceased was, before and at the time of the 
 accident, would exercise for his own safety.** 
 
 6— Walllngford v. W. U. Tel. Co., Mayo. 134 Ala. 641, 33 So. 16. 
 
 30 S. C. 201, 38 S. E. 443 (44S). 9— Commonwealth El. Co. v. 
 
 7— Manker v. W. U. Tel. Co., 137 Rose, 114 111. App. 181 (184), aff'd 
 
 Ala. 292. 34 So. 839. 214 111. 54.=;. 73 N. E. 780. 
 
 8— Southern Bell T. & T. Co. v. "Complaint is made of the above
 
 1400 
 
 FORMS OF INSTRUCTIONS. 
 
 [§ 2123. 
 
 § 2123. Electric Wires — Presumption of Danger. The defendant, 
 H., in breaking, coiling and lianging the dead or uncharged wii'e on 
 June 20, 1901, is presumed to have known that it was an electric 
 wire, and to have known and realized the dangerous properties of 
 electi-icity, and that a higher degree of care was necessary, when a 
 thing on account of which an injury may be caused was a highly 
 dangerous one, and that dead electric wires may be enlivened or be- 
 come charged with a current of electricity by coming in contact with 
 a charged wire, and that in case any person touched or grasped such 
 a wire, it would or might reasonably be expected to, endanger the life 
 or limbs of the person touching it.^" 
 
 instruction because of the words 
 'with deceased's knowledge or 
 means of knowledge of electrical 
 affairs.' The instruction obviously 
 refers to the question whether the 
 deceased exercised ordinary care 
 for his own safety. In our opinion 
 the defendant was not prejudiced 
 by the words complained of. The 
 deceased was an experienced liue- 
 mau and had been a foreman. Acts 
 or conduct on his part might 
 amount to or constitute negligence 
 when the same acts or conduct on 
 the part of one wholly ignorant of 
 electrical affairs would not amount 
 to negligence. It was for the jury 
 to find from all the evidence what 
 the deceased did or failed to do 
 and then to say whether such acts 
 and conduct showed ordinary care 
 on his part for his own safety, or 
 amounted to contributory negli- 
 gence. This included as well the 
 acts and conduct of the deceased 
 
 in placing himself in the position 
 in which he was, as his acts and 
 conduct in that position, but we 
 cannot see that the instruction is 
 subject to the criticism that it as- 
 sumes that the deceased exercised 
 ordinary care in placing himself 
 in the position in which he was at 
 the time he fell." 
 
 10— Nagle V. Hake, 123 Wis. 256, 
 101 N. W. 409 (413). 
 
 "The sentence now under consid- 
 eration is elliptical in that it does 
 not in terms state with what the 
 care required in handling electric 
 wires is to be compared; but we 
 think none could mistake the idea 
 intended, namely the idea that 
 greater care is required in handling 
 such agencies which may be 
 charged with mysterious and sud- 
 den death, than in handling ordi- 
 nary substances, and this as we 
 have seen is a cori-ect statement 
 of the law."
 
 CHAPTER LXXII. 
 
 NEGLIGENCE— MISCELLANEOUS. 
 
 See Erroneous Instructions, same chapter head. Vol. III. 
 
 i 2124. Liability of gas company for 
 break in gas pipe. 
 
 i 2125. Artificial light— Liability for 
 furnishing unsafe. 
 
 i 2126. Coal mine — Duty of owner 
 of to fence shaft. 
 
 i 2127. Boiler maintained in negli- 
 gent manner —Damage 
 caused by overflow of boil- 
 er. 
 
 1 2128. Danger from fire. 
 2129. Fire — Negligently setting — 
 Injury to trees. 
 
 § 2130. Liability for damage from 
 ditch built on one's own 
 land. 
 
 § 21.31. Logs — Degree of care re- 
 quired in driving. 
 
 § 2132. Defective scaffold — Elements 
 thc^t must be proven — Bur- 
 den of proof — Preponder- 
 ance. 
 
 § 2133. Hogs— Infection of from fol- 
 lowing other hogs. 
 
 § 2124. Liability of Gas Company for Break in Gas Pipe. The 
 
 jury are instructed that there is evidence enough of want of proper 
 care on the part of the defendant to make it responsible, on the 
 ground that it was bound to conduct its gas in a proper manner, and 
 that the fact that the gas escaped was prima facie evidence of some 
 neglect on the part of the defendant.^ 
 
 § 2125. Artificial Light — Liability For Furnishing Unsafe, (a) 
 In furnishing an artificial light, if one was necessary, the plaintiff 
 did not assume all risk of loss that might arise from its use, for it 
 will appear to you that it was possible for any person pui-posely to 
 throw a perfectly safe light, furnished him under those circumstances, 
 into the oil, and thus cause a conflagration. In that case it would 
 clearly be the negligent act of the pereon using the candle. But, if a 
 light was necessary, it was the plaintiff's dut}', if he furnished any 
 light at all, to furnish a reasonably safe light; and it was the defend- 
 ant's duty to use the light in an ordinarily careful and prudent man- 
 
 1 — Carmody v. Boston Gaslight 
 Co. (four cases), 162 Mass. 539, 39 
 N. E. 184 (185). 
 
 "This request was copied from 
 a ruling given in Smith v. Gaslight 
 Co., 129 Mass. 318, where this court 
 said of it that, as applied to the 
 facts of that case, it could not be 
 said to be wrong. The presiding 
 justice in the present case declined 
 to give the instruction, but in- 
 structed the jury in other terms, 
 which fully and correctly dealt 
 with the phases of the cause to 
 which the request was addressed. 
 
 1401 
 
 While the ruling requested is suf- 
 ficiently correct, if it be construed 
 as declaring that there was enough 
 evidence of want of proper care 
 to be submitted to the jury, it 
 would invade the proper province 
 of the jury, if it was understood 
 by them to mean that there was 
 evidence enough to require them 
 to find the defendant negligent, and 
 the presiding justice was not bound 
 to give a ruling which, as applied 
 to the case upon trial, might have 
 been so understood."
 
 1402 FORMS OF INSTRUCTIONS. [§ 2126. 
 
 ner. If the light was reasonably safe, and the defendant's negligence 
 alone caused the injury, the plaintiff should be compensated for his 
 loss. But if the light was not reasonably safe, and because the light 
 was dangerous which was furnished to defendant's servant, and de- 
 fendant's servant used it with ordinary care and prudence and the 
 loss and injury were caused by the unsafe and dangerous light fur- 
 nished by the plaintiff or his servants, then the plaintiff should not 
 recover. Or if the plaintiff's loss and injury Avas the result of the 
 unsafe light funiished by the defendant's servants, combined with the 
 careless use and handling of it by the defendant's servants, then the 
 plaintiff cannot recover, and your verdict should be for the defend- 
 ant. Whether it was the plaintiff's duty or not to supply a light, in 
 my opinion it was his duty to provide a reasonably safe one under all 
 the circumstances ; and if he failed so to provide a safe light, and that, 
 combined with the negligent act of the defendant's servant, caused 
 the loss or injmy, then the plaintiff should not recover. 
 
 (b) The giving of a candle to H. may not be contributory negli- 
 gence in itself, because I have already called your attention to the 
 fact that you are to determine as a question of fact whether a 
 candle was a reasonably safe light to provide under the circumstances. 
 Of course, whether the light was safe — whether the candle was safe — 
 or not, under all the circumstances, is a question of fact." 
 
 § 2126. Coal Mine— Duty of Owner of to Fence Shaft. The law 
 makes it the duty of every operator and owner of a coal mine to se- 
 curely fence the top of the shaft by gates properly protecting the 
 shaft and entry thereto, and if such operator fails willfully to so 
 fence the shaft, and by reason of such failure a person employed about 
 ihe mine is killed, the owxaer or operator is liable to the widow of the 
 person so killed for damages not to exceed the sum of $ .^ 
 
 2— Dore v. Babcock, 72 Conn. 408, stance correct, and it was said: 'In 
 
 44 Atl. 736 (737). the case under consideration, it 
 
 3— Catlett v. Young, 143 111. 74 was the willful conduct of the coal 
 
 (78), .32 N. E. 447. company, of which the plaintiff 
 
 "In the case of Litchfield C. Co. complained, and, while the de- 
 V. Taylor, 81 111. 590, it was held ceased may not have been entirely 
 that, where the party is killed in free from fault, yet if the jury 
 attempting to ascend from a coal find from the evidence that the 
 mine by the fjill of a lump of coal, wilful conduct of appellant resulted 
 and it appears that the defendant in the injury, the verdict would be 
 willfully used uncovered cages for justified.' The decision in this 
 the ascent and descent of persons cited case sustained the instruction 
 working in the mine in violation of given by the court, on the ground 
 the statute, which caused the that, under the statute of 1872, con- 
 death, a recovery may be had by tributory negligence was not a de- 
 hl.s widow, notwithstanding the fence. The present statute, so far 
 deceased may not have been free as the question now under consid- 
 from fault or negligence on his eration is affected, is substantially 
 part. Objection was there taken the same as that of 1872. When 
 to the instruction of the court that the legislature in 1879 re-enacted 
 it excluded consideration of the in substance the statute of 1872, and 
 Jury the negligence of the de- re-enacted in the same language 
 of-aHod, whifh may have contrib- section 14, which gives the right of 
 utod to the injury. It was held action, it must be regarded that it 
 that the instruction was in sub- acted in view of the interpretation
 
 §2121 
 
 NEGLIGENCE— MISCELLANEOUS. 
 
 1403 
 
 § 2127. Boiler Maintained in Negligent Manner — Damage Caused 
 by Overflow of Boiler, (a) The defendaut in this case has a perfect 
 right to use such a combination or boiler as it sees fit, provided that 
 it exercises reasonable care in its selection, maintenance and use. 
 
 (b) The burden to prove lack of care, and to prove negligence, 
 which is the same thing, is on the plaintiffs throughout this case. 
 Unless they (the plaintiffs) have shown that the boiler and apparatus 
 which was used by the defendants were improper appliances to be 
 used, or that they were maintained or used by the defendants in a 
 careless or negligent manner, and unless they have so shown to your 
 satisfaction, and by a preponderance of the evidence, you are in- 
 structed that you must find for the defendants. 
 
 (c) The jury are instructed that they must not consider this fact, 
 that, after the overflow occurred, the defendant had shut off the stop- 
 cock at night so as to prevent water from flowing into the boiler, in 
 determining whether or not the defendant exercised due care prior 
 to the accident.* 
 
 § 2128. Danger from Fire. The juiy are instructed, that the 
 question of negligence or diligence depends upon and partakes of the 
 surrounding circumstances peculiar to each case, and in this case, if 
 the jury believe, from the evidence, that defendant's mill, as it was 
 
 that more than three years before 
 had been placed by this court upon 
 such statute of 1S72 and upo^ said 
 section 14, and intended that in 
 case of injuries occasioned by any 
 willful violation of the act of 1879, 
 or by willful failure to comply with 
 any of its provisions, the right of 
 recovery should not depend upon 
 the exercise of ordinary care by 
 the person injui-ed, or the deceased, 
 or be precluded by contributory 
 negligence. This view of the law 
 as a matter of course is based on 
 the ground that there has been a 
 willful failure to comply with the 
 requirements of the statute. If the 
 statute has been complied with, or 
 if the injury is not occasioned by 
 the willful violation or willful fail- 
 ure denounced by the statute but 
 by some other alleged negligence 
 of the mine owner, and the person 
 injured or killed fails to exercise 
 ordinary care, then there will be 
 no right of action." 
 
 4 — Kahn v. Triest-Rosenberg Cap 
 Co., 139 Cal. 340, 73 Pac. 164 (167). 
 
 "The defendant was entitled to 
 the instruction as asked. The care 
 due from the defendant is not to 
 be measured by its conduct after 
 the overflow had demonstrated the 
 necessity of further precautions, 
 but by the conditions existing at 
 and before the time of the occur- 
 
 rence. If both instructions had 
 been before them, the jury might 
 have been misled to suppose that, 
 although not to be considered as 
 a confession of negligence, it was 
 evidence of some weight, to be con- 
 sidered by them for some purpose. 
 But they knew nothing of the in- 
 struction refused, and were not re- 
 quired to attempt to distinguish 
 between the two. They were cor- 
 rectly instructed that the subse- 
 quent precaution was not to be con- 
 sidered as a confession of previous 
 neglect. If the fact could be con- 
 sidered as of any weight, it would 
 be because of the inference arising 
 therefrom that the decision to turn 
 off the stopcock in the future was 
 made from the consciousness that 
 the failure to do so in the past was 
 neglect, and in that respect it 
 would be a tacit confession, evi- 
 denced by conduct. A jury is not 
 expected to indulge in metaphysical 
 distinctions so minute as this. The 
 instruction given would be under- 
 stood by the ordinary mind as sub- 
 stantially a direction to disregard 
 the fact in question. This is all 
 that the court was required to do, 
 and it is not material that it was 
 not done in language as accurate 
 and precise in the instruction given 
 as in that asked."
 
 1404 FORMS OF INSTRUCTIONS. [§ 2129. 
 
 accustomed to be used, endangered the buildings of the plaintiff by 
 reason of throwing out fire and sparks from the chimney, then it be- 
 came the duty of the defendant to avail himself of some such well 
 known apparatus, or other means, to prevent the escape of s^aarks and 
 fire from the chimney as experience had shown to be reasonably ade- 
 quate for that pui-pose; whether such apparatus or means was gen- 
 erally used on such chimneys or not, provided the jury believe, from 
 the evidence, that apparatus had been discovered and was generally 
 known to persons engaged in the same or similar business which 
 would have lessened the danger, and were in their nature and opera- 
 tion reasonably susceptible of being ai^plied to chimneys of the kind 
 used by the defendant.^ 
 
 § 2129. Fire — Negligently Setting — Injury to Trees. If you find 
 from the evidence that the defendant, either by himself or his servant, 
 acting within the scope of his employment, negligently set out, or 
 negligently suffered to escape, the fire which ran upon, burned over, 
 and injured plaintiff's jDremises, and that such injury was the proxi- 
 mate consequence of such negligent act or omission, then you should 
 find for the jDlaintiff, and award him just compensation for the loss 
 which he has sustained.*^ 
 
 § 2130. Liability for Damage from Ditch Built on One's Own 
 Land. If the ditch was on defendant's land, and he used reasonable 
 and ordinary care to guard against injury to plaintiff, he is not liable. 
 If the embankment washed out from natural causes, the defendant 
 could not reasonably have foreseen and" guarded against, he is not 
 liable, if the dike was on his own land.'^ 
 
 § 2131. Logs — Degree of Care Required in Driving. There is no 
 absolute test fixed by law by which the measure of care required in a 
 particular case can be determined. The only standard is to be found 
 in the carefully considered, dispassionate judgment of the jury in 
 view of all the circumstances of the ease. The question always is, 
 what would a person of average prudence do under like circum- 
 stances ? If such a person, placed in exactly the same situation as the 
 party whose conduct is in question, possessed of the same knowledge 
 as he had of all the surrounding facts and circumstances, including 
 the danger of resultant injury and the means of avoiding it, would 
 or might have done as such person did, he is free from fault and not 
 responsible for any accident or injury that may happen. 
 Did the lumber company, their officers, agents and servants (because, 
 being a corporation, they could act only by or through their officers, 
 agents and servants), exercise ordinary care in running their logs, 
 
 5— Hoyt V. Jeffers, 30 Mich. 181. material to the issue and the evi- 
 
 6— Wifkham v. Wolcott, 1 Neb. denoo, and not covered by the seii- 
 
 (unrjfj 160, 95 N. W. 366. eral charge, and hence should havo 
 
 7— Neumeister v. Goddard, 125 been given. Campbell v. Campbell, 
 
 Wis. 82. 103 N. W. 241 (244). 54 Wis. 90 (98), 11 N. W. 4r)6: Curtis 
 
 "Wo are constrained to hold that v. C. & N. W. R. Co., 95 Wis. 470, 
 
 this instruction should have been 70 N. W. 665." 
 given. It was applicable to a point
 
 §2132.] NEGLIGENCE— MISCELLANEOUS. 1405 
 
 and pei-mitting them to accumulate in the jam and elsewhere in the 
 yard, or in failing to remove them prior to the washout? On this 
 question you will consider the question of the logs, the number of 
 them, the extent of the jam, what effect, if any, the logs had, the 
 means of preventing their accumulation, the stage of the water, the 
 currents of the river; in short, all the considerations urged upon you 
 by counsel upon both sides, and all the evidence in the case. And on 
 this question, as upon the like question in the case of V. and M., j^ou 
 will be likely to, and properly may, consider what you would or would 
 not have done had you been placed in their situation. If you find that 
 they did exercise ordinary care ; that pei'sons of average prudence 
 placed in their situation, i^ossessed of their knowledge and means of 
 knowledge of the proper management and driving of logs, their effect 
 upon the dam, and of all the other circumstances, would or might 
 have done as they did, both in permitting the logs to accumulate, and 
 in failing to remove them, — you will return a verdict for the lumber 
 company. If you find that they did not exercise ordinai-y care in 
 thus allowing the logs to accumulate or in failing to remove them, and 
 that they contributed to the washout, your verdict will be for the 
 plaintiffs.® 
 
 § 2132. Defective Scaffold — Elements That Must Be Proven — ^Bur- 
 den of Proof — Preponderance. The jury are further instructed that 
 the burden of proof in this case is upon the plaintiff, and before he 
 can recover on account of the alleged negligence on the part of the 
 defendants in providing or having for use a weak, defective or in- 
 sufficient plank as a scaffold, it is necessaiy for the plaintiff to prove, 
 by a preponderance of the evidence, (1) that the plank was insuffi- 
 cient, weak or defective, and that the accident happened as the re- 
 sult of such weakness, insufficiency or defect; (2) that the defendants 
 had notice or knowledge of such insufficiency, weakness or defect, or 
 that they might have had notice thereof by the exercise of ordinary 
 care; (3) that the plaintiff did not know of such insufficiency, weak- 
 ness or defect, and that he had no means of knowledge thereof equal 
 to those of the defendants; and (4) that he was in his relation to 
 the accident in the exercise of ordinai-y care. If the plaintiff fails 
 to prove by a preponderance of the evidence any one of these four 
 propositions, the jury should find for the defendants, even though 
 they find that G. was foreman, and gave directions to use plank in 
 question.^ 
 
 8— Town of Monroe v. Connecti- repeated in substantially the same 
 
 cut R. L. Co., 68 N. H. 89, 39 Atl. language in Hines Lumber Co. v. 
 
 1019 (1021). Ligas, 172 111. 315, 50 N. E. 225; 
 
 9— Armour v. Brazau, 191 111. 117 Howe v. Mendaris, 183 111. 288, 55 
 
 (126), 60 N. E. 904, reversing 93 111. N. E. 724. and Lake Erie & W. R. 
 
 App. 235. Co. V. Wilson, 189 111. 89. 59 N. E. 
 
 "The main principles stated in 573. As applied to the facts in this 
 
 this instruction were declared to case, there has been no departure 
 
 be the law in Goldie v. Werner, from the rule stated in the instruc- 
 
 151 111. 551, 38 N. E. 95, where they tion, and it should have been 
 
 were quoted from § 414 of Wood on given." 
 
 the Law of Masters and Servants See Negligence — Master and Serv- 
 
 and they have been adhered to and ant, Chapter LXIIL
 
 1406 FORMS OF INSTRUCTIONS. [§ 2133. 
 
 § 2133. Hogs — Infection of from Following Other Hogs. The 
 
 court instructs the jury that if plaintiff, in taking the hogs in con- 
 troversy among his own hogs, failed to use ordinary care in so doing, 
 or negligently and carelessly permitted them to come in contact with 
 and run with his well hogs, plaintiff cannot recover for loss by reason 
 of the infection of his hogs from the hogs in controversy, if so in- 
 feeted.io 
 
 10— Brush v. Smith. Ill Iowa 217. 82 N. W. 467 (468).
 
 CHAPTER LXXIII. 
 
 NEGOTIABLE INSTRUMENTS. 
 
 See Erroneous Instructions, same chapter head. Vol. III. 
 
 § 2134. Presumptions in favor of the 
 holder. 
 
 § 2135. Evidence required for recov- 
 ery. 
 
 § 2136. Usury. 
 
 § 2137. Joint liability. 
 
 § 2138. Gift. 
 
 § 2139. Action on bond — Damages — 
 Recoupment. 
 
 § 2140. Balance on account — Credits. 
 
 § 2141. Liability of principal and 
 surety. 
 
 § 2142. Accepting of draft without 
 bill of lading. 
 
 § 2143. Execution and delivery — Bur- 
 den of proof. 
 
 f' 2144. Genuineness of signature — 
 Credibility of witnesses — 
 Wliat must be proved — 
 Bona fide holder. 
 
 § 2145. Receipt of payment — Gen- 
 uineness of signature. 
 
 5 2146. Fraud — Mistake — Unable to 
 read — Relying on another. 
 
 §2147. Signature obtained through 
 artifice or fraudulent rep- 
 resentations. 
 
 § 2148. Must use reasonable care to 
 avoid imposition. 
 
 § 2149. Fraud may be waived. 
 
 § 2150. Defendant inducing plaintiff 
 to buy note — Estoppel. 
 
 § 2151. Duress — Threats of imprison- 
 ment. 
 
 § 2152. Duress — Abuse of criminal 
 process — Lawful imprison- 
 ment not duress. 
 
 § 2153. Duress — Ratification of void- 
 able note. 
 
 § 2154. Want of consideration. 
 
 § 2155. "Worthless" and "doubtful" 
 notes. 
 
 S 2156. Settlement of old debt— Co i- 
 sideration. 
 
 § 2157. Illegal consideration. 
 
 § 2158. Void consideration — Sale of 
 liquor on Sunday — Note ex- 
 ecuted on Sunday. 
 
 § 2159. Consideration — Forbearing 
 suit on note. 
 
 § 2160. Consideration— Settlement of 
 
 criminal charge. 
 § 2161. Accommodation paper. 
 
 § 2162. Payment— Burden of proof. 
 
 § 2163. Payment — Deception as to 
 ownership of note. 
 
 § 2164. Protest — Demand of pay- 
 ment. 
 
 § 2165. Notes given in payment for 
 property. 
 
 § 2166. Assignee after maturity. 
 
 § 2167. Assignee with notice of sus- 
 picious facts. 
 
 § 2168. What constitutes innocent 
 holder. 
 
 § 2169. Bona fide holder— What viti- 
 ates note in his hands. 
 
 § 2170. Assignee with notice from an 
 assignee without notice. 
 
 §2171. Innocent purchaser — Taken 
 as security for pre-existing 
 debt. 
 
 § 2172. Note taken in payment or 
 part payment. 
 
 § 2173. Evidence necessary to over- 
 come presumption. 
 
 § 2174. Note stolen or wrongfully ob- 
 tained. 
 
 § 2175. Endorsement in blank. 
 
 § 2176. Endorsement before maturity 
 Innocent holder. 
 
 § 2177. Endorsement — Intention — 
 Liability. 
 
 § 2178. Liability of endorser— Due 
 diligence — Bringing suit. 
 
 § 2179. Return of the officer not con- 
 clusive. 
 
 § 2180. Extension of time. 
 
 § 2181. Endorsement constitutes 
 
 prima facie liability. 
 
 § 2182. New party — New consider- 
 ation. 
 
 GUARANTORS AND SURETIES. 
 
 § 2183. Guarantor — Liability gen- 
 erally. 
 
 § 2184. When an endorser becomes a 
 guarantor — Illinois. 
 
 § 2185. Guarantor liable until note Is 
 paid— Delay will not re- 
 lease. 
 
 § 2186. Release of guarantor— Ex- 
 tending time — Surety. 
 
 § 2187. Consideration for guaranty. 
 
 § 2188. Insolvency may be proved 
 by other evidence — Return 
 of officer not conclusive 
 
 1407
 
 1408 
 
 FORMS OF INSTRUCTIONS. 
 
 [§ 2134. 
 
 i 2189 Guaranty — Acceptance — 
 Knowledge thereof. 
 
 i 2190. Co-sureties— Partners. 
 
 t 2191. Lien of surety— Title to 
 goods. 
 
 § 2192. Lien of surety— Bills of lad- 
 ing held by title to goods. 
 
 § 2193. Possession of personal prop- 
 erty evidence of ov/nership. 
 
 2134. Presumptions in Favor of the Holder, (a) The court in- 
 structs the jury that the possession of a note, indorsed in blank, 
 unaccompanied by any declaration or other evidence in regard to it, is 
 prima facie evidence that the holder is the owner of it; that he took 
 it for value before it became due, and in the regular course of 
 business.^ 
 
 (b) The jury are instructed that the indorsee of a promissory 
 note, in the absence of proof to the contrary, is presumed in law to 
 have taken it in due course of trade before maturity, for value and 
 in good faith. 
 
 (c) When a note is indorsed without date, the presumption of law 
 is, in the absence of proof to the contrary, that it was indorsed before 
 it became due. 
 
 (d) When the assignment of a promissory note is without date, 
 the law raises a presumption that the transfer was made before the 
 maturity of the note, and to rebut this presumption the burden of 
 proof is upon the person alleging that the note was assigned after 
 maturity.- 
 
 § 2135. Evidence Required for Recovery, (a) The court in- 
 structs the jury that if you believe from the evidence in this case that 
 the defendants executed and delivered to A. in his lifetime, the 
 notes mentioned and described in the declaration, and further believe 
 from the evidence that said notes have not been jDaid by the defend- 
 ants or either of them to the said A. during his lifetime, or to the 
 plaintiff since his decease, then you should find for the plaintiff.^ 
 
 (b) If you find from the evidence that the defendant signed the 
 note sued upon in this action, and that the plaintiff jDurchased it 
 before maturity, you will find for the plaintiff.* 
 
 8 2136. Usury. The court instructs the jury that if you find from 
 
 the evidence that on , Y. executed twelve notes in the sum 
 
 of twenty-one dollars each, payable in one, two, three, foux', five, six, 
 seven, eight, nine, ten, eleven, and twelve months, respectively from 
 date, to the order of H., in consideration of money bori-owed by Y. 
 at that time, and that nine of said notes were secured by and 
 described in the mortgage in evidence, and that said Y. delivered said 
 
 1— Pettee v. Prout, 3 Gray (Mass.) 2— Richards v. Betzer, 53 111. 466. 
 502; Warren v. Gilman, 15 Me. 70; 
 Dugan V. U. S., 3 Wheat. 172; Kel- 
 ly V. Ford, 4 la. 140; Goodman v. 
 •Simoiid.s. 20 How. 343; Cook v. 
 Hclni.s, 5 Wis. 107; F.'irwell v. 
 Myens, 36 111. 510; Stoddard v. Bur- 
 ton, 41 la. 582. 
 
 3 — Robison v. Bailey, 113 111. App. 
 123 (126). 
 
 4— First Nat. Bank v. Carson, 30 
 Neb. 104, 46 N. W. 276 (278). 
 
 "That this request stated the 
 law correctly cannot be ques- 
 tioned."
 
 § 2137.] 
 
 NEGOTIABLE INSTRUMENTS. 
 
 1409 
 
 twelve notes to J, K. on said day, then such transaction is usurious, 
 and the mortgage in evidence is void, and in that case plaintiff 
 cannot recover and your verdict must be for the defendants.^ 
 
 § 2137. Joint Liability. The jury are instructed that where two 
 or more persons are sued and they answer the complaint separately, 
 and one makes a defense which, if sustained, will defeat the entire 
 right of recovery, the rule of law is that if the separate answer by 
 one of several defendants goes to the merits of the ease, and is such 
 that proof of it will defeat a recovery by the plaintiff, it will inure 
 to the benefit of the other defendants.^ 
 
 5 — Kreibohm v. Yancey, 154 Mo. 
 67, 55 S. W. 260 (263). 
 
 "The test of usury in a contract 
 is whether it would, if performed, 
 result in securing a greater rate of 
 profit on the subject-matter than 
 is allowed by law. Webb. Usury 
 § 29. 'The form of the agreement 
 is immaterial, since any shift or 
 device by which illegal interest is 
 arranged to be received or paid is 
 usurious.' Id. §28. 'The true con- 
 struction of statutes regulating in- 
 terest upon the loan or forbearance 
 of money, goods or things in action 
 is that no greater rate of compen- 
 sation than that prescribed shall 
 be taken upon a loan of forbear- 
 ance of money directly or indirect- 
 ly by way of a loan of property or 
 in any other manner, no matter how 
 disguised.' 27 Am. & Eng. Enc. 
 Law p. 935. 
 
 As was well said by Treat J. in 
 Ferguson v. Sutphen, 8 111. 547, 566 
 and 567 'The law against usury is 
 founded in principles of public 
 policy, — principles that have been 
 for ages recognized and almost uni- 
 versally adopted. Without inquir- 
 ing into the policy or justice of the 
 statutes for the prevention of 
 usury, it is the imperative duty of 
 the judicial tribunals faithfully to 
 execute them. If there is any in- 
 justice or impolicy in these enact- 
 ments, the fault rests with the leg- 
 islature, and it must provide the 
 proper corrective and not the 
 courts. Whenever the injured party 
 invokes the aid of the courts, and 
 presents a case clearly within the 
 statute, there should not be the 
 least hesitation in applying the ap- 
 propriate remedy. The only effect- 
 ual mode of discouraging and pre- 
 venting the practice of usury is by 
 a rigid enforcement of the provi- 
 sions of the statute. If a case comes 
 within the mischief of the statute. 
 It should be held to be within the 
 remedy. A;id this seeii^s to be the 
 89 y 
 
 principle on which these statutes 
 have everywhere been construed 
 and administered. The real injury 
 in every case is whether there has 
 been a borrowing and lending at a 
 greater rate of interest than the 
 law allows, and this becomes pure- 
 ly a question of fact to be deter- 
 mined from all the circumstances 
 of the particular case. The law 
 looks at the nature and substance 
 of the transaction and not to the 
 color or form which the parties in 
 their ingenuity have given it. No 
 imaginable act or contrivance to 
 cover up and conceal the usury 
 will avail the parties. They will not 
 be permitted successfully to evade 
 the provisions of the statute by any 
 conceivable scheme or expedient. 
 The courts will follow them 
 through all their shifts and de- 
 vices and ascertain the true char- 
 acter and design of the transaction. 
 And if, upon such investigation it 
 appears that there was in sub- 
 stance, a loan at an illegal rate of 
 interest, no matter what form or 
 shape the contract has been made 
 to assume, it will be declared to 
 be usurious and the proper remedy 
 applied.' " 
 
 6— Brant v. Barnett, 10 Ind. App. 
 653, 38 N. E. 421 (422). 
 
 "We think counsel are mistaken 
 in the construction placed by them 
 on the instruction. The court did 
 not tell the jury that if the appel- 
 lee, , at the time she signed 
 
 the note, was a married woman, 
 and executed it as surety for the 
 maker, that would release the ap- 
 pellee X from liability; but the 
 court simply told them that, if one 
 of the persons who executed the 
 note established a defense which 
 would defeat appellant's right to 
 recover at all, such defense inured 
 to the benefit of all the other de- 
 fendants, whether they individually 
 made such defense or not. The in- 
 struction states the law correctly.
 
 1410 FORMS OF INSTRUCTIONS. [§2138. 
 
 § 2138. Gift. The court instructs the jury that possession of the 
 note by the payee at the time of his death was evidence tending to 
 prove that there had been no gift of the note.'^ 
 
 § 2139. Action on Bond — Damages — Recoupment, (a) You are 
 charged that under the terms of this contract a bond has been given, 
 and that bond, in substance, guarantees the character of this work 
 for the term of five years, and that, if there is anything that has 
 occurred after the acceptance that shows the work didn't hold out 
 under this guaranty, that suit should be brought upon this bond. 
 
 (b) I charge you that whatever damages, if there are any, under 
 the evidence, this defendant can recoup here. 
 
 (c) I charge you that the defendant in this ease is at liberty to 
 plead that recoupment here, and waive his remedy upon the bond, if 
 he sees fit. 
 
 (d) So, under this issue, if you shall find that there has been a 
 breach of this contract on the part of the iDlaintift, and the defendant 
 has suffered damage from it,- vou may award that damage to the 
 defendant, as against the claim of the plaintiff, even if it overcomes 
 the amount of the plaintiff's claim, and render judgment for the 
 balance to the defendant, if you shall find anything of that kind.^ 
 
 § 2140. Balance on Account — Credits. This is a question of ac- 
 counting and bookkeeping. You have heard the evidence in this case, 
 and you will have to ascertain from it, as best you can, the amount 
 of money that is due to the plaintiff here. That the defendant owes 
 the plaintiff is admitted by the defendant; but the question is, how 
 much"? The defendant claims that the amount claimed by the plaintiff 
 is excessive, and that it is entitled to certain credits thereon, in con- 
 sequence of demands which they had as against C, who was the 
 payee of the note transferred to the plaintiff. If you should find 
 from the evidence that any of these items which counsel have called 
 to your attention were designed and intended at the time to have 
 been payments on account, or to the credit of the note, and that 
 such items were agreed upon and determined before the date of the 
 
 indorsement of the note to the plaintiff, which was , they would 
 
 be entitled to have them credited upon the amount due upon the 
 note — principal and interest. If you should conclude that they are 
 not entitled to any of these credits, then it would be your simple 
 duty to ascertain the amount of principal and interest due, after 
 deducting the amount of the cash payments which are contained on 
 the back of the note." 
 
 Stapp v. Davis, 78 Inrl. 128; Moyer 8— "This instruction is sound 
 
 V. Urand. 102 Ind. 301, 26 N. E. law." Nclsnn Mfs- Co. v. Shreve, 
 
 12r); for, if the appellant had no 94 Mo. App. 518, 68 S. W. 376 (377). 
 
 cause of action, he was not "entitled 9 — Love v. Anchor Raisin Vino^- 
 
 to recover." yard Co., — Cal. — , 45 Pac. 1044 
 
 7— Oelke v. Thais, 70 Neb. 465, 97 (1045). 
 N. W. 588.
 
 §2141.] NEGOTIABLE INSTRUMENTS. 1411 
 
 § 2141. Liability of Principal and Surety. The court instructs the 
 jury that it makes no dift'erence whether the defendant, I., signed 
 the note in question as principal or as surety; his liability to pay 
 the note would be the same in either case, if you find from the weight 
 of the evidence he did sign the note.^° 
 
 §2142. Accepting of Draft Without Bill of Lading. If you be- 
 lieve, from the evidence, that the defendants agreed to honor the 
 drafts of G. & W. for the cost of cattle consigned to the defendants, 
 and that the draft herein sued on was drawn for the cost of cattle in 
 pursuance of said agTeement, and that said cattle were consigned to 
 the defendants, then you will find the issues in this case for the 
 plaintiff." 
 
 § 2143. Execution and Delivery — Burden of Proof, (a) The 
 court instructs the jury that the answer of the said defendant in this 
 action is a general denial, and that the pleadings put in issue the 
 execution and delivery of the note sued on herein; that is, the burden 
 of the proof is on the plaintiff to prove that said B. made, signed 
 and delivered the note sued on to the plaintiff; and that, unless you 
 believe from the evidence before you that said B. did make and sign 
 and deliver said note to the said iDlaintiff, your verdict should be for 
 the said defendant and against the plaintiff. 
 
 (b) The court instructs the jury that in an action on a promis- 
 sory note in this court an answer on the part of the defendant in 
 such an action consisting of a general denial, is a denial of the execu- 
 tion and delivery of the said note, and throws back upon the plaintiff 
 the duty and burden of proving by a preponderance of the evidence 
 that the note is genuine and was executed and delivered by said B. 
 to the said plaintiff, and unless you believe from the evidence before 
 you that the said B. did make and deliver the said note to the said 
 plaintiff your verdict should be in favor of said defendant and 
 against the plaintiff. 
 
 10 — Ingram v. Reiman, 81 111. City, the bank knew nothing- of 
 
 App. 123 (125). the diversion of the consignment 
 
 11— Hall V. First Nat'l B'k of Em- and the substitution of o.her cattle 
 
 poria, 13.3 III. 234 (241), 24 N. E. 546. In their place or stead, and cannot 
 
 "It cannot be fairly said that the be affected thereby, whether the 
 instruction assumes any fact. If diversion was accidental or by de- 
 the defendants agreed to accept the sign. As said by the Appellate 
 draft before it was drawn for the Court: 'Where a party agrees to 
 cost of the cattle, and it was accept and pay a draft for cattle 
 drawn, and the cattle were con- bought and consigned to him, with- 
 signed to the defendants, they out requiring a bill of lading to be 
 would be liable therefor as fully attached, he, and not the party 
 as though they had formally ac- who in good faith advances money 
 cepted the draft upon its presenta- on the draft relying on such prom- 
 tion. Nor can the contention that ise to accept and pay, takes the risk 
 the cattle for which the draft was of the stock being diverted while 
 drawn never reached defendants, in transit either by accident or de- 
 but that an inferior lot was shipped sign.' It is apparent also that ap- 
 to them, avail as against the pellants suffered no injury jn re- 
 plaintiff in this case. If it be true, spect of this particular shipment 
 as it probably is, that the cattle as the cattle realized a sum in ex- 
 against which the draft was drawn cess of the draft." 
 ultimately were sold at Kansas
 
 1412 FORMS OF INSTRUCTIONS. [§ 2144. 
 
 (c) The court instructs the jury that if you believe from the evi- 
 dence before you that the promissory note in controversy was never 
 delivered by B. in his lifetime, nor by the duly appointed executor 
 of his estate after his death, then you are instructed that it is your 
 duty to find your verdict in favor of the said B. estate and against 
 the plaintiff. 
 
 (d) The court instructs this jury that the burden of proof is on 
 the plaintiff to prove by a preponderance of the evidence that this 
 note in controversy is the true genuine note of said B. deceased; that 
 it was delivered to the plaintiff G. by said B., deceased, in his life- 
 time; and if the plaintiff has failed to so prove, then it is your duty 
 to find your verdict in favor of the said defendant estate and against 
 the said plaintift'.^^ 
 
 § 2144. Genuineness of Signature — ^Credibility of Witnesses — 
 What Must Be Proved — Bona Fide Holder, (a) Witnesses have 
 testified as to their opinion respecting the genuineness of the signature 
 to the note in suit, based upon their acquaintance with and knowledge 
 of defendant's genuine signature. You will carefully consider the 
 same, and give it the weight and value it is justly entitled to, taking 
 into account the experience and knowledge of the witnesses about the 
 matter concerning which the opinion is given. Such evidence, how- 
 ever, is regarded as unsatisfactory. It is, in fact, the result of a 
 comparison of the signature in question with the genuine signature 
 of the defendant as the same is remembered and impressed upon the 
 mind of the witness whose opinion is so given. Such evidence ought 
 not to overthrow positive and direct testimony of a credible witness 
 who testifies from personal knowledge. It should not be disregarded 
 in any case without good and sufficient reasons, such as would entitle 
 you to disregard other evidence. In case of a conflict between the 
 evidence of witnesses about the matter on which the opinion is given, 
 it is important as corroborative evidence. ^^ 
 
 (b) The jury are instructed that in determining the issue whether 
 or not the signature *'J." appearing upon the notes in evidence is 
 
 the genuine signature of the president of the Association 
 
 at the date of the said notes, you ai'e not bound, by the fact that the 
 witness J. is the person whose signature is under consideration, to 
 consider the testimony of said J. himself on this issue as conclusive 
 or controlling; but you must consider tlie testimony of said J., and 
 that of each and every other witness, bearing upon this issue, and 
 give to such testimony and all the evidence such weight and credi- 
 bility only as, in your judgment, and under your oath as jurors, you 
 think the same entitled to. And in determining upon your verdict 
 
 12 — Garidy v. Bissoll's Estate, 5 of the instruction in the parti;"ulars 
 
 Nfb. (unof.) 184, 97 N. W. 632 (634). of which complaint is made, and, if 
 
 13 — Bruner v. Wade, 84 la. 698, 51 a mnro specific statement was de- 
 
 N. W. 251 (2.52). sired, it should have been asked. 
 
 No error is apparent on the face
 
 §2145.] NEGOTIABLE INSTRUMENTS. 1413 
 
 you must consider all the evidence, and every fact and circumstance 
 in evidence before you; and if, after fully considering the testimony 
 of all the witnesses, and all the facts and circumstances developed by 
 the evidence, you are reasonably satisfied that said J., as president of 
 said association, did sign the name *'J." to said notes, then your 
 verdict must be for plaintiffs. i'* 
 
 (c) Under the issues as joined, it is incumbent upon the plaintiff 
 •to prove, by a preponderance of the evidence, that the note in suit 
 was executed by the defendant as alleged, that the plaintiff is the 
 owner of the same and that said note is now due and unpaid. 
 
 (d) If you believe from the evidence that the note in controversy 
 was not executed by the defendant — that is, that he never signed the 
 same, or authorized his name to be placed thereto by any one, but 
 that his signature was placed to said note without his knowledge or 
 consent — then you should find for the defendant, although such note 
 may have passed into the hands of a bona fide holder before 
 maturity.^^ 
 
 § 2145. Receipt of Payment — Genuineness of Signature, (a) The 
 jury are instructed as a matter of law that the possession by the 
 plaintiff of uncancelled promissory notes, is prima facie proof that 
 such notes remain unpaid, and the burden of proving the payment of 
 such notes is ujDon the person alleging they have been paid; and 
 unless the jury believe defendant has proven by a preponderance of 
 the evidence, the payment of the notes offered in evidence therein, 
 verdict must be for the plaintiff. 
 
 (b) It is for the jury to determine from the evidence what the 
 parties intended in making said receipts, and if they believe from the 
 evidence that the parties did not intend to adjust, and did not adjust 
 said notes, bj' said receipt, they will disregard said receipt. 
 
 The jury are instructed that the receipt introduced in evidence, 
 if genuine, is prima facie evidence of payment in full of all moneys 
 owing by S. to C. at the time of the making of said receipt, and in the 
 absence of any rebutting proof, establishes the fact of payment in 
 full of all money indebtedness of said S. to said C. existing at said 
 time. 
 
 (e) If you believe from the evidence that tlie signature on the 
 receipt introduced in evidence is the genuine signature of C, then you 
 are instructed that said receipt is evidence of the highest and most 
 
 14 — Sanders v. North End B. & been error for the court to refuse to 
 
 L. Assn., 178 Mo. 674, 77 S. W. 83.3 so declare. The testimony of no 
 
 (836). witness is conclusive upon a jury. 
 
 "This instruction practically told Under the issues, it was imposLibla 
 
 the jury that, under the issue as to that J. should be anythingr else 
 
 whether the notes were signed by than prominent in the case, but it 
 
 J. or not, his testimony was not cannot be said that this instruc- 
 
 conclusive, but that the jury must tion made him or his testimony 
 
 decide that issue according to all 'unfavorably' prominent." 
 
 the evidence and facts and circum- 15 — First Nat. Bank v. Carson, 3C 
 
 stances of the case. It would have Neb. 104. 46 N. W. 276 (277).
 
 1414 FORMS OF INSTRUCTIONS. [§ 2146. 
 
 satisfactory character of the payment in full by S. to C. of all money 
 due him from S. at the time of the making of said receiiDt.^*' 
 
 § 2146. Fraud — Mistake — Unable to Read — Relying on Another. 
 
 (a) Although the jury may believe, from the evidence, that a person 
 representing himself as the agent of B., the payee named in the note 
 in suit, applied to the defendant to become an agent of the said B. 
 for the sale of (seed drills), to be manufactured by the said B., and 
 that it was agreed between said agent and the defendant (that de- 
 fendant should only be required to pay an agreed share of the money 
 collected by him from such sales, etc.), and that the defendant signed 
 the note offered in evidence, supposing, at the time, that he was 
 onlj' signing certain paj^ers constituting himself such agent, in pur- 
 suance of such agreement, and that he was deceived as to the char- 
 acter of such paper by the false and fraudulent representations of 
 said agent in reference thereto, still the defendant will be liable upon 
 said note, provided you further believe, from the evidence, that the 
 defendant was able to read writing, and did not read the paper, or 
 without unreasonable efforts in that behalf might have learned the 
 true character of the paper, by procuring the same to be read to 
 him by some person having no interest in deceiving him; and also 
 that the plaintiff took the note in the ordinary course of business, 
 for value and before due, and without any notice of the fraud prac- 
 ticed upon the defendant.^'' 
 
 (b) If defendant was induced to execute the note in question by 
 false and fraudulent representations made to him, regarding the 
 character of the instrument which he was desired to sign, so that 
 he was led to believe the paper presented was a wholly different 
 instrument, then the note is void as to him, and the plaintiff cannot 
 recover thereon; provided, the jury further believe, from the evidence, 
 that the defendant Avas not chargeable with any negligence which 
 contributed to the deception. ^^ 
 
 (c) If the jui-y believe, from the evidence, that the said B. was 
 the agent for the plaintiff, and that he obtained said note from the 
 defendant as such agent, and further, that when defendant signed 
 the note he was unable to read writing readily, and requested the 
 said B. to read the same to him (or the said B. offered to read the 
 same to him), and did read it to the defendant, and if the jury 
 further believe, from the evidence, that the said B., when reading 
 said note, misread the same in any material part, and thus misled 
 the defendant, and induced him to sign said note, when he would 
 not otherwise have done so, then these facts would constitute fraud 
 
 16— roniiolly v. Sullivan, 119 111. 18— DeCamp v. Haminn, 29 Ohio 
 
 App. 469. St. 467; Hubbard v. Rankin, 71 
 
 17— Ross v. Dolan, 29 Ohio St. 111. 129; Gibbs v. Linaburg, 22 Mich, 
 
 473. 479.
 
 § 2147.] NEGOTIABLE INSTRUMENTS. 1415 
 
 and circumvention, within the meaning of the law, and the note is 
 not binding upon the defendant, but is wholly void as to him.^^ 
 
 (d) That if a person is induced, through a fraud practiced upon 
 him, to sign a promissory note, under the belief that it is an instru- 
 ment of an entirely different character, and he is guilty of no negli- 
 gence on his part, the note will be void in whosesoever hands it may 
 be, as having been obtained through fraud and circumvention. ^^ 
 
 (e) In this state, if the signature of a person is obtained to a 
 note by the fraud or circumvention of the payee thereof, or of any 
 person acting for him, then such a note will be wholly void, even in 
 the hands of a bona fide assignee without notice ; provided, it appears, 
 from the evidence, that the maker of the note was not chargeable with 
 any want of reasonable care and caution to avoid being imposed 
 upon.2^ 
 
 (f) If the jury believe, from the evidence, that the defendant was 
 induced to execute the note in question by false and fraudulent rep- 
 resentations made to him, regarding the chai'acter of the instrument 
 which he was desired to sign, so that he was led to believe the paper 
 presented was a wholly different instrument, then the note is- void 
 as to him, and the plaintiff cannot recover thereon; provided, the 
 jury further believe, from the evidence, that the defendant was not 
 chargeable with any negligence which contributed to the deception. ^^ 
 
 § 2147. Signature Obtained through Artifice or Fraudulent Repre- 
 sentations, (a) Where one voluntarily signs a negotiable promis- 
 sory note, supposing it to be an obligation of a different character, but 
 has full means of information in the premises and neglects to avail 
 himself thereof, relying upon the representations of another, he can- 
 not set up such ignorance and mistake against an innocent holder for 
 value, who takes it before maturity. If, however, his signature was 
 procured through artifice or fraudulent representations, without neg- 
 ligence on his part (under such circumstances that reasonable and 
 ordinary care would not enable him to discover the fraud or im- 
 position), then the maker is not liable on the note.^^ 
 
 (b) Although the jury may find, from the evidence, that there 
 was an agreement between the agent of the said B. and the defendant, 
 to the pui-port and effect of the agreement set out in the last instruc- 
 tion, and that the defendant, by the false and fraudulent representa- 
 tions of the said agent, was induced to affix his signature to a printed 
 blank which would be in the form of a promissory note when the 
 
 19— Smentek v. Cornhauser. 17 111. St. 467; Hubbard v. Rankin, 71 111. 
 
 App. 266; Smith on Fraud, Sec. 129; Gibbs v. Linaburg, 22 Mich. 
 
 209. 479, 7 Am. Rep. 675. 
 
 20— Hubbard v. Rankin, 71 111. 23— DeCamp v. Hamma, 29 Ohio 
 
 129. See Van Brunt v. Langley, 85 St. 467; Mead v. Munson, 60 111. 49; 
 
 111. 281. State Bank v. McCov. 69 Penn. St. 
 
 21— Griffiths v. Kellogg, 39 Wis. 204. 8 Am. Rep. 246; Douglas v. 
 
 290. 20 Am. Rep. 48. Matting, 29 la. 498, 4 Am. Rep. 238. 
 
 22 — DeCamp v. Hamma, 29 Ohio
 
 1416 FORMS OF INSTRUCTIONS. [§ 2148. 
 
 blanks were filled, but without any intention of executing a promis- 
 sory note, and then delivered the said paper so signed by him to 
 said agent, and gave him no authority to fill said blanks or to write 
 anything over his signature, still the defendant would be liable in 
 this ease, if you further believe, from the evidence, that the agent, 
 or the said B., afterwards filled the blanks in the form in which it is 
 now written, and that the plaintiff took the note in the ordinary 
 course of business for value and before due, without any notice of 
 the fraud practiced upon defendant. ^^ 
 
 (e) The court instructs the jury, that fraud and circumvention, 
 in obtaining the execution of a note, within the meaning of the 
 statute, is not a fraud which relates to the quality, quantity, value 
 or character of the consideration of the note. It means some trick, 
 artifice or device, by means of which a person is induced to give the 
 note in question, under the belief that he is giving an instrument of 
 a different character; as when a person is induced to give a note 
 under the belief that it is a receii3t (or is induced to give a note 
 for one amount, under the belief that it is for a different amount). ^^ 
 
 § 2148. Must Use Reasonable Care to Avoid Imposition. That a 
 person, before executing a promissory note, should use all reasonable 
 and ordinary precautions to avoid impositions, and if able to read 
 writing readily, he should examine it himself, and if not able to 
 read, he should have it read to him, by some one in whom he has 
 confidence, unless some trick or artifice is used, or false statement 
 made, reasonably calculated to induce him to neglect such ordinary 
 prudence.^" 
 
 § 2149. Fraud May be Waived. If the juiy believe, from the evi- 
 dence, that after the giving of the note in question the defendant 
 learned all the facts regarding, etc., and that after discovering such 
 facts, and at or about the time the note came due, he requested the 
 plaintiff to give him time to pay it, stating that he would pay it, and 
 that the plaintiff, in pursuance of such request, did give him addi- 
 tional time after the note came due in which to pay it, then the 
 defendant thereby waived the alleged fraud, and he will now be 
 liable on the note, although at the time he asked for time to pay it 
 he did not know that the facts, now set up as a defense, would make 
 a defense in law.^'' 
 
 8 2150. Defendant Inducing Plaintiflf to Buy Note — Estoppel, (a) 
 If you believe from the evidence that the defendant, T., induced the 
 plaintiff to buy or purchase the note or bond described by the de- 
 fendant in his testimony, then your verdict must be for the plaintiff, 
 notwithstanding the note may have been without consideration, not- 
 
 24— Ross V. Doland, 29 Ohio St. 473; Nebecker v. Cutsinger, 48 Ind. 
 473. 436. 
 
 25- Latham v. Smith, 45 111. 25; 27— Rindskopf v. Doman, 28 Ohio 
 Butler V. Cams, 37 Wis. 61. St. 516. 
 
 26— Ross V. Doland, 29 Ohio St.
 
 §2151.] NEGOTIABLE INSTRUMENTS. 1417 
 
 withstanding the note may have been procured by fraud and misrep- 
 resentations, and notwithstanding the fact that there may have been 
 irregularities in the transfer of the note from R. to S. 
 
 (b) If you believe from the evidence that the defendant induced 
 the plaintiff to buy or purchase the note or bond described in the 
 evidence of defendant, T., then you must find j'our verdict for the 
 plaintiff, even though the evidence should show that the article sold 
 by R, to T. was not in fact patented. 
 
 (c) If the jury believe from the evidence that the defendant, T., 
 requested or induced the plaintiff, G., to buy or purchase the note 
 or bond described by the defendant in his testimony, your verdict 
 must be for the plaintiff, provided you further find that plaintiff did 
 buy the note or bond for value. 
 
 (d) Gentlemen of the juiy, if you find from the evidence that 
 the defendant, T., induced S. to buy the note or bond described in 
 the testimony of the defendant, T., and he (plaintiff) parted with 
 value for the note or bond, then your verdict must be for the plaintiff. 
 
 (e) If the jurs' believe from the evidence that the defendant 
 procured or induced the plaintiff to buy the note or bond desci'ibed 
 by defendant, T., in his testimony, and you further find that the 
 plaintiff parted with value for the said note or bond, then the 
 defendant is estopped from setting up any kind or character of 
 defense to this action which may have existed at the time the plaintiff 
 purchased the note, and your verdict must be for the plaintiff.-^ 
 
 § 2151. Duress — Threats of Imprisonment, (a) Under the ad- 
 missions and allegations made in these pleadings the only issue which 
 you are called upon to try is this: Were the notes set out in plaintiff's 
 petition given by the defendant by reason of the threats of imj^rison- 
 ment of the said C. W. N. made by the plaintiff or its agents to the 
 defendant at the time said notes were given. 
 
 (b) The burden of proof in this case is upon the defendant, and 
 after admitting the signing and execution of the notes before he can 
 avoid the payment thereof, he must prove by a preponderance of 
 the evidence that said notes were not given voluntarily by him but 
 were obtained from him by such threats and duress as to overcome 
 his will and understanding. 
 
 (e) You are instnicted that duress, in order to avoid the pajTuent 
 of these notes, must be such an influence exerted by the plaintiff 
 upon the defendant as to overcome his will and compel a formal 
 assent to an undertaking when he really does not agree to it, and 
 make that appear to be his free act, which is not his but is another's, 
 imposed upon him through fear which deprives him of self control. 
 And in this case, if you find that the defendant has proved by a pre- 
 ponderance of the evidence that he signed these notes wholly and 
 
 28 — Tapscott v. Gibson, 129 Ala. request properly applied to the evi- 
 503, 30 So. 23 (26). dence a familiar principle in the 
 
 "The charges given at plaintiff's law of estoppel."
 
 1418 FORMS OF INSTRUCTIONS. [§ 2152. 
 
 entirely on account of the fear which the plaintiff had created in 
 his mind that his son-in-law, C. W. N., would be sent to the peni- 
 tentiary unless the same were signed, and that N. would not be 
 sent there if he did sign them, and the fear was such as to deprive 
 the defendant of his understanding and deprive the transaction of 
 its voluntaiy character, then you are instructed that such notes would 
 be void, and your verdict should be for the defendant. If, however, 
 you believe that the defendant has failed to prove that his mind was 
 so overcome by such threats that he was deprived of reason and 
 understanding then you will return a verdict for the plaintiff for the 
 full amount of said notes sued on.^^ 
 
 (d) Duress in the making of a contract exists when the person 
 making it is induced to make it by reason of being put in fear by 
 means of threats of aiTesting him and unlawfully charging him with 
 crime, when the threats and the fear induced thereby are such as 
 would influence a man of reasonable courage and prudence, and do 
 deprive the party making the contract of the exercise of free will in 
 making it. The threatened arrest, however, must be wrongful and 
 unlawful, and apparently about to be enforced.^'* 
 
 § 2152. Duress — Abuse of Criminal Process — Lawful Imprison- 
 ment not Duress, (a) The court instructs the jury, that if they 
 believe, from the evidence, that the note sued upon, in this case, was 
 obtained from the defendant through a wrongful perversion or abuse 
 of criminal process, as explained in these instructions, then such note 
 is void in the hands of the payee, or in the hands of any person taking 
 it after maturity, or with notice of the manner in which it was ob- 
 tained.^^ 
 
 29— Nebraska Mut. Bond Ass'n v. 81 N. W. 495-501, 47 L. R. A. 417, 76 
 
 Klee, 70 Neb. 383, 97 N. W. 476-8. Am. St. 912. Under this view of 
 
 "This state has already taken its the law the jury is properly direct- 
 place in line with the more ad- ed to inquire into the mental 
 vanced position upon this subject capacity of the defendant, and 
 and that position is accurately set whether the threats, whatever they 
 forth in the instructions given. To were, probably deprived him of his 
 constitute duress sufficient to avoid free will, inducing- him to make a 
 a contract in this state the means contract that he would not other- 
 adopted need only be of a character wise have made, rather than to the 
 necessary to overcome the will and particular threats made to see 
 desire of the injured party, wheth- whether they meet with an arbl- 
 er that person be above or below trary standard which may or may 
 the average person in firmness and not be applicable to the person in- 
 courage, and whether the means jured. The trial court committed 
 employed come clearly within the no error in giving the instructions 
 common law definition of duress or relative to the plea of duress." 
 otherwise. In other words the law 30 — Kennedy v. Roberts, 105 la. 
 extends its protection to an indi- 521, 75 N. W. 363-5. 
 V'dual without reference to wheth- "Several objections are lodged 
 er he is strong or weak intellect- against it, none of which are of 
 uallv, and refuses to measure his sufficient importance to justify 
 rights by an arbitrary yardstick separate consideration. The in- 
 avowedly applicable only to men struetion is an accurate definition 
 of ordinary intellect, firmness and of duress. See Bish. Cont. §715; 6 
 murage. First National Bank v. Am. & Eng. Enc. p. 64, and cases 
 Hargeant, 65 Neb. 594, 91 N. W. 595, cited; Baker v. Morton, 12 Wall 
 59 Jj. R. A. 296 and cases cited; 150." 
 Galuaha v. Sherman, 105 Wis. 263, 31— Bowen v. Buck, 28 Vt. 309;
 
 §2153.] NEGOTIABLE INSTRUMENTS. 1419 
 
 (b) The jury are instructed, that a lawful imprisonment is not 
 such duress as will, alone, enable a party to avoid a note made, while 
 so imprisoned, on the ground of duress. And, in this case, although 
 the jury may believe, from the evidence, that the notes in question 
 were Executed and delivered while the defendant was under arrest, still, 
 if the jury further believe, from the evidence and under the instruc- 
 tions of the court, that such arrest was legal, then such arrest alone 
 will not render the said notes void.^- 
 
 § 2153. Duress — Ratification of Voidable Note. It is claimed by 
 the defendant that the plaintiff, after the execution of said note, rati- 
 fied the execution of same in the summer of . A contract that is 
 
 fraudulent by reason of same having been procured by means of 
 duress may be ratified and confirmed by the maker thereof if his sub- 
 sequent acts, with knowledge of all of the facts, are such as to fully 
 indicate that he intends to then agree to and confirm said contract. 
 If it appears from the evidence, by the letter written by plaintiff to 
 his daughter concerning the note in question after same w'as executed, 
 and by plaintiff's statements concerning the note and its payment by 
 him to the officers of the R. N. Bank, that the plaintiff intended at the 
 time of making said statements to assent to and confirm the contract 
 made in said note, and pay the defendant, then such state of fact 
 would amount to a ratification of said note by plaintiff, and would 
 prevent plaintiff from subsequently claiming that said note was ob- 
 tained from him by duress. But, to amount to a ratification of said 
 note, the plaintiff's acts- must have been such as to fully indicate an 
 intention on his part at that time to assent to and confinn the con- 
 tract contained in said note. If the plaintiff's purpose in writing to 
 his daughter and in making statements to the officers of said bank 
 was to get and keep the note within the jurisdiction of this court, 
 so that he could replevin same from defendant, and not to confirm 
 the contract contained in said note, then said acts and statement 
 would not, in any event, amount to a ratification of the note. If 
 said note was obtained by duress, to overcome such duress the bur- 
 den rests with defendant to show that plaintiff ratified said note, by 
 a preponderance of the evidence. ^^ 
 
 § 2154. Want of Consideration, (a) It is contended on the part 
 of the defendants that, if the said A. executed said note to the 
 plaintiff, he did it ujwn consideration that the plaintiff would quit 
 the patent-right business, go home and stay with his family, and 
 
 Fay v. Oatley, 6 Wis. 42; Cappell may be by express consent or by 
 
 V. Hall, 7 Wall. 538; Schenk v. conduct inconsistent with any other 
 
 Phelps, 6 Brad. (111.) 612; Joyce on hypothesis than that of approval. 
 
 Comm. Paper, Sec. lOS-109. Intention to ratify, either explicit 
 
 32 — Heaps v. Dunham, 95 111. 583; or presumed, is at the foundation 
 
 Joyce on Comm. Paper, Sec. 108. of the doctrine of waiver or rati- 
 
 33— Kennedy v. Roberts, 105 Iowa fication. As applied to the facts of 
 
 521, 75 N. W. 363 (365). this case, we think the instruction 
 
 "Ratification is the adoption or was correct." 
 confirmation of a voidable act. It
 
 1420 FORMS OF INSTRUCTIONS. [§2155. 
 
 sell no more patent-rights or gates as long as A. lived; but the de- 
 fendants further contend that the consideration of said note has 
 failed, and that the plaintiff after making of said note sold patent- 
 rights and gates, and therefore said note is void. The burden 
 of proof is on the defendants to prove this contention by a prepon- 
 derance of the evidence. In order to defeat the collection of said 
 note under this branch of the defendants' contention, the defend- 
 ants must prove by a preponderance of the evidence that all said 
 consideration failed. If all the consideration of said note did not 
 fail, then the note is valid, so far as the consideration is concerned.^* 
 
 (b) If you find from the evidence that the note in suit was exe- 
 cuted by decedent, and that the sole consideration was that he would 
 quit the patent-right business, and not sell any more patent-rights 
 so long as X. should live, and go home and stay with his family, and 
 sell no more patent-rights so long as said X. lived; and if you further 
 find from the evidence that after the execution of said note, and 
 during the lifetime of said X., said X. failed to keep his promise, 
 and during said period did not quit the patent-right business, and 
 did not go home and stay with his family, but during said period 
 did engage in the patent-right business, did sell or attempt to sell 
 patent-rights, either on his own account or as partner, assistant 
 or agent of another, — then I instruct you the consideration of the 
 note failed, and you should find for the defendants.^^ 
 
 (e) The court charges the jury, that, if they believe from the 
 evidence, that B. told the plaintiff that S. had bought stock in the 
 patent-right; or that S. was going into the same; that such repre- 
 sentations were false, fraudulent and material to the contract in this 
 case; and that R. induced and controlled thereby, took stock in said 
 
 patent-right, — then R. is not liable, and the note for $ to H. and 
 
 transferred to B., cannot be offset against plaintiffs.'^'' 
 
 §2155. "Worthless" and "Doubtful" Notes, (a) In passing 
 upon this question as to Avhether the notes were doubtful or worth- 
 less, you are entitled to take into consideration all the evidence intro- 
 duced before you with reference to the property, financial standing, 
 and credit of the several signers of the notes, and the words "doubt- 
 ful" and "worthless" are to be understood by you as used in or- 
 
 34 — Ray v. Moore, 24 Ind. App. second charge given for plaintiff. 
 
 480, 56 N. E. 937-8, citing- Hinshaw It liypotliesized tlie facts set up in 
 
 v. State. 147 Ind. 387, 47 N. E. 157; the fourth replication, and instruet- 
 
 Anderson v. State, 147 Ind. 451, 46 ed the jury to lind for plaintiff as 
 
 N. E. 901. to the matter involved in the third 
 
 35 — Ray v. Moore, supra. plea, if they believed the facts 
 
 "It puts upon appellees the bur- averred in said replication. Wheth- 
 
 den of proving the entire failure of er the patent was valuable or 
 
 appellant to perform his entire worthless was not averred in this 
 
 promise. Nor can it be fairly said replication, and the plaintiff was 
 
 that it tells the jury that they may entitled to recover on the facts 
 
 estimate the damages of an at- which were averred in it. if proved, 
 
 tempt to sell a patent-right." wholly regardless of the considera- 
 
 36 — Rnmar v. Resser, 123 Ala. 641, tion that the property for which 
 
 26 So. 510. plaintiff gave his note to H. was 
 
 "And so with respect to the valuable or of no value."
 
 §2156.] NEGOTIABLE INSTRUMENTS. 1421 
 
 dinary business transactions among men of ordinary business ca- 
 pacity.^''^ 
 
 (b) The court charges the jury that if they believe from the evi- 
 dence, that the patent-right sold to R. is worthless, then B. cannot 
 offset the note for $ .^^ 
 
 § 2156. Settlement of Old Debt— Consideration. If H, owed to 
 the plaintiff the amount of the note sued upon, and if the property 
 of H. was in the control of the defendant, and if, at the request of 
 H., the defendant gave to the plaintiff the note sued upon in satis- 
 faction of the debt of H. to the plaintiff, and the plaintiff accepted 
 the note as such satisfaction, then the note was given upon suf- 
 ficient consideration, and the plaintiff is entitled to recover the 
 amount due upon the note. What are the facts, the jury must de- 
 termine from the evidence, and from that alone, and nothing in any 
 instruction is to be taken as any intimation by the court as to what 
 any of the facts are.^^ 
 
 § 2157. Illegal Consideration, (a) If the jury are reasonably 
 satisfied from the evidence that the only or any material part of 
 the consideration which defendant received for signing the notes sued 
 on was an agreement or promise of F., the plaintiff, to keep secret the 
 
 misuse or misapproijriation of dollars of F. 's money by S., and 
 
 S. admitted in the i^resence of F. and defendant that he had misused 
 
 or misappropriated $ of F.'s money, then the jury should find 
 
 for defendant. 
 
 (b) If the jury are reasonably satisfied from the evidence that 
 the agreement between F. and the defendant was that the notes 
 were to be made due and payable one and two years after date, and 
 that F. went off and wrote the notes, and came back to where S. 
 was and said to defendant, S., ''Here are the notes made out ac- 
 cording to the agreement," and defendant, S., relaying upon the truth 
 of F.'s statement signed the two notes believing that they were due 
 one and two years after date respectively, the jury must find for 
 the defendant. 
 
 37 — McCormick H. Mach. Co. v. fendant could not recover on his 
 
 Carpenter (unof.), 1 Neb. 273, 95 plea of setoff; and there can be no 
 
 N. W. 617 (618). doubt of the correctness of that 
 
 "The instruction actually given proposition. If defendant desired 
 
 by the court was not in itself er- to rely upon purchase of the note 
 
 roneous, but should have been ac- for value without notice, etc., he 
 
 companied with an instruction should have rejoined to this repli- 
 
 plainly telling the jury the mean- cation instead of taking issue upon 
 
 ing of the contract upon the points it." 
 
 in dispute." 39— Harris v. Harris. 180 111. 157 
 
 38— Bomar v. Rosser, 123 Ala. 641, (158), affg. 80 111. App. 310 54 N E 
 
 26 So. 510. 180. ft' , . . 
 
 "The charge given for the plaintiff "We think it clear that the in- 
 
 asserts that if there was no con- struction lays down a correct prop- 
 
 sideration for the $100 note, or in osition of law. In Underwood v 
 
 other words, that if the patent right Hossack. 38 111. 208, it was held that 
 
 for which the note was given, was an extension of time for the per- 
 
 worthless, the defendant could not formance of an agreement or for 
 
 set it off against plaintiff's de- the payment of a debt is sufficient 
 
 mand. This was only to say that consideration to support a con- 
 
 if the replication of want of con- tract." 
 sideration had been proved, de-
 
 1422 FORMS OF INSTRUCTIONS. [§ 2158. 
 
 (e) If the jury are reasonably satisfied from the evidence that 
 F. agreed with and promised S., that if he would sign the notes 
 
 sued on, he would keep secret the misuse of the $ , and this was 
 
 a material part of the consideration which caused defendant to sign 
 the notes sued on, the jury must find for the defendant.*^ 
 
 § 2158. Void Consideration — Sale of Liquor on Sunday — Note Ex- 
 ecuted on Sunday, (a) The court instructs the jury that it is the 
 duty of the jury to examine the books offered in evidence in con- 
 nection with the almanac to ascertain if any items charged against 
 the defendant were sold on Sunday, and if the jury believe from 
 the evidence that any item in defendant's account was sold on Sun- 
 day to defendant, then they will find the verdict for the defendant. 
 
 (b) If the juiy believe from the evidence that any item in de- 
 fendant's account was sold to him on Sunday, then the jury will 
 find for the defendant, whether the plaintiffs kept open doors at the 
 time of the sale or not.'*^ 
 
 (e) The juiy are instructed that, to this complaint the defend- 
 ant has answered by sevei-al paragraphs. First, he denies the execu- 
 tion of the note; second, he says he has paid it; third, that it was 
 without consideration. In the fourth, fifth and sixth paragraphs 
 he sets up against the note as a perfect defense that the note was 
 executed on Sunday by himself, X., as surety for Y, and it was de- 
 livered by him on that day to his co-defendant, and that is as far 
 as he has any knowledge of the note, and that he had received no 
 consideration for the note. I hold upon that subject the law to be 
 as follows: That, before the defendant can successfully make out 
 that defense, he should have pleaded in writing, as well as proved 
 by a fair preponderance of the evidence, that he not only executed 
 the note on Sunday, but that it was delivered and accepted by the 
 plaintiff on Sunday. The defendant, before he can avail himself 
 of or properly make out the defenses to prevent a recovery on the 
 note at the hands of the plaintiff, either upon the fourth, fifth or 
 sixth paragraphs of answer, must have proven by fair preponderance 
 of the evidence that this particular note in suit was executed by 
 him upon Sunday, and that it was delivered by him upon that day, 
 or some one representing him, to the plaintiff in this case. If the 
 plaintiff then accepted the note, knowing these facts, then she stands 
 in equal respect of the law as being guilty of a violation of the crim- 
 inal statutes of this state. It is against the law to do common 
 labor on the Sabbath day or the first day of the week, commonly 
 called Sunday. If a note is executed upon the Sabbath day (I mean 
 by execution signed), and it was afterwards delivered upon a Sab- 
 bath day, the plaintiff knowing the fact, — delivered to the plaintiff 
 
 40— Folmar v. Siler, 132 Ala. 297, states to mean more than a pre- 
 
 ?,! So. 719 (720). ponderance of the evidence and 
 
 Editor's note. — The term "reason- therefore erroneous. 
 
 ably satisfied" in the three preced- 41 — Wadsworth v. Dunnam, 117 
 
 ing instructions, are held in some Ala. 661, 23 So. 699 (701).
 
 §2159.] NEGOTIABLE INSTRUMENTS. 1423 
 
 on the Sabbath daj^, — then these facts being proven by a fair pre- 
 ponderance of the evidence, the plaintiff could not recover in tho 
 case.^2 
 
 § 2159. Consideration — Forbearing Suit on Note, It is sufficient 
 in this case for the plaintiff to prove a promise to forbear bringing 
 suit upon the note in question for a reasonable time in considera- 
 tion of the undertaking of M. to secure the signature on the said 
 note of the two defendants, and the actual return of the note to 
 the plaintiff bearing the signatures of the defendants, and that she 
 thereafterwards actually forbore to bring suit for such reasonable 
 time. This makes out a prima facie case for the plaintiff and suf- 
 ficiently supports the declaration to maintain a judgment unless 
 overcome by the testimony on the part of the defendants.*^ 
 
 § 2160. Consideration — Settlement of Criminal Charge, (a) The 
 jury are instructed, that to render the forbearance of a claim, or an 
 agreement not to enforce an alleged claim, a sufficient consideration 
 for a promissory note, it is essential that the claim itself, if well 
 founded, be sustainable, either at law or in equity, in favor of the 
 person for whose benefit the note is given ; and the court instructs 
 the jury that a claim based upon the settlement of a criminal charge 
 cannot be sustained, either at law or in equity, and if the jury believe, 
 from the evidence, that the note in question was given in settlement 
 of a criminal charge, then it is without consideration.** 
 
 (b) If the jury believe, from the evidence, that at the time 
 the note was given, the payee of the note, in good faith, claimed 
 to have a lien upon said lands, for the payment of a debt due 
 him, or some right or interest in or to the land, and that the 
 note was given in consideration of his giving up and abandoning 
 such claim, and that he did thereupon give up and abandon said 
 claim, that would be a sufficient consideration for the note, and 
 it would not matter, in such case, whether his claim was a valid 
 one in law or not.*^ 
 
 (c) A note given to settle an embezzlement or a shortage of an 
 agent is valid and good, if it was given to settle the indebtedness 
 or shortage, and if there is no agreement to stifle the prosecution 
 for the embezzlement.*® 
 
 § 2161. Accommodation Paper. If the jury believe that the 
 promissory notes sued on were given by the defendant to H., the 
 
 42 — Conrad v. Kinzie, 105 Ind. 281, Parsons v. Pendleton, etc., 59 Ind. 
 
 4 N. E. 863 (864). 36; Tucker v. Rank, 42 la. 80; O. & 
 
 "When the instruction quoted is C. Rd. Co. v. Potter, 5 Ore. 228. 
 
 considered as an entirety, we think 45 — 1 Chitty on Con., 29; Hindert 
 
 it was impossible for the jury to be v. Schneider, 4 111. App. 203. 
 
 misled thereby, or to infer there- 46— Wolf v. Troxell's Estate, 94 
 
 from what appellant's counsel Mich. 573, 54 N. W. 383. 
 
 claim was implied therein." "Under the facts of this case, no 
 
 43— McMicken v. Safford, 197 111. question of deceit being involved, 
 
 540 (543), aff'g 100 111. App. 102, 64 this was a proper request, and 
 
 N. E. 540. should have been given." 
 
 44— Heaps v. Dunham, 95 111. 583;
 
 1424 FORMS OF INSTRUCTIONS. [§2162. 
 
 decedent, for money due to said H. by him, or for money lent by 
 said H. to defendant, then the plaintiff is entitled to recover. But, 
 if the jury believe that no money was due by the defendant to said 
 H., and that said notes were accommodation paper, given to said H. 
 in order that he might raise money on them for his own purposes, 
 or for some enterprise in which both were jointly interested, then 
 the plaintiff is not entitled to recover.^' 
 
 § 2162. Payment — Burden of Proof, (a) The burden of proof 
 as to payment is on defendants, and, if the evidence is evenly 
 balanced, your verdict on this point should be for the plaintiff.*^ 
 
 (b) You are instructed that the burden of proof is on the 
 plaintiff to show by preponderance of the evidence that the note 
 was not paid as shown by the indorsement thereon, and that he 
 purchased the same as alleged in his petition, and did not pay 
 the same according to the said indorsement thereon. 
 
 (c) If you find from the evidence that the plaintiff paid the 
 money on the note in controversy to the bank, and that the bank 
 thereupon marked it "Paid," and that plaintiff accepted the same, 
 and that nothing was said on the part of the bank about selling 
 the same to plaintiff', then and in that event you will find for 
 defendant.'*^ 
 
 § 2163. Payment — Deception as to Ownership of Note. If you 
 find from the evidence that plaintiff was at any time ready and 
 willing to pay off the note, and that he so notified defendant, asd 
 if you further find from the evidence that the defendant was at 
 the time of receiving such notice the owner of said note, then it 
 was defendant's duty to act in good faith with plaintiff in his 
 endeavor to pay same; and if you further find that defendant 
 made any false statement to plaintiff in reference to the ownership 
 or whereabouts of the note, for the purpose of deceiving him and 
 preventing or delaying the payment thereof, and that plaintiff was 
 deceived thereby, and was ready and willing to pay the same at all 
 times until the note was finally paid, and that he used all rea- 
 sonable endeavors to pay the same; and if you further find from 
 
 47— McCarthy v. Harris, 93 Md. the plaintiff, and in the giving of 
 
 741, 49 All. 414. it the court below did not err." 
 
 48— Turrentlne v. Grigsley, 118 49— Riddle v. Russell, 108 la. 591, 
 
 Ala. 380. 23 So. 666-7. 79 N. W. 363. 
 
 "A party pleading or relying on "It wa.s error to refuse these, 
 
 payment has the burden of proof The first is specific as to the burden 
 
 resting upon him, for, if the fact of proof, and the other announces 
 
 exists, it lies peculiarly within his a rule of law about which there 
 
 knowledge. In all civil causes, if can be no dispute, and which is not 
 
 the testimony be evenly balanced, contained in the charge as given, 
 
 or in efiuillbrium, which is the The cancellation stamp on this 
 
 same thing, then the verdict must note was presumptive evidence of 
 
 bo against the party on whom the payment. Thomasson v. "Van Wyn- 
 
 burdf-n of proof rests. Vendevent^er gaarden, 65 Iowa 6S7, 22 N. W. 927. 
 
 v. Ford, 60 Ala. 610; Lehman v. Without regard to where the money 
 
 McQueen, 65 Ala. 570. This is the was obtained that was given for 
 
 proposition underlying the first in- this paper, or how it came to be 
 
 .itructlon given at the instance of paid, the burden was on plaintiff 
 
 to overcome this presvimption."
 
 § 2164.] NEGOTIABLE INSTRUMENTS. 1425 
 
 the evidence that by reason of the foregoing state of facts plaintifE 
 was compelled to, and did, pay a greater amount of interest in 
 paying off the note than he otherwise would have done, — then you 
 will find the issues for the plaintiff, and assess his damages at a 
 sum equal to the amount of such increased interest, not to exceed 
 the amount sued for, that is, $ .^° 
 
 § 2164. Protest — Demand of Payment, (a) As a matter of law, 
 if the holder of negotiable paper neglects to have it protested for 
 non-payment by the maker, he thereby makes the paper his own 
 and releases the indorser ; and it makes no difference whether the 
 maker was insolvent at the time the note came due, or that the 
 indorser will sustain no injury from want of notice of non-payment 
 by the maker.^^ 
 
 (b) Demand of payment from the maker and notice of non- 
 payment of a promissory note may be waived by the indorser by 
 any act of his calculated to put the holder off his guard and pre- 
 vent him from treating the note as he otherwise would have done 
 in regard to such demand and notice, and in this case, if the jury 
 believe, from the evidence, that shortly before or about the time 
 the note came due, plaintiff saw the defendant and spoke to him 
 in reference to the payment of the note, and that defendant then 
 stated (it's all right, I indorsed the note expecting to pay it when 
 due, and will call in and see about it), this would amount to a 
 waiver of a demand on the maker for payment and of notice to 
 the defendant of non-payment. ^^ 
 
 (e) Any conduct on the part of an indorser, towards the holder 
 of negotiable paper, calculated to put a person of reasonable pru- 
 dence off his guard and to induce him to omit demand of payment 
 from the maker or to give notice of the dishonor of the paper, 
 will dispense with the necessity for taking these steps. And in 
 this ease, if the jury believe, from the evidence, that the defendant 
 shortly before, and about the time the note became due (requested 
 the plaintiff not to protest the note) or (that he said to the plaintiff 
 that arrangement for the payment of the note was about being 
 made, and to hold on, etc.), this would amount to a waiver of 
 demand on the maker, for the payment of the note and of notice 
 of non-payment.^^ 
 
 § 2165. Notes Given in Payment for Property. The gi^^ng of ne- 
 gotiable promissory notes on the purchase of property may well be 
 treated as payments. The notes given by the plaintiff to N. & Co. 
 on the purchase of the goods in controversy, being negotiable, can 
 be enforced in the hands of innocent purchasers.^* 
 
 50 — Rhodes v. Dickerson, 95 Mo. 53 — Boyd v. Bank, 32 Ohio St 5''6- 
 
 395, 69 S. W. 47 (48). 30 Am. Rep. 624. 
 
 51— Whitten v. Wright, 34 Mich. 54 — Pickard v. Bryant, 92 Mich 
 
 92. 430. 52 N. W. 7S8 (790), 31 Am. St. 
 
 52— Love V. Vining. 7 Met. 212; 606. 
 Hale v. Danforth, 46 Wis. 554. 
 
 90
 
 1426 FORMS OF INSTRUCTIONS. [§2166. 
 
 § 2166. Assignee After Maturity. An assignee of a promissory 
 note, who takes it after maturity, is supposed to have notice of any 
 defense that exists against it; and such defense may be made as 
 effectually against the note in the hands of such assignee as if the 
 suit had been brought by the original jDayee of the note.^^ 
 
 § 2167. Assignee with Notice of Suspicious Facts, (a) The 
 court instructs the jury, that where a person takes an assignment 
 of a promissory note for a valuable consideration, before due, and 
 is not guilty of bad faith, even though he may be guilty of gross 
 negligence, he will hold it by a title valid against all the world, and 
 it will not be subject to the defense of a failure of consideration in 
 his hands. ^° 
 
 (b) A party who takes commercial paper, by indorsement before 
 due, without knowledge of any defects of title or defense to it, and 
 for a valuable consideration, will take a good title unaffected by any 
 defense going to the consideration. Suspicion of the defect of title, 
 or knowledge of circumstances which would excite suspicion in the 
 mind of a prudent man, will not defeat his title, or let in a defense 
 not otherwise admissible against it in his hands. That result can 
 only be produced by bad faith on his part.^''' 
 
 (c) Although the assignee of a note may have reason to know, 
 or may actually know, when he buys it, for what the note was 
 given, that fact alone will not make him chargeable with knowledge 
 of special defenses to it; and in this case, although the jury may 
 believe, from the evidence, that the plaintiff knew when he pur- 
 chased the note that it was given for, etc., yet, if the jury further 
 believe, from the evidence, that he had no notice of the special de- 
 fense now set up by the defendant, and had no reason to suspect it, 
 he will not be chargeable with notice of the same; nor can he be 
 effected with such defense in this suit; provided, the evidence shows 
 that the said note was assigned to him in good faith for a valuable 
 consideration, before the maturity of the note.^^ 
 
 (d) If the jury believe, from the evidence, that the plaintiff, 
 before he purchased said note, knew, or, as an ordinarily prudent 
 man, had reason to believe, from circumstances brought to his 
 knowledge, before he purchased it, that the defendant had, or 
 claimed to have, a defense to said note, or to some part of it, then 
 the plaintiff is not an innocent holder of said note.'*^ 
 
 § 2168. What Constitutes Innocent Holder, (a) The notes sued 
 on in this case are negotiable instruments, the execution of which 
 is admitted by the defendant. You are instructed that a holder 
 of negotiable paper, who takes it before maturity, for a valuable 
 
 55— Davis V. Neleigh, 7 Neb. 78. How. 343-363; Farrell v. Lovett, 68 
 
 ."■je— L-afayotte Sav. Bk. v. St. Me. 32fi, 28 Am. Rep. 59. 
 
 I.ouiH, 4 Mo. App. 276. .58— Borden v. Clark, 26 Mieh. 410. 
 
 57— Comstr.ok v. Hannah, 76 111. 59—1 Pars, on N. & B., 258; Edwd. 
 
 531; Goodman v. Harvey, 4 A. & E. on B. & N. 320. 
 
 870; Goodman v. Simojicls, 20
 
 § 2169.] NEGOTIABLE INSTRUMENTS. 1427 
 
 consideration, in the usual course of trade, without knowledge of 
 facts which impeach its validity, between antecedent parties, holds 
 it by a good title. To defeat his recovery thereon, it is not suffi- 
 cient to show that he took it under circumstances which ought to 
 excite suspicion in the mind of a prudent man. To have that effect, 
 it must be shown that he took the paper under circumstances show- 
 ing bad faith or want of honesty on his part. The burden is on the 
 .defendant to establish by a preponderance of evidence that plain- 
 tiff is not a bona fide holder of the note sued on, as defined in this 
 instruction.^^ 
 
 (b) A holder of negotiable paper, who takes it before maturity, 
 for a valuable consideration, in the usual course of business, without 
 knowledge of facts which impeach its validity, as between ante- 
 cedent parties, is deemed a bona fide holder.''^ 
 
 (c) In order to defeat a promissory note in the hands of a bona 
 fide holder, it is not enough to show that he took it under circum- 
 stances calculated to excite suspicion. To defeat the note in his 
 hands it must appear, by a preponderance of evidence, that he was 
 guilty of a want of honesty, or of bad fa-i-th in acquiring it.''- 
 
 (d) The jury are instructed, that a party about to take an assign- 
 ment of a promissory note, is under no obligation to call upon the 
 maker and make inquiry as to possible defenses, which he may have, 
 but of which the purchaser has no notice, either from something 
 appearing on the face of the paper, or from facts communicated to 
 him at the time.''^ 
 
 § 2169. Bona Fide Holder— What Vitiates Note in His Hands, 
 (a) The note sued upon is in the form of a negotiable instrument, 
 and a holder of negotiable paper who takes it before maturity, for a 
 valuable consideration in the usual course of business, without 
 knowledge of facts which impeach its validity as between antecedent 
 parties, is deemed a bona fide holder. 
 
 (b) In order to defeat a promissoiy note in the hands of a 
 bona fide holder, it is not enough to show that such note was without 
 consideration, nor is it sufficient to show that su*eh purchaser took it 
 under circumstances calculated to excite suspicion. To defeat such 
 note in the hands of a bona fide holder, it must appear by a pre- 
 ponderance of the evidence, that such purchaser was guilty of a 
 want of honesty, or of bad faith in acquiring it. A party pur- 
 chasing a promissory note is under no obligation to call upon the 
 maker, and make inquiry as to possible defenses which he may have, 
 but of which the jDurchaser had no notice, either from something 
 appearing on the face of the paper, or from facts communicated to 
 
 60— First Nat. Bank. v. Carson, 30 374; Shreeves v. Allen, 79 111. 553; 
 
 Neb. 104, 46 N. W. 276 (277). Hamilton v. Marks, 63 Mo. 167; 
 
 61 — Crosby v. Tanner, 40 la. 136; Moorehead v. Gilmore, 77 Penn. 
 
 Twitchell v. McMurtrie, 77 Penn. St. US, 18 Am. Rep. 435. 
 
 St. 383. 63— Houry v. Eppinger, 34 Mich. 
 
 62— Johnson v. Way, 27 Ohio St. 29; Murray v. Beckwith, 81 111. 43.
 
 1428 FORMS OF INSTRUCTIONS. [§ 2170. 
 
 him at the time, nor to make inquiry as to the identity of the in- 
 dorser, in order to recover from the maker of such note. 
 
 (c) If you believe from the evidence that the defendant executed 
 and delivered the note in question as alleged, and you further find 
 from the evidence that the plaintiff purchased the same before 
 maturity in the usual course of business, and for a valuable con- 
 sideration, without knowledge of any facts which might impeach its 
 
 validity as between said and the person to whom the 
 
 note was given, then the plaintiff is entitled to recover, although 
 you may believe from the evidence that said never re- 
 ceived any consideration for said note. 
 
 (d) If you find from the evidence that defendant executed and 
 delivered the note in suit, and that the plaintiff purchased the same 
 before maturity for a valuable consideration, and without a knowl- 
 edge of facts which might impeach its validity, as between 
 
 and the person to whom the note was given, the plaintiff is entitled 
 to recover in this suit, although you may believe from the evidence 
 that the defendant was swindled in the transaction, and received no 
 consideration for said note ; and the plaintiff if he purchased the note 
 as aforesaid, was not required in law to call upon and inquire of 
 the defendant if he had a defense to said note, but might rely upon 
 the genuineness of the maker's signature to the note as a right to 
 recover thereon. 
 
 (e) If you find that he did so execute said note as aforesaid, 
 he must suffer the loss, if any, he has sustained thei'eby; because 
 it is a maxim of the law that^ where one of two persons must be 
 made to suffer from the fraud or misconduct of another, the one 
 who placed it within the power of such person to perpetuate the 
 fraud or to do the wrong must bear such loss.*^* 
 
 § 2170. Assignee with Notice from an Assignee without Notice, 
 (a) The court instructs the jury, that if a note is assigned before 
 maturity, for value, to a bona fide purchaser, without notice, the 
 assignee will be protected against any defense by the maker; and 
 a subsequent purchaser of the note from such assignee, even with 
 notice, will succeed to his rights in the same condition he held 
 them. A defense to the note having been once cut off by its transfer 
 to an innocent holder, will not be revived by a subsequent assign- 
 ment to a person with notice of such defense.*'^ 
 
 (b) The law is, that the holder, for value, of a negotiable note, 
 may recover on the note, though he was fully informed, when 
 he received it, that it was obtained from the maker by fraud; pro- 
 vided, such holder obtains it from a person who took the note, 
 in the usual course of business, in good faith and for value.^^ 
 
 § 2171. Innocent Purchaser — Taken as Security for Pre-existing 
 Debt. 1'lie court instructs the jury, that the indorsee of a promis- 
 
 C4 — Thf above series of instruc- 65 — Woodworth v. Huntoon, 40 111. 
 tlons ii])prov(icl in Crosby v. Ritch- 131, 89 Am. Dec. 540. 
 ey, 56 Neb. 336, 76 N. W. 895 (896). 66— Riley v. Shawacker, 50 Ind.
 
 § 2172.] NEGOTIABLE INSTRUMENTS. 1429 
 
 sory note, before its maturity, taking it as security for a pre-existing 
 debt, in the ordinary course of business and without any express 
 agreement, is deemed a holder for a valuable consideration, and 
 he will hold the note free from defenses on the part of the maker, 
 of which he had no notice at the time of taking it.*''' 
 
 § 2172. Note Taken in Payment or Part Payment. If the jury 
 believe, from the evidence, that before the alleged transfer of the 
 note, the said A. B. (payee) was. indebted to the plaintiff, and that 
 the said note was assigned to the plaintiff by the said A. B. in 
 (part) payment of such an indebtedness, then the plaintiff is what 
 is known in law as an innocent purchaser of the note; provided, 
 the jui-y further believe, from the evidence, that he took the note in 
 good faith before it became due, and without any notice of the al- 
 leged defense thereto.®^ 
 
 § 2173. Evidence Necessary to Overcome Presumption. A person 
 questioning the good faith of the assignment of a note in the hands 
 of an assignee, in order to defeat a recovery, must prove, by a 
 preponderance of evidence, that the assignment was made after the 
 maturity of the note, or that it was not made for value, or that 
 the transaction was for some fraudulent purpose; or that the as- 
 signee took the note with notice of the defense interposed by the de- 
 fendant.*'^ 
 
 § 2174. Note Stolen, or Wrongfully Obtained, (a) If the jury 
 believe, from the evidence, that the defendant signed the note in 
 question, in this ease, knowing that it was a note, and they also 
 believe, from the evidence, that the note was assigned to the plain- 
 tiff, for a valuable consideration, before the maturity of the note, 
 in the regular course of business, and that the plaintiff, at the time 
 of such assignment, had on notice that the note was not properly 
 put into circulation, then the plaintiff will have a right to recover, 
 even though the jury may further believe that the note was obtained 
 from the maker by fraud (or that it was stolen from, etc.,) or 
 otherwise wrongfully put into circulation.^" 
 
 (b) That, although the jury may believe, from the evidence, that 
 the note in question was lost by the defendant (or stolen from him), 
 or otherwise wrongfully put into circulation, still, if the jury 
 further believe, from the evidence, that the plaintiff took the same, 
 in the regular course of business, in good faith, for a valuable con- 
 sideration, and before maturity, and without any knowledge of the 
 
 \ 
 592; Bunker on Neg. Instruments 93; Cook v. Helms, 5 Wis. 107' 
 113. Grimm v. "Warner, 45 la. 106. 
 
 67_Bowman v. Millison, 58 111. 68— Clary v. Sarrency, 58 Ga. 83. 
 36; Bunker on Neg. Instruments 72; 69— Cook v. Helms. 5 Wis. 107; 
 Carlisle v. Wishart, 11 Ohio 172; Depuy v. Schuyler, 45 111. 306. 
 Outwrite v. Porter, 13 Mich. 5.33; 70— Clark v. .Johnson. 54 111. 296; 
 Stevens v. Campbell, 13 Wis. 375; Barsen v. Huntington, 21 Mich. 415, 
 Contra: Stalker v. McDonald, 6 Hill 4 Am. Rep. 497; Joyce on Comm, 
 
 Paper, sec. 394.
 
 1430 FORMS OF INSTRUCTIONS. [§ 2175. 
 
 manner in which it got into circulation, then the plaintiff is entitled 
 to recover on the note.'^^ 
 
 (c) The court instructs the jury, that in order to defeat the title 
 of the purchaser, for value, before maturity, of stolen negotiable 
 promissory notes, the circumstances proved must be such as to lead 
 the jury to believe, from the evidence, that the purchase was made 
 in bad faith, or with notice of the want of title in the seller; mere 
 proof of negligence or want of caution on the part of such a pur- 
 chaser, is not alone sufficient to defeat his title or right to re- 
 covery.'^- 
 
 § 2175. Endorsement in Blank. A note is said to be indorsed in 
 blank when the indorser's name is written on. the back, leaving a 
 blank over the name for the insertion of the name of an indorsee, or 
 person to whom it is indorsed. And when the indorsement remains 
 in blank, the note may be passed from person to person by mere 
 delivery, and the last holder has the right to fill in his own name as 
 indorsee, and bring suit on the note in his own name, as though it 
 had been indorsed directly to him in the first instance. ^^ 
 
 § 2176. Endorsement Before Maturity — Innocent Holder, (a) The 
 court instructs the jury that it is the law that when a note is as- 
 signed before maturity for a valuable consideration, and without 
 actual notice to the purchaser of facts and circumstances which 
 might constitute failure of consideration or fraud and circumven- 
 tion in the procuring the execution of said note, then the defendant 
 is not allowed to plead such failure of consideration or such fraud 
 and circumvention in the procuring the execution thereof, and your 
 verdict should be made without regard to such defense. '^^ 
 
 (b) In order to defeat a promissory note in the hands of a 
 bona fide holder, it is not enough to show that he took it under 
 circumstances calculated to excite suspicion. To defeat the note in 
 his hands it must appear by a preponderance of evidence that 
 he was guilty of a want of honesty or bad faith in acquiring it. 
 Where a person takes an assignment of a promissory note, for a 
 valuable consideration before due, and is not guilty of bad faith, 
 even though he may be guilty of gross negligence he will hold it by 
 a title valid against the world, and it will not be subject to the 
 defense of failure of consideration in his hands. 
 
 (c) The indorsement of a negotiable promissory note before ma- 
 turity, taking it as payment or security for a pre-existing debt, and 
 Avithout any express agreement, is deemed a holder for valuable 
 consideration, in the ordin'ary course of trade, and holds it free from 
 latent defenses on the part of the maker. '^^ 
 
 71— Franklin, etc., v. Heinsman, 73—2 Parsons on Notes and Bills, 
 
 1 Mo. App. 336; Shiply v. Carroll, 19, 20; Palmer v. Marshall, 60 111. 
 
 4r, 111. 285; Murry v. Lardner, 2 289. 
 
 "Wall. 110; Gavagan v. Bryant, 83 74— Snively v. Meixsell, 97 111. 
 
 III. 376. App. 365 (367). 
 
 72— Duchess Co. Mutual Ins. Co. 7r>— Webber v. Indiana Nat. Bank, 
 
 V. Hachneld, 73 N. Y. 226. 4D 111. App. 336 (341, 342).
 
 2177. 
 
 NEGOTIABLE INSTRUMENTS. 
 
 1431 
 
 § 2177. Indorsement — Intention — Liability. The jury are in- 
 structed, that it is immaterial in this ease what idea the defendant 
 had as to his liability as the indorser of the note ; such liability is 
 fixed by law. And if the jury believe, from the evidence, that the 
 defendant sold and indorsed the note, then he is liable, in law, as 
 the indorser, whatever may have been his intention or understanding 
 at the time.'^® 
 
 § 2178. Liability of Endorser — Due Diligence — Bringing Suit. 
 (a) Due and reasonable diligence means such diligence as a care- 
 ful, diligent and prudent man would ordinarily exercise in the con- 
 duct of his own aft'airs.'^'^ 
 
 (b) The jury are instructed, that when the indorsee seeks to re- 
 cover against the indorser of a promissory note, upon the ground 
 that a suit against the maker would have been unavailing, the fact, 
 if proved, that the maker was solvent when the note came due, will 
 not affect the liability of the indorser, if it appears, from the evi- 
 dence, that such solvency did not continue until a suit against the 
 maker could have been made availing. 
 
 If the jury believe, from the evidence, that on or about, etc., the 
 defendant sold to the plaintiff the note shown in evidence, and 
 then and there assigned the same to him by writing his name on 
 
 an incidental assumption without 
 discussion that such was the rule,' 
 and that, 'we find nothing in 
 previous decisions which should 
 conclude us from adopting- what, 
 upon investigation, we are satisfied 
 is the correct doctrine in principle, 
 and the prevailing rule of law." 
 See also Shreeves v. Allen, 79 111. 
 553, and Murray v. Beckwith, 81 111. 
 43, which last case holds that 'the 
 maker, who alone is responsible for 
 the paper becoming an article of 
 commerce, can not be permitted to 
 defeat payment unless he can es- 
 tablish the fact that the holder 
 purchased with notice. The sale and 
 transferring of promissory notes 
 enter largely into the commerce of 
 the country, and public policy re- 
 quires that an innocent purchaser 
 should be protected.' The doctrine 
 of the Comstock case is approved 
 in the case of Siegel v. Chicago T. 
 & S. B., 131 111. 569 (574), 23 N. E. 
 417. 7 L. R. A. 537, 19 Am. St. 51. 
 
 "It is clear from these authorities, 
 the general doctrine that notice of 
 facts that should excite inquiry in 
 the minds of a reasonably prudent 
 person is notice of the ultimate 
 fact which such inquiry would have 
 disclosed, is not applicable to the 
 assignment before maturity of such 
 commercial paper as notes." 
 
 76— Hawkinson v. Olson, 48 111. 
 277. 
 
 77— Judson v. Gookins, 37 III. 286. 
 
 "The Supreme Court in the case 
 of Comstock V. Hannah, 76 111. 
 530, say: 'We accept the doctrine 
 of cases as correct in principle 
 which assert the law on this sub- 
 ject to be, "when the bill has passed 
 to the plaintiff without any proof 
 of bad faith in him there is no ob- 
 jection to his title," and "suspicion 
 of defect of title, or the knowledge 
 of circumstances which would ex- 
 cite such suspicion in the mind of 
 a prudent man, or gross negligence 
 on the part of the taker at the time 
 of the transfer, will not defeat his 
 title. That result can only be pro- 
 duced by bad faith on his part." 
 And the duty of active inquiry does 
 not rest on the purchaser of com- 
 mercial paper to avert the imputa- 
 tion of bad faith. The rights of 
 the holder are to be determined 
 by the simple test of honesty and 
 good faith, and not by a specula- 
 tive issue as to his diligence or 
 negligence.' The counsel for plain- 
 tiffs in error cite cases of the Su- 
 preme Court decided at an earlier 
 date than the Comstock case, ap- 
 parently supporting their conten- 
 tion that notice of facts that would 
 excite inquiry, are of themselves, 
 in the eye of the law, notice of the 
 ultimate fact which such inquiry 
 would have disclosed as to an as- 
 signee of a note before maturity; 
 yet in the above case it is said, 
 'there never has been more than
 
 1432 FORMS OF INSTRUCTIONS. [§ 2178. 
 
 the back thereof, and that at the time when the note came due the 
 said makers, and each of them, was insolvent, and have ever since 
 remained so, and that a suit against them would have been unavailing, 
 then the jury should find the issues for the plaintiff, and assess the 
 damages at the amount due on said note.'^^ 
 
 (e) Due diligence does not consist in merely instituting a suit 
 against the maker and prosecuting it to judgment, but, in order 
 to show this diligence, the assignee must show, by a preponderance 
 of evidence, that within the county where the suit was commenced 
 he had used all the means that the law has furnished him with to 
 enforce the collection of the moneyJ^ 
 
 (d) The law does not require that the assignee of a promissory 
 note shall resort to the extraordinary process of attachment against 
 the maker before he can hold the indorser liable. If the jury be- 
 lieve, from the evidence, that before the maturity of the note in 
 question the maker of the note had removed from this state and 
 was residing out of this state when the note became due, then the 
 plaintiff had a right to proceed at once against the defendant and 
 hold him responsible for the payment of the note.^° 
 
 (e) The court instructs the jury, that in order to hold the in- 
 dorser of a note liable on his indorsement, it is not necessary that 
 the holder, in his attempts to collect the note of the maker, should 
 have used the greatest possible degree of diligence. He is only 
 required to use such diligence as is ordinarily used by careful, vigi- 
 lant and prudent men in the conduct of their own affairs.^^ 
 
 (f) If the jury believe, from the evidence, that the plaintiff in- 
 stituted a suit on the note in question, against the maker, in the 
 circuit court of the county in which the maker resided, at the first 
 term of said court after the note became due, and prosecuted said 
 suit to final judgment, with all reasonable diligence, and, after the 
 judgment was obtained, with all reasonable diligence caused an exe- 
 cution to issue thereon, and placed the same in the hands of the 
 sheriff of said county; and if the jury further believe, from the 
 evidence, that the shei-iff at no time during the life of the execution, 
 was able to find property of the defendant in the execution to satisfy 
 the same, or any part thereof, and that at the expiration of (ninety) 
 days from its issue he returned the execution, no property found, 
 then the plaintiff is entitled to recover in this suit the amount of 
 said note and interest, provided the juiy further believe, fi-om the 
 evidence, that during the time the sheriff so held the execution, and 
 ever since that time, said A. B. has had no property, out of which 
 
 78— McClurg v. Fryer, 15 Penn. St. 29 Wis. 649; Craig v. Perkins, 40 N. 
 
 293; Grllligham v. Bordman, 29 Me. Y. 181, 100 Am. Dec. 469. 
 
 79; Bull V. Bliss, 30 Vt. 127; Stone 79— Holbrook v. Vibbard. 2 Scam. 
 
 V. Rochefcller, 29 Ohio St. 625; 46r); Wilson v. Binford, 54 Ind. 569. 
 
 Miles V. Liniioll, 97 Muss. 298. But 80— Titus v. Seward, 68 Ind. 456. 
 
 sf;o Bosman v. Akorly, 39 Mich. 710, 81—2 Pars, on N. & B., 141. 
 33 Am. Rep. 447; Frank v. Marsh,
 
 § 2179.] NEOOTIABLE INSTRUMENTS. 1433 
 
 the said execution, or any part thereof, could have been made by 
 the exercise of ordinary diligence on the part of the plaintiff.^^ 
 
 (g) The court further instructs the jury, that the fact that a 
 suit against the maker would have been unavailing, may be proved 
 by any other legal testimony, as well as by the return of an execu- 
 tion against him unsatisfied. To entitle the plaintiff to recover, it 
 is only necessary for the jury to believe, from the evidence, that such 
 suit would have been unavailing.^^ 
 
 § 2179. Return of the Oflacer not Conclusive. The court instnicts 
 the jury, tliat the executions, introduced in evidence with the re- 
 turns thereon indorsed of no property found, are not alone conclu- 
 .sive evidence that the maker of the note was at the time insolvent, 
 or that due diligence against him would have been unavailing.^* 
 
 § 2180. Extension of Time, (a) An agreement to extend the 
 time of payment of a note, after its maturity, made between the 
 holder and the principal maker, to have the effect to release the 
 indorser, must be a valid agreement, upon a sufficient consideration, 
 and one that the maker could enforce as against the payee or holder 
 of the note. An agreement to continue to pay usury (or an agTce- 
 ment to continue to pay interest at the rate mentioned in the note) 
 would not be such an agreement, and it would not release the in- 
 dorser.®^ 
 
 (b) In this case the defendant A. B. is sued as an indorser or 
 guarantor of the note in question, and if the jury believe, from the 
 evidence, that at or about the time the note became due, the plain- 
 tiff, without the knowledge or consent of the defendant, made an 
 agreement with the maker of the said note to extend the time of 
 payment of the same for the period of, etc., provided the maker of 
 the said note would pay interest thereon in advance for such exten- 
 sion, at the rate of, etc., and that, in pursuance of such agreement, 
 such advance interest was then and there paid, then such agreement 
 to extend the time of payment of said note would release the 
 defendant from all liability thereon.^'' 
 
 § 2181. Endorsement Constitutes Prima Facie Liability. This is 
 an action brought by the plaintiff' against the defendant upon an 
 endorsement made on a certain promissory note. It is admitted that 
 this endorsement by the defendant constitutes a prima facie liability 
 of the defendant to the plaintiff for the amount of the note, or the 
 balance due thereon.**^ 
 
 § 2182. New Party — New Consideration. That where one becomes 
 a party to a note, after it has once been delivered, and the eonsid- 
 
 82— Judson v. Gookin, 37 111. 286. Wis. 325; Fawcett v. Freshwater, 
 
 S3— Roberts v. Haskell, 20 III. 59. 31 Ohio St. 637. 
 
 84— Roberts v. Haskell, 20 111. 59. 86— Randolph v. Flemming, 59 Ga. 
 
 85— Stewart v. Parker, 55 Ga. G56; 776. 
 
 White V. Whitnev, 51 Ind. 124; 87— First Nat'l Bk. v. Anderson, 
 
 Mvers V. First Nat. Bk., 78 111. 5 Ind. T. 118, 82 S. W. 693 (694). 
 257; Weed & Co. v. Oberreich, 38
 
 1434 FORMS OF INSTRUCTIONS. [§ 2183. 
 
 eration passed, he will incur no liability unless there is a new con- 
 sideration for his promise and a re-delivery of the note.^^ 
 
 GUARANTORS AND SURETIES. 
 
 § 2183. Gnarantor — ^Liahility Generally. The jury are instructed, 
 that a guarantor of a promissory note cannot be made liable beyond 
 the express terms of his contract or undertaking. He has a right to 
 prescribe the terms and conditions upon which he will assume a re- 
 sponsibility, and no other person has a right to change those terms, 
 not even with the design of diminishing the probabilities of ultimate 
 loss by the guarantor; and it is wholly immaterial whether the 
 change is advantageous to him or not.^^ 
 
 § 2184. When an Endorser Becomes a Guarantor — ^Illinois. The 
 court instructs you that where the name of a person, not the payee 
 of a note, is indorsed on it, before delivery, in the absence of 
 evidence to the contrary, he indorses it as a guarantor.^" 
 
 § 2185. Guarantor Liable Until Note is Paid— Delay Will Not 
 Release, (a) That the liability of the guarantor of a note con- 
 tinues until the note is paid or barred by the statute of limitations, 
 and he is not discharged by a mere delay in bringing suit against 
 the maker."^ 
 
 (b) That mere delay, on the part of a creditor, to proceed against 
 the principal debtor, does not discharge the surety; all that the 
 surety has a right to require is that the creditor should do no 
 affirmative act to its prejudice.^- 
 
 § 2186. Release of Guarantor — Extending Time — Surety, (a) 
 The court instructs the jury, that a valid agreement between the 
 payee or holder and the principal maker of a promissory note, for 
 an extension of the time of payment of the note for a definite and 
 fixed period of time, after its maturity, will release the guarantor 
 (or surety), unless he consents to the agreement at the time it is 
 made, or afterwards ratifies it.®^ 
 
 (b) If the jury believe, from the evidence, that the defendant 
 A. B. signed the note in question merely as surety and for the 
 accommodation of the other makers of said note, and that this fact 
 was known to the plaintiff when the note was given, and that at or 
 about the time that the note came due, the plaintiff, without the 
 ktH)\vledge or consent of said A. B., made an agreement with the 
 other makers of said note to extend the time of payment of the 
 same for the period of (sixty days), in consideration that such 
 
 88— Williams v. Williams, 67 Mo. 91— Parkhurst v. Vail, 73 III. 343. 
 
 661; Briffgs v. Downing, 48 la. 550. 92— Villars v. Palmer, 67 111. 204. 
 
 89— Ryan v. The Tru.stees, 14 111. 93— Danforth v. Simple, 73 111. 
 
 20. 170; Tracey v. Quillon, 65 Ind. 249; 
 
 90— Glickauf v. Kaufmann, 73 111. Barron v. Cadv, 40 Mich. 259; Kittle 
 
 37. v. Wilson, 7 Neb. 76.
 
 §2187.] NEGOTIABLE INSTRUMENTS. 1435 
 
 other makers of said note would pay interest thereon, in advance, 
 for such extension, at the rate of, etc., and that in pursuance of 
 such agreement such advance interest was then and there paid, then 
 such agreement to extend the time of payment of said note would 
 release the defendant A. B. from all liability thereon.^* 
 
 (c) In this case the defendant A. B. is sued as an indorser or 
 guarantor of the note in question, and if the juiy believe from the 
 evidence, that at or about the time the note became due, the plain- 
 tiff, without the knowledge or consent of the defendant, made an 
 agreement ^vith the maker of the said note to extend the time of 
 pa\Tnent of the same for the period of, etc., provided the maker of 
 the said note would pay interest thereon in advance for such exten- 
 sion, at the rate of, etc., and that, in pursuance of such agreement, 
 such advance interest was then and there paid, then such agreement 
 to extend the time of payment of said note would release the de- 
 fendant from all liabilitj' thereon.^^ 
 
 § 2187. Consideration for Guaranty, (a) The jury are instructed, 
 as a matter of law, that to render a contract of guaranty binding, 
 it must be vipon a good or valuable consideration. If a guaranty is 
 placed upon the back of a note, at the time of its execution or before 
 its deliveiy to the jDayee, so as to form a part of the original 
 transaction, then no other consideration need be shown. 
 
 (b) But w^hen the name of a guarantor is written on the back of 
 a note, after its delivery to the payee, then, to make the guarantor 
 liable, the jury must believe, from the evidence, that there was some 
 new consideration for such guaranty.^*^ 
 
 § 2188. Insolvency May be Proved by Other Evidence — Return of 
 Officer not Conclusive, (a) The court further instructs the jury, 
 that the fact that a suit against the maker would have been unavail- 
 ing, may be proved by any other legal testimony, as well as by the 
 return of an execution against him unsatisfied. To entitle the plain- 
 tiff to recover, it is only necessaiy for the jury to believe, from the 
 evidence, that such suit would have been unavailing. '*^ 
 
 (b) The court instructs the juiy, that the executions, introduced 
 in evidence with the returns thereon indorsed of no property found, 
 are not alone conclusive evidence that the maker of the note Avas 
 at the time insolvent, or that due diligence against him would have 
 been unavailing."^ 
 
 § 2189. Guaranty — Acceptance — Knowledge Thereof. If the guar- 
 anty was in fact accepted by the plaintiif, and knowledge of such 
 acceptance of it was in fact brought home to the defendant, it is 
 sufficient without proof of notice from the guarantee. If the jury 
 find that defendant had knowledge of the acceptance, if an}', of 
 
 94_ir'awcett v. Freshwater, 31 96— Joslyn v. Collinson, 26 111. 61; 
 
 Ohio St. 637; T\''inne v. Colorado Ware v. Adams, 24 Me. 177; White 
 
 Springs Co., 3 Col. 155. v. White, 30 Vt. 33S. 
 
 95— Randolph v. Flemming, 59 Ga. 97— Roberts v. Haskell, 20 111. 59. 
 
 776. 98 — Roberts v. Haskell, supra.
 
 1436 FORMS OF INSTRUCTIONS. [§ 2190. 
 
 the saiaranty, no special notice of the acceptance of the guaranty or 
 the offer of guaranty was necessary.^" 
 
 § 2190. Co-Sureties — Partners. You are instructed by the court 
 that if you find from a prei^onderance of all the evidence that on 
 March 20, 1899, the plaintiff and defendant, as co-sureties and the 
 only sureties for S. Bros., signed the note for $2,000 to G., and that 
 thereafter the said note was wholly paid out of the proceeds of the 
 property of plaintiff, and that defendant paid no part of the same, 
 and that after the making of said note plaintiff bought from S. his 
 interest in the firm of S. Bros., you must find for plaintiff and 
 against defendant for an amount equal to one-half of the amount 
 paid to satisfy the said G. note, together with interest on said amount 
 of one-half from date of such payment at 7 per cent per annum 
 until this time; unless you further find, from a preiDonderance of 
 all the evidence, that plaintiff at the time of purchase of said S. 's 
 interest, or thei'eafter, made a special promise to assume as a 
 partner the indebtedness of said firm of said G.^°° 
 
 § 2191. Lien of Surety— Title to Goods, (a) If you find from 
 the evidence that 0. became surety for R. & J. to the Bank of N. 
 for $350.00 and that he was to have a lien upon the cotton that 
 was ginned by R. & J. in case the said note became due and 0. had 
 to pay it, this would not prevent a recovery of the cotton in contro- 
 versy by the interveners and the L. Cotton Company unless you 
 further find that said L. Cotton Company bought said cotton with 
 notice of said lien. 
 
 (b) If you find from the evidence that the plaintiff was not the 
 absolute owner of the cotton in controversy, but was to hold the 
 same or proceeds thereof until he was made safe or repaid for ad- 
 vances made by him, such would not be sufficient but the cotton 
 must have been actually delivered to him, and if you find the cotton 
 in controversy was bought and ginned in the ordinary course of 
 business and the same was never delivered to 0., he cannot sustain 
 his action against the interveners, and you will find for the inter- 
 veners.^ 
 
 § 2192. Lien of Surety— Bills of Lading Held by Title to Goods. 
 
 (a) If you find from a preponderance of the evidence hei'ein, the 
 defendant requested 0. to become their surety to the bank and the 
 defendants further gave him certain sums of money and it was fur- 
 ther agreed he should hold the money and dislnu'se the same for seed 
 cotton, for them, and hold the bills of lading therefor and collect 
 the proceeds of sale and repay bis advances and was later on to 
 receive compensation for services rendered, such an arrangement 
 would not bo sufficient to give such a title to the plaintiff as would 
 
 99— Mosaic Tile Co. v. Chiera, 133 1— O'Neal v. Richardson, 78 Ark. 
 
 Mlfh. 497, 95 N. W. 537 (538). 132, 92 S. W. 1117. 
 
 100— Stricklor v. Gitchel, 14 Okla. 
 523, 78 Pac. 94 (96).
 
 §2193.] NEGOTIABLE INSTRUMENTS. 1437 
 
 entitle him to recover in this suit and you should find for the inter- 
 veners. 
 
 (b) If you find from a preponderance of the evidence herein in 
 order to secure the means to run their gin, the defendants, R. & J., 
 induced the plaintiff to go upon their notes to the bank for mone}' 
 and to make advances to them from time to time, they agreed the 
 plaintiff should hold all funds received by defendants, and all cotton 
 shipped or sold by them was delivered to plaintiff by the deliveiy 
 of the bills of lading therefor, and the plaintiff was to be repaid for 
 his advances and for the money borroAved on his name, and he was 
 to receive a compensation therefor, such an arrangement would not 
 confer the title of the cotton upon the plaintiff.^ 
 
 § 2193. Possession of Personal Property Evidence of Ownership, 
 (a) The court instructs the jury, that when one person sells per- 
 sonal property to another, and retains possession of it, the property 
 would be subject to levy under an execution against the seller, so 
 long as it remains in his jDOssession, such a sale being, in law, fraud-, 
 ulent, as against subsequent purchasers in good faith, and execution 
 creditors of the seller.^ 
 
 (b) If the jury believe, from the evidence, that M., the maker of 
 the note, was in possession of, and had under his control, personal 
 property during, etc., such possession is presumptive evidence that 
 he owned said property and unless ^the jury believe, from the evi- 
 dence, that some one else owned the property, the presumption would 
 be that it really belonged to the said M.'* 
 
 2 — O'Neal v. Richardson, 78 Ark. 3 — Bump on Fraud. Con., 60. 
 132, 92 S. W. 1117. 4— Roberts v. Haskell, 20 111. 59.
 
 CHAPTER LXXIV. 
 
 NUISANCES. 
 
 See Erroneous Instructions, same chapter head, "Vol. III. 
 
 § 2194. Nuisance — Maintenance of 
 factory — Injury to resi- 
 dence neighborhood. 
 
 § 2195. Nuisance — Injury to adjoin- 
 ing- property through smoke 
 and soot from stationary 
 steam engine. 
 
 § 2196. Nuisances — Liability of own- 
 er for maintaining- danger- 
 ous pit. 
 
 § 2197. Nuisance — Damage to church 
 property throug-h establish- 
 ment of railroad shops iu 
 neigliborhood. 
 
 § 2198. Nuisance — Polluting stream 
 — Depositing coal refuse 
 from mine into stream — 
 — Admonishing jury to 
 render verdict according to 
 the evidence and law. 
 
 § 2194. Nuisance — Maintenance of Factory — Injnry to Residence 
 Neighborhood. If the jury find from the evidence that the defendant 
 conducted his factory in the ordinary business way, and in a locality 
 where there are other factories, then the w^rong complained of must 
 be naturally productive of actual physical discomfort to i3ersons of 
 ordinary sensibilities and of ordinary tastes and habits to entitle the 
 plaintiff to recover, and the injury complained of must be material 
 and direct from conduct of the defendant, without the operation of 
 the other factories and manufacturing establishments, situate in the 
 neighborhood of the dwelling of the plaintiff.^ 
 
 § 2195. Nuisance — Injury to Adjoining Property Through Smoke 
 and Soot from Stationary Steam Engine, (a) Even if the jury 
 shall find from the evidence that defendant erected on his premises 
 a stationary steam engine, and used it in connection with his busi- 
 ness of making cigar and other light wooden boxes, such erection and 
 use is not in itself a nuisance, and the plaintiff is not entitled to 
 recover, if the jury believe defendant caused to be constructed and 
 used, in connection- with the machinery on his said premises, the 
 best appliances to prevent the escape of smoke, steam, cinders, soot 
 and dust from his said premises, and that said appliances did pre- 
 vent such escape to the extent of not seriously interfering with the 
 plaintiff in the comfortable enjoyment of his property or substan- 
 tially damaging the same, and no unreasonable noise or vibration 
 was caused by defendant's engine or machinery on his said i^remises. 
 
 (b) If the jury find from the evidence that defendant did not 
 vvrongfully cause to issue from the smokestack on his premises large 
 quantities of offensive and unwholesome smoke, soot, and other mat- 
 ter, which fell upon the ground and penetrated the pi^emises of 
 
 1— Lurssen v. Lloyd, 76 Md. 360, 25 Atl. 294 (295). 
 
 1438
 
 §2196.] NUISANCES. 1439 
 
 plaintiff, and that defendant did not, by noise and disturbing vibra- 
 tion pi'oduced on his premises, render the rooms in plaintiff's 
 dwelling- unfit for habitation, and -did not cause plaintiff to lose 
 tenants, and the plaintiff was not unable to use the yard on his 
 premises for laundrying and other purposes, by reason of the causes 
 above mentioned, and the defendant by use of the steam engine and 
 machineiy on his premises, and the manner he conducted his busi- 
 ness, did not othei'wise materially or substantially injure plaintiff's 
 property or seriously interfere with his comfort or enjoyment thereof, 
 then defendant, under the pleadings and evidence in this case, is 
 entitled to a verdict in his favor.^ 
 
 § 2196. Nuisances — Liability of Owner for Maintaining Dangerous 
 Pit Adjoining Highway. The jury are instructed that the owner of 
 property adjoining a highway is bound to use his property so as to do 
 no hann to persons lawfully traveling upon the highway, and if he digs 
 a pit near a sidewalk, so that one, in passing, falls in, and is thereby 
 injured, he is liable for damages to the person injured, provided said 
 pit or cellar was not properly guarded, and such pit-falls or cellars, if 
 contiguous to the public street, are nuisances for which the ow-ner of 
 the land is liable.^ 
 
 § 2197. Nuisance — Damage to Church Property Through Estab- 
 lishment of Railroad Shops in Neighborhood, (a) The suit is 
 brought by a congregation duly incorporated, and they have brought 
 an action to recover damages for their inconvenience and discom- 
 fort in consequence of the acts of the defendant. It is the personal 
 discomfort more than anything else which is to be considered in 
 regard to the assessment of damages. Now, I can very easily imagine, 
 and it may often happen, that the construction of an improvement 
 such as this might increase the value of property in the vicinity, and 
 I am not sure at all that the erection of this workshop in that 
 neighborhood may not really have increased the intrinsic value of 
 the property belonging to this congregation. The evidence in the 
 ease does not, as it seems to me, show that this property has been 
 depreciated by the construction of that workshop. We can imagine, 
 and it is not a far-fetched imagination either, that the effect of such 
 a workshop in that neighborhood might be to collect a population 
 around it, and thus increase the population in that neighborhood, 
 and really enhance the value of property; and yet the congregation 
 would be entitled to recover damages (although their property might 
 have increased in value) because of the inconvenience and discom- 
 fort they have suffered from the use of the shop. The congregation 
 has the same right to the comfortable enjoyment of its house for 
 church purposes that a private gentleman has to the comfortable 
 enjoyment of his own house, and it is the discomfort which is the 
 primary consideration in allowing damages. 
 
 ■(b) If you find all these facts, then, this shop is a nuisance, and 
 
 2— Lurssen v. Lloyd, supra. 3— Cannon v. Lewis, 18 Mont. 402. 
 
 45 Pac. 572 (574).
 
 1440 FORMS OF INSTRUCTIONS. [§ 2197. 
 
 a special annoyance to the congregation that worship in this church. 
 Every man has a right to the comfortable enjoyment of his own 
 house, in which enjoyment a neighbor cannot molest him; and no 
 grant conferred by proper authority upon any corporation to con- 
 struct a railroad along the public streets, or to build shops, can be 
 construed as authorizing that company to construct a nuisance. If 
 the work is of such a necessary kind that the company must have 
 it, if the shop is of that character, and yet is a nuisance in the 
 neighborhood, they must find some other place to put it. No legis- 
 lature has a right to establish a private nuisance. 
 
 (c) If the jury find from the evidence that the engine house of 
 the defendant is used for receiving its engines when they come into 
 the city after a trip; that after coming into said engine house such 
 engines more or less frequently blow off their steam, and that such 
 blowing off of steam makes a loud and disagreeable noise, and that 
 such engines are put in the stalls in said house, and emit the smoke 
 from their fires through the chimneys of said house, and that the 
 said engine house is used for the purpose of a shop in which to make 
 a certain class of repairs upon the engines and ears of the de- 
 fendant, and that a loud noise of hammering is created in making 
 such repairs, and that said engine house is also used to receive coal 
 for coaling the engines of defendant before going out, and that they 
 are all coaled therein and also get up their fire and steam therein, 
 and further find that said house is located so near the church of 
 the plaintiff that the noises from said engine house can be distinctly 
 heard inside of said church, and also that the chimneys of said 
 engine house are so constructed that the tops thereof are not as 
 high as the tops of the windows of said church, and shall further 
 find that the smoke from said chimneys is thrown through said win- 
 dows into said church in such quantities and so generally as to be a 
 common annoyance and inconvenience to the congregation worship- 
 ping therein, and that said noises in said yard of blowing off steam 
 are of daily and nightly occurrence, and are so distinctly heard in 
 said church on Sundays, as well as the days of the week, as to 
 annoy, harass, and inconvenience the congregation when engaged in 
 divine worship therein, and that they disturb and greatly incon- 
 venience the congregation in the enjoyment of said building as a 
 church, then the plaintiff is entitled to recover, provided the jury 
 find that said church was located upon the spot where it now is 
 before the defendant established its engine house in its present posi- 
 tion, and provided the jury further find that the annoyance and 
 inconvenience to said congregation from the smoke and noises above 
 mentioned occurred within three years before the date at which this 
 suit was brought, and provided further that said noises and smoke 
 depreciated the value of the property of the plaintiff within the 
 period from April 1st, 1874, to March 22d, 1877.' 
 
 4— Baltimore & Potomac R. R. Co. v. Fifth Bap. Church, 108 U. S. 
 317 (322), 2 S. Ct. 719.
 
 § 2198.] NUISANCES. 1441 
 
 § 2198. Nuisance— Polluting Stream— Depositing Coal Refuse 
 from Mine into Stream — Admonishing Jury to Render Verdict Ac- 
 cording to the Evidence and Law. (a) Jurors in the trial of cases 
 of this kind are apt to allow their feelings of sympathy on one 
 side, or their feelings possibly of prejudice upon the other, to induce 
 them to render verdicts which the law does not consider proper, 
 because those verdicts are frequently contrary to the law and con- 
 trary to the evidence in the case. Therefore verdicts rendered in 
 that way come to naught. They have to be set aside by this court, 
 or, by an act of Assembly. Now, a higher court can reduce the ver- 
 dicts where they are improper and not according to the evidence. 
 The court of last resort has said in discussing these cases that the 
 trial judge (myself in this case would be the trial judge) sits in 
 some respects as a thirteenth juror, and it is his duty to see that the 
 verdict rendered by a jury should be in accordance with the law 
 and in accordance with the weight of evidence in the case, and not 
 contrary to both or either. In a veiy recent case the Supreme Court 
 has used this language in discussing a question of that kind. 'It is 
 the clear duty of the court, in peremptory language, to hold the jury 
 down to lawful damages, and, if they disregard the instructions of 
 the court to set aside their verdict. ' You see what my duty is, unless 
 you, in reaching a verdict, are governed by the evidence and the law. 
 If the court — the trial judge — ^in its instruction as to the law, makes 
 a mistake or an en-or, in its view of the law, there is a remedy. 
 Either side can appeal to the higher court, and whatever error the 
 trial judge has been guilty of can be corrected by the Superior 
 court or the Supreme court of this Commonwealth, reversing the 
 court below. You are the judges of the fact under the law. And if 
 you render a verdict contrary to the evidence and contrary to the 
 law, under the peremptory instructions which the Supreme Court 
 has laid down to us, it becomes my duty to set aside your verdict. 
 Well, neither you nor the court want such a conclusion of a trial 
 which has occupied now eight days. Therefore, knowing the ten- 
 dency of jurors to allow their s\Tnpathies and their feelings to 
 sway them in rendering verdicts, I have thought proper to draw 
 your attention to your duty under the evidence, and to our duty if 
 you disregard your duty, as we have been told it is our duty to do 
 by our courts of last resort. 
 
 (b) The Supreme Court of this state has said: "There is no 
 doubt that the owner of coal lands may mine and remove his coal in 
 a proper manner. If the drainage from the mines falls into and 
 pollutes a stream of water, and injuriously affects lower riparian 
 owners, this fact alone does not impose liability upon the owner of 
 the coal." Bear that in mind: that if the drainage of the mines 
 falls into and pollutes a stream of water, and injuriously affects 
 lower riparian owners — in this case the plaintiff was a lower riparian 
 owner, owing property below where the Panther Creek emptied into 
 91
 
 1442 
 
 FORMS OF INSTRUCTIONS. 
 
 [§ 2198. 
 
 the Little Schuylkill river — that this fact alone does not impose 
 liability upon the owner of the colliery. 
 
 (c) It is apparent to all of us that the mining operation of 
 Schuylkill county are important not only to the owners of the col- 
 lieries, but to all who live in this county; that, if you were to shut 
 up the mines of the county and stop mining operations, it might work 
 a great deal of injury to most all other persons or all other property 
 situated within the county. The great industiy of the northern part 
 of the county is its mining operations, and, practically speaking, 
 without those mining operations in the upper end of the county a 
 gi'eat deal of that territory would be useless, possibly almost unin- 
 habitable. Therefore, when you come to pass upon the negligence 
 of the defendant and upon the rights of the plaintiff, it is your 
 duty to bear in mind that the defendant company has a legal right 
 to mine its coal upon its own land. The very fact of there being 
 collieries in this county is an important thing to the people who 
 live in those neighborhoods. It is right for you to take that into 
 consideration, with the evidence in the case.^ 
 
 5— Bachert v. Lehigh Coal & Nav- 
 igation Co., 208 Pa. 362, 57 Atl. 765 
 (766). 
 
 "The main objection urged to the 
 charge is that it tended unduly to 
 lead and control the jury, and was 
 prejudicial to the plaintiff. In the 
 part objected to, the learned judge 
 told the jury that their verdict 
 should be founded on the evidence, 
 and cautioned them not to be in- 
 fluenced by sympathy or prejudice, 
 and in clear and distinct, but tem- 
 perate, language, admonished tliem 
 that a disregard of this instruction 
 might lead to a setting aside of 
 their verdict. This was followed by 
 a statement of tlie rights of each of 
 the parties, the ground of the de- 
 fendant's liability, if any existed, 
 and the measure of damages in tlie 
 event of a recovery. It was the 
 right of the judge to give this cau- 
 tion, and, in view of the passions 
 and prejudices that grew out of the 
 labor troubles in the anthracite 
 coal regions in 1902, and which ex- 
 isted at the time of the trial, it 
 may be said to have been his duty 
 to charge as he did. In the recent 
 casf> of Stfivenson v Eb«rvale Coal 
 
 Co., 203 Pa. 316, 52 Atl. 201, it was 
 said: 'It was the clear duty of the 
 court below in peremptory lan- 
 guage to hold the jury down to the 
 lawful damages, and, if they dis- 
 regarded the instruction, to set 
 aside the verdict. What the plain- 
 tiff had a riglit to ask was that he 
 be made whole, not rich. It was 
 the dutj' of the court to see that 
 this result, and this alone, was 
 reached. This is always the rule. 
 It was much better to reach a 
 proper result by an instruction in 
 advance of the verdict than by 
 granting a new trial after it had 
 been rendered. No question of fact 
 was taken from the jury, and there 
 was no attempt to control them, 
 except by pointing out their plain 
 duty, and advising them that their 
 action was subject to review, and 
 that it was not in the power of a 
 jury to plunder at will.' The charge, 
 as a whole, was a very clear and 
 able presentation of the questions 
 involved, and of the law applicable 
 to them, and we see no valid 
 ground of objection to any part of 
 it."
 
 CHAPTER LXXV. 
 
 PARTNERSHIP. 
 
 See Erroneous Instructions, same chapter head, Vol. III. 
 
 § 2199. Who are partners in fact. 
 
 § 2200. Partnership — How formed. 
 
 § 2201. As to third persons — Holding 
 oneself out as partner. 
 
 § 2202. One cannot be made partner 
 against his will. 
 
 § 2203. Articles not originally em- 
 braced in co-partnership 
 added subsequently. 
 
 % 2204. Power of partner to bind the 
 firm. 
 
 § 2205. Partner borrowing money, 
 signing note in firm name. 
 
 § 2206. Partner engaging in out- 
 side transaction — Liability 
 of other partners. 
 
 § 2207. What acts do not bind— 
 Partner using partnership 
 credit or effects. 
 
 § 2208. Note given by one partner — 
 Presumption — Burden of 
 proof. ' 
 
 § 2209. Acts beyond the scope of 
 partnership business. 
 
 § 2210. Whether individual or part- 
 nership funds — Amount of 
 indebtedness of firm. 
 
 § 2211. Liability of particular part- 
 ner — Credit extended on ac- 
 count of partnership in 
 firm — Dissolution notice of. 
 
 § 2212. Sale of partnership interest 
 Misrepresentation — Fact or 
 opinion. 
 
 § 2213. Bound by ratification. 
 
 § 2214. When fraud of one partner 
 binds the other. 
 
 § 2215. Notice of dissolution neces- 
 sary, when — Sufficiency of 
 notice. 
 
 § 2216. Action for accounting — When 
 may sue at law. 
 
 § 2199. Who are Partners, in Fact. The court instructs the .jury, 
 that to constitute a partnership, as to the alleged partners them- 
 selves, it is only necessary that each of them contributes either 
 capital, labor, credit or skill and care, or two or more of these, and 
 that all the contributions are put together into a common stock or 
 common enterprise, to be used for the purpose of carrying on busi- 
 ness for the common benefit.^ 
 
 § 2200. Partnership — How Formed. A partnership can only exist 
 as between the parties themselves, in pursuance of an express or an 
 implied ag-reement, to which the minds of the parties have assented; 
 the intention, or even belief, of one party alone cannot create a part- 
 nership without the assent of the others. ^ 
 
 § 2201. As to Third Persons— Holding Oneself Out as Partner, 
 (a) Persons may be co-partners, as to third persons, and brought 
 within all the liability of partners, as to third persons, who are 
 not partners as between themselves; and they will be so regarded, as 
 to third persons, if they voluntarily and knowingly so conduct them- 
 selves as to reasonably justify the public, or pei"sons dealing with 
 them, in believing that they are partners.^ 
 
 1 — Mechem on Part. § 1; Pars, on 
 Part 54 
 
 2— Phillips v. Phillips, 49 111. 437; 
 Mechem on Part. § 3. 
 
 3— Speer v. Bishop, 24 Ohio St. 
 598; Dailey v. Coous, 64 Ind. 545.
 
 1444 FORMS OF INSTRUCTIONS. [§ 2202. 
 
 (b) The court instructs the jury, that if a person voluntarily and 
 knowingly holds himself out, by his acts or language, to the public 
 or to third persons, as the partner of another, and a third person 
 deals with that other on the faith of an existing partnership, then 
 the person so holding himself out will be liable as a partner to the 
 person so dealing, notwithstanding there was, in fact, no such 
 pai'tnership.'^ 
 
 (e) When persons hold themselves out to the world by their acts 
 or declarations as partners, they will be liable as such, whether such 
 relation really exists between them or not. If they knowingly permit 
 their names to appear in the style of the firm in the business cards, 
 notices or advertisements of the firm, they cannot escape liability 
 for debts contracted in the name of the firm.^ 
 
 § 2202. One Cannot be Made Partner Against His Will. A person 
 cannot be made a partner against his will; so that if one does not 
 consent to become a partner, and does not permit his or her name 
 to be used as a partner, there can be no ground of liability as such.*^ 
 
 § 2203. Articles, not Originally Embraced in Co-partnership, 
 Added Subsequently. The court instructs you as law that, if you 
 should believe from the evidence in this case that the business of 
 steam fitters' supplies is not embraced in the articles of co-partner- 
 ship in evidence, and that A., without the knowledge or consent of 
 the defendant B., purchased and sold steam fitters' supplies in the 
 name of said firm of A. & Co. to such an extent and for such a length 
 of time, openly and publicly, that the dealing in steam fitters' sup- 
 plies became a business within the apparent scope of the business 
 conducted by A. & Co., then and in that case the defendant B Avould 
 be bound for the contracts made by said firm in that line of business 
 precisel}' the same as if it had been embraced in the articles of 
 partnership, as to third parties dealing with the firm in good faith, 
 without knowledge of the terms of the articles of partnership.'^ 
 
 § 2204. Power of Partner to Bind the Firm. Every partner pos- 
 sesses full and absolute authority to bind all the partners, by his 
 acts or contracts, in relation to the business of the firm, in the same 
 manner, and to the same extent, as if he held full power of attorney 
 from them; and as between the firm and third parties, who deal 
 with it, in good faith and without notice, it is a matter of no conse- 
 quence whether the partner is acting fairly with his co-partners, in 
 the transaction, or not, if he is acting within the apparent scope of 
 his authority, and professedly for the firm.^ 
 
 4— Smith v. Knight, 71 111. 148, 22 Browning, 70 S. C. 148, 49 S. E. 325 
 
 Am. Rop. 94; Peck v. Lusk, 38 la. (326). 
 
 93; Story on Part. § 64; Jenkins v. 7 — Crane Co. v. Tierney, 75 111. 
 
 Crane, G4 Wis. 253; Mechem on App. 3.'")4 (3.57), reversed 175 III. 79, 
 
 Part. S 69. 51 N. E. 715. 
 
 .■"j^Ellis v. Bronson, 40 111. 455; Note. — The above instruction was 
 
 P.ainett, etc., v. Blackmar, 53 Ga. approvod by both the Appellate and 
 
 98; Dfidd v. Bishop, 30 La An. Part Supreme Courts. The reversal was 
 
 2d, 1178. on other points in the case. 
 
 6— Providence Mach. Co. v. 8— Pahlman v. Taylor, 75 111. 629;
 
 § 2205.] PARTNERSHIP. 1445 
 
 § 2205. Partner Borrowing Money, Signing Note in Firm Name. 
 
 (a) The court instructs the jury that, if the phiintilf has failed to 
 prove, by a preponderance of the evidence, that F. & L. received 
 money, and if the jury further believe from the evidence that the 
 money was loaned to L. personally, then in such case, the jury should 
 find a verdict for the defendant F., and that should be the verdict of 
 the jury although it may appear, from the evidence, that L. at each 
 of the times of making the several loans as security therefor gave 
 to the plaintiff a note signed F. & L. 
 
 (b) The court instructs the juiy that, before the plaintiff can 
 recover in the case, he must prove by preponderance of the evidence 
 either one or both of the following: First, that the firm of'F. & 
 L. actually received his money; second, that he actually loaned it in 
 good faith to the firm of F, & L., and in good faith received their 
 note therefor, the law being that, if the money was not received by 
 the firm, and the money was loaned to L. personally, then the plain- 
 tiff cannot recover, although at the time of making such loans the 
 plaintiff as security for his loans took from L. a note or notes sitrned 
 by F. & L.9 " 
 
 § 2206. Partner Engaging in Outside Transaction — Liability of 
 Other Partners, (a) If a partnership, as such, engages in any 
 transaction outside of its regular business, the acts and declarations 
 of one partner, if proved, with respect to that transaction, bind the 
 firm as much as though they were made with respect to some matter 
 in the course of its ordinary and customary business.^*' 
 
 (b) The court instructs the jury that one partner cannot, with- 
 out authority from the other members of the firm, bind the firm on 
 an implied contract, not in any way connected with the business, or 
 for its benefit; provided, that if the partner declared when he hired 
 the horse that it was for the benefit of the partnership, then the firm 
 would be responsible.^^ 
 
 § 2207. What Acts do not Bind — Partner Using Partnership Credit 
 or Effects. The jury are instructed, that one partner has no right 
 to apply the funds or securities, or other effects of the partnership, 
 in payment of his own private debts, without the consent of his co- 
 partners; and if he does so, the creditor dealing with such partner, 
 if he knows the circumstances, will be deemed to have acted in bad 
 faith, and in fraud of the other partners, and the transaction will be 
 void as to them.^^ 
 
 First Natl. Bank v. Carpenter, 41 "was within the scope of the part- 
 la. 518; Lindley on Part. (2nd Am. nership busines.s, and one partner 
 Ed.) 124. ' is the agent of his co-partner in all 
 
 9— Funk v. Babbitt, 156 111. 408 matter.s within the .scope of the 
 
 (413), affi'g 55 111. App. 124, 41 N. E. partnership business. As such 
 
 166. ag-ont. his declarations are suf- 
 
 10 — Sandilands v. Marsh, 2 B. & ficient to bind his co-partner, 
 
 Aid. 673; Roardman et al. v. Adams whether in accordance with the 
 
 et al., 5 la. 224. fact or not." 
 
 11— Sweet v. Wood, 18 R. I. 386, 12— Pars, on Part. Ill; Story on 
 
 28 Atl. 335. The hiring- of the horse Part. § 132.
 
 1446 FORMS OF INSTRUCTIONS. [§ 2208. 
 
 § 2208. Note Griven by One Partner— Presumption— Burden of 
 Proof. You are further instructed that, when a note, or other se- 
 curity, is given in the name of the firm, by one partner, in payment 
 of his own individual debt, the law raises a presumption that it was 
 done without the knowledge or consent of the other partners, and 
 the burden of proving such knowledge and consent, is upon the 
 party alleging it.^^ 
 
 § 2209. Acts Beyond the Scope of Partnership Business. The 
 court instructs the jury, that each member of a firm is presumed 
 to have, and has, authority to bind the firm within the scope of the 
 partnership business; but in order to bind the firm in matters outside 
 of or beyond the apparent scope of the partnership business, the 
 authority of one partner to act for the firm, must be shown, precisely 
 the same as if any other pei'son had performed the aet.^^ 
 
 § 2210. Whether Individual or Partnership Funds — Amount of 
 Indebtedness of Firm, (a) The court charges the jury that if the 
 money deposited by the plaintiff with R. & Co. was the individual 
 money of the plaintiff, and was not taken frona the partnership 
 business of W. & Co., then defendant was not interested therein, and 
 acquired no right therein, or on account thereof, against the plaintiff. 
 
 (b) The court charges the jury that whether they believe what 
 Mr. H. says about the amount of indebtedness is a question for the 
 jury, and if, from all the facts and circumstances in the case, they 
 are not reasonably satisfied what he says about the amount is correct, 
 they may find that he has not shown a reasonable certainty what 
 the indebtedness of the firm was.^^ 
 
 § 2211. Liability of Particular Partner — Credit Extended on Ac- 
 count of Membership in Firm — Dissolution, Notice Of. The jury are 
 instructed to find for the plaintiff if they find from the evidence that 
 R. was a member of the firm of P., R. & Co. at the time that firm 
 commenced business, or afterwards before the indebtedness sued on 
 was incurred, and the plaintiff extended the credit for the claim 
 sued on in the faith of his belief that R. Avas such a partner, then 
 and in that event the said R. would be liable for the amount of the 
 note sued on and interest, unless he gave actual notice to the plain- 
 tiff, or gave notice generally by advertisement in some newspaper 
 published in the locality or county, of the dissolution of the partner- 
 ship before said indebtedness was ineui-red.'" 
 
 § 2212. Sale of Partnership Interest — Misrepresentation — Fact or 
 Opinion, (a) The court chai-ges the jury that a statement that 
 
 13 — Mechem on Part. § 174; Story "This instruction covers the tes- 
 
 on Part., § 133. timony on both sides and substan- 
 
 14— McNair v. Piatt, 46 111. 211; tially states the law. Simonds v. 
 
 P>oardman v. Adams, 5 la. 224; Strong-, 24 Vt. 642; Amidown v. Os- 
 
 Lindlev on Part. (2nd Am. Ed.) 124. sood, 24 Vt. 278, 58 Am. Dec. 171; 
 
 15— Hooper v. Whitaker, 130 Ala. Meyer v. Krohn, 114 111. 574, 2 N. E. 
 
 324, 30 So. 355 (356). 495; Moline Wagon Co. v. Rummell 
 
 16— Rector v. Robins, 74 Ark. 437, (C. C), 12 Fed. 658; Kennedy v. 
 
 86 S. W. 667. Bohannon, 11 Mon. B. (Ky.) 118."
 
 § 2213.] PARTNERSHIP. 1447 
 
 there was belonging to the finn a stock of goods amounting to 
 $ , was, if majde, the statement of a fact, and not the state- 
 ment of an opinion. 
 
 (b) The court charges the jury that a statement that there was 
 enough mone}' in the bank to pay the debts of the firm was, if made, 
 the statement of an opinion. 
 
 (e) The court charges the juiy that if W. 'told H. the finn of 
 
 W. & Co. owned a $ stock of goods, and if there was only 
 
 $ of goods in the stock, and if H. was ignorant of the truth 
 
 of this matter, and in ignorance thereof, if H. acted on the belief 
 that the statement was true and made the purchase, then the defend- 
 ant would not be entitled to have the duebill credited with one-half 
 the diiSerence between $ and $ .^'^ 
 
 § 2213. Bound by Ratification. The jury are instructed, that 
 while one partner cannot rightfully appropriate partnership funds 
 to the pajyment of his individual debts, yet, if he does do so, his 
 acts, when they come to the knowledge of the other members of the 
 firm, should be clearly and promptly repudiated ; and if, when such 
 knowledge comes to the other members of the firm, they do not, 
 within a reasonable time thereafter, repudiate the transaction, they 
 will be deemed to have ratified it, and will be bound to the same extent 
 as though they had expressly authorized it in the first instance. 
 Whether, in this case, the debt in question was paid out of partner- 
 ship funds by the said A. B., and whether the other partners had 
 knowledge of that fact, and whether they did repudiate the trans- 
 action, and notify the said ■ , of that fact, as soon as it could 
 
 reasonably be done, are all questions to be detennined by the jury, 
 from a consideration of all the evidence in the ease.^^ 
 
 § 2214. When Fraud of One Partner Binds the Other. The court 
 instructs the jury, that if a fraud is committed by one partner, in 
 the name of the firm, in the course of the partnership business, it 
 will bind the firm, even though the other partners had no knowledge 
 of the fraud, or participation in the transaction to which it relates.^^ 
 
 § 2215. Notice of Dissolution Necessary, When — Sufficiency of 
 Notice, (a) The court instructs the jury, that the law is, that when 
 a partnership is dissolved, and one of the partners continues the 
 business as before, the retiring partner, to protect himself from fu- 
 ture liabilities, should see that public notice of such dissolution, or 
 of his retirement, is given in some manner, so as fairly and reasonably 
 to notify the public of the fact of his withdrawal from the firm; 
 and if he does not do so, persons dealing with the partner who con- 
 tinues the business, without actual notice of the dissolution, will have 
 a right to rely on the credit of the original fimi.-^ 
 
 17— Hooper v. Whitaker, 130 Ala. 19— Lindley on Part. (2nd Am. 
 
 324, 30 So. 355 (356). Ed.) 147; Story on Part. § 131. 
 
 18— Marine Co., etc., v. Carver, 42 20— Mechem on Part. § 260; Pars. 
 
 111. 66; Evans v. Howell, 84 N. C. on Part. 410. 
 460; Lindley on Part. (2nd Am. Ed.) 
 143.
 
 1448 FORMS OF INSTRUCTIONS. [§ 2216. 
 
 (b) When one partner withdraws from the firm, and the business 
 is continued by the other partners, the retiring partner should see 
 that persons who have formerly dealt with the firm have reasonable 
 notice of such retirement, or else those who continue to deal with the 
 firm, without actual notice of his withdrawal, can hold him liable 
 as a member of the finn.^i 
 
 (c) The court instructs the jui*y that whether sufficient notice 
 had been given of the dissolution is a question for you to determine; 
 that defendant was not bound to publish notice in any of the C. 
 papers; he was only bound to give actual notice to such parties there 
 as had dealt with the partnership. But defendant was bound to use 
 all fair means to publish as widely as possible the fact of a dissolu- 
 tion. Publication in a newspaper is one of the proper means of giving 
 notice, but it is not absolutely essential ; and the question for you to 
 determine is whether the defendant gave such notice of the dis- 
 solution as under the cii'cumstances was fair and reasonable. If he 
 did, then he is not liable on the note; if he did not, he would still 
 continue liable.^- 
 
 § 2216. Action for Accounting — When May Sue at Law. Although 
 the juiy may believe, from the evidence, that the plaintiff and de- 
 fendant were formerly partners, and that the account sued on grew 
 out of their partnership business, and is claimed by the plaintiff as 
 the balance due to him, upon a settlement of such business, still, if 
 the jury further believe, from the evidence, that the partnership had 
 been dissolved, and 'the partnership business settled between the 
 parties, and a balance struck and agreed upon as the amount due to 
 the plaintiff', before the commencement of this suit, then the plaintiff 
 can maintain a suit for such balance.^^ 
 
 21 — Holtgreve v. Wintker, 85 111. mine for all cases what shall be 
 470; Davis v. Willis, 47 Tex. 154; sufBcient notice and what shall not 
 Haynes v. Carter, 12 Heisk. (Tenn.) be; the question must necessarily 
 7, 27 Am. Rep. 749; Austin v. be one of fact. Publication of no- 
 Holland, 69 N. Y. 571, 25 Am. Rep. tice of dissolution in a local news- 
 246; Gilcrist v. Brande, 58 Wis. 184. paper is common, but it is not the 
 
 22— Solomon v. Kirkwood, 55 only method in which notice can 
 
 Mich. 256, 21 N. W. 336. be given." 
 
 "The in.struction respecting notice 23 — Wycoff v. Parnell. 10 Ta. 332; 
 
 was correct. No court can deter- Ridgway v. Grant, 17 111. 117.
 
 CHAPTER LXXVI. 
 
 REAL ESTATE— MISCELLANEOUS. 
 
 See Erroneous Instructions, same chapter head, Vol. III. 
 
 ! 2217. Whether fixtures are person- 
 al or real property. 
 
 ( 2218. Building personal property, 
 when. 
 
 i 2219. Growing crops — When per- 
 sonal property. 
 
 ! 2220. Sale of land— Title to grow- 
 ing crops. 
 
 i 2221. Sale of real estate— With- 
 drawal of offer. 
 
 i 2222. Conveyance of real estate — 
 Valuable consideration. 
 
 i 2223. Assumpsit for value of party 
 wall. 
 
 2224. Falling of party wall— Duty 
 of owner to protect and 
 maintain. 
 
 i 2225. Widow's title to real estate- 
 Separation of spouses dur- 
 ing life. 
 2226. Title to real estate— Pur- 
 chase by father with money 
 of children. 
 
 § 2227. Oral contracts of real estate 
 — What must be shown to 
 take it out of Statute of 
 Frauds. 
 
 § 2228. Notice of defect in title- 
 Heirs — Facts calling for in- 
 quiry. 
 
 § 2229. Drains— Duty to keep open 
 and free from obstructions. 
 
 § 2230. Special assessment — Railroad 
 company restricted in the 
 use of its right of way. 
 
 § 2231. Special assessment — What 
 may be considered in de- 
 termining special benefits. 
 
 § 2232. Taxation — Fixing valuation. 
 
 § 2233. Accretions defined— Riparian 
 proprietoi''s right. 
 
 § 2234. Homestead— Place of resi- 
 dence — Ejectment — Meas- 
 ure of damages— Series. 
 
 § 2217. Whether Fixtures Are Personal or Real Property. The 
 court instructs the juiy that one of the material issues of this ease 
 is, whether the boiler and fittings in question passed by deed of the 
 real estate to the defendants as fixtures to the real estate, or were, 
 at the time of the execution and delivery of such deeds, personal 
 property only. If the jury believe, from the evidence in this case, 
 under the instructions given you, that the boiler and fittings in 
 question were not so attached to the said real estate as to become 
 fixtures thereto, but wei'e personal property only, then the same do 
 not pass by conveyance of the real estate.^ 
 
 § 2218. Building Personal Property, When, (a) The court in- 
 sti-uets the jury, that where a building is owned by one person, and 
 the land on Avhich it stands is owned by another, then the building 
 is personal property; and it will always remain personal property 
 until the ownership of the land, and that of the building, unite in the 
 same person. ^ 
 
 (b) Where one wTongfully places a building on the land of an- 
 other, in such a way as to attach it to the ground, the building will 
 
 1— Hacker v. Munroe & Son, 176 2— Crippin v. Morrison, 13 Mich. 
 111. 384 (394), aff'g 61 111. App. 420, 23. 
 52 N. E. 12. 
 
 1449
 
 1450 FORMS OF INSTRUCTIONS. [§ 2219. 
 
 belong to the owner of the land; but where one rightfully and law- 
 fullj' places his building on the land of another, without any inten- 
 tion of having it belong to the owner of the land, then it will not 
 belong to such owner,^ 
 
 (e) If the jury believe, from the evidence, that R. was the owner 
 of the land on which the building in question stands, and that M., as 
 the tenant of R., placed the building on the land with R.'s consent, 
 and with the understanding or agreement with R. that M. might 
 remove the same at the expiration of his lease, then the building 
 would be personal property, and it would not be conveyed by a con- 
 veyance of the land, so long, at least, as M. and those holding under 
 him continued in possession of the property, under the lease.* 
 
 (d) If the jury believe, from the evidence, that before the house 
 in question was built, the plaintiff and defendant entered into a 
 contract, by which defendant agreed to purchase the land where the 
 house was built from the plaintiff, and, under that contract, went 
 into possession of the land and erected the house thereon, with the 
 intention of having it remain there as a permanent fixture to the 
 land, then the house, as soon as it was built, became a part of the 
 real estate, and in law belonged to the owner of the land, and any 
 alleged contract authorizing the defendant to remove the house there- 
 from, would have to be in writing to be binding on the plaintiff.^ 
 
 § 2219. Growing Crops — ^When Personal Property. The court in- 
 structs the jury, that growing crops, in law, are regarded for some 
 puiT^oses as personal property, and for some purposes as a part of 
 the real estate upon which the crops are growing. As between seller 
 and purchaser of real estate, they are regarded as belonging to the 
 real estate, and will pass with the conveyance of the land to the 
 purchaser, unless they are expressly reserved in writing." 
 
 § 2220. Sale of Land — Title to Growing Crops. The court instructs 
 you that upon the (|uestion of ownership of growing wheat while it 
 is growing upon the land, I instruct you that a sale or transfer of 
 the title to the land carries with it the ownership in the crops grow- 
 ing thereon at the time of the transfer of the title to the land.^ 
 
 § 2221. Sale of Real Estate— Withdrawal of Offer. The plain- 
 tiffs alk'ge that A. j)i-()posed to buy tlie property jirovided an abstract 
 of title and deeds conveying the property to him from plaintiffs 
 were furnished prior to -. Now, if you believe from the evi- 
 dence that prior to , said A. withdrew his offer to buy the 
 
 property, and that the failure of plaintiffs to furnish an abstract 
 of title to the property, and to execute a deed from them to A. 
 before • , was not the reason A. withdrew his offer before 
 
 3— Coolcy on Torts 307; Adams v. 5— Crum v. Hill, 40 la. 506; Groff 
 
 CodfhirrJ. 48 Me. 212. v. O'Connor, 16 III. 421. 
 
 4 — f;o()l(;y on Torts 306; Barnes v. 6— Carpenter v. Jones, 63 111. 517. 
 
 narnoH. 6 Vt. 388; Smith v. Benson, 7— Abbott v. Abbott, 68 Kan. 822, 
 
 1 Hill. 176. 75 Pac. 1040.
 
 §2222.] REAL ESTATE— MISCELLANEOUS. 1451 
 , but that A. withdrew his offer before , for some other 
 
 reason, then I charge j'ou your verdict must be for defendant.^ 
 
 § 2222. Conveyance of Real Estate — Valuable Consideration. 
 The court instructs the jury that if they believe that W. as a con- 
 sideration for the deed from C. and wife to him, conveyed to them, 
 or either of them, other land of value, or executed his negotiable 
 pi'omissoiy note to them, then such consideration is, within the mean- 
 ing of the law, a valuable consideration.^ 
 
 § 2223. Assumpsit for Value of Party Wall. The court instructs 
 the jury that notice of the existence of a party wall agreement given 
 to an agent of a purchaser operates as a. notice to such purchaser, 
 and, if the jury believe, from the evidence, that J. M. conducted the 
 negotiations for the purchase and conversance of lot 9 in Higgins 
 subdivision, etc., one of the lots testified about, for and in behalf of 
 his brother, A. M., and with his consent; and, if the jury further 
 believe, from the evidence, that said J. M. at the time of the pur- 
 chase of said lot had notice, actual or constructive, of the existence 
 of a party wall agi'eement, then such notice operated as a notice to 
 A. M. of the existence of such agreement and contents thereof, if, by 
 reasonable enquiry, he could have learned of its contents.^*' 
 
 § 2224. Falling of Party Wall— Duty of Owner to Protect and 
 Maintain, (a) The court instructs the jury that under and by the 
 terms of said party wall contract between the said plaintiff, K., and 
 the said B., the said B. and his heirs were the sole owners of the 
 entire east wall of said burned building, and had the sole and exclu- 
 sive control thereof until such time as the said plaintiff, K., exercised 
 her right to pay for and use some portion of said wall, and that 
 prior to the times the said K. exercised her right to pay for and use 
 portions of said wall she had no right, title or interest in said wall 
 or any part thereof. 
 
 (b) The court instniets the jury that under the terms of the 
 party wall contract introduced in evidence between the plaintiff, 
 K., and B., deceased, the said B. was, during his lifetime, and his 
 heirs were after his death, the sole and exclusive owners of the por- 
 tion of the east wall of said burned building not paid for by the said 
 plaintiff. K., and that as to such portion of said east wall of said 
 burned building as you find from the evidence was not paid for by 
 the said K. under such party wall contract, the said defendants are 
 charged with the same responsibility for the protection, care and 
 
 8— Cohen v. Cohen, 26 Tex. Civ. conducting- negotiations for the 
 
 App. 315, 63 S. W. 544 (546). purchase of real estate is not notice 
 
 9 — Phoenix Ins. Co. v. Neal, 23 to his principal. The authorities 
 
 Tex. Civ. App. 427, 56 S. W. 91 (92). cited by counsel are not applicable 
 
 10 — McChesney v. Davis, 86 111. to this case, nor to the instruction 
 
 App. 380 (383). in question. The general rule is 
 
 "The contention of appellant that that notice to the principal, if the 
 
 the instruction given by the court knowledge of the facts is acquired 
 
 was erroneous is not tenable. It is while the agent is acting for his 
 
 argued in this action that notice of principal. Williams v. Tatnall, 29 
 
 a fact affecting the title to an agent 111. 553."
 
 1452 FORMS OF INSTRUCTIONS. [§ 2225. 
 
 maintenance that tliey -would have been charged with if there had 
 been no party wall contract entered into between said K. and said 
 B. deceased, 
 
 (c) The court instructs the jury that under the terms of said 
 contracts between said plaintiff and said B., the said plaintiff, K., did 
 not have any control over or right to use any portion of said east 
 wall of said burned building until she had paid therefor, and that 
 the fact that she had paid for and used portion of said wall gave 
 her no rights in or control over the remainder of said wall, and 
 that at no time did said K. have the right to go onto or touch 
 the portion of said wall not paid for by her for the purpose of 
 bracing, staying or protecting the same, to keep it from falling. 
 
 (d) The court instructs you that if you believe from the evidence 
 that the portion of said east wall of said burned building, which 
 was owned by said defendants, was above and to the rear of the 
 portion of said wall which had been paid for and used by said 
 plaintiff, and that the portion of said wall which was owned by 
 said defendants was by them negligently permitted to lean, sag and 
 fall over, and that said portion of said wall owned by said defendants 
 in its fall pulled over a part of the portion of said wall which said 
 plaintiff had paid for and was using, and that the portion of said 
 wall which was paid for was used by said plaintiff would not have 
 fallen if the portion of said wall owned by said defendants had not 
 forced it over, then you should find said defendants guilty, and 
 assess the said plaintiff's damages at such an amount as you believe 
 from all the evidence and the instructions of the court, she was 
 damaged by the falling of said wall. 
 
 (e) The court instructs the jury that as a matter of law the 
 plaintiff has no right to go on or touch the portion of said east wall 
 of said building not paid for by her, for the purpose of preventing 
 the same from falling, or for any other purjDose.^^ 
 
 § 2225. Widow's Title to Eeal Estate — Separation of Spouses Dur- 
 ing Life. The court instructs you that the fact that this widow (the 
 plaintiff) may not have been living with him (her husband) for some 
 time previous to his death would make no difference if she had not 
 been divorced or he had not been divorced from her; she would be 
 entitled to all the rights of a wife.^- 
 
 § 2226. Title to Real Estate— Purchase by Father With Money of 
 Children. The court instructs the jury that if the defendants were 
 niiiiors at the time they worked and made the money, the money be- 
 longed to their father, (and) although he may have taken that money 
 while they were in their minority, and purchased the property, the 
 title thereto would nevertheless vest in their father.^^ 
 
 11 — The above instructions were "This instruction was in perfect 
 
 approvffl in Beidler v. Kin^, 108 accord with the decision of this 
 
 111. ApD. 2:! (32-3), aff'd 209 111. 302, court in Farris v. Battle, SO Oa. 187. 
 
 70 X. K. 713, 101 Am. St. 246. 7 S. E. 262, which is controlling up- 
 
 12— Smith V. Smith, 112 Ga. 351, 37 on the question now raised." 
 
 S. E. 407. 13— Smith v. Smith, supra.
 
 §2227.] REAL ESTATE— MISCELLANEOUS. 1453 
 
 § 2227. Oral Contract of Real Estate— What Must Be Shown to 
 Take it Out of Statute of Frauds, (a) The jury are instructed that 
 if they believe from the testimony that the defendant and W, S. 
 entered into a contract for the sale and purchase of the land in con- 
 troversy, and that such contract was oral and not in writing, then, 
 in order to take such contract out of the statute of frauds by reason 
 of the possession of the defendant it must appear from the evidence 
 that the defendant took possession of said property solely under the 
 contract and in reference exclusively to it. 
 
 (b) If you find that the defendant entered into a verbal contract 
 for the purchase of the land in question, and took possession of it 
 under the contract, and solely in reference to it, these facts take 
 the case out of the statute of frauds, and the conti-act is as good 
 to prove the sale as if it was in writing, and if you find that the 
 defendant, while continuing in possession, made the pajTuent agreed 
 upon, his title became perfect, and is good against the claim of the 
 plaintiff, although he has no deed or other written evidence of title.^* 
 
 § 2228. Notice of Defect in Title— Heirs— Facts Calling for In- 
 quiry, (a) Actual notice is where a party to be affected by notice 
 either has knowledge of the fact or is conscious of having the means 
 of knowledge, although he may not use them. Therefore, when the 
 party to be charged is shown to have knowledge of such facts and 
 circumstances as would lead him, by the exercise of due diligence to 
 a knowledge of the principal fact sought to be established, it would 
 be actual notice. Whatever is notice enough to excite attention and 
 put a party on his guard and call for inquii-y, is also notice of every- 
 thing to which it is afterwards found that such inquiry might have 
 led, although it was not knoAvn for want of investigation. Any fact 
 or circumstance that would put a prudent man upon inquiry, which, 
 if pursued would lead to a knowledge of all the facts pertaining to 
 the matter inquired about is notice. The registration of a deed in 
 the county where the land is situated, properly authenticated is no- 
 tice to eveiy one of its contents as shown by such record, 
 
 (b) A purchaser who buys property from the heirs of one who 
 is dead is bound to take notice cf who all the heirs of the dead 
 person are.^^ 
 
 (e) The court instructs the jury, that whatever is sufficient to put 
 a purchaser of land upon inquiry, as to the existence of an unre- 
 corded deed, is sufficient notice of such deed. That in general, where 
 notice is required to affect the rights of parties, a knowledge of such 
 facts as ought to put an ordinarily prudent person upon inquiiy, is 
 deemed in law equivalent to notice of the facts, to the knowledge of 
 which such inquiries would have led.^*' 
 
 14— Fox v. Spears, 78 Ark. 71, 93 Forbes v. How, 102 Mass. 427, 3 
 
 S "W. 560 (561). Am. Rep. 475; Heaton v. Prather, 
 
 'l5— Root v. Baldwin, — Tex. Civ. 84 111. 330; Rice v. Melendy, 41 la. 
 
 App. — . 52 S. W. 586 (587). 395. 
 
 16— Bump on Fraud. Con. 232;
 
 1454 FORMS OP INSTRUCTIONS. [§ 2229. 
 
 (d) The court instructs you, that to charge a person with notice, 
 on the ground that he had knowledge of such facts as ought to 
 have put him upon inquiry, it must appear, from the evidence, that 
 the infoi-mation he had received Avas of that character that it was 
 calculated to excite the attention of an ordinarily prudent person, 
 and that such person, by the exercise of reasonable and ordinary 
 diligence, could, upon inquiry and investigation, arrive at the knowl- 
 edge of the fact with which he is sought to be charged.^'^ 
 
 (e) Whatever is notice enough to excite attention, and put a 
 party on his guard, and call for inquiry, is notice of everything to 
 which such inquiry might have led; and every unusual circumstance 
 is ground of suspicion, and prescribes inquiry.^^ 
 
 § 2229. Drains — Duty to Keep Open and Free From Obstructions. 
 
 If you find from the evidence in this cause that the plaintiffs, who are 
 the petitioners for the construction of the proposed ditch, permitted 
 the ditch now existing across their lands to be trampled in by stock, 
 or otherwise to become filled up and in need of cleaning, and you 
 find that the exclusive benefits to be derived from the construction 
 of the ditch in question here would be to clean out and put in proper 
 condition said ditch now existing, and you further find that said 
 filling up of said existing ditch was caused by neglect or fault of 
 the plaintiffs alone, then you would be authorized to find that the 
 proposed ditch is not of public utility, as a person cannot allow a 
 ditch on his own premises through his own fault or neglect to become 
 out of repair and then call upon his neighbors or parties owning land 
 along the route of the proposed ditch to help him pay for necessary 
 cleaning of the same, and if you find such facts to exist, it would 
 then be your duty to find for the defendants.^^ 
 
 § 2230. Special Assessment — Railroad Company Restricted in the 
 Use of Its Right of Way. The court instructs the jury that the 
 
 right of way of the Railroad Company, which is assessed 
 
 for the improvement of M. avenue, is held by said .company only 
 for railroad purposes and uses, and the said company cannot law- 
 
 17— City of Chicago v. Witt, 75 111. by the township trustees, and the 
 
 211. instructions given at the request of 
 
 18 — Russell V. Rauson, 76 111. 167. appellees is incorrect in so declar- 
 
 19— Berry v. Driver, — Ind. — , 76 ing the law. It is equally plain that 
 
 N. E. 9U8. such land owners may not negli- 
 
 "If any part of such ditch shall gently suffer or cause a ditch to 
 be obstructed by the negligence of become filled up and obstructed, 
 the owner or occupant of any land, and under the guise of constructing 
 or by his stock, he must, under the a new work compel others to con- 
 provisions of section 5639, remove tribute to the expense of removing 
 sur'h obstructions at his own ex- such obstructions, where the ex- 
 pense before the 31st day of August isting ditch, if properly cleaned 
 of each year. In view of these and repaired, would effectually 
 statutory provisions it cannot be drain their lands and dispense witii 
 said that the owner of lands the necessity for the proposed im- 
 chargff] with the maintenance of provement. It follows that the in- 
 allotted portions of a ditch are un- struction tendered by appellants 
 der no legal duty to free the same should have been given." 
 of obstructions except as required
 
 §2231.; 
 
 REAL ESTATE— MISCELLANEOUS. 
 
 1455 
 
 fully apply said right of way to any otlier use or purpose than such 
 as is neeessai';^' for the operation and maintenance of its railroad.-*' 
 S 2231. Special Assessment — What May Be Considered in Determ- 
 ining Special Benefits. The jury are instructed that the only special 
 benefits to the property they can consider in this ease are those that 
 will come to the property assessed from the making of the improve- 
 ment provided for in the ordinance, and it is not proper for them 
 to assume that any other improvements will be put into the street 
 before the building of the pavement provided for.-^ 
 
 § 2232. Taxation — Fixing Valuation, (a) Gentlemen, you will 
 not pay any attention to what the tax assessor did, nor what the 
 county board of revenue did, but you will fix the valuation of the 
 defendant's property from the evidence solely, as if no valuation had 
 been made by the tax assessor, or any one else, as the case is now 
 tried de novo. 
 
 (b) "What the assessor did with the assessment of the defendant's 
 property has nothing to do with this case as it is now tried de novo.^^ 
 
 20—1. C. R. R. Co. V. Chicago, 
 141 111. 509 (513), 30 N. E. 1036, 17 L. 
 R. A. 530. 
 
 "The first section of the Act of 
 Congress of September 20th, 1850, 
 which granted lands to the state of 
 Illinois to aid in the construction 
 of Illinois Central Railroad, gave 
 to the state the right of way 
 through the public lands for the 
 construction of a railroad, the right 
 of way over the public lands being 
 a strip of land two hundred feet 
 wide. (9 U. S. Statutes at Large, 
 p. 466). Following the act of Con- 
 gress, the act of February 10th, 
 1851, incorporating the Illinois Cen- 
 tral Railroad Company, was 
 passed. Section 15 of the act con- 
 tains the following: 'The right of 
 way over and through lands owned 
 by the state is hereby ceded and 
 granted to said corporation for the 
 only and sole purpose of survey- 
 ing, locating, constructing, com- 
 pleting, altering, maintaining and 
 operating said road and branches 
 as in this act provided. Here is a 
 particular specified use fixed by 
 law, which is beyond the power of 
 the owner to change, "^^here such 
 is the case, what is the correct rule 
 in ascertaining whether a tract of 
 land is benefited by an improve- 
 ment? 
 
 "■^'hen land is held by an individ- 
 ual, the benefits are not to be de- 
 termined alone by the market value 
 of the property for the use to which 
 it v/as then devoted by the owner, 
 but the market vnlue may be 
 shown for any use for which the 
 property may properly be used, as 
 
 the owner may change the use of 
 the pi;operty at any time at his 
 own will or pleasure. But in a 
 case like the one under consider- 
 ation, where the law has devoted 
 the property permanently to a 
 particular use, it would seem 
 that it could only properly be 
 benefited to the extent that its 
 fitness to that particular use 
 was increased and enlarged. In a 
 proceeding to condemn land for 
 public purposes, where the lands 
 are restricted by statute or the in- 
 strument under which the owner 
 holds the title to a particular use, 
 the measure of compensation to the 
 owner for the lands taken will be 
 their value to him for the special 
 use to which the lands are restrict- 
 ed. This doctrine was announced 
 in Railroad Co. v. Catholic Bishop, 
 119 111. 529, 10 N. E. 372. So also in 
 C. & N. W. Ry. Co. V. Chi. & Evan- 
 ston R. R. Co., 112 111. 590, where 
 it was held: 'Where in the nature 
 of things there can be no market 
 value of a piece of property by 
 reason of it being used in connec- 
 tion with and as a part of some 
 extension business or enterprise, its 
 value must be determined by the 
 uses to which it is applied.' " 
 
 It was held to be reversible error 
 to refuse to give the above in- 
 struction. 
 
 21— Holdom v. Chicago, 169 111, 
 109 (111), 48 N. E. 164. 
 
 The court held that the refusal to 
 give the above instruction was re- 
 versible error. 
 
 22— Stahmer v. State, 125 Ala. 72. 
 27 So. 311.
 
 U56 FORMS OF INSTRUCTIONS. [§2233. 
 
 § 2233. Riparian Proprietors' Rights — Accretions Defined, (a) 
 The court instructs the jury that under the law of this state that 
 pei"sous owning land on or bounded by the Mississippi river own to 
 the water's edge, and when the water recedes gradually the land is 
 made thereby, the owner of the land bounded by the river is owner 
 of the land so made, and such owner's rights to such made land 
 remain equal to his river front, and such riparian rights cannot be 
 encroached upon by adjoining owners so running their boundary lines 
 as to diminish such river front or accretions. 
 
 (b) The court instructs the juiy that the term ''accretion," as 
 used in the instructions in this case, means portions of soil added to 
 that already in possession of the owner by gradual deposit caused 
 by a change in tjhe bed of the river, and that accretion belongs to 
 the owner of the land, and it makes no difference whether the accre- 
 tions were formed before or after the ownership has accrued, and 
 that ownership may be acquired by adverse possession as well as by 
 deed.2^ 
 
 § 2234. Homestead — Place of Residence — Ejectment — Measure of 
 Damages — Series. Plaintiff's Instructions, (a) The jury are in- 
 structed that the widow of a deceased person is entitled to the 
 possession of the mansion house, and plantation used in connection 
 therewith, of her deceased husband, from the time of his death until 
 her dower shall be assigned her, and the fact that said widow may 
 have lived separate and apart from her said husband before and 
 at the time of his death cannot defeat her of her rights to the 
 ])ossession of the said premises. And the jury are further instnicted 
 that the mansion house of a person is his chief place of residence, 
 and the residence of a person, when once established, remains until 
 it is abandoned, and, in order to constitute abandonment, it is not 
 enough that he should at times absent himself from it, or lease it 
 out, if he intends at the time he so absents himself or m'akes such 
 lease to return to such homestead and make it his home, and that 
 this absence shall be temporary. And if the jury shall believe from 
 
 the evidence that in the fall of the deceased, K., lived upon 
 
 the place known as ''Peabody" with his family, and that said place 
 
 "It appears that this was not a action. Sullivan v. State, 110 Ala. 
 
 proceeding on appeal to the circuit 95, 20 So. 452. But, when the assess- 
 
 court to correct the action of the ment has been made by the tax 
 
 board of equalization of the county commissioner as here, the assess- 
 
 for raising the assessment of de- ment by him supersedes that of the 
 
 feiidant's property as made by the assessor, and the assessment by 
 
 tax assessor, which he seeks to re- the latter, when introduced in evi- 
 
 viow, but to correct the assessment dence, would not be entitled to this 
 
 as made by the tax commissioner prima facie presumption of cor- 
 
 of the county. In a proceeding on rectness, and the principle invoked 
 
 nppcal to correct the action of the in the case referred to, is without 
 
 board of equalization in the trial application." 
 
 In the circuit court in a case of the 23 — Benno v. Miller et al., 149 Mo. 
 
 fli-st named character, we have 228, 50 S. W. 824 (826). 
 
 hf-retofore held that the assessment "The instructions given for de- 
 
 of the tax assessor should be re- fondants, defining the term 'accre- 
 
 trardfd as prima facie correct, tions' and riparian proprietors' 
 
 wholly regardless of the board's right to such, were correct."
 
 §2234.] REAL ESTATE— MISCELLANEOUS. 1457 
 
 was his home, then the chief house on said premises was the mansion 
 house of said K. And even though you should believe from the evi- 
 dence that there was a separation of said K. and his wife, and that 
 his wife and younger children did not remain at "Peabody, " and 
 that said K. leased said house and some of the land on said place 
 
 to his son J. for the period of years, and that said K. was 
 
 at times absent from s'aid place, yet if you shall further believe from 
 the evidence that said K. at the time he made said lease and at the 
 time he left said premises intended to return to the same as his 
 home, and that he had not in his own mind left said place with the 
 intention of remaining away from the same permanently, then said 
 place continued as his homestead, and you will find a verdict for 
 the plaintiff. 
 
 (b) Although the jury may believe from the evidence that said 
 K. made a lease of the Peabody house and a part of the lands ad- 
 jacent to the same to his son J. for the term years, and that he 
 
 went to E. for his health, recreation or business, but that said K. 
 intended at the times of leaving said premises, and when he made 
 said lease intended, to be absent from said premises only temporarily, 
 and to return to the same as his home, then said K. had not aban- 
 doned said homestead, and your verdict must be for the plaintiff. 
 
 (c) The court instructs the jui-y that 'the lease to the defendant, 
 
 J., of the lands in said lease described having expired on the 
 
 day of , and before the death of K., said K, was, from that 
 
 time up to the time of his death, entitled to the possession of said 
 lands. 
 
 (d) Although the juiy may believe from the evidence that K. 
 went to the state of California for the purpose of establishing a 
 domicile there for the pui-pose of instituting a suit for divorce against 
 his wife, but that it was the intention of said K. at the time he left 
 Peabody, and all the time, to finally return to Peabody farm to live 
 upon the same as his home, then the said K. had not abandoned said 
 Peabody as a homestead, and your finding must be for the plaintiff. 
 
 (e) If the jui-y find for the plaintiff, they will find that she is 
 entitled to the possession of all the lands that were a part of the 
 home farm of said K., and by him managed and operated as one 
 farm or plantation; and also assess her damages at such sum as 
 they may believe fi-om the evidence was the value of the rents and 
 profits of the premises, that the jury may determine the plaintiff is 
 
 entitled to, from , to this date; except that if you shall find 
 
 plaintiff entitled to the , amounting to acres, in estimat- 
 ing the damages on that land for the year you shall estimate 
 
 such damages for that year at $ per acre; and the jury will 
 
 further find the monthly value of the rents and profits of such of the 
 premises as the juiy shall find the plaintiff entitled to the pos- 
 session of. 
 
 (f) The jury are instructed that there is no evidence in this case 
 that K. Sr. acquired a domicile in the city of St. L. 
 
 92
 
 1458 FORMS OF INSTRUCTIONS. [§ 2234. 
 
 Defendant's Instructions: 
 
 (g) The court instructs the jui-y that in this case the burden of 
 proof rests upon the plaintiff, and it devolves upon the plaintiff 
 to prove, by a preponderance of the evidence, that at the time of 
 the death of K. he resided upon the land desei'ibed in the petition, 
 and, unless the jury tind and believe from the evidence that the 
 plaintiff has so proven, then your verdict will be for the defendant. 
 
 (h) The jury are instructed that the right of plaintiff to dower 
 in her husband's land, of which he died seised, is not denied or 
 brought into question in this case, and that her dower rights cannot 
 be determined in this suit. 
 
 (i) Notwithstanding the jury may believe from the evidence that 
 K. went to C. for the purpose of instituting a suit for divorce against 
 his wife, or that he went there for the purpose of improving his 
 health, or that he went there for both of said purposes, yet if the 
 jury believe from the evidence that he went there with the intention 
 of making C. his home, and with no fixed purpose of returning to 
 Peabody and making that place his home, the verdict must be for 
 the defendant. 
 
 (j) The jury are instructed that K. had the right to change his 
 residence at any time independent of his wife's wishes in that re- 
 gard ; and if you believe from the evidence that the said K. leased 
 the premises theretofore occupied by him as a home, and left said 
 premises with the intention of not returning thereto to make it his 
 residence, and you further find and believe that said K. died while 
 residing at another place, then your verdict must be for the defendant. 
 
 (k) If the jury believe from the evidence that K. abandoned the 
 premises in dispute, as his residence, and removed from the same, 
 with the intention not to return and make said premises his residence, 
 and was not residing thereon at the time of his death, then your 
 verdict must be for the defendant; although you may further believe 
 from the evidence that said K., by such removal or abandonment, 
 intended to deprive his wife of any right of quarantine which she 
 would have had if he had continued to occupy the same. 
 
 (1) The court tells the jury that the effect of the written lease in 
 
 evidence, bearing date , was to convey and let to J. all of the 
 
 lands described therein, and the exclusive use and control of the 
 mansion house, and all buildings appurtenant to the same, situated 
 thereon, during the continuance of said lease ; and, if you believe 
 from the evidence that said J. was in possession of said premises 
 under said lease, then said K. had no right to interfere with said J. 's 
 possession and exclusive control of said premises; and although you 
 may believe from the evidence that said K. made frequent and re- 
 peated visits to his son, and remained there as his guest for greater 
 or less periods of time, such fact did not give the said K. any right 
 to occupy said mansion house as a residence. 
 
 (rn) The right of plaintiff to recover in this case depends upon 
 the question as to whether or not the deceased K. was occupying the
 
 §2234.] REAL ESTATE— MISCELLANEOUS. 1459 
 
 mansion house on the premises sued for as his home at the time of 
 his death. If he was so occupying the same as his home, plaintiff 
 should recover; but, on the other hand, if he had left the same with- 
 out the intention of returning, and left defendant in the possession 
 of the same, then the verdict must be for defendant, notwithstanding 
 the jury may believe from the evidence that before his death he did 
 form the intention of returning to and occupj'ing said premises as 
 his home, but was prevented by death from carrying out said last- 
 named intention. 
 
 (n) If the jurj' believe from the evidence that deceased, K., in 
 
 the year , left the state of M., and went to the state of C, 
 
 with the intent to change his domicile from the state of M. to the 
 state of C, and tliat while in the state of C. he determined to make 
 that state his home, and never again to reside in the state of M., 
 and that on account of sickness or for business reasons he returned 
 to M. without the intention of remaining, but with the intention of 
 returning to C. and make that state his permanent home, and that he 
 was prevented by sickness from going back to C, but died in M., then 
 the verdict must be for defendant, notwithstanding you may further 
 believe from the evidence that said K. did not establish any residence 
 or home while he was in C, and it makes no difference in this ease 
 how long he remained in C. 
 
 (o) If the jury find for the defendant, they may return their 
 verdict in the following form: "We, the jury, find the issues for the 
 defendant. , Foreman." 
 
 (p) By the words "preponderance of the evidence," as used in 
 the instructions given, is meant the greater weight of the credible 
 testimony.2* 
 
 24 — King v. King, 155 Mo. 406, 56 having no proper place in the case, 
 
 S. W. 534 (535-6-7). and its tendency to mislead and 
 
 Comment by the court: confuse the jury. By this instruc- 
 
 "The first and second instructions tion the jury were told that, the 
 
 given on the pai't of plaintiff are lease to the defendant of the lands 
 
 criticised, upon the ground that in question having expired on the 
 
 they, in effect, told the jury that, if first day of March, 1894, K. was 
 
 K., at the time he made the lease from that time entitled to their 
 
 to defendant, intended to be absent possession. This condition might 
 
 only temporarily, and intended at have more merit, if it were not for 
 
 the time to return to Peabody farm the sixth instruction given at his 
 
 as his home, that he had not aban- instance, in which the jury were, in 
 
 doned said homestead, and directed substance, told that the effect' of 
 
 the jury, upon the finding of that this same lease was to convey to 
 
 fact alone, to find a verdict for defendant the lands and house in 
 
 plaintiff. While we think these in- question, and the exclusive use and 
 
 structions are subject to verbal control thereof, during its contin- 
 
 criticism, for the reason stated by uance, and that K. had no right, 
 
 defendant, when considered in con- during the existence of said lease, 
 
 nection with the facts disclosed by to occupy said mansion house as a 
 
 the record, and the other instruc- residence. Conceding, for the sake 
 
 tions in the case as they should be, of the argument, that the criticism 
 
 they are not subject to serious ob- upon plaintiff's instruction is just, 
 
 jection. . . . when the instruction is considered 
 
 "Plaintiff's third instruction is in connection with defendant's 
 
 challenged on the ground that it is sixth instruction, with regard to 
 
 a mere abstract proposition of law^ precisely the same matter, it is
 
 1460 
 
 FORMS OF INSTRUCTIONS. 
 
 [^2234. 
 
 impossible to see how the jury 
 could have been misled thereby, nor 
 do we think that it was. 
 
 "It is also claimed that plaintiff's 
 fourth instruction is erroneous, up- 
 on the ground of the improper use 
 of the word 'domicile.' But when 
 this instruction is taken in connec- 
 tion with defendant's third, in re- 
 gard to the same matter, the con- 
 tention seems to be without merit. 
 By plaintiff's fourth instruction the 
 jury were told, if K. went to C. for 
 the purpose of establishing a domi- 
 cile there for the purpose of insti- 
 tuting a suit against his wife for 
 divorce, but that it was his inten- 
 tion at the time he left P., and all 
 the time, to finally return to P. to 
 live upon the same as his home, 
 while defendant's third instruction 
 told them that, if he went to Cali- 
 fornia for the purpose of institut- 
 
 ing a suit for divorce, yet if he 
 went there with the intention of 
 making California his home, and 
 with no fixed purpose of returning 
 to Peabody and making that place 
 his home, the verdict must be for 
 defendant. These instructions 
 
 were both with respect to the pur- 
 pose of K. in going to California, 
 one saying to make it his domicile 
 to enable him to sue his wife in the 
 courts of that state for divorce, 
 while the other said to make it his 
 home. There is no substantial dif- 
 ference between the meaning of 
 the two words 'home' and 'domi- 
 cile,' and even if the use of the 
 word 'domicile' was improper, it 
 would not, under the circumstances, 
 authorize a reversal of the judg- 
 ment on that ground; for, clearly. 
 It was not prejudicial."
 
 CHAPTER LXXVII. 
 REPLEVIN. 
 
 See Erroneous Instructions, same chapter head. Vol. III. 
 
 § 2235. Plaintiff need not own the 
 property. 
 
 § 2236. Replevin by mortgagee after 
 default. 
 
 § 2237. No demand necessary when 
 defendant claims title. 
 
 § 2238. Demand necessary when 
 plaintiff consented to de- 
 fendant's possession. 
 
 § 2239. Demand not necessary when 
 defendant's possession tor- 
 tious. 
 
 § 2240. Demand necessary when 
 plaintiff loaned property to 
 defendant. 
 
 § 2241. Demand necessary where 
 property seized under proc- 
 ess. 
 
 § 2242. Burden of proof on plaintiff. 
 
 § 2243. Burden of proof — Issue of 
 detention. 
 
 § 2244. Levy on crops and taking 
 possession. 
 
 § 2245. Property attached to and 
 part of real estate not sub- 
 ject to replevin. 
 
 § 2235. Plaintiff Need Not Own the Property, (a) That it is not 
 essential to a recovery by the plaintiff in this suit, that he should 
 have been, at any time, the absolute owner of the property; it is 
 sufficient if the proof shows that, before and at the time of the com- 
 mencement of this suit, the plaintiff was entitled to the possession of 
 the property; that he demanded the same of the defendant, before 
 commencing the suit, and after the plaintiff became entitled to such 
 possession, and that the defendant refused to surrender the property 
 to the plaintiff upon such demand.^ 
 
 (b) The jury are instructed that before the plaintiff can recover 
 in this action he must prove, by a preponderance of evidence, that at 
 the time of the commencement of this suit he was the owner of the 
 property in question, or that he was then entitled to the immediate 
 possession of the same, and he must also further prove, by a pre- 
 ponderance of the evidence, that the defendant wrongfully took the 
 property in question, or else that he wrongfully detained it from the 
 plaintiff, after a demand made upon him by the plaintiff for the 
 property. - 
 
 § 2236. Replevin by Mortgagee After Default, (a) The court in- 
 structs the jury that, if you believe from the evidence that the 
 defendant executed the note and chattel mortgage in evidence and 
 that she has made default in the payment of the money as provided 
 in the mortgage, and that the plaintiff before the commencement of 
 this suit made demand for the possession of the property described 
 
 1— Campbell v. Williams, 39 la 
 G46; Noble v. Epperly, 6 Ind. 414 
 Loomis V. Youle, 1 Minn. 175 
 Bramwell v. Hart, 12 Heisk. 356. 
 
 1461 
 
 2— Bardwell v. Stubbut. 17 Neb. 
 485. 23 N. W. Rep. 344; Cobbey on 
 Replevin (2nd ed.), sec. 533.
 
 1463 FORMS OP INSTRUCTIONS. [§ 2236. 
 
 in the mortgage, which was refused, then the plaintiff would have 
 the right to seize said property by writ of replevin, and sell the same 
 at public or private sale, and out of the proceeds of the sale pay 
 and satisfy the balance due them on said note and chattel mortgage, 
 and render the surplus, if any, to the defendant.^ 
 
 (b) The jury are instructed by the court that plaintiff brought an 
 action in replevin claiming to have been entitled to the immediate 
 possession of the cattle in controversy at the time of the commence- 
 ment of this action by virtue of a chattel mortgage which plaintiff 
 claims corresponds with the purported copy given to you in evidence, 
 claiming that said chattel mortgage was a valid existing mortgage 
 remaining unsatisfied at the time of the commencement of this 
 action, and that in the giving of said mortgage it was intended by 
 the makers of said mortgage and i^laintiff bank that a lien or mort- 
 gage be thereby created upon the cattle in controversy herein to secure 
 the payment of the promissory note given to you in evidence. De- 
 fendant denies the right of the plaintiff to a lien upon the cattle in 
 controversy for any reason whatever, and denies that the cattle in 
 controversy were mortgaged by the said R. Bros, to plaintiff bank. 
 
 (c) On the issues formed, to entitle plaintiff' to recover, the burden 
 of proof rests upon the plaintiff to convince you, by a preponderance 
 of all the evidence, first, that said note given in evidence was given 
 for the loan of money as plaintiff claims, and that said note was 
 unsatisfied at the time of the commencement of this action; second, 
 that the chattel mortgage as claimed by plaintiff was given upon the 
 cattle in controversy or upon any portion thereof for which you 
 might find a verdict for plaintiff, and remaining unsatisfied at the 
 commencement of this action. If plaintiff has so made out a case, 
 then your verdict should be for plaintiff that at the time of the com- 
 mencement of this action it (the bank) was entitled to the immediate 
 possession of the cattle in controversy; if the evidence be equally 
 balanced as to plaintiff's right to recover, or if it preponderates in 
 defendant's favor, then you could not find for plaintiff, and your 
 verdict should be for defendant. 
 
 (d) The jury are instructed by the court that the plaintiff must 
 prove by a preponderance of the evidence that R. Bros, owned the 
 cattle described as the N. cattle at the time the alleged chattel mort- 
 gage was given, before it could recover any of such cattle in this 
 suit, and unless the plaintiff has so made out its cause, you must 
 find for the defendant as to all the cattle taken on the order of 
 replevin herein.* 
 
 3— John L. Jones & Co. v. Cham- dence introduced to warrant this 
 
 berlaln, 97 111. App. 328-30. Held addition to the in.struetion, as an 
 
 that a modification by adding- the executed parole agreement could 
 
 word.s "unless you believe, from not change the terms of a contract 
 
 the evidence, that the conditions under seal. 
 
 or terms in the mortgag-e were 4— Thayer Co. Ranlt v. Huddle- 
 changed by agreement of parties son, 1 Neb. (Unoff.) 261, 95 N W 
 thf-reto" was erroneous, the court 471. 
 said there was no competent evi-
 
 § 2237.J REPLEVIN. 1463 
 
 § 2237. No Demand Necessary When Defendant Claims Title. 
 The court instructs the jury that, by this plea in this case, the de- 
 fendant claims title to the property in himself (and in one A. B.), 
 and denies the right of property and of possession in the plaintiff; 
 and although the jury may believe, from the evidence, that the de- 
 fendant came rightfully into possession of the property, still, under 
 the pleadings in this ease, it is wholly unnecessary for the plaintiff 
 to prove a demand and refusal before commencing the suit, to entitle 
 him to a verdict of wrongful detention ; provided, the jury further 
 believe, from the evidence, under the instructions of the court, that 
 the plaintiff was entitled to the possession of the property at the 
 time of the commencement of the suit.^ 
 
 § 2238. Demand Necessary When Plaintiff Consented to Defend- 
 ant's Possession. If the jury believe, from the evidence, that the 
 property in question came into the possession of the defendant with 
 the knowledge and consent of the plaintiff, then, before the plaintiff 
 could properly commence this suit, he would have to make a demand 
 on the defendant for a return of the property, and unless it appears, 
 from a preponderance of the evidence, that he did make such demand, 
 the jury should find for the defendant, unless the jury further be- 
 lieve, from the evidence^ that the defendant, before the commence- 
 ment of this suit, had, by his conduct or language, or by both, 
 manifested an intention to disregard and repudiate any claim of 
 right or title in the property by the plaintiff.*' 
 
 § 2239. Demand Not Necessary When Defendant's Possession Tor- 
 tious, (a) If the jury believe, from the evidence, under the instruc- 
 tion of the court, that the plaintiff was the owner of the property, 
 and entitled to the possession of it, and that the defendant took 
 the property wrongfully from the possession of the plaintiff, then a 
 demand and refusal before the commencement of this suit is not 
 necessary to be proved, under the issues in this case, to entitle the 
 plaintiff to recover.'^ 
 
 (b) When property is wrongfully taken from the possession of 
 the party legally entitled thereto, then no demand for the property is 
 necessary to enable the person so entitled to the possession to bring 
 his suit in replevin. And in this case, if the jury believe from the 
 evidence that the plaintiff was the owner of the heifer in question, 
 and that defendant went to plaintiff's pasture and took the heifer 
 
 5 — Seaver v. Dingley, 4 Greenlf. The effect of failure to make de- 
 
 306; Lewis v. Masters, 8 Blaclcf. mand, wiien necessary, will at 
 
 244; Smith v. McLean, 24 la. 322; least prevent the recovery of costs, 
 
 Lewis V. Smart, 67 Me. 206; Cobbey but in any event plaintiff can dis- 
 
 on Replevin (2nd ed.), sees. 447, miss, make proper demand, and 
 
 510. So a plea of title in defendant bring another action. Cobbey on 
 
 waives demand. Cobbey on Re- Replevin (2nd ed.), sec. 447. 
 
 plevin (2nd ed.). sec. 448. 7 — Dickson v. Randal, 19 Kans. 
 
 6— Lewis v. Ma.sters, 8 Blackf. 212; Jones v. Ward, 77 N. C. 337, 
 244; Cobbey on Replevin (2nd ed.), 24 Am. Rep. 447; Cobbey on Re- 
 sec. 447. plevin (2nd ed.), sees. 447, 453.
 
 1464 FORMS OF INSTRUCTIONS, [§ 2240. 
 
 therefrom without plaintiff's permission, and against his will, then 
 no demand was necessary before commencing this suit.^ 
 
 (e) The court instructs the jury that if you find, from the evi- 
 dence, that the S. L. Co. never sold the lumber in question to 0., but 
 that 0. was to dry said lumber and deliver the same to a certain 
 building, then said S. L. Co. is entitled to recover in this suit, and 
 it makes no difference whether S. K. ^Co. and Smith knew of the 
 arrangement between the S. L. Co. and 0.^ 
 
 § 2240. Demand Neces:sary When Plaintiff Loaned Property to De- 
 fendant. That if the jury believe, fr'>m the evidence, that the de- 
 fendant borrowed the property in controversy from the plaintiff for 
 a temporary use or purpose, giving the plaintiff to understand that 
 he would return the property whenever the plaintiff should desire it, 
 then the plaintiff would not be entitled to commence this suit until 
 after he had first demanded the property from the defendant; and 
 if the plaintiff has failed to show such demand and refusal, by a 
 preponderance of evidence, then the jury should find for the de- 
 fendant; provided, the jury further find, from the evidence, that 
 before the commencement of this suit, the defendant had done no 
 act inconsistent with the plaintiff's right to the property, or show- 
 ing an intention to rejDudiate the same.^° 
 
 § 2241. Demand Necessary Where Property Seized Under Process. 
 (a) The jury are instructed, that if they believe, from the evidence, 
 that the defendant A. B. was an acting constable in and for the county 
 of C, and that as such constable, the execution shown in evidence 
 came into his hands, to be executed by him, and that while the prop- 
 erty in dispute was in the possession and under the control of one or 
 both of the defendants in said execution, and said constable levied 
 the execution upon the property in controversy, as the property of 
 one or both of the defendants, such taking and levy would not be 
 unlawful as to the plaintiff, and in such case, unless the jui-y believe, 
 from the evidence, that a demand for the property was made before 
 bringing this suit, then the defendant would not be guilty of a 
 wrongful taking, or of a wrongful detention.^^ 
 
 8 — Gilchrist v. Moore, 7 la. 9; Dec. 401; Bruner v. Dyball, 42 111. 
 
 Newman v. Jenne, 47 Me. 520; 36; Hardy v. Keeler, 56 111. 152; 
 
 Stlllman v. Squire, 1 Denio 327; Tuttle v. Robinson, 78 111. 332-4; 
 
 Hhoades v. Drummond. 3 Col. 374. Oswald v. Hutchinson, 26 111. App. 
 
 9 — Schwamb Lumber Co. v. 273; Trudo v. Anderson, 10 Mich. 
 
 Schnar, 94 111. App. 544 (545). 357-67, 81 Am. Dec. 795; Rosum v. 
 
 "In order to sustain replevin Hodges, 1 So. Dak. 308, 47 N. W. 
 
 where the possession is wrongful, 140, 9 L. R. A. 817-9." 
 
 a previous demand of possession 10 — Simpson v. Wrenn, 50 111. 
 
 Is unneces.sary. Clark v. Lewis, 222, 99 Am. Dec. 511; Cobbey on 
 
 35 Hi 418-23; Stock Yards Co. v. Replevin (2nd ed.). sees. 458. 462. 
 
 Mallory, 157 III. .563. 41 N. E. 888, 11— Tuttle v. Robinson, 78 111. 332. 
 
 48 Am. St. 341; 5th Am. & Eng. Rut if the officer acts without au- 
 
 Enoy. of Law, 528 I (1st ed.); Gal- thority, or levies upon property of 
 
 vin V. Bacon, 11 Me. 28 (2 Fair- one not named in the writ, no de- 
 
 neld Rep.), 25 Am. Dec. 258; Wells mand Is necessary. Cobbey on Re- 
 
 on Repl., sec. 365; Butters v. plevin (2nd ed.), sec. 497. 
 Houghwout, 42 111. 18-24, 89 Am.
 
 §2242.] REPLEVIN. 1465 
 
 (b) The jury are instructed that, as regards the defendants, C, 
 D., and E. (the officer and plaintiffs in execution), the indorsements 
 and return of the officer upon the execution read in evidence, are 
 prima facie proof of the time when the execution came into the hands 
 of the officer, the time of the levy, upon what property the same 
 was levied, and what became qt the property.^- 
 
 §2242. Burden of Proof on Plaintiff, (a) The court instructs the 
 jury that this is an action of replevin commenced by the plaintiffs 
 by the filing of an affidavit, wherein they claimed, under oath, that 
 they are entitled to the possession of certain diamonds described 
 therein. Before the plaintiffs can recover under their claim, they 
 must establish, by a preponderance of the evidence, that the diamonds 
 which they took from the possession of H. L. under the replevin 
 Avrit issued upon the strength of said affidavit for replevin, were 
 and are the diamonds which were originally sold and delivered by 
 the plaintiffs to H. L. ; and upon this issue it is the duty of the 
 plaintiffs to prove the facts by a preponderance of the evidence, and 
 if they have not done so, then the plaintiffs cannot recover, and the 
 verdict of the jury should be for the defendants. ^^ 
 
 (b) The burden of proof is on the plaintiffs to prove the issues 
 and claims made by them by a prejDonderance of the evidence; that 
 is, that they are the owners of said cattle, and are entitled to the 
 immediate possession thereof. But by the terms of the contract the 
 defendants are to assume the burden of proof, and prove that all 
 cattle which have died during the time said cattle were in their pos- 
 session were lost from causes other than from want of proper feed- 
 ing.i* 
 
 (c) The burden rests upon the plaintiff, S., to make out his case 
 by a preponderance (that is, by a greater weight) of the evidence. 
 Unless he has done so, your verdict should be in favor of the de- 
 fendant, M. If you shall believe from the evidence that at the time 
 of the commencement of this suit the heifer in controversy was the 
 property of the plaintiff, you Avill return a verdict in his favor. On 
 the other hand, if you shall believe from the evidence that at the 
 time of the commencement of this suit said heifer was not the prop- 
 erty of the plaintiff, you will return a verdict in favor of the de- 
 fendant, and also find the present value of said heifer.^^ 
 
 12 — Phillips v. Elwell, 14 Ohio St. tiff to make out his case by a pre- 
 
 240; Harper v. Mofflt et al., 11 la. ponderance (that is, by a greater 
 
 527. weight) of evidence, and if it 
 
 13 — Chicago Title & Trust Co. should believe from the evidence 
 
 v. Goldsmith, 173 111. 326 (330), that at the time of the commence- 
 
 affg 69 111. App. 22, 50 N. E. 676. ment of the suit the heifer was 
 
 14 — Farrar et al. v. McNair et al., not his property it should find for 
 
 65 Kas. 147, 69 Pac. 167 (168). the defendant; it was fully in- 
 
 15— Bright v. Miller, 95 Mo. App. structed, in effect, that the plain- 
 
 270. 68 S. W. 1061 (1062). tiff could only recover upon the 
 
 The court said: "When the jury strength of his own title, and not 
 
 was told in said instruction that upon the weakness of defendant's 
 
 the burden rested upon the plain- title."
 
 1466 FORMS OF INSTRUCTIONS. [§ 2243. 
 
 § 2243. Burden of Proof — ^Issue of Detention. The court instructs 
 the jury that, to entitle the plaintiff to recover upon the issue of 
 detention, it is incumbent upon the plaintiff to establish, by a pre- 
 ponderance of evidence, that the goods and property replevied were 
 in the possession of the defendant^ or under his control, and that 
 he detained the same from the plaintiff at the time the suit was com- 
 menced; and unless the jury believe, from the evidence, that the 
 property in question was in the possession of the defendant, or subject 
 to his control at the time the suit was commenced^ and that he then 
 detained the same from the plaintiff, then, as to the issue of wrong- 
 ful detention, the jury should find for the defendant. ^"^ 
 
 § 2244. Levy on Crops and Taking Possession. Although the law 
 requires an officer, in levying on personal property, to take the same 
 into his possession, yet, in the case of growing crops, or other bulky 
 or heavy articles, it only requires him to take such possession thereof, 
 as the article, from its nature, will reasonably admit of; and if the 
 juiy believe, from the evidence in this ease, that the officer, in at- 
 tempting to make the levy in question, went to the fi.elds of grain 
 levied on, and had the same in his immediate view and presence, 
 and notified the defendant in the execution that he had taken the 
 crops, under the execution inti'oduced in evidence, this would be a 
 sufficient levy on the property in question. i'^ 
 
 § 2245. Property Attached to and Part of Real Estate Not Subject 
 to Replevin. The jury are instructed that property which has been 
 attached to and become a part of the real estate, is not the subject 
 of replevin; and if the juiy believe, from the evidence in this case, 
 that, at the time of the issue and service of the writ of replevin 
 herein, the defendants were the owners and in the actual possession 
 of block 18 . . . and that, prior to that time, the property in 
 controversy, or any part thereof, had become attached to and made 
 a part of such real estate, then as to such property so attached and 
 made a part of the real estate, the jury will find in favor of the 
 defendant.^^ 
 
 1&— Reynolds v. McCormick, 62 17— Pierce v. Roche, 40 111. 292. 
 111. 412. On burden of proof, see 18 — Hacker v. Munroe & Son, 176 
 
 al.so Cohbey on Replevin (2nd ed.), 111. 384 (395), aff'g 61 III. App. 420, 
 
 sees. 1005, 1006. 52 N. E. 12.
 
 CHAPTER LXXVIII. 
 
 SALES. 
 
 See Erroneous Instructions, same chapter head, Vol. III. 
 
 § 2246. Sale defined. 
 
 § 2247. Sale completed between par- 
 ties — When agreement 
 made. 
 
 § 2248. When the title passes— Dif- 
 ference between a sale and 
 an agreement to sell. 
 
 § 2249. Same — Consideration paid in 
 installments. 
 
 § 2250. Sale upon condition that 
 price is paid in full. 
 
 § 2251. Completion of sale — Delivery 
 — Consideration a past in- 
 debtedness — Ascertaining 
 price of measurement and 
 inspection. 
 
 § 2252. Same— Transfer of bill of 
 lading. 
 
 § 2253. Subject matter pointed out 
 — Quantity to be subse- 
 quently ascertained by 
 measurement. 
 
 § 2254. Installments of payments 
 whether considered as rent 
 or not — Sale intended. 
 
 § 2255. Subject matter of sale de- 
 stroyed before delivery — 
 Question of title at time of 
 destruction. 
 
 § 2256. A thief acquires no title and 
 can convey none. 
 
 § 2257. Sale by sample — Rejection 
 by a real and substantial 
 difference — Resale in good 
 faith. 
 
 § 2258. Refusal to take residue or- 
 dered — Resale without no- 
 tice. 
 
 § 2259. Ready and willing to deliver 
 as required — Failure to ac- 
 cept. 
 
 § 2260. Refusal to accept — Excuse 
 for non-delivery. 
 
 § 2261. Delivery— Duty to protect 
 the goods from rain. 
 
 § 2262. Time of payment— When in- 
 terest would begin to run. 
 
 § 2263. Market value defined. 
 
 § 2264. Coming up to test required 
 — W^aiver. 
 
 § 2265. Grapes shipped to be re- 
 sold — Merchantable condi- 
 tion when loaded. 
 
 § 2266. Sale by assignee — Guaranty 
 — Trust property — Agree- 
 ment to buy back. 
 
 § 2267. Contract for sale of mining 
 claims — Condition prece- 
 dent to marking of claim. 
 
 § 2268. Construction according to 
 order of vendee and under 
 the superintendence of 
 vendee's agent. 
 
 §2269. Contract of sale— Goods to 
 be of a specific quality, 
 quantity and description — 
 Mingled with other goods 
 — Delivery — Accepta.nce — 
 Refusal and tender back — 
 Sale for benefit of vendee 
 — Series. 
 
 WARRAXTY. 
 
 § 2270. Warranty — What consti- 
 stutes. 
 
 § 2271. Warranty of title by vendor. 
 
 § 2272. Warranty by agent — Ratifi- 
 cation of agent's acts. 
 
 § 2273. Acceptance waives implied 
 warranty. 
 
 § 2274. Reliance on representations 
 necessary to constitute a 
 warranty. 
 
 § 2275. Implied warranty of manu- 
 factured article. 
 
 § 2276. Purchaser to give trial and 
 notice — Provision of return- 
 ing machine. 
 
 § 2277. In absence of special con- 
 tract — Purchaser buys at 
 his own risk — Contract to 
 purchase machinery in- 
 stalled on trial. 
 
 § 2278. Burden of proof. 
 
 § 2246. Sale Defined. The court instructs you that in law a sale 
 is the as:reed transfer of property having some value to another for 
 a valuable consideration. A sale may be shown by facts and eireum- 
 
 1467
 
 1468 FORMS OF INSTRUCTIONS. [§ 2247. 
 
 stances as well as by direct proof. The valuable consideration above 
 mentioned may not he in money, but may be any article of value.^ 
 
 § 2247. Sale Completed, Between Parties — When Agreement Made. 
 (a) The jury are instructed that, as between the parties themselves, 
 the title to personal property passes without delivery whenever the 
 sale is completed, and the parties intend it as such. An agreement 
 to sell an article by weight or measure, where the article is selected 
 and identified, and the price agreed upon, may be a completed sale 
 without delivery, if the parties intend it as such.^ 
 
 (b) As between the parties, delivery is not essential to the com- 
 pletion of a sale of chattels. If the sale is completed and nothing 
 remains to be done but to deliver the property, then the purchaser 
 may take the goods at any time after the sale, provided he takes 
 them before any lien attaches in the hands of the vendor and the 
 transaction is conducted in good faith. ^ 
 
 § 2248. When the Title Passes — Difference Between a Sale and an 
 Agreement to Sell. The jury is instructed that there is a difference 
 between a sale of personal property and an agreement to sell; under 
 a mere agreement to sell no title passes; but whenever parties have 
 agreed upon the terms of a sale and the precise property sold is identi- 
 fied and nothing remains to be done but to deliver it, and it appears, 
 from the evidence, that the parties understood and intended the title 
 to pass wtihout actual delivery, then the title will pass w^ithout such 
 delivery; but where anything remains to be done, by way of selecting 
 out or separating the property from other property of the same kind, 
 for the purpose of identifying the property sold, then no title will 
 pass until the property has been so selected and identified.* 
 
 § 2249. Same — Consideration Paid in Installments. The court in- 
 structs the jury that if they believe, from the evidence, that the 
 plaintiffs delivered the property in question to the said P. under an 
 agreement bv which P. was to hold the same as the property of the 
 
 plaintiffs until he paid them the sum of $ , in weekly installments 
 
 of $ per week, and that the said P. has never fully paid the 
 
 said sum of .$ , but did attempt to sell the said property to the 
 
 defendant, and that the defendant took the property in good faith, 
 i?till the defendant, in such case, acquires no better title to the prop- 
 erty than the said P. himself had, and the jury should find the right 
 of property in the plaintiff.'^ 
 
 1— John.son v. State, — Tex. Crim. 3— Cruikshank v. Cog-swell, 26 111. 
 
 App. — , 55 S. W. 968, citing Black 366. 
 
 Intox. LIq. § 403. 4— Robinson v. Hirshfelder, 59 
 
 2--Jilddlft V. Varnum. 20 Pick. 280; Ala. 503; Smith v. Sparkman, 55 
 
 Rofcl V. Burges.s, 34 111. 193; Pres- Miss. 649, 30 Am. Rep. 537; Fletcher 
 
 cott V. Locke, 51 N. H. 94; Russell v. Ingram, 46 Wis. 191; Hahn et al. 
 
 V. Carrlnglon, 42 N. Y. 118; Morse v. Fredericks, 30 Mich. 223. 
 
 V. Shf-rnian, 106 Mass. 430; Lester 5— Sanders v. Keber et al., 28 
 
 V. Knst, 49 Tnd. 588; Wilkinson v. Ohio St. 630. 
 
 Holiday, 33 Mich. 386; McClung v. Compare Orr et al. v. Farmers' 
 
 Kelley, 21 la. 508. Alliance Warehouse and Commis-
 
 § 2250.] SALES. 1469 
 
 § 2250. Sale upon Condition that Price is Paid in Full. If the 
 jury believe from the evidence that the plaintiff sold the machine in 
 question to A. B. at an agreed price to be paid at a future time, and 
 then delivered the said machine to the said A. B., but upon the ex- 
 press condition and agreement that no title should pass to him until 
 after the purchase price was paid in full, and that, in the meantime, 
 the title should remain in the plaintiff, then, if the jury further be- 
 lieve, from the evidence, that the purchase price has never been paid 
 in full, the machine still remains the property" of the plaintiff.*' 
 
 § 2251. Completion of Sale — Delivery — Consideration a Past In- 
 debtedness — Ascertaining Price by Measurement and Inspection, If 
 the jury believe, from the evidence, that at the time of the alleged 
 
 sale, A. was indebted to B. in the sum of $ , and that A. turned out 
 
 and sold the lumber in question to B., under an agreement between 
 them that the same should be applied in payment or in part payment 
 of such indebtedness, and that they then put the lumber in charge of 
 one C, and that he agreed to take charge of the same and look after 
 it for B., then such transaction amounted to a completed sale and 
 transfer of the title, although the jury may further believe, from the 
 evidence, that the amount of the lumber was to be ascertained by 
 future measurement, and the purchase price to be determined by 
 future inspection, the purchaser to pay any excess of the purchase 
 price over his debt, and the seller to make good any deficiency, your 
 verdict should be for B.''^ 
 
 § 2252. Same — Transfer of Bill of Lading. The jury are instructed, 
 as a matter of law, that the transfer of a bill of lading in good faith 
 in the ordinary course of business and for valuable consideration 
 operates to transfer to the holder thereof the title to the goods men- 
 tioned or eovered by the bill of lading.® 
 
 sion Co., 97 Ga. 241, 22 S. E. 937 paid on each identical lot. If the 
 
 (938). defendants have failed to do this. 
 
 Where the court held it was not then there should be a verdict for 
 
 required to prove the application the plaintiff." 
 
 of specific installments of pay- 6 — Jowers v. Blandy, 58 Ga. 379; 
 xnents and said that the action Bradshaw v. Warner, 54 Ind. 58. 
 herein being- upon a check given But compare Shafer v. Russell, 
 by the defendants to the plaintiff 28 Utah 444. 79 Pac. 559 (561). 
 as a partial payment on account Where the court instructed the 
 for various lots of cotton sold by jury "that where the chattels are 
 the latter to the former, and the sold to a vendee on condition that 
 defense in part being that the the title to said property is not to 
 plaintiff had damaged the defend- pass to the vendee until the pur- 
 ants by a failure to deliver ac- chase price is fully paid, all pay- 
 cording to its contract certain por- ments made, whether in property 
 tions of these several lots of cot- or money, prior to the default of 
 ton, it was error to charge: "Cer- the vendee become forfeited to the 
 tain checks have been introduced vendor," and the instruction was 
 in evidence by defendants, show- considered as an incorrect state- 
 ing payments on these cottons. It ment of law. 
 
 is the duty of the defendants to 7 — Colwell v. Keystone Iron Co., 
 
 show which special checks were 36 Mich. 51. 
 
 paid on each lot of cotton. The 8 — Davis v. Russell, 52 Cal. 611, 
 defendants must go further, and 28 Am. Rep. 647; Cochrane v. Rip- 
 show which identical check was ly, 13 Bush 495; Cent. Sav. Bk. v.
 
 1470 FORMS OF INSTRUCTIONS. [§ 2253. 
 
 § 2253. Subject Matter Pointed Out — Quantity to be Subsequently- 
 Ascertained by Measurement. The jury is instructed that if they be- 
 lieve, from the evidence, that the lumber which the plaintiff claims to 
 have bought was standing in a pile by itself, and that the plaintiff and 
 the said A. B., upon the occasion in question, were speaking of that 
 particular lot of lumber and the plaintiff said, I will take the lumber 
 at $20 per 1,000, and the said A. B. replied, you can have it (or the 
 lumber is yours), this would constitute a valid sale and sufficient to 
 pass the title at that time to the plaintiff, although the quantity of 
 lumber in the pile was then unknown, and it was necessary to measure 
 the lumber to ascertain the quantity or the amount of money to be 
 paid therefor, your verdict should be for the plaintiff.^ 
 
 § 2254. Installments of Payments Whether Considered as Rent or 
 Not — Sale Intended. The court instructs the jury that, although the 
 written contract introduced in evidence in terms speaks of the said 
 machines as having been rented from the said plaintiff to the said P. 
 and calls for installments of payments to be paid as rent, still, if the 
 jury believe, from the evidence^ and from all the facts and circum- 
 stances proved on the trial, that a sale was, in fact, intended between 
 the parties, and that stipulated payments were in reality understood 
 to be payments upon the purchase money, and that the machine was 
 delivered by the said plaintiff to the said P. under such contract, 
 and if the juiy further believe, from the evidence, that the defendant 
 afterwards purchased the said machine from the said P. in good faith, 
 relying upon his possession and apparent ownership, and paid him for 
 the same, and without any knowledge that the plaintiff had not been 
 paid in full therefor or that he set up any claim to the said machine, 
 then the jury should find the right of property in the defendant.^*^ 
 
 ? 2255. Subject-Matter of Sale Destroyed Before Delivery — Ques- 
 tion of Title at Time of Destruction. If you believe from all the evi- 
 dence that defendant contracted with plaintiff and J. J. R. to take fifty 
 cords of wood at $2.50 per cord, and that defendant would furnish a 
 barge to load it upon and you further find that J. J. R. sold or sur- 
 rendered his intei-est in said contract to plaintiff, and that plaintiff 
 complied with the contract so made, if you find it was made, and you 
 further find that defendant broke the contract by failing to furnish 
 the barge, and you find that the wood was burned up without the 
 fault of plaintiff, then, if you believe these facts, if facts they be, 
 the plaintiff is entitled to a verdict.^^ 
 
 Garrison, 2 Mo. App. 58; Price v. "Let the following principles 
 
 Wisconsin, etc., Ins. Co., 43 Wis. eroverninR- this case be first stated: 
 
 267. 'The doing of a thing pursuant to 
 
 9— Burrows V. Whitaker, 71 N. an offer may be both an accept- 
 
 Y. 291, 27 Am. Rep. 42. ance and performance. If one 
 
 10— Ooor V. Churrrh, 13 Bush 430; makes an offer to another, or to 
 
 <Ky.) Domestic Rowing Machine all persons in general, nnd does 
 
 To. V. Andfrson, 23 Minn. r>T. not withdraw it while the other 
 
 11 — American Oak Extract Co. v. person in the former case, or any 
 
 Uyan, 104 Ala. 267. 15 So. 807 (809). one In the latter, goes forward
 
 § 2256. J SALES. 1471 
 
 § 2256. A Thief Acquires No Title and Can Convey None. The 
 
 court instructs the jury that by a larceny of goods, a thief acquires 
 no title to them, and if he attempts to sell the goods, he cannot con- 
 vey any title to them as against the person from whom they were 
 stolen. But whether, in this case, the horse formerly belonged to the 
 plaintiff, and whether the said A. B. stole the horse from him, etc., 
 etc., are all questions of fact to be determined by the juiy from the 
 evidence in the case.^^ 
 
 S 2257. Sale by Sample — Rejection for a Real and Substantial Dif- 
 ference — Resale in Good Faith, (a) If the jury believe from the 
 evidence that the flour delivered was materially and substantially 
 equal in quality to the samples, and that the plaintiffs exercised good 
 faith and reasonable diligence in reselling the flour in bulk in the 0. 
 market, then the plaintift's should recover, 
 
 (b) If the defendants P. & Co. made no demand for notice of the 
 time and place of the resale, then the plaintiffs were not required to 
 give such notice to the defendants. 
 
 (e) If the flour shipped by plaintiffs to defendants was equal in 
 quality to the sample by which it was sold, then defendants had no 
 right to reject said flour, and in order to authorize the defendants to 
 reject said flour, there must have been a real and substantial differ- 
 ence between said flour and the samples, and not an imaginary, fanci- 
 ful difference. 
 
 (d) If the plaintiffs, in making the resale, acted in such manner 
 as to obtain the highest cash price, under the circumstances, for the 
 entire lot of flour in the 0. market, they faithfully performed their 
 trust in conducting the resale. ^^ 
 
 and does the thing, such perform- fer by the party offered, before 
 ance carries with it an acceptance proceeding to carry it out, is un- 
 of the offer; and the person who necessary. Bank v. Watkins, 154 
 made it must pay or do what he Mass. 387, 28 N. E. 275; 1 Pars, 
 promises. Bish. Cont. §§ 329, 330. Cont. 493; 3 Am. & Eng. Enc. Law 
 In unilateral contracts, it is often, 847, and authorities cited. Where 
 if not generally, the case, that a contract does not specify a par- 
 acceptance of the offer is only to ticular time for its performance, 
 be inferred from the performance the presumption is that the parties 
 of the consideration. If this is per- intended performance within a rea- 
 formed in accordance with the sonable time. And this is some- 
 terms of the offer; a contract is times a question of fact, and at 
 thereby formed without notifying others one of law. When it de- 
 the offerer of the intention to per- pends upon facts extrinsic of the 
 form, or of the completion of the contract which are matters of dis- 
 performance.' 1 Pars. Cont. 492. pute, it is a question of fact; but 
 note 1 and authorities. So too, it when it depends upon a construc- 
 has been held, that if one offers to tion of a contract in writing, or 
 another to do something, if that upon undisputed, extrinsic facts, it 
 other will do something else, and is matter of law. Cotton v. c'ot- 
 the party to whom such offer is ton, 75 Ala. 346; Howard v. Rail- 
 made acts upon it, either to the road Co., 91 Ala. 269, 8 So. 868." 
 advantage of the offerer, or to his 12 — Breckenridge v. McAfee. 55 
 own disadvantage, such action Ind. 141. 
 
 makes the contract complete and 13 — Penn. et al. v. Smith et al 
 
 notice of the acceptance of the of- 104 Ala. 445, 18 So. 38 (39). ''
 
 1472 FORMS OF INSTRUCTIONS. [§ 2258. 
 
 (e) The court instructs you that if defendants, by themselves or 
 their agent thereto authorized, examined said macadam, or had full 
 opportunity to examine said macadam, before they purchased, then 
 in such case the defendants became and were liable to pay to the 
 plaintiff for all said macadam so delivered to and received by de- 
 fendants under said contract, provided the same was such macadam 
 as had been exhibited to the said defendants or to their said agents 
 prior to the making of the contract.^* 
 
 § 2258. Refusal to Take Residue Ordered — Resale Without Notice. 
 If you believe, from the evidence, that the defendants agreed to re- 
 ceive and pay for pictures, and that before all of said pic- 
 tures had been delivered, defendants refused to receive the residue of 
 said pictures, and told plaintiffs that they might do what they 
 pleased with the residue of said pictures, then plaintiffs might re- 
 sell the residue of said pictures without giving defendants any notice 
 of the sale.^^ 
 
 § 2259. Ready and Willing to Deliver as Required — Failure to Ac- 
 cept. The court instructs the jury that in a suit by a seller of per- 
 sonal property to be delivered at a certain time and place, in order 
 to recover damages for not receiving it, it is necessary for the plaintiff 
 to prove that it was ready and willing to deliver the same at such 
 time and place, and on the terms agreed upon.^^ 
 
 § 2260. Refusal to Accept — Excuse for Non-delivery. If you find 
 from the evidence that the oranges which were last offered by the de- 
 fendants to the agent were in fact of the sizes and quality required 
 by the contract, and if you further find that the agent refused to ac- 
 cept the oranges, or stated that his firm would not accept them, then 
 that would be a sufficient excuse for the defendants' omission to de- 
 liver or tender the oranges at Milwaukee. ^'^ 
 
 § 2261. Delivery — Duty to Protect the Goods from Rain, (a) 
 You are instructed that if you believe from the testimony that the 
 goods were put upon the wharf when it was not raining, and that the 
 defendants had been previously notified that they were to be unload- 
 ed upon the wharf, then it was the duty of the defendants to take 
 the goods and to provide means for protecting them if a reasonable 
 time was given so to do. And if you believe from the testimony that 
 the weather was threatening at the time the goods were put upon the 
 
 14 — Moore v. Barber Asphalt Pay. There may be, and doubtless are, 
 
 Co., 118 Ala. 563, 23 So. 798 (800). cases where the vendor would be 
 
 15 — Wrlpley v. Cornelius, 162 111. required to give the vendee notice 
 
 92 C.t't). aff g 61 111. App. 279, 44 N. before making- a sale, but the con- 
 
 E. 406. duct of the vendee may be such 
 
 The court paid in comment that that notice will he waived." 
 
 the "law Is well settled that, where 16 — Iroquois Furnace Co. v. Hard- 
 
 the vendee refuses to receive goods ware Co., 201 111. 297 (300), aff'g 102 
 
 purchased, the vendor may re-sell 111. App. 68, 66 N. E. 257. 
 
 thn ponds, and sue for the difference 17— Seefeld v. Thacker, 93 Wis, 
 
 hot ween the contract price and the 518, 67 N. W. 1142 (1143). 
 amount received upon re-sale.
 
 §2262.] SALES. 1473 
 
 wharf, then defendants should have used greater diligence in pro- 
 tecting the goods. 
 
 (b) If you find from the evidence that the plaintiffs or their 
 agents discharged the oats in question upon the wharf in the rain, the 
 defendants would not be required, under such circumstances, to ac- 
 cept them, if they were injured by the rain in consequence. 
 
 (c) If you find from the evidence that through the fault of the 
 plaintiffs or their agents, a considerable portion of the oats were dam- 
 aged before delivery, to defendants, then defendants had a right to 
 reject all.^^ 
 
 § 2262. Time of Payment— When Interest Would Begin to Run. The 
 court instructs the jury that, if all those bills for these goods were in 
 
 this form, teiTQs stated at days, and the party took the goods 
 
 with that upon it, and made no objection to that in any way, it would 
 be an implied agreement that that was the time within which the 
 goods were to be paid for, and that, if they were not paid for, after 
 that interest would begin to run by way of damages from the ex- 
 piration of the days.^^ 
 
 S 2263. Market Value Defined. The market value of goods is the 
 price at which the owner of the goods, or the producer, holds them 
 for sale ; the price at which they are freely offered in the market to all 
 the world; such price as dealers in the goods are willing to receive, 
 and purchasers are made to pay, when the goods are bought and sold 
 in the ordinary course of trade. You will perceive, therefore, that the 
 actual cost of the goods is not the standard.-** 
 
 § 2264. Coming up to Test Required — Waiver, (a) To entitle 
 the plaintiff to recover for the "melting furnaces," so called, and 
 the gas-producing machine connected therewith, he must satisfy the 
 jurj' by a fair preponderance of evidence that such melting furnace 
 and gas-producing machine so constructed by him operated in the 
 several tests and in the work of melting iron to the satisfaction of 
 the defendant company, or that the defendant company actually 
 waived said trial, and accepted the same. 
 
 (b) To entitle the plaintiff to recover for the gas-producing ma- 
 chine made to furnish fuel for the defendant's boilers and annealing 
 
 18 — Heinberg et al. v. Cannon et proposition in the defendant's fa- 
 
 al., 36 Fla. 601, 18 So. 714 (716). vor; and if he made no objection, 
 
 19 — Lambeth Rope Co. v. Brig-- his assent would be implied, and 
 
 ham, 170 Mass. 518, 49 N. E. 1022 he would be bound by the contract. 
 
 (1023). The fact that in subsequent state- 
 
 The court said that in the "ab- merits interest was not charg-ed was 
 
 sence of any agreement, the price evidence that the plaintiff was 
 
 of the g-oods would be payable on then willing- to waive its legal 
 
 delivery. The parties could make rig-ht to interest; but in the ab- 
 
 any agrreement about it that they sence of a settlement upon the 
 
 chose to make. If the plaintiff no- statement, it would not deprive it 
 
 tified the defendant that it was of its rig-ht in this suit to recover 
 
 willing to give him a credit of — interest according to the terms of 
 
 days on each bill, and that the the original contract." 
 
 price would be payable at the ex- 20 — Watson v. Loughran, 112 Ga. 
 
 piration of that time, it was a 837, 38 S. E. 82 (84).
 
 1474 FORMS OP INSTRUCTIONS. [§ 2265. 
 
 ovens, the jury must be satisfied by a fair preponderance of the evi- 
 dence cf one of the following propositions: First, that such machine 
 was furnished by the plaintiff to the defendant without the condition 
 that it was to do the work for which it was constructed satisfactorily ; 
 second, that the trial or test thereof was made which was satisfactory 
 to the defendant; third, that by or through the fault of the defendant, 
 to which the plaintiff neither contributed nor assented, such trial or 
 test was not made within the time contemplated by the parties.^i 
 
 § 2265. Grapes Shipped to be Resold — ^Merchantable Condition 
 When Loaded. In determining whether the grapes were in a mer- 
 chantable condition when loaded into the car at Portland, N. Y., you 
 should take into consideration the condition in which the grapes were 
 when loaded into said ear, the length of time merchantable grapes 
 will keep when properly loaded into cars used for the purpose of 
 canying grapes, the length of time the grapes were in transit, the 
 manner in which the grapes were loaded into said car, with all the 
 facts and circumstances in evidence, and from all the facts and cir- 
 cumstances in evidence say whether the grapes were or were not in 
 a merchantable condition when loaded in the car at Portland, N. Y.^^ 
 
 § 2266. Sale by Assignee — Guaranty — Trust Property — Agreement 
 to Buy Back, (a) The court instructs you that if M. authorized R. to 
 assure L. that a purchaser would be found for him (L.) for certain of 
 the assets which he (L.) did not want, if such was the ease, and if you 
 find that the object and pui-pose of M. in having such assurance made 
 to L., if such assurance was made, was to enable him (M.) to there- 
 after become the purchaser fx'om said L. of said assets, or any part 
 thereof, and that, in furtherance of such object and purpose, M. did 
 thereafter become the purchaser from said L., then you are instructed 
 that such sale was, and as to said M. is, invalid, and this notwith- 
 standing L. may not have been aware of the object and purpose of M. 
 in having him so assured.^^ 
 
 21— Turner v. Muskegon Machine the trustee's wrongful intent. 
 
 & Foundry Co., 97 Mich. 166, 56 N. Perry on Trusts, paras. 222, 830- 
 
 W. 356 (359). Ellis v. Singletary, 45 Tex. 41. 
 
 22— Truschel v. Dean, 77 Ark. 546, "While the refused instruction 
 
 92 S. W. 782. might have been so framed as to 
 
 2.3— Nabours v. McCord, 36 Tex. present the question more definite- 
 Civ. App. 504, 75 S. W. 827 (834). ly, it embodied a correct principle 
 
 "Courts of equity are so rigid in of law applicable to a phase of 
 requiring good faith, honesty, and the case presented by the testi- 
 Integrlty on the part of trustees, mony and not covered by the main 
 that when they fall short in these charge, and which it was the right 
 re.spofts, In purpose or intent only, of plaintiffs in error to have sub- 
 though no actual harm results, if mitted to the jury. In other words, 
 they reacquire the property which if M. resorted to the alleged prom- 
 they hnve rllsposerl of with such ise of guaranty, not for the pur- 
 fraudulent Intent, it will be reim- pnse of securing a fair price for 
 nrossprl with the trust, althoueh the property, but as a scheme on 
 tho purchaser to whom it has been his part to enable him to finnlly 
 sold, -inrl from whom the trustee acquire it, f^en. in mv judgment, 
 has acnii'vocl it. mnv not hi-i'o v-e^n he should not be permiH-^d to hold 
 a party to, or hnd knowled<7e of, it as against the pl-^in + i'^s."
 
 § 2267.] SALES. 1475 
 
 (b) The court instructed you that an assignee is not permitted by 
 law to sell to himself, either directly or indirectly, the property of 
 the assigned estate. So if you believe from the evidence that on or 
 about May 5, 1897, the assignees, H. and M., made to L. a transfer of 
 the properties herein sued for, and then belonging to the assigned es- 
 tate of said C. and C. and the Bank, or any of said properties, 
 
 and you believe that it was either expressly or impliedly agreed or 
 understood at the time on the part of said M. and L. that said trans- 
 fer should not be an absolute sale of said property to said L., but 
 that it was either expressly or impliedly understood at the time of or 
 prior to said sale to L. that the said M. should have the right and 
 privilege of purchasing all or any part of said property from the said 
 L., and that the said L. would sell the same to said M., and you 
 believe that after said transfer to said L., said M., whether for him- 
 self or for other persons, did purchase said property, or any part 
 thereof, either in his own name, or in the name of other persons for 
 his own benefit, then you are instructed that said sales and trans- 
 fers of so much of said property as was included within said agree- 
 ment between M. and L. were invalid, and that the title to such por- 
 tion of said property did not pass by said sale from the said as- 
 signees, and you will find for plaintiffs as to such property. 
 
 (c) If you believe from the evidence that L. purchased the as- 
 signed property from H. and M. absolutely, without any promise, 
 agreement or understanding, either express or implied, with M. that 
 he (M.) should have any interest in said purchase, or that he should 
 be permitted to purchase it, then you 'will find for defendants.-* 
 
 § 2267. Contract for Sale of Mining Claims — Condition Precedent 
 to Marking of Claim. The court instructs the jui-y that the existence 
 of a mining location as contemplated by the United States law (that 
 is, discovery of a mineral-bearing lode in j^Jace, and the marking and 
 staking upon the ground of the claim) for the claims described in the 
 contract herein, and to be conveyed by such deed as is provided for, 
 is a condition precedent for plaintiff's rights to recover the contract 
 price. And if you find that the plaintiff did not have all the claims 
 so properly located at the time of the making of the contract and the 
 execution of the deed, then plaintiff is not entitled to recover.^^ 
 
 § 2268. Construction According to Order of Vendee and Under 
 the Superintendence of Vendee's Agent, (a) The court instructs 
 
 24— Ibid. court at the very outset told the 
 
 25 — La Grande Inv. Co. v. Shaw, jury that the burden of proving 
 
 44 Ore. 416, 72 Pac. 795. the alleg-ed fraudulent representa- 
 
 "Now, while there is no refer- tions was with the defendant, cou- 
 
 ence made in this particular in- pled with a clear definition as to 
 
 struction to any fraudulent pur- what would constitute such a 
 
 pose, it must be read in connection fraud and deceit as would relieve 
 
 with the general charge. In real- the defendant of his alleged obli- 
 
 ity all these instructions are con- gation. The exceptions, therefore, 
 
 ditioned upon the proof of fraud to this instruction were not well 
 
 in connection therewith, as the taken."
 
 1476 FORMS OF INSTRUCTIONS. [§ 2269. 
 
 the jury that if MeC, with appellant's knowledge and consent, direct- 
 ed the kind of material to be used, and superintended the construc- 
 tion of the machines, and that they were constructed according to his 
 order, then the appellees should not be held responsible for defective 
 material. 
 
 (b) The juiy is instructed that if McC, as the appellant's agent, 
 requested the appellees to employ J. as their moulder, and to have 
 charge of the castings, etc., and he was employed at such request, and 
 MeC. recommended him as a competent man to do the work, that this 
 was a guarantee on appellant's part that he was a competent man, 
 and appellant was estopped to claim that he did his work improperly 
 or inefficiently, or claiming damages for reason of his want of skill. 
 
 (c) The jury is instructed that if McC, as agent, etc., without 
 appellees' consent, interfered with the construction of the machine 
 by reason of which the machines were improjDerly put together with- 
 out appellees' fault, then appellees were not barred of recovery of 
 the contract price, if the machines failed to work on account of such 
 interference, and the material was first class. 
 
 (d) The jury is instructed that, though there were defects in the 
 machine and workmanship, yeit if the jury believe from the evidence 
 that such defects could with reasonable prudence have been seen by 
 the defendant or his agent, and that the defendant or his agent had 
 sufficient opportunity to examine such machines before accepting the 
 same, then it was the duty of defendant or his agent to have rejected 
 said machines, or to have called the attention of the plaintiffs to such 
 defects and given them an opportunity to correct the same, therefore 
 if the juiy believe from the evidence that defendant or his agent ac- 
 cepted said machines in a defective condition, or having sufficient 
 opportunity to know that they were defective in workmanship or 
 material, without giving plaintiffs opportunity to correct the same, 
 then defendant is estopped from now setting up said defects as a de- 
 fense to this action, and plaintiff's are entitled to recover whatever the 
 evidence may show to be due them under the contraet.^^ 
 
 § 2269. Contract of Sale — Goods to Be of a Specific Quality, Quan- 
 tity and Description — Mingled with Other Goods — Delivery — Accept- 
 ance — Refusal and Tender Back — Sale for Benefit of Vendee — Series. 
 (a) The court instructs the jury that under an executory contract 
 for the purchase of goods of a certain quality and description, to be 
 shipped to the buyer at a distant place, if the seller mingle with the 
 goods sold, and include in the same shipment, with general freight 
 charges on all the goods, additional goods, which have not been or- 
 dered or purchased, and insists on payment of the whole, including 
 the charge for the additional goods, he cannot compel the buyer to 
 accept and pay for the whole, or to select from the whole so many 
 of the goods as were in fact ordered. 
 
 (b) If the jury believe from the evidence tliat the defendants, 
 
 26 — These Instructions approved in Davidson v. Clark, 36 111. App. 
 
 313 (315).
 
 § 2269.] SALES. 1477 
 
 through their agent, made a contract with the plaintiff, in for the 
 
 purchase of goods of certain specific quality, quantity, and descrip- 
 tion, to be prepared and shipped by plaintiff from to defendants' 
 
 address, at M., and there was no agreement or understanding that 
 the delivery of the goods to the carrier at C. should be taken as an 
 acceptance by the defendants, then the mere delivery to the carrier 
 would not operate as such acceptance ; and, on arrival of the goods 
 at M., the defendants were entitled to reasonable time and oppor- 
 tunity to inspect the goods, to ascertain whether they conformed to 
 the contract, and this included the further right, within a reasonable 
 time, to refuse to acce]>t the goods if they did not conform to the 
 contract of purchase ; and what is a reasonable time is a question 
 of fact to be determined by the jury, from a consideration of the 
 situation and business relations of the parties and all the other cir- 
 cumstances in evidence. 
 
 (c) It was a condition precedent to the sale in this ease that 
 plaintiff deliver goods of the kind and quality ordered, and the quan- 
 tity ordered ; and if the jury believe from the evidence that de- 
 fendants gave plaintiff an order to ship them only those goods listed 
 in the memorandum exhibited by witness, H. C. S., and for the aggre- 
 gate price of $ , as therein stated, and that plaintiff shipped and 
 
 invoiced them the goods listed in plaintiff's bill of particulars, ag- 
 gregating in price, $ , and that several pieces shipped were ma- 
 terially different in quality, and inferior in value, to that ordered, 
 then defendants were not bound to accept any of the goods. 
 
 (d) If the jury from the evidence, and, under the other instruc- 
 tions in the ease, find, that the goods delivered to defendants did not 
 correspond with the contract, it was the right of the defendants to 
 promptly notify plaintiff of their refusal to accept the goods, and to 
 tender them back, and after waiting a reasonable time, and learning 
 of plaintiff's refusal to take back the goods, then to store them for 
 plaintiff, or, if exj^ensive, to keep and care for them; then to sell 
 them to the best advantage for plaintiff's account; and in such case, 
 if the goods were stored, then the defendants have the right to claim 
 reimbursement for all freight paid, necessary and reasonable storage 
 charges, insurance and drayage, and expense of repacking, properly 
 incurred in keeping and earing for said goods until they could be sold 
 to advantage; and the reasonableness of such charges is for the jury, 
 
 (e) In this case, if the juiy believe from the evidence that the 
 plaintiff, in a substantial or material matter or matters, failed to 
 comply with the contract of sale which is sued upon, and that de- 
 fendants refused to accept the goods, and notified the plaintiff that 
 the same would be held or disposed of for its account, then the jury 
 will not consider any of the evidence as to the amount of money re- 
 ceived by defendants or the S. Co. on afterwards disposing of the 
 goods, except as bearing upon the question whether the defendants 
 voluntarily ratified the shipment after knowing all the facts.
 
 1478 FORMS OP INSTRUCTIONS, [§2270. 
 
 (f) It is a cardinal rule that one party seeking to enforce an ex- 
 ecutory contract must show a compliance with all conditions on his 
 part. If the juiy believe from the evidence that the defendants, 
 through their agent, made a contract with the plaintiff in Chicago, for 
 the purchase at a certain price of certain goods, of a specified quality 
 and descrii^tion, to be thereafter shipped by plaintiff from C. to de- 
 fendants' address at M., and that plaintiff shipped goods of a quality 
 substantially different from those ordered, and of less value, and 
 included also in the same shipment, and mingled with the other goods, 
 additional goods, — that is to say, furniture that was never ordered or 
 purchased by defendants, — then the defendants had the right, on dis- 
 covering these facts, to reject the shij^ment.^''' 
 
 WARRANTY. 
 
 § 2270. Warranty — ^What Constitutes. The court instructs you 
 that to constitute a warranty, no particular words or expressions 
 are necessary, nor need the words "warrant" or "warranty" be 
 used. Any distinct representation or affirmation of the condition or 
 quality of the article or thing sold, made by the seller at the time of 
 the negotiations for the sale, which he intended, and from Avhich the 
 purchaser at the time had reasonable grounds to suppose and believe 
 were intended by him, to effectuate the sale, that the purchaser, in 
 fact, did so believe in making the purchase, relied thereon, and on 
 the truth thereof, and which were operative in effecting the sale, is a 
 warranty. It is not necessary to show that the seller at the time in- 
 tended to cheat or deceive the purchaser in the sale, nor is the plain- 
 tiff required to show that the seller at that time knew the representa- 
 tions to be false ; but he has the right to rely upon the representations 
 or affirmations so made. The mere praise of the property sold, or a 
 bare affirmation of its soundness, at the time when it was exposed for 
 the purpose of inspection, does not, of itself, constitute a warranty; 
 or, if the purchaser had determined to purchase without such repre- 
 sentations or affirmations, and formed his own opinion, and relied 
 upon his own judgment, and did not rely upon the representations or 
 affirmations, if any were made, then there is no warranty. In this 
 case, if you find from the evidence that the defendant, at the time 
 of and just before the beginning of the sale of the hogs, made the 
 statements to the persons there assembled for the purpose of bidding 
 on the hogs then to be sold, that the hogs were all right, which he 
 intended, and from which plaintiff had reasonable grounds to sup- 
 j)ose and believe that the defendant intended, thereby to effectuate a 
 sale of the hogs, and did in fact so suppose and believe, relied there- 
 on, and upon the truth thereof, and that such representations were 
 operative in making the sale; that in fact said hogs were all right, 
 
 27 — Approved as a series in Strauss v. Nat'l Furniture Co., 76 
 Miss. 343, 24 So. 703 (704).
 
 § 2271.] SALES. 1479 
 
 but were diseased with swine plague, hog cholera, or other infectious 
 disease, then the plaintiff will be entitled to recover upon the first 
 count of his petition. If you fail to so find, you must find for the 
 defendant thereon.^^ 
 
 § 2271. Warranty of Title by Vendor. The court instructs the 
 juiy that where a vendor in possession of personal property, either 
 by himself or agent, sells the same to a purchaser who buys in good 
 faith, believing he is obtaining a clear title to the property, there is 
 an implied warranty of title by the vendor; and if, in such case, 
 there is an outstanding claim of title, evidenced by a duly filed chattel 
 mortgage on the property sold, and the mortgagee takes possession 
 of said property under a writ of replevin, thereby depriving the pur- 
 chaser of the possession of said property, and upon the trial of the 
 reple\'in suit the judgment for the possession of the property is for 
 the mortgagee, then and in that case the purchaser of said property 
 would be entitled to recover, against the vendor of the same, damages 
 by reason of the failure of the vendor's title.-^ 
 
 § 2272. Warranty by Agent — Ratification of Agent's Acts, (a) 
 The testimony shows that the machine in question was bought from 
 one 0. It is further shown that said 0. received his agency to sell 
 the machine in question from one G. & J., who were the agents of the 
 plaintiff herein. You are therefore instructed, as a matter of law, 
 that if you find, from a preponderance of the evidence, that said 0. 
 took defendants' order for said machine, and gave defendants a writ- 
 ten wai'ranty for said machine, and you further find fi'om the evi- 
 dence that plaintiff delivered said machine ui^on said order and ac- 
 cepted defendants' notes on said order, they thereby ratify the war- 
 ranty made by 0. and are bound thereby. 
 
 (b) If you find from the evidence that the plaintiff's agent did 
 warrant the machine as represented, and that it failed to answer its 
 warranted character, the measure of defendants' damages is the dif- 
 ference in the condition it actually was at the time of the sale, and 
 what it would have been had it answered its warranted character.^'' 
 
 § 2273. Acceptance Waives Implied Warranty, (a) The court 
 instructed the jury substantially, that, if they found it to be as al- 
 leged by the plaintiff, there was an implied wai-ranty that the ma- 
 chine was suitable for the work it was intended to do; and, if not 
 
 28— Powell V. Chittick, 89 Iowa tion complained of properly sub- 
 
 513, 56 N. W. 652 (653). mitted to the jury the question of 
 
 29— Hartwig v. Gordon, 37 Neb. the ratification of O.'s acts by the 
 
 657, 56 N. W. 324 (325). plaintiff. Esterly v. Van Slyke, 21 
 
 30— Esterly Harvesting-Mach. Co. Neb. 616, 33 N. "W. 209; Sycamore 
 
 V. Frolkey, 34 Neb. 110, 51 N. W. Marsh Harvesting Co. v. Sturm, 
 
 594 (596). 13 Neb. 210, 13 N. W. Rep, 202; 
 
 The court held that "it woi'ld be Chariton Plow Co. v. Davidson, 16 
 
 unjust to permit plaintiff to adopt Neb. 377, 20 N. W. 256; Manufac- 
 
 that part of the contract made by turing Co. v. Wagoner, 25 Neb. 443, 
 
 its agent as is beneficial to it. and 41 N. "W. 2S7; Rogers v. Hardware 
 
 reject the remainder. The instruc- Co., 24 Neb. 655, 39 N. W. 844."
 
 1480 FORMS OP INSTRUCTIONS. [§ 2274. 
 
 suitable therefor, defendant had the right to return it to plaintiff 
 within reasonable time after discovering its defects, 
 
 (b) If the jury find that the defendant, after he knew or ought to 
 have known from the test he made that this machine was an un- 
 satisfactory machine on , and, after determining that he 
 
 was not satisfied with it^ nevertheless went on and worked with it on 
 
 , for the purpose of completing his harvest, the law would 
 
 consider that an acceptance of the machine. 
 
 (c) The court further instructed the jury that, if they found de- 
 fendant's version of the contract the correct one, he had the right to 
 return the machine if not satisfied with it, unless he had theretofore 
 accepted it under the rule of acceptance above stated; and, if he did 
 thus accept it, the right to return it was lost.^^ 
 
 § 2274. Reliance on Representations Necessary to Constitute a 
 Warranty, (a) The court further instructs the jury to entitle the 
 plaintiff' to recover in the suit, it is not only necessary for the jury to 
 find from the evidence that the defendant warranted the animal in 
 question as alleged in the petition, but it must further appear from 
 the evidence that the plaintiff relied upon said warranty in making 
 the purchase of the horse, and was induced to make said purchase by 
 said warranty, and it must also appear from the evidence that the 
 horse was not as warranted at the time of the sale; and, unless all of 
 these facts appear fi-om the evidence, the jury should find for the 
 defendant.^2 
 
 (b) That if the jury shall find from the evidence that the agent of 
 the plaintiff's, in making sale of the fertilizer sued for in this case, 
 represented the same to be as good a fertilizer, and as well adapted 
 to raising potatoes, beans, cabbage, and other vegetables, as any 
 other in the market of like price, and also represented that the said 
 fertilizer was as good a potato special as any other in the market, as 
 is set out in the defendant's first special plea, and was authorized to 
 do so by the said plaintiffs, such representations will not amount in 
 tliemselves to a warranty, unless the jury shall further find that the 
 said representations, when so made by the plaintiff's agent, were in- 
 tended by him to cause the sale; and, furthermore, that the said de- 
 fendant understood the said representations to be a warranty of said 
 fertilizers, and was induced thereby at the time to become the pur- 
 chaser thereof. 
 
 (c) The court instructs the jury that if they believe from the 
 evidence that the plaintiff's fertilizers wei'c first introduced into this 
 community for sale , and the spring of , and further 
 
 ^1— Palmer v. Banfield, 8G Wis. property must have relied upon the 
 
 441. 56 N. W. 1090 (1092). statements of the seller as to the 
 
 32— Watson v. Roode, 30 Neb. quality of the article sold, in order 
 
 264, 46 N. W. 491 (494). to make the representations a war- 
 
 "Thc law urifloubtcdly is, and ranty," citing, Little v. Wood- 
 has been so doclarod by this court, worth, 5? Neb. 281; Halliday v, 
 that the purchaser of personal Briggs, 15 Neb. 219, 18 N. E. 55.
 
 § 2275.] SALES. 1481 
 
 believe that it was the custom or usage of the farmers of this section 
 not to buy any fertilizer -when first introduced, upon the analysis 
 thereof, but to require a warranty that the said fertilizer be as good 
 as any other fertilizer on the market, dollar for dollar, as crop-pro- 
 ducing, and if they further believe that S. warranted the fertilizers 
 which he sold to the defendant, as alleged in his plea, then they are 
 instructed that the plaintiffs are bound by such warranty, although 
 they may further believe that he was restricted from making such 
 warranty by any contract entered into between the plaintiffs and said 
 S., unless they further find from the evidence that the said written 
 restriction was known to the said B. at the time he made the said 
 purchase. 
 
 (d) If the jury believe from the evidence that S. was authorized 
 by the plaintiffs orally to warrant to the iDurehasers of their fertil- 
 izers, that they were as good as any other in the market of like price, 
 and that he warranted to the defendant, B. when making sale of said 
 fertilizers, that the said fertilizers were as good as any other in the 
 market for the same price, dollar for dollar, and they further find from 
 the evidence that the said fertilizers were not as waiTanted, then they 
 should find for the defendant such damages as have resulted natural- 
 ly from the breach of the said warranty.^^ 
 
 § 2275. Implied Warranty of Manufactured Article. As to the 
 regular boxes, you are instructed that if you believe from the evi- 
 dence that the defendant submitted to the plaintiff a design for said 
 boxes, and informed the plaintiff of the use to which they were in- 
 tended to be put, and the conditions they must meet in order to per- 
 form the intended service, then the plaintiff in undertaking to make 
 and sell such boxes in accordance with such design, impliedly war- 
 ranted their sufficiency for and adequacy to the service for which it 
 was intended they should be put, under the necessary conditions of 
 that service, unless you find from the evidence that the plaintiff ob- 
 jected to such design as inadequate, or protested against it, or other- 
 wise relieved itself from responsibility therefor.^* 
 
 § 2276. Purchaser to Give Trial and Notice — Provision of Return- 
 ing Machine, (a) The jury are further instructed that in no case 
 would the defendant, under the terms of the article or contract given 
 in evidence, be entitled to damages, even if the juiy find from the evi- 
 dence that the machineiy in question did not fulfill the waiTanty. 
 For, by the terms of the contract it was his duty to give the machin- 
 ery such trial as the contract contemplates, and if it failed to fulfill 
 the warranty to give such notices and retui'n the machinery, as the 
 contract provides, and if he neglected to give the notice or return the 
 machinery in the manner provided by the contract, but continued to 
 
 33— Reese et al. v. Bates, 94 Va. mie Falls Power Co., 29 Wash. 292, 
 321, 26 S. E. 865 (870). 69 Pac. 759 (764). 
 
 34 — Moran Bros. Co. v. Snoqual-
 
 1482 FORMS OF INSTRUCTIONS. [§ 2277. 
 
 keep and use it, even to his own detriment, he is not entitled to any 
 damages either as a set-off against the notes or otherwise. 
 
 (b) The jury are further instructed that the provisions of the 
 warranty clause contained in the order or agreement given in evidence 
 concerning the purchase of the machinery in question in this suit, 
 that the defendant should ''inside of five days from the day of the 
 first use by him of said machinery" give notice of any failure of said 
 juaehinery to fulfill the warranty to the plaintiff and to the local 
 agent of whom he purchased it, and that the continued use of said ma- 
 chinery after the expiration of said time should evidence a fulfillment 
 of the warranty and satisfaction to the defendant, is just as binding 
 and conclusive upon the parties as any other provision of the contract, 
 and the jury cannot lawfully find that the same has been waived or 
 released, unless they believe from the evidence that there is a pre- 
 ponderance of all the evidence in the case that the same has been re- 
 leased or waived.^^ 
 
 § 2277. In Absence of Special Contract — Purchaser Buys at His 
 Own Risk — Contract to Purchase Machinery Installed on Trial, (a) 
 
 The jury are instructed that there is no special warranty or guaranty 
 in the written contract that the property should be of any quality, 
 and in the absence of such warranty or guaranty the pi'esumption is 
 the plaintifi: was buying at his own risk, and relying on his own 
 judgment.^® 
 
 (b) I instruct you that by this written contract the plaintiff did 
 not warrant his furnace or gas-producing machine to do any particu- 
 lar class or quality of work or service. He simply offered to put his 
 melting furnace and gas producer into the defendant's works on a 
 
 trial of — ; days; and if the defendant, after such trial of thirty 
 
 days, was satisfied with the furnace and producer, it was to accept 
 and pay for them ; and it lay solely with the defendant to say wheth- 
 er it was satisfied or not. If it said it was not satisfied, it had a 
 right to reject the property, and it owed the plaintiff nothing; but I 
 chaj-ge you that, if the plaintiff constructed the works within a 
 reasonable time after the proposal and acceptance thereof, and at the 
 place required by the defendant, and that the defendant had notice 
 of the completion of the same, and that the same were completed 
 ready for use and trial, according to the contract, and as understood 
 by the parties, and if you further find from the testimony in the case 
 that the parties to the contract understood that the trial of the fur- 
 
 "5 — C. Aultman & Co. v. Wykle, was no warranty, and the pur- 
 
 36 III. App. 293 (299). chaser bought at his own risk and 
 
 36— W. St. L. and P. Ry. Co. v. on his own judgment, and the 
 
 Jaggcrman, 115 111. 407, 4 N. E. 641. contract being in writing, it was 
 
 The court said that in this case the duty of the court to construe 
 the written contract containing no it and instruct the jury it con- 
 warranty, and there being an ex- tained no warranty, citing Walker 
 pre.ss contract, no contract of v. Rrown, 28 111. 378. 81 Am. Dec 
 warranty could exist by implica- 287; Ogden v. Kirby, 79 111. 555. 
 tion; the law must presume there
 
 § 2278.] SALES. 1483 
 
 nace and gas-producer was to take place immediately after they were 
 
 complete and ready for use and trial, then the defendant had 
 
 days after such completion and notice to make the trial ; and if de- 
 fendant was not satisfied with the furnace and producer after such 
 trial, it was the duty of defendant to so notify the plaintiff. But if 
 the defendant failed to make such trial or failed within a reasonable 
 
 time after the expiration of said days to notify the plaintiff 
 
 that the proj^erty was not satisfactory, then the law conclusively 
 presumes that the defendant was satisfied, and had accepted the prop- 
 erty, and imposes upon the defendant the liability to pay therefor 
 the contract price, unless you are satisfied from the testimony that 
 the plaintiff assented and agreed to some delay or postponement of 
 the time of trial, or that further trial might be made. 
 
 (c) As to the melting furnace, I fui'ther charge you that if the 
 
 defendant by its authorized agent on , agreed with the plaintiff 
 
 to give the furnace another trial of days on malleable iron, to 
 
 commence the trial as soon as possible from such time, and, if the 
 furnace worked all right, to accept it, and if you find that the de- 
 fendant did not attempt to give the furnace another trial of 
 
 days, commencing as soon as possible after , then I charge 
 
 you that the defendant is liable to the plaintiff for the furnace and 
 producer used with it, and you will accordingly find in favor of the 
 plaintiff for the contract price of the same.^^ 
 
 § 2278, Burden of Proof. The burden of proof is upon the plaint- 
 iffs in the first instance to satisfy you by a preponderance of the testi- 
 mony that the material sued for in this action was delivered in the 
 quantities and of the quality provided for in the agreements between 
 the parties, but, if the defendants claim that there was a guaranty 
 made by the plaintiffs that any specific description of the material 
 should be of a certain quality, the burden of proof is upon the de- 
 fendants to satisfy you, by a preponderance of the testimony, that 
 such guaranty was given. ^* 
 
 37 — Turner v. Muskegon Machine .38 — Clarke v. Van Court 34 Neb 
 and Foundry Co.. 97 Mich. 166. 56 154. 51 N. W. 756 (758). 
 N. W. 856.
 
 CHAPTER LXXIX. 
 
 SLANDER AND LIBEL. 
 
 See Erroneous Instructions, same chapter head. Vol. III. 
 
 § 2279. Words must be proved as 
 charged — "Sets of Words." 
 
 § 2280. Proof of actionable words — 
 All the words need not be 
 proved. 
 
 § 2281. Presumption of good reputa- 
 tion — Burden of proof on 
 defendant. 
 
 § 2282. Words presumed to be used 
 in their ordinary meaning. 
 
 § 2283. Malice and damage pre- 
 sumed from speaking ac- 
 tionable words. 
 
 § 2284. Words not spoken malicious- 
 ly. 
 
 § 2285. Publication of proceedings in 
 good faith or with design 
 and intent to injure — Ques- 
 tion for jury. 
 
 § 2286. Defendant subject to criti- 
 cism — Bona fide belief that 
 publication of proceedings 
 of Board of Trustees nec- 
 essary in defense of char- 
 acter — Jury inay judge of 
 truth of charges. 
 
 § 2287. What jury are to consider 
 on question of malice. 
 
 § 2288. Anger no justification — In 
 mitigation, when. 
 
 § 2289. Plea of justification— How 
 proved. 
 
 § 2290. Plea of justification in good 
 faith. 
 
 § 2291. Not an aggravation of dam- 
 ages, when. 
 
 § 2292. Repeating report. 
 
 § 2293. Charge of fornication or 
 adultery — Effect of retrac- 
 tion. 
 
 § 2294. Charge of dishonesty. 
 
 § 2295. Privileged commumications. 
 
 § 2296. Definitely pointing out per- 
 son libeled. 
 
 2297. Libel— Truth of words— De- 
 fense. 
 
 §2279. Words Must be Proved as Charged— "Sets of Words." 
 
 (a) Tlinn.s'li the ,]'urv may believe, from the evidence, that the de- 
 fendant spoke words which are equivalent to the words charged in the 
 declaration, and which convey the same meaning', still, if the jury 
 further believe, from the evidence, that the words proved are not, 
 substantially, the same words as those charged in the declaration, 
 then the plaintiff is not entitled to recover.^ 
 
 (b) The plaintiff is not entitled to recover upon the proof of the 
 speaking of words which are only similar to, or have the same mean- 
 ing as, the words charged in the declaration, but are not the same 
 words. She can only recover upon proving the speaking of the ma- 
 terial words of some one or more of the slanderous statements charged 
 in the declaration, precisely as therein charged.- 
 
 1— Fllnn V. Barlow, 16 111. 39; 2— Wallace v. Dixon, 82 111. 202; 
 
 Ransom v. McCurley, 140 111. 626, 31 lies v. Swank, 202 111. 453, 66 N. E. 
 
 N. E. 119: Roborts v. Lamb. 93 1042. 
 Ten II. 343, 27 S. W. 668. 
 
 1484
 
 § 2280.] SLANDER AND LIBEL. 1485 
 
 (c) The court instructs the jury for the defendant, that before the 
 plaintiff is entitled to recover any verdict in this case, he must prove 
 by a preponderance of the evidence that the defendant uttered and 
 spoke of and concerning the plaintiff some one or more of the sets of 
 alleged slanderous words mentioned in the declaration, and that such 
 words were spoken by the defendant, in the presence and hearing of 
 some person or persons other than the plaintiff. By "sets of words" 
 is meant the groups of words as thej ai'e embraced within the quota- 
 tion marks in the declaration. The court further instraots the jury 
 that proof of equivalent words will not be sufficient, but they must 
 prove the words alleged in the declaration as alleged in the declara- 
 tion, or some one set of words.^ 
 
 § 2280. Proof of Actionable Words— All the Words Need Not be 
 Proved, (a) The court instructs the juiy that while it is necessary, 
 to entitle the plaintiff to recover in an action of slander, that she 
 should prove the slanderous words alleged in the declaration or some 
 count thereof, still it is not necessary to prove all the words that are 
 charged to have been spoken. It is sufficient to prove substantially 
 any set of words in some one or more of the statements of slanderous 
 words contained in the declaration, and the different counts thereof.* 
 
 (b) To authorize a verdict for the plaintiff in an action of slander, 
 it is not necessary that all the slanderous words alleged in the declar- 
 ation should be proved, unless it takes them all to constitute the 
 slander charged; and, in this case, if the jurj'- believe, from the evi- 
 dence, that a sufficient number of the words charged in the declara- 
 tion to amount, in their common meaning, to a charge of' (larcenj') 
 against the plaintiff, have been proved to have been spoken by the 
 defendant, as charged in the declaration, then the jury should find the 
 issues for the plaintiff.^ 
 
 § 2281. Presumption of Good Reputation — Burden of Proof on De- 
 fendant. You are instructed that the law presumes, in the absence 
 of evidence to the contrary, that plaintiff possesses a good character 
 and reputation, and that she is innocent of the crimes charged; and 
 you are instructed that she is entitled to recover in this case, unless 
 the defendant has proven by a preponderance of the evidence all the 
 elements necessary to convict plaintiff of prostitution and abortion. 
 The burden of proof is upon defendant to show the plaintiff guilty of 
 the commission of these crimes.^ 
 
 3— Finnell v. Walker, 48 111. App. words actionable per se. Ransom 
 
 331 (333). v. McCaiiey, 140 111. 626, 31 N. E. 
 
 Note. — Some states hold that it 119; Thomas v. Fischer, 71 111. 576." 
 
 Is sufficient to prove the words 5 — Baker v. Young, 44 111. 42; Du- 
 
 substantially as charged. See fresne v. Weise, 46 Wis. 290, 1 N. 
 
 Oooley on Torts (3d ed.) 419, and W. 59; Boldt v. Budwig, 19 Neb! 
 
 cases cited. 739, 28 N. W. 280 (282); Posnett v 
 
 4— lies v. Swank. 202 111. 453, aff'g Marble, 62 Vt. 481. 20 Atl 813 22 
 
 105 111. App. 9, 66 N. E. 1042. Am. St. 126, 11 L. R. A. 162. 
 
 "This instruction was proper, as 6— T\Tiiting v. Carpenter. 4 Neb. 
 
 all the counts charged slanderous (Unof.) 342, 93 N. W. 926 (927).
 
 1486 FORMS OF INSTRUCTIONS. [§ 2282. 
 
 § 2282. Words Presumed to be Used in Their Ordinary Meaning. 
 
 The jury are instructed, that when one person utters slanderous words 
 eoneerning another, which, in their ordinary and common signification, 
 impute the crime or offense, of, etc., it must be presumed it was in 
 that sense they were used, and understood by the bystanders who 
 heard them, unless other words are used at the same time which limit 
 or qualify the ordinaiy meaning of the slanderous words used; and 
 a defendant, when sued, cannot excuse his guilty conduct by an ex- 
 planation in his testimony, that he did not use the words to impute 
 the crime or offense thereby indicated; provided, the jury believe, 
 from the evidence, that the defendant spoke the words, as charged.'^ 
 
 § 2283. Malice and Damage Presumed from Speaking Actionable 
 Words. All the plaintiff is bound to prove on his part to entitle him 
 to recover in this case is the speaking, by the defendant, of enough of 
 the slanderous words charged in the declaration to amount to a 
 charge of (stealing or larceny) against the plaintiff; and if the jury 
 believe, from the evidence, that the defendant is guilty of the speak- 
 ing of the slanderous words, charged in the declaration, of and con- 
 cerning the plaintiff, then express malice or ill-will need not be proved. 
 Malice, in its legal sense, means a wrongful act, done intentionally, 
 without just caiise or excuse.^ 
 
 § 2284. Words Not Spoken Maliciously. If the jury believe, from 
 the evidence, that the defendant in speaking the words charged, was 
 not actuated by malice, but simply repeated them as something he 
 had heard from others, and without any malice towards the plaintiff, 
 and did not intend to be understood as imputing any offense to her, 
 then the jury should find for the defendant. And it is a question for 
 the juiy to determine from all the facts and circumstances proved, 
 and from all the evidence in the case, whether the defendant did thus 
 repeat the words, and whether he acted maliciously in so doing.^ 
 
 § 2285. Publication of Proceedings in Good Faith or with Design 
 and Intent to Injure — Question for Jury, (a) If, however, the de- 
 fendants published in good faith, for the reason claimed by them, 
 actuated solely by a desire to protect the college, and give its patrons 
 coiTeet and full information of the entire proceedings, in such case 
 there would be no malice, and the jury should answer the third issue 
 "Ko." 
 
 (b) If these defamatory statements were false, and defendants 
 published them with a design and intent to injure the plaintiff, or 
 because they were mad at him for testifying against the president of 
 the college, — if that was the motive, or one of the motives, that in- 
 duced the publication, — it would be malicious, and you will answer 
 the issue "Yes."i« 
 
 7— Miller v. Johnson, 79 Til. 58. ton v. Meeks, 46 Mo. 217; Indian- 
 8 — Smart v. Blanchard, 42 N. H. apolis, etc., v. Horrel, 53 Ind. 527. 
 
 137; Lick v. Owen, 47 Cal. 252; Wil- 9— Cummerford v. McAvoy, 15 111 
 
 son V. Nooniin, 35 Wis. 321; Rea- 311. 
 
 rick V. Wilcox, 81 111. 77; Penning- 10— Gattis v. Kilgo, 128 N C 402 
 
 38 S. E. 931 (933).
 
 §2286.] SLANDER AND LIBEL. 1487 
 
 § 2286. Defendant Subject to Criticism — Bona Fide Belief that 
 Publication of Proceedings of Board of Trustees Necessary in De- 
 fense of Character — Jury May Judge of Truth of Charges, (a) The 
 jmy are instructed that if the jury believe from the evidence that 
 the defendant K. had been subject to criticism and adverse comment 
 and attacks in the press (from another than the plaintiif), and he 
 bona fide believed that the publication of the proceedings before the 
 board of trustees was necessaiy in defense of his character and stand- 
 ing, and he published the speech as part of the proceedings, in order 
 that the whole investigation might be laid before the public, that it 
 might judge of the truth of the charges against him, then the jury 
 should answer the third issue (as to malice) "No" as to said K. 
 
 (b) A man first assailed in public prints has a right to defend 
 himself, and, if the facts stated in prayer are true, and the publication 
 was made by defendant K. in good faith, and solely for the reasons 
 given, there would be no malice as to him, and the juiy should, by 
 their verdict, excuse defendant K. on the third issue. ^^ 
 
 § 2287. What Jury Are to Consider on Question of Malice. On 
 the question whether there was malice in the publication of the words 
 complained of, you have a right to consider the words of the libel 
 itself, and the circumstances attending its publication.^^ 
 
 § 2288. Anger No Justification— In Mitigation When, (a) The 
 court instructs the jury, that anger is not a justification for the use 
 of slanderous words, and it ought not to be considered, even in miti- 
 gation of damages, unless the auger is provoked by the very person 
 against whom the slanderous words are used.^^ 
 
 (b) If the jury believe, from the evidence, that the defendant 
 spoke in the presence and hearing of others, of and concerning the 
 plaintiff, the slanderous words charged in the declaration, then it is 
 immaterial whether the words were uttered with or without auger or 
 passion on the part of the defendant, unless the jury further believe, 
 from the evidence, that such passion was wrongfully caused or pro- 
 voked by the plaintiff; and even in such case, anger or passion would 
 be no justification, it eould only be considered by the juiy in mitiga- 
 tion of damages, in case they find the plea of justification not estab- 
 lished by a preponderance of testimony, and find the defendant 
 guilty.i*^ 
 
 (c) The jury are instructed, that while it is true, that anger or 
 passion is not a justification for the use of slanderous words, or even 
 a mitigating circumstance, unless provoked by the person against 
 whom the slanderous words are spoken, yet, if the party complaining 
 does wrongfully provoke such anger, the fact may be taken into ac- 
 
 11 — Gattis V. Kilgro, supra. considered by the jury, as in the 
 
 12 — Gattis v. Kilgo, supra. case of Ramsev v. Cheek, 109 N. C. 
 
 "If the words of the libel are 270, 13 S. E. 775." 
 clearly malicious, — that is, if they 13 — Janch v. Janch. 50 Ind. 135. 
 show clear evidence of actual mal- 14 — Boldt v. Budwig, 19 Neb. 739, 
 
 ice on their face, they may be 28 N. W. 280 (282).
 
 1488 FORMS OP INSTRUCTIONS. [§2289. 
 
 count and considered by the juiy in fixing the amount of their ver- 
 dict, in case they find the defendant guilty.^^ 
 
 § 2289. Plea of Justification — How Proved, (a) The court in- 
 structs the juiy, as a matter of law, that where a plea of justification, 
 in an action for slander, accuses the plaintiff of a crime, the defend- 
 ant, in order to sustain the plea, must prove the guilt of the plaintiff, 
 as charged in the plea, beyond a reasonable doubt. So far as the 
 degree of proof is concerned, the plaintiff occupies the same position 
 as if he were on trial upon an indictment for the offense charged. ^^ 
 
 (b) The court instructs the jury, that, in this case, the plea of 
 justification alleges that the plaintiff was guilty of the crime of 
 
 (perjuiy), and to prove the truth of that plea, it is incumbent upon 
 the defendant to prove everything requisite to constitute the crime 
 of (perjury) beyond a reasonable doubt. ^" 
 
 (c) In order to sustain the plea of justification, it is not neces- 
 sary that the defendant should establish the truth of that plea be- 
 yond a reasonable doubt; it is sufficient if it is established by a pre- 
 ponderance of the evidence.^^ 
 
 § 2290. Plea of Justification in Good Faith, (a) The court in- 
 structs the jury, that, although they should find, from the evidence, 
 that the defendant in this case has not sustained his plea of justifica- 
 tion, still, the fact that he has filed such plea must not of itself be 
 regarded by the jury as evidence of malice on the part of the de- 
 fendant.^^ 
 
 (b) And in this case^ the fact that defendant has filed a plea jus- 
 tifying the speaking of the words charged, does not relieve the plain- 
 tiff from the necessity of proving the speaking of the words alleged. 
 The plea of justification cannot be used to convict the defendant; he 
 is not bound to make his defense till there is evidence showing his 
 guilt.2o 
 
 § 2291. Not an Aggravation of Damages, When. The filing of a 
 plea of justification in this case does not necessarily aggravate the 
 
 15— Freeman v. Tinsley, 50 111. 26 Ohio St. 2; Riley v. Norton. 
 
 494; McCliiitock v. Crick, 4 la. 453. supra. 
 
 16 — Merk v. Gelzhaenser, 50 Cal. Note. — See Cooley on Torts (3(J 
 
 631; Corbley v. Wilson, 71 111. 209. ed.) 417, 418. for cases cited In 
 
 17 — Barton v. Thompson, 46 la. support of both doctrines, viz., that 
 
 30; Mott v. Dawson, 46 la. 533; it is sufficient to prove a crime in 
 
 Tucker v. Call, 45 Ind. 31. a civil suit of slander or libel by 
 
 Above Iowa cases overruled in a preponderance of the evidence, 
 
 Riley v. Norton, 65 la. 306, 21 N. and contra that it must be proved 
 
 W. 649. In the latter case the beyond a reasonable doubt. 
 
 court holds that such proof need 19 — Harver v. Harver, 78 111. 412. 
 
 only be made by a preponderance Contra, that a plea of justifica- 
 
 of the evidence. tion not proven is evidence of ex- 
 
 18 — Cooley on Torts (3d ed.) 417, press malice, see Coffin v. Brown, 
 
 Elliott V. Van Buren, 33 Mich. 49, 94 Md. 190, 50 Atl. 567, 89 Am. St. 
 
 20 Am. Rep. 668; Blaeser v. Mil- 422, 55 L. R. A. 732. 
 
 wnukpo, etc., .37 Wis. 31. 19 Am. 20— Farnan v. Childs, 66 111. 544. 
 
 Rep. 747; Knowlea v. Scribner, 57 In some states an unsuccessful 
 
 Me. 49.'; Rothschild v. Am. Cent, attempt to justify may be consid- 
 
 Ins. Co., 62 Mo. 356; Burr v. Wll- ered in ag-gravation of damages. 
 
 »on, 22 Minn. 206; Jones v. Graves, See Cooley on Torts (3d ed.) 418, 
 
 *2.^. a.nd cases eited.
 
 § 2292.] SLANDER AND LIBEL. 1489 
 
 damages, even though the juiy find that it has not been proved; pro- 
 vided, the juiy further believe, from the evidence, that defendant 
 filed such plea, believing in good faith that it was true, and that he 
 could prove it.^^ 
 
 § 2292. Repeating Report. If the jury believe, from the evidence, 
 that the defendant is guilty of speaking the slanderous words charged 
 in the declaration, then the fact, if proved, that defendant gave the 
 statement as a report in the neighborhood, and mentioned his author- 
 ity for the statement, would not exonerate him from liabilit}'.-- 
 
 § 2293. Charge of Fornication or Adultery — Effect of Retraction, 
 (a) The court instructs the jury, that words, which, in their common 
 acceptation, amount to a charge of fornication or adultery, if spoken 
 in the presence of others, and not spoken under privileged circum- 
 stances, or for justifiable ends, as explained in these instructions, are 
 slanderous and actionable in themselves^ and the law will imply malice 
 from the mere speaking of such words.^^ 
 
 (b) Now I think this is a good case to submit to twelve men in 
 S. county, to say what damages a plaintiff shall have who has been 
 treated as X. has. Has he been injured, or has the defendant pursued 
 a proper and justifiable course in which to treat a citizen, who is a 
 man of good character, and where the defendant does not set up the 
 truth ? Or has the defendant, while the plaintiff is away, tried to find 
 out what the truth is, and then published the libel with the truth, 
 with the allegation of the wife? Now, you will have this article be- 
 fore you. It is put in the declaration exactly I understand as it was 
 printed, and the first question is: Do you find that to be, as I have 
 suggested, — that paragraph with the whole article, — to be practically 
 a charge of adultei-y ? If it is, and it is not true, — and it is not claimed 
 to be true, — then the plaintiff is entitled to whatever damages you 
 think a man is entitled to, who has a good character, and who is 
 above reproach, who is accused in a public journal like the B. 
 Journal of that crime, and sent out under the circumstances which 
 this was; because you are to take in mitigation, if there is anything 
 in mitigation of it, — you are to take into consideration that the de- 
 fendant had published what was published in N. Y., that the article 
 was not true, so that, when the defendant published this article, it 
 
 had not only the fact that Mrs. but that also denies that 
 
 there was any truth in that accusation. But still the defendant pub- 
 lished it with their denial. Now, it is for you to say whether the 
 defendant is justified in doing that, or whether, when the defendant 
 found out both from the plaintiff and his wife, acting sep- 
 
 21 — Thomas v. Dunaway, 30 111. igate damages. Cooley on Torts, 
 
 373. supra. 
 
 Compare with previous section. 23 — Srhmisseur v. Kreilich. 92 111. 
 
 22— Fowler v. Chichester. 26 Ohio 347; Diifresne v. Weise. 46 Wis. 290, 
 
 St. 9; Blocker v. Schoff, 83 la. 265, 1 N. W. 59; Boldt v. Budwig, 19 
 
 48 N. W. 1079; Cooley on Torts (M Neb. 739, 28 N. W, 280 (282). 
 ed.) 458, and cases cited. May mit- 
 94
 
 1490 FORMS OF INSTRUCTIONS. [§2294. 
 
 arately and from different sources^ that there was not a word of truth 
 in the article, that it was a gross libel, whether the defendant can 
 go on and publish it, and then set up as an excuse that the defendant 
 consulted both ithe plaintiff and his wife, and that they both said that 
 it was not true. And, if you say it is a libel under the rules I have 
 given you, you are to say what the damages are.^* 
 
 § 2294. Charge of Dishonesty. If the jury believe, from the evi- 
 dence, that at or about the time charged in the declaration, the 
 plaintiff was engaged in the business of, etc., and that the defendant, 
 in a conversation with the plaintiff, in the presence and hearing of 
 other persons, within (one year) before the commencement of this 
 suit, said to the plaintiff, ''You are a rascal; you have put your prop- 
 erty out of your hands to cheat your creditors out of their pay," and 
 that this was said with an intent to charge the plaintiff with having 
 fraudulently conveyed his property with intent to defraud his credit- 
 ors, or to hinder or delay them in the collection of their just debts, 
 then the jury should find the defendant guilty, and assess the plaint- 
 iff's damages at what they think is just and right, under the evidence 
 in this case.^^ 
 
 § 2295. Privileged Communications. The jury are instructed that 
 the people of our town and cities have a right to know how their 
 municipal affairs are being conducted, and how the duties of their of- 
 ficers are being performed, and that it is one of the privileges of 
 newspapei's to give the people this information, and that, if the in- 
 formation so given is true, or if the publishers believe it to be true, 
 and have reasonable and probable cause for so believing, the law 
 protects them; that the press must not be muzzled; that the public 
 good requires that it be allowed to speak; and that all which the law 
 requires of its editors and publishers is good faith and an honest 
 belief that their statements are true, and that such belief be founded 
 on reasonable and probable grounds. ^"^ 
 
 § 2296. Definitely Pointing Out Person Libeled, (a) I charge 
 you that, in order for him to recover in this suit, he must prove by 
 evidence, to your satisfaction, that the effect of the article, as it ap- 
 peared in the newspaper, was to point to him, and to no other person 
 by the name of "John Finnegan. " A written or printed publica- 
 tion of a person is libelous on its face, and therefore actionable per se. 
 
 24— Bishop V. Journal N. Co., 168 236; Phillips v. Hoefer, 1 Pa. St. 
 
 Mass. .'{27. 47 N. E. 119 (120). 62; Fltzgerrold v. Redfield, 51 
 
 "Thf! tone of a charge is not a Barb. 484; Orr v. Skofield, 56 Me. 
 
 HL'hjcft of exception, unless the 483. 
 
 (•ff<-ct of the charge is to cause a 26— In an action agninst a news- 
 
 mistrlal or a failure of justice, paper for a libel upon the plain- 
 
 Bffil V. Railway Co., 157 Mass. tiff, who was a public officer and 
 
 411, 32 N. E. 653. We do not falsely charged with cruelty to an 
 
 think that such was the case here, insane pauper, the above instruc- 
 
 The defendant did not contend tlon wns held correct in O'Rourke 
 
 that the charges were true." v. Lewiston D. S. Pub. Co.^ 89 
 
 25— Nelson v. Borchenius, 52 111. Me. 310, 36 Atl. 398 (399).
 
 § 2297.] SLANDER AND LIBEL. 1491 
 
 when it charges him with the commission of a crime, or induces the 
 belief that he has committed a crime, or tends to bring him into pub- 
 lic disgrace, or imputes something disgraceful to him, or throws odium 
 upon him, or induces an ill opinion of him in the community. Such 
 publication is presumed to be both false and malicious. Whether the 
 article complained of relates to the plaintiff, or was calculated to in- 
 jure the plaintiff, is a question for you alone to determine, by the 
 facts and circumstances of this case. If the article related to the 
 plaintiff, and was calculated to injure him in respect to his reputation 
 or standing in the community, then, as to him, it is libelous. 
 
 (b) I charge you that identity of name is evidence of identity of 
 person. If the article related to the plaintiff, and Avas calculated to 
 injure him in respect to his reputation and standing in the com- 
 munity, then as to him it is libelous. 
 
 (c) And right here let me state to you, gentlemen, that you have 
 heard the article which was published by the defendant two days 
 after the libel was published, and, if j-ou believe it was intended as 
 an apology, you may consider it as bearing upon the question of dam- 
 ages. ^^ 
 
 § 2297. Libel— Truth of Words a Defense. The court instructs 
 the jury, that if the defendant has established the truth of the words 
 set out in the fourth count of the declaration herein, by a preponder- 
 ance of evidence, then the plaintiff cannot recover as to such fourth 
 count.2* 
 
 27 — "I have been unable to dis- to be libelous, to have been used 
 
 cover any error in either of these ironically, and as to this count, 
 
 paragraphs as they stand in the appellee properly justified that the 
 
 charge as given." Finnegan v. words were true in the sense im- 
 
 Detroit Free Press, 78 Mich. 659, puted to them. The innuendo, if 
 
 44 N. W. 5S5 (590). properly applied, is a substantial 
 
 28 — Lodge v. Hampton, 116 111. part of the libel charg-ed. Proof, 
 
 App. 414 (420). "By appropriate therefore, of the truth of the mere 
 
 allegation of extrinsic matter and words does not satisfy a plea of 
 
 innuendoes, the fourth count of justification averring the truth of 
 
 the declaration averred some of the words in the sense in.puted 
 
 the words in the article alleged by the innuendo."
 
 CHAPTER LXXX. 
 
 TRESPASS. 
 See Erroneous Instructions, same chapter head, Vol. III. 
 
 TO PERSONAL PROPERTY. 
 
 § 2298. One rightfully in possession 
 may sue for. 
 
 § 2299. Justification— B u r d e n of 
 proof upon defendant. 
 
 § 2300. Ratification of wrongful 
 levy— Refusing to release 
 property taken. 
 
 §2301. Ratification of wrongful 
 distress. 
 
 § 2302. No levy without officer tak- 
 ing possession. 
 
 TO REAL ESTATE. 
 
 § 2303. Trespassers are jointly and 
 severally liable. 
 
 § 2304. Meaning of terms— "Break 
 and enter" — "Force and 
 arms." 
 
 § 2305. One holding title to land and 
 possession of part may 
 recover for trespass. 
 
 § 2306. Where both plaintiff and de- 
 fendant have title to the 
 land. 
 
 § 2307. Proof of title in third per- 
 son no protection to one 
 who has no title against 
 suit for damages. 
 
 § 2308. Trespass upon the posses- 
 sion under rightful title. 
 
 § 2309. Unlawful cutting of timber. 
 
 § 2310. Purchaser at tax sale cut- 
 ting timber. 
 
 § 2311. 
 § 2312. 
 § 2313. 
 § 2314. 
 
 § 2315. 
 § 2316. 
 § 2317. 
 § 2318. 
 
 § 2319. 
 
 Cutting trees for telephone 
 
 system. 
 Entry upon land obtained by 
 
 fraud. 
 Right to eject trespassers by 
 
 force. 
 When defendant liable for 
 
 act of independent contrac- 
 tor. 
 Trespass to land — Writ of 
 
 sequestration. 
 Damages to real property — ■ 
 
 No effort to prevent it. 
 Trespass on sub-let premises 
 
 as trespass against lessor. 
 Adverse claim of title will 
 
 not excuse trespass in face 
 
 of a warning from the 
 
 legal owner. 
 Settlement of disputed fence 
 
 line by arbitration. 
 
 BY ANIMALS. 
 
 lands — No 
 
 in division 
 
 on govern- 
 
 i 2320. Cattle— Adjacent 
 division fence. 
 
 ! 2321. Cattle— Defects 
 
 fence. 
 2322. Cattle— Grazing 
 ment land. 
 
 ! 2323. Cattle on highway with at- 
 tendant not "at large." 
 
 \ 2324. Cattle— Failure to furnish 
 attendant. ^ 
 
 ; 2325. Cattle— Party takmg up 
 must care for. 
 
 TO PERSONAL PROPERTY. 
 
 § 2298. One Rightfully in Possession May Sue For. (a) The 
 court instrufts tlie jury that a trespass to jicrsonal property consists 
 in the unlawful disturbance, by force, of another's possession of such 
 proijcrty, and in order to sustain the action it is only necessary that 
 the plaintiff show that, at the time of the alleged trespass, he was 
 the general owner of the property, and then in the actual possession 
 of it, either by himself, his agent or servant, and, further, that the 
 dffendant unlawfully interfered with the property, either by injuring 
 it, or by taking it and carrying it away without lawful right, and 
 against the will of such owner.^ 
 
 1— Scott V. Bry.son, 74 111. 420; Addison on Torts, 442; Miller v. 
 Clay, 57 Ala. 162. 
 
 1492
 
 §2299.] TRESPASS. 1493 
 
 (b) In order to maintain an action for trespass to personal prop- 
 erty, it is sufficient if the evidence shows that the plaintiff had what 
 is called a special property therein, together with the actual pos- 
 session of the property, and a right to such possession; and that the 
 defendant unlawfully, and without right, interfered with or dis- 
 turbed such possession, either by injuring the property or by taking 
 it and carrying it away, against the will of the person so in posses- 
 sion.2 
 
 (c) That a person who is in the actual, peaceable and exclusive 
 possession of personal property, without showing any other right, has 
 a sufficient title in the propertj' to maintain trespass against one who, 
 with force, intermeddles with such possession without showing any 
 right or title to the property, or to the possession thereof.^ 
 
 § 2299. Justification — Burden of Proof Upon Defendant. The law 
 is, that when the rights of private property are invaded by one whose 
 acts would constitute a trespass, unless he is protected by legal au- 
 thority, then it is incumbent upon such person to show, by a pre- 
 ponderance of evidence, that he was justified, by legal authority, to do 
 the acts complained of; and if he is unable to do this, he must 
 be regarded as a trespasser. It is not enough that such a person 
 intended to perform an official duty, but authority of law for the 
 act complained of must exist, or he will be a trespasser.* 
 
 § 2300. Ratification of Wrongful Levy — Refusing to Release Prop- 
 erty Taken, (a) If the jury believe, from the evidence, under the in- 
 struction of the court, that defendant A. B. (the officer), is guilty of 
 a wrongful taking of the property of the plaintiff under the execution 
 introduced in evidence, and that after the property had been so taken 
 the plaintiff went to the defendant C. B. (plaintiff in execution), and 
 requested him to consent to a release of the property by the officer, 
 and that he refused to so consent, then the jury maj^ find the said 
 defendants both guilty, although the defendant C. D. was not present 
 at the time of the taking, and did not direct the officer to levy on the 
 particular property in question.^ 
 
 (b) The court instructs the jury, as a matter of law, that if an 
 act of trespass is committed in the name of another person, or pi'o- 
 fessedly in the interest of such other person, and the latter subse- 
 quently ratifies the act by claiming any benefit under it, he would be 
 bound by the act to the same extent as if he had expressly authorized 
 it before it was done.® 
 
 § 2301. Ratification of Wrongful Distress. The court instructs 
 the juiy tliat if an officer, in executing a distress warrant, seizes the 
 property of a stranger, and the landlord ratifies the act, and retains 
 
 2— Miller v. Kirby, 74 111. 242; 4— Lindblom v. Ramsey, 75 111. 
 
 Cooley on Torts (3d ed.) 840. 246. 
 
 3— Cooley on Torts (3d ed.) S41; 5— Cook v. Hopper. 23 Mich. 511. 
 
 Scott v. Bryson, 74 111. 420; Miller 6— Smith v. Lozo, 42 Mich. 6, 3 N. 
 
 V. Kirby, 74 111. 242. W. 227.
 
 1494 FORMS OP INSTRUCTIONS. [§2302. 
 
 tbo property, after knowledge of the facts, he will thereby render 
 himself liable for the trespass committed by the offieer.'^ 
 
 § 2302. No Levy Without Officer Taking Possession, (a) It is 
 not a sufficient levy of an execution on personal property, as against 
 third persons, for an officer to indorse a levy, with an inventory of 
 the property, on the execution, in the presence of the judgment debt- 
 or, while the property is before them; the officer must also take the 
 property into his possession.^ 
 
 (b) 'The court further instructs the jury that, if property seized, 
 under an execution, is permitted to remain with the defendant for an 
 unreasonable time after the levy, with the consent of the creditor, 
 the levy will be deemed fraudulent and void as against a subsequent 
 execution.^ 
 
 (c) The law will not sustain a levy which is only colorable, and 
 designed to shield the property from the claims of other parties — and, 
 in this case, though the jury may believe that the execution in ques- 
 tion was levied on the property in controversy at the time indorsed 
 on the execution, still, if the juiy further believe, from the evidence, 
 that such levy was not made in good faith, and with a bona fide in- 
 tention of satisfying the said execution out of said property, but that, 
 with the knowledge and consent of the plaintiffs in the execution, the 
 said levy was made for the purpose of covering up said property, and 
 keeping it for the benefit of the said (defendant in execution), then 
 such levy was absolutely void, as against the other creditors of the 
 
 said , and the juiy should so find, in determining the rights of 
 
 the parties in this suit.^" 
 
 TO REAL ESTATE. 
 
 § 2303. Trespassers Are Jointly and Severally Liable, (a) The 
 court instructs the jury that, in an action of trespass, if the juiy be- 
 lieve, from the evidence, that a trespass has been committed, as al- 
 leged in the declaration, and that there was more than one wrong- 
 doer engaged in the trespass, then such wrong-doers are jointly and 
 severally liable, and the plaintiff is under no obligations to sue all 
 who are engaged in the trespass — he may, at his election, proceed 
 against any one or more of such wrong-doers.^^ 
 
 (b) The court instructs the jury, as a matter of law, that in an 
 action of trespass, if it appears that a trespass has been committed, 
 all who encouraged, advised or assisted in the act of trespass, are 
 equally guilty, whether tliey wore present and took part in the act 
 or not. ^2 
 
 7— Becker v. Du Pree, i:> Til. 167. 10— Murphy v. Swadener, 33 Ohio 
 
 8— Havely v. Lowry. 30 111. 446. St. 85. 
 
 9— Davidson v. Waldron, 31 111. 11— Ously v. Hardin, 23 111. 403. 
 
 120. 12 — Barnes v. Ennenga, 53 la.
 
 § 2304.] TRESPASS. 1495 
 
 § 2304. Meaning of Terms : Break and Enter — Force and Arms. 
 
 (a) Now, gentlemen, do not be misled by the question of breaking 
 and entering. Entering is simply the lifting of a rail ; simply a 
 lifting of anything, that is erected to inclose the premises, an entry 
 through anything put there to keep jDersons out, as breaking the 
 glass, like breaking into a house. You raise a window that is 
 closed; that is breaking. That is what the law means by breaking. 
 If he had no pennission to remove the fence, and go upon the prem- 
 ises, and dumi? dirt, then damages would lie for the damages he 
 caused that party; but if he had permission, if he had authority 
 to go there, no matter how it was granted to him, then he had a 
 right to go, and he cannot be held for what he did, unless, as I have 
 before said, he went beyond the line where he was permitted to 
 go.i3 
 
 (b) ''Force and arms" does not mean actual force or dangerous 
 weapons, but that if the defendants or their ser\^ants entered upon 
 plaintiff's lands contrary to his expressed will, and if they knew 
 it was contrary to his expressed will, then the entry would be ''with 
 force and arms", and that it was not necessary that they should 
 have actually broken into any enclosure or through any fence. ^* 
 
 § 2305. One Holding Title to Land and Possession of Part, May 
 Recover for Trespass, (a) If the juiy find that plaintiff has a deed 
 which covers the land in dispute, and that she is living on a part 
 of such land, then her possession extends to all the land covered by 
 her deed, and she has a right of action against any one for damages 
 who trespasses upon such land. 
 
 (b) "Where one who has no title enters upon land in possession of 
 another, who has color of title to the same, and against the will of 
 such person cuts down and removes the trees and timbers growing 
 thereon, such person is liable in damages to the one in possession 
 under color of title.^^ 
 
 § 2306. Where Both Plaintiff and Defendant Have Title to the 
 Land. If, however, the plaintiff has a title, and the defendant has 
 a title, both have titles to the same land, then the party having the 
 oldest title would be entitled to it; that is, the party whose title is 
 the older; that is, if both titles cover this land in dispute. If the 
 plaintiff's title covers it, and the defendant's title covers the land 
 in dispute, both titles cover it, then the oldest title would prevail, 
 and whichever one had the oldest title would be entitled to the 
 possession of the land. But if neither one of them have it, if the 
 titles of neither party cover this land, then your verdict should be 
 for the defendant. If you don't think, under the testimony in the 
 
 497, 5 N. W. 597. See Boswell v. 190, 68 Pac. 206 (208), 98 Am. St. 
 
 Gates, 56 la. 143, 8 N. W. 809. 977. 
 
 13— McCusker v. Mitchell, 20 R. 15— Connor v. Johnson, 59 S. C. 
 
 I. 13, 36 Atl. 1123 (1124). 115, 37 S. E. 240 (244). 
 
 14— CosgrifE v. Miller, 10 Wyo.
 
 1496 FORMS OF INSTRUCTIONS. [§ 2307. 
 
 case, that the title of tlie plaintiff or the title of the defendant, either 
 one, covers this land, but it belongs to somebody else, and is in 
 the possession of somebody else, then your verdict should be for the 
 defendant, because, before the i^laintiff can recover, she must satisfy 
 you, by the testimony in the case, that she was in possession of 
 this land, and entitled to be in possession of it by paper title or 
 color of title when the trespass was made 'by the defendant, if any 
 trespass was made by him at all. If the defendant's title covers 
 the land, if you believe under the testimony that the defendant's 
 title covers the land, and the plaintiff's title does not, then, of course, 
 your verdict would be for the defendant.^® 
 
 § 2307. Proof of Title in Third Person No Protection to One Who 
 Has No Title Against Suit For Damages, (a) Proof of title in 
 a third person will not protect one who lias no title against a suit 
 for damages on account of a trespass committed on land which is 
 in possession of another under color of title. ^'^ 
 
 (b) If the jury believe, from the evidence, that the jilaintiff was 
 in the open, notorious, exclusive and adverse possession of the land 
 in controversy at and before the time the same was fenced by the 
 defendant and that the defendant acquired possession of the said 
 land wrongfully and without the permission of the plaintiff, and 
 ousted the plaintiff from said land, then the court instructs you 
 that the defendant cannot defeat the plaintiff's recovery in this 
 action by showing an outstanding title in a stranger, with which 
 outstanding title the defendant has in no way connected himself.^^ 
 
 § 2308. Trespass Upon the Possession Under Rightful Title. The 
 court instructs the jury that it would not be legal cause, or good 
 excuse, for the defendants to show that they had the title to the 
 property, or that they owned it, provided B. and G. were in the 
 possession. The jury are instructed not to consider the question of 
 the title of the property, as a justification to the defendants, pro- 
 vided B. and G. had the possession.^* 
 
 16— Connor v. Johnson, supra. send, 28 Cal. 219; Enfield v. Permit, 
 
 17— Connor v. Johnson, supra. 8 N. H. 512, 31 Am. Dec. 207; Jack- 
 
 18— Sullivan v. Eddy, 164 111. 391 son v. Schauber, 7 Cow. 187; Fisher 
 
 (396), 45 N. E. 837. v. Philadelphia, 75 Pa. St. 392; 
 
 "We think the instruction lays Page v. Campbell, 25 Wis. 618; 
 
 down a correct rule of law. The Hardin v. Forsythe, 99 111. 312." 
 
 substance of the charge is that a 19 — Withers v. State, 117 Ala. 89, 
 
 mere intruder upon the notorious, 23 So. 147 (148). 
 
 adverse possession of another can- The court said that "the charge 
 not protect his trespass and in- given for the state correctly stated 
 trusion under an outstanding title the law. This is not a proceeding 
 In a stranger. This is a correct for the trial of title to real prop- 
 pririflplf, and one that is fully sus- erty. If B. and G. were in posses- 
 taincd by the authorities. See sion, as the evidence shows they 
 Jackson v. Harder, 4 Johns. 211, were, defendants had no right to 
 4 Am. Dec. 262; Japscott v. Cobb, trespass upon the possession, al- 
 ii Gratt. 172; Williams v. Sweet- though in point of act they may 
 land, 10 Iowa 51; Carlton v. Town- have been entitled to the posses-
 
 § 2309.] TRESPASS. 1497 
 
 § 2309. Unlawful Cutting of Timber, (a) The court instructs 
 you that before the jury can find for the plaintiff, they must be 
 satisfied from the evidence that the trees and saplings alleged to 
 have been cut were cut before the commencement of this suit.^*' 
 
 (b) If you are reasonably satisfied, from all the evidence, that 
 the defendant cut or caused to be cut and removed from the land 
 described in the complaint, the trees, and can reasonably ascertain 
 from the evidence the number and value of the trees so cut and 
 removed by the defendant, you should find for the plaintiffs.-^ 
 
 (c) That if you believe from the evidence that the defendant 
 willfully and knowingly, and without the consent of the plaintiff, 
 after the — day of — , — , and prior to the commencement of this 
 suit, cut down pine trees on the — in — county, that the plaintiff 
 was then the owner thereof, then the juiy must find for the plaintiff' 
 as to that portion of the land mentioned in the complaint, and 
 
 assess plaintiff's damages at dollars for each pine tree or 
 
 sapling the evidence shows that defendant had so cut on said land.^^ 
 
 (d) If the plaintiff did consent that the defendant might go 
 across plaintiff's land for the purpose of hauling timber or logs, 
 this, within itself, did not authoi'ize the defendant to go upon the 
 lands and cut down trees or saplings. 
 
 (e) If the plaintiff owned the lands described in the complaint, 
 and if there was a road or roads across the land or a portion of it, 
 and the plaintiff consented that the defendant might go across his 
 land, this was not a consent of the plaintiff that the defendant 
 might enter upon the land and cut down trees or saplings.^^ 
 
 (f) You are instructed that if you believe and find from the evi- 
 dence that at the time the. timber was so taken the defendants, by 
 themselves or their tenants, were in the actual possession of the said* 
 lands, claiming and exercising the rights of ownership over the same, 
 your verdict should be for the defendants.-* 
 
 § 2310. Purchaser at Tax Sale Cutting Timber, (a) If the jury 
 believe from the evidence that the defendants, W. M. & M., bought 
 at a tax sale made by the tax collector of G. County, Alabama, in 
 
 , , the land described in the complaint, and at the sale 
 
 they received from the tax collector a certificate of purchase in the 
 usual form, and under the certificate they (the defendants), in good 
 faith, believing they had the legal right to do so, went into the actual 
 possession of the land, and that they remained in possession of the 
 land, and that they were at the time they cut the timber in the actual 
 
 sion as the holders of the title. 22— Hamilton v. Griffin, 123 Ala. 
 
 Lawsoii v. State, 100 Ala. 7, 14 So. 600, 26 So. 243 (244). 
 
 870." 23— Jernigan v. Clark, 134 Ala. 
 
 20— Postal Tel. C. Co. v. Brant- 313, 32 So. 686. 
 
 ley, 107 Ala. 683, 18 So. 321 (322). 24— Holliday-Klotz L. & L. Co. 
 
 21 — Lowery v. Rowland, 104 Ala. v. Markham, 96 Mo. App. 51, 75 S 
 
 420, 16 So. 88 (91). W. 1121.
 
 1498 FORMS OF INSTRUCTIONS. [§ 2311. 
 
 possession of tlie land, undei* the purchase at tax sale, and were in 
 good faith claiming and asserting title to the land, the jury should 
 find for the defendants. 
 
 (b) If, at the time the trees were cut, the defendants Avere in 
 possession of the land under color and claim of title, and were 
 bona fide and in good faith claiming and asserting title to the land, 
 and were in open, adverse possession of the land, under color and 
 claim of the title, the jury should find for the defendants. 
 
 (c) The court charges the jury that if, at the time of the alleged 
 cutting of the trees in controversy, the defendants were in actual, 
 notorious, adverse possession of land upon which the trees grew, 
 claiming it, bona fide, as their own, and asserting title thereto under 
 tax title, then they should find for the defendants. ^^ 
 
 § 2311. Cutting Trees for Telephone System. If you believe from 
 the preponderance of the credible testimony that the defendant's 
 agents, servants or employes did not cut any more limbs and branches 
 from the trees of plaintiff's premises than was necessary for a 
 pniper construction and good operation of the telephone system, 
 which defendant was constructing, and if you believe that such 
 agents, servants or employes exercised their best judgment in de- 
 termining what branches and limbs should be cut of said trees, and 
 acted in the matter with a due regard for the right of the plaintiff, 
 and with an honest purpose and desire of doing as small amount of 
 damage as was possible, and that in doing such cutting they acted 
 with reasonable prudence and a careful observation of the condi- 
 tion of affairs existing at the place where the trees were cut, and 
 that they did not wantonly or without any reasonable excuse cut 
 off or trim the branches and limbs of the trees in question, then your 
 verdict should be for the defendant.-® 
 
 § 2312. Entry Upon Land Obtained by Fraud. And in this ease, 
 if the jury believe, from the evidence, that the said A. B., by 
 preconcert with the other defendants, and by false pretenses or by 
 any subterfuge, obtained an entrance into the dwelling-house of the 
 plaintiff, and after such entry, contrary to the express command, or 
 against the known wishes of the plaintiff's (wife), unbolted and 
 opened the door of said house for the purpose of allowing the other 
 defendants to enter, and that they did then and there enter, then 
 the entry of all the defendants was a trespass, and the jury should 
 find the defendants guilty.-^ 
 
 § 2313. Right to Eject Trespassers by Force. If you find from 
 the evidence tluit the two Ps were trespassers as herein defined, upon 
 the leased i)reiiiises, tlien tlic defendant would have the right to order 
 
 25— White v. Farris, 124 Ala. 461, of which contained correct leg-al 
 27^ Ho. 2r,9 (260). propositions." 
 
 "We think the court erred in re- 26— Meyer v. Standard Tel Co 
 fusing above written charges, each 122 Iowa 514, 98 N. W. 300. 
 
 27— Kimball v. Custer, 73 111. 389.
 
 § 2314.] TRESPASS. 1499 
 
 the Ps to leave the premises, and if after being so ordered, they re- 
 fused to leave, or did not leave, then the defendant would have the 
 right to eject them from the premises, provided he should use no more 
 force than was reasonably necessary therefor; but the defendant 
 would not have the right to arm himself with a deadly "weapon for 
 that purpose, nor would he have the right to use a deadly weapon for 
 that purpose. 2* 
 
 § 2314. When Defendant Liable for Act of Independent Con- 
 tractor, (a) The jury are instructed that if they believe from the 
 evidence that the defendant let a contract to one A., for the pulling 
 down of certain buildings on W. Avenue, owned by the said de- 
 fendant, and if they believe from the evidence that the natural and 
 necessary consequences of the carrying out of said contract accord- 
 ing to its terms would be to damage and injure the property of the 
 plaintiffs, which property you may find from the evidence the plain- 
 tiffs, at that time, lawfully had in one of said buildings, then and 
 in that case the fact that the defendant let the work by an inde- 
 pendent contract can not release him from liability. 
 
 (b) If the juiy believe from the evidence that the defendant told 
 
 , the contractor, that he must not interfere with the 
 
 buildings of the plaintiffs, and if they further believe from the evi- 
 dence that the construction of the building occupied by the plain- 
 tiffs and of the adjoining buildings was such as to permit the 
 adjoining buildings to be torn down without injuring the building 
 occupied by plaintiffs, if such work should be done in a proper and 
 careful manner, then the juiy should find a verdict for the defend- 
 ant.-» 
 
 § 2315. Trespass to Land — Writ of Sequestration. The burden is 
 on the plaintiff to establish his right to possession of the premises 
 sued for at the time of the filing of this suit, by a preponderance of 
 evidence, and the burden is on the defendant to establish his in- 
 juiy by reason of the levy of the writ of sequestration by a pre- 
 ponderance of the evidence.^'' 
 
 28— State v. Mitchell, 130 Iowa 29— Florsheim v. Dullagha.n, 58 
 
 697, 107 N. W. 804 (806). 111. App. 593 (595). 
 
 "The language of the instruc- 30 — Freeman v. Slay, — Tex. Civ. 
 tion is not criticised, but it is said App. — , 88 S. W. 404-5. 
 that it is erroneous, because it does "This charge is objectionable in 
 not state that the defendant 'would that its last clause seems rather 
 have the right to use a deadly restrictive, and possibly had a 
 weapon in case the Parkers made tendency to mislead the jury as to 
 an assault upon him.' It is im- the extent to which the burden of 
 practicable to give all of the law proof was on appellee, but this is 
 governing a case in one paragraph not the precise objection made to 
 of the charge, as we have often the charge. It was correct as far 
 said, and in other instructions the as it went, and appellant cannot 
 court very carefully and fully an- avail himself of such error of 
 nounced the law governing the omission without having re- 
 question of .self-defense and as quested a charge to supply it 
 carefully applied it to the peculiar which might have been given." 
 ^acts before the jury."
 
 1500 FORMS OF INSTRUCTIONS. [§ 2316. 
 
 § 2316. Damages to Real Property — No Effort to Prevent It. The 
 jury are instructed that a person can in no case recover for damage 
 to Ms business or property which he permits to go on, knowing that 
 it is going on, and without making every reasonable effort and tak- 
 ing active steps to prevent it, or have it stopped. If you believe, 
 from the evidence, that plaintiffs knew their premises were being 
 damaged, and that they permitted the damage to continue when, by 
 their own efforts, the damage might have been stopped, or prevented, 
 then the defendants are not liable for the damage so caused, and 
 plaintiffs cannot recover in this suit for any such damage. ^^ 
 
 § 2317. Trespass on Sub-let Premises as Trespass Against Lessor. 
 If you believe that the defendant at the time of the alleged trespass, 
 was in the yard of L. S., and if you believe beyond a reasonable 
 doubt from the evidence, that L. S. occupied the yard as a servant 
 merely of F., and under him, who held the plantation under a lease 
 from other parties, then he was on the premises of F., and is guilty 
 as charged in the indictment, the other elements above defined being 
 established beyond a reasonable doubt. ^- 
 
 § 2318. Adverse Claim of Title Will Not Excuse Trespass in Face 
 of a Warning From the Legal Owner. The court instructs the jury 
 that tliere is no actual occupancy of land, or such possession as the 
 law determines not to be adverse, the law casts the possession witii 
 the legal title. And in the face of direct and positive warning from 
 the legal owner, who is in possession, no adverse claim or color of title 
 will excuse trespass, or the severance and carrying away of anything 
 from the freehold.-''^ 
 
 § 2319. Settlement of Disputed Fence Line by Arbitration. If 
 the juiy believe beyond a reasonable doubt from the evidence that 
 there was a dispute between G. and the defendant as to where the 
 line between them was, and that they agreed to leave it to arbi- 
 trators, and the arbitrators established the C. line as the true line, 
 and that in accordance with the decision the defendant moved his 
 fence to his side of the line, and G. built his fence on his side of the 
 line, then each party owned to the C. line; and if they further so 
 believe that the defendant tore down G.'s said fence and left it down 
 in Shelby county, and within twelve months before the beginning of 
 this prosecution, they should find the defendant guilty.^* 
 
 BY ANIMALS. 
 
 § 2320. Cattle— Adjacent Lands — No Division Fence, (a) When 
 two or more persons have adjoining lands enclosed in one common 
 field by outside fences, and have no division fence, then, if there is 
 
 31— Hartford Dep. Co. v. Calkins, 33— Boykin v. State, 40 Fla. 484, 
 
 ISfi 111. 104 (106), 57 N. E. 863. 24 So. 141 (144). 
 
 32— M;i(]flnx v. State, 122 Ala. 110, 34— Shaw v. State, 125 Ala. 80, 
 
 26 So. 305 (306). 28 So. 390 (391).
 
 § 2321.] TRESPASS. 1501 
 
 no agreement or arrangement between them to the contrary, each 
 person is bound to keep his own stock upon his own land, and if he 
 does not do so, and injury results therefrom to an adjoining owner, 
 he will be liable in trespass therefor.^^ 
 
 ('b) You are further instructed that if you believe from the evi- 
 dence that plaintiff sold defendant certain feed stuff to be fed de- 
 fendant's cattle in a feed lot on plaintiff' 's premises, to be fenced 
 off by plaintiff from the remainder of the premises with a fence 
 sufficient to prevent defendant's cattle from breaking over into the 
 other parts of said premises, and plaintiff failed to construct such 
 fence as agreed, then, notwithstanding the fact that defendant's 
 cattle did break over into the other parts of plaintiff's premises and 
 eat or destroy the com in question you must nevertheless return a 
 verdict for the defendant, unless you believe from the evidence that 
 the plaintiff or his agent turned his cattle into the lot where plaintiff 
 was keeping his fodder in shock.^^ 
 
 § 2321. Cattle— Defects in Division Fence, (a) The law of this 
 state, requiring the owners of adjoining lands that are enclosed to 
 each build and maintain his proportion of the division fence, is in- 
 tended exclusively for the beneht of said adjoining owners; and in 
 this case, if the juiy believe, from the evidence, that the cattle of 
 the defendant broke into, or went upon the lands of one A. B., ad- 
 joining the lands of the plaintiff, and from thence came in upon the 
 lands of the plaintiff, and injured the crops there growing, then 
 the defendant is liable for such injury, whether the fence between 
 the plaintiff's land and that of the said A. B. was a good and suffi- 
 cient fence or not.^^ 
 
 (b) If the jury believe, from the evidence, that at the time in 
 question, there was a line fence between the lands of plaintiff and 
 defendant, that a portion of said fence was owned by each of the 
 parties, then each was bound to keep in repair his own portion of 
 the fence; and, if the juiy further believe, from the evidence, that 
 the plaintiff did not keep his portion in good and sufheient repair, 
 and that by reason of such insufficiency, the animals in question 
 came upon the plaintiff's land, and committed the trespasses com- 
 plained of, then the defendant is not liable for any of the injuries 
 occasioned by said stock.^^ 
 
 (c) If the jury believe, from the evidence, that the division fence 
 in question, befoi'e the time of the alleged trespasses had been di- 
 vided between the adjoining owners by agreement, and the portion 
 
 35 — 1 Addi. on Torts, § 379; Brad- rence v. Combs, 37 N. H. 331, 72 
 
 bury v. Gilford, 53 Me. 99, 87 Am. Am. Dec. 332; Lord v. Wormwood, 
 
 Dec. 535; Aylesworth v. Herring- 29 Me. 282; Lyons v. Merrick, 105 
 
 ton, 17 Mich. 417; CosgrlfE v. Miller, Mass. 71; Cook v. Morea 33 Ind 
 
 10 Wyo. 190, 68 Pac. 206 (208), 98 497; Aylesworth v. Herrington 17 
 
 Am. St. 977. Mich. 417; McManus v. Finan 4 
 
 36— Ward v. Bass, 4 Ind. Ter. la. 283. 
 
 291, 69 S. W. 879 (881). 38— Scott v. Buck, 85 111. 334 
 
 37— Cooley on Torts, 339; Law-
 
 1502 FORMS OF INSTRUCTIONS. [§2322. 
 
 of the fence to be kept in repair by each had been assigned to him, 
 so that each had a designated portion of the fence to build and 
 keep in repair, then it was the duty of the defendant to keep up 
 such a fence on his portion of the line, as would turn his own stock, 
 at all events. And, if the jury further believe, from the evidence, 
 that the defendant did not do so, and that his stock got upon the 
 plaintiff's land, as charged in the declaration, through that portion 
 of the fence which the defendant was bound to build and repair, 
 and then injured the plaintiff's crops, then the jury should find for 
 the plaintiff.^^ 
 
 § 2322. Cattle — Grazing on Government Land, (a) The court 
 instructs the jury that in this country 'there is no such thing as a 
 right of common. The government of the United States has per- 
 mitted and does still permit citizens, owners of stock, to graze their 
 herds upon its unoccupied public domain ; ibut there is no right 
 conferred upon those who do so, that the government cannot rescind 
 at any time, and whenever it parts with its title to any of its public 
 domain, it gives to the parties who may acquire any such lands, the 
 right to enjoy them without any rights reserved to others to graze 
 thereon with their flocks and herds, notwithstanding that for some 
 time prior, •citizens may have grazed their flocks and herds thereon 
 without molestation or refusal on the part of the government. It 
 is the duty of all persons to take notice of the stones and marks 
 of the government survey, and there was no necessity for plaintiff 
 to place any other or different marks, monuments or designations 
 on his lands. 
 
 (b) The court instructs the jury that if they find from the evi- 
 dence that the defendants after receiving the notice or notices from 
 the plaintiff, which have been read in evidence, drove or caused to 
 be driven their sheep upon the lands of plaintiff mentioned in the 
 petition and surrounding lands, without regard for the ownership 
 of said lands, and that the defendants had placed an employe or em- 
 ployes of theirs, or herders, in charge of such sheep, who could and 
 was to keep such sheep together in the flock or herd, and who was 
 to have a general control over such sheep, and that such herder or 
 employe did remain with such sheep, and did exercise a general con- 
 trol over them, and was with them on any of the plaintiff's lands 
 named in the petition at the time or times the said sheep were 
 grazing on such lands, or were regularly bedded or kept upon the 
 same with the permission of such herder, and in pursuance of the 
 intention of the defendants to have their sheep grazed and herded 
 indiscriminately on the lands of plaintiff as well as other lands in 
 that vicinity, then the jury must find for the plaintiff. 
 
 (c) The court instructs the jury that, after having received notice 
 that the lands mentioned in the petition were leased l)v tlie plain- 
 tiff, it was the duty of the defendants to ascertain where these lands 
 
 39— Osborn v. Adams, 70 111. 281.
 
 §2323.] TRESPASS. 1503 
 
 were, and to prevent their sheep being driven thereon and depas- 
 turing the same.'*" 
 
 § 2323. Cattle on Highway with Attendant Not "At Large." The 
 court instructs the jury that the words "at large" as used in the 
 statutes of this state, making it unlawful for any animal of the 
 species of horse, mule, cattle, sheep, goat, swine, or goose to run at 
 large, means without restraint or confinement as to such animals. 
 And in this case if the jury believe, from the evidence, that the cows 
 of the defendant were upon the highway, and while their move- 
 ments were being controlled by a person or persons in charge of 
 said cows, then you are instructed that the cows of the defendant 
 were not at large under the law of this state, and the jury are in- 
 structed to find the defendant not guilty.*^ 
 
 § 2324. Cattle — Failure to Furnish Attendant. You are further 
 instructed that if you believe from the evidence that plaintiff sold de- 
 fendant certain feed stuff for his cattle and agi-eed that they should 
 be fed on plaintiff's premises in a feed lot to be fenced off from the 
 remainder of the place by plaintiff with a 'three-wire fence, and that 
 defendant agreed that he would furnish a man to help hold cattle 
 in said feed lot; and if you further find that the plaintiff constructed 
 in a good and workmanlike manner a substantial, three-wire fence, 
 sufficient to turn ordinary three year old steers, and defendant failed 
 to furnish a man as agreed, or that the man so furnished failed to 
 perform his duties as agreed, and that defendant's cattle were not 
 ordinaiy three year old steers, but bad and breachy cattle, and by 
 reason of the defendant's failure to carry out his part of the con- 
 tract, and the bad and breachy character of his cattle, they broke 
 over from said feed lot into other parts of plaintiff's premises, and 
 destroyed the corn and fodder of plaintiff, then you should find for 
 the plaintiff.*- 
 
 § 2325. Cattle — Party Taking Up, Must Care For. You are in- 
 structed that where stock of any kind is taken up for trespass the 
 owner thereof is not required to look after, feed, water or care for 
 the same; and, if any portion thereof are milch cows, the owner is 
 not required to milk the same, but is justified in leaving the feeding, 
 watering and the caring of such stock and the milking of such cows 
 to the party taking up the same. And you are instructed that in 
 this case the plaintiff was under no obligations to feed, water or care 
 for the stock or to milk her cows while in the possession of the de- 
 fendant.*^ 
 
 40— Cosgriff v. Miller, 10 "Wyo. was correct. The herd law (chap- 
 
 190, 68 Pac. 206 (208), 98 Am. St. 977. ter 2, art. 3, Comp. St. Neb.) gives 
 
 41 — Morgan v. People, 103 111. 257 to the owner of cultivated lands a 
 
 (259). Citing Bertwhistle v. Good- lien for hi.s damages upon animals 
 
 rich. 53 Mich. 457, 19 N. W. 143; trespassing thereon, and authoriz- 
 
 Parker v. Jones, 1 Allen (83 Mass.) es him to take the stock into his 
 
 270. possession." 
 
 42— "Ward v. Bass, 4 Ind. Ter. 291, Richardson v. Halstead, 44 Neb. 
 
 69 S. W. 879 (881). 606, 62 N. W. 1077. 
 
 43 — "We think the Instruction
 
 CHAPTER LXXXI. 
 
 TROVER. 
 
 See Erroneous Instructions, same chapter head, Vol. Ill, 
 
 § 2326. Plaintiff must prove general 
 or special ownership. 
 
 § 2327. Maintainable by rightful 
 possessor of property. 
 
 § 2328. Plaintiff must prove right to 
 immediate possession — Pos- 
 session of title. 
 
 § 2329. Not maintainable by servant 
 or agent. 
 
 § 2330. When maintainable by buyer 
 against seller. 
 
 § 2331. Against vendor who has re- 
 sold the property. 
 
 § 2332. Plaintiff must prove conver- 
 sion — What constitutes. 
 
 S 2333. Conversion — ^Wrongful intent 
 must be proven. 
 
 § 2334. By bailee of property. 
 
 § 2335. Conversion — Property wrong- 
 fully taken and consumed. 
 
 § 2336. Defendant rightfully in pos- 
 session accidentally losing 
 property before demand. 
 
 § 2337. Conversion by warehouse- 
 man. 
 
 § 2338. Demand — No particular form 
 necessary — May be verbal. 
 
 §2339. Demand and refusal— Evi- 
 dence of conversion. 
 
 § 2340. Demand by agent — ^Evidence 
 ■of agency. 
 
 § 2341. Demand not necessary where 
 defendant converted the 
 property. 
 
 § 2342. Tender— Effect same as pay- 
 ment — Not good if condi- 
 tional. 
 
 § 2343. Tender— Waiver of produc- 
 tion of money. 
 
 § 2344. Burden of proof. 
 
 § 2345. Alleged conversion of saw- 
 mill machinery — Series. 
 
 § 2326. Plaintiff Must Prove General or Special Ownership, (a) 
 
 That althoug-h tlie law is, that to entitle the plaintiff to recover in 
 this form of action^ he must show that at the time of the alleged 
 conversion he was the general owner of the property, and entitled 
 to the immediate possession, or that he had a special right or in- 
 terest in the property, with an immediate right of possession, yet, 
 in this case, if you find, from the evidence, that 'the general owner- 
 ship of the property was in one A. B., but that the plaintiff had 
 the actual possession, charge and conti'ol of the property at the time 
 of the alleged conversion, not as the agent or servant of the said A. 
 B., then the plaintiff had such a property in the (animal) as will en- 
 able him to recover in this suit; provided, you find the defendant 
 guilty of the wrongful conversion of the property, as charged in the 
 declaration.^ 
 
 (b) The court instructs the jury, that this is what is known in 
 law as an action of trover, or trover and conversion, and, to entitle 
 the plaintiff to recover, the jury must believe, from the evidence, 
 
 1— Cooley on Torts (3d ed.) 848; 
 Stephenson v. Little, 10 Mich. 433; 
 Owens v. Weedman, 82 111. 409; 
 
 Dudley v. Abner, 52 Ala. 
 Staples V. Smith, 48 Me. 470. 
 
 572; 
 
 1504
 
 § 2327.] TROVER. 1505 
 
 that the plaintiff was the absolute owner of the property in question, 
 or else that he had some special interest therein, which entitled him 
 to the possession of the property at the time of the alleged con- 
 version.^ 
 
 (c) The jury are instructed, that to entitle the plaintiff to recover 
 under the issues in this case, it is only necessary that he should 
 prove, by a preponderance of the evidence, that he was the owner of 
 the property in question, and entitled to the possession of the same 
 when this suit was commenced, and that it had been wi'ongfully 
 taken from his possession by the defendant, or that it was then 
 wrongfully detained by him.^ 
 
 § 2327. Maintainable by Rightful Possessor of Property, (a) 
 That when a person is in the rightful and peaceful possession of 
 property, and a stranger, or person not the owner, wrongfully takes 
 it from him, and converts it to the taker's own use, then the per- 
 son in possession can recover the full value of the property in this 
 form of action for the wrong done — his possession being sufficient 
 evidence of title in him against a wrong-doer, or one showing no 
 right or title to the property.* 
 
 (b) If the juiy believe, from the evidence, that the (animal) in 
 question was not the property of the defendant, but was the property 
 of one A. B., and that the said A. B. had placed the same in the 
 possession, and in the care and custody, and under the control, of 
 the plaintiff, until he should call for the same, and that the plain- 
 tiff, at the time of the alleged conversion, was entitled to the pos- 
 session of the (animal) then the plaintiff had such a property in it 
 as will enable him to sustain this action; provided, the jury further 
 find, from the evidence, that the defendant wrongfully took said 
 property and converted the same to his own use, as charged in plain- 
 tiff's declaration.^ 
 
 § 2328. Plaintiff Must Prove Right to Immediate Possession — Pos- 
 session Evidence of Title, (a) In order to sustain this action, the 
 plaintiff must show, by a preponderance of evidence, that at the 
 time he demanded the (animal) from the defendant, if such demand 
 has been proved, he was the owner of the property, and entitled to 
 the immediate possession thereof, or that he had some right or in- 
 terest in the same, which entitled him to the possession of it at the 
 time; and if you find, from the evidence, under the instruction of the 
 
 2_Cooley on Torts (3d ed.) 848; 850; 1 Hill, on Torts, 495; Craig v. 
 
 Moore v. Walker, 124 Ala. 199, 26 Gilbreth, 47 Me. 416; Moorman v. 
 
 So. 984. Quick, 20 Ind. 67; Bowen v. Fenner, 
 
 3— Esson V. Tarbell, 9 Cush. 407; 40 Barb. (N. Y.) 383. 
 
 Eggleston v. Mundy, 4 Mich. 295; 5— Cooley on Torts (3d ed.) 848; 
 
 Fl.ntner v. Good. 35 Minn. 395, 29 N. Dungan v. Mutual Benefit Life 
 
 W. 56; Moore v. Walker, 124 Ala. Ins. Co., 38 Md. 242; Atl. Coast Line 
 
 199, 26 So. 984. R. R- Co. v. Baker, 118 Ga. 809, 45 
 
 4— Cooley on Torts (3d ed.) 849, S. E. 673. 
 
 95
 
 1506 FORMS OF INSTRUCTIONS. [§2329. 
 
 com"t, that be has failed to prove either of these things, by a pre- 
 ponderance of evidence, then you should find for the defendant.^ 
 
 (b) The court instructs the juiy, that under the issues in this 
 case, the burden of proving property in himself, so far as the right 
 of property is concerned, is upon the plaintiff; and if possession of 
 the property has been shown by the evidence to have been with the 
 said A. B. at the time it is alleged to have been levied upon, then 
 such possession is prima facie evidence of title in the said A. B.''' 
 
 § 2329. Not Maintainable by Servant or Agent. The juiy are 
 further instructed, that when a person has personal property in his 
 care and custody, as the servant or agent of the owner, and the 
 property is taken from the possession or premises of the owner (or 
 strays away, and is taken up by a person not the owner), then the 
 duty devolving upon the servant or agent, as such, will not entitle 
 him to maintain an action of trover for the property.^ 
 
 § 2330. When Maintainable by Buyer Against Seller. The court 
 instructs the jury, that in the case of a sale of personal property, at 
 a stipulated price, and when no time of payment is agreed upon, the 
 
 law presumes that pa3rment is to be made at the time of delivery; 
 
 and in such case, until the purchase price is paid, no such title passes 
 to the purchaser as will enable him to maintain trover against the 
 
 vendor for the conversion of the property, unless there has been a 
 
 delivery of the property under the sale, or a tender of full payment 
 
 has been made.^ 
 
 § 2331. Against Vendor Who Has Resold the Property. If you 
 believe, from the evidence, that the defendant bargained and sold 
 the (animal) in question to the plaintiff, at a given price, to be deliv- 
 ered when paid for, and that the plaintiff aftemvards, and within a 
 reasonable time thereafter, and before the commencement of this 
 suit, paid the purchase price in full, or paid a part thereof, and 
 tendered to the plaintiff the remainder, and then demanded the pos- 
 session of the property, and that defendant, upon such demand, 
 refused to deliver possession, and afterwards sold the (animal) to 
 another person, without the consent of the plaintiff, then the plaintiff 
 is entitled to recover in this suit.^° 
 
 § 2332. Plaintiff Must Prove Conversion— What Constitutes, (a) 
 That to wan-ant a verdict, in this case, for the plaintiff, the jury 
 must find, from the evidence, not only that the plaintiff was the 
 general or special owner of the property, with the right to immedi- 
 ate possession at the time of the alleged conversion, but it must fur- 
 
 6— Forth V. Pursley, 82 111. 152. 9— Benj. on Sales, §677; South- 
 
 7— Martin v. Ray, 1 Black. 291; western, etc., Co. v. Plant, 45 Mo. 
 
 Cooloy oil Torts (.3d ed.) 852. 517; Scudder v. Bradburry, 106 
 
 8— Cooley on Torts (3d ed.) 854; Mass. 422; Mich., etc., Rd. Co v. 
 
 Farmers' Bk. v. McKee, 2 Pa. St. Phillips, 60 111. 190. 
 
 318 
 
 10 — Mechem on Sales, chap. 4.
 
 § 2333.] TROVER. 15U7 
 
 ther appear, from the evidence, that the defendant wrongfully con- 
 verted the property to his own use.^^ 
 
 (b) The court instructs the jury that if they believe, from the 
 evidence, that the plaintiff was the owner of the property in ques- 
 tion, and entitled to the possession thereof, before and at the time of 
 the commencement of this suit, and that while he was so entitled to 
 such possession, and before the commencement of this suit he made 
 a legal demand of the defendant for the property, and that the 
 defendant then had the property in his possession, and refused and 
 neglected to surrender the same to the plaintiff upon such demand, 
 this would be evidence of the conversion of the property by the de- 
 fendant, and the juiy should find for the plaintiff.^- 
 
 § 2333. Conversion — Wrongful Intent Must be Proven. You are 
 instructed that a wrongful taking and canying away of the personal 
 property of another does not alone constitute trover, or trover and 
 conversion. To render the taker liable, it must further appear that 
 the property was taken and carried away by the person taking it, 
 with an intent to convert the same to his own use, or that he has 
 since the taking actually converted it to his own use. And in this 
 case, although you may believe, that the defendant wrongfully took 
 and removed the property mentioned in the declaration, and placed 
 the same in, etc., for safe keeping, intending to then store it for the 
 use of the plaintiff, and to hold the same subject to his order, and so 
 notified the plaintiff, then the defendant would not be guilty of a 
 wrongful conversion of the property.^^ 
 
 § 2334. By Bailee of Property. The juiy are instructed as a 
 matter of law, that when the projDerty of one person comes rightfully 
 into the possession of another, to be held by him temjjorarily for some 
 specific purpose, and when that is accomplished, then to be returned 
 to the owner, if the person so taking possession of the property 
 willfully kills or destroys it, or sells it, or otherwise disposes of it, 
 for his own use and benefit, and so as to deprive the owner of it 
 without his consent, this, if proven, will amount to a wrongful con- 
 version of the property, and no demand for the possession need be 
 made by the owner before commencing suit to recover the value of 
 the property.^* 
 
 § 2335. Conversion — Property Wrongfully Taken and Consumed. 
 If you find, from the evidence, that before and at the time of the al- 
 leged conversion, the plaintiff was the owner of the property in 
 question, and entitled to the immediate possession thereof, and that 
 while the plaintiff was such owner and entitled to such possession, and 
 before the commencement of this suit, the defendant wrongfully took 
 the property into his possession, and that while the property was so 
 
 11— Greenl. on Ev.. § 636. 642. 13— Niemetz v. St. Louis, etc., 5 
 
 12— Puterbaugh'R Com. Law, 497; Mo. App. 59. 
 Cooley on Torts (3d ed.) 859, et seq. 14— Cooley on Torts (3d ed.) 859, 
 
 et seq.
 
 1508 FORMS OF INSTRUCTIONS. [§2336. 
 
 in his possession the (animal) was killed (or the goods were lost or 
 stolen from his possession), before the commencement of this suit, 
 this will constitute a wrongful conversion of the property, and you 
 should find the defendant guilty; and, in such case, it is wholly im- 
 material whether the plaintiff made a demand for the property be- 
 fore commencing the suit or not.^^ 
 
 § 2336. Defendant Rightfully in Possession Accidentally Losing- 
 Property Before Demand. If the jury believe, from the evidence, 
 under the instructions of the court, that the defendant came right- 
 fully into the possession of the property, and while he held it so in 
 possession, and before any demand was made on him for it, the (ani- 
 mal) was accidentally killed, without any willful intention on the 
 part of the defandant (or that the said goods were lost or stolen out 
 of the possession of the defendant), though he may have been guilty 
 of negligence in that behalf, then the plaintiff cannot recover in this 
 suit, although the jury may believe, from the evidence, that a de- 
 mand was made by the plaintiff' upon the defendant for the property 
 before the action was commenced. ^^ 
 
 § 2337. Conversion by Warehouseman. If you believe, from the 
 evidence, that the property in controversy belonged to the plaintiffs, 
 and that they were entitled to the possession of the same, at the 
 time of the alleged conversion of the pi'oi^erty, and, also, that the 
 plaintiffs demanded the same of the defendants before the com- 
 mencement of this suit, and at the same time offered to pay to them 
 all the freight, storage and other charges which had accrued upon 
 the property in question, then, if you further find, from the evidence, 
 that the defendants refused, upon such demand, to deliver the prop- 
 erty to the plaintiffs iinless the freight and charges upon other goods, 
 not received or stored by the defendants at the same time with 
 the goods in question, were also paid, then these facts would 
 amount to a wrongful conversion of the property by the defendants 
 to their own use, and you should find the defendants guilt3^^^ 
 
 § 2338. Demand — No Particular Form Necessary — May be Verbal, 
 (a) To constitute a legal demand of propert}'^, in this class of cases, 
 it is not necessary for the demanding party to make use of the word 
 "demand," or to specify, by name or particular description, the 
 property demanded ; but any language which makes known to the 
 party on whom the demand is made that the demandant desires the 
 possession of the property, and informs him, by reference or other- 
 wise, what property he desii'es possession of, is sufficient to con- 
 stitute a demand. ^^ 
 
 (b) The court instructs the juiy, that no particular form of words 
 is necessary in making a demand for the possession of property 
 
 1.5 — 1 Addison on Torts, §471; bourn v. Union National Bk., 58 
 
 Coolf-y oil Tnrts (3d ed.) 874. Me. 273. 
 
 Ifi— Cooley on Torts (3d ed.) 873; 17— Edwd. on Bail., §350, 351. 
 Bowlln V. Nye, 10 Cush. 416; Dear- 18— Cooley on Torts (3d ed.) 872;
 
 § 2339.] TROVER. 1509 
 
 before bringing a suit. If the jury believe, from the evidence, that, 
 before commencing this suit, the plaintiff had an interview with the 
 defendant, and that, from the language then used by plaintiff, the 
 defendant understood the plaintiff came for, and was asking to 
 have the property in dispute given up to him, and that with that 
 understanding, defendant said he would not give it, this in law 
 would be equivalent to a demand and refusal. ^^ 
 
 § 2339. Demand and Refusal — Evidence of Conversion. The jury 
 are instn;cted, that when one person has property of another, 
 whether rightfullj' or wrongfullj'', in his possession, and the owner 
 is entitled to the immediate possession of the property, then a de- 
 mand for such jDossession by the owner and a refusal to deliver the 
 property by the one so having it in possession, is prima facie evi- 
 dence of a wrongful conversion of the property to his own use by 
 the latter.2o 
 
 § 2340. Demand by Agent — Evidence of Agency. When a demand 
 is made by an agent, and the jDerson from whom the demand is made 
 has reasonable grounds for doubting the agent's authority, he may 
 lawfully refuse to comply with the demand. The evidence of agency 
 should be such as an ordinarily prudent man would feel justified in. 
 acting upon, knowing that he would be liable for the value of the 
 property if he should deliver it to a person not authorized to 
 receive it.^^ 
 
 § 2341. Demand not Necessary where Defendant Converted the 
 Property. The jury are further instructed, as a matter of law, that 
 while, in some cases, a demand by the owner, for the possession of 
 property in the hands of another, and a refusal to deliver the same 
 by such other person, is prima facie evidence of a wrongful conver- 
 sion of the property to his own use by the person so having it ii 
 his possession, still, such demand and refusal are never essential 
 before commencing a suit to entitle the plaintiff to recover; pro- 
 vided, it appears, from the evidence, that, before the commencement 
 of this suit, the defendant had actually converted the property to 
 his own use, by intentionally killing or destroying it, or by selling 
 or othenvise disposing of it for his own benefit, and so as to deprive 
 the plaintiff of it without his consent.-^ 
 
 § 2342. Tender— Effect Same as Payment— Not Good if Condi- 
 tional, (a) The juiy are instructed, that a tender of any amount 
 of money, if proved, in this case, has the same effect on the rights 
 
 Badger v. Batavia Paper Co., 70 Towne v. St. Anthony &, .Dak. 
 
 111. 302. Elev. Co., 8 N. D. 200, 77 N. W. 608. 
 
 19— Cooley on Torts (3d ed.) 872; 21— Ingalls v. Bulkley, 13 111, 
 
 Edmundson v. Brie, 136 Mass. 189. 315; Kime v. Dale. 14 111. A:-«p. 308. 
 
 20— Thompson v. Rose, 16 Conn. 22— Gottlieb v. Hartman, 3 Col. 
 
 71, 41 Am. Dec. 121; Sturgis v. 53; Kenrick v. Rogers. 26 Minn. 
 
 Keith, 57 111. 451, 11 Am. Rep. 28; 344, 4 N. W. 46.
 
 1510 FORMS OF INSTRUCTIONS. [§2343. 
 
 of the parties as a payment of the same amount would have had if 
 made at the same time.^^ 
 
 (b) The debtor has no right to insist that the creditor shall admit 
 that no more is due in respect of the debt for which the tender is 
 made. He may exclude any presumption against himself that he 
 admits the payment to be only for a part, but he can go no further. 
 and his tender will not be good if he adds a condition that the 
 creditor shall acknowledge that no more is due.-* 
 
 § 2343. Tender — Waiver of Production of Money. If the jury 
 believe, from the evidence, that the plaintiffs were the owners of 
 the property in question at the time of the alleged demand and 
 tender, and that the defendants then had the same in their posses- 
 sion, as warehousemen, claiming the right to hold the property until 
 certain charges thereon should be paid, and that while they so held 
 the goods, and before the commencement of this suit, the plaintiffs, 
 by their agent, made a demand on the defendants for the property, 
 
 and then offered to pay the sum of $ upon defendants' claim 
 
 upon said goods, and that the sum so offered covered all that was 
 then due to defendants for stoi'age and all other charges on said 
 goods, and, if the jury further believe, from the evidence, that upon 
 such demand and offer the defendants refused to surrender the 
 property, and told the person making such demand that he need not 
 trouble himself to take out the money so proposed to be paid, as it 
 would not be accepted, nor would the goods be delivered, unless 
 
 plaintiffs first paid the sum of $ in discharge of defendants' 
 
 claim on the goods, then this was a waiver of the necessity for 
 producing and exhibiting to the defendants the money so proposed 
 to be paid in order to constitute a good tender of that amount for 
 the puiposes of this suit.^^ 
 
 § 2344. Burden of Proof. The court instructs the jui-y, that in 
 order to maintain this action, the plaintiff must prove, by a pre- 
 ponderance of evidence, that he was either the general owner of the 
 property in controversy, and lawfully entitled to the possession 
 thereof at the time of the alleged conversion, or that he had some 
 special interest in it at the time of the alleged conversion, which 
 entitled him to the possession of the property ; and if the jury believe, 
 from the evidence, that at the time, etc., the plaintiff was not the 
 general owner of the property, and had no special interest in it, but 
 was holding it as the mere servant or agent of the owner, then they 
 must find for the defendant.-'' 
 
 § 2345. Alleged Conversion of Saw Mill Machinery — Series, (a) 
 
 I instruct you that if you believe that C. Bros, and the partner- 
 
 23— RenJ. on Sales, §712. 25— Hazzard v. Loring-, 10 Cush. 
 
 24 — Bowon v. Owen, 11 Q. B. 131; 267; Birming-ham Paint & Rnofinff 
 
 Hes.s V. Peck, 111 111. App. Ill; Co. v. Crampton, — Ala. — 39 So 
 
 Mann v. Roberts, 126 Wis. 142, 105 1020. 
 
 N. W. 785. 26—2 Greenl. on Ev., § 636 and 642.
 
 § 2345.] TROVER. 1511 
 
 ship known as the S. Logging Co. entered into the contract marked 
 "Defendants' Exhibit 1," and if you further believe that the 'boiler, 
 engine, and fittings were furnished by the former to the latter subse- 
 quent to the date of the contract marked '^Exhibit 1," then the title 
 of the property in question would pass absolutely to the partnership, 
 in-espective of any oral agreement in conflict with the terms of the 
 written instrument, and would remain there until parted with by 
 some act on the part of its members. 
 
 (b) The parties to such a contract, however, have the right to 
 abrogate or rescind it by mutual consent. If you believe by a pre- 
 ponderance of the evidence that C. Bros, and the S. Logging Co. 
 mutually agreed that the contract marked ''Exhibit 1" should be 
 abrogated, and all relations under it should be at an end, and that 
 the property in question should be returned to the possession and 
 ownership of C. Bros., and if you fmiher believe that such an under- 
 standing was completed by the parties, then you may find that the 
 title to the property revested in the plaintiffs ; and if you should find 
 from the preponderance of the evidence that the title to the property 
 remained in that condition, and was never subsequently parted with 
 by the plaintiffs, then your verdict should be in favor of the plaint- 
 iffs — 'that they are entitled to the possession of the property de- 
 scribed in the complaint. 
 
 (e) If you find from the testimony that E. B. was the agent of 
 A. H. in the transfer of the property mentioned in plaintiffs' com- 
 plaint from the S. Logging Co. or from M. L. or from T. J. to A. H., 
 and that said E. B. knew the terms and conditions upon which the 
 S. Logging Co., M. L. or T. J. had possession of the property men- 
 tioned in plaintiff's complaint from the plaintiffs, and that the 
 plaintiffs were the owners and entitled to the possession of such 
 property at the time, and only consented that the S. L. Co., M. L. or 
 T. J. should have the temporary use of the property in securing 
 certain saw logs in Clallam county, Washington, then you are in- 
 structed that the knowledge of the agent, E. B., was the knowledge 
 of A. H., and A. H. could not be an innocent purchaser of the 
 property, and A. H. could not transfer a valid title to said property 
 to the defendants, or either of them. 
 
 (d) If you find from a prepondence of the testimony that the 
 property during all of the time belonged to the plaintiffs, and the 
 S. Logging Co. on or about July 17, 1897, agreed to sun-ender the 
 possession of the property to the plaintiffs, and that after such 
 agreement of surrender M. L. and T. J. or either of them, secured 
 from the plaintiffs the temporai-y right to use said property in 
 securing saw logs in Clallam county, "Washington, no title would pass 
 to A. H., and he would have no right to sell or dispose of said prop- 
 erty, and any sale by him of said property would be wrongful. 
 
 (e) But if you believe by a preponderance of the evidence that 
 the ownership of the engine, boiler, and fittings vested in the S. Log-
 
 1512 FORMS OF INSTRUCTIONS. [§2345. 
 
 ging Co., as outlined in instruction "a," and that the written con- 
 tract between the logging company and C. Bros, was never abrogated 
 by mutual agreement, and no return of the property in dispute was 
 made by virtue of such an abrogation, and that subsequently the S. 
 Logging Co., 'by its managing partner, transferred the property to 
 A. H. in consideration of an antecedent debt, and that A. H., in his 
 turn, transferred the property to the defendants upon their promise 
 to pay therefor, then your verdict should be in favor of the defendants 
 — that they are entitled to the possession of the property described 
 in the complaint.^''^ 
 
 27— Approved in Carstens v. Earles, 26 Wash. 676, 67 Pac. 404(407).
 
 CHAPTER LXXXII. 
 
 VICIOUS ANIMALS. 
 See Erroneous Instructions, same chapter head, Vol. III. 
 
 § 2346. Vicious dog — Necessary es- 
 sentials to recover. 
 
 § 2347, Vicious dog — Knowledge of 
 disposition. 
 
 § 2348. Vicious dog — Dog's reputa- 
 tion not competent. 
 
 § 2349. Vicious steer — Plaintiff must 
 prove due care — Knowledge 
 of vicious disposition. 
 
 § 2350. Vicious cow — Knowledge of 
 disposition — Adopting 
 means to prevent injury. 
 
 § 2346. Vicious Dog — Necessary Essentials to Recover. If, there- 
 fore, you believe from the evidence and a preponderance thereof that 
 the defendant, C. T., on or about the 5th day of July, 1899, had a 
 vicious dog; that he knew said dog was vicious and ferocious, and 
 liable to attack and bite persons coming in contact with it; that the 
 defendant permitted said vicious and ferocious dog, if any, to run 
 at large on the public streets of El Paso, and that while so running 
 at large the said dog attacked and bit the plaintiff J. F., — then you 
 will find for the plaintiff such damages as you find from the evidence 
 he has suffered.^ 
 
 § 2347. Vicious Dog — Knowledge of Disposition, (a) In arriving 
 at the fact of whether or not the defendant had knowledge of the 
 vicious character of the dog in question, if any, you will consider 
 all the facts in the ease, — such as whether the defendant knew of 
 any acts upon the part of the dog that would indicate to the de- 
 fendant that the dog would bite if he had a chance, such as his 
 running at people passing along the streets, attempting to bite any 
 person in a public place without provocation, and such similar acts, 
 if any, in proof on the part of the dog which came under the ob- 
 servation of the defendant.^ 
 
 (b) If you find any actual damages for the plaintiff, then if you 
 find and believe, from the evidence, that the defendant, B., with full 
 knowledge of the ferocious and vicious habits of the dog, if it did 
 have such habits, permitted the dog to run at large on the public 
 streets of the city of D., being the owner, keeper, or harborer of 
 the dog, or that with such knowledge she pemiitted her servant and 
 porter, J., to keep the dog on her premises, and from said premises 
 to allow the dog to run at large on the streets of the city, without 
 being guarded or confined, and further find that she did so with 
 
 1 — Triolo V. Foster, — Tex. Civ. 2 — Triolo v. Foster, supra. 
 App. — , 57 S. W. 698 (698-9). 
 
 1513
 
 1514 FORMS OF INSTRUCTIONS. [§ 2348. 
 
 reckless disregard for the safety of the lives and persons of the 
 public, and that no effort was made to restrain the dog or to protect 
 the public from his vicious attacks, if any, then you may in your 
 discretion find for plaintiff as exemplary damages such an amount 
 as 3'ou believe will be proper and right.^ 
 
 § 2348. Vicious Dog — Dog's Reputation Not Competent. A dog 
 cannot be known to be vicious, and liable to bite mankind, by evi- 
 dence that the general reputation is that the dog is vicious and so 
 liable. You will therefore not regard the evidence of the witness 
 Q. that such is the reputation of the dog upon the issues of whether 
 or no said dog was vicious, and liable to bite mankind.* 
 
 § 2349. Vicious Steer — Plaintiff Must Prove Due Care — Knowledge 
 of Vicious Disposition, (a) The plaintiff has alleged in each para- 
 graph of his complaint, among other things, that he received the 
 injury complained of without fault or negligence on his part. This 
 is a material and necessary allegation. Without such allegation his 
 complaint would not have been sufficient to have constituted a cause 
 of action, and before the plaintiff can recover, he must have proved 
 by a fair preponderance of the evidence that he did receive said 
 injuries without fault or negligence on his part directly and ma- 
 terially contributing to the injury. It is not enough to enable the 
 plaintiff to recover that he shall have proved fault and negligence 
 on the part of defendant. He must also prove that he himself was 
 free from such fault or negligence, and if he has failed to prove 
 by a fair preponderance of the evidence that he received the injury 
 without such fault or negligence on his own part, he can not re- 
 cover. 
 
 (b) The plaintiff has alleged in each paragraph of his complaint 
 that the steer in question was of a dangerous and vicious disposition, 
 in the habit of attacking mankind and animals. He has also alleged 
 that the defendant knew of such dangerous and vicious disposition. 
 To entitle the plaintiff to recover he must prove, by a fair pre- 
 
 3 — Barklow v. Avery, — Tex. Civ. dog on her premises, that she knew 
 
 App. — , 89 S. W. 417. the dog- was vicious and permitted 
 
 "This paragraph of the charge, it to run at large, and the plaintiff 
 
 strictly construed, might possibly was bitten by said dog, and, if 
 
 be subject to the criticism that it plaintiff failed to make such proof, 
 
 assumes that defendant was the to find for the defendant. The 
 
 owner, keeper, or harborer of the charge, when taken as a whole, 
 
 dog; but, when considered in the evidently prevented the jury from 
 
 light of the balance of the charge, being led astray by the defect, if 
 
 the jury could not have been mis- any, complained of by plaintiff." 
 led thereby. In the first paragraph 4 — Triolo v. Foster, supra, 
 of the charge the ownership, etc., "The charge was a correct one, 
 
 of the dog is left for the jury's and properly explained and limited 
 
 determination, and in the latter the effect of the said testimony, 
 
 part of the charge the court placed It was defendant's right to have it 
 
 the burden of proof on plaintiff to thus explained and limited, and the 
 
 show that the dog was vicious, charge should have been given, 
 
 that defendant was the owner. Mutual Life Insurance Co. v. 
 
 keeper, or harborer, or that she Baker, 10 Tex. Civ. App. 515, 31 
 
 permitted her servant to keep the S. W. 1073, and cases cited."
 
 §2350.] VICIOUS ANIMALS. 1515 
 
 ponderance of the evidence, not only that the steer was dangei-ous 
 and vicious, but that the defendant knew that fact and the plaintitt" 
 was ignorant of it. 
 
 (c) In order to charge the defendant with knowledge of the vicious 
 propensities of the animal to attack mankind, it is not necessary 
 that he have notice that the animal has frequently broken through 
 the tameness of his nature into acts of aggression on man, or upon 
 other animals in the dominion and ownership of man. It is unneces- 
 sary to prove more than that the owner has good cause for supposing 
 that the animal so conducts itself. And if the juiy find from the 
 evidence in this case that the animal in question, before the injuiy 
 complained of, made a vicious lunge or attack upon X. or Y., or 
 either of them, in the presence of the defendant, then, upon such 
 facts, if established, you would be authorized to find that the de- 
 fendant had knowledge of the vicious propensities of said animal to 
 attack mankind, although he may not have had knowledge of attacks 
 of said animal upon other persons.^ 
 
 § 2350. Vicious Cow — Knowledge of Disposition — Adopting Means 
 to Prevent Injury, (a) The coui-t instructs the juiy that, if you 
 find and believe from the evidence, to your reasonable satisfaction, 
 and by the greater weight of credibility of the testimony, that on 
 or about the 1st day of June, 1900, the defendant, by and through 
 his agent, servant or employe, undertook to carry the cow in ques- 
 i^tion through the streets of the city of St. Louis, and along Broadway, 
 at the place of the alleged injuiy to plaintiff, and that at such time 
 the cow was of a vicious disposition, as defined by the court's in- 
 structions, and such disposition was known to defendant at and 
 before the time of the alleged injury to plaintiff, and before the 
 cow was taken into the streets on said occasion, then it was the 
 duty of the defendant to adopt suitable measures for the carnage 
 of the cow through the streets so as to prevent inji;ry by her to 
 persons on or near the streets upon or along which the cow was to 
 be driven. And if you believe, under the circumstances, that by 
 the exercise of the utmost care, prudence and caution, defendant 
 might have adopted such means of carrying the cow as would have 
 prevented injury to plaintiff by the cow, but you further find he 
 failed to adopt such means, and that by reason of such failure the 
 cow attacked and injured plaintiff, then your verdict must be for 
 plaintiff.*' 
 
 (b) The court instructs the juiy that knowledge on the part of 
 defendants that the cow in question was disposed to run away is not 
 sufficient to support a finding in favor of plaintiff, but, that in order 
 to entitle plaintiff to recover against defendant, he must prove to 
 
 5 — Todd V. Banner, 17 Ind. App. the defendant could not complain 
 
 368, 46 N. E. 829 (830). of the phrase "reasonable satisfac- 
 
 6 — O'Neill v. Blase, 94 Mo. App. tion" in the above instruction. 
 648, 68 S. W. 764 (768), held that
 
 1516 
 
 FORMS OF INSTRUCTIONS. 
 
 [§ 2350. 
 
 the satisfaction of the jury that such defendant knew that the cow 
 was disposed to attack persons, or was of a vicious disposition.'^ 
 
 7— O'Neill V. Blase, supra. 
 
 The courjt said: "Knowledge of 
 the disposition of an animal is im- 
 portant in its bearing on the own- 
 er's obligation to restrain him. 
 This is so not only by the immemo- 
 rial common law of England, and 
 of this country, but it was so even 
 by the Mosaic law. Exodus xxi., 
 28-32. "When the owner of an ani- 
 mal acquires knowledge, or where 
 the facts reasonably wan-ant an 
 inference that he has been advised 
 of the vicious disposition of his 
 animal, he is in duty bound to use 
 those precautions for its restraint 
 which the law requires for the 
 protection of the public, already 
 defined in this opinion. It is not 
 
 essential to the owner's liability 
 that he should have notice of the 
 particular f:ort of act which pro- 
 duces the injury by an animal in 
 a case like this. He must not wait 
 until his dog bites somebody be- 
 fore taking notice of his dog's con- 
 duct, where it has been such as to 
 wiarn a man of ordinary prudence 
 that the animal is ferocious or vi- 
 cious in disposition. Codeau v. 
 Blood, 52 Vt. 251, 36 Am. Rep. 751; 
 Rider v. White, 65 N. Y. 54, 22 Am. 
 Rep. 600; Worth v. Gilling, L. R. 
 2 C. P. 1; Mann v. Weiand, 81 Pa. 
 243; Robinson v. Marino, 3 Wash. 
 St. 434, 28 Pac. 752, 28 Am. St. 50; 
 Kennett v. Engle, 105 Mich. 693, 
 63 N. W. 1009."
 
 CHAPTER LXXXIII. 
 
 WATERCOURSES. 
 
 See Erroneous Instructions, same chapter head, Vol. III. 
 
 § 2351. Watercourse defined. 
 
 § 2352. No rig-ht to divert ancient 
 watercourse. 
 
 § 2353. Diversion of surface water — 
 Measure of damages — Ele- 
 ments of injury. 
 
 § 2354. Right to use water passing 
 over land — Must restore it 
 to original bed. 
 
 § 2355. The owner of the soil is the 
 owner of the surface and 
 subterranean water. 
 
 § 2356. Placing obstruction in nat- 
 ural watercourses and di- 
 verting water — Damages. 
 
 § 2357. Mill-race — Obstructions. 
 
 § 2358. Embankment — Obstructions 
 — Party acquiring interest 
 after erection — Right of ac- 
 tion. 
 
 § 2359. Use of banks of streams — 
 Floatage of logs down nav- 
 igable stream. 
 
 § 2360. Owner of land bordering on 
 a navigable stream has 
 right to build docks. 
 
 § 2361. Flooding of land — Changing 
 of watercourse. 
 
 § 2362. Extraordinary freshet — Onus 
 on defendant to prove ab- 
 sence of negligence — Act of 
 God. 
 
 § 2363. Dams— Dedication. 
 
 § 2351. Watercourse Defined. To constitute a watercourse there 
 must be a stream of watei', including banks, bed and water. It is 
 not necessary to prove that the w^ater flows continuously. It may 
 be diy at certain seasons of the year and yet be called a stream, 
 of water, but it must, at some period of the year, be a stream of 
 water flowing in a well defined channel.^ 
 
 § 2352. No Right to Divert Ancient Watercourse, (a) If the jury 
 believe, from the evidence, that the nature of the country was such 
 that after heavy rains or the melting of snows it naturally and 
 necessarily collected together large quantities of water on defend- 
 ant's land, and that such water was regularly discharged through 
 a Avell defined channel which the force of the water had made for 
 itself and that the water had been accustomed to flow through that 
 channel from time immemorial, then such channel is an ancient water- 
 course, and the defendant would have no right to change the direction 
 of such watercourse even on his own land, so as to discharge the 
 water onto the plaintiff's land at a point different from what it had 
 been accustomed to flow.- 
 
 (b) The court instructs the juiy that if they believe, from the 
 evidence, that the plaintiff has made out his case as set out in the 
 second count of the amended declaration, then they should find for 
 the plaintiff.^ 
 
 1— Schlichter v. Philips. 67 Ind. 
 201; Peck v. Herrington. 109 111. 611. 
 
 2— Schlichter v. Philips, 67 Ind. 
 201. 
 
 1517 
 
 3— East St. L. & Carondelet Ry. 
 Co. v. Eisentraut, 134 111. 96 (100) 
 24 N. E. 760. 
 
 "There was no error in this in-
 
 1518 FORMS OF INSTRUCTIONS. [§ 2353. 
 
 § 2353. Diversion of Surface Water — Measure of Damages — Ele- 
 ments of Injury, (a) Under the issues in this case, as made by the 
 pleadings, before the plaintiff can recover, the following material 
 facts must be proved by a preponderance of the evidence: (1) That 
 defendant by artificial drains or ditches so changed the natural flow 
 of the waters from defendant's land, above, to, and upon, or over, 
 the lower land of plaintiff, as to .cause the water to flow in larger 
 quantities, or more rapidly, than it would have done but for such 
 changes, to the injury of plaintiff's land. (2) The amount of damage 
 sustained by plaintiff by reason of such wrongful act or acts of 
 defendant. (21/2) If the plaintiff has failed by a preponderance of 
 the evidence to show that defendant did change the course of the 
 water-flow, so as to cause the same to injure plaintiff, either by in- 
 creasing the quantity of water flowing on the latter 's land, or by 
 increasing its velocity, your verdict must be for the defendant. But 
 if the evidence, by a preponderance, shows that the defendant 
 changed or caused to be changed the flow, and increased the quan- 
 tity or velocity of water discharged on plaintiff's land, defendant 
 is liable to plaintiff in such sum as the evidence shows his lands 
 were injured by the greater quantity or velocity of the water; or 
 if the evidence fails to satisfy you what sum he is entitled to, then 
 to nominal damages at least.* 
 
 (b) The court instructs the jury that if you find that the natural 
 watercourse for the water from Behan's land, in a state of nature, 
 .was to the west, and not to the east, then I charge you that the 
 plaintiff had no right by any artificial means to change the course 
 of such water so as to throw it upon the lands of the defendant, 
 unless he has acquired such right by user or prescription, as above 
 set forth, and that if the plaintiff did flow upon the lands of the 
 defendant waters from the Behan land which did not naturally flow 
 upon defendant's land, if you find such to be the case, without 
 having acquired the right so to do by user or prescription, then 
 the defendant would have the right to obstruct the flow of such 
 waters, either by erecting dams or otherwise, even if in so doing 
 it would obstruct the flow of waters upon his land that naturally 
 flowed in that direction, and if in so doing the plaintiff's crops were 
 
 struction. The sufficiency of said J. N. \V. & S. E. R. Co. v. Cox, 
 
 count follows from the rules of 91 111. 500; T. W. & W. Ry. Co. v. 
 
 law which have received repeated Morrison, 71 id. 616." 
 
 recognition by this court. Thus in 4 — Dorr v. Simerson, 73 Iowa 89, 
 
 C. & A. R. R. Co. V. Glenney, 118 34 N. W. 752 (753). 
 
 111. 487, 9 N. E. 203, we held that _ "It will be observed that these 
 
 where a railroad company diverts instructions correctly state what 
 
 the flow of surface water from its it was necessary for the plaintiff 
 
 natural chaimel and conducts it to prove under the issues to entitle 
 
 through a ditch to 'a point where him to recover. This was as full a 
 
 It overflows the land of another, it statement of the issues as was 
 
 will be held liable for such dam- required." 
 ages as result therefrom. See also
 
 § 2353.] WATERCOURSES. 1519 
 
 injured, and would by so doing not subject himself to any liability 
 for damages to said plaintiff. 
 
 (e) The court instructs the juiy that the plaintiff had the right, 
 in the interest of good husbandly, and in the good faith improvement 
 and tillage of his farm, 'to fill up the sag-holes so that no water 
 would accumulate or stay on him, even if the water arising from 
 rainfall or melting snow should thereby, in natural process find its 
 way in the natural watercoui'se ujion the land of the defendant, and 
 incidentally increase the flow thereon; but he cannot by artificial 
 drains or ditches, cast the water from sag-holes, basins, and ponds 
 on his own lands over upon the propinetor below, to his injury; that 
 is, where the natural flow does not go in that direction. 
 
 (d) If you 'believe from the evidence that the water from the 
 plaintiff's land did not naturally drain from his land by a flowing 
 upon the land of the defendant, but that he, by drains and artificial 
 means did drain the water fix)m his own lands, and caused it to flow 
 in unnatural quantities upon defendant's land, and that the de- 
 fendant only stopped such unnatural flow by stopping the lower 
 end of such ditches, or other means of drainage, to the extent of 
 setting back this excess of water, then he is justified in so doing, and 
 is not liable for such acts, provided you believe from the evidence 
 that such drain had not existed before the acts complained of, and 
 for this space of time that I have named — upwards of (15) fifteen 
 years. ^ 
 
 (e) The jury are instructed that one whose lands are overflowed 
 and injured by reason of sand, timber and trees uprooted and car- 
 ried thereon in consequence of the manner in which a railroad com- 
 ,pany builds a bridge across a natural stream or river, whereby the 
 waters of the stream are contracted and diverted from their natural 
 channel or course, and made to flow in the different direction from 
 that which they were accustomed to do before the building the 
 bridge and the obstruction of the stream by the piers thereof, and 
 by allowing and permitting other obstructions built for temporary 
 purposes to remain in the river and further obstniet the flow of the 
 waters, may maintain an action against such railroad company for 
 the injuries which he has sustained, as the company is presumed 
 to know the habits of the stream on extraordinary occasions as well 
 as ordinary occasions.^ 
 
 5 — O'Connor v. Hogan, 140 Mich, necessarily have applied all that 
 
 613, 104 N. W. 29 (32). was said by the court on the sub- 
 
 6— Jones v. Seaboard Air L. Co., ject of negligence to these charges. 
 
 67 S. C. 181, 45 S. E. 188 (195). The instructions on this subject 
 
 "It is important to bear in mind were free from error full and ex- 
 
 that there were only two charges plicit. After stating clearly the 
 
 of negligence to which all the evi- only issues of negligence, the cir- 
 
 dence on the subject was directed, cuit judge said: 'So your business 
 
 These were negligent construction is to determine from the evidence 
 
 of the bridge, and negligently al- whether or not the defendant is 
 
 lowing the cribs to remain in the guilty of the acts of negligence 
 
 river. The jury, therefore, must complained of; and whether or not
 
 1520 FORMS OF INSTRUCTIONS. [§ 2354. 
 
 § 2354. Right to Use Water Passing Over Land— Must Restore 
 It to Original Bed. The owner of land through which a watercourse 
 passes, has a right to receive the water, when the water in its natural 
 channel enters his land, and to use it while it is passing over or 
 through his land, but he must restore the water to its original natural 
 channel whenever it leaves his land, to enter that of an adjoining 
 owner.'^ 
 
 § 2355. The Owner of the Soil Is the Owner of the Surface and 
 Subterranean Water. The court instnicts the jury, as a matter of 
 law, that water that percolates through the soil, beneath the surface, 
 with a known channel — water which temporarily flows upon, or over 
 the surface from falling rains or melting snows, without a channel, 
 but simply as the natural amd artificial elevations and depressions 
 of the surface may guide it, is regarded as a part of the land and 
 belongs to the owner thereof, and he makes such use of the water 
 as he sees fit, while it remains on his land.* 
 
 § 2356. Placing Obstruction in Natural Watercourses and Divert- 
 ing Water — Damages. A railroad company in constructing its road 
 over a natural stream, natural watercourse, should have openings 
 sufficient to afford a free outlet or passage for all Avater, as well in 
 times of ordinary freshets or floods and freshets as at other times; 
 and the railroad company is not only liable in damages to persons 
 injured by obstructions placed in a natural water course, and there 
 maintained, or there negligently allowed to remain, but also for 
 damages resulting from diverting the natural course of the stream.^ 
 
 § 2357. Mill Race— Obstructions, (a) If the jury find from the 
 
 evidence in this case that the defendant, , its agents or servants, 
 
 during the campaigns (so called) of said company from to 
 
 , have deposited into B. Creek, and from thence into the pond, 
 
 race, flume, and water wheel, of the water power and mill of the 
 plaintiff, such quantities of beets, beet roots, lime mud, lime, sand 
 and dirt, and other refuse from its sugar plant as to materially and 
 unreasonably lessen, diminish, injure and damage such pond, race 
 and mill property, then such use and such acts of the defendant 
 with the said waters of B. Creek would be an unreasonable use 
 thereof, and would render it liable in this action to the plaintiff for 
 the damages it has occasioned him, if any.^** 
 
 these acts of neg-ligence — if you 7 — Gould on Waters, § 213; Angell 
 
 find that said acts were neg-ligent on Watercourses, § 108. 
 
 acts, and that the defendant was 8 — Taylor v. Pickas, 54 Ind. 167, 
 
 guilty of said acts of negligence, 23 Am. Rep. 639. 
 
 from the evidence — were the proxi- 9 — Jones v. Seaboard Air L. Ry. 
 
 mate eauses of the. injuries of Co., 67 S. S. C. 181, 45 S. E. 188 
 
 which the plaintiffs complain.' The (195). 
 
 jury were also charged that the 10 — Neely v. Detroit Sugar Co., 
 
 plaintiffs could not have a verdict 138 Mich. 469, 101 N. W. 664 (666- 
 
 unlfss they had satisfied the minds 670). 
 
 of the jury by the preponderance "This charge was a fair, full and 
 
 of the evidence on all the material impartial statement of the law as 
 
 Issues raised by the pleadings." applicable to the case as presented.
 
 §2358.] WATERCOURSES. 1521 
 
 (b) The plaintiff cannot recover for any damages sustained by him 
 by reason of beets or other substances which escaped into B. Creek 
 from the defendant's premises, and which passed into the flume 
 between the penstock and the water wheels of the plaintiff, and into 
 said water wheels, before he had placed in the raceway a suitable 
 rack, if such rack would have prevented the passage of such beets 
 and substances into said flume and water wheels. Now, I was asked 
 orally by counsel for plaintiff to modify that or add to it by saying 
 that he could I'ecover nothing for the obstruction to his wheel by 
 beets for a reasonable time, and I am willing to add those words; 
 but I feel obliged to say to you in that connection, that it does seem 
 to me that a man who was skilled in the operation of the mill, and 
 was familiar with the flowage of water that constitutes mill power, 
 would have known veiy quickly after he discovered that beets were 
 in his wheel that a rack was essential in order to keep them away, 
 so that if one day if he knew beets were going in there, to my mind, 
 would give him notice — any brief time. Perhaps one day might be 
 a little too short a time, but, if he knew that they were passing 
 in and obstructing it, it would, to my mind, oblige him to erect a 
 suitable rack to stop their passage into the wheel. Now, that re- 
 quest has no bearing whatever upon the question of whether the- 
 beets were brought down there which obstructed the flow of water 
 at the rack itself. That refers only to the passage of beets into the 
 wheel from the fact that no rack was there.^^ 
 
 § 2358. Embankments — Obstructions — Party Acquiring Interest 
 After Erection — Right of Action. The court further instructs the 
 jury that this duty (to construct and maintain his road across 
 streams and natural watercourses which it intersects as to inflict no 
 injury upon adjacent lands) is a continuing one, and that each over- 
 flow caused by the negligence or want of skill of the company creates 
 a new cause of action for damages to the crops or other property of 
 the rightful possessor of the lands overflowed, although the plaintiff 
 acquired his interest after the creation of the obstruction; and if 
 the jury believe, under the evidence, that a portion of the waters 
 in the Little Canteen Creek naturally flowed south across the right 
 of way of defendant prior to the filling up of the trestle, and would 
 still continue to do so except for the obstruction of the embankment 
 complained of, then they must find for the plaintiff, giving such dam- 
 ages as the jury can say from the evidence he has sustained, if they 
 further believe, from the evidence, he has sustained damage by 
 
 See the following- cases: Dumont 106 Mich. 412. 64 N. W. 329; Stock 
 
 V. Kellogg-, 29 Mich. 420, 18 Am. v. Township of Jefferson. 114 Mich. 
 
 Rep. 102; Booming Co. v. Speechly. 357. 72 N. W. 132, 38 L. R. A. 355; 
 
 31 Mich. 336, 18 Am. Rep. 184; Bu- People v. Hulhert. 131 Mich. 156, 
 
 chanan v. Log Co., 48 Mich. 367, 91 N. W. 211, 64 L,. R. A. 265, and 
 
 12 N. W. 490; Woodin v. Went- the many cases cited therein." 
 worth. 57 Mich. 278, 23 N. W. 813; 11— Neely v. Detroit Sugar Co., 
 
 Wooden v. Lumber & Mfg. Co., supra. 
 
 96
 
 1522 FORMS OF INSTRUCTIONS. [§ 2359. 
 
 reason of such embankment and partial obstruction of tbe flow of 
 the water as aforesaid.^^ 
 
 § 2359. Use of Banks of Streams — Floatage of Logs Down Naviga- 
 ble Stream. You are further instructed that the right of floatage 
 of logs or timber down a navigable or floating stream refers only to 
 the right of floatage, and does not caii-y with it the right to use 
 the banks of such navigable stream or streams above the line of 
 mean high tide. The fact that the waters in such river or slough 
 at times rise above the line of mean high tide, and in consequence 
 the logs in such river or slough were raised to an elevation above 
 the line of mean high tide, and the waters and logs for such time 
 held within the banks above the line of mean high tide, would not 
 be such a use of the banks of the stream as would entitle the ad- 
 joining landowner to collect rents or damages from the boom com- 
 pany. ^^ 
 
 § 2360. Owner of Land Bordering on a Navigable Stream Has 
 Right to Build Docks. The jury are further instructed that the 
 owner of lands or lots fronting upon a navigable stream, and of 
 which lands or lots such stream forms one of the boundary lines, 
 has a lawful right to erect docks and wharves conforming to such 
 boundaiy line in and along said river, conforming, however, to the 
 regulations of the proper public authorities for the protection of 
 the public rights in such stream; and such owner may so place 
 such docks and wiiarves as to have the benefit of the navigable part 
 of such stream, but not interfering with the public rights of naviga- 
 tion.i* 
 
 § 2361. Flooding of Land — Changing of Watercourse, (a) Not- 
 withstanding the jury may believe, from the evidence, that the 
 plaintiff's property was lost, injured or damaged by the overflow 
 of the stream in question, as alleged in plaintiff's declaration, yet 
 if they shall further believe, from the evidence, that any part or 
 portion of such property would have been equally damaged or lost 
 to the plaintiff by said overflow if the defendant company had not, 
 prior thereto, done any of the acts changing the watercourse in 
 
 12 — Ohio & Miss. Ry. Co. v. Thill- tion against the company for in- 
 
 man, 143 III. 127 (132), 32 N. E. 529, jury thereby occasioned to the 
 
 36 Am. St. 359. crops upon such land (p. 136). C. 
 
 "We see no objection to this in- R. I. & P. R. R. Co. v. Moffltt, 75 
 struction. It announces the doc- 111. 524, 7 Am. St. 342; Groff v. Ark- 
 trine that the duty of the railroad enbrandt, 124 111. 51, 15 N. E. 40; 
 in this regard is a continuing one, C. B. & Q. R. R. Co. v. Schaeffer, 
 and that every continuance of a 124 111. 24, 16 N. E. 239; Drake v. 
 nuisance is in judgment of law a C. R. I. & P. Ry. Co., 63 la. 302, 
 fresh nuisance. Each overflow 19 N. W. 215; Dorman v. Ames, 12 
 upon the land of an adjoining own- Minn. 451." 
 
 er caused by the negligence or 13 — Lownsdale et ux. v. Gray's 
 
 want of skill of the railroad com- Harhor Room Co., 36 Wash. 198, 
 
 pany In its mode of constructing 78 Pac. 904 (907). 
 
 or maintaining a bridge or em- 14 — R. & I. P. Ry. Co. v. Leisy 
 
 bankment over a running water- Brewing Co., 174 111. 547 (550)^ 51 
 
 course, creates a new cause of ac- N. E. 572.
 
 § 2362.] WATERCOURSES. 1523 
 
 question charged against it in the plaintiff's declaration, then the 
 jury are insti-ucted that the plaintiff cannot recover herein against 
 the defendant company for the loss of or injury or damage to any 
 such i^art or portion of said property. 
 
 (b) Notwithstanding the jury may believe, from the evidence, 
 that the plaintiff's pi'operty was injured and damaged by the over- 
 flow of the stream in question, as alleged in plaintiff's declaration, 
 yet if they shall further believe, from the evidence, that the same 
 loss and damage would have occurred from said overflow if the de- 
 fendant eomjiany had not, pinor thereto, done any of the acts chang- 
 ing the watercourse in question charged against it in the plaintiff's 
 declaration, then the jui-y will find the defendant guilty.^^ 
 
 § 2362. Extraordinarj^ Freshet — Onus on Defendant to Prove Ab- 
 sence of Negligence — Act of God. (a) The jury are instructed that 
 the onus, then, is upon the defendant to prove the absence of negli- 
 gence, unless, as I have charged you, that the proof satisfies your 
 minds, that the act of God in sending an extraordinary freshet was 
 the entire cause of injury to the plaintiff's lands, which if so, would 
 of course in itself show the absence of negligence. 
 
 (b) If the injury here complained of was caused by an extraor- 
 dinary freshet, which could not be foreseen and provided against — 
 in other words was the act of God, and such act was the sole cause 
 of the injuiy — then the proof of the fact would be a perfect shield, 
 and the plaintiffs could not recover.^^ 
 
 (c) A railroad company is bound to provide in the construction 
 of its road against all injury and damages arising from ordinary 
 floods and freshets. It is only relieved from its liability when it 
 is shown that the flood or freshet was an unusual or extraordinaiy 
 one — in other words, that it was the act of God — an act w^hich could 
 not have been anticipated and provided against.^'' 
 
 (d) The juiy are instructed that although the railroad company 
 constructed its piers and bridge prudently and in a scientific man- 
 ner, yet if the testimony satisfies your minds that it subsequently 
 appeared that the construction was such that damages would result 
 from the bridge and piers, and the railroad company could have 
 
 15— R. I. & P. Ry. Co. v. Krapp, was in accordance with the doc- 
 
 173 111. 219 (222), 50 N. E. 663. trine laid down in Thompson's 
 
 16 — Jones v. Seaboard Air Line Commentaries on the Law of Neg- 
 
 Ry. Co., 67 S. C. 181, 45 S. E. 188 ligence and other authorities re- 
 
 (195). lied on by defendant. There is no 
 
 "The charg-e to the effect that, if intimation in the charge that the 
 
 the damage was produced by ex- railroad should be held to be a 
 
 traordinary freshets, but if it would warrantor against injury arising 
 
 not have occurred, notwithstanding from placing structures for its 
 
 the unprecedented floods, but for bridge in the river. On the con- 
 
 the negligence of the defendant, trary, the jury w'ere distinctly told 
 
 the defendant would still be liable, only reasonable care and diligence 
 
 is supported by reason and by an should be required." 
 
 unbroken line of authority. In ad- 17 — Jones v. Seaboard Air L. Ry. 
 
 dition to the familiar decisions in Co., supra, 
 this state, the charge on this point
 
 1524 
 
 FORMS OF INSTRUCTIONS. 
 
 [§ 2363. 
 
 averted this damage by reasonable effort, nevertheless failed to do 
 so, it would be liable, ^^ 
 
 § 2363. Dams — Dedication. The jury on the question of dedica- 
 tion, might take into consideration the condition of the lake, and 
 the public work upon the dam, and all other facts and circumstances 
 as disclosed by the evidence; that all acts done by the defendant, 
 so far as they were for the improvement or maintenance of the 
 highway over the dam, would not be acts which could be considered 
 by the jury in connection with the question of dedication, but that 
 such facts as were done by the public upon the dam itself, and 
 not upon the highway, for the purpose of maintaining the water in 
 the lake, might be so considered.^" 
 
 18 — Jones v. Seaboard Air Line 
 Ry. Co., supra. 
 
 The court in comment said: "It 
 is furtlier submitted tiie circuit 
 judge was in error in cliarging- that 
 the burden of proof was on the de- 
 fendant to establish its defense 
 that the damage, if any, was due 
 solely to unprecedented floods. It 
 will be observed that in the charge 
 the court had already laid upon 
 the plaintiffs the burden of prov- 
 ing their case, as alleged by a pre- 
 ponderance of the evidence. The 
 third paragraph cf the answer al- 
 leging as a cause of damage 'fre- 
 quent and unusual high freshets' 
 
 was regarded by the defendant, 
 without objection by plaintiffs, as 
 setting up the affirmative defense 
 of floods so extraordinary that the 
 prudent and careful could not be 
 expected to anticipate them or pro- 
 vide against them. This being an 
 affirmative defense, the burden was 
 on the defendant to establish it. 
 The plaintiffs could not be required 
 to overthrow it until it had been 
 made out. Frost v. Berkeley, 42 
 S. C. 402, 20 S. B. 280, 26 L. R. A. 
 693, 46 Am. St. Rep. 736; Ellis v. 
 R. R. Co., 24 N. C. 138." 
 
 19— Boye v. City of Albert Liea. 
 93 Minn. 121, 100 N. W. 642 (643).
 
 CHAPTER LXXXIV. 
 WILLS. 
 
 See Erroneous Instructions, same chapter head, Vol. III. 
 
 NATUKE OF WIXLS AND GENERAl, 
 
 REQUISITES FOR EXERCISING 
 
 TESTAilENT AKY POWER. 
 
 § 2364. Power of testator to exclude 
 relatives from a share in 
 his estate. 
 
 §2365. Witnessing will— What is 
 sufficient. 
 
 § 2366. Change of domicile. 
 
 CAPACITY TO MAKE WILLS. 
 
 § 2367. Insanity — Issue to be tried. 
 
 § 2368. Sanity is presumed. 
 
 § 2369. Burden of proof in case of 
 insanity — Rule supported 
 by weight of authority — 
 Burden of proof on con- 
 testant, where due execu- 
 tion proved. 
 
 § 2370. Same subject— Rule that 
 burden of proof is on pro- 
 ponent. 
 
 § 2371. Same subject — Rule as to 
 burden of proof in Illinois. 
 
 § 2372. Sound and disposing mind 
 and memory. 
 
 § 2373. Test of testamentary capac- 
 ity. 
 
 § 2374. Testamentary capacity. 
 
 S 2375. Letters as evidence of testa- 
 mentary capacity. 
 
 § 2376. Partial insanity— Monomania. 
 
 5 2377. Time at which unsoundness 
 of mind must exist to de- 
 feat will. 
 
 § 2378. Settled insanity presumed to 
 continue. 
 
 § 2379. Intoxication. 
 
 § 2380. Drunkenness insanity, when. 
 
 § 2381. Intoxication may produce in- 
 sanity. 
 
 § 2382. Old age does not necessarily 
 Incapacitate. 
 
 § 2383. Insane delusions — Groundless 
 suspicion not necessarily 
 nn insane delusion. 
 
 5 2384. Delusion regarding wife or 
 child's property. 
 
 §2385. Right of testator to dispose 
 of property as he pleases. 
 
 5 2386. Previously expressed pur- 
 poses. 
 
 1525 
 
 § 2387. Will as evidence of insanity. 
 
 § 2388. Jury must determine ques- 
 tion of soundness of mind 
 and memory from whole 
 evidence. 
 
 § 2389. Expert testimony. 
 
 § 2390. When w^ant of sufficient 
 mental capacity is proven, 
 jury need not consider 
 questions of fraud or un- 
 due influence. 
 
 § 2391. On appeal from Probate 
 Court — Series. 
 
 § 2392. On contest in Chancery — 
 Series. 
 
 UNDUE INFLUENCE. 
 
 § 2393. Issue to be tried. 
 
 § 2394. Burden of proof. 
 
 § 2395. What must appear. 
 
 § 2396. Destruction of free agency 
 of testator. 
 
 § 2397. Undue influence may be in- 
 ferred from circumstances. 
 
 § 2398. Circumstances showing un- 
 due influence. 
 
 § 2399. Undue influence shown rath- 
 er by means employed than 
 by effect produced. 
 
 § 2400. Time at which undue Influ- 
 ence must be exercised to 
 defeat the will. 
 
 § 2401. Testator may dispose of 
 property as he pleases. 
 
 § 2402. Same subject — But jury may 
 consider inequality of dis- 
 tribution. 
 
 § 2403. Undue influence must affect 
 the will. 
 
 § 2404. Legitimate influence. 
 
 § 2405. Legitimate advice or persua- 
 sion. 
 
 § 2406. Installing false beliefs in tes- 
 tator's mind. 
 
 § 2407. Parent and child. 
 
 § 2408. Husband and wife. 
 
 § 2409. Influence in bringing about 
 the marriage not to be con- 
 sidered. 
 
 § 2410. Unlawful cohabitation. 
 
 § 2411. Undue influence of attorney.
 
 1526 
 
 FORMS OF INSTRUCTIONS. 
 
 [§ 2364. 
 
 § 24x2, Physical condition of testa- 
 tor. 
 
 § 2413. Declarations and previously 
 expressed purposes of tes- 
 tator. 
 
 § 2414. Conduct of benpflciaries — 
 Undue influence of one af- 
 fects all. 
 
 § 2415. Undue influence — Series. 
 
 § 2416. Undue influence — What must 
 appear — Series. 
 
 NATURE OF WILLS AND GENERAL REQUISITES FOR EXER- 
 CISING TESTAMENTARY POWER. 
 
 § 2364. Power of Testator to Exclude Relatives From a Share 
 in His Estate, (a) The jury are instructed, that no next of kin, 
 no matter how near they may be, can be said to have any legal or 
 natural rights to their kinsman's estate, which can be asserted 
 against the will of said kinsman. The law of the land has placed 
 every person's estate wholly under the control of the owner, subject 
 to such final disposition of it as he may choose to make by his 
 last will and testament, limited only by the statutory rights of his 
 widow. 
 
 (b) Children have no natural or legal rights to the estate of 
 their father which can be asserted against his disposition of it by 
 will. 
 
 (c) All parents have a right to judge as to who are the proper 
 objects of their bounty; and, if free from undue influence and 
 insane delusions, and of sufficient mental capacity, may give their 
 property to any person whomsoever, A child has no legal or natural 
 right to the estate of its father which courts or juries can recognize 
 against the will of the father.^ 
 
 § 2365, Witnessing Will— What Is Sufficient, (a) The court in- 
 structs the juiy, that if they believe, from the evidence (given by 
 the subscribing witnesses), that the deceased signed the paper, pur- 
 porting to be his will, in the presence of one of the subscribing 
 witnesses, and acknowledged it to be his act and deed to the other, 
 and that they subscribed the same as such witnesses, at his request 
 and in his presence, and if the jury further believe, that the deceased 
 was of sound mind and memory at the time, then this is a compliance 
 with the law, and is prima facie evidence of the due execution of 
 the will. 
 
 (b) The court instructs the jury, that it is not necessary that 
 the subscribing witnesses should know at the time of attesting it 
 that it is the will, or that they should know the contents of it. 
 
 (c) If the witnesses to a will, while signing their names thereto, 
 as such witnesses, are in such a place that the testator can see them, 
 if he chooses to, they are to be regarded as in his presence, within 
 the meaning of the statute, and it is not necessary that they shall 
 
 1— Brace v. Black, 125 111. 33, 17 N. E. 66.
 
 § 2365.] WILLS. 1527 
 
 be in the same room with the testator, or that he shall actually see 
 them sign. 2 
 
 (d) The court instructs the jury that the issue in this case is, 
 is the paper offered in evidence purporting to be the last will and 
 testament of J., in fact the last will and testament of J. 
 
 (e) The court instinicts the juiy that it devolves on the defendants 
 to show by a preponderance of the evidence that the following facts 
 are true, before the juiy are authorized to find the paper writing 
 offered in evidence to be the last will of J.: — First, it must be at- 
 tested by two or more credible witnesses; second, two of the wit- 
 nesses must testify that they saw testator sign the will in their 
 presence, or that he acknowledged same to be his act and deed, and 
 that they signed the same as witnesses thereto >at his request.^ 
 
 (f) To make a legal attestation the test is, was there an un- 
 inteiTupted view between the alleged testator and the subscribing 
 witnesses, and were the witnesses within the range of the alleged 
 testator's vision his condition as to health and posture being con- 
 sidered when the alleged attesting was done. "Was the alleged will 
 then present, and could the alleged testator in his then condition 
 and posture have seen, if he had wished to and had looked in the 
 proper direction, enough of the persons of the alleged witnesses, and 
 enough of the act then being done by them, to know on his part 
 from what he could so have seen if he had wished to, and from 
 what he knew of the then surrounding circumstances that the al- 
 leged witnesses were then signing their names as witnesses to the 
 alleged testator's proposed will"? 
 
 (g) You are further instn;eted that, if you believe, from the 
 evidence, that at the time of the alleged attestation of D.'s alleged 
 will now in dispute, that the alleged witnesses were in the same 
 room with said D. and only a few feet from him, that the view 
 between him and them was uninterrupted and they were within the 
 range of his vision; and if you further believe, from the evidence, 
 and the then surrounding circumstances proved upon the trial in 
 connection with the alleged attestation of said alleged will, that 
 said D., taking into account his then condition or state of health 
 and his then position as shown by the evidence, either saw, or could 
 have seen if he had wished to and had looked in the proper direction, 
 the alleged witnesses themselves, and enough of the act then being 
 done by them to know on his part, from what he so saw or might 
 have seen if he had wished, and from what he knew of the then 
 surrounding circumstances, that the alleged witnesses were then 
 signing their names as witnesses to his, D.'s, proposed will, then 
 upon that question you should find the alleged will in question to have 
 been properly attested. 
 
 2— Ambre v. "Weishaar, 74 111. 109. the requirements as to witnessini? 
 
 The statutes of the state where wills, 
 
 the will is executed or the property "—Campbell v. Campbell, 138 111, 
 
 located should be consulted as to 612 (618), 28 N. E. 1080.
 
 1528 FORMS OF INSTRUCTIONS. [§ 2366. 
 
 (h) Relative to the witnessing or attestation of the alleged will 
 in question, the court instructs tlie jury that the statute of Illinois 
 provides that all wills shall be attested, in the presence of the 
 testator, by two or more credible witnesses; and if you believe, from 
 the evidence, that D. signed the alleged will in question in the 
 
 presence of and , and after he so signed the same 
 
 they took said will to a writing desk a short distance from the foot 
 of the bed, and within the range of testator's vision, and that the 
 said D. was sitting on said bed, and they there subscribed their 
 names to the attestation clause of said alleged will in full and unin- 
 terrupted view of the said testator, then this is a sufficient attestation 
 of the will in question and full compliance with the law on that 
 subject. 
 
 (i) While the presumption of the law is, that where the will is 
 signed by the attesting witnesses in the same room with the testator 
 that it is signed in his presence, yet that is only a. presumption ; and 
 where the evidence shows that the witnesses were in such position 
 that the testator could not see the paper nor see the witnesses when 
 signing it, the presumjotion of the law is overcome.'* 
 
 § 2366. Change of Domicile. If you believe from the evidence that 
 A. went to Kentucky, and it was her avowed purpose — her expressed 
 intention — to make that her home, or if she went there on a visit, 
 and, after s.he arrived there, if she 'then decided to make that her 
 domicile, and there so expressed her avowal of intention to make it 
 her residence, then that would constitute a good change of residence, 
 provided you believe from the evidence that she had sufficient mental 
 capacity to form an intention of changing her residence.^ 
 
 CAPACITY TO MAKE WILLS. 
 
 § 2367. Insanity — Issue to be Tried, (a) The jury are instructed, 
 that the only question in this case for them to try is this: Is the 
 writing offered the will of A. B., deceased?. And your verdict will 
 be, either that it is his will, or that it is not. 
 
 (b) The question to be passed upon by the jury is this: Was 
 the mind and memory of the deceased, at the time of the making of 
 the alleged will, sufficiently sound to enable him to know and un- 
 derstand the business in which he was engaged at the time he exe- 
 cuted the will, judging his competence of mind by the nature of the 
 act to be done, and from -a consideration of all the circumstances in 
 the case.** 
 
 4 — The above instructions were For otlier instructions on dom?- 
 
 approved in Drury v. Connell, 177 cile, see chiapter on Domicile and 
 
 111. 43 (48), 52 N. K. 368. Residence. 
 
 5— Whedori v. Knight, 112 Ga. 639, 6— Trisk v. Newell, 62 111. 196. 
 37 S. E. 972 (973).
 
 § 2368.] WILLS. 1529 
 
 § 2368. Sanity is Presumed, (a) The court instructs the jury, 
 that in all cases involving questions of sanity and insanity, prima 
 facie the person is sane, and when there is only evidence sufficient 
 to raise a doubt of a person's insanity, the presumption in favor of 
 sanity must prevail. When a will or other instrument is made by 
 a person of competent age, and under no legal disability, it Avill be 
 taken and held to be valid and binding until incompetencj' is estab- 
 lished, by a preponderance of evidence.'^ 
 
 (b) Reason being the common gift of God to man, every man is 
 presumed to be sane, and insanity can only 'be proved by clear and 
 unexceptionable evidence.* 
 
 (c) The court instructs the jury that the law presumes, and it is 
 your duty to presume, that every man who has arrived at the years 
 of discretion is of sound mind and memory and capable of trans- 
 acting ordinary business and capable of disposing of his property 
 by will or otherwise, until the contrary is shown, and the court in- 
 structs you that it is your duty to hold that C. at the time he exe- 
 cuted the will offered in evidence was of sound mind and memory, 
 and to so hold until you believe by the preponderance of the evidence 
 that he was otherwise.'' 
 
 § 2369. Burden of Proof in Case of Insanity — Rule Supported by 
 Weight of Authority — Burden of Proof on Contestant, Where Due 
 Execution Proved, The jury are instructed, that when a will is 
 2:)roved, including soundness of mind and memory, on the part of the 
 testator, by the testimony of two subscribing witnesses, and un- 
 soundness of mind is alleged as a ground for setting the will aside, 
 the fact of insanity, or of unsoundness of mind, must be established 
 with reasonable certainty; the evidence of insanity should prepon- 
 derate, or the will must be taken as valid. If there is only a bare 
 balance of evidence, or a mere doubt only, of the sanity of the tes- 
 
 7 — Wyatt v. Walker, 44 111. 485. mental capacity, as required by 
 
 8 — Dominick v. Randolph, 124 the statute, and there was no ques- 
 
 Ala. 557, 27 So. 481 (485). tion in the case that such proof 
 
 "This charge asserted a correct was not made. The burden of 
 
 legal proposition. Cotton v. Ulmer, proof was then upon the contest- 
 
 45 Ala. 378." ants to prove the allegations of 
 
 The court instructs you that their bill by a preponderance of 
 
 every person is presumed to be of the evidence that the testator was 
 
 sound mind until the contrary is mentally incompetent, and that the 
 
 shown. Blough v. Parry, 144 Ind. proponents were entitled to the le- 
 
 95, 463, 40 N. E. 71, 43 N. E. 560. gal presumption of sanity as stated 
 
 9 — Craig v. Southard, 162 111. 209, in the instruction. As said in Car- 
 
 44 N. E. 393. penter v. Calvert, S3 111. 62. 'In 
 
 The Supreme Court, in its opin- weighing the conflicting proofs, the 
 ion, said: "The court had already party supporting the will is en- 
 instructed the jury that it was in- titled to the benefit of this pre- 
 cumbent upon the proponents of sumption.' See also "Wilbur v. 
 the will to make out a prima facie Wilbur, 129 111. 392. 21 N. E. 1076. 
 case in the first instance by proper where the same question was con- 
 proof of the due execution of the sidered. The instruction was not 
 will by the testator, and of his erroneous."
 
 1530 FORMS OF INSTRUCTIONS. [§ 2370, 
 
 tator, the presumption in favor of sanity, if proved as above stated, 
 must turn the scale in favor of the sanity of the testator.^" 
 
 § 2370. Same Subject — Rule that Burden of Proof Is on Proponent, 
 (a) Wlien the party insisting on the probate of the will has estab- 
 lished the sanity of the testator, at the making of the will, by the 
 oath or affinnation of two of the subscribing witnesses, and that the 
 will was legally executed, .acknowledged and witnessed, as explained 
 in these instructions, then a prima facie ease is made out ; and in 
 such a case, the party seeking to contest the will, on the ground of 
 insanity, fraud, compulsion, or for any other cause, takes upon him- 
 self the burden of pi'oving the ground relied upon; and the cause 
 relied upon must be proved by a preponderance of evidence ; and if 
 the question is left evenly balanced, the vei'dict should be in favor 
 of the validity of the will. 
 
 (b) The jury are instructed, that the burden of proof is upon the 
 party asserting the sufficiency of 'the will to prove that, at the time 
 of its execution, the testator was of sound mind and memoiy, within 
 the meaning of the law, as explained in these instructions, and this 
 is to be determined by the jury, not alone from the statements or 
 evidence of any one or more persons, or class of witnesses, but from 
 a consideration of the whole evidence in the case. 
 
 (c) The 'burden of proving testamentary capacity is on the party 
 alleging it, to the end of the trial, and such person must produce 
 evidence sufficient to outweigh that which is opposed to sanity, or 
 else sanity is not proved — and if the jury find that the evidence 
 relating to the 'testator's mental soundness is equally balanced, then 
 they must not allow the presumption of sanity to decide the question 
 in favor of soundness. The burden of proof is upon the party al- 
 leging it to establish mental capacity by other evidence than the 
 presumption of sanity.^'^ 
 
 (d) The court declares the law to be that the burden of proof is 
 upon the defendants in this case to prove the proper execution and 
 
 10 — Perkins v. Perkins, 39 N. H. or details with the sanity of the 
 
 163; Brooks v. Barrett, 7 Pick. 91; testator, the presumption of law 
 
 Turner v. Cook, 36 Ind. 129; Terry makes out for them a prima facie 
 
 V. Buffing-ton, 11 Ga. 337; In re case, and the burden of showing 
 
 Coffman, 12 la. 491; Cotton v. Ul- incapacity on the part of the tes- 
 
 mer, 45 Ala. 378. tator is shifted to the contestants. 
 
 In Hennlng v. Stevenson, 26 Ky. This rule has since been followed 
 
 L. 159, 80 S. W. 1135 (1136), the in Flood v. Pragoff, 79 Ky. 611; 
 
 court said of this rule: Fee v. Taylor, 83 Ky. 259; Branel 
 
 "In Milton v. Hunter, 13 Bush v. Bramel, 101 Ky. 72, 39 S. W. 
 
 (Ky.) 163, this court in a well con- 520; Howat v. Howat, 19 Ky. Law 
 
 sidered opinion by Chief Justice 756, 41 S. W. 771; Boone v. Ritchie, 
 
 Lindsay, condemned an instruction 21 Ky. L. 864, 53 S. W. 518; King 
 
 which placed the burden of proof v. King-, 19 Ky. L. 868, 42 S. W. 
 
 as to tcsttimontary capacity upon 347; Woodford v. Buckner, 23 Ky. 
 
 the propouiidcrs, and laid down the L. 628, 63 S. W. 617; Dunnway v. 
 
 rule that when they have proved Smoot, 23 Ky. L. 2291, 67 S. W. 62." 
 
 the due execution of a paper, not 11 — Frazer v. Jennison, 42 Mich, 
 
 irrational in its provisions, nor in- 206, 3 N. W. 882. 
 consistent in its structure, language
 
 §2371.] 
 
 WILLS. 
 
 1531 
 
 attestation of the will in question, and that the testatrix was of 
 sound mind at the time of the execution of said will; and. unless the 
 defendants or proponents of said will, have shown such facts by a 
 preponderance of the testimony, the issues will be found for the 
 plaintiffs. ^2 
 
 § 2371. Same Subject — Rule as to Burden of Proof in Illinois, 
 (a) You are instructed that the burden of proof is upon the proponent 
 
 to show that the will offered by him was signed by E. on , and 
 
 unless he has proven such execution by a preponderance of the evi- 
 dence, you should find for the contestants. But if you believe, from 
 the evidence, that E. did execute the instrument offered as a will, 
 and that the same was attested by two credible witnesses in her 
 presence, and that the two subscribing witnesses have sworn that at 
 the time she executed it she was of sound mind, then the burden 
 shifts, and the contestants assume the burden of proving the testa- 
 trix was not of sound mind as defined in these instructions.^^ 
 
 (b) The jury are instructed that, where an instrument purporting 
 to be a will is proved, including soundness of mind and memorj' on the 
 part of the testator by the testimony of the subscribing witnesses 
 and other witnesses, and unsoundness of mind is alleged as a ground 
 for setting the will aside, the fact of insanity or of unsoundness of 
 mind must be established by a preponderance of the evidence. The 
 
 12— Lorts v. Wash, 175 Mo. 487, 
 75 S. W. 95. 
 
 13— Egbers v. Egbers, 177 111. 82 
 (87), 52 N. E. 285. 
 
 "As said by the learned author 
 of the article entitled 'Burden of 
 Proof in 5 Am. & Eng-. Ency. of 
 Law, 2d ed., the term 'burden of 
 proof has two distinct meanings; 
 by one is meant the duty of estab- 
 lishing the truth of a given propo- 
 sition or issue by such a quantum 
 of evidence as the law demands in 
 the case in which the issue arises; 
 by the other is meant the duty of 
 producing evidence at the begin- 
 ning or at any subsequent stage 
 of the trial in order to make or 
 meet a prima facie case. General- 
 ly speaking, the burden of proof, 
 in the sense of the duty of pro- 
 ducing evidence, passes from party 
 to party as a case progresses, while 
 the burden of proof, meaning the 
 obligation to establish the truth 
 of the claim by a preponderance 
 of the evidence, rests throughout 
 upon the party asserting the af- 
 firmative of the issue, and unless 
 he meets this obligation upon the 
 whole case he fails. This burden 
 of proof never shifts during the 
 course of a trial, but remains with 
 him to the end. This court has 
 
 repeatedly said that the law pre- 
 sumes every man to be sane until 
 the contrary is proved, and the 
 burden of proof rests upon the 
 party alleging insanity. (Argo v. 
 Coffin, 142 III. 368. 32 N. E. 679, 34 
 Am. St. 86; Guild v. Hull. 127 111. 
 523, 20 N. E. 665; Menkins v. 
 Leightner, 18 111. 282.) But it is 
 incumbent upon the proponents of 
 the will to make out a prima facie 
 case in the first instance by proof 
 of the due execution of the will by 
 the testator and of his mental ca- 
 pacity, as required by the statute. 
 The burden of proof is then upon 
 contestants to prove the allega- 
 tions of their bill by a preponder- 
 ance of all the evidence that the 
 testator was mentally incompetent. 
 The law throws the weight of the 
 legal presumption in favor of san- 
 ity into the scale in favor of the 
 proponents, from which it neces- 
 sarily results that, upon the whole 
 case, the burden of proof rests 
 upon the contestants to prove the 
 insanity of the testator. (Craig v. 
 Southard. 162 III. 209, 44 N. E. 393; 
 same v. same, 148 111. 37. 35 N. E. 
 361; Taylor v. Pegram, 151 111. 106, 
 37 N. E. 837; Wilbur v. Wilbur, 129 
 111. 392, 21 N. E. 1076; Carpenter 
 V. Calvert, 83 111. 362)."
 
 1532 FORMS OF INSTRUCTIONS. [§ 2372. 
 
 evidence of insanity should preponderate, or the will must be taken 
 as valid. If the evidence is evenly balanced as to the sanity of the 
 testator, the presumption in favor of sanity, if proved, as above 
 stated, must turn the scale in favor of the sanity of the testator.^* 
 
 § 2372. Sound and Disposing Mind and Memory, (a) The law 
 is, that to be of sound and disposing mind and memory, so as to be 
 capable of making a valid will, it is sufficient if the testator has an 
 understanding of the nature of the business in which he is engaged — 
 a recollection of the property he means to dispose of — of the persons 
 who are the objects of his bounty, and the manner in which it is to be 
 distributed among them. It is not necessary that he should compre- 
 hend the provisions of his will in their legal form. It is sufficient 
 if he understands the actual disposition which he is making of his 
 property at the time. 
 
 (b) If the mind and memory of a testator are sufficiently sound 
 to enable him to know and understand the extent and amount of his 
 property, and his just relations to the natural objects of his bounty, 
 and the business in which he is engaged, at the time of executing 
 his will, then he is of sound mind and memory within the meaning 
 of the law." 
 
 (c) The court instructs the juiy for contestants that in determin- 
 ing the issue in this ease as to whether N. had sufficient mind and 
 memory to make the will offered in evidence, the inquiry is to be 
 made in view of the circumstances of this ease as shown by the evi- 
 dence, and a determination reached by a consideration of the nature 
 and character of the business about to be pei"foi'med in the making 
 of said will as shown by the evidence. He must have had at the 
 time an intelligent comprehension of the surrounding circumstances, 
 and of their direct consequences and probable results. To constitute 
 a sound disposing mind, the testator must have been able not only to 
 understand that he is by will disi30sing of his property, but he also 
 must have capacity sufficient to comprehend the extent of the prop- 
 erty devised, and the claims of others upon him ; and if the juiy 
 believe, from the evidence, that at the time of making the will in 
 controversy, N. did not possess such sound and disposing mind as 
 described in these instructions, then they should find that the paper 
 purporting to be the last will of N. is not his last will.^*' 
 
 14 — Hollenbeck v. Cook, 180 111. 65 scribing witnesses, the weight of 
 
 (70), 34 N. E. 154. the legal presumption in favor of 
 
 "The instruction in its material sanity is in favor of the proponent, 
 parts is sustained by Wilbur v. from which it necessarily results 
 Wilbur, 129 111. 392, 21 N. E. 1076, that upon the whole case the bur- 
 where it was held that, in the con- den of proof rests upon the con- 
 test of a will upon the question of testants. See also Graybeal v. 
 testamentary capacity, the law Gardiner, 146 111. 337, 34 N. E. 528, 
 throws the burden of proving the where the same doctrine is an- 
 snnity of the testator, in the first nounced." 
 
 instance, on the party asserting 1.5 — Freeman v. Easley, 117 III. 
 
 the validity of the will; but, after 317, 7 N. E. 6.'S6. 
 
 a prima facie case has been made 16 — Campbell v. Campbell, 138 111. 
 
 out by the testimony of the sub- 612, 28 N. E. 1080.
 
 § 2373.] WILLS. 1533 
 
 (d) By sound mind or testamentary' capacity, as used in these in- 
 structions, is meant such capacity on the part of the decedent as to 
 enable him to know his estate, the extent and value, his children and 
 heirs at law, and their natui'al claims on his bounty, and to take a 
 rational sui'vey of his estate and dispose of the same according to a 
 fixed puipose of his own.^'^ 
 
 § 2373. Test of Testamentary Capacity, (a) The jury are in- 
 structed, that a testator, not affected with any morbid or insane de- 
 lusion as to any o-f the natural objects of his bounty, possesses testa- 
 mentary capacity, within the meaning of the law, if he has a clear 
 understanding of the nature of the business in which he is engaged, 
 of the kind and value of the property devised, and of the persons 
 who are the natural objects of his bounty, and of the manner in 
 which he desires his property to be distributed.^^ 
 
 (b) The will in question in this ease is not a valid will unless 
 the jui-y believe, from the evidence, that the testator, A. B., not only 
 intended to make such a disposition of his property, as is here made, 
 of his own free will, but was also capable of knowing what he was 
 doing, of understanding to whom he was giving his property and in 
 "what proportions, and whom he was depriving of it as his heirs who 
 would otherwise have inherited it ; and was also capable of under- 
 standing the reasons for giving or withholding his bounty as to 
 them.19 
 
 § 2374. Testamentary Capacity, (a) The jury are instructed, 
 that what is meant by testamentary capacity, as used in these in- 
 structions, is a rational understanding on the part of the testator at 
 the time of the making of his will, of the business he was engaged in, 
 of the kind and value of the property devised, of the persons who 
 were the natural objects of his bounty, and of the manner in which 
 he wished to dispose of his property, unaffected by any morbid and 
 insane delusion regarding any of these subjects. 
 
 (b) The jury are instructed, that in order to make a valid will the 
 law requires that a person shall be of sound and disposing mind and 
 memory, as defined in these instructions — and testamentaiy incapacity 
 does not necessarily require that a person shall be technically insane. 
 Weakness of intellect, whether it arise from extreme old ago, from 
 disease or great bodily infirmity or suffering, or from intemperance, 
 or from all of these combined, may render the testator incapable of 
 making a valid will, provided, such weakness really disqualifies him 
 from knowing or appreciating the nature, effects or consequences of 
 the act he is engaged in.-** 
 
 (c) The court further instructs the juiy before thej^ can find the 
 
 17 — Oberdorfer v. Newberger, 23 Mich. 363; Frazer v. Jennison, 42 
 
 Ky. L. 2323, 67 S. W. 267 (268). Mich. 206, 3 N. W. 882. 
 
 18 — Frazer v. Jennison, 42 Mich. 20 — McGinnis v. Kempsey, 27 
 
 206, 3 N. W. 882. Mich. 363. 
 
 19 — McGinnis v. Kempsey, 27
 
 1534 FORMS OF INSTRUCTIONS. [§2375. 
 
 respondent, S., is a distracted person, they must believe, from the 
 evidence, that she is so far incapable of acting rationally in the 
 ordinary affairs of life and of comprehending the nature and value 
 of property, as to be incapable of transacting or jDrocuring to be 
 transacted ordinary business. And if upon the question as to whether 
 or not respondent is capable or not of transacting ordinary business 
 or procuring it to be transacted, the jury believe the evidence to be 
 equally balanced or that the evidence preponderates in favor of the 
 respondent, the jury must find in favor of the respondent, and that 
 she is not a distracted person.-^ 
 
 (d) The jury are instructed that testamentary capacity, or pos- 
 session of sufficient mind to make his will, is like the capacity to 
 attend to his own affairs, if the bodily health would permit his atten- 
 tion to them; and no man who is incompetent mentally to transact 
 his ordinary business can be pronounced capable of making his will. 
 It is also necessaiy that the testator should have a recollection of 
 his property, as well as the natural relations of family and blood, 
 and, if he did not himself write the will or read it, that the same 
 should have been read and explained to him, so as to be fully under- 
 stood and comprehended by him.-- 
 
 § 2375. Letters as Evidence of Testamentary Capacity. The court 
 further instructs you that in arriving at your verdict it is right and 
 proper for you to consider the eleven letters offered in evidence by 
 proponent as the letters of S., deceased. There has been no attempt 
 on the part of contestant to disprove the evidence that they were the 
 letters of the deceased, and were written and mailed at times detailed 
 in the testimony; and if you believe that they were respectively, the 
 letters of said deceased, then they are important for you to consider 
 in arriving at your verdict on the following points: First, as to the 
 ability of the deceased to write; second, as to the ability of the 
 deceased to compose; third, as to the ability of the deceased to see; 
 fourth, as to the mental capacity of said S., deceased; fifth, as to the 
 
 feelings entertained by the deceased toward his son, , at the time 
 
 said letters were written, respectively.-^ 
 
 § 2376. Partial Insanity — Monomania, (a) The court instructs 
 the jury, that "a, man who is very sober and of right understanding 
 in all other things, may, in some one or more particulars," be in- 
 sane; that there is a partial insanity, and a total insanity; and that 
 such partial insanity may exist as it respects particular persons, 
 things or subjects, while, as to others, the person may not be desti- 
 
 21— Snyder v. Snyder, 142 111. 60 struction would probably be held 
 
 (66), 31 N. E. 303. to require too great a degree of 
 
 22— Kischman v. Scott, 166 Mo. mental capacity in the testator, as 
 
 214, 65 S. W. 1031 (1034), citing Mc- a person might be unable to trans- 
 
 Rrido V. Banguss, 65 Tex. 174; Ad- act ordinary business and still 
 
 ams V. Eddy, — Tex. Civ. App. have testamentary capacity. 
 
 — , 29 R. W. 180; Cabell v. Menczer, 23— Stull v. Stull, 1 Neb. (unof.) 
 
 — Tex. Civ. App. — , 35 S. W. 206. 380 (389), 96 N. W. 196. 
 
 In the majority of states, this in-
 
 § 2376.] WILLS. 1535 
 
 tute of the use of reason. And, although a testator has some insane 
 delusion upon some subjects, yet, if he has mind enough to know and 
 appreciate his relation to the natural objects of his bounty, and the 
 character and effect of the dispositions of his property, then he has 
 a mind sufficiently sound to make a valid will. 
 
 (b) The court instructs the jury, that the law recognizes the dif- 
 ference between general and partial insanity, and if the juiy believe, 
 from the evidence, that the will here offered was made at a time when 
 the testator was laboring under the influence of partial insanity, and 
 is the product of such partial insanity, then it is as invalid as if 
 made under the effects of an insanity ever so general. 
 
 (e) A person may have, upon some subjects, and even generally, 
 mind and memory, and sense to know and comprehend ordinary 
 transactions, and yet upon the subject of those who would naturally 
 be the objects of his care and bounty, and of a reasonable and proper 
 disposition as to them of his estate, he may be of unsound mind.-* 
 
 (d) A man may have sufficient mind to know and comprehend 
 that he is making a will and thereby disposing of his property', giv- 
 ing it to some of the natural objects of his bounty, to the exclusion 
 of others, and have an object in so doing which he fully compre- 
 hends, and yet be prompted to so dispose of his property by some 
 form of monomania. And if the monomania affected in any way or 
 entered into the making of the will, such will would be invalid and 
 should be set aside.^^ 
 
 (e) Under our statutes all persons except infants and persons of 
 unsound mind may dispose of 'their property by wdll, and the words 
 "persons of unsound mind" shall be taken to mean any idiot, non- 
 compos, lunatic, monomaniac, or distracted person. And thus the 
 term "unsound mind" includes every species of unsoundness of 
 mind. A monomaniac is a person who is deranged in a single faculty 
 of his mind, or with regard to a particular subject only. And it is a 
 fact that persons possessed of monomania may, and often do, on all 
 subjects foreign to the subject of mania, act rationally and with 
 ordinary pi-udence and judgment. While therefore, monomania is 
 embraced within our statutory definition of what constitutes un- 
 soundness of mind, yet it does not follow that every one possessed 
 of monomania is incompetent to make a valid will. You may find 
 that the testator in this case was afflicted with monomania, or with 
 delusions or any form of mental unsoundness; but it must further 
 
 24—1 Red. on Wills, 63; Jarman rectly advises the jury that if the 
 
 on Wills, 5th Am. ed. 77, 113; Pag-e testator is suffering from mono- 
 
 on Wills, § 108. mania which prompts his action 
 
 25 — Swigart v. Willard, 166 Ind. and affects his purpose, and object 
 
 25, 76 N. E. 760. in making- a will, such will would 
 
 "This instruction is criticised by be invalid. The instruction was 
 
 counsel as inconsistent and contra- tacitly admitted to be correct in 
 
 dictory in its terms. We cannot the case of Young v. Miller, 145 
 
 concur in the view of counsel in Ind. 652, 44 N. E. 757." 
 this regard. The instruction cor-
 
 1536 FORMS OF INSTRUCTIONS. [§ 2377. 
 
 appear by a preponderance of the evidence in this case that such 
 unsoundness of mind entered into and affected the provisions of- the 
 will in controversy before you can find that the testator was of 
 unsound mind with reference to the will in controversy. If the 
 monomania or unsoundness of mind does not in any degree influence 
 or affect the provisions of the will, it may be valid; but, if such 
 monomania or unsoundness of mind does influence or affect any of 
 the provisions of the will, it is invalid.^^ 
 
 § 2377. Time at Which Unsoundness of Mind Must Exist to De- 
 feat Will, (a) If the jury believe from a preponderance of the 
 evidence in this case, that at 'the time of executing the paper in evi- 
 dence, B. was not of sound mind and memory, then the jury should 
 find the paper in question is not his will.^^ 
 
 (b) You are instnicted that the material question for you to 
 determine is whether, at the time the will in controversy was exe- 
 cuted, the testator was of sound mind and understood the business 
 he was doing at that time. If the testator was of sound and dispos- 
 ing mind and memory, and acted voluntarily at the time he executed 
 the will in controversy, it is immaterial what the condition of his 
 mind was before and after that time.-® 
 
 § 2378. Settled Insanity Presumed to Continue, (a) The jury 
 are instructed, 'that when settled insanity is once shown to exist, it 
 is presumed to continue until restoration to reason is shown; but 
 such presumption arises only in eases of settled insanity, and if com- 
 plete restoration of reason is shown, then no more presumption of 
 insanity arises in the ease of the execution of a will than if the 
 testator's mind had never been affected.-^ 
 
 (b) While it is true that, in the absence of any evidence, the law 
 always presumes that a man is sane, yet if settled insanity, either 
 partial or total, be proved to exist at any time before the making of 
 a will, it will be presumed to have continued, unless the contrary be 
 shown, by a preponderance of the evidence. ^° 
 
 § 2379. Intoxication. The jury are instructed, that neither in- 
 toxication, nor the actual stimulus of intoxicating liquor at the time 
 of executing a will, incapacitates the testator, unless the excitement 
 be such as to disorder his faculties and pervert his judgment. ^^ 
 
 26 — Swigart v. Willard, supra. and it was not error to give it. 
 
 "The next instruction (e) com- (Keithley v. Stafford, 126 111. 507, 
 
 plained of was given at the request 18 N. E. 740; Town of Fox v. 
 
 of appellants, except so much of T. of Kendall, 97 111. 72. 
 
 It as defines 'monomania.' The 28— Stull v. Stull, 1 Neb. (unof.) 
 
 modification made by the court 380 (389), 96 N. W. 196. 
 
 was proper in itself and pertinent. 29 — 1 Redfield on Wills, 112. 
 
 The instruction as given was fa- 30 — Menkins v. Lightner, 18 111. 
 
 vor.'ible to appellants, and affords 282. 
 
 no just cause for complaint." 31 — Gore v. Gibson, 13 M. & W. 
 
 27— Petefish v. Becker, 176 111. 623; Gardner v. Gardner, 22 Wend. 
 
 448 (ir>?,), 52 N. R. 71. "This 526; Thompson v. Kyner, 65 Pa. St. 
 
 instruction is substantially in 368; iu re Oonvey's Will, 52 lowa 
 
 the language of the statute, 197.
 
 § 2380.] WILLS. 1537 
 
 § 2380. Drunkenness Insanity, When. The court instructs the 
 jury, that drunkenness itself is a species of insanity, and may invali- 
 date a will made during the drunken fit; and long-continued habit of 
 intemperance may gradually impair the mind and destroy its facul- 
 ties, so as to produce insanity of another kind ; drunkenness long 
 continued, or much indulged in, may produce on some minds, and 
 with some temperaments, permanent derangement and fixed insanity. 
 Whether in this case intemperate habits or drunkenness on the part 
 of the deceased have been proved, and whether his mind was thereby 
 affected, and at to what extent, if any, are questions of fact to be de- 
 termined by the juiy, from a consideration of all the evidenee.^- 
 
 § 2381. Intoxication May Produce Insanity. The court instructs 
 the jury, that while it is not the law, that a dissipated man cannot 
 execute a will, nor that one who is in the habit of excessive in- 
 dulgence in strong drink must be wholly free from its influence when 
 performing such an act ; yet, if fixed mental disease has supervened 
 upon intemperate habits, the man is as incompetent to execute a 
 valid will as though such mental disorder resulted from any other 
 cause. ^3 
 
 § 2382. Old Age Does not Necessarily Incapacitate, (a) The jury- 
 are instructed, that a man may freely make his last will and testa- 
 ment, no matter how old he may be ; provided, he has the requisite 
 mental capacity, and is a free agent in making it. The control which 
 the law gives a man over the disposal of his property may be one of 
 the most efficient means he hag in old age of commanding the atten- 
 tions usually required by his infirmities.^* 
 
 (b) You are instructed that the mere fact that a person is of great 
 age creates no presumption against the ability of such person to dis- 
 pose of property by deed or will, and in this case, although you may 
 believe from the evidence that the testatrix, P., at the time of exe- 
 cuting the paper in question, was of about the age of eighty-six 
 years, and suffering, to some extent, from weakness or bodily in- 
 firmity, yet such circumstances would not alone render her incapable 
 of disposing of her property by will as she saw fit.^^ 
 
 § 2383. Insane Delusions — Groundless Suspicion not Necessarily 
 an Insane Delusion. You are further instructed that to sustain the 
 allegation that B. was laboring under an insane delusion in regard 
 to the legitimacy of his son, it is not sufficient to show that he had 
 a suspicion to that effect, or that his suspicion was not well founded. 
 Although he may have had groundless and unjust distrust of his 
 wife's fidelity, yet such doubt does not establish a condition of 
 
 32—1 Red. on Wills, 160-162; 1 See Ames' Will v. Blades, 51 Iowa 
 
 Jarm. on Wills, 5 Am. Ed., 97; 596. 2 N. W. 408. 
 
 Wharton & Stille, §36 et seq.; Ray 35— Pooler v. Cristman. 45 111. 
 
 Med. Jur., § 390. App. 334. 338, aff'd 145 111. 405, 34 
 
 33—1 Redfield on Wills, 92 et seq. N. E. 57. 
 
 34—1 Red. on Wills, 95 et seq. 
 
 97
 
 1538 FORxVIS OF INSTRUCTIONS. [§ 2384. 
 
 lunacy or a lack of testamentary capacity, unless it appears, from a 
 preiDonderance of the evidence, that such distrust caused him to 
 execute a will he would not othei-wise have made. The right of the 
 testator to dispose of his estate depends neither on the justice of his 
 prejudices nor 'the soundness of his reasoning. He may do what he 
 will with his own, and if there is no defect of testamentary capacity, 
 the law gives effect to his will, though its provisions are unreasonable 
 or unjust.^^ 
 
 § 2384. Delusion Regarding Wife or Child's Property. The court 
 instructs the jury, that if they believe, from the evidence in this 
 case, that at the time the will in controversy was executed, the testa- 
 tor was laboring under an insane delusion in regard to the value of 
 his wife's property, and that he was influenced or controlled in the 
 making of said will by said delusion, or that the said testator was 
 laboring under an insane delusion in regard to what amount of prop- 
 erty he had already given to his daughter, and that in making said 
 will he was influenced or controlled by such delusion, then the said 
 testator w^as not of sound mind and memory, as is contemplated and 
 required by the law, and any paper purporting to be a will executed 
 by him under such circumstances, is not a valid and legal will, and 
 the jury should find the issues for the contestants.^'^ 
 
 § 2385. Right of Testator to Dispose of Property as He Pleases. 
 (a) The jury are instructed that, a pei-son competent to make a will 
 may disinherit all of his children, and bestow all of his property upon 
 strangers ; or he may give his property to one or more of his chil- 
 dren, and disinherit the others ; or he may bequeath more of his 
 property to some than to others of his children, — and the motive for 
 so doing cannot be questioned, and the hardship of the case can have 
 no other weight further than a circumstance tending, with other testi- 
 mony, to show the insanity of the testator. It is a question of fact 
 for the jury, from the evidence in this case, whether B. made an 
 unequal or unnatural disposition of his estate. If he did so, the 
 weight to be given to that fact must be determined from a considera- 
 tion of the circumstances in the case. In determining the true char- 
 acter of the will in question in reference to the parties to this suit, 
 it will be proper for you to consider the pecuniary circumstances of 
 the respective parties at the time the will was made. If, upon full 
 consideration of all the circumstances connected with the making of 
 this will, you find that the testator has made a rational and reason- 
 able disposition of his property, no presumption of unsoundness of 
 mind can be drawn from the fact that he bestowed a larger share of 
 his property upon the defendants than upon the plaintiffs. It is 
 proper for the jury to consider, with this part of the case, any 
 declaration which may have been made by the testator prior to the 
 
 3«>— Petofish V. Becker, 176 111. Jnrm. on Wills, 100 et seq.; Am. 
 448 (4?,:'.), ni N. E. 71. Bible Soc. v. Price, 115 111. 623, 5 
 
 37—1 Red. on "Wills, 72, 90; 1 N. E. 126.
 
 §2386.] WILLS. 1539 
 
 making of the will in regard to the disposition he intended to make 
 of his property. And if it should be found that when he was in good 
 health, in writing or otherwise, he declared his intention to dispose 
 of his property substantially in the same manner it is disposed of in 
 the will in suit, it is an important fact to be considered in determin- 
 ing the validity of this will, and as tending to its support. ^^ 
 
 (b) You are instructed that the testatrix had the right to dispose 
 of her property as she saw fit, and it is in itself not an indication of 
 mental incapacity to leave the bulk of her pi'operty to a charitable 
 or public institution, to the partial or total exclusion of her relatives. 
 
 (e) A testatrix may dispose of her property as she pleases, and 
 it is not an indication of mental incapacity that she distributes it 
 partially among her relatives, and leaves the balance to some one 
 else.^** 
 
 § 2386. Previously Expressed Purposes, (a) The court instructs 
 the juiy, that in determining whether the paper in question offered 
 as a will is entitled to be so regarded, the paper itself may be con- 
 sidered in connection with all the other evidence iri the case in de- 
 termining the question of sanity or unsoundness of mind. And if 
 the jury believe, from the evidence, that the deceased, before execut- 
 ing the will, had expressed any fixed purposes and intentions regard- 
 ing the disposition of his property, at variance with the provisions of 
 the alleged will, then the juiy should consider whether or not the 
 provisions of the will are inconsistent with sanity itself, and with 
 his previously expressed and fixed purposes, and if the jury find that 
 they are so, then these facts also should be weighed by the jury in de- 
 termining the question of sanity or unsoundness of mind of the de- 
 ceased at the time of its execution.*" 
 
 (b) The court instructs the jury that in determining whether the 
 paper in question, offered as a will, is entitled to be so regarded, the 
 paper itself may be considered in connection with all the other evi- 
 dence in the case. And if the jury believe from the evidence that 
 the deceased had expressed any fixed purposes and intentions re- 
 garding the disposition of his property at variance with the pro- 
 visions of the alleged will, then the jury should consider whether or 
 not the provisions of the will are inconsistent with his previously 
 expressed and fixed purposes ; and if the jury find that they are so, 
 or that deceased was unfx-iendly to the beneficiaries under the will, 
 then these facts should also be weighed by the jury in detennining 
 whether the paper offered is the will of the deceased.*^ 
 
 38— Lamb v. Lamb, 105 Ind. 456, 40— Dye v. Young, 55 Iowa 433, 
 
 5 N. E. 171 (173). 7 N. W. 678; Stephensen v. Ste- 
 
 "This instruotion asserts the law phensen, 62 Iowa 163, 17 N. W. 595. 
 
 correctly, and is in strict conform- 41 — Flowers v. Flowers, 74 Ark. 
 
 ity to the rule declared in Bundy 212 (216), 85 S. W. 242 (244). 
 
 V. McKnight, 48 Ind. 502. See page "It was held by this court in 
 
 509." Leslie v. McMurtry, 60 Ark. 301, 
 
 39— Spencer v. Terry's Estate, 133 30 S. W. 33, that 'declarations of a 
 
 Mich. 39, 94 N. W. 372. devisor, made after the will was
 
 1540 FORMS OF INSTRUCTIONS. [§2387. 
 
 § 2387. Will as Evidence of Insanity, (a) The jury are in- 
 structed, that while the provisions of the will may be considered 
 by the jury, in connection with all the other evidence in the case, 
 for the purpose of determining the mental condition of the testator 
 at the time of its execution, still, in order to defeat the will upon 
 the ground alone of the character of such dispositions, they must not 
 only be in some degree extravagant, and apparently unreasonable, 
 but they must depart so far from what should be regarded as natural 
 and apparently reasonable, as to appear fairly attributable to no other 
 cause than that of a disordered intellect or unsound mind. 
 
 (b) The jury are instructed, that the unequal distribution of his 
 property, by will, is not of itself any evidence of the insanity of the 
 testator. 
 
 (e) In determining the question of the validity of this will the 
 jury have a right, and it is their duty, to take into consideration 
 the provisions of the will itself, in connection with all the other evi- 
 dence that has been offered in reference to the question whether the 
 deceased was, or was not, of unsound mind and memory at the time 
 of its execution.*^ 
 
 § 2388. Jury Must Determine Question of Soundness of Mind and 
 Memory From Whole Evidence. The jury are instructed that if upon 
 the whole evidence you believe J. E. was not of sound mind and 
 memory, as defined in these instructions, then you should find that 
 the purported will is not the will of J. E., deceased.*^ 
 
 § 2389. Expert Testimony, (a) The testimony of medical men 
 of large experience in their profession, upon the question of the ex- 
 istence or non-existence of soundness of mind, is, as a general rule, 
 entitled to more consideration than the testimony of unprofessional 
 witnesses, who have not devoted their attention to the same class of 
 studies. 
 
 (b) The jury are instructed, that while it is true that the testi- 
 mony of medical men of large experience, as a general rule, in this 
 
 executed, to the effect that he tition of contestants B. P. and K., 
 
 made no will, are inadmissible to contesting- the will, directly raised 
 
 prove that the will was forged.' the question of mental capacity or 
 
 "That decision seems in line with incapacity of the testator; and this 
 
 the decided weight of authority, as instruction was g-iven upon their 
 
 shown by the collation of authori- request, and not upon the request 
 
 ties in the note to the recent case of appellee. The giving of the in- 
 
 of Throckmorton v. Holt, 180 U. S. struction was not therefore erro- 
 
 552, 21 Sup. Ct. 474, 45 L. Ed. 663. neous, as it was competent, upon 
 
 But the authorities are equally that issue, for the jury to consider 
 
 uniform in holding that such dec- whether or not the provisions of 
 
 larations are admissible to show the will were inconsistent with the 
 
 the mental capacity of the testator; previously expressed purpose of 
 
 when that issue is raised. Leslie the testator as to the disposition 
 
 V. McMurtry, supra; Throckmorton of his property." 
 
 V. Holt, supra; 1 Redfield Wills 42— In re Convey's Will, 52 Iowa 
 
 557, 559; Schooler Wills, 242, 243; 197, 2 N. W. 1084. 
 
 Gardner Wills, p. 137; Meeker v. 43— Entwistle v. Mcikle, 180 111. 
 
 Boylan, 28 N. J. L. 282. The pe- 9 (28), 54 N. E. 217.
 
 § 2390.] WILLS. 1541 
 
 class of eases, is entitled to more consideration or weight in the minds 
 of the jury than that of unprofessional men, still, whether the testi- 
 mony of the medical men, who have testified in this case, is entitled 
 to more weight than that of other witnesses, is a question entirely 
 for the jury, to be determined by them from a careful consideration 
 of all the evidence in the case.** 
 
 (c) The jury are instructed that the law recognizes and receives 
 the testimony of duly qualified medical expert witnesses. Such an 
 expert must of course be qualified according to law. A mere oppor- 
 tunity afforded for observation will not constitute a person an expert. 
 He must have been educated in the business about which he testifies 
 or it must be first shown that he has acquired actual skill and scien- 
 tific knowledge concerning the subject matter involved. When such 
 experts, however, are duly qualified, the law recognizes and receives 
 their testimony; and in arriving at a conclusion concerning the issues 
 involved in this cause, you may take into consideration their testi- 
 mony and award to it such value as in your judgment it desen^es.*^ 
 
 § 2390. When Want of Sufiiclent Mental Capacity is Proven, 
 Jury Need Not Consider Questions of Fraud or Undue Influence, 
 (a) The court charges the jury on behalf of contestant that if the 
 juiy are reasonably satisfied from the evidence that at the time of 
 the making of the mark to the instrument propounded for probate in 
 this case, S. did not have testamentary capacity to make a will, the 
 verdict must be for contestant, and in this event they should dis- 
 regard and not consider the charges on the subject of undue influence 
 and fraud, and what it takes to constitute undue influence and fraud, 
 as in such event they are immaterial inquiries. 
 
 (b) If the juiy believe from the evidence to their reasonable satis- 
 faction that the deceased at the time of making the mark to the 
 paper propounded for probate did not have testamentary capacity, 
 then they need go no further in their consideration to ascertain 
 whether there was fraud or undue influence ; and it would be the 
 duty of the jui-y under the law, for this reason alone, to find a ver- 
 dict for the contestant and against the validity of the said paper 
 propounded for probate.*® 
 
 § 2391. On Appeal from Probate Court — Series, (a) Gentlemen 
 of the juiy: you are called upon, in this case, to deteiTuine wliether 
 F., on the 17th day of May, , possessed sufficient mental ca- 
 pacity to make a will. 
 
 (b) A paper has been offered in evidence, which the proponents 
 claim to be his last will and testament. If you believe the testimony 
 of the subscribing witnesses, the paper was executed in accordance 
 with the laws of this state; but conceding this to be ti'ue, it is claimed 
 
 44_Meeker v. Meeker, 74 Iowa 45— In re Blake's Estate, 136 Cal. 
 352. 37 N. W. 773; Blake v. Rourke, 306. 68 Pac. 827, 89 Am. St. 135. 
 74 Iowa 519, 38 N. W. 392. 4S— Schieffelin v. Schieffelin, 127 
 
 Ala. 14, 28 So. 687 (692).
 
 1542 FORMS OF INSTRUCTIONS. [§ 2391. 
 
 on behalf of the contestants that the paper is void, because Mr. F., 
 at the time of its execution, did not possess sufficient mental vigor 
 or capacity to comprehend and realize what he was doing. This is 
 the question of fact, or the principal question of fact, you must de- 
 termine from the evidence that has been admitted. You must be 
 careful, gentlemen of the jury, to confine your attention to the evi- 
 dence introduced and not permit your minds to be influenced by any 
 statements made in your presence or hearing by the counsel in this 
 case, as to matters that were not permitted to go in evidence. 
 
 (c) The rule, gentlemen, stated by the w^eight of authority, un- 
 doubtedly is, that a less degree of mind is required to execute a will 
 than a contx'act. Although the testator must understand substan- 
 tially the nature of the act, the extent of his property, his relations 
 to others who may or ought to be the object of his bounty, and the 
 scope and bearing of the provisions of his will, and must have suffi- 
 ciently active memory to collect in his mind, without prompting, the 
 elements of the business to be transacted, and to hold them in his 
 mind a sufficient length of time to perceive, at least, their obvious 
 relations to each other, and be able to form some rational judgment 
 in reference to them, yet he need not have the same perfect and 
 complete understanding and appreciation of any of these matters, 
 in all their bearings, as a person in sound and vigorous health of body 
 and mind would have, nor is he required to know the precise legal 
 effect of every provision contained in his will. 
 
 (d) To use still another form of expression, gentlemen, the will 
 is not valid unless the person making it not only intends, of his 
 own free will, to make such a disposition, but has capacity to know 
 what he is doing, or understanding to whom he is giving his property, 
 in what proportions, and who he is depriving of it, as his heirs or 
 devisees under the will he makes. When a man has mind enough 
 to know and appreciate the natural object of his bounty, and the 
 character and effect of the disposition of the will, then he has mind 
 sufficiently sound to enable him to make a valid will. 
 
 (e) With these instructions in your mind, weigh the testimony of 
 all the witnesses. Many of these were persons who spoke from actual 
 knowledge of the deceased. Consider the testimony of those as well 
 as that of the experts, and give to each and every one of them such 
 weight as you may deem proper. This question of eaiDaeity is en- 
 tirely and exclusively for your disposition and decision. 
 
 (f) It rests upon the proponents to satisfy you, by a preponder- 
 ance of proofs, that the deceased was of sound mind when the paper 
 was executed. As bearing upon the state of Mr. F. 's mind, his 
 declarations — that is, what he said to persons — have been admitted, 
 and are to be construed by you for this purpose only, not as proving 
 any facts stated in the declaration. 
 
 (g) If, under these instructions, you reach the conclusion tliat F. 
 possessed sufficient mental capacity on the 17th of May, , to
 
 §2392.] WILLS. 1543 
 
 make his will, your verdict should be for the proponents. If, on 
 the other hand, you determine he did not possess this mental ca- 
 pacity, your verdict should be for the contestants.''^ 
 
 § 2392. On Contest In Chancery — Series, (a) The court instructs 
 the jury, that if they believe, from the evidence, that F., at the time 
 he signed the paper in dispute, had mind and memory sufficient to 
 transact his ordinary business, and that, when he made the will, he 
 knew and understood the business he was engaged in, then the jury 
 should find said paper writing to be the will of said F. 
 
 (b) The court instructs the jury, that the owner of property who 
 has capacity to attend to his ordinary business, has the lawful right 
 to dispose of it, either by deed or by will, as he may choose, and 
 it requires no greater mental capacity to make a valid will than to 
 make a valid deed. And if such an owner chooses to disinherit his 
 heir, or leave his property to some charitable object, he has a legal 
 right to do so, and such disposition of his property is valid, whether 
 it be reasonable or unreasonable, just or unjust; and the reasonable- 
 ness or justice or propriety of the will are not questions for the 
 jury to pass upon. If, therefore, the juiy believe, from the evidence, 
 that when he executed the paper in dispute, F. had capacity enough 
 to attend to his ordinaiy business, and to know and understand the 
 business he was engaged in, then he had the right and the capacity 
 to make such a will, and the jury should find for the paper in dis- 
 pute to be the will of said F. The court instructs the jury that 
 even if they find, from the evidence, that F. had, during some 
 portion of his life, eccentricities or peculiarities, or even an insane 
 delusion or partial insanity on the subject of religion, or masoniy, 
 or education, or any other subject, yet if they find, from the evi- 
 dence, that at the time he made the will in question, he had sufficient 
 mind and memory to understand his ordinary business, and that he 
 knew and understood the business he was engaged in, and intended 
 to make such a will, the jury should find such will to be the will of 
 said F. 
 
 (c) The court instructs the jury, that eccentricities or peculiari- 
 ties, or radical or extreme notions or opinions upon religion, colleges, 
 education, or masonry and seci'et societies, will not necessarily render 
 a man incapable of making a will, and if the juiy find that, in 
 making the will in dispute, F. had sufficient mind and memory to 
 understand the business he was engaged in when he made the will, 
 then the jury should find in favor of said will, though said F. 
 may have had eccentricities and peculiarities, or extreme notions 
 and opinions upon religion, colleges, education, or masoniy or secret 
 societies. 
 
 (d) The court instructs the jury, that, in order to make a valid 
 
 47_The above series of instruc- approved in Fraser v. Jennison, 42 
 tions, given on the trial of an ap- Mich. 206, 3 N. W. 576. 
 peal from the probate court, were
 
 1544 FORMS OF INSTRUCTIONS. [§ 2393. 
 
 will, it is only necessary that a man shall have mental capacity suffi- 
 cient for the transaction of the ordinary affairs of life, and pos- 
 sessing this, though he may be feeble in mind and body from sick- 
 ness or old age, he has the legal right to dispose of his property 
 just as he pleases, without consulting either his family or his ac- 
 quaintances. And if the juiy believe, from the evidence, that when 
 he executed the paper in dispute, F. knew what he was doing, 
 and executed it as his will, understanding its nature and effect, 
 and that, at the time, he had sufficient mind and memory to transact 
 his ordinary business, such as buying or selling or renting property, 
 or collecting or paying out money or settling accounts, then the jury 
 should find the paper in dispute to be the last will and testament of 
 said F. 
 
 (e) If the jury believe, from the evidence, that, although F. had 
 sufficient capacity to attend to the ordinary business affairs of life, 
 yet that, with regard to subjects connected with the testamentary 
 disposition and distribution of his property and the natural objects 
 of his bounty, he was insane, and that while laboring under such 
 insanity he made the will in question, and that in making it he was 
 so far influenced or controlled by such insanity as to be unable 
 rationally to comprehend the nature and effect of the provisions of 
 the will, and was thereby led to make the will as he did, then the 
 jury must find the will not to be the will of the said F. 
 
 (f) An insane delusion is a fixed and settled belief in facts not 
 existing, which no rational person would believe ; such delusion may 
 sometimes exist as to one or more subjects; and if the jury believe, 
 from the evidence in this case, that F. was laboring under such 
 insane delusions upon subjects connected with the testamentary dis- 
 position of his property, and the natural objects of his bounty, when 
 he made the will in question, and was, thereby, rendered incompe- 
 tent to comprehend, rationally, the nature and effects of the act, and 
 that but for such delusion he would not have made the will as he 
 did, then the jury should find against the validity of the will.*^ 
 
 UNDUE INFLUENCE. 
 
 § 2393. Issue to be Tried, (a) The juiy are instructed, as a 
 matter of law, the only question, in this case, for them to try, is 
 this: Is the writing here offered the will of B., deceased? And 
 your verdict will be, that it is his will or that it is not. 
 
 (b) And the real inquiry to be determined is: Did the said B., 
 deceased, make and execute the alleged will, in all its provisions, 
 of his own free will and volition, so that it now expresses his own 
 
 48 — The above series of instruc- (a), (h), (c) and (d) were given for 
 
 tions, as to testamentary capacity, the proponents, and (e) and (f) 
 
 were approved in Am. Bible Soc. were given for the contestants. 
 Y. Price, 115 111. 623, 5 N. E. 126;
 
 § 2393. 
 
 WILLS. 
 
 1545 
 
 wishes and intention, or was he constrained or coerced, through the 
 undue influence, restraint or coercion of others, in making his will, 
 to act against his own desire and intention, as regards the disposi- 
 tion of his property, or any part of it"?*^ 
 
 (c) The jury are instructed that if the testator was not of sound 
 mind when she wrote the said papers or one or more of them, they 
 should find the paper or papers written by her when she was not of 
 sound mind not to be her last will. If she wrote the said papers, 
 or any part or either of them under the undue influence of any other 
 person or persons as defined in instruction No. — , the jury should 
 find the paper or papers, or the parts thereof written under such 
 undue influence, not to be the last will of the said F. S.^" 
 
 (d) If the JU17 believe from the evidence that the will was not 
 obtained by the exercise of an influence amounting to coercion, by 
 a motive tantamount to force or fear, such was not an undue in- 
 fluence.^^ 
 
 (e) But if the jury believe from the evidence that at the time 
 said papers were executed, or either, the decedent was not of sound 
 mind, as hereinafter defined, or that said papers, or either of them, 
 were procured by the undue influence, if any, of any person or per- 
 
 49— Webster v. Sullivan, 58 Iowa 
 260, 12 N. E. 319. 
 
 Nearly the identical instruction 
 was approved in England v. Fair- 
 bush, 204 111. 384 (396), 68 N. E. 526. 
 It is as follows: The court in- 
 structs the jury that, when undue 
 influence is alleged, the real in- 
 quiry is this: Did the testator 
 make and execute the alleged will, 
 in all its provisions, of his own 
 free will and volition, so that it 
 now expresses his own wishes 
 and intentions; or was the test- 
 ator constrained or induced, 
 through the undue influence, re- 
 straint, coercion, or improper con- 
 duct of others, to act contrary to 
 his own desires and intentions as 
 regards the dispositions of his 
 property or any part of it. 
 
 The following instruction was 
 given in Surber v. Mayfleld, 156 
 Ind. 375, 60 N. E. 7: The court in- 
 structs the jury that the law pre- 
 sumes in favor of honesty and fair 
 dealing, and whoever asserts the 
 contrary must prove it to your sat- 
 isfaction by a preponderance of the 
 evidence. 
 
 The court said: "The instruction 
 required of appellants only 'a pre- 
 ponderance of the evidence.' The 
 phrase 'to your satisfaction' in- 
 formed the jurors that they were 
 the judges as to where the pre- 
 ponderance lay." 
 
 50— Henning v. Stevensen, 26 Ky. 
 L. 159, 80 S. W. 1135 (1136). 
 
 51— Schieffelin v. Schieffelin, 127 
 Ala. 14, 28 So. 687 (694). 
 
 The above charge, "requested by 
 plaintiff and given, is a copy of 
 charge 2 in the case of Eastis v. 
 Montgomery, 95 Ala. 486, 11 So. 
 204, 36 Am. St. 227, which was there 
 held to be good on the authority 
 of the same case on another ap- 
 peal (93 Ala. 293, 9 So. 311), and 
 the authorities in the last case 
 cited. Of course the terms coer- 
 cion, force or fear, when applied 
 to undue influence and its results 
 are relative terms, owing to the 
 character and condition of the 
 party at the time upon whom such 
 influence was exerted, and what 
 would amount to such a degree of 
 undue influence in one case might 
 not have the same result in an- 
 other. Strength of will, age, in- 
 firmity, loss of mental power — not 
 •amounting to deprivation of tes- 
 tamentary capacity in the testator, 
 are elements entering into the con- 
 sideration of every will contested 
 on the ground of undue influence 
 exercised over him in procuring 
 him to make it different from what 
 he otherwise would have done. 
 Burney v. Torrey, 100 Ala. 157. 14 
 So. 685, 46 Am. St. 33; Knox v. 
 Knox. 95 Ala. 495, 11 So. 125, 36 
 Am. St. 235."
 
 1546 FORMS OF INSTRUCTIONS. [§ 2394. 
 
 sons, then the jury should find such paper or papers, so executed 
 by him, if any, wlien he was not of sound mind, if they so find or 
 such iDaper or papers as was obtained by undue influence, if any 
 such there was, of any person or persons, not to be his codicils or 
 codicil to his last will and testament. 
 
 (f ) By undue influence as used in these instructions is meant such 
 an influence as to obtain dominion over the mind of the decedent 
 to such an extent as to destroy free agency and to constrain him 
 to do against his will what he would otherwise refuse to do.^- 
 
 § 2394. Burden of Proof. The burden of proof is upon the contes- 
 tants to show that the making of the will was obtained by undue 
 influence; and in order to defeat the probate of the will on this 
 account, it must appear to your satisfaction, by a preponderance 
 of the evidence, that undue influence was employed; and, to eon- 
 Btitute undue influence, it must appear to be such influence or re- 
 straint as caused the execution of the will by the decedent, against 
 his own preference or desire in the matter. Mere advice or per- 
 suasion to induce a testator to make a will or influence the disposi- 
 tion of his property by will, is not undue influence. ^^ 
 
 § 2395. What Must Appear, (a) The jury are instructed, that 
 no general rule can be laid down as to what constitutes undue in- 
 fluence in this class of cases, further than this, that in order to 
 make a good will a man must be a free agent, and feel at liberty 
 to carry out his own wishes and desires; and any restraint, threats 
 or intimidations brought to bear upon the testator, which he has 
 not the strength of mind or will to resist, if exerted so as to coerce 
 him against his desire and purpose into the making of his will, or 
 any of its provisions, is undue influence within the meaning of the 
 law. And whether such undue influence existed in this case must 
 be determined by the jury, from a consideration of all the evidence, 
 in view of the law as given you by the court.^* 
 
 (b) To avoid a will on the ground of undue influence, it must 
 be made to appear, by the evidence, that it was obtained by means 
 of influence amounting to moral coercion, destroying free agency, 
 or by importunity which could not be resisted, so that the testator 
 was constrained to do that which was against his actual will, and 
 which influence he was unable to withstand, or too weak to re- 
 sist. ■'"'^ 
 
 (c) The jury are instructed as a matter of law that it is not suf- 
 ficient that the circumstances appearing in evidence attending the 
 execution of the instrument in evidence in this case, pui-porting to 
 be the last will and testament of the said C. M., are consistent with 
 the hypothesis of its having been obtained by undue influence; it 
 
 52— Oberdorfer v. Newberg-er, 23 54 — Maynard & Bradford v. Vin- 
 
 Ky. L. 2323. 67 S. W. 267 (268). ton, 59 Mich. 139, 26 N. W. 401. 
 
 53_Webster v. Sullivan, 58 Iowa 55— Brick v. Brick, 66 N. Y. 144; 
 
 260, 12 N. E. 319. Barnes v. Barnes, 66 Me. 285.
 
 § 2396.] WILLS. 1547 
 
 must be shown that they are inconsistent with a contrary hypothesis. 
 Circumstances which should avail for the proof of fraud are only 
 such as are inconsistent with a contrary view of the transaction.^^ 
 
 § 2396. Destruction of Free Agency of Testator. Whether the 
 free agency of the testator is destroyed or mastered by physical force 
 or mental coercion, by threats which occasion fear or by importunity 
 which the testator is too weak to resist, or which extorts compliance 
 in the hope of peace, is immaterial. In considering the question, 
 therefore, it is essential to ascertain, as far as practicable, the power 
 of coercion, upon the one hand, and the liability to its influence on 
 the other. And wherever, through weakness, ignorance, dejoendence, 
 or implicit reliance of one on the good faith of another, the latter 
 obtains an ascendancy which prevents the former from exercising an 
 unbiased judgment, undue influence exists. ^^ 
 
 § 2397. Undue Influence may be Inferred from Circumstances. 
 
 The exercise of undue influence need not be shown by direct proof; 
 it may be inferred from circumstances; but the circumstances must 
 be such as to lead justly to the inference that undue influence was 
 employed, and that the will did not express the real wishes of the 
 testator.^^ 
 
 § 2398. Circumstances Showing Undue Influence. The court in- 
 structs the jury that, if you believe, from the evidence in this case, 
 that M. was a person so illiterate that she could not read and 
 understand the instrument offered in evidence, and that at the time 
 she signed the same O. was her agent, and that she reposed special 
 trust and confidence in him, and that said 0. caused said instrument 
 to be written by an attorney, who was a stranger to Mrs. M., and 
 out of her presence, and that said 0. dictated to said attorney each 
 and every provision of said will, and that said 0. solicited and pro- 
 cured the attesting witnesses to the said instrument, and that one of 
 said attesting witnesses was his co-partner in the banking business, 
 and that the other of said witnesses was veiy little acquainted with 
 Mrs. M., and that 0. received a beneficial interest in the alleged will, 
 then, in making up your verdict in this ease, you have a right to take 
 
 56 — Compher v. Browning^, 219 111 that they are inconsistent with a 
 
 429 (447, 448), 76 N. E. 678. contrary hypothesis.' And the same 
 
 "The language of this instruction holds true where positive fraud or 
 
 is the same as that which appears force is the ground of objection, 
 
 in section 239 of Schouler on Wills, Hence is it that iisolated and dis- 
 
 (2d ed.) and in the case of Boyse connected circumstances are not 
 
 v. Rossborough, 6 H. L. Cas. 6. permitted to outweigh the usual 
 
 In Schouler on Wills, sec. 239, it presumption of the law, that a 
 
 is said: 'In order to set aside the person of intelligence and capacity, 
 
 will of a person of sound mind,' who executes a will, does so with- 
 
 observes Lord Cranworth, 'it is out imposition or undue influence." 
 
 not sufficient to show that the cir- 57 — Coghill v. Kennedy, 119 Ala. 
 
 cumstances attending 'ts execution 641. 24 So. 459. 
 
 are consistent with the hypothesis 58— In re Smith's Will. 22 Wis. 
 
 of its having been obtained bv un- 543; Samson v. Samson, 67 Iowa 
 
 due influence; it must be shown 253, 25 N. W. 233 (237 note).
 
 1548 FORMS OF INSTRUCTIONS. [§ 2399. 
 
 into consideration all these facts, if proven, together with the testi- 
 mony of witnesses and all the other facts and circumstances in evi- 
 dence in this ease, in determining whether the instrument in question 
 was procured by undue influence, as explained in these instructions.^^ 
 
 § 2399. Undue Influence Shown Rather by Means Employed, than 
 by Effect Produced. It is not the means employed, so much as the 
 effect produced, which must be considered in determining whether 
 undue influence has contributed to the making of a will; for though 
 the influence exerted over the testator was such as if applied under 
 ordinarjr circumstances, or exercise over persons of ordinary powers 
 of resistance, would be regarded as innocent, yet if, in the particular 
 case, it resulted in a disposition of property contrary to the testator's 
 desire, the influence was undue. ^" 
 
 § 2400. Time at which Undue Influence Must be Exercised to De- 
 feat the Will. The court instructs you that the fraud and undue 
 influence which would render a will invalid must be connected with 
 the execution of the will and operating at the time the will is made ; 
 and the fact that the beneficiaries of a will are those by whom the 
 testatrix was surrounded and with whom she stood in confidential 
 relations at the time of the execution of the v^dll, or the fact that the 
 principal beneficiaries had for years control of her estate, or the fact 
 that the provisions of the will were for the benefit of such persons, 
 or may seem unreasonable, are not grounds for infemng undue influ- 
 ence; and, in this ease, if you believe, from the evidence, that the 
 testatrix, P., had sufficient mind and memory at the time of the execu- 
 tion of the will in question to know and understand the business in 
 which she was engaged at the time she executed the will, and a rec- 
 ollection of the property she meant to bequeath and of the persons to 
 whom she meant to bequeath it, and that she executed the said in- 
 sti'ument voluntarily and of her own free will, then you should find 
 by your verdict that the paper produced is the will of P.''^ 
 
 § 2401. Testator May Dispose of Property as He Pleases, (a) The 
 court instructs the jury that a man has a right to dispose of his own 
 
 59 — Compher v. Browning, 219 111. clearly ag-ainst the weight of the 
 
 429 C450, 451), 76 N. E. 678. evidence. French v. French, 215 
 
 "This instruction submitted to 111. 470, 74 N. E. 403; Johnson v. 
 the jury all the facts and circum- Farrell, 215 111. 542, 74 N. E. 760; 
 .stances insisted upon by the con- Piper v. Andricks, 209 111. 564. 71 
 testants as .showing undue influ- N. E. 18; Spencer v. Spruell, 196 111. 
 ence over the testatrix by McKen- 119, 63 N. E. 621; Kiunah v. Kin- 
 ney. The jury found against the nah, 184 111. 284, 56 N. E. 376; 
 contestants upon the question of Bevelot v. Lestrade, 153 111. 625, 
 undue influence, as thus submitted 38 N. E. 1056. Here the verdict of 
 to thorn. We have held that, where the jury is not, in our opinion, 
 the evidence is conflicting, as it is clearly against the weight of the 
 in the case at bar, upon the ques- evidence." 
 
 tion whether the execution of a 60— Coghill v. Kennedy, 119 Ala. 
 
 AV'ii was brought about bv undne 641. ?4 So. 459; Leverett v. Carlisle, 
 
 influf^nre, a court of review will 19 Ala. 80. 
 
 not disturb the verdict of a jury, 61 — Pooler v. Cristman, 45 111. 
 
 which has been approved by a App. 334, aff'd 145 111. 405, 34 N. E. 
 
 trial court, unless the verdict is 57.
 
 § 2402.] WILLS. 1549 
 
 property by will as he may choose, even to the entire exclusion of 
 ihose who, but for the will, would be the heirs of his estate; and the 
 jury are not to consider whether or not the disposition made by the 
 testator is appropriate, or, in the opinion of the jury, just, but simply 
 whether the paper propounded as his will be or be not his last will 
 and testament.''^ 
 
 (b) There is some evidence in this case tending to show that testa- 
 tor was at one time engaged in some litigation with the mother of the 
 contestant, and bore some ill will or dislike towards her; and you 
 are instructed that if the testator was influenced thereby to make his 
 will as he did, and at the time was of sound mind, if he did so by his 
 own free choice and agency, his will would be valid, and should be 
 recognized by you, even if he did it unjustly and with mistaken 
 opinion as to the matters involved, yet that would not invalidate his 
 will, but would rather tend to explain why he made his will as he 
 did.63 
 
 § 2402. Same Subject — But Jury May Consider Inequality of Dis- 
 tribution. The court instructs the jury that inequality in the distri- 
 bution of property among those who would inherit it if no will had 
 been made, is not of itself evidence of undue influence or unsoundness 
 of mind, yet it may be considered as a circumstance by the juiy, to- 
 gether with all the other facts and circumstances shown by the evi- 
 dence as tending to establish undue influence or unsoundness of 
 mind.^* 
 
 § 2403. Undue Influence Must Affect the Will, etc. That to in- 
 validate a will, on the ground of undue influence, it must appear, by 
 a preponderance of the evidence, that such undue influence was prac- 
 ticed with respect to the will, or as to some matter or circumstance 
 
 62— Barkley v. Barkley Cemetery West, 48 Mo. 502; Garvin's Adm'r 
 
 Ass'n, 153 Mo. 300, 54 S. W. 482 v. Williams. 50 Mo. 206; Street v. 
 
 (483). Goss, 62 Mo. 226; Bradshaw v. 
 
 "We recognize the well-settled Yates, 67 Mo. 228; Bridwell v. 
 rule which indulges the presump- Swank, 84 Mo. 455; Guy v. Gillilan, 
 tion that undue influence has been 92 Mo. 250, 5 S. W. 7; Maddox v. 
 used where a patient makes a will Maddox, 114 Mo. 35, 21 S. W. 499, 35 
 in favor of his physician, a client Am. St. 734; Carl v. Gobel, 120 Mo. 
 in favor of his lawyer, a ward in 283, 25 S. W. 214, are of that char- 
 favor of his guardian, or any per- acter. As a general rule, those 
 son in favor of his priest or re- who execute wills employ persons 
 ligious adviser, or where other to draft them in whose ability to 
 close, confidential, or fiduciary re- do so correctly they have confi- 
 lationships exist. This rule has dence, and especially is this so 
 for its basis some pecuniary bene- when lawyers are employed; and 
 fit to be derived, directly or in- it has never been held, from that 
 directly, under the will, by the per- fact alone, that the presumption 
 son, or church, or charity repre- arises that the will was obtained 
 sented by the person by whose in- by undue influence of the drafts- 
 fluence the testator is influenced to man." 
 
 make the will, and the cases chiefly 63 — Townsend v. TownsentI, 122 
 
 relied upon by plaintiffs, namely, Iowa 246, 97 N. W. 1108. 
 
 Garvin's Adm'r v. Williams, 44 Mo. 64 — England v. Fairbush, 204 IlL 
 
 465; Harvey v. Sullens, 46 Mo. 147, 384, 68 N. E. 526. 
 2 Am. Rep. 491; Cadwallader v.
 
 1550 FORMS OF INSTRUCTIONS. [§2404. 
 
 so connected with it, as to raise a presumption that such undue influ- 
 ence affected the provisions of the will; any degree of influence exer- 
 cised over the testator which does not affect the making of the will or 
 any of its provisions can not invalidate it.^^ 
 
 § 2404, Legitimate Influence, (a) The court instructs the jury, 
 that any deg'ree of influence over another, acquired by kindness and 
 attention, can never constitute undue influence within the meaning of 
 the law, and although the jury may believe, from the evidence, that 
 the deceased, in making his will, was influenced by the said A. B., 
 still, if the jury further believe, from the evidence, that the influence 
 which was so exerted was only such as was gained over the deceased 
 by kindness and friendly attentions to him, then, such influence can- 
 not be regarded, in law, as undue influence, and the verdict should 
 be in favor of the validity of the will.*^*^ 
 
 (b) It is not unlawful for one, by honest advice or persuasion, to 
 induce a testator to make a will, or to influence him in the disposition 
 of his property by will. To vitiate a will on account of undue influ- 
 ence it must appear, from the evidence, that there was something 
 wrongfully done amounting to a species of fraud, compulsion or other 
 improper cond-uct.^'^ 
 
 (c) It is not unlawful for a person, by honest intercession and 
 persuasion, to induce a will in favor of himself or any other person; 
 neither is it unlawful to induce the testator to make a will in one's 
 favor by fair speeches and kind conduct, for this does not amount to 
 that kind of compulsion, impi'oper conduct or undue influence, which, 
 in a legal sense, would render invalid the will. To have such an effect 
 it must amount to a moral force and coercion, destroying free agency. 
 It must not be the influence of affection and attachment, nor be the 
 mere desire to gTatify the wishes of another, but the compulsion in 
 this ease, in order to render the will invalid, must be of such a degree 
 and character as to prevent the exercise of that discretion which is 
 essential to a sound, disposing mind.^^ 
 
 (d) The court instructs the jury that, if they find, from the evi- 
 dence, that the deceased, in making the will in question, was influ- 
 enced by affection, or attachment, or a disposition to gratify the 
 
 wishes of the defendant, , or by her advice or entreaty, that 
 
 would not be sufficient cause for setting aside the will. The court in- 
 structs the jury that testamentary capacity exists whei-e the testator 
 has an understanding of the nature of the business he is engaged in, 
 and the kind and value of the property devised, and of the persons 
 v/ho were the natural objects of his bounty, and of the manner in 
 wliich he desires it to be distributed.®^ 
 
 65—1 Red. on Wills 525; Samson 67— Yoe v. McCord, 74 III. 33; 
 
 V. Samson, 67 Iowa 253, 25 N. W. Pierce v. Pierce, 38 Mich. 412. 
 2S3 (237 note). 68— Dickie v. Carter, 42 111. 376. 
 
 66 — 1 Red. on Wills, 522 et seq.; 69 — Nicewander v. Nicewander, 
 
 In re Carroll's Will, 50 Wis. 437. 151 111. 156, 37 N. E. 698.
 
 §2405.] WILLS. 1551 
 
 § 2405. Legitimate Advice or Persuasion, (a) That, in this ease, 
 though the jury may believe, from the evidence, that the said A. B. 
 did use arguments and importunities to influence the deceased in the 
 making of the will in question, still this fact will, in no manner, affect 
 the validity of the will, if the jury further believe, from the evidence, 
 that such arguments and importunities did not deprive the deceased 
 of his free agency or prevent him from doing as he pleased with his 
 property, even though the will might not have been made in all of its 
 provisions as it is, but for such argument and persuasion. 
 
 (b) Though the jury may believe, from the evidence, that the tes- 
 tator, in making the will in question, acted upon the suggestions and 
 advice, or under the influence, of the said A. B., this will not, in any 
 manner, affect the validity of the will; provided he acted fi^eely and 
 from his own conviction in the disposition of his property, though the 
 provisions of the will are not the same as they would have been but 
 for such suggestions, advice or influence.'^*' 
 
 § 2406. Instilling False Beliefs in Testator's Mind. If a testator 
 is given a false impression concerning persons who are the natural 
 objects of his bounty, so that when he comes to make his will he acts 
 upon unfounded beliefs, and gives or withholds his bounty in a man- 
 ner entirely different from what his action would have been had it not 
 been based on false beliefs and opinions deliberately instilled into his 
 mind for the purpose of influencing his will, and if in such ease the 
 testator is not in position, from any cause, as sickness, age, debility, 
 concealment of the true facts, or other reasons, to judge for himself, 
 and to deliberate or resist the influences, and the will is the result 
 of them, it is invalid from undue influenee.'^^ 
 
 § 2407. Parent and Child. If W. had by his love, kindness and 
 dutiful conduct to his mother and obedience to her so won her affec- 
 tion as to influence and cause her to give the bulk of her property 
 to him, then this would be a legitimate and lawful influence.'^- 
 
 § 2408. Husband and Wife, (a) The fact that the testator by 
 his will, devised nearly all of his property to his wife, is of itself, and 
 in the absence of other testimony, no evidence that the testator lacked 
 mental capacity to make the will.'^ 
 
 (b) Evidence has been introduced tending to show that the wife 
 of testator was accustomed to accompanying him when he went away 
 from home, and also that she participated to some extent in his busi- 
 ness affairs, and was familiar therewith, and was connected with her 
 husband in relation thereto. You are hereby instructed that such 
 facts, if proven, do not raise any presumption of undue influence on 
 her part upon her husband, or that she influenced him to execute said 
 will; and even though she advised him to make the will as he did, 
 
 70— Tn re Carrol's Will, 50 Wis. 72— Schieffelin v. Schieffelin, 127 
 
 437. 7 N. W. 434. Ala. 14, 28 So. 6R7 (694). 
 
 71— Co!s:hill v. Kennedy, 119 Ala. 73— Paxton v. Knox, 122 Iowa 24, 
 
 641, 24 So. 459. 98 N. W. 468 (470).
 
 1552 FORMS OF INSTRUCTIONS. [§ 2409. 
 
 there would be no presumption therefrom that her influence was un- 
 due. If the wife in her faithfulness and good qualities has secured 
 the respect and esteem of her husband even to such an extent that her 
 wishes satisfy him, it would not amount to undue influence should he 
 make a will in accordance with her request. The law will not presume 
 that a wife would exert undue influence upon her husband, nor would 
 it presume that a will made in harmony with her request or prefer- 
 ence would be the result of undue influence on her part. No pre- 
 sumption of undue influence arises from the fact that the wife ad- 
 vised her husband in his business affairs or even guided him in said 
 matters.''* 
 
 § 2409. Influence in Bringing About the Marriage not to be Con- 
 sidered. The jury have no right to consider for the purpose of affect- 
 ing the legal standing of the widow after the death of her husband, 
 any questions as to what or which of the parties was most influential 
 in bringing about the marriage; you are to consider the ques- 
 tion whether the will was procured by undue influence in reference to 
 the relations existing when the will was made; that in the eye of the 
 law her position at the time when the codicil was made, in reference 
 to her relation to her husband, was precisely the same as that of the 
 most honored wife in the land.''^ 
 
 § 2410. Unlawful Cohabitation, (a) The jui-y are instructed, that 
 illicit sexual intercourse between a testator and his devisee, however 
 immoral or illegal it may be, does not necessarily render the will of 
 the testator invalid; nor could that circumstance, in any manner, 
 affect the validity of the will if it was made by him with a sound 
 and disposing mind and memory, and as a free agent.'^ 
 
 (b) The jury are instructed, that if they believe, from the evi- 
 dence, that the testator and the said Mrs. P., before and at the time 
 the will was made, were living in unlawful cohabitation, then the law 
 Avill presume that undue influence was used by her over the deceased 
 in the making of the will in question, and the burden of the proof is 
 upon her to show that no such undue influence was used.'''' 
 
 § 2411. Undue Influence of Attorney. Where a person devises his 
 property to one who is acting at the time as his attorney, either in 
 relation to the subject-matter of the making of the will, or generally, 
 during that time, such devise is always carefully examined, and of 
 itself raises a presumption of undue influence. But this is by no 
 means a conclusive presumption, but it is one that may be overcome 
 by evidence; and it is not necessary that that evidence shall in all 
 cases be a positive denial of parties who are personally acquainted 
 with the facts, but it must be such evidence as will lead the jury to 
 
 74— Townsend v. Townsend, 122 312; Eckert v. Flowry, 43 Pa. St. 46. 
 Iowa 246, 97 N. W. 1108 (1111). 77— Leig-hton v. Orr, 44 Iowa 679; 
 
 75— Maynard v. Tyler, 168 Mass. 1 Red. on Wills, 531-533; Wallace 
 
 107, 46 N. E. 413 (414). v. Harris, 32 Mich. 380. 
 
 76— Dean v. Negloy, 41 Pa. St.
 
 § 2412.] WILLS. 1553 
 
 believe that no undue influence was exerted. And if such evidence 
 be found from the facts and circumstances surrounding the making 
 of this will as will lead you to believe that the will was made by the 
 testatrix of her own free will, uninfluenced by any other person, then 
 the fact that S. was her attorney would not in any way invalidate the 
 will. That should simply be taken into consideration, with all the 
 other facts, to determine whether or not the will was, as a matter of 
 fact, the will of the testatrix.''^ 
 
 § 2412. Physical Condition of Testator, (a) The jury are in- 
 structed that in order to make a valid will the law requires that a 
 person shall be of sound and disposing mind and memory, as defined 
 in these insti-uctions; and want of testamentary capacity does not 
 necessarily require that a person shall be insane; weakness of intel- 
 lect, arising from old age or great bodily infirmity or suffering, or 
 from all these combined, may render the testatrix incapable of mak- 
 ing a valid will, when such weakness disqualifies her from knowing 
 or apprehending the nature, effect or consequence of the act she is 
 engaged in. 
 
 (b) The court further instructs you that, if you believe, from the 
 evidence in this case, that P., at the time of the execution of the will, 
 was so diseased mentally that she was incapacitated by reason of 
 mental weakness caused by disease, old age or other derangement, of 
 acting rationally in the ordinary affairs of life, and of intelligently 
 comprehending the disposition she was making of her property, and 
 the nature and effect of the provisions of said alleged will, then they 
 should find that the writing produced is not the will of P., deceased. '^^ 
 
 (c) The court declares the law to be that if it appears, from the 
 evidence, that, at the time the will in question was made, A. was on 
 her deathbed, racked with pain and disease, and feeble in mind and 
 body from such sickness, and had not sufficient understanding and 
 intelligence to transact her ordinai*y business affairs, and to compre- 
 
 78 — Donovan v. Bromley, 113 of undue influence arising from a 
 
 Mich. 53, 71 N. W. 523. will being drafted by a beneficiary, 
 
 "We think these instructions or by one in confidential relations, 
 
 fairly embodied the law of the may be overcome by showing- that 
 
 case. While a bequest in favor of it was executed freely, and under 
 
 an attorney who draws a will is a circumstances which rebut the in- 
 
 circumstauce arresting suspicion, ference of undue influence; and, 
 
 and raises a presumption more or where the proof of execution is 
 
 less strong, that undue influence such as to convince the jury that 
 
 has been exerted, yet, as was very the testator was not at that time 
 
 properly charged at the request under the control of the legatee, 
 
 of the contestants themselves, the it is certainly not error to at least 
 
 presumption of the invalidity of permit the jury to draw the infer- 
 
 a will made by a client to her at- ence in favor of the validity of the 
 
 torney may be rebutted by show- will from the circumstances. See 
 
 ing that she made her will after Waddirigton v. Buzby, 45 N. J. Eq. 
 
 receiving independent legal advice. 173, 16 Atl. 690, 14 Am. St. 706; Post 
 
 In the present case the will was v. Mason, 91 N. Y. 539, 43 Am. Rep. 
 
 not drawn by S.. but was prepared 689." 
 
 in the handwriting of the deceased 79— Pooler v. Cristman, 145 111. 
 
 herself after conferring with S. 405, 34 N. E. 57. 
 It is also true that the presumption 
 98
 
 1554 FORMS OF INSTRUCTIONS. [§ 2413. 
 
 bend the transaction then in question, the nature and extent of her 
 property, and to whom she was giving the same, then she had not 
 sufficient capacity to make a will, and the issues will be found for the 
 plaintife.8o 
 
 (d) The jury are instructed that if you believe, from the evidence, 
 the said Y., at the time he executed the will now in question, was 
 feeble in body and mind from sickness, old age or otherwise, and that 
 while in this condition his son, X, unduly influenced him to make said 
 purported will, and that at said time the said Y was not a free agent, 
 but was under the undue influence of said X, then you should so find 
 by your verdict.^^ 
 
 § 2413. Declarations and Previously Expressed Purposes of Tes- 
 tator, (a) The court instructs the jury that in determining whether 
 the paper in question, offered as a will, is entitled to be so regarded, 
 the paper itself may be considered in connection with all the other 
 evidence in the case. And if the jury believe, fi'om the evidence, that 
 the deceased had expressed any fixed purposes and intentions regard- 
 ing the disposition of his property at variance with the provisions of 
 the alleged will, then the jury should consider whether or not the pro- 
 visions of the will are inconsistent with his previously expressed and 
 fixed purposes ; and if the jury find that they are so, or that deceased 
 was u.nfriendly to the beneficiaries under the will, then these facts 
 should also be weighed by the jury in determining whether the paper 
 offered is the will of the deceased. ^^ 
 
 (b) In order that contestant may recover in this ease there are 
 two facts that must be proven by her: First, that undue influence 
 was in fact exerted; second, that it was successful in subverting and 
 controlling the will of the testator. Both of these facts must be 
 proven by the contestant by the weight of the evidence in order to 
 defeat the will. Upon the latter question evidence of the statements 
 of the testator, made either before the will was made or after, and 
 which tend to throw light on the question of mind are admissible; but 
 as to the first question the evidence of such statements is hearsay and 
 incompetent, and should not be considered by you. Such declarations 
 have been admitted only for the purpose of proving the condition of 
 the testator. They afford no substantive proof of undue influence, 
 and cannot be admitted for such purpose; and before contestant can 
 recover, it is necessary that she should prove that undue influence 
 was in fact, and actually exerted upon the testator by other evidence 
 than his own declarations.^^ 
 
 § 2414, Conduct of Beneficiaries — ^Undue Influence of One Affects 
 All. (a) The existence of confidential relations between the testator 
 and principal or large beneficiaries under the will, coupled with ac- 
 
 80— Tort.s v. Wash, 175 Mo. 487, 82— Flowers v. Flowers, 74 Ark. 
 
 75 S. W. 95. 212, 85 S. W. 242 (244). 
 
 81— England v. Fairbush, 204 111. 8.3— Townsend v. Townsend, 122. 
 
 m, 68 N. E. 526. Iowa 246, 97 N. W. 1108.
 
 § 2415.] WILLS. 1555 
 
 tivity on the part of the latter in and about the execution of the will, 
 such as initiation of proceedings for the preparation of the will, or 
 participation in such preparation, employing the draftsman, selectinof 
 the witnesses, excluding jDersons from the testator at or about the 
 time of the execution of the Avill, concealing the making of the will 
 after it was made, and the like, will raise a presumption of undue 
 influence, and cast on them the burden of showing that it was not in- 
 duced by coercion or fraud on their part, directly or indirectly.^* 
 
 (b) It is not necessary that there should be confidential relations 
 between all the beneficiaries and the testatoi*. If there is such rela- 
 tion with one of a family, and the will is found to have been procured 
 through his undue influence, it operates against all the family.^^ 
 
 § 2415. Undue Influence — Series, (a) The court instructs the jury 
 that the iDlaintift's allege that the paper read in evidence, dated, and 
 purporting to be the last will and testament of B, deceased, is not his 
 will, and the defendants deny this allegation, and say said paper is 
 his will, and the issue for the jury to determine in this ease is whether 
 said paper is in reality the will of said deceased, B; and upon this 
 issue the court instructs the jury that, to entitle a man to make a 
 testamentary disposition of his property, he must possess a sound and 
 disposing memoiy; and by this is meant such mind and memory as 
 would enable him to comprehend and understand the nature of the 
 transaction in which he was about to engage, — that is, the nature and 
 effect of the will he was undertaking to make, — to recollect the amount 
 and character of his property which he meant to dispose of, and to 
 call to mind and appreciate the relation existing between himself and 
 those persons who were related to him by the ties of blood and affec- 
 tion, as "well as those who were to be named in his will as the objects 
 of his bounty; and if the jury believe, from the evidence in the case, 
 that the said B was, at the time of signing and attestation of said 
 paper in question, possessed of a sound mind and disposing memoiy, 
 as above defined, and that he signed his paper as and for his last will, 
 then you will find that said paper is his will, unless you believe, from 
 the evidence in the case, that an undue influence was exerted by W 
 to induce said B to make the will as it was written. By the term 
 ''undue influence," as used in these instructions, is meant the exercise 
 
 84 — Coghill V. Kennedy, 119 Ala. will, raises a presumption of un- 
 
 641, 24 So. 459 (464, 471). due influence, and casts upon the 
 
 "The part of the general charge latter the burden of showing that 
 
 of the court to which an exception it was not induced by coercion or 
 
 was reserved states a correct prop- fraud on their part, directly or in- 
 
 osition of law. It asserts the doc- directly." 
 
 trine laid down in Bancroft v. Otis, 85 — Coghill v. Kennedy, supra. 
 
 91 Ala. 279, 8 So. 286, and many "This charge, taken in its entirety, 
 
 subsequent cases, that the exist- asserts no more than the proposi- 
 
 ence of confidential relations be- tion that if the fraud or undue in- 
 
 tween the testator and principal fluence on the part of one or more 
 
 or large beneficiaries thereunder, of the legatees or devisees affects 
 
 coupled with activity on the part the whole will, then no portion of 
 
 of the latter in and about the it can stand. Florey's Ex'rs v. 
 
 preparation or execution of the Florey, 24 Ala. 248."
 
 1556 FORMS OP INSTRUCTIONS. [§ 2415. 
 
 of such power and influence by one person over the mind of another 
 as would result in the subjugation of the mind of the one to that of 
 the other, and complete sulostitution of the will of one for the will of 
 the other in the matter in which they were engaged; and if the jury 
 believe, from the evidence in the case, that by reason of old age and 
 physical ailments, or by reason of his friendship for and confidence 
 in W, said W was enabled to and did exert such an influence over the 
 mind of said B in the disposition of his property by will, and if the 
 signing of said paper by said B Avas induced and brought about by 
 the exercise of that influence, then the jury will find that said paper 
 is not the will of said deceased, B, notwithstanding they may further 
 believe, from the evidence in the ease, that said B was, at the time 
 said paper was signed and attested, of sound mind and disposing 
 memory, as this term has been defined in these instructions. 
 
 (b) To establish undue influence on the part of W over the mind of 
 said B, and that the signing of the paper in controversy was induced 
 and brought about by such influence, it is not necessary that it should 
 be shown that the said W pui-posely practiced a fraud on said B, or 
 pui7>osely and intentionally sought to acquire and exert an undue or 
 improper influence over the mind of said B, but if the jury believe, 
 from the evidence in the case, that an undue influence (as the same is 
 defined in these instructions) on the part of said W over the mind 
 of said B did exist, and that the signing of the paper in controversy 
 by B was induced and brought about by the exercise of such undue 
 influence, then the jury must find a verdict in favor of the plaintiffs, 
 and against the validity of said will, regardless of how such influ- 
 ence was acquired, or the manner in Avhieh it was exercised. 
 
 (c) The court instructs the jury that it is not necessary tbat undue 
 influence should be proven by direct and positive testimony, but the 
 same may be proven by facts and circumstances; and in passing on 
 the question as to whether the signing of the paper in question by B 
 was induced by undue influence on the part of W it is proper for the 
 jury to take into consideration the terms of the will itself; the rela- 
 tions of said B to plaintiffs, as shown by the evidence; his relations 
 to and connection with the B. C. Ass'n, as shown by the evidence; his 
 age and mental and physical condition, as shown by the evidence ; his 
 relations with and feelings toward said W, as shown by the evidence ; 
 his sentiments towards and opinions of McC, as shown by the 
 evidence; the relations to and connection of said "W with said C. 
 Ass'n and the preparation of said will, as shown by the evi- 
 dence, as well as other facts and circumstances disclosed by the evi- 
 dence in the case; and if, from all such facts and circumstances, the 
 jury believe that the signing of the paper in controversy by said B 
 Avns induced and brought about by an undue influence which has been 
 defined in these instructions, then it is the duty of the jury to find 
 that the said paper is not the will of said B. 
 
 (d) If the jury find, from the evidence in the cause, that the said
 
 § 2416.] WILLS. 1557 
 
 B signed his name to the instrument of writing alleged to be his last 
 will and testament, and that at the time he so declared he requested 
 said D and H to sign the same as witnesses thereto, and that said D 
 and H signed said will in the presence of said B as witnesses thereto 
 at such request, and that said B was at the time of the execution of 
 said will, as aforesaid, of sound mind, then the juiy should find that 
 said instrument is the last will of said B, unless the juiy should find 
 that said will was the result of undue influence, as explained in other 
 insti^uetions herein. 
 
 (e) The court instructs the jury that it was not neeessaiy that said 
 instrument should have been read to said subscribing witnesses, or 
 that they should know what was in said instrument, at the time they 
 signed said will as witnesses. 
 
 (f) The court instructs the jury that in the attestation of the in- 
 strument in controversy it was not necessary for the witnesses H and 
 D to sign it as witnesses in the presence of each other, but it was only 
 necessary that they should sign it in the presence of the deceased, 
 and at the request of the deceased. Nor was it necessary that the 
 deceased, B, should have in fact signed his name to said instinment 
 in the actual presence of either of the witnesses, provided the juiy 
 find, from the evidence, that at the time of the witnesses D and H 
 so signing and attesting said instrument it had been signed at any time 
 prior thereto by said B, and the deceased acknowledged or made 
 known to them at the time or just before they signed as witnesses, if 
 they did so, by word, act, or sign, that he had signed or executed the 
 siame as his last will and testament. 
 
 (g) The court instructs the juiy that, to constitute a sound and 
 disposing mind, it is sufficient that B, at the time of making his will, 
 bad sufficient understanding and intelligence to transact his ordinary 
 business, and understand what disposition he was making of his prop- 
 erty, what property he owned, and to whom he was giving it. 
 
 (h) The jury are instructed that ''undue influence," as used in 
 these instructions, means that such influence as amounts to over- 
 persuasion, coercion, or force, overpowering and destroying the free 
 agency and will power of the person upon whom it is used, and no 
 amount of influence or advice or persuasion which comes short of 
 such effect will amount to undue influence; and the burden of prov- 
 ing, by the greater weight of the evidence in the cause, that such 
 undue influence was exerted and exercised, rests upon the plain- 
 tiffs.8« 
 
 § 2416. Undue Influence— What Must Appear— Series, (a) To 
 avoid a will on the ground of undue influence, it must be made to ap- 
 pear by a preponderance of the evidence that the will was obtained 
 by means of an influence which the testator was unable to withstand. 
 
 86 — Barkley v. Barkley Cem. at the request of the contestants 
 Ass'n, 153 Mo. 300, 54 S. W. 4S2 and from (d) to (h) inclusive for 
 (483); (a), (b) and (c) were given the propouonts.
 
 1558 FORMS OF INSTRUCTIONS. [§ 2416. 
 
 or ioo weak to resist, and amounting to moral coercion, and destroy- 
 ins: the free agency of the testator, or by importunity so persistent 
 and forcible that it could not be resisted by the testator, so that the 
 testator was constrained to do that which was against her own in- 
 clination and will, in order to secure peace, and be relieved of its 
 annoyance ; and such influence must have been exerted upon and con- 
 trolling her during all the time she was engaged in making and execut- 
 ing her will. 
 
 (b) Unless the jury find, from the evidence, that B, at the time she 
 made and executed the will, was unduly influenced and coerced, as 
 these terms are defined in these instructions, then the jury have no 
 right to inquire into or speculate upon the motives which caused her 
 to dispose of her property, as set forth in the will. If she had ca- 
 pacity to make a will, and was not unduly influenced in making it, she 
 had the right to dispose of her property in accordance with any whim 
 or caprice which may have led her. 
 
 (c) The court instructs the jury that the issue in this case is 
 whether the instrument offered in evidence and read to the jury is the 
 last will and testament of the deceased, B. The burden is on defend- 
 ants to show that said instrument was executed and signed by B as 
 and for her last will; that the signatures of the attesting witnesses 
 were placed on such paper in her presence, and at her request, or with 
 her consent; and that at the time she executed the same she was of 
 sound and disposing mind and memory. If the defendants have, by a 
 preponderance of the evidence, established and proven these facts, 
 then the will would have to be adjudged the last will of B, unless the 
 jury should find that it is invalid because undue influence was exerted 
 over her by her husband, sons, or some of them, which destroyed her 
 free will, and forced her to adopt as her will an instrument which she 
 did not approve, and which she would not have adopted except for 
 such undue influence operating on her at the very time she was 
 making the will, and which undue influence overcame and destroyed 
 her free will, and compelled her to do as another dictated. The 
 bui'den is on the plaintiff to prove the existence of this undue influ- 
 ence, and its opei'ation on the mind of B at the time, and Avhile she 
 was engaged in making her will; and unless plaintiff has, by a pre- 
 ponderance of the evidence in the case, established the fact that such 
 undue influence, and its operation on the mind of B at the time, and 
 while she was engaged in making her will ; and unless plaintiff has, by 
 a preponderance of the evidence in the case, established the fact that 
 such undue influence was exerted over B by her husband or son or 
 sons, and acted upon her so as to cause her to sign a will that she did 
 not want or approve, then the finding of the jury must be that said 
 instrument is her last will and testament, provided they find it Avas 
 executed and attested as above described. 
 
 (d) Mere advice or persuasion, although intended to induce a tes- 
 tator to make a will in a particular or in a different way from what
 
 §2416.] WILLS. 1559 
 
 the testator had been thinking of and intending is not undue influ- 
 ence, and wili not invalidate the will, and unless more is shown than 
 that someone begged, persuaded, or solicited B to make the will as 
 she did, the jury must find the will is valid. Persuasion and solicita- 
 tion, to be undue influence, must be so persistent and so forceful as 
 to overcome the will power of the testator, and to induce her to ac- 
 cept as her will an instrument which does not express her wishes and 
 desires in the disposition of her property, but the will and wishes of 
 another, whose i^owers she can no longer resist. 
 
 (e) The court instructs the jury that B, in making her will, had 
 the right to dispose of her property as she pleased, and to give 
 all or so much thereof to any one of her relatives or descendants, to 
 the exclusion of the others, as she saw fit or deemed proper; and 
 although the juiy may believe, from the evidence, that she made an 
 unequal distribution of her property by her will, and cut off some with 
 nothing, or but little, who seemed to have as strong claim on her gen- 
 erosity as othei's, who fared better, such facts are no evidence of 
 undue influence, and raise no presumption of the invalidity of the 
 will; provided the jury find that while making the will she had a 
 sound and disposing mind and memory. 
 
 (f) The court instructs the jury that the words "undue influ- 
 ence," used in these instructions, do not mean mere coaxing or 
 persuasion, which may cause the person coaxed to alter or change 
 the mind so as to act differently from what they would if there had 
 been no coaxing, but do mean an influence exercised by one person 
 over the mind of another, which desti'Oj's the free will of the latter, 
 and renders it incapable of carrying out its own purposes and desires, 
 and compels and forces it to adopt and accept the will and purposes 
 of the person exercising such power as his own, which he would not 
 have done if he had not been constrained by such influence. Now, 
 unless the jury shall find, from a preponderance of the evidence in 
 the case, that, at the time or prior to the time when B executed the 
 will in question, her sons, husband, or some one of them, had acquired 
 such undue influence over her that she was incapable of making her 
 will as she wanted it, but was constrained by such influence to make 
 it according to the dictation of the person or persons exercising such 
 influence, and further find that because of such undue influence her 
 will power was destroyed, and she registered the will of another, and 
 not her own, your finding must be for the defendants; provided you 
 further find, from the evidence, that in all other respects B had ca- 
 pacity to make a valid will. 
 
 (g) The court instructs the jury that the issue in this cause is 
 this: Is the writing produced in evidence the will of B or not? 
 
 (h) The court instructs the jury that you must find that the in- 
 strument purporting to be the last will and testament of B, in evi- 
 dence in this case, was not the last will and testament of said B, 
 unless you find, from the evidence, that at the time the same was 
 executed she was of sound and disposing memory.
 
 1560 FORMS OF INSTRUCTIONS. [§ 2416. 
 
 (i) The jury are instructed that, as a matter of law, the one ques- 
 tion in this ease for them to try is this: Is the writing offered the 
 will of B, deceased"? And your verdict will be that it is her will, or 
 that it is not. And did B, deceased, make and execute the alleged 
 will, in all its provisions, of her own free will and volition, so that it 
 now expresses her own wishes and intentions, or was she consti'ained 
 or coerced; through the undue influence, restraint, or coercion of 
 others, in making her will, to act against her own desire and inten- 
 tion as regards the disposition of her property, or any part of it? 
 
 (j) The words ''sound and disposing mind and memory," as used 
 in these instructions, mean a mind sufficient to enable a testatrix to 
 understand what business she was engaged in while she was making 
 and executing a will ; also, to enable her to know who were the natural 
 objects of her bounty, and her relation to them, and what property 
 she had, and the disposition she desired to make of it. And if the 
 jury shall find, from the evidence, that B, at the time she executed 
 the instrument in evidence, had sufficient mind and memoiy to under- 
 stand that she was engaged in making a will, and knew what prop- 
 erty she had, knew who her relatives were, and comprehended the 
 claims that they had on her bounty, and understood what disposition 
 she wanted to make of her property, then she possessed a sound and 
 disposing mind and memoiy, and sufficient capacity to make a valid 
 will. 
 
 (k) The court instructs the jury that B, in making her will, had 
 the right to dispose of her property as she pleased, and to give all or 
 so much thereof to any one of her relatives or descendants, to the 
 exclusion of the others, as she saw fit, or deemed proper; although 
 the jury may believe, from the evidence, that she made an unequal 
 distribution of her property by her will, and cut off some with 
 nothing, or but little, who seemed to have as strong claim on her 
 generosity as others who fared better, such facts are no evidence of 
 undue influence, and raise no presumption of the invalidity of the 
 will, provided the jury find that while making the will she had a 
 sound and disposing mind and memory. 
 
 (1) The court declares the law to be that, if the will in question 
 was the result of undue influence exercised by the defendants, or 
 either of them, over the mind and will of B, that alone is sufficient to 
 impeach and set aside said will. 
 
 (m) If the juiy believe, from the evidence, that the will in question 
 was produced by undue influence of tlie defendants, or either of them, 
 and that J, to aid the defendant in producing the execution of said 
 will, and to quiet the testatrix's fears that plaintiff might not be 
 provided for, promised the testatrix that he would provide for plain- 
 tiff in his will, then said will was not the will of said B, and the jury 
 will so find. 
 
 (n) The jury, in determining whether the will in controversy is 
 the will of B, may take into consideration the relation of the parties
 
 [§2416. WILLS. 1561 
 
 to the deceased; the unequal distribution of the testatrix's property; 
 the presence of the parties, or any of them, at the time the will was 
 made, if any of them were present ; the testimony as to what took 
 place at the time the will was made, and any testimony as to any 
 statements made by the testatrix, either before or after the will was 
 made, as to her feelings toward her grandchild, the plaintiff:; and if 
 from all the facts and circurostances in evidence in the ease, the juiy 
 shall find the will was procured by the undue influence of defendants, 
 or either of them, then you will find for the plaintiff, provided, how- 
 ever, that any statements B may have made, before or after the will 
 was made, as to her feelings for said grandchild, or expressing a 
 desire to provide for hex*, should only be considered by the jury as 
 an evidence of the feelings of said B toward her said grandchild, and 
 for no other purpose. 
 
 (o) The court instructs the jury that "undue influence," as used 
 in the instructions, is defined as that which compels the testator to 
 do that which is against his will from fear, the desire of peace or 
 some feeling which he is unable to resist. 
 
 (p) The court instructs the jury that, if you believe, from the evi- 
 dence, that the mind or will of deceased, B, either from sickness, dis- 
 ease, and bodily decay was subject to the domination and control of 
 the defendants, or either of them, and that they or either of them 
 exercised such power and influence over her mind and will in the dis- 
 position of her property by such will as to destroy her liberty and free 
 agency, and to cause such disposition of her property to be made by 
 such will to suit the purpose and wishes of the defendants, or either 
 of them, and not her own, then such will in law is not the will of said 
 B, and the jury will find the issue submitted to it for plaintiff, and 
 against her will.^^ 
 
 87— Gordon v. Burris, 153 Mo. Perry Co., 145 Mo. 432, 46 S. W. 
 
 223, 54 S. W. 546. Instructions from 955; Sehr v. Lindeman, 153 Mo. 276, 
 
 (a) to (f) inclusive were given for 54 S. W. 537. Whien tiiese instruc- 
 
 tlie proponents, and tlie instruc- tions are read in connection witli 
 
 tions from (g) to (p) inclusive for the instructions given for defend- 
 
 the contestants. ants on the same subject there can 
 
 In its opinion, the court said con- be no doubt that the jury was 
 cerning this whole series: "Read properly, fully, and explicitly in- 
 together as these instructions must structed as to the meaning of un- 
 be, they declared the true law to due influence as it has been defined 
 the jury, and whatever omissions by this court from Jackson v. Har- 
 those given for the plaintiff may din, 83 Mo. 175, to Sehr v. Lande- 
 contain are fully supplied by those mann, supra, which in short is that 
 given for the defendants. Harris it is such influence as amounts to 
 V. Hays, 53 Mo. 90; Benoist v. force, coercion, or over persuasion, 
 Murrin, 58 Mo. 322; Norton v. Pax- which destroys the free agency and 
 ton, 110 Mo. 456, 19 S. W. 807; will power of the testator and that 
 Farmer v. Farmer, 129 Mo. 530, 31 the influence of affection or desire 
 S. W. 926; Berberet v. Berberet, to gratify the wishes of one who 
 131 Mo. 399. 33 S. W. 61, 52 Am. St. is near and dear to the testator is 
 6.34; McFadin v. Catron, 120 Mo. not within the meaning of the 
 252,' 25 S. "W. 506; Cash v. Lust, 142 rule." Note: The last pirt of the 
 Mo. 630. 44 S. W. 724, 64 Am. St. comment refers to the last two in- 
 576; Riiey v. Sherwood, 144 Mo. stnictions only. 
 354, 45 S. W. 1077; Fulbright v.
 
 CHAPTER LXXXV. 
 
 MISCELLANEOUS— CIVIL. 
 
 See Erroneous Instructions, same chapter head. Vol. III. 
 
 § 2417. 
 
 § 2418. 
 
 § 2419. 
 
 § 2420. 
 
 § 2421. 
 
 §2422. 
 
 § 2423. 
 § 2424. 
 
 § 2425. 
 § 2426. 
 
 Members and officers of the 
 corporation in same posi- 
 tion as other creditors. 
 
 LiabiHty of persons holding 
 themselves out as officers 
 of a corporation. 
 
 No individual liability for 
 contracts made as officers 
 of corporation. 
 
 Corporations — Purchase of 
 capital stock — Ownership of 
 — Burden of proof. 
 
 Salary of vice-president — 
 Period of contract. 
 
 Notice to corporation — Estop- 
 pel. 
 
 Estoppel, doctrine of. 
 
 Sale by sheriff and payment 
 of proceeds to the creditor 
 after appointment of trus- 
 tees — Good faith — Burden of 
 proof. 
 
 Wrongful levy — Interest. 
 
 Keeping of prisoner under 
 strict guard — Escape of 
 prisoner. 
 
 § 2427. Value of accounts— When 
 good and collectible, are 
 presumed to continue so. 
 
 § 2428. What words necessary to 
 create a trust — Repudiation 
 — Limitations. 
 
 § 2429. Filing papers — What consti- 
 tutes. 
 
 § 2430. What constitutes a quartz 
 mining claim. 
 
 § 2431. Forest products — Whether in 
 transit — Transit defined— 
 Taxation. 
 
 § 2432. Right to dismiss school 
 teacher — When reviewable 
 by the court — Gi^ound for 
 dismissal. 
 
 § 2433. Discharge of school teacher 
 — Grounds for — What may 
 be demanded in the ab- 
 sence of special contract — • 
 Excess in social pleasures 
 and indulgences. 
 
 § 2417. Members and Officers of the Corporation in Same Position 
 as Other Creditors. Under the laAV of this state I. C. and his sister, 
 A. C, woukl occupy no different position as creditors than any other 
 creditors of the C. Lumber Co. The fact that they were members 
 and officers of the company did not affect their legal rights in that 
 respect.^ 
 
 § 2418. Liability of Persons Holding Themselves Out as Officers of a 
 Corporation, (a) The court instructs the jury that if they believe from 
 the evidence that W., C. and H. represented or held themselves out as 
 officers of a corporation named W.-H. M. Company, and the jury 
 further believe from the evidence that there was no such corporation 
 as the "W.-H. M. Company, then in such case all of the parties who 
 represented themselves to be officers of such corporation or allowed 
 their names to be so used as to lead parties dealing with said concern 
 to believe that said concern was a corporation, then in such case 
 such parties so making repi-esentations or so allowing their names 
 
 1— Crossette v. Jordan, 132 Mich. 78, 92 N. W. 782 (783). 
 
 1562
 
 § 2419.] MISCELLANEOUS— CIVIL. 1563 
 
 to be used as to lead parties to believe said concern was incorporated, 
 would be liable for all contracts made in the name of said W.-H. M. 
 Company.- 
 
 (b) The jury are instracted that if you believe from the evidence 
 that the defendants, C. and W. did not take part in creating the in- 
 debtedness sued on in this cause, then the jury are insti'ucted to find 
 the issues for the defendants, C. and W.^ 
 
 (c) The court instructs the jury that a president of a corpora- 
 tion, by virtue of his office, has no authority to guarantee the pay- 
 ment, in the name of the corporation of a promissory note executed 
 by a third jDerson.* 
 
 § 2419. No Individual Liability for Contracts Made as Officers of 
 Corporation. The court instructs the jury that if you believe, from 
 the evidence, that the defendant, E, [in all his dealings with plain- 
 tiff, appearing in evidence,] was, [to plaintiff's knowledge,] acting 
 in the capacity of president of the company, and not as an indi- 
 vidual, and that no sei'viees were rendered to the said E as an indi- 
 vidual by the plaintiff nor any agreement to pay therefor by him, 
 then you will find for the defendant."* 
 
 § 2420. Corporations — Purchase of Capital Stock — Ownership of 
 — Burden of Proof, (a) The question for your determination in this 
 case is as to whether the plaintiff company, at the time of the transfer 
 of the 200 shares of its capital stock from D to M, trustee, paid what 
 
 2 — Churchill v. Thompson Elec. authority to guarantee the pay- 
 Co., 119 111. App. 430 (434). meiit in the name of the corpora- 
 
 3 — Churchill v. Thompson Elec. tiou of a promissory note, execut- 
 Co., supra. The court said: "The ed by a third person; but if the 
 instruction refused was the one it president of a corporation makes 
 was held error to refuse in Ed- such guarantee and the corpora- 
 wards V. Dettenmaier, 88 111. App. tion thereafter receives the benefit 
 366." thereof, it would thereby ratify the 
 
 4 — Lloyd & Co. v. Matthews, 119 act of its president. What the facts 
 111. App. 546 (553). The court said: are you must determine from 
 "This instruction is correct as an the evidence.' The only objection 
 abstract proposition of law. But of appellant's counsel to the modi- 
 there was evidence tending to fied instruction is: There is no 
 prove that appellant's president evidence tending to prove that the 
 guaranteed the note merely as a guaranty was made for the pur- 
 means of procuring money for the pose of enabling the maker of the 
 Columbia Telephone Manufactur- note to pay its debt to appellant, 
 ing Company, its debtor, with and that, when the note was dis- 
 which to pay appellant, and that counted, and the proceeds placed 
 the discount of the note was in to the credit of the Columbia Tele- 
 fact for appellant, though indi- phone Manufacturing Company, 
 rectly so. The instruction ignores that company gave to appellant a 
 this evidence, and also ignores the check for the money so credited 
 evidence of ratification, name, to it, and this evidence is not con- 
 appellant's letter of July 29, 1902. tradicted by any of appellant's 
 The court modified the instruction witnesses. The objection to the 
 and gave it as modified, to which modified instruction is untenable." 
 appellant excepted. The instruc- 5 — Evans v. Marden, 154 111. 443 
 tion as modified and given by the (447), aff'g 54 111. App. 291, 40 N. 
 court is as follows: 'The court E. 446. 
 
 instructs the jury that a president The bracketed words are sug- 
 
 of a corporation by virtue of his gested by the editor, 
 office, as such president, has no
 
 1564 FORMS OF INSTRUCTIONS. [§ 2421. 
 
 it did pay for the same because it had purchased said stock to be 
 held as its own or like treasury stock, and to be disposed of as its 
 board of directors should order, or Avhether the stock was purchased 
 by the defendant, S, and the other stockholders in the proportion of 
 their then holdings; each being entitled to dispose of his own share 
 ■as he saw fit, the plaintiff corporation paying for the same at the 
 request of the purchasers and for their accommodation. 
 
 (b) The burden of proof is on plaintiff to show that it did not 
 buy or own the D stock, and that when it paid for the same it was 
 not paying its own obligation or indebtedness, but advanced the 
 money as an accommodation to the defendants, P, M and J, who were 
 purchasers of the same; and the plaintiff must satisfy you by a pre- 
 ponderance of the evidence that it did not buy said stock, but simply 
 advanced to the persons last named, at their request, the money to 
 buy the same ; -and if you believe the weight of the evidence is against 
 the contention of the plaintiff in that regard, or if you believe the 
 evidence in respect to the matter to be evenly balanced, or if you 
 are unable to say from the evidence what the truth of the matter is, 
 your verdict should be for the defendant.*' 
 
 § 2421. Salary of Vice President — Period of Contract. If you be- 
 lieve that tlfere was no 'compensation attached to the office of vice 
 president, he can recover nothing on that score. But if you believe 
 the election of vice president placed him in a position to manage and 
 conduct the business, and for that he was to receive a salary while 
 vice president, you may take that into consideration in detei'mining 
 whether that was a matter which fixed the period of his contract. 
 That is to say, if he was employed as vice president, for which he 
 received no emolument, but by reason of his vice presidency he was 
 assigned to another position, for which he was to receive $2,400 per 
 annum, you can take that fact into consideration in determining 
 whether it was understood between the parties that he was to receive 
 $2,400 a year or $200 per month.'^ 
 
 6 — Donovan-McCormick Co. v. jury is not to be oommended, we 
 Sparr, — Mont. — , 85 Pac. 1029, cannot say, in the absence of the 
 (1030). "These instructions would evidence, that the instruction is 
 seem to indicate that the trial erroneous. Confessedly, the bur- 
 court understood that the theory den was upon the plaintiff to show 
 of the defendant was that the that the shares of stock were pur- 
 shares of stock had been pur- chased for S., and that S. either 
 chased by the plaintiff for its own requested that they be purchased 
 use and benefit and not for S.'s ac- for him, or knowing- that they 
 count. 'had been purchased for his use, 
 
 "It is also arg-ued that the sec- agreed to pay for them. Smith v. 
 ond instruction imposes upon the Perham, 3:^ Mont. 309, 83 Pac. 492. 
 plaintiff the burden of proving a If the second instruction does not 
 negative; that is, that the plaintiff impose upon the plaintiff any ad- 
 did not purchase the shares of ditional burden, it cannot com- 
 stock for its own use and benefit, plain." 
 
 While this manner of presenting 7— Arkadelphia Lumber Co. v. 
 
 a question in controversy to the Asman, 68 Ark. 526, 60 S. W. 238 
 
 (239).
 
 § 2422.] MISCELLANEOUS— CIVIL. 1565 
 
 § 2422. Notice to Corporation — Estoppel. The court instructs the 
 jury, that notice to a corporation can only be given by giving it to 
 some officer authorized to represent the corporation in the particular 
 matter to which the notice relates; or else to some person whose sit- 
 uation and relation to the corporation imply authority to represent 
 the corporation in such matter.® 
 
 § 2423. Estoppel, Doctrine of. It is a principle of law that a 
 man who takes an active part in leading others into error cannot ask 
 that the consequences of his mistake be thrown on others. It is also 
 a well-settled principle of law that, when an act is done, or a state- 
 ment made, by a person, which if denied by him would work an injury 
 to others whose conduct had been influenced by the act or statement, 
 the character of an estoppel attaches, and he will not be allowed to 
 m^ake such denial.^ 
 
 § 2424. Sale by Sheriff and Payment of Proceeds to the Creditor 
 After Appointment of Trustee — Good Faith — Burden of Proof. In 
 
 this case the burden rests upon the plaintiff to prove, by a fair pre- 
 ponderance of evidence, that the allegations of his complaint are 
 true ; and, first, that P was, at the date of his assignment, the owner 
 of the articles in question. It is conceded that he was the owner, 
 unless the claimed sale of them to C is valid against the plaintiff. 
 If you find upon the evidence that the sale in question was merely 
 colorable, and not m^ade in good faith, or was not accompanied or 
 followed by any change of possession or use, then you will find that 
 is'sue for the plaintiff. If you find that it was made in good faith, 
 and was accompanied and followed by an actual change of possession, 
 then you will find that issue for defendant, for the law is so that if 
 a man sells pei'sonal property like this, and continues to possess and 
 use it as before, so that there was none of the usual indicia of a 
 change of ownership apparent, his creditors may treat it as never sold, 
 and this right inures to his assignee in insolvency. Now, under our 
 statute, it is the duty of an officer to deliver property of an assigning 
 debtor which has been attached by him to the trustee in insolvency, 
 and if you find that the property in question was the property of the 
 assigning debtor, within the instructions which I have given you, it 
 became the duty of the defendant to deliver it to the trustee imme- 
 diately upon his appointment and qualification : and if, knowing of 
 such assignment, and of the appointment of the trustee, he did not 
 so deliver the property, but sold the same afterwards under the exe- 
 cution, auu paid the proceeds over to the creditor, then the plaintiff 
 must prevail in this action. But if he had no knowledge of the as- 
 signment or of the appointment of the trustee, until after he had 
 
 8— Keenan v. Dubuque, etc., 13 ers', etc., Bk. v. Payne, 25 Conn, 
 
 la. 375; Fulton Bk. v. New York, 444. 
 
 etc., 4 Paig-e 127; Housatonic Bk. 9 — Hutching v. Weldin, 114 Ind. 
 
 V. Martin, 1 Met. 294; Bk. of the 80, 15 N. E. 804. 
 U. S. V. Davis, 2 Hill 451; Farm-
 
 1566 FORMS OF INSTRUCTIONS. [§ 2425. 
 
 sold the property, under the execution, and in good faith paid the 
 avails to the judgment creditor, and no notice had been given to, and 
 no demand had been made upon him before this last-mentioned act, 
 then the plaintiff cannot recover upon the allegations of this com- 
 plaint, and the conceded facts in the case. If the defendant is to 
 prevail, howevei', because he had no knowledge of the assignment, the 
 burden of proving this lack of knowledge rests upon him.^° 
 
 § 2425. Wrongful Levy — Interest. The court instructs the jury- 
 that if you find for the plaintiff you should return a verdict for the 
 amount of the balance due on the note held by K, read in evidence, 
 not exceeding the value of the stock of goods, furniture and fixtures 
 levied upon by the sheriff under the execution referred to in the evi- 
 dence, on the day of , to which you may add — per cent. 
 
 interest from that date to the present time.^^ 
 
 § 2426. Keeping Prisoner Under Strict Guard — Escape of Prisoner. 
 
 (a) If the jury find from the evidence that the defendant was the 
 
 acting sheriff of the county of , and keeper of the common jail 
 
 thereof, at the time when the execution or capias against the body of 
 A. was placed in the hands of said defendant or any deputj' sheriff 
 of his to execute, if the same was so placed in his hands, or that of 
 any of his deputies, and that said defendant as such sheriff or any 
 of his deputies arrested said A. under and by virtue of said execu- 
 tion or capias, and that said plaintiff or his mother as his next friend 
 on his behalf paid said defendant, as such sheriff, or his deputy or 
 turnkey, said defendant's fees as such sheriff for receiving and com- 
 mitting said A. to said jail, and his board at the time of such commit- 
 ment at the commencement of each week for two weeks, and that 
 during any part of said time said defendant, or his deputy or jailer 
 or turnkey, suffered, pei'mitted or allowed said A. to go outside of 
 said jail for ever so short a time for his own ease or comfort, or to 
 do chores, then the plaintiff is entitled to recover in this cause, and 
 it will be your duty to return a verdict in his favor; and it makes 
 no difference as to the plaintiff's right to recover, even if A. volun- 
 tarily returned to or was taken into custody again by said defendant 
 or his deputy or turnkey. 
 
 10— Boseli v. Doran, 62 Conn. 311, Mo. 383); to be allowed in the dis- 
 
 25 Atl. 242 (243). cretion of the jury (section 2869 
 
 11— State ex rel. Kennen v. Fi- Rev. St. 1899; Carson v. Smith, 133 
 
 delity & Deposit Co., 94 Mo. 184, Mo. 606, 34 S. W. 855). The instruc- 
 
 67 S. W. 958 (962). tion is not as definite and full as 
 
 "The admitted facts are that it should have been, in calling- the 
 
 the levy was made on August 27, attention of the jury to the fact 
 
 1900. This is therefore the date that the allowance of interest was 
 
 on which the goods were taken in their discretion. But it did in 
 
 and converted, and their value on fact leave the allowance of in- 
 
 thnt date, with six per cent in- terest to the discretion of the jury, 
 
 terest per annum, is the proper and if the defendants were not 
 
 measure of respondent's damages, satisfied with the instruction, they 
 
 (Rir-hnrrlson v. Ashby, 132 Mo. 238, should have asked for a more defi- 
 
 33 S. W. 806; Carter v. Feland, 17 nite direction."
 
 § 2427.] MISCELLANEOUS— CIVIL. 1567 
 
 (b) If the juiy believe from the evidence that said A, at any- 
 time after he was committed to jail under the writ read in evidence, 
 if he was so committed, and during the time for which his board had 
 been paid, if it had been paid, was allowed to go outside of said jail 
 at any one time or more when he was not under strict guard, then 
 the plaintiff is entitled to recover in this case, and you should find 
 a verdict for the plaintiff. 
 
 (c) If the juiy believe from the evidence in this ease that said 
 A at any time after he was committed to jail under the writ read 
 in evidence, if he was so committed, and during the time for which 
 his board had been paid, if it had been paid, was allowed to and did 
 sleep with the jailer in the debtors' room, without the same being 
 locked or guarded, or was allowed to go into a room or rooms not a 
 part of the jail — to wash dishes or peel potatoes, or for any other 
 purpose — when not strictly under guard, then the defendant is liable 
 in this case and you should find a verdict for the plaintiff.^" 
 
 § 2427. Value of Accounts — When G-ood and Collectible, Are Pre- 
 sumed to Continue So. You are instructed that accounts having once 
 been shown to be good and collectible are presumed to have continued 
 so, and that the fact that the accounts appear upon the books of the 
 company and are testified to have been good and collectible is evi- 
 dence for your consideration of the value of those accounts.^^ 
 
 § 2428. What Words Necessary to Create a Trust — Repudiation — 
 Limitations, (a) The court instructs the jury that no particular 
 form of words is necessary to create a trust or to make the person 
 declaring the tnist himself a trustee. The word "tinist" need not 
 be used. Any expression which shows unequivocally the intention to 
 create a trust will have that effect. When a person accepts personal 
 property to be held in trust for another and orally or in writing, ex- 
 pi-essly or implied, declares that he holds such propertj^ for such 
 other person, then such possession and declaration constitute him a 
 trustee, in an express trust for such other, of the property', and in 
 such ease the beneficial interest in the property is considered as vested 
 in the cestui que trust. 
 
 (b) In this ease if you believe from a preponderance of the evi- 
 
 12— Comer v. Huston, 55 111. App. cl. 32. Mr. Abbott, in his Trial 
 
 153. Brief (2d ed.), p. 433, says: 'In the 
 
 13 — Thornton-Thomas Mercantile absence of evidence, solvency is 
 
 Co. v. Bretherton, 32 Mont. 80, 80 presumed. Solvency or insolvency 
 
 Pac. 10 (16). at a given time having been shown, 
 
 "This presumption is recognized it is presumed to continue within 
 
 in the Code of Civil Procedure reasonable limits of time.' It is 
 
 'All other presumptions are satis- also asserted that the instruction 
 
 factory, if uncontradicted. They does not inform the jury that some 
 
 are denominated disputable pre- of said accounts and bills receiv- 
 
 sumptions and may be controvert- able were taken po.ssession of un- 
 
 ed by other evidence. The follow- der a writ of attachment in the 
 
 irig are of that kind: . . . That suit of C. & Bro. against the com- 
 
 a thing once proved to exist con pany to satisfy its indebtedness, 
 
 tinues as long as is usual with Section 4334, Civ. Code, covers this 
 
 things of that nature.' Section 3266, objection."
 
 .1568 FORMS OF INSTRUCTIONS. [§2429. 
 
 dence th'at A. D. received money from his father in England to be by 
 him held in trust for J. D., and that he, the said A. D., further de- 
 clared that he intended to keep and use the money himself and pay 
 interest upon the same until J. D. attained the age of twenty-one 
 years, for the benefit of the said J. D., and did so keep and use the 
 money, then you are instructed that; in law, such a state of facts 
 constitutes an express trust in the hands of A. D. for the benefit of 
 J. D., and the Statute of Limitations has no application to this case, 
 unless you believe from a preponderance of the evidence, that A. D. 
 oi>enly and expressly disavowed such express trust, if any, and that 
 such a disavowal and repudiation, if any, was brought to the personal 
 knowledge of the said J. D., and that after receiving such personal 
 knowledge, if any, he failed to use due diligence in prosecuting his 
 claim.i* 
 
 § 2429. Filing Papers — What Constitutes. To illustrate what I 
 mean, an attorney cannot put a paper among a lot of papers, and 
 carry the whole bundle to the clerk's office and hand them to the 
 clerk, and expect the clerk to seek out from that bundle, papers that 
 have not been filed, and enter the fact that they were filed upon them. 
 That does not constitute, in law, a legal filing.^^ 
 
 § 2430. What Constitutes a Quartz Mining Claim. The court in- 
 structs the jury that, to constitute a quartz mining claim, certain 
 things are absolutely necessary: First, that a vein or lode of rock 
 in place bearing minerals exists within the boundary lines of the 
 mining claim; second, that the person puiporting to locate the said 
 claim has discovered this vein or lode before the location can be 
 made.^^ 
 
 14 — Dawes v. Dawes, 116 111. App. tion was not called to the fact that 
 
 36 (39). they were so left or that there 
 
 "These instructions considered in was any intention to file them, 
 
 connection with the evidence and there was no legal filing. That, it 
 
 with all the other instructions is true, is not this case; but the 
 
 given in the case, state the law following language of Mr. Presid- 
 
 corrcctly and were not, in our ing Justice Lumpkin, 112 Ga. 344, 
 
 opinion, in any respect mislead- 37 S. E. 359, bears closely upon 
 
 ing." the question now under discussion: 
 
 15 — Cooper v. Nisbet, 119 Ga. 752, 'It is scarcely reasonable to ex- 
 
 47 S. E. 173 (174). pect a clerk to duly file papers left 
 
 "The true rule, we think, is that upon his desk or elsewhere in his 
 
 stated by the Illinois Court in the office when his attention is not in 
 
 case of Hamilton v. Beardslee, 51 some way directed to the fact that 
 
 111. 478, that, to constitute a legal the person depositing them in or 
 
 filing, the paper must pass into the upon his office furniture wishes 
 
 custody of thn clerk, 'and that the him to assume charge thereof and 
 
 object be communicated to him file the same.' " 
 
 in some manner capable of being 16— La Grande Inv. Co. v. Shaw, 
 
 undpi-stood.' See. also, Pflrmann v. 44 Or. 416, 72 Pac. 795 (797). 
 
 Henkel, 1 111. App. 145; Boyd v. "ThiS' is technically correct. A 
 
 Desmond, 79 Cal. 250, 21 Pac. 755; discovery after an attempted loca- 
 
 Phillips V. Beene. 38 Ala. 248. And tion may, however, take effect and 
 
 in the case of Jolley v. Rutherford, validate the location by relation, 
 
 112 Ga. 342, 37 S. E. 358, it was providing no valid discovery and 
 
 held that where papers were left location by a third person has in- 
 
 on the clerk's desk, and his atten- tervened. Crown P. Min. Co. v.
 
 §2431.] MISCELLANEOUS— CIVIL. 1569 
 
 § 2431. Forest Products — Whether in Transit — Transit Defined — 
 Taxation. The court instructs you that the logs in question are what 
 is classed in our tax laws as "forest products," and we have a re- 
 cent statute in this state w'hieh provides that property of that class, 
 owned by residents or non-residents, shall be assessed to the ov.ner, 
 or to the person having control thereof, in the township or ward 
 where the same may be, except that where such property is in transit 
 to some place within the state it is to be assessed in such place. All 
 forest products in transit on the second Monday in April and there- 
 after, found in the waters or streams of this state, shall be held to 
 have a place of destination at the sorting grounds nearest the mouth 
 of such stream, unless the contrary is made to appear. The law also 
 provides that logs, lumber, pickets, telegraph poles, ties and other 
 forest products, if piled or left in any yard, railroad, reserve, shed, 
 or any other place, shall not be deemed to be in transit, but are to 
 be assessed to the owner in the township where they are found. 
 Therefore it becomes an important question in this case whether or 
 not the logs were in transit. If they were, they were not liable to 
 
 taxation in township, and the plaintiffs are entitled to your 
 
 verdict. If they were not in transit, they would, under the undis- 
 puted evidence, be liable to taxation there. When we speak of goods 
 in transit, we mean on the way or passage, while going from one 
 place or person to another, in the course of business or commercial 
 
 dealing. So if you find that on the of , the plaintiffs 
 
 ■were driving the logs of which the logs in this suit formed a part, 
 towards their destination, or were breaking the rollways and jams 
 for that purpose, or were working upon them in the ordinary way, 
 with a view of driving them towards their destination, or as many 
 of them as the stage of water in the river would permit, then the 
 logs would be in transit, and not liable to assessment in the township 
 
 of for that year, and your verdict will be for the plaintiff. 
 
 But if you find from the e\'idence that the logs in question were not 
 in the waters or stream in question; were not actually started on 
 their way or passage down it, but in unbroken piles, awaiting the 
 breaking up of the river or rise of waters, or some future event, be- 
 fore starting,^ — the mere intent of the owners, unaccompanied by any 
 acts showing their present purpose to drive the logs, would not justify 
 you in regarding the property in transit. What was the condition 
 
 of these logs on the of , and what, if anything, was 
 
 being done with them at that time, are disputed questions of fact, 
 for you to decide from the evidence. If you find that the logs were in 
 transit, your verdict will be for the plaintiffs, that they are entitled, 
 and were at the time of the commencement of this suit, to their prop- 
 erty. If you find that defendant did not unlawfully detain the proj)- 
 
 Crimson. 39 Or. 364, 65 Pae. 87; The North Noonday Min. Co. v. 
 Jupiter Min. Co. v. Bodie Consol. The Orient Min. Co. (C. C). 1 Fed. 
 Min. Co. (C. C), 11 Fed. 666, 675; 522, 531." 
 
 99
 
 1570 FORMS OF INSTRUCTIONS. [§ 2432. 
 
 erty replevined, then, by virtue of his seizure, he had a lien to the 
 amount of the tax against the logs, to-wit, dollars, and, hav- 
 ing waived a return of the property, would in such case be entitled 
 to a verdict for the amount of his lien.^^ 
 
 § 2432. Right to Dismiss School Teacher — When Reviewable by the 
 Court — Gi;Dund for Dismissal. If the jury find from the evidence 
 that the school board of the defendant district met, in conjunction 
 with the county superintendent of public instruction, to consider the 
 matter of complaints made against the plaintiff as teacher of the 
 school of the district, and at such meeting such board and superin- 
 tendent gave full and fair consideration to the facts of the matter 
 as known to them personally, and also used reasonable diligence to 
 inform themselves upon the subject from such sources as were avail- 
 able, and gave full and fair consideration to such information, and 
 then, in good faith, reached the unanimous' conclusion that plaintiff 
 had been so negligent of his duties as teacher, that the interest of 
 the school required his discharge, and therefore made an order dis- 
 charging him as such teacher on the day of , then plaintiff 
 
 is not entitled to recover in this action.^* 
 
 § 2433. Discharge of School Teacher — Grounds for — What May 
 Be Demanded in the Absence of Special Contract — Excess in Social 
 Pleasures and Indulgences, (a) Unless the contract so pi-ovided, the 
 board of trustees would not have the right and power to adopt a rule 
 or by-law prescribing that the plaintiff, as one of the teachers, should 
 not receive callers or have company during the school days, — say from 
 Monday morning to Friday afternoon, — nor to adopt a rule prescrib- 
 ing that she should not have company in the parlor, of evenings, 
 later than 10:30 or 11 o'clock. Such a rule or regulation or by-law 
 as either of these would be regarded, in law, as arbitrary, unreason- 
 able and oppressive, and could not be upheld or enforced, and the 
 plaintiff would have the legal right to ignore them or refuse com- 
 pliance with them. The boiard of trustees would not have the right 
 to discharge the plaintiff for her refusal to obey or comply with such 
 rules as these, and if they did so discharge her for this reason alone, 
 the defendant would be guilty of a breach of its contract, and would 
 be liable to the plaintiff therefor. 
 
 17 — Hill v. Graham, 72 Mich. 659, which they may be dismissed, and 
 
 40 N. W. 779 (782), 16 Am. St. 552. the manner in which they may be 
 
 "This charge fully covered the dismissed. Said section reads: 'Tlie 
 
 ground, and was as favorable to district board in each district shall 
 
 the plaintiff, at least, as they had contract with and hire qualified 
 
 a right to expect." teachers, for and in the name of 
 
 18 — School Dist. of Kearny Co. the district, which contract shall be 
 
 v. Davies, 69 Kan. 162, 76 Pac. 409 in writing, and shall specify the 
 
 (409). wages per week or month as 
 
 "Section 6184, Gen. St. 1901, pro- agreed upon by the parties, and 
 
 vides for the employment of teach- such contract shall be filed in the 
 
 ers, and the manner of employing district clerk's ofTice; and in con- 
 
 them in the district schools of the junction with the county superin- 
 
 state. It al.so provides for the dis- tendont may dismiss for incom- 
 
 missal of teachers, the causes for petency, cruelty, negligence or im-
 
 2433.] 
 
 MISCELLANEOUS— CIVIL. 
 
 1571 
 
 (b) While this is true, yet the plaintiff, under her contract, owed 
 to the defendant, as a teacher, her loyal support, her faithful service, 
 her most efficient work; and she could not lawfully and rightfully 
 engage in such social functions, or devote so much of her time and 
 attention to social pleasures, or engage in such other work, conduct 
 or practices, as would impair her usefulness and efficiency as a teach- 
 
 morality.' In the case of School 
 Dist. V. McCoy, 30 Kan. 268, 1 Pac. 
 97, 46 Am. Rep. 92, it was held that 
 the school district board acting in 
 conjunction with the county super- 
 intendent, as provided by said sec- 
 tion, was not a court; that this 
 tribunal so constituted could act 
 without pleading and without 
 process, and that the proceedings 
 to dismiss a teacher could be con- 
 ducted by it in an informal man- 
 ner. We are now called upon to 
 determine the legal effect of the 
 acts of this tribunal. The Legisla- 
 ture must have had a purpose in 
 uniting the county superintendent 
 Avith the school district board. In 
 doing so it constituted a special 
 tribunal, w'hich may fairly be said 
 to be outside and independent of 
 the employing board — a tribunal 
 unknown to the common law, and 
 given power to dismiss the teacher 
 for negligence, incompetency, cru- 
 elty or immorality. In the case of 
 Meffert v. Medical Board, 66 Kan. 
 710, 72 Pac. 247, the board of med- 
 ical registration and examination 
 was classed with such boards as 
 the county board of equalization, 
 boards for the examination of ap- 
 plications for teachers' certificates, 
 city councils in granting and re- 
 fusing a business or occupation li- 
 cense, and numerous other boards 
 of similar character. It was there 
 said that such boards performed 
 no judicial functions, were not ju- 
 dicial tribunals, and had never 
 been classified as such. It was 
 held however that in the absence 
 of fraud, corruption or oppression 
 the findings of the medical board 
 were conclusive upon this court. 
 The school law of New Jersey 
 clothes the board of education with 
 power to employ teachers and to 
 remove them for cause. There is 
 given the right of appeal to the 
 county superintendent. Fmni that 
 official is given the right of appeal 
 to the State 'Superintendent, and 
 thence to the State Board of Edu- 
 cation. There is no statutory pro- 
 vision constituting the acts of the 
 State B. of Education final. In 
 
 the case of Draper v. Com'rs of 
 Pub. Instruction, 66 N. J. Law 54, 
 48 Atl. 566, it was held that the 
 board had exclusive jurisdiction 
 over such controversies and that 
 its determinations were final. The 
 school law of Iowa, in the matter 
 of the dismissal of teachers is 
 quite similar to that of N. J. The 
 Sup. C. of Iowa in the case of 
 Park V. School Dist., 65 Iowa 209, 
 21 N. W. 567, held that the finding 
 of the Co. Supt. sustained by the 
 State Supt. on appeal was final; 
 that the proceeding is statutory, 
 unknown to the common law, and 
 the courts therefore have no au- 
 thority to examine or retry the 
 questions of fact. In the case of 
 McCrea v. School Dist., 145 Pa. 
 550, 22 Atl. 1040, it was held that 
 under a statute giving a board of 
 directors power to dismiss a teach- 
 er for incompetency, cruelty, negli- 
 gence or immorality, the board 
 was held merely to the observance 
 of good faith, and its acts were 
 not reviewable. To like effect is 
 the case of Whitehead v. School 
 Dist., 145 Pa. 418, 22 Atl. 991. In 
 Gillan v. Board of Regents, 88 Wis. 
 7, 58 N. W. 1042, 24 L. R. A. 336, 
 it was held that the power to re- 
 move a teacher given to the board 
 of regents, when exercised in a 
 given case cannot be inquired into 
 by the courts; that this power of 
 removal becomes a part of every 
 contract made by the board with 
 the teacher; that when the board 
 has exercised this power and the 
 teacher has received notice there- 
 of, the right to further salary or 
 compensation is terminated. In the 
 case of P. v. B. of Education, 52 
 N. T. Super. Ct. 620, under a stat- 
 ute providing that 'any teacher 
 may be removed by the board of 
 education upon the recommenda- 
 tion of the city superintendent,' 
 it was held that the order of re- 
 moval might be made without 
 cause asserted or shown, and was 
 not reviewable. It is manifest that 
 the intention of the Legislature in 
 enacting section 6184 was to pro- 
 vide a speedy and inexpensive
 
 1572 FORMS OF INSTRUCTIONS. [§ 2433. 
 
 er, or as, when properly understood and interpi-eted, would injure the 
 school, or interfere with the discipline of its pupils or tend to dam- 
 age its reputation and character as an institution of learning. 
 
 (e) The defendant would have the right, under the law, to dis- 
 charge the plaintiff and terminate her connection with said school for 
 any reasonable cause, but not arbitrarily and without good cause. It 
 had the right to discharge her for incompetency as a teacher, if the 
 fact existed, or for her insubordination or refusal to carry out or 
 comply with or confonn to any reasonable by-laws or regulations 
 made and adopted by the board of trustees, or by the president of 
 the faculty under and by the direction of said board, or it would 
 have the right to dismiss her from the school and terminate her con- 
 nection therewith, for immorality, immodest or unladylike conduct and 
 behavior, or for any improper, immodest, and unbecoming conduct, 
 such as would be likely to be hurtful or injurious to the reputation 
 or standing of the school, or to impede and prevent or interfere with 
 the proper progress of its pupils, or their proper discipline and train- 
 ing. But under these principles the board of trustees would not have 
 the right to interfere with her social relations, or her right to receive 
 and entertain her friends, or with the time at which she would dis- 
 miss- them of evenings, so long as her actions and conduct in these 
 particulars were usual, chaste, proper, ladylike, and becoming a lady 
 in her position in life, and not hurtful nor injurious to the school, 
 nor incompatible with her duties as a teacher in said school. 
 
 (d) If she was guilty of going into society or of keeping late 
 hours in company of young men, or going with them to such ques- 
 tionable places as was likely to cause her reputation as a lady to be 
 called into question, or as would impair her ability and efficiency as 
 a teacher, or disqualify her to perfoi-m her duties as well as she 
 might otherwise have done her duties as a teaehei-, then the board of 
 trustees would have the right to dismiss her and terminate its con- 
 tract with her for these reasons. 
 
 (e) Again, if she was guilty of habitually counselling or encour- 
 aging the pupils of said school, or any of them, to disobey and vio- 
 late the proper and reasonable regulations and rules of the school, 
 which had been adopted by the board of trustees or by the president 
 of said school under the authority of siaid board, — such as a rule for- 
 
 mode for the dismissal of teachers with the district board, and giving 
 from the district schools. We be- the tribunal thus created the pow- 
 lieve that the Legislature estab- er to dismiss teachers, unless it 
 lished this tribunal clothed with was intended that in the absence 
 the power to dismiss with the in- of fraud, corruption, or oppression, 
 tention that its acts should be its acts should be final and con- 
 final. The teacher takes his em- elusive. It would tend greatly to 
 ployment with the knowledge of impair the government and effi- 
 this power, and it enters into his cicncy of the public schools if the 
 contract of hire however made or honest judgment and discretion of 
 formulated. We can see no pur- this tribunal so exercised was sub- 
 pnse or object of the Legislature in ject to review." 
 Joining the county superintendent
 
 §2433.] MISCELLANEOUS— CIVIL. 1573 
 
 bidding and prohibiting the boys and girls to visit each other with- 
 out permission, — then, under these circumstances, the board would 
 have the right to dismiss her from the school and terminate her con- 
 nection with it. 
 
 (f) If you find that when the ox'iginal contract was made there 
 was no express stipulation that she was to keep the study hall, but 
 that she was aftenvards assigned to the position and work, and that 
 the disorder and confusion, if any there were, in the study hall, was 
 not due to her neglect or inattention to her duties, but that it was 
 due to the fact that she was a lady, and a young lady, and that many 
 of the pupils were young men or large boys, and that they were un- 
 ruly, and could not be restrained by plaintiff, as a young lady, with- 
 out fault on her part, then, under these cii'cums'tances, she would not 
 be liable for such disorder.!^ 
 
 19— The above series of instruc- stitute v. Copass, 108 Tenn. 582, 69 
 tions approved in Hall-Moody In- S. W. 327 (329).
 
 PART III, 
 
 FORMS OF INSTRUCTIONS— CRIMINAL. 
 
 CHAPTER LXXXVI. 
 
 CRIMINAL— IN GENERAL. 
 
 ALIBI— IDENTITY OF ACCUSED— ARREST— ATTEMPT TO 
 ESCAPE— FLIGHT. 
 
 See Erroneous Instructions, same chapter head. Vol. III. 
 
 ALIBI. 
 § 2434. Defendant not present when 
 
 crime committed. 
 § 2435. An alibi is the completest de- 
 fense that can be devised. 
 S 2436. The alibi must show that 
 the defendant could not 
 have been at the place of 
 the crime at that time. 
 § 2437. Evidence must account for 
 the whereabouts of defend- 
 ant during- the whole pe- 
 riod — Benefit of a doubt 
 given defendant. 
 §2438. That the defendant was at 
 another place but not so 
 far away but that he could 
 with ordinary exertion 
 have reached it may be 
 considered. 
 § 2439. Evidence of an alibi should 
 be subjected to rigid scru- 
 tiny. 
 { 2440. An alibi characterized as be- 
 ing easily proven and hard 
 to disprove — Caution and 
 care in examining evidence 
 of. 
 5 2441. A simulated, false and fraud- 
 ulent alibi is a discrediting 
 circumstance. 
 § 2442. Burden of proof on state 
 of whereabouts of defend- 
 ant. 
 § 2443. Burden of proof — An alibi 
 is not to be considered as 
 a basis for a reasonable 
 doubt unless established. 
 5 2444. Reasonable doubt raised by 
 an alibi sufficient to acquit. 
 § 2445. Defendant should be given 
 the benefit of a reasonable 
 doubt of his presence at the 
 commission of the crime. 
 
 IDENTITY OF ACCUSED. 
 
 § 2446. Identity of accused— Homi- 
 cide — Larceny. 
 
 § 2447. Identification of defendant. 
 
 § 2448. Doubt as to defendant or 
 somebody else. 
 
 AEREST. 
 
 § 2449. When officer may arrest 
 without warrant— Right of 
 private individual to do so. 
 
 § 2450. Unnecessary violence in mak- 
 ing arrest. 
 
 § 2451. Deputy sheriff making ar- 
 rest for misdemeanor can 
 kill only in self defense. 
 
 § 2452. Right of officer to make ar- 
 rest-Shooting the officer 
 for purpose of escape — 
 What constitutes an act of 
 selling liquor. 
 
 § 2453. Right of sheriff to call posse. 
 
 § 2454. Wbpn a refusal to assist in 
 making arrest is justified. 
 
 § 2455. Resisting officer in execution 
 of a writ — Personal ani- 
 mosity immaterial. 
 
 ATTEMPT TO ESCAPE — FLIGHT. 
 
 J 2456. Attempt to escape — How con- 
 sidered. 
 
 § 2457. Flight raises presumption of 
 guilt. 
 
 § 2458. Flight to avoid arrest as pri- 
 ma facie evidence — Homi- 
 cide. 
 
 § 2459. Flight as tending to show- 
 Consciousness of guilt — 
 Significance when defend- 
 ant is insane. 
 
 § 2460. Flight as evidence of guilt — 
 Explained by defendant. 
 
 § 2461. Flight may or may not be 
 considered as proof of 
 guilt — Depends on motive 
 — Explained. 
 
 1575
 
 1576 
 
 FORMS OF INSTRUCTIONS. 
 
 [§ 2434. 
 
 § 2462. Attempt to escape— Infer- 
 ence to be drawn therefrom 
 — May be either strong or 
 slight— Terms explained. 
 
 § 2463. Failure to flee or voluntary- 
 surrender no evidence of 
 innocence. 
 
 § 2464. Attempt to release prisoner 
 from jail by delivering tools 
 to prisoner. 
 
 ALIBI. 
 
 § 2434. Defendant Not Present When Crime Committed. If you 
 
 believe from the evidence that the defendant was not present at the 
 time it is alleged that the crime was committed, you must acquit 
 him.^ 
 
 § 2435. An Alibi Is the Completest Defense That Can Be Devised. 
 Something has been said here about an alibi. The books say that an 
 alibi is a dangerous defense, yet, when there are no circumstances s'how- 
 ing any lack of completion in (the chain, it is as complete a defense as 
 can be devised, because the law says a man cannot be in two places at 
 one and the same time, and we all know that. He cannot be in A. 
 and B. the same day, at precisely the same time.^ 
 
 § 2436. The Alibi Must Show That the Defendant Could Not Have 
 Been at the Place of the Crime at That Time, (a) An alibi is a de- 
 fense which is established by showing that the person chai'ged with 
 the crime was at some place other than that where the crime was 
 committed, at such a time that he could not have been at the place of 
 the crime at the time of its commission. If the evidence offered to 
 establish an alibi fails to show the accused at the place claimed at 
 such a time that he could not have been where the crime was com- 
 mitted at the time of its commission, the alibi fails. In other words, 
 if the accused might have been at the place he claims at the time 
 shown, and yet might have been at the place of the crime at the time 
 of its commission, there is no alibi. Of course if it appears that the 
 respondent was at W. at such a time that he could not have been in 
 the R bank between the hours of two and three in the morning of 
 November 6th, the alibi is made out, and the defense is complete.^ 
 
 (b) The defense interposed by the defendant in this case is what 
 is known in law as an alibi — that is, that the defendant claims that 
 he was at another place at the time of the commission of the crime ; 
 and the court instructs the jury that such defense is as proper and 
 legitimate, if proved, as any other, and all the evidence bearing upon 
 that point should be carefully considered by the jury. Such de- 
 fense, to be entitled to consideration, must be such as to show that 
 at the very time of the commission of the crime charged the accused 
 was at another place so far away and under such circumstances that 
 he could not, with any ordinary exertion, have reached the place 
 where the crime was committed, so as to have participated in the 
 
 1— People v. Feliz, 136 Cal. 19, 69 
 Pac. 220. 
 
 2— State V. Rhodes, 44 S. C. 325, 
 22 S. E. 306 (308). 
 
 3— State v. Powers, 72 Vt. 168, 47 
 Atl. 830 (833).
 
 § 2437.] CRIMINAL— IN GENERAL. 1577 
 
 commission thereof. But the court instructs the juiy, also, as a mat- 
 ter of law, that the burden to prove that the defendant was at an- 
 other place at the time of the commission of the ci'ime, must be by 
 preponderance of evidence; that is, by the ^'eater and superior evi- 
 dence.* 
 
 (c) The court instructs the jury that the testimony in support of 
 this defense, to be entitled to weight, must be such as to show that, 
 at the very time of the commission of the crime, the defendant was 
 at another place so far away, or under such circumstances, that he 
 could not have been at the place where the crime was committed.^ 
 
 (d) The court instructs the jury that the defense of an alibi, to 
 be entitled to consideration, must be such as to show that, at the very 
 time of the commission of the crime charged the accused was at 
 another place, so far away or under such circumstances that he could 
 not with any ordinary exertion have reached the place where the 
 crime was committed so as to have participated in the commission 
 thereof.® 
 
 § 2437. Evidence Must Account for the Whereabouts of Defend- 
 ant During the Whole Period — Benefit of a Doubt Given Defendant. 
 The jury are instructed that when a defendant undertakes to estab- 
 lish an alibi, the evidence which he offers, taken with the other evi- 
 dence in the case, must account for him during the whole period. 
 But if you entertain a reasonable doubt as to his guilt, or as to his 
 whereabouts when his presence is material, you should give him the 
 benefit of that doubt. '^ 
 
 § 2438. That the Defendant Was at Another Place but Not So Far 
 Away but That He Could with Ordinary Exertion Have Reached It, 
 May Be Considered. One of the defenses interposed by the defend- 
 ant in this case is an alibi; that is, that the defendant was at an- 
 
 4 Glover v U S — IT. — ,91 sumed the instruction in Peyton v. 
 
 S ^ 41 • • •' State, 54 Neb. 188, 74 N. W. 597, 11 
 
 5— State v. McGarry, 111 Va. 709, Am. Grim. Rep. 47, did, that, to en- 
 
 83 N W 719. t'*^^® t^® defense of alibi to consider- 
 
 6— State v.* Maher, 74 la. 82, 37 ation it must appear that the place 
 
 • N W. 2; Mullins v. The People, 110 where the defendant claimed to 
 
 jjj 45 ' have been was so great a distance 
 
 In the first case the court said from the place where the crime was 
 
 that the defendants were claiming committed as to preclude the pos- 
 
 "what is known in law as an alibi; sibility of participation therem." 
 that is, at the time the robbery 7— People v. Worden, 113 Cal. 569, 
 
 with which they are charged was 45 Pac. 844 (846). „„ ^ , ^„„ 
 
 being committed they were at a In Barr v. People, 30 Colo. 522. 
 
 different place, so that they could 71 Pac. 392 (394), a snnilar mstruc- 
 
 not have participated in its com- tion was given to the effect that: 
 mission," and defines the nature of The court instructs the jury that 
 
 ihe proof required. to render an alibi satisfactory the 
 
 An instruction in substantially evidence must cover the whole of 
 
 the same form was approved by the time of the transaction in ques- 
 
 the Supreme Court of Nebraska in tion. If you have any reasonable 
 
 Nightingale v State, 62 Neb. 371, doubt whether the defendant was 
 
 87 N W 158 (159). The court said present or absent from the place 
 
 that this instruction was not "sub- where the crime was committed 
 
 iect to anv just criticism. It did and participated in the commission 
 
 not say to the jury, as it was as- thereof, it is your duty to acquit.
 
 1578 FORMS OP INSTRUCTIONS. [§ 2439. 
 
 other place at the identical time that the crime was committed, if 
 committed at all. If, in view of all the evidence, you have any rea- 
 sonable doubt as to whether the defendant was at another place from 
 where the crime was committed at the time of its commission, then 
 you should acquit ; but if you believe from the evidence that the ac- 
 cused was not so far away from the place where the offense was com- 
 mitted but that he could, with ordinary exertion, have reached the 
 place where the offense was committed, then you will consider that 
 fact as a circumstance tending to prove or disprove the alibi. ^ 
 
 § 2439. Evidence of an Alibi Should Be Subjected to Rigid Scru- 
 tiny. The defense claimed in this case is that of an alibi; that is, 
 that the defendant was elsewhere when the offense was committed. 
 The testimony offered to prove this defense should be subjected, like 
 all the evidence in the case, to rigid scrutiny, for the reason that 
 witnesses, even when truthful, may be honestly mistaken in, or for- 
 getful of, times and places.^ 
 
 § 2440. An Alibi Characterized as Being Easily Proven and Hard 
 to Disprove — Caution and Care in Examining Evidence of. The de- 
 fense in this case, gentlemen — ^one of the defenses introduced here, or 
 a train of circumstances that has been presented here — tends to show 
 an alibi of the defendant here, as claimed by the defendant. That is 
 a defense which is legitimate. If it is true that this defendant was 
 not in a condition so that he could have committed the crime, that 
 should, and would be a perfect defense; but in the consideration of 
 that class of defenses, gentlemen, it is necessary for you to take 
 into consideration the facts, and it is your duty as jurors to examine 
 carefully the evidence given on that point — scrutinize any evidence 
 in relation to the alibi. An alibi is a defense that is easily proven 
 and hard to disprove; therefore you will be careful and cautious in 
 examining the evidence bearing upon the question of alibi. I say, 
 if it is established, and you believe the evidence — in other words, if 
 you believe this party was in a position so that he couldn't have com- 
 mitted the crime — of course that would be an absolute defense.^*' 
 
 ^ 2441. A Simulated, False and Fraudulent Alibi Is a Discrediting 
 Circumstance, (a) If you believe from the evidence in this case 
 that the plea of an alibi was not interposed in good faith, or that 
 the evidence to sustain it is simulated, false and fraudulent, then this 
 is a discrediting circumstance to which you may look, in connection 
 with all the other evidence, in determining the guilt or innocence of 
 the defendant.^^ 
 
 8— State v. Burton, 27 Wash. 528, ing- reference to that phase of the 
 
 67 Pac. 1097 (1099). defense where an alibi was sought 
 
 9 — Roszczyniala v. State, 125 Wis. to be proven under the general is- 
 
 414, 104 N. W. 113 (115). sue. So taken the charge was in 
 
 10 — People V. Portenga, 134 Mich, line with the principle asserted in 
 
 247, 96 N. W. 17, 12 Am. Crim. Rep. Albritton v. State, 94 Ala. 76, 10 So. 
 
 30. 426, where it was said: 'A fraudu- 
 
 11 — Tatum V. State, 131 Ala. 32, 31 lent attempt to prove an alibi, sus- 
 
 So. 369. tained by perjury, will, when de- 
 
 "This instruction must have tected, be a circumstance of great 
 
 meant and been understood as hav- weight against the prisoner.' "
 
 § 2442.; 
 
 CRIMINAL— IN GENERAL. 
 
 1579 
 
 ' (b) If the defendant attempted to prove an alibi and failed, it 
 is a circumstance that may be weighed against him.^^ 
 
 (c) If the jury believe from the evidence, beyond a reasonable 
 doubt, that the alibi set up in this case is Emulated, false, and fraud- 
 ulent, they may consider this as a circumstance against the defend- 
 ant, in connection with all the other evidence in the ease.^^ 
 
 § 2442. Burden of Proof on State of Whereabouts of Defendant. 
 The court instructs the jury that the burden of proving the presence 
 of the defendants, or either of them, at the time and place of the al- 
 leged burglary, devolves upon the state, and the state must prove 
 beyond a reasonable doubt that they were present at the time of the 
 alleged commission of the offense. It does not devolve upon the de- 
 fendants to prove that they were not present. So that after a full 
 and fair consideration of all the facts and circumstances in evidence, 
 or that adduced by the defendants, you have a reasonable doubt as 
 to whether defendants were at the place of the alleged crime at the 
 time of its commission, or were at another place, you are bound to 
 give the defendants the benefit of such doubt, and acquit them.^* 
 
 12— Jackson v. State, 117 Ala. 155, 
 23 So. 47 (48). 
 
 The court said in comment that 
 "the law recognizes no distinction 
 between the consequent weight of 
 an unsuccessful attempt to estab- 
 lish an alibi as a defense, and an 
 unsuccessful attempt to prove any 
 other material fact in defense; and 
 it is a well-recognized principle 
 that an attempt to prove any mate- 
 rial fact in defense, followed by a 
 failure, is a circumstance to be 
 weighed against the party making 
 it. There was no reversible error, 
 therefore, in giving the first charge 
 requested by the state. If the de- 
 fendant apprehended the charge 
 singled out and laid stress upon a 
 single phase of the evidence, he 
 should have asked an explanatory 
 charge. Albritton v. State, 94 Ala. 
 76, 10 So. 426; Kilgore v. State, 74 
 Ala. 1; Pellum v. State, 89 Ala. 28, 
 8 So. 83." 
 
 13— Crittenden v. State, 134 Ala. 
 145, 32 So. 273 (275). 
 
 14— State V. Hale, 156 Mo. 102, 56 
 S. W. 881 (882). 
 
 But see the instruction approved 
 by the court in State v. Howell, 100 
 Mo. 628, 14 S. W. 4, where that 
 court quotes with approval. 
 
 "Whart. Cr. Ev. (8th Ed.) par. 
 333. The part material to the ques- 
 tion we are now considering reads 
 as follows: 'Undoubtedly, if the 
 prosecution makes out a case suf- 
 ficient to secure a verdict of con- 
 viction, then the burden is on the 
 
 defendant to prove his defense. 
 But, when his proof is in, then the 
 final question is, are the essential 
 averments of the indictment proved 
 beyond a reasonable doubt? And 
 among these essential averments is 
 the defendant's participation in the 
 act charged.' And that court adds 
 that 'the supreme courts of In- 
 diana, Iowa and Texas, in well-con- 
 sidered cases, have also approved 
 and announced, in express terms, 
 the same doctrine,' citing Howard 
 V. State, 50 Ind. 190; State v. Har- 
 din, 46 Iowa 623, 26 Am. Rep. 174; 
 Walker v. State, 32 Tex. 360. It will 
 be noticed that Mr. Wharton uses 
 the expression, 'then the burden is 
 on the defendant to prove his de- 
 fense.' 
 
 "In the late case of Harrison v. 
 State, 83 Ga. 129, 9 S. E. 542, the 
 supreme court of that state, in dis- 
 cussing the question of alibi, uses 
 the following language: 'Were our 
 own minds not hedged in by au- 
 thority, we would be inclined to 
 adopt the view expressed by Judge 
 Thompson (2 Thomp. Trials, para. 
 2436) who, after recognizing that 
 the burden of proof is upon the ac- 
 cused, adds: 'But, upon the most 
 unshaken grounds this burden is 
 sustained, and an adequate quan- 
 tum of proof produced by the de- 
 fendant, when he succeeds in rais- 
 ing a reasonable doubt in the minds 
 of the jurors as to whether or not 
 he was at the place of the crime 
 when it was committed.' "
 
 1580 FORMS OF INSTRUCTIONS. L§ 2443. 
 
 § 2443. Burden of Proof — An Alibi Is Not to Be Considered as a 
 Basis for a Reasonable Doubt unless Established, (a) The count in- 
 structs the jury that if the defendant has failed to establish this 
 defense by a preponderance of the credible testimony, then he is not 
 entitled to an acquittal upon this ground, nor to have it considered 
 by you as a basis of his reasonable doubt. 
 
 (b) The burden of establishing this defense by a preponderance 
 of the credible testimony is upon the defendant. If he has so estab- 
 lished it, he is entitled to an acquittal. ^^ 
 
 (c) The defendant in this ease does not set up justification, but 
 he undertakes to show that at the time that C. was killed he (the 
 defendant) was not at the place where such killing occurred, but at 
 another place, and that, therefore, he was not connected with or im- 
 plicated in such crime. The burden of showing an alibi is on the de- 
 fendant; but if, on the whole ease, the testimony raises a reasonable 
 doubt that the defendant was present when the crime was committed, 
 he should be acquitted ; but the jury should scrutinize the testimony 
 of witnesses, to see if some of them may or may not be mistaken as 
 to dates and times when they saw the defendant; and it is proper 
 for the jury to consider the lapse of time since the occurrence hap- 
 pened, and whether witnesses are likely or not likely, after such 
 lapse of time, to be accurate as to the precise time or hour that they 
 saw defendant on the night the shooting occurred. In other words, 
 in arriving at your conclusion on this point, the jury should consider 
 whether it may or may not be true that defendant was present at 
 the time and place C. was shot, and that some of the witnesses are 
 honestly mistaken as to the exact time they saw defendant upon the 
 evening and night of November 3, 1900.^*^ 
 
 15 — State v. McCarry, 111 Iowa not shift the burden upon the de- 
 
 709, 83 N. W. 719. fendant to prove his innocence. 
 
 The court said: "These instruc- The burden is still upon the state 
 
 tions accord with the doctrines of to prove beyond a reasonable doubt, 
 
 this court pertaining to the sub- upon the evidence in the whole case 
 
 jects of alibi and reasonable doubt, (which would include evidence of 
 
 The doctrine laid down in State v. alibi) that the defendant was pres- 
 
 Maher, on this subject, is expressly ent when the crime was committed, 
 
 approved in State v. Hatfield, 75 In Commonwealth v. Choate, 105 
 
 Iowa 592, 39 N. W. 910. See also, Mass. 456, the court passed upon an 
 
 State V. Fry, 67 Iowa 475, 25 N. W. instruction which told the jury: 
 
 738; State v. Kline, 54 Iowa 183, 6 'That where the defendant sought 
 
 N. W. 184; State v. Hardin, 46 Iowa to establish the fact that he was 
 
 623, 26 Am. Rep. 174. It is manifest at a particular place at any given 
 
 that the instructions given in the time, and wished them to take it as 
 
 case at bar are in harmony with an affirmative fact proved, the bur- 
 
 the rule stated." den of proof was upon him, and, if 
 
 16— Rayburn v. State, 69 Ark. 177, he failed in maintaining that bur- 
 
 63 S. W. 356 (357). den, the jury could not consider it 
 
 The court said this "instruction as a fact proved in the case; that 
 is a literal copy of an instruction the burden, however, was upon the 
 approved by this court in Ware v. government to show that the de- 
 State, 59 Ark. 379, 27 S. W. 485. fendant was present at the time of 
 That case was well considered, and the commission of the defense, 
 the conclusion we then reached was and, as bearing upon that question, 
 sound. Learned counsel for appel- the jury were to consider all the 
 lant, we think, misapprehend the evidence offered by the defendant 
 purport of the instruction. It does tending to prove an alibi; and if,
 
 § 2443. 
 
 CRIMINAL— IN GENERAL. 
 
 1581 
 
 (d) The court instructs the juiy that where the state makes out 
 such a case as would sustain a verdict of guilty, and the defendant 
 offers evidence, the burden is upon the defendant to make out his 
 defense as to an alibi; and when the proof is all in, both that given 
 for the defendant and for the state, then the primary question is 
 (the whole evidence being considered), is the defendant guilty be- 
 yond a reasonable doubt! — the law being that if, after you have 
 considered all the evidence, as well as that touching the question of 
 alibi, as the criminating evidence introduced by the state, you have 
 a reasonable doubt of the guilt of the accused, you should acquit; 
 if you have not, you should convict.^^ 
 
 (e) The juiy are instructed that when the state offers evidence 
 and makes out a prima facie case (in law) of guilt against the de- 
 fendants, and the defense of alibi is relied on, then the burden of 
 proof is on the defendants to show you by a preponderance or the 
 evidence offered that at the time and place in question it was im- 
 possible for the defendants to have been there. ^^ 
 
 (f ) Where the defendant enters a general plea of not guilty, that 
 is a denial of the state's' entire case; it puts the state upon proof of 
 the case, — of the charge. If he goes on further, and enters a special 
 plea (for instance, an alibi), then the defendant assumes the burden 
 
 upon all the evidence, the jury en- 
 tertained a reasonable doubt as to 
 the presence of the defendant at 
 the fire, they were to acquit.' The 
 court said of this: 'The substance 
 of the whole ruling- was that, if 
 the evidence of the defendant 
 which tended to prove an alibi was 
 such that, taken together with the 
 other evidence, the jury were left 
 in reasonable doubt as to whether 
 the defendant was present at the 
 alleged fire, they should acquit 
 him.' The instruction in the form 
 g-iven in the Massachusetts case 
 is, perhaps, a preferable statement 
 of the law. But the instruction 
 under consideration, fairly con- 
 strued, is of exactly the same pur- 
 port. The burden to show the de- 
 fendant's presence and participa- 
 tion in the crime is still upon the 
 state, when the evidence consid- 
 ered as a whole, including that in- 
 troduced by the defendant on the 
 question of alibi. But as to the 
 particular defense of alibi set up 
 under the general plea of not 
 guilty, the defendant, if he relies 
 upon it as an affirmative fact, 
 must show that particular fact. 
 The state could not be expected to 
 prove that he was not present. 
 That would be to devolve upon the 
 state the duty of proving a neg- 
 ative, i. e., that defendant was not 
 
 present, and not guilty. The state 
 must prove its charge — the guilt of 
 the accused — beyond a reasonable 
 doubt, notwithstanding the testi- 
 mony tending to prove an alibi, or 
 the defendant must be acquitted; 
 but it is the province of the de- 
 fendant to introduce evidence tend- 
 ing- to show an alibi when relied 
 upon as an affirmative matter of 
 defense, and as to this the burden 
 rests upon him." 
 
 17— State V. Thornton, 10 S. D. 
 349, 73 N. W. 196 (197), 41 L. R. A. 
 530; Ackerson v. People, 124 III. 
 563, 16 N. E. 847. 
 
 See also State v. Maher, 74 la. 
 82, 37 N. W. 2, where an instruc- 
 tion charging the jury that "the 
 burden is upon each defendant to 
 prove this defense for himself, by 
 a preponderance of evidence; that 
 is, by the greater and superior evi- 
 dence," was approved. 
 
 18— Bone v. State, 102 Ga. 387, 30 
 S. E. 845 (847). 
 
 A similar instruction was ap- 
 proved in Cochran v. State, 113 Ga. 
 726, 39 S. E. 332, the court addiner 
 further that "the evidence offered 
 as an alibi is to be considered along 
 with all the other evidence, in or- 
 der to determine whether the guilt 
 of the defendant has been shown 
 beyond a reasonable doubt."
 
 1582 FORMS OF INSTRUCTIONS. [§ 2444. 
 
 of proving that special plea, not beyond a reasona'ble doubt, but by 
 the preponderance (the greater weight) of the testimony. 
 
 (g) It is the duty of the state to prove every material allegation 
 in an indictment beyond a reasonable doubt, land the defendant is 
 entitled to the benefit of any reasonable doubt growing out of all the 
 testimony in the case.^^ 
 
 § 2444. Reasonable Doubt Raised by an Alibi Sufficient to Acquit. 
 
 (a) The court instructs the juiy that, if there is any evidence be- 
 fore you that raises in your minds a reasonable doubt as to the pres- 
 ence of the defendant at the time and place where the crime is 
 charged to have been committed (if you find a crime was committed) 
 you will acquit the defendant.-" 
 
 (b) The court instructs the jury that all the evidence bearing upon 
 that point should be carefully considered by the jury. And if, in view 
 of the evidence, the jury have any reasonable doubt as to whether 
 the defendant was at some other place at the time the crime was 
 committed, they should give the defendant the benefit of any doubt, 
 and find him not guilty. The defendant is not required to prove that 
 defense beyond a reasonable doubt to entitle him to an acquittal. It 
 is sufficient if the evidence upon that point raisers a reasonable doubt 
 of his presence at the time and place of the commission of the crime 
 charged.-^ 
 
 (c) The defendant is not requii-ed to prove that defense beyond 
 a reasonable doubt, but, to entitle him to an acquittal, it is sufficient 
 
 19 — State v. Anderson, 59 S. C. fully proves a prima facie case, 
 
 229, 37 S. E. 820. and a special defense, such as in- 
 
 In approving these instructions sanity, alibi, etc., is interposed, it 
 
 the court said that "in view of must be established only by such 
 
 these instructions, and the cases a preponderance of evidence as will 
 
 of State v. Nance, 25 S. C. 173, and satisfy the jury that the charge 
 
 State v. Jackson, 36 S. C. 492, 15 is not sustained beyond all reason- 
 
 S. E. 559, 31 Am. St. 890. we do not able doubt.' Such was the prac- 
 
 think the court in this inatter com- tical effect of the charge, treated 
 
 mitted reversible error. These as a whole." 
 
 cases seem to treat an alibi as a 20 — State v. Davis, 186 Mo. 533 
 
 special defense, to be supported by (539), 85 S. W. 354 (356). 
 
 a preponderance of the evidence, "This instruction was approved 
 
 just as the plea of insanity is in State v. Adair, 160 Mo. 391, 61 S. 
 
 treated in State v. Paulk, 18 S. C. W. 187; and while in State v. Mc- 
 
 514, and State v. Bundy, 24 S. C. Ginnis, 158 Mo. 123, 59 S. W. 83, a 
 
 442, 58 Am. Rep. 263; but all the different form was indicated as 
 
 cases recognize that such rule is proper, it was not ruled that the 
 
 subordinate to the cardinal rule same principle might not be ex- 
 
 in criminal cases that the state pressed in fewer words or in dif- 
 
 must prove every element of the ferent form." 
 
 crime charged beyond a reasonable 21 — People v. Resh, 107 Mich. 251, 
 
 do'ibt. In criminal cases 'the pre- 65 N. W. 99 (100). 
 
 ponderance of the evidence' is with The court said: "It requires no 
 
 the defendant when the evidence discussion to show the correctness 
 
 raises a reasonable doubt of his of this instruction. The respond- 
 
 guilt, since the case of the state is ent relies on People v. Pearsall, 50 
 
 thereby overthrown. In State v. Mich. 233, 15 N. W. 98, but the in- 
 
 Pnulk, supra, approved in State v. struction there given is in no re- 
 
 Bundy, supni, the rule in this state spect similar to the instruction in 
 
 is thu.s expressed: 'Where the state this case."
 
 §2444.] 
 
 CRIMINALr-IN GENERAL. 
 
 1583 
 
 if the evidence upon that point raises a reasonable doubt of the de- 
 fendant 's presence at the time and place of the commission of the 
 crime charged. The burden is upon the defendant to prove this de- 
 fense for himself by a preponderance of evidence, that is, by the 
 greater and superior evidence. -^ 
 
 (d) This defense of alibi is a legitimate defense, and if, from a 
 consideration of the evidence, you should be convinced that the de- 
 fendant vpas not in this county at the time -when it is claimed the 
 cattle in question were stolen, or if you entertain a reasonable doubt 
 a.s to his whereabouts at that time, he would be entitled to an acquit- 
 tal on this defense of alibi.-^ 
 
 (e) As regards the defense of an alibi, the jury are instructed, 
 that the defendant is not required to prove that defense beyond a 
 reasonable doubt to entitle him to an acquittal; it is sufficient if the 
 evidence upon that point raises a reasonable doubt of his presence 
 at the time and place of the commission of the crime charged.-* 
 
 (f) The court instructs the jury that the burden of proof is on 
 the accused to verify the alibi, not beyond a reasonable doubt, but 
 to the reasonable satisfaction of the jury. Any evidence whatever of 
 alibi is to be considered in the general case with the rest of the testi- 
 
 22— State v. Thomas, — la. — , 109 
 N. W. 900 (902). 
 
 "It is claimed that this instruc- 
 tion is erroneous because it does 
 not properly present the rule 
 adopted by this court, and which is 
 in some respects peculiar to this 
 state, that, while the defense of 
 alibi must be made out for de- 
 fendant by a preponderance of the 
 evidence relating thereto, neverthe- 
 less the defendant is entitled to ac- 
 quittal if all the evidence, includ- 
 ing that relating to alibi, leaves in 
 the minds of the jury a reasonable 
 doubt as to defendant's guilt of the 
 crime charged. State v. Hogan, 
 115 Iowa 455, 88 N. W. 1074; State 
 v. McGarry, 111 Iowa 709, 83 N. W. 
 718; State v. Hathaway, 100 Iowa 
 225, 69 N. W. 449; State v. Maher, 
 75 Iowa 77, 37 N. W. 2. The only 
 question, as we think, is whether, 
 in the instruction quoted, the jury 
 was directed to take into account 
 the evidence relating to alibi in 
 determining whether they were 
 satisfied beyond a reasonable doubt 
 on all the evidence as to defend- 
 ant's guilt, and we are satisfied that 
 the instruction plainly conveys this 
 idea. The jury was told to acquit 
 if the evidence as to alibi 'raises a 
 reasonable doubt of the defend- 
 ant's presence at the time and 
 place of the commission of the 
 crime charged.' Certainly it must 
 
 have been understood from this 
 instruction that, in determining 
 whether there was a reasonable 
 doubt of defendant's guilt, the evi- 
 dence as to alibi should be consid- 
 ered regardless of whether defend- 
 ant established the defense of alibi 
 by a preponderance of the evi- 
 dence. The instruction is quite 
 similar in this respect to one 
 which was held not prejudicial to 
 the defendant in State v. Worthen, 
 124 Iowa 408, 100 N. W. 330. It is 
 said in the Worthen case, that the 
 instruction given was more favor- 
 able to the defendant than it 
 should have been, and perhaps the 
 same thing is true in this case; 
 but at any rate there was clearly 
 no error prejudicial to defendant." 
 
 In Long V. State, 42 Fla. 612, 28 
 So. 775, citing Adams v. State, 28 
 Fla. 511, 10 So. 106, 14 L. R. A. 253, 
 the court approved a similar in- 
 struction and held that a refusal to 
 give it constituted error. 
 
 23— Catron v. State, 52 Neb. 389. 
 72 N. W. 354 (355). 
 
 The court said that this uistruc- 
 tion was of the same character as 
 those considered in Barney v. 
 State, 49 Neb. 515, 68 N. W. 636. 
 
 24— State v. Harden, 46 la. 623; 
 State V. Jaynes, 78 N. C. 504; How- 
 ard V. State, 50 lud. 190; State v. 
 Watson, 7 S. C. 63.
 
 1584 FORMS OP INSTRUCTIONS. [§ 2445. 
 
 mony, and, if a reasonable doubt of guilt be raised by the evidence 
 as a whole, the doubt must be given in favor of innocenee.^^ 
 
 (g) One of the defenses interposed by the defendants, in this 
 ease, is what is known, in law, as an alibi, that is, that the defendants 
 were at another place at the time of the commission of the crime, 
 and the court* instructs the jury, that such a defense is as proper and 
 as legitimate, if proved, as any other, and all the evidence bearing 
 upon that point should be carefully considered by the jury; and if in 
 view of all the evidence, the jury have any reasonable doubt as to 
 whether the defendants were in some other place when the crime was 
 committed, they should give the defendants the benefit of the doubt, 
 and find them not guilty.-^ 
 
 (h) The court instructs the jury that if the evidence on this sub- 
 ject, considered with all the other evidence, is sufficient to raise a 
 reasonable doubt as to the guilt of the defendant, you should acquit 
 him. The accused is not required to prove an alibi beyond a reason- 
 able doubt, or even by a preponderance of evidence. It is sufficient 
 to justify an acquittal if the evidence upon that point raises a rea- 
 sonable doubt of his presence at the time and place of the commis- 
 sion of the crime charged, if you find that a crime was committed. 
 And you will understand also that the attempt of the accused to 
 prove an alibi does not shift the burden of proof from the prosecu- 
 tion, but that the prosecution is bound to pi'ove his presence beyond 
 a reasonable doubt.-^ 
 
 § 2445. Defendant Should Be Given the Benefit of a Reasonable 
 Doubt of His Presence at the Commission of the Crime, (a) When 
 a person on trial for a crime shows that he was in another place at 
 the time when the act was committed, he is said to prove an alibi. 
 One of the defenses intei-posed by the defendant in this case is 
 what is known as an ''alibi;" that is, that the defendant was in 
 another place at the time of the commission of the crime. The court 
 instructs the juiy that such defense is as proper and legitimate, if 
 proved, as any other, and all evidence bearing on that point should 
 be carefully considered by the juiy. If, in view of all the evidence, 
 the jui-y have a reasonable doubt as to whether defendant was in 
 some other place when the crime was committed, they should give 
 him the benefit of the doubt, and acquit him. As regards the de- 
 fense of an alibi, the jury are instructed that the defendant is not 
 required to prove that defense beyond a reasonable doubt to entitle 
 him to an acquittal. It is sufficient if the defense upon that point 
 
 25— In Henderson v. State, 120 26— Davis v. State, 5 Bax. (Tenn.) 
 
 Ga. 504. 48 S. E. 167 (168), this form 612; Wiley v. State, 5 Bax. 662. 
 
 of instruction, tlie court said, has In Conrad v. State, 132 Ind. 25*^ 
 
 been frequently approved by this 31 N. E. 805, a similar instruction 
 
 court, citing Miles v. State, 93 Ga. was given and the jury were told 
 
 120, 19 S. E. 805, 44 Am. St. Rep. that an alibi is to be judged as any 
 
 140; see also Boston v. State, 94 other defense. 
 
 Ga. 591, 20 S. E. 98; Cantrell v. 27— People v. Lang, 142 Cal. 482, 
 
 State. 95 Ga. 500. 20 S. E. 218. 76 Pac. 232 (234).
 
 §2446.] CRIMINAL—IN GENERAL. 1585 
 
 raises a reasonable doubt of his presence at the time and place of 
 the commission of the crime charged.^* 
 
 (b) If the jury have a reasonable doubt, arising from the evi- 
 dence, or from the want of evidence, whether the defendant was 
 present at the time and place where said offense Avas committed (if it 
 was), then it would be the duty of the jury to give the defendant 
 the benefit of such reasonable doubt (if any), and acquit him,^^ 
 
 IDENTITY OF ACCUSED. 
 
 §2446. Identity of Accused — Homicide — Larceny, (a) The 
 court instructs the jury, so far as the identity of the defendant is 
 concerned, that, if they believe, from the evidence and the circum- 
 stances proved, that there is a reasonable doubt whether the witness 
 might not be mistaken as to his identity, then the juiy would not be 
 authorized to convict the prisoner; the corroborating circumstances 
 tending to establish his identity must be such as, with other testimony, 
 produces a degree of certainty in the minds of the jury so great that 
 they can say that they have no reasonable doubt of the identity of 
 the defendant.^'' 
 
 (b) If the jury are satisfied from the evidence, beyond a reason- 
 able doubt, that a larceny was committed in manner and form as 
 charged in the indictment by some one or more of the defendants, and 
 that this was done in pursuance of a common purpose entertained by 
 all for the benefit of all, and according to a plan or scheme contrived 
 or agreed upon by all of the defendants, then the jui-y -nnll be war- 
 ranted in finding them all guilt}', although you may be in doubt as 
 to the identity of the particular defendant who actually took and 
 carried away the property in question.^^ 
 
 § 2447. Identification of Defendant. The court instructs the jury 
 that unless they believe beyond everj'- reasonable doubt that the wit- 
 ness H. C. saw and recognized the defendant on the night of the 
 killing, as stated by him, they will acquit the defendant.^- 
 
 § 2448. Doubt as to Defendant or Somebody Else, (a) The court 
 instructs the jury, that before they can convict the defendant in this 
 
 28— State v. McGinnes, 158 Mo. of the crime, they should acquit 
 
 105, 59 S. W. 83 (88). him, and that it was sufficient, if 
 
 "It is challenged because the the defense raised a reasonable 
 
 court used the phrase 'if proved.' doubt of his presence at the time 
 
 The language is most unfortunate, and place of the homicide, to ac- 
 
 and was criticised by this court in quit him." 
 
 State v. Taylor, 118 Mo. 153. 24 S. 29— Tune v. State, — Tex. Cr. 
 
 W. 449, 11 Am. Crim. Rep. 51; but, App.— , 94 S. W. 231 (232). 
 
 when taken altogether, we think it 30— Painter v. People, 147 III. 444 
 
 clearly informed the jury that if, (469), 35 N. E. 64. 
 
 in view of all the evidence, the 31— Neville v. State, 60 Ind. 308. 
 
 jury had a reasonable doubt of the 32— Petty v. State, 83 Miss. 260, 
 
 presence of the defendant at the 35 So. 213, 102 Am. St. 442. 
 time and place of the commission 
 
 100
 
 1586 FORMS OF INSTRUCTIONS. [§ 2449. 
 
 ease, it must appear, from the evidence, beyond a reasonable doubt, 
 that the defendant, and not somebody else, committed the offense 
 charged in the indictment. It is not sufficient that the evidence 
 shows that the defendant or somebody else committed the crime, nor 
 that the probabilities are that the defendant and not somebody else 
 committed the crime, unless those probabilities are so strong as to 
 remove all reasonable doubt as to whether the defendant or some 
 one else is the guilty party.^^ 
 
 (b) The jury are instructed, that it is a rule of law that although 
 it may be positively proved that one of two or more persons com- 
 mitted a crime, yet if there is any reasonable doubt as to which is 
 the guilty party, all must be acquitted.^* 
 
 ARREST. 
 
 § 2449. When Officer May Arrest without Warrant — Right of Pri- 
 vate Individual to Do So. (a) The court instructs the jury that an 
 officer or a private individual may arrest, without a warrant, one 
 whom he has reasonable grounds to suspect of having committed a 
 felony. 
 
 (b) An officer or a private individual may arrest, without a war- 
 rant, a person upon suspicion of felony, upon the information of a 
 third person. 
 
 (c) An officer or a private citizen may lawfully arrest, without a 
 warrant, one whom he has reasonable grounds to suspect of having 
 committed a felony; and it is immaterial whether the suspicion arises 
 out of information given by another, or whether it arises out of the 
 officer's own knowledge. 
 
 (d) An individual without a warrant, * * * acting in good 
 faith, may ai-rest a particular individual for having oommifcted a 
 felony in a sister state on an occasion already passed. 
 
 (e) The court instructs the juiy that any one liable to be ar- 
 rested as a fugitive from justice by warrant might be arrested by a 
 private person without warrant, from necessity and sound policy, on 
 showing that prima facie a felony or some- crime punishable either 
 capitally or by imprisonment for one year or upwards in a state 
 prison was in fact committed, and the prisoner was the perpetrator. 
 
 (f) The court instructs the jury that on view of a felony com- 
 mitted, or upon certain information that a felony has been commit- 
 ted, or upon view of a larceny committed, any person may arrest the 
 felon or thief and take him to a judge or magistrate to be dealt with 
 according to law.^^ 
 
 (g) Where it is shown by satisfactory proof to a peace officer, upon 
 
 33— Lyons v. The People, 68 111. 35— State v. Whittle, 59 S. C. 297, 
 271. 37 S. E. 923 (927). 
 
 34— Campbell v. People, 16 111. 1.
 
 § 2450.] CRIMINAL— IN GENERAL. 1587 
 
 the representation of a credible person, that a felony has been com- 
 mitted, and that the offender is about to escape, so that there is no 
 time to procure a warrant, such peace officer may, without warrant, 
 pursue and arrest the pei-son accused of such felony. In order to 
 make the attempted arrest of defendant by G. lawful (if you be- 
 lieve that, at the time of the killing of H. S., G. was making such 
 attempt) you must find the existence of all the following facts, to- 
 wit: (l)^That G., as sheriff, had satisfactory proof that defendant 
 had committed a felonious killing of M. in Karnes county; (2) that 
 such proof had been made upon the representation of a credible per- 
 son; (3) that the defendant was about to escape; and (4) t^hat G. 
 had no time to procure a waiTant for defendant's arrest; or (5) that 
 if he had time to procure such warrant he made no effort to do so. 
 The absence of any one or more of these facts would make the at- 
 tempted arrest unlawful, and you should in that event so find.^*^ 
 
 § 2450. Unnecessary Violence in Making Arrest. The court in- 
 structs the jury that under the law an arrest may be made by a 
 peace officer in obedience to a warrant of arrest delivered to him, or 
 without a warrant where a public offense is committed in his pres- 
 ence, or where he has reasonable grounds for believing that the per- 
 son arrested has committed a felony; and the court tells you that a 
 marshal is a peace officer. The court further tells you that an 
 arrest is made by placing the person in restraint, or by his submit- 
 ting to the custody of the person making the arrest. But in mak- 
 ing the arrest no unnecessary force or violence shall be used, and m 
 this case, although the jury may believe from the evidence that the 
 defendant was a peace officer, and as such was undertaking to ar- 
 rest the prosecuting witness, B., still, if you further believe from the 
 evidence beyond a reasonable doubt that the defendant used greater 
 force or violence in making the arrest than was apparently necessary, 
 he would not be justified or excusable under the law, and you will 
 find him guilty."^ 
 
 36-Cortez v. State, 43 Tex. Cr. State, 67 Ark. 594. 50 S. W. 554. 59 
 
 ^??e,f ^i-rror'to'^^ftfiSinstruc ^T^e cSurt instructs the Jury that 
 
 tion where defendant was charged if B. at the time of the assault 
 
 w°th muidei of sheriffs deputy complained of, was violatm? a city 
 
 l\,^I^nttPmntin2: to arrest him. ordinance, or was committmg a 
 
 ^Secause 1 t^re ^la^ nrpurpose misdemeanor, the defendant, as 
 
 on the part of thi sheriff, and those city marshal, had a right, and it 
 
 w^th him to find and arrest anpel- was his duty to arrest h.m. and to 
 
 T^, f^^'thP killine of Sheriff M., use force, if necessary, to do so. 
 
 'hen the acts o himself and those He was not obliged to call any one 
 
 accommnying him were without to his assistance. It is not the law 
 
 accompa-nyiub ^^^^ ^^j other means must be re- 
 
 ®^,S."^^-i„^_^,._ ^ atate 69 Ark. 573, sorted to before using force to 
 
 fi/rw ti^ mk^ 13 Am crRe^^ make the arrest. The court m- 
 
 ?23 sTys ^at "this TusFrucUon. structs you that, if defendant 
 
 Sen' wfth ?h? following one fully struck B-vhi^e making ^he arr^^^^ 
 
 £"not"li'ving^it^-- -Magnlsrv^ ^rS^tS^ t^^e'..^^^.m, or
 
 1588 FORMS OF INSTRUCTIONS. [§ 2451. 
 
 § 2451. Deputy Sheriff Making Arrest for Misdemeanor Can Kill 
 Only in Self Defense. Defendant had the right to go to the Pratt 
 house for the purpose of making an arrest and if, while in the vicin- 
 ity, and without justifiable cause or provocation, the inmates of the 
 house began to shoot at him, and he had reasonable grounds to ap- 
 prehend a design on the part of the inmates of the house to do him 
 great pei-sonal injuiy, and that there was imminent danger of said 
 design being accomplished, then the assault on the part of defend- 
 ant was justifiable and the jury should find him not guilty.^^ 
 
 § 2452. Right of Officer to Make Arrest— Shooting the Officer for 
 Purpose of Escape — What Constitutes an Act of Selling Liquor. 
 Gentlemen of the jury, an arrest by a peace officer of a person is 
 made by taking the person into actual custody. If you believe from 
 the evidence in this case beyond a reasonable doubt that C. was a po- 
 lice officer of the city of D., B. county, Ky. ; that the defendant, R. 0., 
 within the corporate limits of the city of D., in the presence of said 
 C, while he was a police officer, sold by retail, or was engaged in the 
 act of selling beer by retail, to any person or persons, — then it 
 was right and the duty of said C. immediately and without warrant 
 to arrest defendant by taking him into actual custody. And if you 
 further believe from the evidence beyond a reasonable doubt that 
 within the corporate limits of said city, and before the finding of 
 the indictment, C. either arrested or undertook to arrest the defend- 
 ant for that offense, and that while defendant was under arrest, or 
 that while C. was endeavoring to arrest him, the defendant, for the 
 purpose of breaking the arrest, or for the purpose of pi-eventing its 
 accomplishment, willfully and knowingly shot and killed C. with a 
 pistol, knowing at the time that C. was a police officer, and the rea- 
 
 to do him injury, or if it reason- which is not warranted, upon any 
 
 ably appeared to defendant, viewed one whom he proposes to arrest, 
 
 from his standpoint alone, by He must use no more force than 
 
 words or acts, or by words and the nature of the case warrants, 
 
 acts, that B. was about to make an and if he exceeds such limits then 
 
 'unlawful attack upon him, then he may be liable for damages in a 
 
 and in that event the defendant civil suit. It is true that a large 
 
 had a rig^ht to use whatever means discretion is vested in an officer as 
 
 was necessary to protect himself to the force necessary to be used 
 
 from serious bodily injury. And in making an arrest. It is 'for the 
 
 this is the case, although it sub- jury to decide what those circum- 
 
 sequently appeared that the de- stances were, and whether the 
 
 fendant used more foix;e than was posse acted as reasonable men 
 
 actually necessary to protect him- would have acted in like situation, 
 
 self from serious bodily injury or The question is one of mixed law 
 
 to make the arrest. In other and fact.' Territory v. McGinnis, 
 
 words, the defendant had a right 10 N. M. 264, 61 Pac. 208. In the 
 
 to act upon danger, or reasonable case at bar the testimony as to 
 
 appearance of danger. what took place before the shoot- 
 
 ?8 — Territory v. Taylor, 11 N. M. ing is conflicting, and it was for 
 
 589, 71 Pac. 489 (492). the jury to decide after hearing all 
 
 "This instruction sets out what the evidence. The jury evidently 
 wc understand to be the law. Even believed that the appellant as- 
 a sheriff or his legally appointed saulted N. without any just cause 
 deputy has no right to make an for so doing and consequently re- 
 unjustifiable assault, and one turned a verdict of guilty."
 
 §'2453.] CRIMINAL— IN GENERAL. 1589 
 
 son C. was arresting or attempting to arrest him, then you will find 
 the defendant guilty of willful murder, and fix his punishment at 
 death, or imprisonment in the penitentiary for the period of his nat- 
 ural life, in your discretion. To constitute an act of selling beer 
 within the meaning of this instruction, it is not necessary that there 
 should have been an express agreement between the parties that 
 money should be paid for the beer, nor that the money should have 
 been actually delivered in payment. It is sufficient, to constitute a 
 sale, if the defendant and the person or persons who called for it 
 actually understood and intended that it should be paid for. The 
 words ''in his presence," as used in this instruction, do not mean 
 exclusively that C. should have actually heard the call for beer, or 
 that he should actually have witnessed the delivery of it. It would 
 in law be deemed to be in his presence if he was so close to the par- 
 ties at the time as to witness such part of the itransaction as would 
 furnish to him a reasonable assurance of the nature of the act done 
 and of the identity of the seller.^^ 
 
 § 2453. E,ight of Sheriff to Call Posse. The jury are instructed 
 that in substance, under the statutes of this tenitory (Section 1409, 
 Comp. Laws 1897) a sheriff or his legally constituted deputy may 
 call on any citizen or citizens to assist him in the execution of his 
 office, and that any person who shall refuse such assistance with- 
 out a sufficient excuse shall be subject to penalty.^*' 
 
 § 2454. When a Refusal to Assist in Making Arrest Is Justified. 
 If the jury believe that under all the circumstances, at the time of 
 said summoning by the said W. to aid in making the arrest that an 
 attempt to make said arrest, or to aid thei"ein, would have been both 
 futile and dangerous, then the defendant must be acquitted.*^ 
 
 39_Approved in Quinn v. Com- and protection. An ofRcer cannot 
 
 monwealth, 23 Ky. L. 1302, 63 S. W. decline to arrest because it is dan- 
 
 792 (793). gerous to do so, else, the desperate 
 
 40— "This is undoubtedly the law and lawless might go unchallenged 
 
 in this territory." Territory v. Tay- for crime; and for the very reason, 
 
 lor, 11 N. M. 588, 71 Pac. 489 (492). that when resistance is made to his 
 
 41— Dougherty v. State, 106 Ala. lawful authority, and it becomes 
 
 63, 17 So. 393 (394). hazardous to make an arrest, then. 
 
 The court held that "when one is for the sake of saving human life — 
 duly summoned by an officer, hav- either his own or that of the crim- 
 ing lawful authority to assist him inal— he is authorized by law to 
 in making an arrest, the duty of summon the bystanders to his as- 
 the citizen to obey is absolute. 'His sistance. Obedience to such a sum- 
 obligation,' says Mr. Wharton, 'to mons, because it involves danger, 
 come to the aid of the sheriff or cannot be refused by the private 
 other officer, is just as imperative citizen, any more than the duty to 
 as that imposed on the latter, to make the arrest can, for the same 
 see that the community suffer no reason be declined by the officer, 
 harm from licentiousness.' Whart. The fact that there is danger in- 
 Cr. Law § 652, and authorities volved is the very thing which 
 cited; Whart. Cr. PI. «& Prac. §§10, calls for and makes obedience a 
 11. The citizen while acting actual- duty. Nor can the citizen consti- 
 ly or constructively, under the of- tute himself a judge of the neces- 
 ficer's command, becomes pro hac sity for obedience, and the circum- 
 vice an officer, and is clothed with stances under which he should 
 the same duties, responsibilities obey, in such cases. If he should
 
 1590 FORMS OF INSTRUCTIONS. [§ 2455. 
 
 § 2455. Resisting Officer in Execution of a Writ — Personal Ani- 
 mosity Immaterial. In ease you believe beyond a reasonable doubt 
 tliat the defendants conspired to resist any officer in the execution 
 of the writ of possession read in evidence, then it would be imma- 
 terial whether they had any personal animosity or cherished any. 
 malice towards G. personally.'*^ 
 
 ATTEMPT TO ESCAPE— FLIGHT. 
 
 § 2456. Attempt to Escape — How Considered, (a) Evidence has 
 been introduced as to an attempted escape from jail by the defendant 
 while in the custody of the sheriff of this county, on this charge. If 
 you find, from the evidence, that the defendant did thus attempt to 
 escape from custody, this is a circumstance to be considered by you, 
 in connection with all the other evidence, to aid you in determining 
 the question of guilt or innocence.^^ 
 
 (b) If you find that burglary was committed as charged in the 
 information, evidence of flight of the accused may be considered in 
 determining the question as to whether he was the one who commit- 
 ted the act.'*'* 
 
 § 2457. Flight Raises Presumption of G-uilt. (a) The court in- 
 structs the jury that flight raises the presumption of guilt. There- 
 fore, if the jury believe from the evidence that the defendant, re- 
 cently after the commission of the offense alleged in the indictment, 
 fled from H. county to avoid arrest and trial for the forging the 
 note offered in evidence, then you may take this fact into considera- 
 tion in determining his guilt or innocence."*^ 
 
 (b) The flight of a person immediately after the commission of a 
 crime, or after a crime has been committed with which he is charged — ■ 
 if you find from the evidence 'that the defendant fled, — is a circum- 
 
 be excused, because, in his opinion, at the time an attempt to make 
 assistance, if rendered, would be said arrest, or to aid therein, would 
 futile and dangerous, and because have been both futile and danger- 
 he supposed the offlcer was not dis- ous to the life and limb of defend- 
 charging his full duty, it would ant, as the charge requested clear- 
 render the statute nugatory. The ly implies from all the facts of the 
 law necessarily requires the judg- case, it would have been their duty 
 ment and summons of the of- to acquit the defendant." 
 ficer, and not the opinion and op- 42 — Smith v. State, 46 Tex. Cr. 
 tion of the citizen, the measure of App. 267, 81 S. W. 936 (944). 
 the duty of the latter to obey. Citing Kipper v. State, 8 Tex. Ct. 
 Watson V. State, 83 Ala. 61, 3 So. Rep. 852, 77 S. W. 611. 
 441, 7 Am. Crim. Rep. 64. But the 43— Anderson v. State, 104 Ind. 
 officer is under obligation to have 467, 4 N. E. 63, 5 N. E. 711, 5 Am. 
 prf»i)or regard for the life and Cr. Rep. 601. 
 
 safety of the party whom he calls 44 — State v. Deatherage, 35 Wash, 
 
 to aid him In making an arrest, 326, 77 Pac. 504 (506). 
 
 and not recklessly, and for no good 45 — This instruction was given In 
 
 Iiurpose to expose his life and limb the trial of a charge of forgery and 
 
 to useless danger. And in this case approved in State v. Milligan, 170 
 
 it miiy be said, if the jury believed Mo. 215, 70 S, W. 473 (474). 
 under all the circumstances, that
 
 §2458.] CRIMINAL— IN GENERAL. 1591 
 
 stance in establishing his guilt not sufficient in itself to establish 
 guilt, but a cii'cumstanee which the jury may consider in determin- 
 ing the probabilities for or against him — the probabilities of his 
 guilt or innocence. The weight to which that circumstance is enti- 
 tled is a matter for the juiy to determine in connection with all the 
 facts called out in the case.*^ 
 
 (c) Flight raises the presumption of guilt, and, if the jury believe 
 and find from the evidence that after the commission of the offense al- 
 leged in the information, that the defendant fled from the state, and 
 tried to avoid arrest and trial for said offense, then the juiy may 
 take this fact into consideration in determining his guilt or inno- 
 cence.*^ 
 
 S 2458. Flight to Avoid Arrest as Prima Facie Evidence — ^Homi- 
 cide, (a) If you find from the evidence that the defendant, upon 
 being informed that he was suspected of taking the life of said B., 
 fled to avoid arrest," and remained away, going under an assumed 
 name, such fact is a circumstance which prima facie is indicaitive of 
 guilt.'** 
 
 (b) Now, then, j^ou consider his conduct at the time of the kill- 
 ing and his conduct afterwards. If he fled, if he left the country, if 
 he sought to avoid arrest, that is a fact that you are to take into 
 consideration against him, because the law says unless it is satis- 
 factorily explained — and he may explain it upon some theoiy, and you 
 are to say whether there is any effort to explain it in this case — if 
 it is unexplained the law says it is a fact that may be taken into ac- 
 count against the party charged with the crime of murder upon the 
 iheoiy that I have named, upon the existence of this monitor called 
 conscience that teaches us to know whether we have done right or 
 wrong in a given ease.*^ 
 
 § 2459. Flight as Tending to Show a Consciousness of Guilt — Sig- 
 nificance When Defendant Is Insane, (a) The flight of a person 
 
 46 — This instruction was given from arrest for the crime charged; 
 
 where homicide was the charge that under the rule announced, if 
 
 and approved in State v. Stentz, 33 defendant fled the country to avoid 
 
 Wa-^h. 444, 74 Pac. 588 (589). arrest for the larcenies he had com- 
 
 47— State v. Hattman, 196 Mo. 110, mitted, such fa<;t would be a cir- 
 
 94 S. W. 237 (240). cumstance prima facie indicative 
 
 48— State v. Seymore, 94 Iowa 699, of his guilt of the crime of mur- 
 
 63 N. W. 661 (664). der. We do not think the instruc- 
 
 "It is insisted that this instruc- tion will bear this interpretation, 
 tion was erroneous. There was The 'arrest' referred to in the in- 
 evidence in the case to establish struction plainly means arrest for 
 the facts upon which it is predi- taking the life of B. No other con- 
 cated, and the rule of law an- struction can be placed upon it 
 nounced has been approved by this without doing violence to the Ian- 
 court in the following cases: State guage used. The instruction un- 
 V. James, 45 Iowa 412; State v. doubtedly gives a correct proposi- 
 Schaffer, 70 Iowa 371, 30 N. W. 639; tion of law, and one having sup- 
 State v. Arthur, 23 Iowa 430; State port in the record." 
 V. Boyer, 79 Iowa 330, 44 N. W. 558. 49— Allen v. United States, 164 
 It is said the instruction is faulty U. S. 492 (498), 17 S. Ct. 154. 
 because it does not relate to fleeing
 
 1592 FORMS OF INSTRUCTIONS. [§ 2460, 
 
 suspected of a crime is a circumstance to be weighed by the jury as 
 tending in some degree to prove a consciousness of guilt, and is en- 
 titled to more or less weight according to the circumstances of the 
 particular ease.^° 
 
 (b) The court charges the jury that, if [you believe from the evi- 
 dence that] the defendant fled from the consciousness of guilt, this 
 [his flight] may be considered by the jury, in connection with all 
 other evidence, as circumstance tending to show guilt. ^^ 
 
 § 2460. Flight as Evidence of Guilt — Explained by Defendant. 
 You are instructed that the defendant insists, if there be evidence of 
 the fact that after these were found that he absconded and fled, he 
 insists that the truth is he did not flee by reason of the fact that he 
 was guilty of this charge, but he claims that part of his conduct is 
 attributable to the fact that he was charged with complicity with an- 
 other matter, and that was the reason he left, and that it had no 
 connection with the charge made in this case.^- 
 
 § 2461. Flight May or May Not Be Considered as Proof of Guilt — 
 Depends on Motive — Explained. The flight of a defendant in a crim- 
 inal case, may or may not be considered as a circumstance tending to 
 prove guilt, depending on the motive which prompted it, — whether a 
 consciousness of guilt and a pending apprehension of being brought 
 to justice caiised the flight, or whether it was caused from some other 
 and more innocent motive, — and the jury may look to the fac-t that 
 he went to police headquarters and gave himself up.^^ 
 
 50 — People v. Easton, 148 Cal. 50, to evade justice, by a person sus- 
 
 82 Pac. 840 (841). pected or charged with crime, are 
 
 "No attack is made upon the circumstances from which a con- 
 soundness of this instruction as a sciousness of guilt may be inferred, 
 proposition of law, but it is said if connected with other criminating 
 that under the facts of this case, facts. Of themselves they may not 
 where the defense was insanity the warrant a conviction, but they are 
 giving of it was prejudicial to the relevant as evidence, and the 
 defendant. Herein it is argued weight to which they are entitled 
 that, if one is insane when he com- it is the province of the jury to de- 
 mits a violent and unlawful attack termine under proper instructions 
 upon another, his immediate flight from the court. * * * jrijght for 
 cannot affect the question of his which no proper motive can be as- 
 legal responsibility. This is quite signed, and which remains unex- 
 true; but it was for the jury to say plained, is a circumstance, all au- 
 whether or not the defendant was thorities agree. It is proper to sub- 
 insane, and, if they so found him, mit to the jury in connection with 
 his flight was, of course, meaning- other evidence tending to show the 
 less. If he was not insane, then guilt of the accused. In the old 
 his flight had the significance common law, the rule which passed 
 which the law attaches to it." into a maxim was that flight was 
 
 51 — Approved as one of a series, equivalent to a confession of 
 
 without the words bracketed, in guilt. 'Fatetur Facinus qui judi- 
 
 NichoLson v. State, 117 Ala. 32, 23 cium fugit.' At the present day 
 
 f'O. 792. it is regarded as a mere criminat- 
 
 52— Moncrief v. State, 99 Ga. 295, ing circumstance indicative of 
 
 25 H. E. 735. guilt, and of an attempt to evade 
 
 53— White v. State, 111 Ala. 92, justice, which is subject to inflr- 
 
 21 8o. 330 (331). mntive considerations that mav de- 
 
 "In Bowles v. States, 58 Ala. 335, prive it of all force. The unfavor- 
 
 ■we said: All evasions or attempts able inference against the prisoner
 
 § 2462.] CRIMINAL— IN GENERAL. 1593 
 
 § 2462. Attempt to Escape — Inference to Be Drawn Therefrom 
 May Be Either Strong or Slight — Terms Explained, Evidence has 
 been offered of the escape of the defendant, or attempted escape, 
 after arrest on the charge on which the defendant is now being tried. 
 This evidence is admitted on the 'theory that the defendant is in fear 
 of the consequences of his crime and is attempting to escape there- 
 from; in other words, that guilt may be inferred from the fact of 
 escape from custody. The court instructs you that the inference 
 that may be drawn from an escape is strong or slight according to 
 the facts surrounding the party at the time. If a party is caught 
 in the act of crime and speedily makes an attempt for liberty under 
 desperate circumstances, the inference of guilt would be strong, but 
 if the attemi^t was made after many months of confinement and 
 escape comparatively without danger, then the inference of guilt to 
 be drawn from an escape is slight; but whether the inference of 
 guilt is strong or slight depends upon the conditions and circum- 
 stances surrounding the accused person at the time.^* 
 
 § 2463. Failure to Flee or Voluntary Surrender No Evidence of 
 Innocence. The fact that, when charged with the commission of a 
 crime, the defendant refuses to flee, but surrendei-s himself to the 
 proper authorities, cannot be considered as showing his innocence of 
 the offense charged. ^^ 
 
 § 2464. Attempt to Release Prisoner from Jail by Delivering 
 Tools to Prisoners, The jury are instructed that the statutes of the 
 state of Illinois make a distinction between an attempt to set at lib- 
 erty a person in the custody of an officer and an attempt to convey 
 tools to a person confined in jail, and that a person indicted for one 
 
 would be lessened If he voluntar- of flig-ht, carried with it no evi- 
 lly returned and surrendered him- dence of a consciousness of guilt, 
 self to answer the accusation. * * * It was no more than a commis- 
 We think it permissible to prove siou of the homicide, flight from 
 the fact of flight, and all the facts the place, and an immediate, 
 connected with it, either to in- voluntarily surrender by the per- 
 crease or diminish the probative petrator to the constituted author- 
 force of the fact itself. In Syl- ities, confessing that he had com- 
 vester v. State, 71 Ala. 17, we de- mitted it. Referred to this state 
 clared a principle in substantially of proof, the charge was correct, 
 the language of the charge under had no misleading tendency be- 
 consideration. The evidence shows cause of the singling out of a fact 
 that the defendant committed the from other facts, and ought to 
 homicide about 2 or 3 o'clock in have been given. It was not ob- 
 the morning, that he fled from the jectionable for referring specially 
 place, and went directly to police to the duty of the jury to look to 
 headquarters, about two miles dis- the surrender, for that, with the 
 tant, reported to the sergeant accompanying declarations of the 
 of police what he had done, and defendant which con.stituted a part 
 surrendered himself and the gun of the surrender, was the only cir- 
 with which he had committed the cumstnnce which the jury could 
 act to the oflicer. There is in the consider." 
 
 evidence no other fact or circum- 54— Bird v. IT. S., 1S7 U. S. 118 
 
 stance touching the subject of (131). 23 S. Ct. 43. 
 
 flight. It is evident, therefore, that 55— Walker v. State, 138 Ala. 53, 
 
 what the defendant did, in respect 35 So. 1011 (1012).
 
 1594 
 
 FORMS OF INSTRUCTIONS. 
 
 [§ 2464. 
 
 of such offenses cannot be convicted of the other. The court in- 
 structs the jury for the defendants that although you may believe, 
 from the evidence, that the defendants on trial did offer to pay J. 
 to take tools to the jail for Gr. and loaned him money to buy the file 
 testified to, yet you should find them not guilty.^s 
 
 56— Patrick v. People, 132 111. 529 
 (534), 24 N. E. 619. 
 
 "The conviction," the court said, 
 "is claimed under section 87 of the 
 Criminal Code (Rev. Stat. 1874, 
 chap. 38, p. 364), which reads thus: 
 'Whoever sets at liberty or rescues 
 or attempts to set at liberty or res- 
 cue a person charged with the 
 commission of ;iny capital offense 
 or crime punishable by imprison- 
 ment in the penitentiary, before 
 the conviction of such person, shall 
 be imprisoned in the penitentiary 
 not exceeding- five years and fined 
 not exceeding $1,000.' The ques- 
 tion, therefore, necessarily arises, 
 what constitutes 'an attempt to set 
 at liberty' a person? The statute 
 •does not define 'an attempt' and 
 we must hence resort to the com- 
 mon law to ascertain what in a 
 legal sense is its meaning. Bouvier 
 in his Dictionary (vol. 1, p. 138) 
 says: 'An attempt to cominit a 
 crime is an endeavor to accomplish 
 it, carried beyond mere prepara- 
 tion, but falling short of execution 
 of the ultimate design in any part 
 of it.' And Wharton says: 'To 
 make an act an indictable attempt 
 it must be a cause, as distin- 
 guished from a condition.' 2 Crim. 
 Law (7th ed.) sec. 2693. See also 
 People V. Murray, 14 Cal. 159; 
 Griflith v. State, 26 Ga. 493. 
 
 "Since the mere delivery of the 
 saws, knives and file to G. does 
 not manifestly open any way of 
 escape from the jail, it is plain 
 there is no relation of cause and 
 effect between that which J. tried 
 
 to do, and that which the indict- 
 ment charges and the jury found 
 was coinmitted. The saws, knives 
 and file were only implements or 
 tools that might be used in effect- 
 ing an opening in the jail, and 
 procuring and attempting to de- 
 liver thein to G. was therefore 
 simply attempting to prepare for 
 an attempt to make an escape. 
 They were means, or, adopting 
 the language of Wharton, 'condi- 
 tions' in making an attempt to es- 
 cape. 
 
 "It is provided by Section 92 of 
 our Criminal Code (Rev. Stat. 1874, 
 chap 38, p. 365) that 'Whoever con- 
 veys * * * into any jail * * * 
 any instrument, tool or other thing 
 adapted or useful to aid a prisoner 
 in making his escape with intent 
 to facilitate the escape of any 
 prisoner * * * shall be punished,' 
 as therein provided, but which is 
 only by confinement in the county 
 jail and by fine. And since, by 
 section 273 of the same Code, all 
 attempts to commit offenses pro- 
 hibited by law are indictable and 
 punishable by confinement in the 
 county jail and by fine, it would 
 seem clear that the offense here 
 proved is that contemplated by 
 these sections, and not that con- 
 templated by section 87 of the 
 Criminal Code, supra, and that the 
 punishment should not have been 
 by confinement in the penitentiary, 
 but by confinement in the county 
 jail and fine only. The Circuit 
 Court therefore erred in refusing 
 to give the instruction asked."
 
 CHAPTER LXXXVII. 
 
 CRIMINAL— BURDEN OF PROOF— CHARACTER EVIDENCE- 
 CIRCUMSTANTIAL EVIDENCE. 
 
 See Erroneous Instructions, same chapter head, Vol. III. 
 
 BURDEN OF PROOF. 
 
 § 2465. Burden of proof on the state 
 — Presumption of i n n o - 
 cence. 
 
 § 2466. Burden of proof — Homicide. 
 
 § 2467. Every essential element 
 charged must be proved 
 to satisfaction of every 
 juror. 
 
 § 2468. Burden never shifts — Excuse 
 and justification. 
 
 § 2469. Defendant not required to 
 prove excuse or ju.stifica- 
 tion — Burden of proof. 
 
 § 2470. Burden of proving self-de- 
 fense. 
 
 § 2471. Presumption of intent — Bur- 
 den of disproving. 
 
 § 2472. Burden of proving extenuat- 
 ing circumstances is on 
 the defendant. 
 
 § 2473. Insanity — Burden of proving 
 on defendant. 
 
 § 2474. Burden of proof — Quantum 
 of evidence to be produced 
 by defendant. 
 
 § 2475. Burden of proof — Presump- 
 tion as to degree of mur- 
 der. 
 
 CHARACTER EVIDENCE. 
 
 § 2476. Jury may take into consid- 
 eration character and mo- 
 tives. 
 
 § 2477. Defendant's character. 
 
 § 2478. Evidence of good character 
 not sufficient to acquit. 
 
 § 2479. When jury should convict 
 notwithstanding proof of 
 previous good character. 
 
 § 2480. Evidence of previous good 
 character alone may ac- 
 quit. 
 
 § 2481. Previous good character may 
 overcome positive evi- 
 dence of guilt. 
 
 § 2482. Previous good character — 
 Requires stronger proof of 
 malice. 
 
 § 2483. Previous good character as 
 against positive facts 
 showing guilt. 
 
 1595 
 
 § 2484. Previous reputation for 
 peace and quietude — Homi- 
 cide. 
 
 § 248o. Reputation — Relative weight 
 of in case when positive 
 or circumstantial evidence 
 is relied on. 
 
 § 2486. Previous reputation for hon- 
 esty. 
 
 § 2487. Defendants — Previous dis- 
 position towards children — ■ 
 Infanticide. 
 
 § 2488. Previous bad character of 
 defendant. 
 
 § 2489. Character of deceased for 
 violence immaterial when 
 killing unlawful and pre- 
 meditated. 
 
 § 2490. Character of deceased — Same 
 offense to kill bad person 
 as to kill a good one. 
 
 CIRCUMSTANTIAL EVIBENCE. 
 
 § 2491. 
 § 2492. 
 § 2493. 
 § 2494. 
 
 § 2495. 
 § 2496. 
 § 2497. 
 
 § 2498. 
 § 2499. 
 § 2500. 
 
 2501. 
 2502. 
 
 Circumstantial evidence de- 
 fined. 
 
 Circumstantial evidence — 
 What is meant by. 
 
 Circumstantial evidence is 
 competent. 
 
 Legal and competent — Ex- 
 cluding every reasonable 
 hypothesis. 
 
 Positive and circumstantial 
 evidence distinguished. 
 
 Elements necessary for con- 
 viction. 
 
 Facts must all be consistent 
 with guilt and inconsistent 
 with innocence. 
 
 No reasonable theory of in- 
 nocence must be possible. 
 
 A single inconsistent fact ac- 
 quits. 
 
 Circumstances proven must 
 be consistent with one an- 
 other, and, taken together, 
 'must exclude every rea- 
 sonable hypothesis of in- 
 nocence. 
 
 Certainty required. 
 
 Circumstantial evidence 
 need not be conclusive — 
 Degree of proof.
 
 1596 
 
 FORMS OP INSTRUCTIONS. 
 
 [§ 2465. 
 
 § 2503. Only inferences or presump- 
 tions necessarily arising' 
 from proved circumstances 
 should be considered. 
 
 § 2504. Conviction upon circum- 
 stantial evidence alone — 
 Homicide — Extenuating 
 circumstances. 
 
 § 2505. What must be proved in or- 
 der to convict on. 
 
 § 2506. Circumstantial evidence, 
 weight of — How to be con- 
 sidered by jury. 
 
 § 2507. Weight of — As conclusive as 
 direct. 
 
 § 2508. Credibility — Of circumstan- 
 tial evidence. 
 
 § 2509. Murder may be proven by 
 facts and circumstances 
 attending the killing — Ab- 
 sence of body. 
 
 § 2510. Failure to use deadly weap- 
 on at hand. 
 
 § 2511. Instruction when testimony 
 is largely circumstantial. 
 
 § 2512. Inference of fact. 
 
 BURDEN OF PROOF. 
 
 § 2465. Burden of Proof on the State — Presumption of Innocence. 
 
 (a) The court instructs the juiy that the burden of proof in this 
 case is on the state to prove to the satisfaction of the jury, beyond 
 all reasonable doubt, that the defendant is guilty as charged in the 
 indictment ; and unless you are so satisfied of his guilt beyond rea- 
 sonable doubt you will find him not guilty.^ 
 
 (b) The law presumes every man to be innocent, and in this case 
 the burden of proof is upon the state, and, to entitle her to a convic- 
 tion of the defendant, she must prove every element material of the 
 offense charged to your satisfaction beyond a reasonable doubt, and 
 to the satisfaction of each member of the jury.- 
 
 (e) The prisoner at the bar is presumed to be innocent until he 
 is proven to be guilty. He is not required to prove his innocence, 
 but may rest upon the presumption in his favor until it is overthrown 
 by positive, affirmative proof. The burden is therefore on the state 
 to establish to your satisfaction, beyond any reasonable doubt, the 
 guilt of the prisoner as to the crime charged in this indictment, or 
 any other lesser one included in it. If you entertain any reasonable 
 doubt as to any fact or element necessary to constitute the prisoner's 
 guilt, it is your sworn duty to give him the benefit of that doubt and 
 return a verdict of acquittal. And even where the evidence demon- 
 strates probability of guilt, yet if it does not establish it beyond 
 reasonable doubt, you must acquit the prisoner. You are prohibited 
 b}'' law and your oath from going beyond the evidence to seek for 
 doubts upon which to acquit the prisoner, but you must confine your- 
 selves strictly to a dispassionate consideration of the testimony given 
 upon the trial. You must not have recourse to extraneous facts and 
 circumstances in reaching your verdict. You are the exclusive judges 
 of the facts. You find from the evidence what facts have been 
 proven and what have not.^ 
 
 1— Strother v. State, 74 Miss. 247, N. E. 532 (534); State v. Linhoff, 121 
 21 So. 147 (148), 34 L. R. A. 472. Iowa 632, 97 N. W. 77 (78). 
 
 2— Rains v. State, 137 Ind. 83, 36 3— State v. Aspara, 113 La. 940, 
 
 37 So. 883 (889).
 
 § 2466.] CRIMINAL— BURDEN OF PROOF. 1597 
 
 § 2466. Burden of Proof — Homicide. The court instructs the jury 
 that up to the moment when the killing is proved, the prosecution 
 must make out its case beyond any reasonable doubt. When the 
 killing is proved, it devolves upon the defendant to show any cir- 
 cumstances in mitigation to excuse or justify it by some px'oof strong 
 enough to create in the minds of the jury a reasonable doubt of his 
 guilt of the offense charged, unless as before stated, the proof on the 
 part of the prosecution tends to show the crime committed only 
 amounts to manslaughter, or that the defendant Avas justified or ex- 
 cused in doing the act.* 
 
 § 2467. Every Essential Element Charged Must Be Proved to Sat- 
 isfaction of Every Juror, (a) The state must prove by eompetenr 
 evidence every essential element of the crime charged, to the satis- 
 faction of each and every juror, beyond a reasonable doubt. ^ 
 
 (b) The court instructs the jury, that the law pi-esumes the de- 
 fendant innocent, and that the burden of proving bej'ond all reason- 
 able doubt eveiy material allegation necessary to establish defend- 
 ant's guilt rests upon the state throughout the trial. "^ 
 
 (c) The court instructs the juiy that the prosecution must make 
 out and prove to the satisfaction of the juiy, beyond all reasonable 
 doubt, every material allegation in the information, and unless that 
 has been done the juiy should find the defendant not guilty.'^ 
 
 (d) The court instructs the jury that the burden is upon the 
 prosecution to prove beyond a reasonable doubt, by competent evi- 
 dence, every essential ingredient of the crime charged in this indict- 
 ment, before the prisoners, or either of them, can be found guilty 
 thereof.^ 
 
 (e) The court instructs the jury that as a matter of law, the 
 burden of proof is upon the people, and it is for them to prove their 
 case by a preponderance of evidence.^ 
 
 (f ) The court instructs you that when all the evidence in the case 
 is before the jury the burden of proof remains where it started, with 
 the prosecution. ^° 
 
 § 2468. Burden Never Shifts — Excuse and Justification. The 
 court insti-uets the jury tliat the law pi-esumes that the defendant is 
 innocent, and that the burden of proving bej'ond all reasonable doubt 
 every material allegation necessary to establish defendant's guilt 
 rests upon the state throughout the trial, and that the burden of 
 
 4— People V. Mathai, 135 Cal. 442. 7— Hill v. State, 42 Neb. 503, 60 
 
 67 Pac. 694 (695). N. W. 916. 
 
 "The whole instruction certainly 8— State v. Brinte, — Del. — , 58 
 
 presents a fair exposition of the Atl. 258. 
 
 law. People v. Milner, 122 Cal. 179, 9— Johnson v. People. 140 111. 350, 
 
 54 Pac. 837." 29 N. E. 895. 
 
 5— State v. Ryno, 68 Kan. 348. 74 10— People v. Rich, 133 Mich. 14, 
 
 Pac. 1114 (1116), 64 L. U. A. 303. 94 N. E. 375. 
 
 6— Blalock v. State, 79 Miss. 517, 
 31 So. 105.
 
 1598 FORMS OP INSTRUCTIONS. [§ 2469, 
 
 proof never shifts to the defendant; and that the law does not re- 
 quire the defendant to prove by his evidence excuse or justification, but 
 that if, from all the evidence, the jury entertains a reasonable doubt, 
 as to whether the killing proceeded from deliberate and premeditated 
 intent on the part of the defendant, or, on the other hand, from the 
 principle of self-defense, they must find the defendant not guilty.^^ 
 
 § 2469. Defendant Not Required to Prove Excuse or Justification 
 — Burden of Proof. You are instructed that the burden of proof 
 never shifts to the defendant and that the law does not require the 
 defendant to prove by his evidence excuse or justification ; but if 
 from all the evidence the jury entertains a reasonable doubt as to 
 whether the killing was done in the heat of passion, or proceeded from 
 the principle of self-defense, you will find the defendant not guilty.^^ 
 
 § 2470. Burden of Proving Self -Defense, (a) The court instructs 
 the jury that if the use of deadly weapon is proved, and the prisoner 
 relies upon self-defense to excuse him for the use of the weapon, the 
 burden of showing such excuse is on the prisoner, and, to avail him, 
 he must prove such defense by a preponderance of the evidence. ^^ 
 
 (b) The jui-y are instructed that, the killing being proved, the 
 burden of proving circumstances that justify or excuse the homicide 
 will devolve upon the accused, unless the proof on the part of the 
 prosecution sufficiently manifests that the accused was justified or 
 excused in committing the homicide.^'' 
 
 (e) When the defendant sets up self-defense in justification or 
 excuse of a killing, the burden of proof is upon him to show the jury 
 
 11— Blalock V. State, 79 Miss. 517, of a certain provision of the crim- 
 
 27 So. 642. inal code, tliis being- in the exact 
 
 The case was reversed and re- language of section 155 of the act 
 
 manded for the refusal of this in- of 1874 in relation to criminal 
 
 struction as asked, and for erron- jurisprudence. It was, and was 
 
 eously modifying the same by doubtless understood by the jury 
 
 adding the phrase "of the charge to be a mere statement of an ab- 
 
 of murder." The same case was stract legal propositiou applicable 
 
 again before the Supreme Court alike to all prosecutions for homi- 
 
 two years later and reported in 79 cide, and the words with which it 
 
 Miss. 517, 31 So. 105. began, namely 'The killing being 
 
 12— Blalock V. State, 79 Miss. 517, proved' could not have been under- 
 
 31 So. 105 (106). stood as an assumption that in this 
 
 13— State V. Staley, 45 W. Va. case the killing had been proved, 
 
 792, 32 S. E. 198 (199). but a statement of the rule that 
 
 14_Duncan v. People, 134 111. 110 when in any prosecution for a 
 
 (118), 24 N. E. 765. homicide the killing is proved, the 
 
 The court said:' "It is claimed burden of justifying or excusing 
 
 that this instruction assumed, and the homicide is upon the accused, 
 
 therefore took from the jury, the Nor did the instruction in any just 
 
 ciuestion of the killing of the de- sense relieve the prosecution from 
 
 ceased by the defendant, and also proving an unlawful and felonious 
 
 excused the prosecution from prov- killing. It merely announced the 
 
 ing in the first instance that the statutory rule that the killing of 
 
 homicide was unlawful, willful and one human being by another is 
 
 felonious. It is clear that neither prima facie felonious, so as to 
 
 of these criticisms can be sus- throw the burden of justification or 
 
 tained. This, like the four preced- excuse on the person killing." 
 ing instructions, was a mere copy
 
 §2471.] CRIMINAL— BURDEN OF PROOF. 1599 
 
 by the evidence that thei'e was a present, impending danger, real or 
 apparent, to life or limb, or of grievous bodily harm, from which 
 there was no other probable means of escape, unless the evidence 
 which proves the homicide proves also its excuse or justification.^^ 
 
 (d) The unlawful killing being proved, the burden of proving cir- 
 cumstances of mitigation that justify or excuse the homicide devolves 
 on the accused, unless by the proof on the part of the prosecution 
 it is sufficiently manifest that the offense committed only amounted 
 to manslaughter, or that the accused was justified or excused in com- 
 mitting the homicide. ^"^ 
 
 (e) The burden is upon the defendant to reasonably satisfy your 
 minds that he acted in self-defense.^^ 
 
 § 2471. Presumption of Intent — Burden of Disproving, (a) Hav- 
 ing thus instructed yon as to murder of the first and second degrees 
 and the lesser grades of homicide, for your proper guidance in de- 
 termining the guilt or innocence of the prisoners whom you have iu 
 charge, it is also proper to remind you that, as the law presumes 
 every accused person to be innocent until he is proven guilty, the 
 burden is upon the prosecution to prove beyond a reasonable doubt, 
 b}^ competent evidence, every essential ingredient of the crime 
 charged in this indictment, before the prisoners, or either of them, can 
 be found guilty thereof. But on the other hand, every sane man is 
 presumed to intend that which is the ordinary and natural conse- 
 quence of his own willful act. Therefore, on the charge of murder, 
 where the fact of killing as charged in the indictment is shown by 
 the prosecution, unaccompanied by circumstances of legal justifica- 
 tion, excuse, or mitigation, ihe law presumes that the homicide was 
 committed with malice, and hence amounts to murder, until the con- 
 traiy is shown; and consequently the burden is thereupon thrown 
 upon the accused of disproving the malice, and showing by evidence 
 to the satisfaction of the jury, that the killing was not malicious, but 
 was either justifiable or excusable homicide, or else manslaughter.''^ 
 
 § 2472. Burden of Proving Extenuating Circumstances Is on the 
 Defendant. The court instructs the jury that a mortal wound given 
 with a deadly weapon in the previous possession of the slayer, with- 
 out any provocation, or even with slight provocation, is prima facie 
 willful, deliberate and premeditated killing, and throws upon the 
 prisoner the necessity of showing extenuating circumstances.^" 
 
 § 2473. Insanity — Burden of Proving on Defendant. Eveiy one 
 over the age of 14 years is presumed by law to he of sound mind and 
 discretion until the contrary is proven, and the burden is on the de- 
 fendant in this case to satisfy you. but not beyond a reasonable doubt. 
 that he is not of sound mind and discretion.^o 
 
 IB— Jarvis v. State, 138 Ala. 17, 18— State v. Brinte, — Del. — , 58 
 
 34 So. 1025 (1030). Atl. 2.58 (262). 
 
 16— Williams v U. S., 4 Ind. 19— Lonpley v. Commonwealth, 
 
 Ter ''69 69 S W 871 99 Va. 807, 37 S. E. 339 (340). 
 
 17— Miller v. State, 107 Ala. 40, 19 20— State v. Mills. 116 N. C. 992, 
 
 So 37. 21 S. E. 106 (107), affirming convic-
 
 1600 FORMS OF INSTRUCTIONS. [§2474. 
 
 § 2474. Burden of Proof — Quantum of Evidence to Be Produced 
 by Defendant. The court instructs the jury that when the court says 
 'that the burden of proof is on the defendant it means that the evi- 
 dence must be sufficient to raise a reasonable doubt of defendant's 
 guilt.-i 
 
 § 2475. Burden of Proof — Presumption as to Degree of Murder. 
 All murder is presumed in law to be murder in the second degree, and 
 in order to elevate the offense to murder in the first degree the bur- 
 den of proof is on the commonwealth, and in order to reduce the 
 offense below murder in the second degree the burden is on the pris- 
 oner.22 
 
 CHARACTER EVIDENCE. 
 
 § 2476. Jury May Take into Consideration Character and Motives. 
 
 (a) The eoui't further instructs the jury that, in an-iving at a ver- 
 dict in this ease, you are the sole judges of the facts and credi- 
 bility of each and every witness introduced in this case, and you 
 have the right to disregard the testimony of any witness or witnesses 
 who, in the opinion of the jury, may have testified falsely in this 
 ease, or give to the testimony of any such witness such weight as, 
 in the opinion of the jury, the same may be entitled to, and in ascer- 
 taining such weight the juiy may take into consideration the charac- 
 ter and motive of the witnesses as disclosed by the evidence in this 
 case. 2^ 
 
 (b) Gentlemen of the jury, if the evidence convinces you that 
 E. P. is a man of bad character, and unworthy of belief, then you 
 may disregard his evidence altogether.^* 
 
 § 2477. Defendant's Character, (a) The court instructs the jury 
 that if 3^ou believe and find from the evidence that lait the time this 
 charge was made against the defendant he was a man of good char- 
 acter, you should take such good character into consideration in pass- 
 ing upon the question of his guilt or innocence, for the law presumes 
 that a man of good character is less likely to commit a crime than 
 one whose character is not good. If, however, upon a consideration 
 
 tlon of murder in first degree and jury that, in arriving- at a verdict 
 
 sentence of death. in this case, they are the sole 
 
 21— Jarvis v. State, 138 Ala. 17, judges of the facts, and credibility 
 
 34 So. 1025 (1030), charge of homi- of each and every witness intro- 
 
 cide. duced in said case, and that they 
 
 22— Longley v. Commonwealth, 99 have the right to disregard the 
 
 Va. S07, 37 S. E. 339 (340). testimony of any witness or wit- 
 
 23— Slate v. Roberts, 50 W. Va. nesses that have testified in the 
 
 422, 40 S. E. 484 (486). said case, and may take into con- 
 
 The supreme court approves the sideration the character and mo- 
 above InHtruction given by the tive for the testimony of each and 
 trial court as a modification of the all of said witnesses. 
 following, which it holds was er- 24— Prater v. State, 107 Ala. 26, 
 roneous: 18 So. 238 (239). 
 
 The court further instructs the
 
 § 2478.] CRIMINAL— EVIDENCE. 1601 
 
 of all the evidence, including that touching his good character, you 
 believe him to be guilty, you should not acquit him solely on the 
 ground of such good character. 
 
 (b) Evidence of a witness that he had known the defendant prior 
 to the time the charge was made against him, and was acquainted in 
 the neighborhood in which the defendant lived, land that he had never 
 heard anything said against him, is evidence tending to show and 
 prove that his character was good ait said time in said neighbor- 
 hood. ^^ 
 
 (c) The previous good character of the defendant, if proved to 
 your satisfaction in the case, you ought to consider, together wdth all 
 the other facts in evidence, in passing upon the question of his guilt 
 or innocence of this charge, for the law presumes that a man whose 
 character is good is less likely to commit a crime than the one whose 
 character is not good.-*' 
 
 (d) Where there is a serious conflict in the testimony as to the 
 commission of an offense like that charged in this ease, evidence 
 of the previous good character of the defendant, as to such offenses, 
 should be considered by the jury, in connection with all the other evi- 
 dence given on the trial, in determining whether the defendant would 
 be likely to commit, and did commit, the offense in question.-" 
 
 § 2478. Evidence of Good Character Not Sufladent to Acquit, (a) If 
 the jury believe from the evidence beyond a reasonable doubt that 
 the defendant committed the crime in question, as charged in the in- 
 formation, it will be their sworn duty 'as jurors to find the defendant 
 guilty, even though the evidence may satisfy their minds that the 
 defendant, previous to the commission of the alleged crime, had 
 sustained a good reputation and character for being a law-abiding 
 and peaceable citizen.^^ 
 
 (b) Evidence has been given in regard to the character of the 
 defendant for peace and quietude. This evidence should be consid- 
 ered by the jury in determining the guilt or innocence of the defend- 
 ant; but, if the jury should be satisfied beyond a reasonable doubt 
 of the guilt of the defendant, then, in that view of the case, although 
 you might believe that the defendant had a good character before the 
 alleged offense occurred, if it did occur, that would not avail him as 
 a defense or entitle him to an acquittal.-^ 
 
 25— State v. Weber, 156 Mo. 249, "We do not think there is any 
 
 56 S. W. 729. error in this instruction. It is 
 
 26— State v. Privitt, 175 Mo. 207, easily distinguishable from the 
 
 75 S. W. 457 (461), homicide case. case of Kistler v. State, 54 Ind. 
 
 27— Kistler v. State, 54 Ind. 400, 2 400, 2 Am. Cr. Rep. 18, in which 
 
 Am. Cr. Rep. 18. the jury was instructed that, if 
 
 28 — State v. Jones, 32 Mont. 442, the defendant was guilty, evi- 
 
 80 Pac. 1095 (1096). dence of good character was of no 
 
 "We thiiik the instruction cor- benefit. Good character may al- 
 rectly states the law and could ways benefit a guilty defendant, 
 hardly be misunderstood by the for the jury may take it into con- 
 jury." sideration in fixing his punish- 
 
 29 — Walker v. State, 136 Ind. 663, ment, and may, by reason of his 
 
 36 N. E. 356 (357). character, mitigate the punish- 
 101
 
 1602 FORMS OF INSTRUCTIONS. [§ 2479. 
 
 § 2479. When Jury Should Convict Notwithstanding Proof of Pre- 
 vious Good Character, (a) The court instructs the jury as a mat- 
 ter of hwv that the defendant has put in evidence his general repu- 
 tation for honesty and integrity, that such evidence is pennissible un- 
 der the law, and is to be, by the jury, considered as a circumstance in 
 this ease. But the court further instructs the jury that if, from all 
 the evidence in this case, you are satisfied beyond a reasonable 
 doubt, of the guilt of the accused, then it is the duty of the jury to 
 find him guilty, notwithstanding the fact, if such be the fact, that 
 heretofore the accused has borne a very good character for honesty.^" 
 
 (b) Upon the question of the good character of the defendant for 
 being a peaceable and law-abiding citizen, the court instructs the 
 jury that this evidence should be considered by the jury as tending 
 to establish a defense. If, however, the jury should be satisfied of 
 the guilt of the defendant beyond a reasonable doubt, after a full 
 consideration of all the evidence in the case, including the evidence 
 in regard to the character of the defendant for being a peaceable and 
 law-abiding citizen, then, though the jury might believe the defendant 
 had a good character for being a peaceable, law-abiding citizen before 
 the charge for which he is now being tried, such evidence of good 
 character would not avail the defendant as a defense and entitle him 
 to an aequittal.^i 
 
 (c) In determining as to the guilt or innocence of the defendant, 
 you should take into account the testimony in relation to his charac- 
 ter as a moiial man, and you should give to such testimony such 
 weight as you deem proper; but if, from all the evidence, you are 
 satisfied beyond a reasonable doubt, as defined in these instructions, 
 that the defendant is guilty, then his previous good 'character, if 
 shown, cannot justify, excuse, i>alliate or mitigate the offense, and 
 you cannot acquit him merely because you believe he has been a per- 
 son of good repute.^^ 
 
 (d) The defendant has in this case placed his previous character 
 and reputation as to being 'a man of peace and quiet in evidence. 
 If you find that previous to this difficulty he sustained a good repu- 
 tation for peace and quiet, you will weigh it in his favor for what, in 
 your judgment, you may think it is worth. Where the question to be 
 determined by you may be close, it shouUl be sufficient to turn the 
 scales in his favor. If, however, you are satisfied that notwithstand- 
 ing his former good reputation, the proof shows in this case beyond 
 
 ment. Under this instruction, the 30 — Approved in case of larceny 
 
 jury was ffiveu Ihe liberty of con- as bailee; Young v. People, 193 III. 
 
 .slderiiif? the prond chjiracter of the 236 (238-9), 61 N. E. 1104. 
 
 appellant in mitigation of his pun- 31 — Approved in case of homi- 
 
 Ishmenl, if it chose to do so; but cide; State v. Stentz, 33 Wash. 444, 
 
 they were told, if he was guilty of 74 Pac. 588 (590). 
 
 the charge preferred against him 32 — Approved where charge was 
 he was not mtilled to acquittal be- homicide; State v. Privitt, 175 Mo- 
 ralise hi.s character had previously 207, 75 S. W. 457 (460). 
 been good."
 
 2480. 
 
 CRIMINALr— EVIDENCE. 
 
 1603 
 
 a reasonable doubt that he is giiilt}^ of either of the crimes of murder 
 in the first degree or second degree, or manslaughter, as the same 
 have heretofore been defined in these instructions, then the former 
 good character or reputation of the defendant would not be a defense 
 in this action.33 
 
 (e) The court instructs the juiy that the previous good character 
 of the defendant, if proven to your reasonable satisfaction, is a fact 
 in the case which the juiy should consider in passing upon the ques- 
 tion of the defendant's guilt or innocence; but if all the evidence in 
 the case, including that given touching the previous good character 
 of the defendant, shows him to be guilty of the offense, then his pre- 
 vious good character cannot justify, excuse or mitigate the offense.^* 
 
 § 2480. Evidence of Previous Good Character Alone May Acquit. 
 
 (a) The court instructs the jury that the character of the accused 
 may be such as to create a doubt in the minds of the jury, and lead 
 them to believe, in view of the improbability of a person of such 
 character being guilty, that the other evidence is false.^^ 
 
 (b) The court instructs the jury that evidence of good character 
 may of itself create a reasonable' doubt, where otherwise no reason- 
 able doubt would exist. And in relation to that you can give such 
 
 33 — Approved where charge was 
 homicide; McCormick v. State, 66 
 Neb. 337, 92 N. W. 606 (60S). 
 
 34— State v. Kinder, 184 Mo. 276 
 (290), 83 S. W. 964 (966). 
 
 35— People v. Elliott, 163 N. Y. 
 11, 57 N. E. 103 (104), holds that re- 
 fusal of this instruction was ob- 
 vious error. "The defendant was 
 entitled to have the jury distinctly- 
 instructed that g-ood character will 
 sometimes, of itself, create a 
 doubt, when without it none would 
 exist. Cancemi v. People, 16 N. Y. 
 501; Stephens v. People, 4 Parker 
 396; Commonwealth v. Webster, 5 
 Cush. 295, 52 Am. Dec. 71; Rem- 
 sen V. People, 43 N. Y. 9. The 
 court had been previously request- 
 ed by defendant's counsel to charge 
 as follows: 'I ask the court to 
 charge the jury that the jury may, 
 in the exercise of sound judgment, 
 give the person the benefit of pre- 
 vious good character, no matter 
 how conclusive the other testimony 
 may appear to be.' The court in 
 response charged: 'I leave it to 
 the jury to say what weight good 
 character should have in determin- 
 ing the question of the defendant's 
 guilt or innocence. I think it is a 
 proper subject for their consider- 
 ation.' Exception was taken to the 
 refusal to charge as requested. 
 The vice of this ruling is the same 
 
 as in the one already considered. 
 The jury were not clearly informed 
 as to their power in the exercise of 
 a sound discretion. The defendant 
 was entitled to the chai-ge as re- 
 quested, wathout change or com- 
 ment." 
 
 Citing also Remsen v. People, 43 
 N. Y. 8, 2 Reiss, ' Crimes 785, 3 
 Greenl. Ev. § 25, and People v. 
 Hughson, 154 N. Y. 153 (164), 47 
 N. E. 1092, where the court said: 
 
 "Good chai-acter may create a 
 doubt against positive evidence, but 
 this doubt against positive evi- 
 dence is created only when, in the 
 judgment of the jury, the charac- 
 ter is so good as to raise a doubt 
 as to the truthfulness or correct- 
 ness of the positive evidence. In 
 such a case the prisoner must be 
 given the benefit of the doubt." 
 
 In People v. Garbutt, 17 Mich. 
 9, 97 Am. Rep. 162, Cooley, J., said: 
 "Good character is an important 
 fact with every man; and never 
 more so than when he is put on 
 trial charged with an offense, 
 which is rendered improbable in 
 the last degree by a uniform course 
 of life wholly inconsistent with any 
 such crime. There are cases when 
 it bticomes a man's sole depend- 
 ence, and may prove sufficient to 
 outweigh evidence of the most 
 positive character."
 
 1604 FORMS OF INSTRUCTIONS. [§ 2481. 
 
 testimony that consideration that you think it is entitled to, and no 
 more; taking it into consideration with all the other facts and cir- 
 cumstances of the case.^*^ 
 
 § 2481. Predous Good Character May Overcome Positive Evi- 
 dence of Guilt — A Question for the Jury. The evidence of good char- 
 acter is evidence which must be considered, and if, in the judgment 
 of the jury, that good character does raise a doubt against positive 
 evidence, they have a right to entertain that doubt and the pxisoner 
 must have the benefit of it.^'^ 
 
 § 2482. Previous Good Character — Requires Stronger Proof of 
 Malice. I have been requested to charge you as to the defendant's 
 good character. The question of fact as to whether he has satisfied 
 you from the evidence that he has established a good character is for 
 you to determine. I have been requested to charge you ^'that, should 
 the jury conclude from the evidence that the defendant has borne a 
 reputation for poaceableness, they should require a greater degree of 
 certainty in the proof of the maliciousness attributed to him than 
 would be requisite if the contraiy were shown." I so charge you. 
 Every party charged with crime has a right to introduce and make 
 proffer of his good character, that character having reference to the 
 na4;ure of the charge made against him, and if he does the jurors are 
 required to take that testimony, in connection with all the other 
 facts of the case^ in determining whether the guilt of the party has 
 been established beyond a reasonable doubt.^® 
 
 § 2483. Previous Good Character as Against Positive Facts Show- 
 ing Guilt, (a) In regard to evidence of this character, it is the duty 
 of the court tq say to you that, where it is shown to your satisfac- 
 tion that the defendant was of good general reputation for peace and 
 good order in the community, that kind of testimony, if properly made 
 out to you, is positive and substantial evidence, and it should be 
 weighed by you in consideration of this case. The courts of highest 
 resort in this state have said it is evidence which may work a doubt 
 for the acquittal of the defendant. If that evidence is properly made 
 out to you, it should be sufficient in that line. It is not, however, to 
 weigh against positive facts which should convince your mind that 
 this defendant did the deed which he is charged with committing 
 here. Where the facts and circumstances are such as to leave no 
 room for doubt, and the minds of the jury ai'e thoroughly and fully 
 
 36 — People v. Jackson, 182 N. Y. followed neither added to nor took 
 
 66, 74 N. E. 570. from the proper rule as stated to 
 
 In regard to this instruction the jury." 
 
 "counsel argues that, while the 37 — People v. Hughson, 154 N. Y. 
 
 court charged as requested, the 153, 47 N. E. 1092 (1095). See pre- 
 
 quaiiflcation following was error; vious section. 
 
 citing People v. Bonier, 179 N. Y. 38 — Approved in case where 
 
 315, 72 N. E. 226. The charge as charge was homicide. State v. 
 
 requostod and made was within Pet.'sch, 43 S. C. 132, 20 S. E. 993 
 
 the ruin laid down in the case (996). 
 cited, and the qualification that
 
 § 2484.] CRIMINALr— EVIDENCE. 1605 
 
 convinced, this evidence itself would not then work the acquittal of 
 the defendant, but it is to come in the consideration of the case, the 
 same as any other evidence, as positive and substantive evidence, 
 and to be weighed by you in that line. 
 
 (b) Evidence of good character is not a mere makeweight, thrown 
 in to assist in the production of a result that would happen at all 
 events, but is positive evidence, and may of itself, by the creation of 
 a reasonable doubt, produce an acquittal. ^^ 
 
 § 2484. Previous Reputation for Peace and Quietude — Homicide. 
 
 You are insti'ucted that the defendant is entitled to have the evi- 
 dence touching the question of his reputation for peace and quietude 
 considered by the juiy in determining the question of his guilt, and 
 especially in determining the question as to who was the aggressor 
 in the affray in which K. lost his life. In such cases, proof of good 
 reputation for peace and quietude on the part of the defendant is 
 proper evidence to be considered by the jury, in connection with all 
 the other evidence. In determining the guilt or innocence of the ac- 
 cused, the weight to be attached to the fact of good character or 
 reputation, like that to be attached to every other fact of the case, 
 is for the jury alone to determine.'"* 
 
 § 2485. Reputation — Relative Weight of in Cases Where Positive 
 or Circumstantial Evidence Is Relied On. You are instructed that 
 evidence of good character is always receivable in a court of law, 
 where a person is charged with the commission of a crime, and some- 
 times it proves a very important part of the testimony, as, for in- 
 
 39— Commonwealth v. Harmon, 527, 45 Pac. 145 (146), 53 Am. St. 
 
 199 Pa. 521, 49 Atl. 217, 85 Am. St. Rep. 883. 
 Rep. 799. The court held it was error to 
 
 The court said: "It is plain that refuse this instruction. The court 
 
 the judge did not see any incon- said: "We think it too well settled 
 
 sistency in these two instructions, to admit of any doubt or contro- 
 
 nor do we think they are fairly versy that a defendant in a crimi- 
 
 open to that objection. The true nal case may introduce evidence of 
 
 rule was accurately expressed in his good character, with respect 
 
 Commonwealth v. Eckerd, 174 Pa. to the elements involved in the 
 
 137, 34 Atl. 305, in this form: 'That charge against him, as a fact to 
 
 evidence of good character is sub- weigh in his favor, and that he is 
 
 stantive and positive proof in the entitled, if he requests it, to have 
 
 prisoner's behalf, and may give the jury advised as to the weight 
 
 rise to a reasonable doubt, which to be given to such evidence. 3 
 
 would not otherwise exist, by mak- Thomp. Trials, par. 444; Kistler v. 
 
 ing it improbable that a man of State, 54 lud. 400, 2 Am. Cr. Rep. 
 
 such character would commit the 18; State v. Clemohs, 51 Iowa 274, 
 
 offense charged; but where the 1 N. "W. 546; McQueen v. State, 82 
 
 jury is satisfied beyond a reason- Ind. 72; People v. Laird, 102 Mich, 
 
 able doubt, under all the evidence, 135, 60 N. W. 457; People v. Jassino, 
 
 that the defendant is guilty, evi- 100 Mich. 536, 59 N. W. 230. In this 
 
 dence of previous good character last case the court said: 'Evideni-^e 
 
 is not to overcome the conclusion of good character is admissible, 
 
 which follows from that view of not only in a case where doubt 
 
 the case.' The charge complained otherwise exists, but may be of- 
 
 of in the present case did not vary fered for the purpose of creating 
 
 substantially from this rule." a doubt.' " 
 
 40— State v. Gushing, 14 Wash.
 
 1606 FORMS OP INSTRUCTIONS. [§ 2486. 
 
 stance, in a case that depends entirely upon circumstantial evidence, 
 or where the testimony as to the commission of the crime or offense is 
 very contradictory. In such cases the testimony might be veiy im- 
 portant. Sometimes in such a case the testimony of good character 
 would turn the scale in favor of the defendant. But, in a case where 
 the testimony is direct and positive as to the commission of the of- 
 fense, it is not of so much weight — -not of so much value. Still it is 
 to be considei^ed by the jury, and to be given by them all the weight 
 they believe it entitled to receive. It should be considered in connec- 
 tion with all of the other testimony and circumstances surrounding 
 the alleged commission of the offense.**^ 
 
 § 2486. Previous Reputation for Honesty. Evidence as to the good 
 reputation of the defendant for honesty and integrity was received, 
 and you should consider such evidence together with all the other evi- 
 dence in the case in arriving at your verdict. But, if from all the 
 evidence in the case you are satisfied of his guilt beyond a reasonable 
 doubt, then it is immaterial what his reputation has heretofore been 
 as to honesty and integrity.'*^ 
 
 § 2487. Defendant's Previous Disposition Toward Children — In- 
 fanticide. Defendant has introduced evidence as to his character as 
 a man of humane and kindly disposition towards children. In pass- 
 ing on the question of his guilt or innocence, and, if you find him 
 guilty, in passing on the grade of his offense, this evidence as to his 
 character constitutes an ingredient to be considered by you, without 
 reference to the apparently conclusive or inconclusive character of 
 the other evidence; and it is for you to consider this evidence 
 throughout your deliberations on the facts of the case, and give it 
 such weight as you think it justly entitled to.*^ 
 
 § 2488. Previous Bad Character of Defendant. The court instructs 
 the jury that no person should be convicted uioon his reputation, 
 character or former convictions, but must be convicted by the evi- 
 dence in the ease; and the evidence must exclude any and every rea- 
 sonable doubt, and to a moral certainty.'** 
 
 § 2489. Character of Deceased for Violence Immaterial When 
 Killing Unlawful and Premeditated, (a) If defendant K. had the 
 previously formed design unlawfully to take S. 's life and carried it 
 into effect pursuant thereto, or if he was the aggressor, or brought 
 on the difficulty, then S. 's character for violence, no matter how 
 clearly proved, will avail him nothing.'*^ 
 
 (b) In trials of homicide, in all doubtful questions as to who was 
 
 41— Grabowski v. State, 126 Wis. the decisions of this court." Cit- 
 
 44, 105 N. W. 808. iiig State v. Gustafson 50 Iowa 
 
 42— State v. Dunn, 125 Wis. 181 194. 
 
 (197), 102 N. W. 935 (940). 44— McVay v. State, — Miss. — , 
 
 43— State v. Cunningham, 111 26 So. 947. 
 
 Iowa 233, 82 N. W. 77.J (779). "The 45— Kair v. State, 106 Ala. 1, 17 
 
 law as stated is in harmony with So, 328 (329).
 
 '§ 2490.] CRIMINALr— EVIDENCE. 1607 
 
 the aggressor, the violent or bloodthirsty character of the deceased, 
 if such be his character, may be given in evidence, for the reason 
 that an assault or attack by one known to be of a violent character, 
 and one who fights with weapons would justify more prompt and de- 
 cisive measures than if by one of a milder character. But such evi- 
 dence is confined to defensive measures. 
 
 (c) The evidence of character as to the deceased is immaterial 
 if the defendant was the aggressor, or was not acting in self-de- 
 fense.^^ 
 
 § 2490. Character of Deceased — Same Offense to Kill Bad Person 
 as to Kill a Good One. The evidence offered as to the character of 
 deceased should be considered by the jury in determining whether or 
 not by his acts and conduct at the time of the homicide, J., deceased, 
 gave the defendant reasonable cause to ai>prehend such danger as to 
 justify defendant in striking him, if he did strike him, on the ground 
 of self-defense, as defined in these instructions. But if you find from 
 the evidence that the defendant was the aggressor, and that he sought 
 the deceased, and provoked, began, or entered into a difficulty with 
 him with a preconceived intent of wreaking his malice upon said J., 
 then the bad character of J., if he was a person of bad character, 
 would afford the defendant no excuse for taking his life, if he did take 
 his life, because it is the same offense to kill a bad person as it is to 
 kill a good one.'*''^ 
 
 CIRCUMSTANTIAL EVIDENCE. 
 
 § 2491. Circumstantial Evidence Defined. The court further in- 
 structs the jury, that what is meant by circumstantial evidence in 
 criminal eases, is the proof of such facts and circumstances connected 
 with or surrounding the commission of the crime charged, as tend to 
 show the guilt or innocence of the party or parties charged; and if 
 these facts and circumstances are sufficient to satisfy the jur}^ of the 
 guilt of the defendants, or any of them, beyond a reasonable doubt, 
 then such evidence is sufficient to authorize a jmy in finding a ver- 
 dict of guilty, as to such of the defendants as the jury are so satis- 
 fied, beyond a reasonable doubt, from the evidence, are guilty.** 
 
 46 — Winter v. State, 123 Ala. 1, 26 respondent passed into the second 
 
 So. 949 (950). room. One of these officers testi- 
 
 47 — State v. Darling-, 199 Mo. 168, fled that he heard a noise, as of 
 
 97 S. W. 592. something- falling. He has de- 
 
 48 — Law v. State, 33 Tex. 37. scribed the manner in which he 
 
 Circumstantial evidence defined found O'G. near the dump, so 
 
 by illustration: called, as it rises in the second 
 
 As tending to show there w^as in- room, back of the counter. He has 
 
 toxicating liquor kept there, the testified that he smelled the fumes 
 
 state has introduced evidence tend- of whisky coming from the dump, 
 
 ing to show that soon after the Now, if you find that he did in fact 
 
 officers or some one of them, at smell intoxicating liquor, then that 
 
 least, entered the front room, this establishes, or tends to establish,
 
 1608 
 
 FORMS OF INSTRUCTIONS. 
 
 [§ 2492. 
 
 § 2492. Circumstantial Evidence — What Is Meant by. Ths court 
 instructs the jury that what is meant by circumstantial evidence in 
 criminal cases is the proof of such facts or circumstances connected 
 ■with or surrounding the commission of the crime charged as tend to 
 show the guilt or innocence of the party charged ; and, if these facts 
 and circumstances are sufficient to satisfy the jury of the guilt of 
 the defendant beyond a reasonable doubt, then such evidence is suf- 
 ficient to authorize the jury in finding a verdict of guilty.'*'' 
 
 § 2493. Circumstantial Evidence Is Competent. If the jury be- 
 lieve, from the evidence, beyond a reasonable doubt, that the defend- 
 ant delibei-ately and intentionally shot J. M., in manner and form as 
 charged, and as he was passing along the public highway, and that 
 from the effects of such shooting the said J. M. died, as charged in 
 the indictment, it matters not that such evidence is circumstantial, or 
 made up from facts and circumstances, provided, the jury believe 
 such facts and circumstances pointing to his guilt, to have been 
 proven, beyond a reasonable doubt, by the evidence.^*' 
 
 § 2494. Legal and Competent — Excluding Every Reasonable Hy- 
 pothesis, (a) The court further instructs the jury that circumstan- 
 tial evidence is legal and competent in criminal cases, and, if it is of 
 such a character as to exclude every reasonable hypothesis other 
 than that the defendant is guilty, is entitled to the same weight as 
 direct testimony.^^ 
 
 two facts: First, that he did ac- 
 tually smell an odor there present, 
 that it had existence and that that 
 odor came from intoxicating 
 liquors, and therefore it tends to 
 show that intoxicating liquor had 
 been present there. Now, to illus- 
 ti-ate how this kind of testimony is 
 acted upon in the ordinary experi- 
 ence of mankind, I will bring to 
 your minds a very homely illustra- 
 tion, — one which presents itself to 
 me. You hear a commotion in your 
 hen-house. You are aware by the 
 disturbance, that some animal is 
 there. You hasten to the place. 
 You do not see the animal. He has 
 fled at your approach. But when 
 you get in there you have the un- 
 mistakable odors of a skunk. There 
 is the evidence of an odor, and that 
 proves that the animal has been 
 there at some time. It is on ac- 
 count of our being able to act 
 ui)on such circumstances as these, 
 arising in our ordinary human ex- 
 perience, with reasonable safety, 
 and a reasonable assumption of 
 their truth, that the law has per- 
 mitted this class of evidence to be 
 used In criminal cases. If you are 
 satisfied from the evidence of Mr. 
 C. that he smelled the fumes of in- 
 
 toxicating liquor there, you will 
 say whether or not there was in- 
 toxicating liquor there in that 
 dump. It does not make any differ- 
 ence whether the officer found any 
 liquor, so that he was enabled to 
 lay his hand upon it. If you find 
 there was intoxicating liquor 
 there, that establishes the fact. 
 Approved in S-tate v. O'Grady, 65 
 Vt. 66, 25 Atl. 905. 
 
 49 — Cunningham v. State, 56 Neb. 
 691, 77 N. W. 60 (61). 
 
 The court said: "We see nothing 
 wrong with this instruction. Law 
 V. State, 3.3 Tex. 37." 
 
 50— Schoolcraft v. People, 117 111. 
 277, 7 N. E. 649. 
 
 51 — Longley v. Commonwealth, 99 
 Va. 807, 37 S. E. 339 (341). 
 
 The same instruction, excepting 
 the last phrase, was approved in 
 Cunningham v. State, 56 Neb. 691, 
 77 N. W. 60. It is as follows: 
 
 The court instructs the jury that 
 circumstantial evidence is legal 
 and competent in criminal cases> 
 and, if it is of such a character as 
 to exclude every reasonable hy- 
 pothesis other than that the de- 
 fendant is guilty, it is sufficient to 
 authorize a conviction. 
 
 The court in support of the in-
 
 § 2495.] CRIMINAL— EVIDENCE. 1609 
 
 (b) You will have observed, gentlemen, on the prosecution of this 
 ease, that the evidence is largely, if not entirely, circumstantial. 
 Now in respect to that, I charge you that circumstantial evidence is 
 legal and competent in criminal cases. If it is of such a character 
 as to exclude every reasonable hypothesis other than that the defend- 
 ant is guilty, it is entitled to the same weight as direct evidence. If 
 you believe from the evidence beyond a reasonable doubt that the 
 defendant deliberately and intentionally set fire to the building, as 
 charged in the infonnation, it matters not that such evidence is cir- 
 cumstantial, or made up of facts and circumstances, provided you 
 believe such facts and circumstances pointing to her guilt to have 
 been proven bej'ond a reasonable doubt bj^ the evidence. ^- 
 
 § 2495. Positive and Circumstantial Evidence Distinguished, (a) 
 Evidence is either direct and positive, or presumptive and circum- 
 stantial. Evidence is direct and positive, when the very facts in dis- 
 pute are communicated by those who have had actual knowledge of 
 them by means of their senses, and where, therefore, the jury may 
 be supposed to perceive the fact through the organs of the witnesses. 
 It is presumptive or circumstantial where the evidence is not direct, 
 but where, on the contraiy, a fact which is not directly and posi- 
 tively known is presumed or inferred fi'om one or more other facts 
 or circumstances which are known. The state claims that it has con- 
 nected the defendant with the crime alleged in the second count of 
 the information, not by direct and positive evidence, but by what 
 has been herein defined as presumptive and circumstantial evidence ; 
 that is, the state has offered no evidence of a witness or witnesses 
 who saw the act that is alleged in the second count of the infonna' 
 tion, which it is claimed resulted in the death of the said G., but the 
 state has offered the testimony of witnesses tending to prove a cata- 
 logue of facts and circumstances which the state claims presumably 
 and circumstantially connects the defendant with the commission of 
 the alleged crime in said second count, and establishes his guilt of 
 the crime charged beyond a reasonable doubt.^^ 
 
 (b) The court instructs the jury that evidence is of two kinds—- 
 direct and circumstantial. Direct evidence is when a witness testi- 
 fied directly of his own knowledge of the main fact or facts to be 
 proven. Circumstantial evidence is proof of certain facts and cir- 
 cumstances in a certain ease, from which the juiy may infer other 
 and connected facts, which usually and reasonably follow, according 
 to the common experience of mankind. Crime may be proven by cir- 
 cumstantial evidence as well as by direct testimony of eye-witnesses; 
 
 struction cited Davis v. State, 51 53 — "The instruction assailed is 
 
 Neb. 301, 70 N. W. 984; Morgan v. indeed a fair statement of the 
 
 State, 51 Neb. 672, 71 N. W. 788; claim advanced in behalf of the 
 
 Johnson v. State, 53 Neb. 103, 73 N. state, and hi no wise prejudicial 
 
 W. 463. to the rights of the accused." 
 
 52— Colbert v. State, 125 Wis. 423, Morgan v. State, 51 Neb. 67?, 71 N. 
 
 104 N. W. 61 (66). W. 788 (795).
 
 1610 FORMS OF INSTRUCTIONS. [§ 2496. 
 
 but the facts and circumstances in evidence should be consistent 
 with each other and with the guilt of the defendant, and inconsistent 
 with any reasonable theory of defendant's innocence.^* 
 
 § 2496. Elements Necessary for Conviction, (a) The jury are in- 
 structed that ithe prosecution seeks a conviction in this case upon cir- 
 cumstantial evidence alone. The court therefore instructs you that 
 you cannot convict the defendant unless the state has proven his 
 g'uilt from the evidence beyond a reasonable doubt, by facts and cir- 
 cumstances all of which are consistent with each other and with his 
 guilt, and absolutely inconsistent with any reasonable theory of his 
 innocence.^^ 
 
 (b) Circumstantial evidence is the evidence of certain facts from 
 which are to be inferred the existence of other material facts bearing 
 upon the question at issue or fact to be proved. This evidence is 
 legal and competent, and, when of such a character as to exclude 
 every reasonable doubt of defendant's innocence, is entitled to as 
 much weight as direct evidence. When a conviction is sought on cir- 
 cumstantial evidence alone, it must not only be shown by prepon- 
 derance of evidence that the facts are true, but they must be such 
 as are absolutely opposed, upon any reasonable ground of reasoning, 
 with the innocence of the accused, and incapable of explanation upon 
 any reasonable hypothesis other than that of the guilt of the ac- 
 cused. The degree of certainty must almost be equal to that of direct 
 testimony, and, if there is any one single fact proved to your satis- 
 faction by a preponderance of evidence which is inconsistent with de- 
 fendant 's guilt, this is sufficient to raise a reasonable doubt, and the 
 juiy should acquit the defendant. In order to justify the inference 
 of legal guilt from circumstantial evidence, the proof must be abso- 
 lutely incompatible with the innocence of the accused>, and incapable 
 of explanation upon any other reasonable hj^othesis than that of 
 his guilt. If there is any reasonable doubt as to reality of the con- 
 nection of the circumstances of evidence with the facts to be proved, 
 or as to the completeness of the proof of the corpus delicti, or as to 
 the proper conclusion to be drawn from the evidence, it is safer to err 
 in acquitting than in convieting.^^ 
 
 (c) The rule with reference to circumstantial evidence is to prove 
 such facts and circumstances with or surrounding the commission of 
 the crime charged are true, to show the guilt or innocence of the 
 party charged ; and, if these facts and circumstances are sufficient to 
 convince the jury of the guilt of the defendant beyond a reasonable 
 doubt, then such evidence is sufficient to authorize the jury in finding 
 a verdict of guilty.°'^ 
 
 54— State V. GatUn, 170 Mo. 354, 113 La. 940, 37 So. 883 (889), in a 
 
 70 S. W. 885 (888), homicide case. homicide case. 
 
 55 — State v. Pysoher, 179 Mo. 140, 57 — This instruction approved in 
 
 77 S. W. 836 (842). a homicide case; Smith v. State, 94 
 
 56— Approved in State v. Aspara, Ga. 591, 22 S. E. 214 (215).
 
 § 2497.] 
 
 CRIMINAL— EVIDENCE. 
 
 1611 
 
 § 2497. Facts Must All Be Consistent with Guilt and Inconsistent 
 with Innocence, (a) The jury are instructed, as a matter of law, 
 that where a eonviotion for a criminal offense is sought upon circum- 
 stantial evidence alone, the people must not only show, by a pre- 
 ponderance of evidence, that the alleged facts and circumstances are 
 true, but they must be such facts and circumstances as are abso- 
 lutely incompatible, upon any reasonable hypothesis, with the inno- 
 cence of the accused, and incapable of explanation, upon any reason- 
 able hypothesis, other than that of. the guilt of the accused. -"^^ 
 
 (b) When circumstantial evidence is relied upon to obtain a con- 
 viction of a jjei'son charged with crime, it is not only necessary that 
 the circumstances all concur to show that the defendant committed 
 the crime, but that all be inconsistent with any other rational con- 
 clusion.''® 
 
 58—1 Greenl. on Ev. § 12. 
 
 In Gantling- v. State. 40 Fla. 237, 
 23 So. 857 (859), the following in- 
 struction was given: 
 
 As to the evidence in the case 
 at bar, which is circum.stantial you 
 are instructed as matter of law 
 that circumstantial evidence is 
 legal evidence, (and are further in- 
 structed that it is well settled by 
 decisions of various courts in this 
 country, and especially by our own 
 supreme court, 'that circumstantial 
 evidence is not only legal evidence, 
 but also that a well connected 
 train of circumstances is as con- 
 clusive of a fact as is the great- 
 est array of positive evidence.) 
 The value of this kind of evidence 
 consists in the conclusive nature 
 and tendency of the circumstances 
 relied upon to establish any con- 
 troverted facts. In criminal cases 
 they must not only be consistent 
 with guilt of the accused, but must 
 be inconsistent with the innocence 
 of the accused. Where a conviction 
 of guilt depends upon circumstan- 
 tial evidence alone, the circum- 
 stances proven should not only all 
 concur to show that the prisoner 
 committed the crime, but that they 
 are all inconsistent with any ra- 
 tional conclusion. And the circum- 
 stances proven should all connect, 
 or tend to connect, the accused 
 with the commission of the al- 
 leged crime, and the circum- 
 stances proven should be of such 
 character as to satisfy the minds 
 of the jurors trying the case of the 
 guilt of the accused beyond a 
 reasonable doubt. The circum- 
 stances from which the conclusion 
 is drawn should be fairly estab- 
 
 lished. All the facts should be 
 consistent with the hypothesis of 
 guilt. The circumstances should 
 be of conclusive nature and ten- 
 dency, and the circumstances, 
 when alone relied upon for a con- 
 viction, should, to a moral cer- 
 tainty, actually exclude every hy- 
 pothesis but the one to be proved. 
 
 The court said that it "states 
 the rule somewhat stronger -in 
 favor of the accused than our 
 previous decisions have gone, and 
 perhaps stronger than the law re- 
 quires," citing Jenktns v. State, 35 
 Fla. 737, 18 So. 182, 48 Am. St. 267; 
 Wlietson v. State, 31 Pla. 240, 12 
 So. 661; Kennedy v. State, 31 Fla. 
 289, 5 So. 805. 
 
 59— Bird V. State, 143 Fla. 541, 
 30 So. 655 (656). 
 
 The supreme court commented 
 as follows: 
 
 "The court gave, in connection 
 with and immediately following the 
 instruction, another, to the effect 
 that the accused is presumed to 
 be innocent of crime, and that pre- 
 sumption of innocence continues 
 throughout every state of trial un- 
 til it is overcome by evidence 
 which satisfies the jury of his guilt 
 beyond a reasonable doubt. In 
 other portions of the charge and 
 in the instructions given on behalf 
 of plaintiff in error the jury were 
 repeatedly told that they must not 
 convict the accused unless they be- 
 lieved from the evidence beyond a 
 reasonable doubt that he was 
 guilty. We are of opinion that, tak- 
 ing the entire instruction given to 
 the jury, the plaintiff in error has 
 no ground to complain of the al- 
 leged omission in the instructions
 
 1612 FORMS OF INSTRUCTIONS. [§ 2497. 
 
 (c) Before the jury can convict the defendant, they must be 
 satisfied to a moral certainty, not only that the proof is consistent 
 with the defendant's guilt, but that it is wholly inconsistent with 
 every other rational conclusion; and unless the jury are so convinced 
 by the evidence of the defendant's guilt that they would each ven- 
 ture to act upon that decision in matters of the highest concern and 
 importance to his own interest, then they must find the defendant 
 not guilty.*'*' 
 
 (d) To authorize a conviction upon circumstantial evidence alone, 
 the circumstances must not only all be in harmony with the guilt of 
 the accused, but they must be of such a character that they cannot 
 reasonably be true in the ordinary nature of things and the defend- 
 ant be innocent.*'^ 
 
 (e) The court instructs the jury that in order to warrant a con- 
 viction for crime on circumstantial evidence, the circumstances taken 
 together should be of a conclusive nature and tendency, leading on 
 the whole to a satisfaetoiy conclusion, and producing in effect a 
 reasonable and moral certainty that the accused and no one else com- 
 mitted the offense charged; and it is the invariable rule of laAV that 
 to warrant a conviction upon circumstantial evidence alone, such 
 facts and circumstances must be shown as are consistent with the 
 guilt of the party charged, and as cannot, upon any reasonable theory, 
 be true and the party charged be innocent; and in this ease if all 
 the facts and circumstances relied upon by the people to secure a 
 conviction can be reasonably accounted for upon any theory consist- 
 ent with the innocence of the defendant, then the jury should acquit 
 the defendant. **- 
 
 (f) The court instructs the jury, that it is an invariable rule of 
 law, that to Avarrant a conviction for a criminal offense upon circum- 
 stantial evidence alone, such a state of facts and circumstances must 
 be shown as that they are all consistent with the guilt of the party 
 charged, and such that they cannot, upon any reasonable theoiy, be 
 true and the party charged be innocent.*'^ 
 
 (g) In order that a jury may be warranted in finding a defendant 
 guilty on circumstantial evidence, all the facts and circumstances 
 necessary to establish the conclusion of guilt must be proved beyond 
 reasonable doubt, all such facts and circumstances must be consistent 
 Avith each other and with the, conclusion sought to be esitablished, 
 Avliieh is that the person on trial committed the crime as charged. All 
 such facts and circumstances must be inconsistent with any reasona- 
 ble theory of tlie innocence of the defendant, and such facts and cir- 
 cumstances, taken all together, must be of such conclusive and satis- 
 
 montlonofl, and that the instruc- 61— Horn v. State, 12 Wyo. 80, 73 
 
 tlon compliiined of is not faulty in Par. 705 (725). 
 
 the re.'ipect contended for." 62— Marzen v. People, 173 111. 43 
 
 60— Burton v. State, 107 Ala. 108, (62), 50 N. E. 249. 
 18 So. 284 (286), homicide case. 63— Beavers v. State, 58 Ind. 530; 
 
 Block V. State, 1 Tex. App. 368.
 
 § 2498.] CRIMINALr-EVIDENCB. 1613 
 
 factory nature as to produce in the minds of the jurors a reasonable 
 and moral certainty that the person on trial, and not some other 
 person, committed the offense charged.^* 
 
 (h) In criminal cases, where the prosecution rely upon circum- 
 stantial evidence alone for a conviction, it is not enough that all the 
 circumstances proved are consistent with and point to the defendant's 
 guilt. To authorize a conviction upon cii'cumstantial evidence alone, 
 the circumstances must not only all be in harmony with the guilt of 
 the accused, but they must be of such a character that they cannot 
 reasonably be true, in the ordinary nature of things, and the defend- 
 ant be innocent.^^ 
 
 (i) The test of the sufficiency of circumstantial evidence in a 
 criminal case is whether the circumstances, as proven, are capable of 
 explanation upon any reasonable hypothesis consistent with the de- 
 fendant's innocence, and, if they are capable of such explanation, 
 then the defendant should be acquitted.''^ 
 
 § 2498. No Reasonable Theory of Innocence Must Be Possible, 
 (a) It is necessary for the prosecution to show, under all circum- 
 stances, as a part of their own case, that there is no innocent theory 
 possible which will, without violation of reason, accord with the facts 
 jDroven in the case. Circumstances are never to be presumed. Each 
 fact making up the chain of circumstances must be proven beyond 
 a reasonable doubt. Circumstantial evidence is sufficient, and is often 
 more apt to convince the mind of the existence of a fact than the 
 positive evidence of a witness, who may be mistaken; whereas a con- 
 catenation and a fitness of many circumstances, made out by different 
 witnesses, can seldom be mistaken or fail to elicit the truth. But 
 then those circumstances should be as strong in themselves, should 
 each of them tend to throw light upon and prove each other, and the 
 result of the whole should be to leave no doubt upon the mind that 
 the offense has been committed, and that the accused, and no other, 
 could be the person who committed it.'^^ 
 
 (b) The court instructs you that when one seeks to convict on 
 circumstantial evidence, you must be satisfied of the guilt of the de- 
 fendant beyond a reasonable doubt, and the circumstances must 
 point to his guilt to the exclusion of any other reasonable hypothesis. 
 
 64— Galloway v. State, 44 Tex. 65— Com. v. Goodwin, 14 Gray 
 
 Cr. App. 230, 70 S. W. 211 (212). (Mass.) 55. 
 
 "In the latter clause of the 66— Bowen v. State, 140 Ala. 65, 
 
 charge we find this language: 'It 37 So. 233 (234). 
 
 is not permitted to jurors to re- "The test of the sufficiency of 
 ceive any evidence or consider any circumstantial evidence for con- 
 facts in the case except as shown viction, a^s laid down in the above 
 in, or deducible from, the testl- charge, is in substance the same as 
 mony of the witnesses.' This, tak- that which in Pickins v. State, 115 
 en in connection with the above Ala. 42, 50, 22 So. 551. was affirmed 
 quoted charge, certainly is all that to be correct. In the refusal of 
 appellant could insist upon." this charge there was error." 
 
 The court cited Chitister v. State, 67— People v. Foley, 64 Mich. 148, 
 
 33 Tex. Cr. App. 635, 29 S. W. 683; 31 N. W. 94 (99). 
 Lopez v. State. — Tex. Cr. App. — , 
 20 S. W. 395, 28 Am. St. 935.
 
 1614 FORMS OF INSTRUCTIONS [§ 2499, 
 
 That means no more than this: Having carefully considered all the 
 facts and circumstances, does your mind lead you, as reasonable men, 
 to the (fonclusion that this defendant is guilty of the offense? If it 
 does, and your minds come to that conclusion from the surroundings 
 in which he was placed, in reference to this matter, then it would be 
 your duty to write a verdict of * 'Guilty." But if, after having calmly 
 and carefully considered all the facts and circumstances of the case, 
 you have a reasonable doubt — that is to say, if you can say, "We 
 ought not to find the defendant guilty because we have a reasonable 
 doubt, from the evidence of his guilt," — then you will say, **Not 
 guilty," because he is entitled to the benefit of every reasonable 
 doubt. The state makes out its ease beyond a reasonable doubt, and 
 then, on the whole case as made out by the state and the defendant, 
 he is entitled to such doubt. ^^ 
 
 § 2499. A Single Inconsistent Fact Acquits. The jury are in- 
 structed that in cases of circumstantial evidence the jury must not 
 only be satisfied beyond a reasonable doubt that all the circumstances 
 proved are consistent with the defendant having committed the act, 
 but they must also be satisfied that the facts are such as to be in- 
 consistent with any other rational conclusion than that the defendant 
 is the guilty person. If there is any one single fact proved to the 
 satisfaction of the jury by a preponderance of the evidence, which is 
 inconsistent with the defendant's guilt, this is sufficient to raise a 
 reasonable doubt and the jury should acquit the defendant. ^'^ 
 
 § 2500. Circumstances Proven Must Be Consistent with One An- 
 other, and, Taking Together, Must Exclude Every Reasonable Hy- 
 pothesis of Innocence, (a) You are instructed that it is not neces- 
 sary to prove the defendant is guilty by the testimony of the wit- 
 nesses who may have seen the offense committed. Guilt may be 
 shown by proof of the facts and circumstances from which it may 
 be reasonable and satisfactorily inferred. In determining whether- 
 the defendant is guilty or not, you should take into consideration all 
 the facts and circumstances in evidence, the acts and conduct of the 
 defendant, and his motive, if any, for doing or not doing the act 
 charged as shown by the evidence; and if you find from all the facts 
 
 68 — State v. Jackson, 68 S. C. 53, failed to receive tlie impression 
 46 S. E. 538 (539). that the accused be convicted only 
 The court commented as follows: in case they were convinced no 
 "Where circumstantial evidence theory of the testimony could be 
 Is relied on, the absence of reason- adopted which could produce rea- 
 able doubt implies impossibility of sonable doubt. It is manifest this 
 explaining the evidence on any is the true view of the law. If the 
 roasonable hypothesis of innocence, defendant thought the statement 
 The effect of evidence not being not sufRciently clear, he should 
 Hufflcient to exclude every other have asked from the court more 
 reasonable hypothesis than guilt is specific instructions. State v. Mill- 
 to leave doubt of guilt more or less ing, 35 S. C. 16, 14 S. E. 234; State 
 strong, according to the circum- v. Davenport, 38 S. C. 348, 17 S. E. 
 8tancf-s of the particular case. Tak- 37." 
 
 Ing all the language here used to- 69— Horn v. State, 12 Wyo. 80, 
 
 gather, the jury could not have 73 Pac. 705 (725).
 
 § 2501.] CRIMINAL— EVIDENCE. 1615 
 
 and circumstances in evidence that there is no other reasonable con- 
 clusion than that he is guilty, you will so find; but to convict the 
 defendant on circumstantial evidence alone the circumstances proven 
 must be consistent with one another, and must, taken together, point 
 so conclusively to his guilt as to exclude every reasonable hypothesis 
 of his innocence,"*^ 
 
 (b) All the evidence produced by the state is circumstantial. 
 There is no direct or positive evidence that the defendant committed 
 the crime charged. And to warrant a conviction on circumstantial 
 evidence each fact necessaiy to the conclusion sought to be estab- 
 lished must be proven by competent evidence beyond a reasonable 
 doubt, and all the facts necessary to such conclusion must be con- 
 sistent with each other and with the main fact sought to be proved, 
 and the circumstances, taken together, must be of a conclusive na- 
 ture, leading on the whole, to a satisfactorj'^ conclusion, and produc- 
 ing, in effect, a reasonable and moral certainty that the accused and 
 no other person, committed the offense charged. The mere union of 
 a limited number of independent circumstances, each of an imperfect 
 and inconclusive character, will not justify a conviction. They must 
 be such as to generate and justify full belief according to the stand- 
 ard rule of certainty. It is not sufficient that they coincide with and 
 render probable the guilt of the accused, but they must exclude every 
 other reasonable hypothesis. No other conclusion but that of the 
 guilt of the accused must fairly and reasonably grow out of the 
 evidence, but the facts must be absolutely incompatible with inno- 
 cence, and incapable of explanation upon any other reasonable hy- 
 pothesis than that of guilt. '^^ 
 
 (c) Crime may be proven by circumstantial evidence, as well as by 
 direct testimony of eye-witnesses ; but the facts and circumstances in 
 evidence should be consistent with each other and with the guilt of 
 the defendants, and inconsis-tent with any reasonable theory of de- 
 fendants' innocence. "- 
 
 § 2501. Certainty Required, (a) The rule of law is, that to 
 warrant a conviction on a criminal charge upon circumstantial evi- 
 dence alone, the circumstances should be such as to produce nearly 
 the same degTee of certainty as that which arises from direct testi- 
 mony, and sufficient to exclude all reasonable doubt of the party's 
 guilt. The circumstances ought to be of such a nature as not to be 
 reasonably accounted for on the supposition of the prisoner's inno- 
 cence, but be perfectly reconcilable with the supposition of his guilt. '''^ 
 
 (b) And while it is true, in cases depending solely upon circum- 
 stantial evidence, that the circumstances should, to a moral certainty, 
 actually exclude every other reasonable hypothesis but the guilt of 
 
 70— State v. Heusack, 189 Mo. 72— State v. Hendricks, 172 Mo. 
 
 295. 88 S. W. 21 (27). 654. 73 S. W. 194 (196). 
 
 71— Colbert v. State, 125 Wis. 73— People v. Padillia, 42 Cal. 535. 
 423, 104 N. W. 61 (66).
 
 1616 FORMS OF INSTRUCTIONS. [§ 2502. 
 
 the accused — that is, beyond all reasonable doubt — yet if the facts 
 proven coincide with, and are legally sufficient to establish the truth 
 of, the hypothesis claimed, namely, the guilt of the accused, and are 
 inconsistent with eveiy other reasonable hypothesis, then the jury 
 would be authorized to convict, though upon circumstantial evi- 
 dence.'^* 
 
 § 2502. Circumstantial Evidence Need Not Be Conclusive — ^Degree 
 of Proof, (a) In cases of circumstantial evidence it is not neces- 
 saiy that the proof shall be conclusive; it is sufficient if the juiy be- 
 lieve from all the facts and circumstances of the ease that the ac- 
 cused is guilty, and that they have no reasonable doubts in their 
 minds of this fact. If the jury think that the facts in this case are 
 all consistent with the supposition that the prisoners are guilty, and 
 cannot reconcile the circumstances produced in evidence with any 
 other supposition than that of guilt, it is their duty to find them 
 guilty. All that can be required, is not absolute and positive proof, 
 but such proof as convinces them that the crime has been made out 
 against the accused beyond a reasonable doubt. ''^^ 
 
 (b) The court instructs the jury that, before they can convict 
 the defendant on circumstantial evidence alone, every material fact 
 neeessaiy to show the defendant's guilt must be proven beyond a 
 reasonable doubt, and that, if any material fact necessary in this case 
 to show the defendant guilty as charged in the indictment has not 
 been proven to the exclusion of a reasonable dovibt, you should ac- 
 quit this defendant.'^^ 
 
 § 2503. Only Inferences or Presumptions Necessarily Arising from 
 Proved Circumstances Should Be Considered. The jury are instructed 
 that, while circumstantial evidence is legal and proper evidence in 
 criminal cases, yet no inferences or presumptions should be indulged 
 in by a jury that do not in their minds necessarily arise from the cir- 
 cumstances proved. '^^ 
 
 S 2504. Conviction Upon Circumstantial Evidence Alone — Homi- 
 cide — Extenuating Circumstances. The jury is further instructed 
 that one charged with crime may be convicted by a jury upon circum- 
 stantial evidence alone, if the juiy believe to a moral certainty, be- 
 yond a reasonable doubt, by said circumstantial evidence, that the 
 person so charged is guilty of the crime alleged against him. There- 
 fore the court instructs the jury in this case that they have the right 
 to convict the defendant upon circumstantial evidence alone, if the 
 jury believe from the said circumstantial evidence the guilt of the 
 defendant to a moral certainty, beyond a reasonable doubt. And 
 the coui-t further instructs the jury that circumstantial evidence in 
 
 74— Smith v. State, 94 Ga. 591, 22 76— Alderson v. Commonwealth, 
 S. I<]. 214 (215). 25 Ky. L,. 32, 74 S. W. 679 (681). 
 
 7.':— Robertson v. State, 40 Fla. 77— Gnnnon v. People, 127 111. 
 
 509. 24 So. 474 (478), 52 L. R. A. 751. 507 (520), 21 N. E. 525, 11 Am. St. 
 
 Rep. 147.
 
 § 2505.] " CRIMINALr— EVIDENCE. 1617 
 
 criminal eases is not only competent evidence, but is sometimes the 
 only mode of proof, and therefore, if the jury believe, from the evi- 
 dence and circumstances in this case, to a moral certainty and be- 
 yond a reasonable doubt, that the defendant, S. S., with a deadly 
 weapon, gave to A. S. a mortal wound, without any provocation, 
 from which wound she died within a few days from the time it was 
 so inflicted, the said defendant, S. S., was guilty of willful, deliber- 
 ate and premeditated murder, unless he shows extenuating circum- 
 stances, or they appear by the case made by the state; and if he 
 fails to show extenuating circumstances, and they do not appear 
 from the case made by the state and all the evidence considered, the 
 jury should find him guilty of murder in the first degree.'^ 
 
 § 2505. What Must Be Proved in Order to Convict. The court 
 instructs the jury, as a matter of law, that where a conviction for a 
 criminal offense is sought upon circumstantial evidence alone, the 
 People must not only show by a preponderance of the evidence and 
 beyond a reasonable doubt, that the alleged facts and circumstances 
 are absolutely incompatible upon any reasonable hypothesis other 
 than that of the guilt of the accused.''^ 
 
 § 2506. Circumstantial Evidence — Weight of — How to Be Consid- 
 ered by the Jury, (a) The court instructs the jury that circumstan- 
 tial evidence is to be regarded by the jury in all cases. It is many 
 times quite as conclusive in its convincing power as direct and posi- 
 tive evidence of eye-witnesses. When it is strong and satisfactory, 
 the juiy should so consider it, neither enlarging nor belittling its 
 force. It should have its just and fair weight with the jury; and if, 
 when it is all taken as a whole, and fairly and candidly weighed, it 
 convinces the guarded judgment, the jury should act on such con- 
 viction. You are not to fancy situations or circumstances which do 
 
 78 — State v. Sheppard, 49 W. Va. sole consideration of the jury, un- 
 
 582, 39 S. E. 676 (686). less the evidence is clearly insuf- 
 
 "The instruction merely tells the ficient to warrant a verdict." 
 jury that, in order to find the de- 79 — Everett v. People, 216 111. 478 
 fendant guilty, they must believe, (486), 75 N. E. 188. 
 to a moral certainty and beyond a "This instruction," said the court, 
 reasonable doubt, that he did com- "fully covered the question, and 
 mit the crime, and that this con- we cannot conceive of any declara- 
 viction on their part must spring tion of law more pointed or em- 
 from the evidence and circum- phatic than the latter part of the 
 stances in the case, and that if, given instruction, where the jury 
 from it, they believed him guilty, are advised that the facts and cir- 
 they must so find, notwithstanding cumstances must be such as are 
 tJhe evidence was circumstantial, absolutely incompatible upon any 
 To hold this instruction improper, reasonable hypothesis other than 
 it would be necessary to say that that of the guilt of the accused, 
 there was no evidence in the case It would matter little how many 
 which the jury might consider, times that thought was expressed. 
 This would be an invasion of the Its clearness could hardly be ad- 
 province of the jury, for it would ded to, and with this instruction 
 be a determination upon the part given there was no occasion for the 
 of the court as to the weight of refused ones." 
 evidence. Which is a matter for the 
 102
 
 1618 FORMS OF INSTRUCTIONS. [§ 2507. 
 
 not appear in the evidence, but you are to make those just and rea- 
 sonable inferences from circumstances proven as the guarded judg- 
 ment of a reasonable man would ordinarily make under like circum- 
 stances.®" 
 
 (b) The value of circumstantial evidence depends upon the con- 
 elusive nature and tendency of the circumstances relied on to estab- 
 lish any controverted fact. They [the facts proven] must not only 
 be consistent with guilt but inconsistent with innocence. Such evi- 
 dence is insufficient where, assuming all to be proved which the evi- 
 dence tends to prove, some other reasonable hjrpothesis of innocence 
 may still be true, for it is the actual exclusion of every other reason- 
 able hypothesis but that of guilt which invests mere circumstances 
 with the force of proof. What circumstances will amount to proof 
 can never be matter of general definition; the legal test is the suffi- 
 ciency of the evidence to satisfy the understanding and conscience 
 of the juiy [beyond a reasonable doubt]. Absolute, metaphysical 
 and demonstrative certainty is not essential to proof by circum- 
 stances; it is sufficient if they, with all the other evidence, produce 
 moral certainty to the exclusion of every reasonable doubt. ®^ 
 
 § 2507. Weight of — As Conclusive as Direct, (a) Circumstan- 
 tial evidence is to be regarded by the jury in all cases. It is many 
 times quite as conclusive in its own convincing power as direct and 
 positive evidence of eye witnesses. When it is strong and satisfactory, 
 the jury should so consider it, neither enlarging nor belittling its 
 force. It should have its just and fair weight with the jury; and if, 
 when it is all taken as a whole, and fairly and candidly weighed, it 
 convinces the guarded judgment, the jury should act on such convic- 
 tion. You are not to fancy situations and circumstances which do 
 not appear in evidence, but you are to make those just and reasonable 
 inferences from circumstances proven which the guarded judgment 
 of a reasonable man would ordinarily make under like circum- 
 stances.^2 
 
 (b) The court instructs the jury that circumstantial evidence is 
 
 80 — State v. Elsham, 70 Iowa 531, The rule as announced has re- 
 31 N. W. 66 (68). ceived judicial sanction in many- 
 Si — Jenkins v. State, 35 Fla. 737, other jurisdictions. It does not ap< 
 18 So. 182, 48 Am. St. 267; Myers v. pear to us that it permits a con- 
 state, 43 Fla. 500, 31 So. 275 (280). viction on a preponderance of the 
 Words in brackets are modifica- evidence, as suggested. The jury 
 tions suggested by the editor of are told in other instructions that 
 this edition. tihey must be convinced of the 
 82— Smith v. State, 61 Nob. 296, truth of the charge beyond a 
 85 N. W. 49 (52). reasonable doubt. The instruction 
 "It occurs to us that this is a does not purport to speak of the 
 ronservative statement of the rule requisite degree of proof, but of 
 announced. The rule, stated in the consideration to be given cir- 
 Htrnnger language than in the cumstantial evidence, and the ef- 
 prosent instance, is approved in feet thereof. We find no error i.a 
 Dnvis V. State, 51 Neb. 301, 70 N. the giving of this instruction." 
 W. 984,
 
 §2508.] CRIMINAI^— EVIDENCE. 1619 
 
 legal and competent in criminal cases, and if it is of such a charac- 
 ter as to exclude every reasonable hypothesis other than that the 
 defendant is guilty, is entitled to the same weight as direct testi- 
 mOny.^2 
 
 (c) The evidence in this ease is what is known as "circumstan- 
 tial," that is, no person who has testified was an eye witness of the 
 alleged crime, and the state seeks to connect the defendant with the 
 crime by showing a chain of circumstances leading up to it, and 
 connected with it and the defendant; and this is circumstantial evi- 
 dence. And I will say to you that the evidence which has been re- 
 ceived in this case is legal and competent, and if it is, in your mind, 
 of such a character as to exclude every reasonable theory or hy- 
 pothesis other than that of the defendant's guilt beyond a reasonable 
 doubt, then and in that event it should be given the same weight by 
 3''ou as would direct evidence of the fact alleged Cir- 
 cumstantial evidence, when competent and when complete and satis- 
 fying to your minds, as has been charged, is entitled to the same 
 weight that direct evidence is.^* 
 
 § 2508. Credibility of Circumstantial Evidence, (a) The court 
 
 instructs the jury that in determining what facts are proven in this 
 case, you should carefully consider all the facts before you with all 
 the circumstances of the transaction in question as detailed by the 
 witnesses; and you may find any fact proven which you may believe 
 may be rightfully and reasonably inferred from the evidence given 
 in the case, although there may not be any direct testimony as to 
 such facts.^^ 
 
 (b) While the plaintiff must prove his case by a preponderance 
 of evidence, still the proof need not be the direct evidence of per- 
 sons who saw the occurrence sought to be proved, but facts may also 
 be proved by circumstantial evidence, that is, by proof of cii'cum- 
 
 83 — Longley v. Commonwealth, 99 petent in criminal cases, and, if it 
 
 Va. 807, 37 S. E. 339 (340). See al- is of such a character as to exclude 
 
 so Smith V. State, 94 Ga. 591, 22 S. every reasonable hypothesis other 
 
 E. 214 (215); Myers v. State, 43 Fla. than that the defendant is guilty, 
 
 500, 31 So. 278 (281). it is entitled to the same weight as 
 
 84 — State v. Coleman, 17 S. D. direct testimony." ' Schoolcraft v. 
 
 594, 98 N. W. 175 (180). People, 117 111. 277, 7 N. E. 649; 
 
 "The law is correctly stated United States v. Reder (D. C), 69 
 
 therein and such an instruction iu Fed. 965; Carlton v. People, 150 111. 
 
 a case dependent entirely upon cir- 181, 37 N. E. 244, 41 Am. St. Rep. 
 
 (cumstantial evidence seems emi- 846; 1 Greenleaf on Ev. (13th Ed.), 
 
 nently proper, as jurors sometimes See. 13 a." 
 
 get the impression that unless 85 — Moulton v. Gibbs, 105 111. App. 
 
 there is a direct testimony of the 104 (106). 
 
 guilt of the accused they cannot "If the refused instruction above 
 
 safely convict. should not be held as law ia every 
 
 "Sackett in his work on Instruc- case the value of circumstantial 
 
 tions to Juries gives the following evidence would be destroyed, and 
 
 as a correct instruction: 'The court no fact could be established save 
 
 instructs the jury that cii-cum- by positive or direct evidence." 
 stantial evidence is legal and com-
 
 1620 FORMS OF INSTRUCTIONS. [§ 2509. 
 
 stances, if any, sueli as give rise to a reasonable inference in the 
 minds of the jury of the truth of the facts alleged and sought to be 
 proved, provided such circumstances, together with all the evidence 
 in the case, constitute a preponderance of evidence.^*' 
 
 (e) This kind of evidence, when strong and convincing, is often 
 the most satisfactory from which to draw conclusions of the exist- 
 ence or non-existence of a disputed fact.^^ 
 
 § 2509. Murder May Be Proven By Facts and Circumstances At- 
 tending the Killing — Absence of Body, (a) The court instructs the 
 jui y that while it is necessary for the killing to be willful, deliberate, 
 premeditated, and with malice aforethought in order to constitute 
 murder in the first degree, yet these elements need not be proved by 
 direct evidence, but may be deduced from all the facts and circum- 
 stances attending the killing, and if you can satisfactorily and rea- 
 sonably infer their existence from all the evidence in the case, you 
 will be warranted in so finding.^^ 
 
 (b) The court instructs you that the absence of the infant, un- 
 accounted for, does not prove that it is dead.^^ 
 
 § 2510. Failure to Use Deadly Weapon at Hand. If the jury find 
 in this case that there was an opportunity to use a deadly weapon, but 
 that none was actually used, this circumstance should be considered 
 as evidence against willful and premeditated murder.^" 
 
 § 2511. Instruction When Testimony Is Largely Circumstantial. 
 
 You are further instructed in this case that there is no positive and 
 direct testimony of the defendant's guilt except as to the evidence 
 of the witness, B. The evidence against him is largely what is termed 
 in law circumstantial evidence.^^ 
 
 86 — ^U. S. Brwg. Co. v. Stolten- circumstantial evidence, in cases 
 
 berg-, 211 III. 531 (535), 71 N. E. of crime, is often the most satis- 
 
 1081. factory of any from which to draw 
 
 "Instructions of this character the conclusions of guilt;' and the 
 
 have been approved of by this court said it was not objectionable, 
 
 court in the following cases: N. C. and was in accord with the views 
 
 St. R. R. Co. V. Rodert, 203 111. of the ablest writers upon the sub- 
 
 413, 67 N. E. 812; Miller v. Bal- ject. 'In both cases (civil and crim- 
 
 thasser, 78 111. 302; Slack v. Harris, inal) a verdict may well be found- 
 
 200 111. 96, 65 N. E. 669; C. &. E. ed on circumstances alone, and 
 
 I. R. R. Co. v. Beaver, 199 111. 34, these often lead to a conclusion far 
 
 65 N. E. 144; Ch. & Atl. Ry. Co. more satisfactory than direct evi- 
 
 v. Carey, 115 111. 115, 3 N. E. 519." deuce can produce.' 1 Greenl. Ev. 
 
 87 — Wheeler v. Chicago M. & St. para. 13; Commonwealth v. Web- 
 
 P. Ry. Co., 85 la. 167, 52 N. W. ster, 5 Cush. 295, 52 Am. Dec. 711." 
 
 119 (122). 88— State v. Vaughan, 200 Mo. 1. 
 
 "We do not think this instruction 98 S. W. 2. 
 
 Is opr-n to the objection urged by 89 — Haynes v. State, — Miss. — , 
 
 appellant, as placing a higher value 27 So. 601 (602). 
 
 upon presumptions or inferences 90 — State v. Hunt, 134 N. C. 684, 
 
 than upon positive and dii-ect testi- 47 S. E. 49 (50). Held properly 
 
 mony. Furthermore, the instruc- given, the word "strong" before the 
 
 tioii Is fully sustained by the word "evidence" having been 
 
 authorities. In State v. Moelchen, stricken out first. 
 
 T,?. la. .310, 5 N. W. 186. an instruc- 91— State v. Haynes, 7 N. D. 352, 
 
 tiou was in this language: 'Strong 75 N. W. 267 (268).
 
 §2512.] CRIMINAL— EVIDENCE. 1621 
 
 § 2512. Inference of Fact, An inference must be founded on a 
 fact legally proved, and on such a deduction from that fact as is 
 warranted by a considei'ation of the usual propensities or passions of 
 men.^^ 
 
 When the evidence is circum- 92 — People v. Balkwell, 143 Cal. 
 stantial the court should so state 259, 76 Pac. 1017 (1019). 
 to the jury. "As this instruction was given in 
 
 Henderson v. State — Tex. Cr. the exact lang-uage of section 1960 
 App. — , 96 S. W. 37 (38), Code Civ. Proc. no just criticism 
 
 can be made upon it."
 
 CHAPTER LXXXVIII. 
 
 CRIMINAL— CONFESSIONS— DEFENDANT 'S TESTIMONY- 
 INDICTMENT. 
 
 See Erroneous Instructions, same chapter head, Vol. III. 
 
 § 2513. 
 
 § 2514. 
 § 2515. 
 
 § 2516. 
 § 2517. 
 
 § 2518. 
 
 3 2319. 
 3 2520. 
 
 § 2521. 
 
 § 2522. 
 5 2523. 
 
 § 2524. 
 
 § 2525. 
 5 2526. 
 
 5 2527. 
 
 5 2528. 
 § 2529. 
 5 2530. 
 S 2531. 
 
 § 2532. Confession voluntarily and 
 freely made and corrobo- 
 rated — Arson. 
 
 d:sfendant's testimony— rui.e 
 various states. 
 
 IN 
 
 Confessions of guilt— When 
 admissible — Value as evi- 
 dence—Jury judges of de- 
 gree of credit to which en- 
 titled. 
 
 Confessions must be treated 
 
 like other evidence. § 2533. Weighing defendant's testi- 
 
 Whole of confession must be mony— Rule in Alabama, 
 
 taken together considered Arkansas 
 
 with other evidence. | ^2^*- ^^f ^"^^.s- 
 
 Same subject - Defendant's 2o35. Cahfornia. 
 
 testimony on former trial. 2^o6. Colorado. 
 
 Defendant's admissions in » '^^J^'- ^^-onnecucut. 
 
 former civil suit-Incrimi- 2538. F onda. 
 
 nating questions. o-^n' r J,""'^' r.- n. ■ 
 
 Defendant's admission of § 2o40. Indiana-Indian Territory. 
 
 guilt-How to be consid- § 2541. Iowa-Dakota. 
 
 ered-Must be voluntarily f 2o42. Louisiana. 
 
 ^Q^^e § 2o43. Michigan. 
 
 Statements of defendant sat- § 2544. Mississippi, 
 
 isfactory as evidence. § 2o45. Missouri. 
 
 Confessions entitled to great § 2546. Nebraska, 
 
 weight when spontaneous, ^ 2547. New Mexico— Oklahoma, 
 
 voluntary and corrobor- f 2548. Washington. 
 
 a^|.g(j § 2549. West Virginia. 
 
 Casual statements by de- § 2550. Wisconsin— Wyoming, 
 fendant to third party § 2551. United States Courts, 
 weak as evidence. § 2552. Unsworn statement of de- 
 Confession sufficient to con- fendant — Georgia statute. 
 
 vict. § 2553. Defendant competent wit- 
 Confession must be corrobo- ness. 
 rated by other evidence. c occ^ -i-w <•„ \„^-i. „ ^ i.- -s^ 
 
 Confession received with § 2554. Defendant and his wife corn- 
 caution unless supported by petent _ witnesses-Weigh- 
 other proof. ^"^ .their testimony-Mis- 
 
 The phrase "has sought to souri. 
 
 prove" considered. § 2555. Defendant need not testify. 
 
 Confession induced by threat § 2556. Defendant's failure to testify 
 
 or promise by one in au- not to be taken against 
 
 thority. him — Louisiana. 
 
 Statements by one defendant §2557. Same subject — Mississippi, 
 
 when not admissible § 2558. Same subject— Missouri, 
 
 against co-defendants. § 2559. Same subject— Nebraska. 
 
 Statements of defendant as § 2560. Defendant's failure to testify 
 
 part of res gestae. not to be alluded to in 
 
 Statements of defendant at ^^^y,^ deliberations— Texas, 
 
 time of arrest. „ _,.^ -r^ ^ ^ .. •,<• n 
 
 Contradictory and inconsist- § 2a61. Defendant wilfully sworn 
 
 ent .statements. falsely. 
 
 Verbal confessions — How § 2562. Fabrication of testimony- 
 considered by jury. I By defendant. 
 1622
 
 §2513.] 
 
 CRIMINAL— CONFESSIONS. 
 
 1623 
 
 § 2563. Fabrication of evidence — 
 Used against accused. 
 
 § 2564. Admission of otiier crimes — 
 Indiana. 
 
 § 2565. Conduct of defendant. 
 
 INDICTMENT. 
 
 § 2566. Indictment not evidence. 
 
 § 2567. Indictment and statement of 
 counsel — Not evidence — 
 Testimony stricken out not 
 to be considered. 
 
 § 2568. Information mere formal ac- 
 cusation — No evidence of 
 guilt — Presumption of in- 
 nocence. 
 
 § 2513. Confessions of Guilt — When Admissible— Value as Evi- 
 dence—Jury Judges of Degree of Credit to Which Entitled. Regard- 
 ing confessions of guilt in criminal prosecutions, you will remember 
 that these are either indirect confessions, or confessions inferred from 
 the conduct, etc., of the accused, and termed ''indirect confessions of 
 guilt." Confessions of guilt should not be received where they are 
 not free and voluntary, but procured through the influence of threats 
 or the promise of favor. Both their admissibility and value depend 
 upon their being deliberate and voluntary, and on the presumption 
 that a rational being will no't make admissions prejudicial to his in- 
 terests and safety unless impelled to do so by the promptings of 
 truth and conscience. A confession of guilt reduced to writing, and 
 signed by the person making it, if deliberately made and signed, 
 without being influenced thereto by any threats and promises by 
 others, should be regarded in the absence of evidence to the con- 
 trary, as strong and convincing evidence in the case. The degree of 
 credit due to them is to be estimated by the jury under the circum- 
 stances of the particular case. The whole of what the accused said 
 on the subject at the time of making the confession should be taken 
 together. The jury may believe that part which criminates the ac- 
 cused and reject that which is in his favor or credit so much as is 
 in his favor and discard that which is against him, if they see suflS- 
 cient grounds, upon all the evidence, for so doing, for the jury are 
 at liberty to judge of it, like any other evidence, from all the proven 
 circumstances of the case.^ 
 
 § 2514. Confessions Must Be Treated Like Other Evidence. If the 
 jury believe, from the evidence, that the defendant made the confes- 
 sion, as alleged, and attempted to be proved in this case, the jury 
 should treat and consider such confession precisely as they would 
 any other testimony'; and hence, if the juiy believe the whole con- 
 fession to be true they should act upon the whole as true. But the 
 jurj' may believe part of the testimony and reject the balance if they 
 see sufficient grounds in the evidence for so doing; the jury are at 
 liberty to judge of it like other evidence, in view of all the circum- 
 stances of the case as disclosed by the evidence.^ 
 
 § 2515. Whole of Confession Must Be Taken Together, Considered 
 with Other Evidence, (a) The court instructs the jury that where 
 a confession of the prisoner charged with a crime is offered in evi- 
 
 l—State v. Brinte, 
 Atl. 258 (263). 
 
 Del. — , 58 2— Jackson v. People, 18 III. 269.
 
 1624 FORMS OF INSTRUCTIONS. [§ 2515. 
 
 dence, the whole of the confessions so oifered and testified to must 
 be taken together, as well that part which makes in favor of the 
 accused as that part which makes against him ; and if the part of the 
 statement which is in favor of the defendant is not disproved by other 
 testimony in the case, and is not improbable or untrue, considered in 
 connection with all the other testimony of the case, then that part 
 of the statement is entitled to as much consideration from the jury 
 as the parts which make against the defendant.^ 
 
 (b) The court instructs you that in considering the weight to be 
 given to any alleged confession made by defendant, you should con- 
 sider all the testimony in the ease upon that point, the position of 
 the defendant at the time, his surroundings, his strength of mind, as 
 shown bj' the evidence, and any hopes or fears, if any, that may have 
 influenced him.* 
 
 (c) You are instructed that, where the state puts a confession in 
 evidence, the whole of said confession is to be taken together, and 
 the state bound by it, unless it is shown by the evidence to be untrue 
 in whole or in part.*^ 
 
 (d) If you find from the evidence that the defendant made any 
 statement or statements in relation to the offense charged in the in- 
 dictment after such offense is alleged to have been committed, you 
 must consider such statement or statements all together. What the 
 defendant said against himself, if anything, the law presumes to be 
 true, because said against himself. What he said for himself, you 
 are not bound to believe because said in a statement or statements 
 proved by the state, but you may believe or disbelieve it, as it is 
 shown to be true or false by the evidence in the case. It is for you 
 to consider, under all the circumstances, from the evidence, how much 
 of the whole statement or statements of the defendant proved by the 
 state is worthy of belief.^ 
 
 3 — Refusal of this instruction charge was embezzlement, a some- 
 held error. Burnett v. People, 204 what similar instruction was ap- 
 111. 208 (225), 68 N. E. 505. proved. The court said in com- 
 
 4— People V. Wardrip, 141 Cal. 229, ment: 
 
 74 Pac. 744. "It appears from the testimony 
 
 5 — McKinney v. State, — Tex. Cr. in the record that the defendant 
 
 App. — , 88 S. W. 1012. made certain statements and ad- 
 
 "It was not necessary for the court missions as to the conversion of 
 
 •to have given this charge, since the money collected, and doubtless 
 
 there was other testimony than the his instruction was predicated upon 
 
 confession. However, the charge such statements. It was an appro- 
 
 of the court was in proper form, if priate instruction, based upon the 
 
 the confession was relied upon statements of defendant, and has 
 
 alone for conviction. Pharr v. met with uniform approval by this 
 
 State, 7 Tex. App. 472; Jones v. court. State v. Sushenberry, 157 
 
 State, 29 Tex. Cr. App. 20, 13 S. W. Mo. 168, 56 S. W. 737; State v. Wis- 
 
 990, 25 Am. St. 715; Slade v. State, dom, 119 Mo. bJ9, 24 S. W. 1047; 
 
 — Tex. App. — , 16 S. W. 253." State v. Hopper, 71 Mo. 425; State 
 
 6— State V. Brennan, 164 Mo. 487, v. West, 69 Mo. 401, 33 Am. Rep. 
 
 65 S. W. 325 (3:51). 506; State v. Carlisle, 57 Mo. 102." 
 
 In State v. Merkel, 189 Mo. 315, And in State v. Coats, 174 Mo. 
 
 87 S. W. 1186, a case where the 396, 74 S. W. 864 (869), the following
 
 ?2516.] CRIMINAL— CONFESSIONS. 1625 
 
 (e) The jurj are instructed, that where evidence is given tending 
 lo show admissions made by the defendant in a criminal case, the 
 defendant is entitled to have the whole statement or admission heard 
 and considered by the jury. But the jmy are not obliged to believe, 
 or disbelieve, all of such statement; they may disregard such parts 
 of it, if any, as are inconsistent with the other testimony, or which 
 the jury believe, from the facts and circumstances proved on the 
 trial, are untrue.'^ 
 
 (f) In considering the evidence as to the oral admissions of the 
 defendant touching the matters involving the offense with which he 
 is charged, you will take into consideration all the statements made 
 by him, whether for or against himself, and give such statements 
 fair consideration.^ 
 
 § 2516. Same Subject — Defendant's Testimony on Former Trial. 
 
 The court further instructs the juiy that in this case the People have 
 offered in evidence the testimony of the defendant, given by him on 
 his examination before the justice of the peace, for the crime for 
 which he is now on trial, and that the whole of the testimony so read 
 must be taken together, as well as that part which makes for the 
 accused, as that which may make against him, and if any part of 
 such testimony is in favor of the defendant, and is not apparently 
 improbable or untrue, when considered wiith all the other evidence 
 in the ease, then such part of his testimony is entitled to as much 
 consideration from the jury as any other part of his testimony. 
 The testimony so offered and read for the People, must be considered 
 as the testimony of the defendant in the case so far as it goes.^ 
 
 instruction, which is the same in- stances, how much of the whole 
 struction, a little more elaborate, statement or statements of the de- 
 was approved: fendant, proved by the state, the 
 The court instructs the jury that jury, from the evidence in this 
 if they believe and find from the case, deem worthy of belief. And 
 evidence that the defendant made if the jury believe, from the evi- 
 any statements in relation to the dence, that the defendant, at the 
 homicide charged by this informa- times he made the confessions or 
 tion, after such homicide was com- statements introduced in evidence, 
 mitted, the jury must consider such was insane, then they should disre- 
 statement or statements all to- gard such confessions or state- 
 gether. The defendant is entitled ments. 
 
 to the benefit of what he said for The court, in comment, said that 
 
 himself, if true; and the state is "it is sufficient to say as to this 
 
 entitled to the benefit of anything instruction that it has been ap- 
 
 he said against himself, if any proved by a uniform and unbroken 
 
 statement or statements proved by line of decisions of this court. State 
 
 the state. What the defendant said v. Talbott, 73 Mo. 347; State v. Hol- 
 
 against himself, the law presumes lenscheit, 61 Mo. 302; and numerous 
 
 to be true, because said against other cases." 
 
 himself. What the defendant said 7— Conner v. State, 34 Tex. 659; 
 
 for himself, the jury are not bound Riley v. State, 4 Tex. App. 538; 
 
 to believe because it was said in a Eiland v. State, 52 Ala. 322; State 
 
 statement or statements proved by v. Hollenscheit, 61 Mo. 302. 
 
 the state, but the jury may be- 8 — Approved in trinl for homi- 
 
 lieve or disbelieve it, as it is shown cide: People v. Wardrip, 141 Cal. 
 
 to be true or false by the evidence 229, 74 Pac. 744. 
 
 in this case. It is for the jury to 9— Gott v. People, 187 111. 249 
 
 consider under all the circum- (262), 58 N. E. 293.
 
 1626 rORMS OP INSTRUCTIONS. [a 2517. 
 
 §2517. Defendant's Admissions in Former Civil Suit — Incrimina- 
 ting Questions. The court instructs the jury that the fact that the 
 defendant testified in an insolvency proceeding in obedience to a 
 citation did not deprive him of his right to refuse to answer questions 
 tending to criminate him, if he did not answer any such questions; 
 and an admission made by him in such proceeding is voluntary and 
 competent evidence in a criminal prosecution subsequently inaugu- 
 rated, where he w'as not in custody or charged with a criminal offense 
 when he made such admission, if he did make any sueh.^'' 
 
 § 2518. Defendant's Admission of Guilt— How to Be Considered- 
 Must Be Voluntarily Made, (a) If a person accused of a crime 
 voluntarily admits the accusation, that is very strong evidence of 
 his guilt, because it would be unnatural for a person accused of crime 
 to voluntarily admit the accusation against himself, knowing that it 
 would be used against himself, unless he committed the crime ; and 
 the only exception to that rule would be where a person is so coerced, 
 or under such duress or restraint, as that he would make a confes- 
 sion or admission involuntarily, and not of his own free wull. The 
 court has permitted the evidence in this case to come to the jury 
 that the jury might take it, analyze it, and weigh it, to see what 
 is the truth of the matter; and, if the confession or admission was 
 made, for what purpose, with what motive, and if it was true. You 
 have the right to take into consideration the testimony of the re- 
 spondent in this case on that branch of the case, as upon all other 
 branches of the ease.^^ 
 
 (b) In regard to the evidence of the confession of the defendant 
 made to the sheriff, if you believe there was any such confession 
 made, and you find that such confession was free and voluntarily 
 made by the defendant, after he had been cautioned that such con- 
 fession might be used against him, then you will consider the same; 
 but if you believe that the defendant made such confession, but it 
 is not shown to be freely and voluntarily made, or if it is shown by 
 the evidence to haye been made upon compulsion or persuasion, or 
 under such undue influence as to extort the same, then I charge you 
 that you will reject it from your consideration in making up your 
 verdict in this case. Should you consider such confession or declara- 
 tion, then I charge you that, such confession or declaration having 
 been introduced in evidence by the state, the whole of such confes- 
 sion or declaration must be taken together, and so considered by the 
 jurs'; and the state is bound by them, unless they are shown to be 
 untrue by the evidence. Such confessions or declarations, if any, you 
 believe to have been made by the defendant, are to be taken into 
 consideration, if at all, by the jury, in connection with all other 
 facts and circumstances of the case. The state having put in evi- 
 dence the statement and confession of the defendant, J. M., con- 
 
 10— State V. Burrell, 27 Mont. 282, 11— People v. Rich, 133 Mich. 14, 
 70 Pac. 982 (983). 94 N. W. 375 (376-7).
 
 § 2519.] CRIMINAL— CONFESSIONS. 1627 
 
 cerning the transaction, you cannot convict the defendant unless you 
 be satisfied beyond a reasonable doubt that the defendant's account 
 of the affair, as stated in such confession, is not true.^^ 
 
 § 2519. Statements of Defendant Satisfactory as Evidence. The 
 court instructs the jury that declarations of a defendant regarding 
 his connection with any transaction, when fully and accurately 
 proven, constitute a very satisfactory kind of evidence. ^^ 
 
 § 2520. Confessions Entitled to Great Weight When Spontaneous, 
 Voluntary and Corroborated, (a) If you believe from the evidence 
 that the confessions or admissions testified to by the witnesses as 
 having been made to them by the defendant were so made, and that 
 they were the spontaneous and voluntaiy acts of the defendant, and 
 if you further believe that such confessions have been corroborated 
 by satisfactory proof that the said T. S. was murdered, and that the 
 defendant was so situated that he had an opportunity to commit 
 the crime, then such confessions and admissions may be entitled to 
 great weight in your minds ; and if you believe from all the evidence 
 beyond a reasonable doubt that the defendant is guilty, then you 
 should so find by your verdict.^* 
 
 (b) The court instructs you that a confession, to be admissible, 
 must have been freely and voluntarily made. It must not have been 
 induced by another by the remotest fear of injury, or the slightest 
 hope of benefit or reward, or anything whatever. It must have been 
 freely and voluntarily made. It is for you to say from the evidence 
 now, if you find there is any evidence in reference to confessions in 
 this ease, whether they were voluntarily made. It is for you to 
 judge from the evidence, and see whether or not it comes up to the 
 rules I have just given you in reference to whether or not it was 
 freely and voluntarily made by the accused, provided you find there 
 is any evidence of a confession before you. A confession alone, 
 \;ncorroborated, will not justify a conviction, but the confession may 
 be corroborated by other facts and circumstances. Now, in this case, 
 I charge you that, if you find that any confession has been made, 
 see whether or not it was freely and voluntarily made, under the 
 law as I have told you. Then, if you find it has been freely and vol- 
 untarily made, you may consider it in connection with other evidence 
 in the case.^^ 
 
 § 2521. Casual Statements by Defendant to Third Party Weak 
 as Evidence. Statements or admissions of a party satisfactorily 
 
 12— Moore v. State, 44 Tex. Cr. crime, 'fully and accurately 
 
 App. 45, 68 S. W. 279 (281). proven' would surely be very satis- 
 
 13— State v. Johnson, 72 la. 393, 34 factory, for no rational man would 
 
 N. W. 177 (180). ordinarily make such statenr.ents if 
 
 "The language is the ground of he were innocent." 
 
 an objection which we think is not 14— State v. Haworth, 24 Utah 
 
 well taken. Any declaration or 398. 68 Pac. 155 (164). 
 
 statement made by defendant 15— Powell v. State, 101 Ga. 9, 29 
 
 showing his connection with the S. E. 309 (313), 65 Am. St. 277.
 
 1628 FORMS OF INSTRUCTIONS. [§ 2522. 
 
 proven, which bear upon or give character to the aots of a party, or 
 throw light upon a pending controversy, are proper to be considered 
 by the jury; but evidence of casual statements or admissions of a 
 party, made in casual conversation to disinterested persons, should 
 be considered with caution by the jury, in determining the weight to 
 be given them, in view of the liability of witnesses to misunderstand 
 or forget just what was said, depending upon all the surrounding cir- 
 cumstances.^^ 
 
 § 2522. Confession Sufficient to Convict. If the jury believe from 
 the evidence, beyond a reasonable doubt, that in this county, and 
 within three years before the finding of this indictment, M. had 18 
 or any number of cows feloniously taken and carried away, and that 
 the defendant T. confessed that he was one of the persons engaged in 
 such felonious taking and eariying away of said cows, this is suffi- 
 cient to authorize the conviction of the defendant, without regard 
 to the testimony of the accomplice.^^ 
 
 § 2523. Confession Must Be Corroborated by Other Evidence. 
 The jury are instructed that they cannot convict defendant alone 
 upon his own confession, unless the same is corroborated by other 
 evidence tending to connect defendant with the offense committed, 
 and the corroboration is not sufficient if it merely shows the com- 
 mission of an offense.^* 
 
 § 2524. Confession Received with Caution Unless Supported by- 
 Other Proof, (a) The court further instructs the jury, for the de- 
 fendant, that, if they believe from the evidence that the prisoner 
 made any confessions or admissions of guilt, such confessions are to 
 be received by them with great caution, and, unless supported by 
 other proof in the case, are not sufficient to convict. ^^ 
 
 (b) In making up your verdict you have a right to consider any 
 statements shown to have been made by the defendant after the 
 charge was made against him, but in considering such statements 
 you must consider the whole statements of conversation together. 
 He is entitled to the benefit of what he said in his own behalf, if 
 
 16— Emery v. State, 101 Wis. 627, might have gone further and said 
 
 78 N. W. 145 (154). that evidence of admissions made 
 
 The court said: "The charge to third and disinterested persons 
 
 criticised is free from error. It is is the wealcest kind of evidence 
 
 a literal copy of one considered by that can be produced.' As before 
 
 this court in Haven v. Marlistrum, indicated that is elementary. 1 
 
 67 Wis. 493, 30 N. W. 720, except Greenl. Ev. (Redf. 8th Ed.) para, 
 
 that, instead of the language im- 200; Dreher v. Fitchburg, 22 Wis. 
 
 mediately following the words 'dis- 643; and Husbrook v. Strawser, 14 
 
 interested per.sons,' that is, 'should Wis. 403." 
 
 be considered by the jury in deter- 17— Crittenden v. State, 134 Ala. 
 
 mining the weight to be given to 145, .32 So. 273 (275). 
 
 them,' the following is used: 'Are Note. — See next section, 
 
 regarded by law as very weak tes- 18— Cox v. State, — Tex. Cr. App. 
 
 timony.' The court not only ap- — , 69 S. W. 145 (147). 
 
 proved of that instruction, saying Note. — See previous section. 
 
 It was strictly accurate as far as 19 — Haynes v. State, — Miss. — , 
 
 It went, but said 'the trial court 27 So. 601.
 
 § 2525.1 CRIMINAL— CONFESSIONS. 1629 
 
 you believe it is true ; but, if you do not believe it is true, you are not 
 bound to believe and consider it because proven by the state. You 
 should consider such statement, however, with caution, on account 
 of the liability of the witness to forget or misunderstand what was 
 really said or intended.^" 
 
 §2525. The Phrase, "Has Sought to Prove," Considered. The 
 state has sought to prove the defendant's guilt by introducing cer- 
 tain alleged confessions and admissions, and by showing that he was 
 seen, after the burglary, cari-ying something under his coat.^^ 
 
 § 2526. Confession Induced by Threat or Promise by One in Au- 
 thority. The court instructs the jury that no confession is deemed to 
 be voluntary if it appears to the judge to have been caused by any 
 inducement, threat or promise proceeding from a person in authority, 
 and having reference to the charge against the accused person, 
 whether addressed to him directly or brought to his knowledge in- 
 directly, and if such inducement, threat or promise gave the accused 
 person reasonable grounds for supposing that by making a confession 
 he would gain some advantage or avoid some evil in reference to the 
 proceedings against him. The prosecutor, officers of justice having 
 the prisoner in custody, or magistrate are persons in authority. It is 
 time for the jury to determine for themselves whether the alleged 
 confession of the defendant was made freely and voluntarily without 
 any influence of hope or fear. If so, they may consider it. If not, 
 it is no evidence. Any — the slightest — menace or threat, or any hope 
 engendered or encouraged that the prisoner's case will be lightened 
 or more favorably dealt Avith if he will confess, is enough to exclude 
 the confession thereby superinduced; and any words spoken in the 
 hearing of the prisoner which may, in their nature, engender such 
 fear or hope, render it necessary that a confession made within a 
 reasonable time afterwards shall be excluded, unless it is shown by 
 clear and full proof that the confession was voluntarily made after 
 all trace of hope or fear had been fully withdrawn or explained 
 away.^- 
 
 § 2527. Statements by One Defendant ; When Not Admissible 
 Against Co-Defendants, (a) You are further instructed that all 
 statements made by the witness, R., made to the witnesses, W., M. 
 and K., and not in the presence of defendant, were admitted solely 
 
 20 — State v. Weber, 156 Mo. 249, The phrase 'has sought to prove 
 
 56 S. W. 729. * * * by showing,' very clearly, is 
 
 21 — Connors v. State, 95 Wis. 77, not equivalent, either grammatic- 
 
 69 N. W. 981 (982). ally or in the common usage of the 
 
 "It is claimed," said the court, language, to the phrase 'has shown' 
 
 "that this instruction took the or 'has proved.' And it should not, 
 
 question from the jury. It is said naturally, be so understood by the 
 
 to be equivalent to an instruction jury." 
 
 that he was so seen. A very simple 22 — People v. Clarke. 105 Mich, 
 
 analysis will clearly show that this 169, 62 N. W. 1117 (lllS). 
 is not the effect of the instruction.
 
 1630 FORMS OF INSTRUCTIONS. [§ 252S. 
 
 1113011 the issue of the guilt or innocence of defendant, R., and can- 
 not be considered by you for any o'ther purpose, if for any purpose.-'' 
 
 (b) After the commission of a crime has been accomplished, no 
 one engaged in it can, by any subsequent declaration or act of his 
 own, not made or done in the presence of another, affect that other 
 person. His confession, therefore, is not admissible in evidence as 
 such against any but himself. If the confession of one prisoner im- 
 plicates any other person by name, it must be proved as it was made, 
 not omitting such name ; but the court should instruct the jury, as we 
 do you, that it is not evidence against any but the prisoner who 
 made such confession. 2* 
 
 § 2528. Statements of Defendant as Part of Res Gestse. Declara- 
 tions accompanying the act, or so nearly connected therewith, in 
 time, as to be free from all suspicion of device or afterthought, are 
 admissible in evidence as part of the res gestee, and subject to be 
 judged and weighed by the jury under the same rules which I have 
 given you for weighing and considering other evidence in 
 the case ; that is, the connection of the defendant with the ease, 
 his interest in it, whether such declarations are consistent through- 
 out, or are conflicting with themselves or other facts. ^^ 
 
 § 2529. Statements of Defendant at Time of Arrest. Some evi- 
 dence has been offered of statements made by the defendant at the 
 time of his arrest, and I charge you in relation thereto that such 
 statements made at the time of the arrest are to be received with 
 great caution; for besides the danger of misapprehension of witness, 
 or the misuse of words, the failure of the party to express his own 
 meaning, and the infirmity of memory, it should be recollected that 
 the mind of the prisoner himself is often oppressed by the calamity 
 of his situation, and that he is often influenced by motive of hope 
 or fear to make statements. ^"^ 
 
 § 2530. Contradictory and Inconsistent Statements. It is claimed 
 by the prosecution that the defendant has made different and con- 
 tradictory and inconsistent statements concerning his whereabouts 
 for one or two hours immediately before the fire in question ; but, 
 even if defendant did make such contradictory statements, and they 
 were partially or wholly false, that, of itself, would not be sufficient 
 to convict the defendant; and you should very carefully consider 
 what the average young man of his condition in life might do under 
 
 23 — Wilkerson v. State, — Tex. the charge as a whole is a clear, 
 
 Cr. App. — , 57 S. W. 956 (962). correct and proper presentation of 
 
 "The olojection of appellant to the law of this case." 
 
 this paragraph is that it is upon 24 — State v. Brinte, — Del. — , 58 
 
 the weight of the evidence, in that Atl. 258 (263), citing 1 Greenleaf on 
 
 it assumes as a fact proven that Evidence, Sees. 218, 233. 
 
 the witness R. did make statements 25— Hinkle v. State, 94 Ga. 595, 21 
 
 to W. M. and K., which tended to S. K. 595 (601). 
 
 establish the guilt or innocence of 26 — People v. McArron, 121 Mich, 
 
 said R. We do not think these con- 1, 79 N. W. 944 (958). 
 tentlous are correct, but believe
 
 § 2531,] CRIMINAL— CONFESSIONS. 1631 
 
 like trying eireumstanees ; and in this connection you should recall 
 the fact that the young men, C. and M., were both quickly ready to 
 resort to falsehood for the purpose of warding away suspicion, not- 
 withstanding their acknowledged innocence ; and now, gentlemen, if 
 you should believe that this defendant made contradictory state- 
 ments, and that some of them, or all of them, were false, it will not 
 be unnatural that such belief on your part may create prejudice in 
 your minds against this defendant. If such should be the ease, it 
 will be your duty to exercise great care that you do not permit that 
 prejudice to take the place of and be substituted in your minds for 
 actual evidence and proof of all the necessary facts to constitute the 
 chain necessaiy to establish the defendant's guilt.-'' 
 
 § 2531. Verbal Confessions — How Considered by Jury, (a) Any 
 verbal statements or admissions made by the defendant and which 
 have been proven in this case, may be taken into consideration by 
 you, together with all other facts and circumstances detailed in evi- 
 dence. What the proof may show you, if anything, that the defend- 
 ant has said against himself, the law presumes to be true, because 
 said against himself; but anything you may believe from the evi- 
 dence that defendant said in his own behalf you are not obliged to 
 believe, but you may treat the same as tiiie or false, when considered 
 with a view to all the other facts and circumstances in the case.-^ 
 
 ('b) The court further instructs the juiy that, if verbal statements 
 of the defendant have been proven in this case, you may take them 
 into consideration with all the other facts and circumstances proven. 
 What the proof may show you, if anything, that the defendant has 
 said against himself, the law presumes to be true; but anything you 
 may believe from the evidence that the defendant has said in his 
 own behalf you are not obliged to believe, but you may treat the 
 same as true or false, when considered with a view to all the other 
 facts and circumstances in the case.-^ 
 
 § 2532. Confession Voluntarily and Freely Made and Corroborated 
 — Arson. If the evidence be clear and decisive, satisfj'ing your minds 
 beyond a reasonable doubt that the storehouse was willfully and ma- 
 liciously burned, and if you believe that the defendant voluntarily 
 and freely confessed that he did it, then such a confession thus cor- 
 roborated may, in your discretion, serve as sufficient corroboration 
 to authorize a conviction.^" 
 
 27 — Held error to refuse this "while the court did not charge as 
 
 charge. People v. Stewart, 75 Mich, to the specifications set out in the 
 
 21, 42 N. W. 662 (665). defendant's statement as to the 
 
 28 — State v. Darling, 199 Mo. 168, reason for the fear causing him to 
 
 97 S. W. 592. make the confession, he did thor- 
 
 29 — Approved in homicide case; oughly cover that branch of the 
 
 Ptnte V. Gatlin, 170 Mo. 354 (364), 70 case. He instructed the jury that 
 
 S. W. 885 (888). they must not consider any con- 
 
 30— Morgan v. State, 120 Ga. 499, fession unless they were satisfied 
 
 48 S. E. 238 (240). that it had been made freely and 
 
 The court said in comment that voluntarily; that they were not con-
 
 1632 
 
 FORMS OF INSTRUCTIONS. 
 
 [§ 2533, 
 
 DEFENDANT'S TESTIMONY. 
 
 § 2533. Weighing Defendant's Testimony — Rule in Alabama. 
 
 The jury have no right to disregard the testimony of the defendant 
 on the ground alone that he is a defendant, and stands charged with 
 the commission of a crime. The law presumes the defendant to be 
 innocent until he is proved guilty; and the law allows him to testify 
 in his own behalf, and the jury should fairly and impartially consider 
 his testimony, together with all the other evidence in the case, and if, 
 from all the evidence, the jury may have any reasonable doubt 
 whether, at the time of the shooting complained of, the pistol was 
 accidentally discharged, they should give the defendant the benefit 
 of the doubt and acquit him.^^ 
 
 § 2534. Arkansas. The court instructs the jury that under the 
 law the defendant, B., has the right to testify in his own behalf, but 
 the credibility and weight to be given his testimony are matters ex- 
 clusively for the jury. In weighing the testimony of the defendant 
 in the case, you have a right to take into consideration his manner 
 of testifying, the reasonableness or unreasonableness of his account 
 of the transaction, and his interest in the result of your verdict as 
 affecting his credibility. You are not required to receive blindly the 
 testimony of the accused as true, but you are to consider whether it 
 is true, and made in good faith, or only for the purpose of avoiding 
 eonviction.^2 
 
 eluded by the fact that evi- 
 dence of confessions had been ad- 
 mitted, but that if, from the evi- 
 dence, they found that the confes- 
 sion had not been freely and volun- 
 tarily made, they should disregard 
 it. The court went further, and 
 charged that if one confession had 
 been induced by hope or fear, and 
 was therefore not voluntary, no 
 subsequent confession could be con- 
 sidered, if made under the influ- 
 ence of the orig-inal improper in- 
 ducement." 
 
 31— Moses v. State, 58 Ala. 117; 
 see also Nelson v. Vorce, 55 Ind. 
 455; Bressler v. People, 117 111. 441, 
 8 N. E. 62. In Bohlman v. State, 
 l.'JS Ala. 45, 33 So. 44, the following 
 instructions were approved: 
 
 The court charges the jury that 
 in determining the weight they 
 will give to the defendant's testi- 
 mony they should consider, along 
 with all the other circumstances 
 having any bearing on the matter, 
 the fart that he is the defendant, 
 and, In fact, if they so find, that 
 
 his testimony is in conflict with the 
 other testimony in the case. 
 
 The court charges the jury that 
 the interest the defendant has in 
 the case may be considered by 
 them in weighing his own evidence. 
 
 Approved in Miller v. State, 107 
 Ala. 40, 19 So. 37 (38). 
 
 32— Blair v. State, 69 Ark. 558, 
 64 S. W. 948 (950). 
 
 Such instructions have been re- 
 peatedly held by this court to be 
 correct. Vaughan v. State, 58 Ark. 
 353, 24 S. W. 885; Jones v. State, 61 
 Ark. 88, 32 S. W. 81; Hamilton v. 
 State, 62 Ark. 543. 36 S. W. 1054." 
 
 In Hudson v. State, 77 Ark. 334, 
 91 S. W. 299, the following instruc- 
 tion was held good: 
 
 The defendant has the right to 
 testify, and the jury should give 
 his testimony the same impartial 
 consideration that they accord to 
 the testimony of other witnesses. 
 They should not arbitrarily disre- 
 gard what he testifies simply be- 
 cause he is the defendant, nor, on 
 the other hand, are they required
 
 §2535.] 
 
 CRIMINAL— CONFESSIONS. 
 
 163c 
 
 § 2535. California. In considering the weight and effect to be 
 given to the evidence of the defendant, while you may consider his 
 manner, and the probability of his statements, taken in connection 
 with all the evidence in the case, and, if convincing and carrying 
 with it a belief in its truth, act upon it; if not, you have the right to 
 reject. But this does not mean that you have a right to arbitrarily 
 reject it. And, in judging of the defendant who has testified before 
 you, you are in duty bound to presume that he has spoken the truth; 
 and, unless that presumption has been legally repelled, his evidence 
 is entitled to full credit.^^ 
 
 § 2536. Colorado. The jury are instructed that, in determining 
 the credibility that should be accorded to the testimony of the de- 
 fendant, they have a right to take into consideration the fact that he 
 
 blindly to receive a fact because 
 he says it is true; but they are to 
 consider his testimony in connec- 
 tion with the other facts in proof, 
 in order to determine whether his 
 statements are true and made in 
 good faith, or made only to avoid 
 conviction. The jury ,ire the ex- 
 clusive judges of the weight of juch 
 testimony. In considering the de- 
 gree of credit to be given it, they 
 may take into consideration his 
 appearance and manner while tes- 
 tifying, the reasonableness and un- 
 reasonableness of his statements, 
 and his interest in the result of the 
 verdict. After a due consideration 
 of his testimony, in connection with 
 the other evidence in the case, they 
 should give it such weight as they 
 may deem it entitled to receive, 
 their sole object being to ascertain 
 the truth. 
 
 33— People v. Hill, 1 Cal. App. 414, 
 82 Pac. 398 (399). 
 
 "The appellant complains of this 
 instruction, but there is no merit 
 in such complaint. People v. Wells, 
 145 Cal. 138, 78 Pac. 470. The lan- 
 guage, 'if convincing and carr>-ing 
 with it a belief in its truth, act 
 upon it,' is found in the instruc- 
 tion in the Cronin case, 34 Cal. 
 196, and that case has been often 
 affirmed upon this point." 
 
 In People v. Wells, 145 Cal. 138, 
 78 Pac. 470 (471), the following in- 
 struction was given: 
 
 The court instructs the jury that 
 the defendant h!is been examined 
 as a witness in his own behalf. This 
 it is his right to be, and the jury 
 will consider his testimony as they 
 would that of any other witness 
 examined before you. It is proper 
 for the jury, however, to bear in 
 
 103 
 
 mind the situation of the defend- 
 ant, and the manner in which he 
 may be affected by the verdict, and 
 the very grave interest he must 
 feel in it; and it is proper for the 
 jury to consider whether his posi- 
 tion anJ interest may not affect 
 his credibility or color his testi- 
 mony. But it is your duty to con- 
 sider it fairly and give it such 
 credit and weight as you think it 
 is entitled to receive. 
 In comment the court said: 
 "Appellant's counsel objects to 
 the above instruction on the ground 
 that it is unfair to the defendant 
 and that it invades the province 
 of the jury. He admits that it is 
 substantially the same as the one 
 approved in People v. Cronin. 34 
 Cal. 204, but he thinks that case is 
 not good law and should be modi- 
 fied. In the recent case of People 
 V. Tibbs, 143 Cal. 100, 76 Pac. 904, 
 however, this court said of a simi- 
 lar instruction: 'This instruction 
 was in effect the same as an in- 
 struction given in the case of Peo- 
 ple v. Cronin, and there held to be 
 correct. It has since been fre- 
 quently held that where this in- 
 struction, though it may be re- 
 garded as erroneous, if kept well 
 within the language considered in 
 the Cronin case, the judgment will 
 not be reversed on account of it. 
 People V. Van Ewan, 111 Cal. 144, 
 43 Pac. 520. It only undertakes to 
 lay down the guidance of the jury 
 a matter that they would be apt 
 to know about and act upon with- 
 out any such instruction.' " 
 
 Note.— From the comment it 
 seems it 'has not the unqualified 
 approval of the court.
 
 1634 FORMS OF INSTRUCTIONS. [§ 2537. 
 
 is interested in the result of the prosecution, as well as his demeanor 
 and conduct upon the witness stand and during the trial.^* 
 
 § 2537. Connecticut, He is to be regarded by you as every other 
 witness is to be regarded. You are to take into consideration his 
 appearance, his manner of testifying, the reasonableness of his story, 
 and, above all, you are to take into consideration the fact that he is 
 the accused in the case ; and, taking those facts into consideration, 
 you are to give to his statements in court, or any statements made 
 by him out of court, such effect and such force as you think they 
 justly should have.^^ 
 
 § 2538. Florida. Defendants in criminal eases have the right to 
 take the stand and testify in their own behalf, the same as any other 
 witnesses, and their testimony goes to you to be weighed and judged 
 upon the same rules as you would judge the evidence of any other 
 witness testifying in the case. In weighing the testimony of any wit- 
 ness you should take into consideration the interest, if any, the 
 witness may have in the result testified about; the reasonableness or 
 unreasonableness of the testimony as judged by your canons of com- 
 mon sense ; the manner of the witness on the witness stand ; and, in 
 fact, all the circumstances surrounding the witness are to be con- 
 sidered by you in arriving at your judgment on this matter. If, after 
 carefully and conscientiously considering, on your oaths as jurors all 
 the evidence in the case, you have a reasonable doubt of the guilt 
 of the defendant, you must, under your oaths as jurors, give him 
 the benefit of such doubt and acquit him. If, on the other hand, 
 after such careful and conscientious consideration, you feel that you 
 have an abiding conviction to a moral certainty that the charge is 
 true, then the charge has been made out to the exclusion of and 
 
 34 — Boykin v. People, 22 Colo. 496, the Purdy cases. A critical exami- 
 
 45 Pac. 419 (420), hoi.-icide. nation of the decision in the Purdy 
 
 "The instruction given by the case shows that the defendant was 
 trial court, as to that part now the only witness in his own behalf, 
 under consideration, is identical and this fact, and the further fact 
 in language with one approved by that the court was in grave doubt 
 the supreme court of Illinois in as to the sufficiency of the circum- 
 Hirschman v. People. 101 111. 568, stantial evidence to warrant a con- 
 and also in Rider v. People, 110 111. viction, led the court to hold that 
 11. In the subsequent case of Purdy the instruction did not fully and 
 V. People, 140 111. 46, 29 N. E. 700, fairly submit to the jury the ques- 
 an instruction containing the same tion of defendant's credibility. "We 
 language is condemned as to the are unable to harmonize the de- 
 words 'during the trial.' Again in cision in the Purdy case with the 
 Riebert v. People, 143 111. 571. 32 two earlier cases, unless the former 
 N. E. 431, the same instruction, rule announced is to be confined to 
 omitting, however, the words 'dur- the peculiar state of facts of that 
 Ing the trial," received the sanction case, and possibly, as so restricted, 
 of the court, which, in the imme- it might not be objectionable. We 
 diate connection, refers approving- are, however, of the opinion that 
 ly to the two cases supra, from 101 the instruction as given by the trial 
 and 110 111., and says that there court in the case at bar is correct, 
 was no intention in the Purdy case certainly as applicable to the facts 
 to change the rule of law in said in this case." 
 
 two earlier cases, and that there 35 — State v. Piske, 63 Conn. 388, 
 
 was no conflict between them and 28 Atl. 572 (573).
 
 2539. 
 
 CRIMINAL— CONFESSIONS. 
 
 1635 
 
 bej-ond a reasonable doubt, and it is then equally your duty to con- 
 vict the defendant.-''*^ 
 
 § 2539. Illinois. The defendant is a competent witness in her 
 own behalf, and you have no right to discredit her testimony from 
 caprice, nor merely because she is the defendant. You are to treat 
 her the same as any other witness, and subject her to the same tests, 
 and only the same tests, as are legally applied to other Avitnesses; 
 and while you have the right to take into consideration the interest 
 she may have in the result of this trial, you have also the right, and 
 it is your duty, to take into consideration the fact, if such is the fact, 
 that she has been corroborated by other credible evidence.^^ 
 
 36— Lang v. State, 42 Fla. 612, 28 
 
 So. 856 (857). 
 
 In Olive v. State, 34 Fla. 203, 15 
 So. 925 (927), and in Bond v. State, 
 21 Fla. 738, the following was ap- 
 proved: 
 
 The statement of the prisoner is 
 evidence before you, to be allowed 
 such weight, and such only, as you 
 see fit to give it. 
 
 37— In McElrov v. People, 202 111. 
 473 (478), 66 N. E. 1058, it was held 
 error to refuse this instruction. 
 The charge was embezzlement. 
 
 In Regent v. People, 96 111. App. 
 189 (198), it was held proper to in- 
 struct as follows: 
 
 The court instructs you that in 
 this state the law declares that a 
 defendant in a criminal case may 
 be a witness in his own behalf. 
 This is no idle form of law, but is 
 a substantial privilege guaranteed 
 to the defendant. 
 
 In Bressler v. The People, 117 III. 
 422, 8 N. E. 62, the following was 
 approved: 
 
 The court instructs the jury 
 that although the law makes the 
 defendants in this case competent 
 witnesses, still, the jury are the 
 judges of the weight which ought 
 to be attached to their testimony; 
 and, in considering what weight 
 should be given it, the jury should 
 take into consideration all the facts 
 and circumstances surrounding the 
 case, as disclosed by the evidence, 
 and give the defendants' testimony 
 only such weight as they believe 
 it entitled to, in view of all the 
 facts and circumstances proved on 
 the trial. 
 
 In Hirschman v. People, 101 111. 
 568, it was held not error to charge 
 as follows: 
 
 The jury in criminal cases are 
 not bound to believe the testimony 
 of the defendant any further than 
 
 it may be corroborated by other 
 credible evidence in the case. 
 
 In Johnson v. People, 140 111. 
 350 (353). 29 N. E. 895, the following 
 instruction was given: 
 
 The court instructs the jury that, 
 by the law of this state, the de- 
 fendant is made a competent wit- 
 ness upon the trial in this case, 
 but it is left entirely with the jury 
 to judge of his credibility as such 
 witness; and in judging of the 
 credit to be given to such witness, 
 it is proper for the jury to take 
 into consideration the probability 
 or improbability of his statements 
 as such witness in view of all the 
 testimony in the case. 
 
 Approving it the supreme court 
 said: 
 
 "The ground of the objection 
 urged is that the jury were not 
 told that they were to take into 
 consideration the manner and ap- 
 pearance of the witness while tes- 
 tifying. But this instruction does 
 not assume to lay down a general 
 rule for determining the credibil- 
 ity of the witness. It simply calls 
 attention to a circumstance that 
 may legitimately affect the testi- 
 mony of the witness either sus- 
 taining or depreciating it. This is 
 proper for the consideration of the 
 jury, and that is fair to each side." 
 
 In Johnson v. People, supra, the 
 following, also, was approved: 
 
 The jury are instructed that the 
 relatrix in this case is interested 
 in the event of this case, and that 
 the defendant is interested, and 
 the interest of these parties may 
 be considered in determining their 
 credibility as witnesses. 
 
 In Henry v. People, 198 111. 162, 
 65 N. E. 120, the following was ap- 
 proved: 
 
 The court instructs the jury 
 that, although the defendants
 
 1636 
 
 FORMS OF INSTRUCTIONS. 
 
 [§2540. 
 
 § 2540. Indiana — Indian Territory. In determining the weight to 
 be given to the testimony of the different witnesses, you should take 
 into account the interest or want of interest they have in the case, 
 their manner on the stand, the probability or improbability of their 
 testimony, with all other circumstances before you which can aid 
 you in weighing their testimony. The defendant has testified as a 
 witness, and you should weigh his testimony as you weigh that of 
 any other witness. Consider his interest in the result of the case, 
 his manner, and the probability or improbability of his testimony.^^ 
 
 have a right to be sworn and to 
 testify in their behalf, the jury- 
 are not bound to beheve their tes- 
 timony, but they are bound to give 
 it such weight as they believe it is 
 entitled to, and their credibility, 
 and the weight to be attached to 
 their testimony, are matters ex- 
 clusively for the jury, and the de- 
 fendants' interest in the result of 
 the trial is a matter proper to be 
 taken into consideration by the 
 jury in determining what weight 
 ought to be given to their testi- 
 mony. 
 
 The court said: "The instruction 
 thus complained of is a literal 
 copy of instruction numbered six, 
 set forth in Bressler v. People, 117 
 111. 422, 8 N. E. 62, and there ap- 
 proved by this court. In Hirsch- 
 man v. People, 101 111. 568, this 
 court said (p. 576): 'The jury were 
 not bound to believe the evidence 
 of the defendant any further than 
 it may have been corroborated by 
 other credible evidence (Gainey v. 
 People, 97 111. 270, 37 Am. Rep. 109), 
 and we see no impropriety in say- 
 ing so to them.' The instruction, 
 in substance, is sustained by Crab- 
 tree v. Hagenbaugh, 25 111. 233, 79 
 Am. Dec. 324; Yundt v. Hartrunft, 
 41 111. 9; Miller v. People, 39 Id. 
 457; see also Rulliner v. People, 95 
 111. 394; Chambers v. People, 105 Id. 
 409." 
 
 In Doyle v. People, 147 111. 394 
 (397), 35 N. E. 372, the following 
 was approved: 
 
 The jury are instructed that 
 while it is true that, under the 
 law of this state, defendants in 
 criminal cases are competent wit- 
 ne.sses in thoir own cases, yet you 
 are instructed that their credibil- 
 ity^ is left, by the statute, to the 
 consideration of the jury; and in 
 considering the amount of credit 
 or value you will give to the testi- 
 mony of Tj. L. in this case, you 
 may take into consideration his in- 
 terest in the case, his desire to 
 
 avoid punishment for the crime 
 with which he is charged, and all 
 other interests or motives that 
 would likely surround or affect the 
 testimony of a person similarly 
 surrounded or situated. 
 
 38 — Anderson v. State, 104 Ind. 
 467, 4 N. E. 64 (66), 5 N. E. 711, 5 
 Am. Cr. Rep. 601. 
 
 The court cited Nelson v. Vorce, 
 55 Ind. 455; Canada v. Curry, 73 
 Ind. 246; Fisher v. State, 77 Ind. 
 42; Woolen v. Whitacre, 91 Ind. 
 502; Dodd v. Moore, Id. 522; Over- 
 ton V. Rogers, 99 Ind. 595. 
 
 In Mcintosh v. State, 151 Ind. 
 251, 51 N. E. 354 (355), the trial 
 court gave the following instruc- 
 tion: 
 
 The law gives persons accused of 
 crime the right to .testify on their 
 own behalf, but their credibility 
 and the weight to be given to 
 their testimony are matters ex- 
 clusively for the jury. Therefore, 
 in weighing the testimony of the 
 defendant in this case, you have 
 the right to take into consideration 
 the manner of his testifying, the 
 reasonableness or unreasonable- 
 ness of his account of the trans- 
 action, and his interest in the re- 
 sult of the case, as affecting his 
 credibility. You are not required 
 to receive blindly the testimony of 
 such accused person as true, 
 neither are you at liberty to disre- 
 gard his testimony, but you are to 
 give it due consideration, and to 
 determine whether or not his state- 
 ments are true, and made in good 
 faith, or only for the purpose of 
 avoiding conviction. 
 
 Affirming judgment of convic- 
 tion, the court said: "While this 
 instruction standing alone cannot 
 be said to be a complete or accu- 
 rate statement to the jury of the 
 rules by which they ought to be 
 guided in weighing the testimony 
 of the defendant, and while it may 
 also be said that if is possibly 
 open to the criticism that it singles
 
 §2541.] 
 
 CRIMINAL— CONFESSIONS. 
 
 1637 
 
 § 2541. Iowa — Dakota. Under our statute a person charged witli 
 the commission of a crime is a competent witness and may testify in 
 his own behalf. The defendant in this case has availed herself of 
 this privilege, and in determining her guilt or innocence, you must 
 consider her testimony. She testifies as an interested witness, and 
 from an interested standpoint, and as such you should consider her 
 testimony; and when you do this, together with all the other sur- 
 rounding circumstances developed by the evidence, give the testimony 
 of the defendant such weight, in connection with the other evidence 
 in the case, as you may think it entitled to, and no more.^^ 
 
 out the defendant and directs the 
 admonition or advice therein given 
 alone to his testimony, yet, in the 
 absence of the evidence, we would 
 not be in a position to adjudge that 
 appellant was prejudiced in any 
 of his substantial rights thereby." 
 
 The court instructs you that, 
 under the law the defendant is a 
 proper witness in his own behalf, 
 and you should take into consid- 
 eration his evidence in determin- 
 ing the guilt or innocence of the 
 defendant; but in determining what 
 weight you will give the evidence 
 of the defendant, you should take 
 into consideration the fact that he 
 is the defendant, the interest he 
 has in the result of the suit, his 
 intelligence or lack of intelligence, 
 his appearance and manner of tes- 
 tifying while on the stand, and, 
 taking all of these facts into con- 
 sideration, you should give his evi- 
 dence such weight as you think it 
 entitled to under all the circum- 
 stances of the case. 
 
 Helms V. United States, 2 Ind. 
 Ter. 595, 52 S. W. 60 (63). 
 
 The court said: "While we find 
 no reversible error in this charge, 
 we think the better practice, in- 
 stead of singling out the defend- 
 ant, and giving the jury the rule 
 by which his testimony is to be 
 measured, is to lay down the rule 
 as to the testimony of all the wit- 
 nesses including that of the de- 
 fendant." 
 
 39— State v. Hossack, 116 Iowa 
 194, 89 N. W. 1077 (1081), homicide 
 case. 
 
 "This language seems to have 
 been taken from an instruction ap- 
 proved by this court in State v. 
 Sterrett, 71 Iowa 386, 32 N. W. 387. 
 We cannot agree that the exist- 
 ence of the marital relation alters 
 the rule as to the credibility of de- 
 fendant as a witness, although it 
 may have strengthened the pre- 
 sumption of her innocence " 
 
 In State v. Harris, 97 Iowa 407, 
 66 N. W. 728 (729), the following 
 instruction was approved by the 
 court: 
 
 The defendant 'has the right to 
 testify in his own behalf, and he 
 has availed himself of that privi- 
 lege. The character of the defend- 
 ant as a witness has been attacked, 
 and evidence offered tending to 
 show his moral character is bad. 
 You have a right to consider his 
 evidence, but you have also the 
 right, in determining what weight 
 you give to the evidence, to con- 
 sider his interest in the case, the 
 temptation to shield himself from 
 the consequences of crime. Also 
 you may, in that connection, con- 
 sider the evidence offered tending 
 to show his bad moral character, 
 and give to the evidence just such 
 weight as you may think the same 
 entitled to. 
 
 In State v. Wisnewski, 13 N. Dak. 
 649, 102 N. W. 883 (884), the follow- 
 ing instruction was given: 
 
 The defendant shall, at his own 
 request, and not otherwise, be 
 deemed a competent witness; but 
 his neglect or refusal to testify 
 shall not create or raise any pre- 
 sumption of guilt against him, nor 
 shall such neglect or refusal be re- 
 ferred to by any attorney prose- 
 cuting the case, or considered by 
 the court or jury before whom the 
 trial takes place. Therefore, under 
 the law, the mere fact that the 
 defendant has not testified in this 
 case shall not create any presump- 
 tion of guilt in your minds against 
 the defendant, and should not be 
 considered by you in this case. 
 
 Approving it the court said: "A 
 defendant's failure to become a 
 witness might well be considered as 
 a circumstance unfavorable to ihe 
 defendant, nnd to advise them [the 
 jury] it shall not be so considered 
 is not the subject of prejudice or 
 exception. Enc. PI. & Pr. vol. II,
 
 1638 
 
 FORMS OF INSTRUCTIONS. 
 
 [§ 2542. 
 
 § 2542. Louisiana. The court instructs the jury that while our 
 statute permits parties accused of crime to testify in their own be- 
 half, still the jurors are the judges of the credibility (creditableness) 
 and weig-ht of such testimony; and, in determining such weight and 
 credibility, the fact that such witnesses are interested in the result 
 of the cause may be taken into account by the juiy, and you may 
 give the same such w^eight as you think it justly entitled to under 
 all the circumstances of the case, and in view of the interest of such 
 witnesses.*** 
 
 § 2543. Michigan. In the beneficence of our modern statutes in 
 this state, one on trial for a crime is allowed to testify under oath 
 in his own behalf. His interest in the result of the trial, that would 
 
 p. 352; State v. Weems, 96 Iowa 
 448, 65 N. W. 387; Fulcher v. State. 
 28 Tex. App. 465, 13 S. W. 750; 
 State V. Landry, 85 Me. 95, 26 Atl. 
 998. 
 
 40— State v. "Wiggins, 50 La. 330, 
 23 So. 334 (336). 
 
 "An accused person who does 
 not go on the stand is entitled to 
 have the judge charge the jury- 
 that the fact that he declines to 
 avail himself of the privilege gives 
 rise to no inference against him. 
 State V. Walsh, 44 La. Ann. 1134, 
 11 So. 811; W'hart. Cr. Ev. p. 435; 
 Act No. 29 of 1886. So, too, if he 
 goes on the stand as a witness, the 
 Judge may charge the jury that, 
 in weighing his testimony, they 
 are entitled to take into account 
 the fact of interest in the result 
 of the trial. 29 Am. & Eng. Enc. 
 Law, p. 677; Pruitt v. State, 92 
 Ala. 41, 9 So. 406; Reagan v. U. S., 
 157 U. S. 301, 15 Sup. Ct. 610; State 
 V. Tartar, 26 Ore. 38, 37 Pac. 53; 
 People V. Resh, 107 Mich. 251, 65 
 N. W. 99; State v. Fiske, 63 Conn. 
 388, 28 Atl. 572; Sackett Instruct. 
 Juries, p. 43, §§ 20, 21. Nor is such 
 instruction prejudicial error be- 
 cause it singles out the accused 
 from the other witnesses in the 
 case. No other witness occupied 
 the same position as did the ac- 
 cused, and the instruction, there- 
 fore, does not apply to him a test 
 of credibility which could have 
 been applied to others. Doyle v. 
 Pf'ople, 147 111. 394, 35 N. E. 372. 
 This was, in effect, charging one 
 or more of the general rules of 
 evidence, viz., that the motive or 
 bias of a witness — his interest in 
 the outcome of the trial — may af- 
 fect, more or less, his evidence for 
 crrdibility, and the jury are the 
 jndyrr.s of the effect and value, the 
 weight and sufficiency, of the evi- 
 
 dence addressed to them. The 
 statute (Act 29 of 1886) specifically 
 requires the judge to charge the 
 jury that such testimony shall be 
 weighed and considered according 
 to the general rules of evidence. It 
 was intended, of course, that the 
 judge should not merely say to 
 the jury, 'You are to weigh and 
 consider the testimony of the ac- 
 cused according to the general 
 rules of evidence,' but should 
 explain to them what the partic- 
 ular general rules of evidence are 
 that are applicable to testimony 
 given by an accused person. This 
 is what the judge in the instant 
 case did. This court said in State 
 V. Walsh, supra, that 'the weight 
 of the testimony (of the accused) 
 is left to the jury.' Whart. Cr. 
 Ev. Pars. 429, 434, 436. If it is left 
 to the jury it is proper for the 
 judge to tell them so. The words 
 'but all testimony shall be weighed 
 and considered according to the 
 general rules of evidence, in the 
 concluding clause of section 2 of 
 the act of 1886, have reference, 
 clearly, to all the testimony given 
 by accused persons under the per- 
 mission of the act. The judge is 
 to charge that all such evidence — 
 i. e. that given by defendants in 
 criminal causes — 'shall be weighed,' 
 etc. It was not necessary to use 
 that language as to the testimony 
 of other witnesses in a case, for it 
 has always been the law that their 
 evidence is to be weighed and con- 
 sidered by the general rules of 
 evidence. This demonstrates that 
 the lawmaker intended to apply 
 the language used in the statute 
 to the testimony of accused per- 
 sons. It is with reference to ac- 
 cused persons only that section 2 of 
 the acts speaks."
 
 § 2544.] 
 
 CRIMINAL— CONFESSIONS. 
 
 1639 
 
 formerly preclude his so testifying, now has not that effect, and it 
 is the duty of jurors, where this is done, to give his testimony such 
 weight as, in view of all the facts and circumstances shown, it shall 
 appear to them to be entitled to. His interest is to be considered only 
 so far as it affects his credit. His testimony is to be scanned and 
 tested the same as that of other witnesses. If rational, natural and 
 consistent, it may outweigh the testimony of other witnesses. If 
 inconsistent with established facts, or with his prior statements, you 
 will treat it the same as you would that of any other witness whose 
 testimony is thus defective.*^ 
 
 § 2544. Mississippi. The court instructs the juiy that under the 
 law the defendant is a competent witness in his own behalf, and his 
 testimony is entitled to whatever weight the juiy, as the judges of 
 the evidence, may see fit to give it.^^ 
 
 § 2545. Missouri. The defendant is a competent witness in his 
 own behalf, and his testimony is to be received by you and weighed 
 by the same rules as the testimony of any other witness. In deter- 
 mining what weight you will give to his testimony, you may take 
 into consideration the fact that he is the defendant on trial, and his 
 interest is the result of the trial.*^ 
 
 41— People V. Willett, 105 Mich. 
 110, 62 N. W. 1115 (1116). 
 
 The court found no error in an 
 instruction given in People v. 
 Resh, 107 Mich. 251, 65 N. W. 99 
 (100) as follows: 
 
 The respondent has been a wit- 
 ness before you, as he had a right 
 to be; and you have a right to 
 weigh his testimony, and give it 
 such credit as you think it fairly 
 entitled to. We have a right to 
 take into consideration, in weigh- 
 ing the testimony, his relation to 
 the offense charged in the in- 
 formation. 
 
 The court cited Housh v. State, 
 43 Neb. 163, 61 N. W. 571; St. Louis 
 V. State, 8 Neb. 405, 1 N. W. 371; 
 Murphy v. State. 15 Neb. 383, 19 N. 
 W. 489. 
 
 In People v. McArron, 121 Mich. 
 1, 79 N. W. 944. the following in- 
 struction was given: 
 
 The defendant, under our statute, 
 is allowed to testify under oath in 
 his own behalf, and it is the duty 
 of the jurors, where he has done 
 so. to give his testimony such 
 weight as, in view of all the facts 
 and circumstances shown, it shall 
 appear to them to be entitled to. 
 His testimony is to be tested the 
 same as that of other witnesses. If 
 rational, natural, and consistent, it 
 may outweigh the testimony of all 
 other witnesses. 
 
 42— McVay v. State, — Miss. — , 
 26 So. 947. 
 
 43— State v. Bond, 191 Mo. 555, 90 
 S. W. 830 (831). 
 
 In State v. Maupin, 196 Mo. 164, 
 93 S. W. 379 (383), the following 
 was given: 
 
 The court instructs the jury that 
 the defendant is a competent wit- 
 ness in his own behalf, and you 
 may consider his testimony, but in 
 determining what weight and cred- 
 it you will give his testimony you 
 may take into consideration that 
 fact that he is the defendant on 
 trial and interested in the result 
 of the trial. 
 
 In State v. Hughes, 149 Mo. 514, 
 51 S. W. 89, the following was ap- 
 proved: 
 
 Under the law, the defendant is 
 a competent witness in his own be- 
 half, and you should take his tes- 
 timony in account, and give It 
 such weight as you deem it en- 
 titled to receive, in passing upon 
 his guilt or innocence; but, in de- 
 termining what weight you will 
 attach to his testimony, you may 
 take into consideration the fact 
 that he is the defendant in the 
 cause, testifying in his own behalf, 
 and his interest in the result of this 
 trial. 
 
 The defendants are competent 
 witnesses in their own behalf, but 
 the fact that they are the defend-
 
 1640 
 
 FORMS OP INSTRUCTIONS. 
 
 [§ 254G. 
 
 § 2546. Nebraska — ^Murder. Under the law of this state the ac- 
 cused is a competent witness in his own behalf, and you are bound 
 to consider his testimony; but in determining Avhat weight to give to 
 his testimony, you may weigh it as you would the testimony of any 
 
 ants, and, as such, interested in 
 the result of this case, may be 
 considered by you in determining 
 the credibility of their testimony. 
 Approved in State v. Vaughan, 200 
 Mo. 1, 98 S. W. 2. 
 
 The court instructs the jury that 
 the defendant is a competent wit- 
 ness in his own behalf, but the fact 
 that he is the accused party on 
 trial, and testifying in his own 
 behalf, may be considered by the 
 jury in determining wihat weight 
 and credit they will give to his 
 testimony. Approved in State v. 
 Smith, 164 Mo. 567, 65 S. W. 270. 
 
 The defendant is a coinpetent 
 witness in the case, and in arriv- 
 ing at your verdict you must con- 
 sider his testimony, but in deter- 
 mining what weight and credibil- 
 ity you will give to his testiinony 
 you may take into consideration the 
 fact that he is the accused party 
 on trial, testifying in his own be- 
 half, and the interest he has in 
 the result of the trial. Approved in 
 State v. Darling, 199 Mo. 168, 97 S. 
 W. 592. A similar instruction, 
 slightly differently worded, was ap- 
 proved in State v. Gatlin, 170 Mo. 
 354, 70 S. W. 885 (888). 
 
 The court instructs the jury that 
 the defendant is a competent wit- 
 ness in his own behalf, and you 
 should consider his testimony in 
 connection with the other evidence, 
 given on the trial. In determining 
 what weight you will give to de- 
 fendant's testimony, you may take 
 into consideration the fact that he 
 Is the defendant on trial, and in- 
 terested in the result of the prose- 
 cution. Approved in State v. May, 
 172 Mo. 630, 12 S. W. 918 (920), a 
 murder case. 
 
 The defendants are competent 
 witnesses in their own behalf, and 
 their testimony is to be received 
 by you and weighed by the same 
 rules as the testimony of any 
 other witnesses. In passing upon 
 what weight you will give to their 
 tostlmoiiy, you may take into con- 
 .sideration the fact that they are 
 the defendants on trial, and their 
 interest in the result of the trial. 
 Approved in Slate v. Hale, 156 Mo. 
 102, r,(i S. W. 881 f882). 
 
 In State v. Miller, 190 Mo. 449, 
 
 89 S. W. 377, the jury were in- 
 structed as follows: 
 
 You are further instructed that 
 you are the sole judges of the 
 ci'edibility of the witnesses and of 
 the weight to be given to their tes- 
 timony. In determining such cred- 
 ibility and weight, you will take 
 into consideration the character of 
 the witness, his manner in the 
 stand, his interest, if any, in the 
 result of the trial, his relation to 
 or feeling towards the defendant, 
 and the probability and improba- 
 bility of his statements, as well as 
 all the facts and circumstances 
 given in evidence. In this con- 
 nection you are further instructed 
 that, if you believe that any wit- 
 ness has knowingly sworn falsely 
 to any material fact, you are at 
 liberty to reject all or any portion 
 of such witness' testimony. The 
 defendant is a competent witness 
 in his own behalf, but the fact that 
 he is a witness testifying in his 
 own behalf and the interest he has 
 at stake in the case may be con- 
 sidered by you in determining the 
 credibility of his testimony. 
 
 The court, in comment, said of 
 the above instruction: 
 
 "Objection is made to this in- 
 struction because, in that portion 
 referring to the credibility of wit- 
 nesses, it includes simply the rela- 
 tion to the feeling towards the de- 
 fendant. The instruction is set out 
 in full in the accompanying state- 
 ment, and we think is not obnox- 
 ious to the criticism made upon it 
 in this respect. The words 'his re- 
 lation to or feeling towards the de- 
 fendant' necessarily contemplate 
 whether the witness was friendly 
 or unfriendly to the defendant. 
 The instruction was well enough 
 as it was written. 
 
 A further objection to this in- 
 struction is that, in speaking of 
 the competency of the defendant, 
 the court told the jury "he was a 
 competent witness in his own be- 
 half, but the fact that he was a 
 witness testifying in his own be- 
 half might be considered by the 
 jury." Complaint is made to the 
 use of the conjunction "but" in- 
 stead nf "and", which it is conced- 
 ed would have been proper. We
 
 §2546.] 
 
 CRIMINAL— CONFESSIONS. 
 
 1641 
 
 other witness, and you make take into consideration his interest in 
 the result of the trial, his manner, and the probability or improba- 
 bility of his testimony, and giving to his testimony such weight as, 
 under all the circumstances, you think it entitled to.'** 
 
 are unable to concur in this criti- 
 cism of the evidence of the de- 
 fendant testifying in his own be- 
 half. This identical formula was 
 approved in State v. Zorn, 71 Mo. 
 415, and we think the distinction 
 sought to be made is entirely too 
 nice to be of practical benefit to 
 the defendant on trial." 
 
 In State v. Weber, 156 Mo. 249, 56 
 S. W. 729, the court instructed the 
 jury: 
 
 The defendant is a competent 
 witness in his own behalf, and his 
 testimony should be considered by 
 you in making up your verdict; 
 but in determining what weight 
 you will give to his testimony you 
 may consider the fact that he is 
 the defendant, and on trial. 
 
 44— Housh V. State, 43 Neb. 163, 
 61 N. W. 571 (573), 
 
 The court said: 
 
 "Were the question an open one 
 at this time, the writer would with 
 reluctance sanction a practice 
 which permits any reference by 
 the court to the subject of the 
 prisoner's credibility as a witness. 
 There is, on principle, no more 
 reason to call the attention of the 
 jury to him, and to caution them 
 to consider his interests as affect- 
 ing his credibility, than for like 
 caution with respect to any other 
 witness. But that question has 
 been fully settled in this court by 
 decisions in conformity with the 
 practice in this case, which we are 
 constrained to follow. See St. 
 Louis V. State, 8 Neb. 405, 1 N. W. 
 371; Murphy v. State, 15 Neb. 383, 
 19 N. W. 489." 
 
 In Philamalee v. State, 58 Neb. 
 320, 78 N. W. 625 (626), the follow- 
 ing was approved: 
 
 The jury are instructed that, 
 when the defendant testified in this 
 case, he became as any other wit- 
 ness, and his credibility is to be 
 tested by, and subjected to, the 
 same tests as are legally applied 
 to any other witness; and in de- 
 termining the degree of credibil- 
 ity that shall be accorded to his 
 testimony, the jury have a right to 
 take into consideration the fact 
 that he is interested in the result 
 of this prosecution, as well as his 
 demeanor upon the stand, and the 
 
 fact that he has been contradicted 
 by other witnesses. 
 
 The court cited Johnson v. State, 
 34 Neb. 257, 51 N. W. 835; Housh v. 
 State, 43 Neb. 163, 61 N. W. 571; 
 St. Louis V. State, supra; Murphy 
 V. State, 15 Neb. 383, 19 N. W. 489. 
 
 In Carleton v. State, 43 Neb. 
 373, 61 N. W. 699 (713), a homicide 
 case, the following was approved: 
 
 The jui-y are instructed that they 
 have no right to disregard the 
 testimony of the defendant on 
 the ground alone that he is a de- 
 fendant and stands charged with 
 the commission of a crime. Nor 
 are the jury required to receive 
 blindly, the testimony of the de- 
 fendant as true, but the jury are 
 fully and fairly to consider wheth- 
 er it is true and made in good 
 faith; and for this purpose the 
 jury have a right to consider the 
 interest of the defendant in this 
 prosecution. The law presumes the 
 defendant to be innocent until he 
 is proved guilty by the evidence 
 beyond a reasonable doubt, and 
 the law allows him to testify in his 
 own behalf, and the jury should 
 fairly and impartially consider his 
 testimony, together with all the 
 other evidence in the case and if, 
 from all the evidence, the facts 
 and circumstances proved, the jury 
 have any reasonable doubt of the 
 guilt of the defendant as charged 
 in the information, then the jury 
 should give the defendant the 
 benefit of the doubt, and acquit 
 him. 
 
 In Johnson v. State, 34 Neb. 257, 
 51 Nev. 835 (836), the court ap- 
 proved this instruction: 
 
 The court instructs the jury that 
 the law makes the defendant a 
 competent witness in his own be- 
 half, and the jury should not dis- 
 credit ihis testimony for the sole 
 reason that he is the defendant; 
 still the jury are the judges of the 
 weight which ought to attach to 
 his testimony; and, in considering 
 what weight should be given his 
 testimony, the jury sihould take in- 
 to consideration all the facts and 
 circumstances surrounding the 
 case as disclosed by the evidence, 
 and the interest of the defendant 
 in the result of the trial, and give
 
 1642 
 
 FORMS OF INSTRUCTIONS. 
 
 [§ 2547. 
 
 § 2547. Mexico — Oklahoma. The defendant is a competent wit- 
 ness in his own behalf^ and when he testified as a witness in this 
 case he became as any other witness, and his credibility is to be 
 tested by, and is subject to, the same tests as are legally applied to 
 any other witness; and in determining the degree of credibility that 
 should be accorded to the testimony of the defendant, the jury have 
 a right to take into consideration the fact that he is interested in 
 the result of the prosecution as well as his demeanor and conduct on 
 the witness stand.*^ 
 
 § 2548. Washington. You are further instructed that, while the 
 law makes the defendant a competent witness in this ease, yet you 
 have the right to take into consideration his situation and interest 
 in the result of your verdict, and all the circumstances which sur- 
 round him, and give to his testimony only such weight as, in your 
 judgment, it is fairly entitled to.*^ 
 
 the testimony of the defendant 
 only such weight as they believe it 
 entitled to, in view of the facts 
 and circumstances proven on 
 trial. 
 
 The court said: 
 
 "In St. Louis V. State, 8 Neb. 
 418, 1 N. W. Rep. 371, the trial 
 court has instructed the jui-y that 
 they were at liberty to take into 
 consideration the great interest 
 which the accused has in the re- 
 sult. Lake, J., in discussing the 
 question raised by the instruc- 
 tions, says, 'Not only were the 
 jury, as told by the court, at lib- 
 erty to consider this interest, but 
 It was their duty to do so in de- 
 termining the credit to be given to 
 the prisoner's testimony.' In Mur- 
 phy V. State, 15 Neb. 389, 19 N. W. 
 Rep. 489, Reese, J., says: 'It would 
 have been proper for the court to 
 have instructed the jury that, in 
 weighing his (defendant's) testi- 
 mony, they should consider his in- 
 terest in the result of the trial.' 
 The instruction in question is in 
 harmony with the rule which has 
 prevailed in this state ever since 
 St. Louis v. State, and we can see 
 no sufficient reason for reversing it 
 now." 
 
 45— Territory v. Taylor, 11 N. M. 
 F.88. 71 Pac. 489 (493). 
 
 "The objection to this instruction 
 Is not well founded. Except in the 
 two states of Kentucky and Mis- 
 Fl.«sippi, it is established that the 
 trial court may, in ci\'il and crim- 
 inal cases, Instruct the jury that 
 they are authorized to take into 
 consideration the interest of the 
 party, or th^ relationship of the 
 
 witness testifying to the party in 
 interest in determining his credi- 
 bility. 11 Enc. PI. & Prac. 315. 
 One instruction somewhat similar 
 to this although stronger has been 
 directly passed upon and approved 
 by this court in the case of Faulk- 
 ner V. Territory, 6 N. M. 464, 30 
 Pac. 905. We can see no objection 
 to this instruction." 
 
 In Wells V. Territory, 14 Okla. 
 436, 78 Pac. 124 (129), the following 
 was approved: 
 
 A defendant in a criminal case 
 may be sworn and may testify in 
 his own behalf. In such a case the 
 jury, in judging the credibility and 
 weight to be given his testimony, 
 may take into consideration the 
 fact that he is the defendant, and 
 the nature and enormity of the 
 crime of which he is accused. You 
 are instructed that you have no 
 right to disregard the testimony 
 of the defendant on the ground 
 alone that he is the defendant, and 
 stands charged with the commis- 
 sion of a crime. The law presumes 
 the defendant to be innocent until 
 he is proved guilty by the evi- 
 dence beyond a reasonable doubt, 
 and the law allows him to testify 
 in his own behalf; and the jury 
 should fairly and impartially con- 
 sider his testimony, under the in- 
 structions above given, together 
 with all the other evidence in the 
 case, and if, from all the evidence, 
 the jury have a reasonable doubt 
 as to the guilt of the defendant, 
 it is your duty to acquit him. 
 
 46— State v. Melvern, 32 Wash. 7, 
 72 Pac. 489. 
 
 "Instructions substantially like
 
 §2549. 
 
 CRIMINAL— CONFESSIONS. 
 
 1643 
 
 § 2549. West Virginia. The court instructs the jury that they have 
 no right to arbitrarily disbelieve the testimony of the prisoner, but 
 that they should weigh and consider his testimony the same as any 
 other witness in the case, giving it such weight as they think it is 
 entitled to.*^ 
 
 § 2550. Wisconsin — Wyoming. Under the laws of this state the 
 defendant is a competent witness in his own behalf. Notwithstand- 
 ing that fact, however, the jurj^ have a right to consider the situa- 
 tion, his interest in the result of the trial, the temptation that ex- 
 ists under the circumstances to testify falsely,' and everj'thing ap- 
 pearing in the ease bearing on his credibility; and it is your duty to 
 give his testimony such weight as you believe it entitled to receive. 
 It should be considered in connection with all the other evidence in 
 the case, and the same tests that are applied to his testimony for the 
 purpose of determining its credibility should be applied to the tes- 
 timony of each and every other witness.*^ 
 
 that above quoted have been fre- 
 quently sustained by the courts. 
 See State v. Sterrett, 71 Iowa 386, 
 32 N. W. 387; People v. Calvin, 60 
 Mich. 113, 26 N. W. 851; Haines v. 
 Territory, 3 Wyo. 167, 13 Pac. 8; 
 State v. Elliott, 90 Mo. 350, 2 S. W. 
 411; Territory v. Gonzales, 11 N. 
 M. 301, 68 Pac. 925; People v. Cro- 
 nin, 34 Cal. 204; Anderson v. State, 
 104 Ind. 467, 4 N. E. 63. 5 N. E. 711, 
 5 Am. Cr. Rep. 601; State v. San- 
 ders, 76 Mo. 35; 2 Thompson on 
 Trials, par. 2445. In Haines v. 
 Territory, supra, the instruction 
 objected to was practically similar 
 to that here under consideration, 
 and in reg'ard thereto the court 
 said: 'It is conceded that the above 
 instruction contains nothing- but 
 sound legal propositions, and the 
 only complaint made is that de- 
 fendants were singled out by the 
 court from the body of witnesses 
 for comment. We do not think 
 the court erred in giving- the in- 
 struction as it did.' " 
 
 In State v. Deathenage, 35 "Wash. 
 326, 77 Pac. 504 (506), the following 
 was approved: 
 
 While the statute of this state 
 provides that a person charged 
 with crime may testify in his own 
 behalf, he is under no obligation 
 to do so, and the statute expressly 
 makes it the duty of the court to 
 instruct the jury that no inference 
 of guilt shall arise ag-ainst the ac- 
 cused if the accused shall fail or 
 refuse to testify as a -u'itness in 
 his own behalf, and the court so 
 instructs the jury in this case. ' 
 
 See also State v. Mitchell. 32 
 Wash. 64, 72 Pac. 707. 
 
 47— State v. Dodds, 54 W. Va. 
 289, 46 S. E. 228 (230). 
 
 In State v. Dodds, supra, the fol- 
 lowing -was also approved: 
 
 The court instructs the jury that 
 in considering all the evidence in 
 this case they may consider the 
 evidence of the prisoner, and how 
 far, if at all, his interest in the 
 case might bias his testimony, and 
 to g-ive his evidence and all other 
 evidence in the case just such 
 weight as they may think it en- 
 titled to. 
 
 48— Grabowski v. State, 126 Wis. 
 447, 105 N. W. 809. 
 
 "Certainly this charge, as so 
 given, is not open to the criticism 
 of discriminating against a single 
 witness as claimed by counsel, in 
 Schutz v. State, 125 Wis. 452, 104 
 N. W. 90, 93, and cases there cited. 
 The portion of the charg-e as so 
 given was proper." 
 
 In Emery v. State, 101 Wis. 627, 
 78 N. W. 145 (154), the following 
 was approved: 
 
 Under the law of this state, the 
 defendants are competent witnesses 
 in their own behalf. They have 
 given their testimony, and it is 
 before you to consider with the 
 other evidence in the case. They 
 are directly interested in the re- 
 sult of this trial. In determining 
 the weight to be given to their 
 testimony it is proper for you to 
 take such interest into considera- 
 tion. You are to give their testi- 
 mony such weight as under all cir-
 
 1644 
 
 FORMS OP INSTRUCTIONS. 
 
 [§ 2551. 
 
 § 2551. U. S. Courts. The defendant goes upon the stand before 
 you and he makes his statement; tells his story. Above all things, 
 in a case of this kind you are to see whether that statement is cor- 
 roborated substantially and reliably by the proven facts; if so, it is 
 strengthened to the extent of its corroboration. If it is not strength- 
 ened in that way, you are to weigh it by its own inherent truthful- 
 ness, its own inherent proving power that may belong to it.*^ 
 
 § 2552. Unsworn Statement of Defendant — Georgia Statute. The 
 
 defendant in this case avails himself of this statute : In all criminal 
 trials in this state, the prisoner shall have the right to make the 
 court and juiy such statement in the case as he or she may deem 
 proper in his or her defense, said statement not to be under oath, 
 and to have such force only as the jury may think right to give it ; 
 and the jury may believe such statement in preference to the sworn 
 testimony in the case : provided the prisoner shall not be compelled 
 to answer any question on cross-examination should he or she think 
 proper to decline to answer such question. ^*^ 
 
 cumstances, you think it entitled 
 to. If otlier witnesses have any 
 such interest disclosed by the evi- 
 dence, it is your duty to consider 
 it in determining- the degree of 
 credit that should be given their 
 testimony. You are cautioned, 
 however, that interest in the result 
 of the trial creates no presumption 
 that such witnesses will swear 
 falsely. 
 
 In Younger v. State; 12 Wyo. 24, 
 73 Pac. 551 (553), this instruction 
 was .ipproved: , 
 
 The jury have no right to dis- 
 regard the testimony of the de- 
 fendant on the ground alone that 
 he is the defendant and has been 
 charged with the commission of a 
 crime. The law presumes the de- 
 fendant to be innocent until he 
 has been proved guilty, and the 
 law allows a man to testify in his 
 own behalf, and the jury should 
 fairly and impartially consider his 
 testimony, together with all the 
 other evidence in the case. 
 
 In Younger v. State, supra, the 
 following was approved: 
 
 The defendant has offered him- 
 self as a witness on his own be- 
 half in this trial, and in consider- 
 ir.g- the weight and effect to be 
 given his evidence, in addition to 
 noticing his manner and the prob- 
 ability of his statements, taken in 
 connection with the evidence with- 
 in the cause, you should consider 
 his relation and situation under 
 which he gave his testimony, the 
 couaequences to him relating as a 
 
 result from this trial, and all of 
 the inducements and temptations 
 which would ordinarily influence a 
 person in his situation. You should 
 carefully determine the amount of 
 credibility to which the witness is 
 entitled. If convincing- and carry- 
 ing with it a belief in its truth act 
 upon it; if not, you have a right to 
 reject it. 
 
 The court said that similar in- 
 structions had been approved in 
 the following cases: 
 
 "Norris v. State, 87 Ala. 85, 6 
 So. 371; Bressler v. People, 117 
 111. 439, 8 N. E. 62; State v. Adair, 
 160 Mo. 391, 61 S. W. 187; State v. 
 Miller, 159 Mo. 113, 60 S. W. 67; 
 State V. Wisdom, 84 Mo. 190; Ran- 
 dall v. State, 132 Ind. 539, 32 N. E. 
 305; Haines v. Territory, 3 Wyo. 
 168, 13 Pac. 8." 
 
 49 — Johnson, alias Overton v. U. 
 S., 157 U. S. 320 (323), 15 S. Ct. 614. 
 Compare an instruction on the 
 same point in Hicks v. U. S., 150 
 U. S. 442 (450), 14 Sup. Ct. 144. 
 
 50— Hinkle v. State, 94 Ga. 595, 21 
 S. E. 595 (601). A homicide case. 
 
 In Smith v. State, 94 Ga. 591, 22 
 S. E. 214 (216), homicide case, the 
 following was approved: 
 
 The law declares, in all criminal 
 cases in this state defendant shall 
 make to the court and jury just 
 such statement in his defense as 
 he thinks proper to make. Such 
 statement is not to be under oath, 
 a'ld is to have just such force and 
 effect only as the jury think prop- 
 er to give it; but the jury may be-
 
 2553.] 
 
 CRIMINAL— CONFESSIONS. 
 
 1645 
 
 § 2553. Defendant Competent Witness. The defendant is a com- 
 petent witness in his own behalf, and his testimony is to be weighed 
 by the same rules that govern the testimony of other witnesses; but 
 in weighing his testimony the jury may take into consideration the 
 
 lieve it in preference to the sworn 
 testimony, if they think proper to 
 believe it, provided the defendant 
 shall not be subject to cross-exami- 
 nation, except by his own consent. 
 
 In Walker v. State, 120 Ga. 491, 
 48 S. E. 184, the following was held 
 unobjectionable as "amounting to 
 an instruction that the jury were 
 authorized, if they saw fit, to con- 
 sider the statement in connection 
 with the evidence, and weigh it all 
 together, to see what credit should 
 be given to each." 
 
 The court instructs the jury that 
 the defendant on trial is allowed 
 to make a statement in 'his own 
 behalf. The statement is a volun- 
 tary statement not made under 
 oath, and made by the defendant 
 in his own behalf; but the state- 
 ment is allowed to go to the jury, 
 to be considered by them and given 
 such weight and credit as the jury 
 see proper to give it. The jury 
 have the right to believe the state- 
 ment of the defendant in prefer- 
 ence to all the sworn evidence in 
 the case, if they see proper to do 
 so, or the jury have the right to 
 believe the sworn testimony in 
 preference to the voluntaiT state- 
 ment of the defendant, if they see 
 proper to do so. The jury have 
 the right to believe portions of 
 the statement and portions of the 
 sworn evidence in arriving at a 
 verdict in the case. It should be 
 the object and purpose of an im- 
 partial jury impaneled and sworn 
 to try the case between the state 
 and the defendant to find a true 
 verdict, and in their deliberations 
 they should accept the truth of 
 the transaction, whether it comes 
 from the statement of the de- 
 fendant or from the sworn testi- 
 mony. You should consider care- 
 fully the statement made by the 
 defendant, so as to determine 
 whether it is the truth about the 
 manner of the killing. Consider it 
 in connection with all the other 
 facts and circumstances proven to 
 your satisfaction, and see if it is 
 . corroborated by the sworn evi- 
 dence or any physical facts proven 
 to your satisfaction, or whether it 
 is inconsistent with or contradicted 
 
 by other facts and circumstances 
 proven to be true in the case to 
 your satisfaction beyond all reason- 
 able doubt; and when you have 
 carefully considered the statement 
 and explanation of the defendant 
 as to how the killing occurred in 
 connection with and along with the 
 sworn testimony submitted to you, 
 then you will determine what 
 weight and credit you will give to 
 the defendant's statement. You 
 will then determine, as rational, 
 reasonable jurors, whether, under 
 all the evidence submitted to you, 
 considered in connection with the 
 defendant's statement, you are sat- 
 isfied beyond all reasonable doubt 
 as to the defendant's guilt, under 
 the law which I will read to you, 
 applied to what you find to be the 
 facts in regard to the killing. 
 
 In Barnes v. State, 113 Ga. 716, 39 
 S. E. 488, the following insti'uction 
 was approved, although a dissent- 
 ing opinion held it erroneous on 
 the ground that the prisoner had 
 the right to have his statement 
 considered by itself without test- 
 ing its correctness by the other 
 evidence. 
 
 The court instructs the jury that 
 the prisoner has the right to make 
 a statement not under oath. It is 
 your province and duty to consider 
 his statement in connection with 
 the sworn testimony in the case, 
 and give it such weight as you 
 think pi-oper. If you find the state- 
 ment consistent and true, you have 
 the right to believe it in preference 
 to the sworn testimony in the case. 
 You should do so not carelessly 
 and capriciously, but under your 
 oath as jurors, considering the 
 statement in connection with the 
 sworn testimony in the case, and 
 testing it in the light of that testi- 
 mony, giving it such weight as you 
 think proper. That is a matter 
 exclusively for your determination. 
 
 In Mason v. State, 97 Ga. 388, 
 23 S. E. 831, the following was ap- 
 proved : 
 
 To this statement you can give 
 just credit as you think it is en- 
 titled to. You may believe the 
 whole of it, or any part of it. You 
 may reject the whole of it or any 
 part of it. You may go to the ex-
 
 1646 
 
 FORMS OF INSTRUCTIONS. 
 
 [§ 2554. 
 
 fact that he is the defendant in the case, and his interest in the 
 result of the trial.^i 
 
 § 2554. Defendant and His Wife Competent Witnesses — Weighing 
 Their Testimony — Missouri. The court instructs tlie jury that the 
 defendant and his wife are competent witnesses in his behalf, but the 
 fact that he is the defendant, and that she is his wife, on trial, and 
 the interest he has in his own case, and she has as his wife in same, 
 may be considered by the jury in estimating the weight to be given 
 to their testimony.^- 
 
 § 2555. Defendant Need Not Testify, (a) The defendant in this 
 ease had a right to go upon the witness stand to testify in his own be- 
 half, if he chose to do so. The law, however, expressly provides that 
 no presumption adverse to him is to arise from the mere fact that he 
 does not place himself upon the witness stand. So, in this case, the 
 mere fact that this defendant has not availed himself of the privilege 
 which the law gives him, should not be permitted by you to prejudice 
 him in any way. It should not be considered as evidence either of his 
 guilt or innocence. The failure of the defendant to testify is not 
 even a circumstance against him, and no presumption of guilt can be 
 indulged in by the jury on account of such failure on his part.^^ 
 
 tent of believing- it in preference 
 to the sworn testimony in tlae case, 
 provided you believe it to be the 
 truth. 
 
 In Westbrook v. State, 97 Ga. 189, 
 22 S. E. 398, it was held there was 
 no error in giving the following: 
 
 Find out what the truth of the 
 case is; what the real facts are; 
 and look to the evidence for that 
 purpose, and to the prisoner's 
 statement, if you think it is worthy 
 of credit. 
 
 "It is not necessary to state that 
 a reasonable doubt may arise from 
 the prisoner's statement, when the 
 jury are instructed generally as to 
 the weight to be given to that 
 statement. Walker v. State, 118 
 Ga. 34, 44 S. E. 850." 
 
 51— State V. McCarver, 194 Mo. 
 717. 92 S. W. 684. 
 
 52— State v. Milligan, 170 Mo. 
 215. 70 S. W. 473. 
 
 53 — People v. Provost, 144 Mich. 
 17. 107 N. W. 716. 
 
 "The statute in this state which 
 makes a defendant in a criminal 
 case a competent witness reads: 
 'No person shall be disqualified as 
 a witness in any criminal cise or 
 proceeding, by reason of his in- 
 terest In the event of the same as 
 a party or otherwise, or by reason 
 of hl.s having been convicted of 
 any crime; but such interest or 
 
 conviction may be shown for the 
 purpose of affecting his credibility; 
 provided however, that a defend- 
 ant in a criminal case or proceed- 
 ing shall only at his own request 
 be deemed a competent witness, 
 and his neglect to testify shall not 
 create any presumption against 
 him nor shall the court permit 
 any reference or comment to be 
 made to or upon such neglect.' Sec- 
 tion 10, 211, Comp. Laws 1897. 
 
 The consideration of statutes 
 similar to this has been before the 
 courts of several states. It will 
 be noted that the statutes of some 
 of these states differ in some re- 
 spects from the statute in this 
 state. In Missouri and Minnesota, 
 both court and counsel are pro- 
 hibited by statute from making 
 any comments whatever upon the 
 fact that a defendant has not tes- 
 tified. State V. Robinson, 117 Mo. 
 649, 23 S. W. 1066; State v. Pearce. 
 56 Minn. 226, 57 N. W. 652, 1065. In 
 Iowa and Texas, where the statute 
 prohibits the attorney for the state 
 from referring to the fact that the 
 defendant has not testified, and 
 makes such reference a misde- 
 meanor and cause for new trial, 
 the courts hold that a charge in- 
 structing the jury that such a fail- 
 ure to testify raises no presump- 
 tion against him was not prohibit- 
 ed. State v. Weems, 96 Iowa 426,
 
 § 2556.] 
 
 CRIMINAL— CONFESSIONS. 
 
 1647 
 
 (b) The court instructs the jury that a defendant in a criminal 
 action or proceeding cannot be compelled to be a witness against 
 himself, and if the defendant does not claim the right to be sworn 
 and does not testify, this fact must not be used to his prejudice.^* 
 
 § 2556. Defendant's Failure to Testify Not to Be Taken Against 
 Him — Louisiana. You are instructed that while under the statute 
 the accused is permitted to testify, yet it does not require him to tes- 
 tify, and if the defendant does not testify, such fact is not to be 
 taken against him.^^ 
 
 65 N. W. 387; Fulcher v. State, 28 
 Tex. App. 465, 13 S. W. 750; see al- 
 so State V. Skinner, 34 Kan. 256, 
 8 Pac. 420. The same was held in 
 Ohio under a statute practically 
 the same as in this state. Sulli- 
 van V. State, 9 Ohio Cir. Ct. Rep. 
 652, 4 Cir. Dec. 451. In New York 
 a charge given by the court, on its 
 own motion, broader than the 
 charge requested in the case at 
 bar, was held not to be erroneous. 
 People V. Hayes, 140 N. T. 485, 35 
 N. E. 951, 23 L. R. A. 830, 37 Am. 
 St. Rep. 572, citing and approving, 
 Ruloff V. People, 45 N. Y. 213. See 
 also, People v. Fitzgerald, 20 App. 
 Div. 139, 46 N. Y. Supp. 1020. In 
 several states it has been held 
 proper to give such a charge, but 
 not error to omit it in the absence 
 of a request to do so. People v. 
 Flynn, 73 Cal. 511, 15 Pac. 102; Metz. 
 V. State, 46 Neb. 547, 65 N. W. 190; 
 Felton V. State, 139 Ind. 531, 39 N. 
 E. 228. In Maine and Illinois the 
 question raised the case at bar 
 was squarely before the courts. In 
 State V. Landry, 85 Me. 95, 26 Atl. 
 998, the court said: 'The request- 
 ed instruction should have been 
 given. It was in exact verbal ac- 
 cordance with the rule laid down 
 in State v. Banks. 78 Me. 490, 7 
 Atl. 269. The legal proposition was 
 relevant to the issue. It was found- 
 ed upon the statutory provision 
 that the fact that the person ac- 
 cused does not testify in his be- 
 half shall not be taken as evidence 
 of his guilt. The respondent was 
 entitled to have the jury know of 
 the existence of the statute and un- 
 derstand the effect of it. If not so, 
 then a statute expressly created 
 for the benefit of a class of per- 
 sons is wholly useless to them. The 
 natural inclination of the jury 
 would lead them to adopt the pre- 
 sumption which the statute was 
 designed to prevent. 
 
 It is contended that in the Maine 
 and Illinois cases the circum- 
 
 stances were such, that such a 
 charge was made necessary, and 
 the decisions are to be accounted 
 for on that ground. We do not so 
 construe these opinions. In both 
 states the courts hold defendants 
 were entitled to have the law in 
 this regard stated to the jury. The 
 peculiar circumstances are men- 
 tioned as emphasizing the proposi- 
 tion. Where such a request to 
 charge has been made, we find no 
 authority warranting its refusal. 
 The contention of respondent in 
 this case is founded both upon 
 reason and authority. A respond- 
 ent is protected in his right under 
 the statute to elect not to testify. 
 A jury, upon his request, should 
 be informed of that right, to pre- 
 vent the creation in their minds 
 of any presumption of guilt by 
 reason of his silence. The court 
 was in error in refusing to give 
 the request as presented." 
 
 54— State v. Fuller, — Mont. — 
 85 Pac. 369 (375). 
 
 "Criticism is made of this part 
 of the charge in that it comments 
 upon and calls the attention of 
 the jury to the fact that the ap- 
 pellant did not testify, and also 
 informed the jury that the appel- 
 lant might have testified had he so 
 desired, but that the state could 
 not compel him to do so. The de- 
 fendant was not sworn as a wit- 
 ness. This fact was apparent to 
 the jury. The court was perhaps 
 not bound to instruct the jury with 
 reference to this fact. It was en- 
 tirely proper, •however, if the court 
 chose to do so, to inform the jury 
 as it did, that the fact that the 
 defendant failed to testify could 
 not be used to his prejudice. In 
 any event, the instruction was 
 favorable to the defendant, and 
 for that reason he has no right to 
 complain of it." 
 
 55 — State v. Johnson, 54 La. Ann. 
 138, 23 So. 199. 
 "Ingenious . counsel for the ac-
 
 1648 
 
 FORMS OP INSTRUCTIONS. 
 
 [§ 2557. 
 
 § 2557. Mississippi — Same Subject. It does not devolve upon the 
 defendant to account for or to show the whereabouts of the infant 
 in question, and the fact that he does not testify in this cause is not 
 to be considered unfavorably to him by the jury.^" 
 
 § 2558. Missouri — Same Subject. The court instructs the jury 
 that the fact that the defendant did not testify should not be con- 
 sidered by the jury in arriving at a verdict in this case, and no juror 
 shouKl be prejudiced against the defendant because he did not testify 
 in the ease.^^ 
 
 cused, in the brief, state that no 
 judge would presume to comment 
 upon the fact that a witness had 
 not been called by the accused, 
 and that, even if the other evi- 
 dence in the case plainly showed 
 that a certain person knew all 
 about the matter, still, if the ac- 
 cused failed or refused to place the 
 person on the stand, the judge 
 could not legally call the atten- 
 tion of the jury to the fact; that 
 he would not be allowed to say: 
 'There seems to have been a wit- 
 ness who knew all about this mat- 
 ter. He could have been produced 
 by the accused. Indeed, the ac- 
 cused was the only one who could 
 have made him a witness. No one 
 else could have done so. But, 
 gentlemen of the jury, that j:act 
 must not be construed against the 
 accused. He was not bound to 
 do so.' The affirmative statement 
 of the court, as put by counsel in 
 argument, is so pronounced, and 
 so directly bears on the case of an 
 accused for not producing a wit- 
 ness, that it renders of no effect 
 all subsequent admonition of the 
 court. Here the case is different. 
 * * * The accused remained silent, 
 and the judge informed the jury 
 that the privilege of silence should 
 not occasion question or suspicion 
 of any kind. We would not be 
 justified in assuming that the jury 
 took a contrary view, and upon 
 his silence found him guilty, de- 
 spite the instruction of the court." 
 Among the cases cited against 
 the instruction was State v. Carr, 
 25 La. Ann. 408. Counsel for de- 
 fendant cites Wilson v. U. S., 149 
 U. S. 60, 13 Sup. Ct. 765; Austin v. 
 People, 102 111. 261-264, and State v. 
 Cameron, 40 Vt. 556. See also 
 Tines v. Commonwealth, 25 Kv. 
 Law, 123.3, 77 S. W. 363 (364), hold- 
 ing that it is error for the court 
 to state the terms of the statute 
 to the jury, the prisoner being en- 
 
 titled to absolute silence on that 
 subject. 
 
 In State v. Marceaux, 50 La. 
 1137, 24 So. 611 (614) the following 
 was approved: 
 
 The court instructs the jury that, 
 while the law provides that a per- 
 son charged with a crime may tes- 
 tify in his own behalf, yet he is 
 under no obligation to do so, and 
 the law expressly declares that his 
 failure to testify should not be 
 construed for or against him. 
 
 56 — Haynes v. State, — Miss. — , 
 27 So. 601 (602). 
 
 57— State v. DeWitt, 186 Mo. 61 
 (65), 84 S. W. 956. Rape case. 
 
 "Our statute (section 2638, Rev. 
 St. 1899) provides that: 'If the ac- 
 cused shall not avail himself or 
 herself of his or her right to testi- 
 fy or of the testimony of the wife 
 or husband on the trial in the case, 
 it shall not be construed to affect 
 the innocence or guilt of the ac- 
 cused, nor shall the same raise 
 any presumption of guilt nor be re- 
 ferred to by any attorney in the 
 case nor be considered by the 
 court or jury before whom the trial 
 takes place.' Counsel for defend- 
 ant urges that the giving of the 
 foregoing instruction was a viola- 
 tion of section 2638, supra, and 
 was a comment on the evidence. 
 The latter objection is clearly not 
 tenable. Certainly it was not a 
 prejudicial comment to defendant. 
 Was it a violation of the statute 
 to mention the failure to testify? 
 Every juror knows that the de- 
 fendant may testify if ne sees fit, 
 and we have often ruled that it is 
 reversible error for counsel for the 
 state to comment upon such fail- 
 ure; but does this instruction in 
 any way fall within the mischiefs 
 which we have so often con- 
 demned? We think not. By it the 
 jury were cautioned and prohibited 
 from using such fact in arriving 
 at a verdict. The jury are required
 
 2559.] 
 
 CRIMINAL— CONFESSIONS. 
 
 1649 
 
 § 2559. Same Sul)ject — Nebraska. You are instructed that, while 
 the statute of this state provides that a person charged with crime 
 may testify in his own behalf, yet he is under no obligation to do 
 so, and the statute expressly declares that his neglect to do so shall 
 not create anj^ presumption against him.°^ 
 
 § 2560. Defendant's Failure to Testify Not to Be Alluded to in 
 Jury's Deliberations — Texas. The jury are instructed that any de- 
 fendant in a criminal action shall be permitted to testify in his own 
 behalf therein, but the failure of any defendant so to testify shall 
 not be taken as a circumstance against him. And in this case the 
 jury should not take into consideration the fact that the defendant 
 has failed to testify as a witness in his own behalf, and the jury 
 
 to accept the law of the case from 
 the court, and when the court posi- 
 tively directs them they shall not 
 consider a certain fact how can it 
 be said that such a chai'ge is pre- 
 judicial error. We are, however, 
 confronted with what was said in 
 State V. Robinson, 117 Mo. 649, 23 
 S. "W. 1066. In that case the de- 
 fendant prayed an instruction that 
 his failure to testify should not 
 create any presumption against 
 him, which was refused, and the 
 refusal was assigned as error In 
 this court. It was held not er- 
 ror, and it was added, 'If the court 
 had given such an instruction, it 
 would have disobeyed the spirit, if 
 not the letter, of the law.' That 
 such an instruction is not neces- 
 sary, and that it would not be er- 
 ror to refuse it, we may concede; 
 but is it reversible error to give it 
 in the form in which this instruc- 
 tion w'as given in this case? Upon 
 a full reconsideration of the point 
 we are satisfied it was not preju- 
 dicial to the defendant. It is the 
 law that the jury shall not con- 
 sider the failure of the defendant 
 to testify, and how can it, in rea- 
 son, be held error for the court to 
 caution the jury against consider- 
 ing that which the law forbids? 
 Taking the whole section together, 
 and the purpose of its enactment, 
 we think it was designed to pre- 
 vent the indulging of any adverse 
 presumption by court or jury from 
 the failure of defendant to testify 
 and to prohibit any adverse com- 
 ment on that account; but to 
 say that when a court directs a 
 jury they shall not consider such 
 a failure to testify in making up 
 their verdict amounts to an ad- 
 verse comment is illogical and un- 
 reasonable, and we must reject 
 
 104 
 
 such a conclusion. We think that 
 while it was unnecessary to give 
 the instruction it was not revers- 
 ible error to do so." 
 
 58— Lamb v. State, 69 Neb. 212, 
 95 N. W. 1050. 
 
 "It may well be doubted whether 
 the beneficent purpose of the stat- 
 ute is not in some measure thwart- 
 ed by the giving of an instruction 
 which pointedly directs the atten- 
 tion of the jury to the fact that 
 the accused might have been, but 
 was not, a witness in his own be- 
 half. However, it is now settled 
 doctrine in this state that the giv- 
 ing of an instruction like the one 
 above set out is not error. Metz v. 
 State, 46 Neb. 547, 65 N. W. 190; 
 Ferguson v. State, 52 Neb. 432, 72 
 N. W. 590, 66 Am. St. Rep. 512. 
 The jury may be told that the 
 failure of defendant to testify does 
 not create any presumption against 
 him, but our decisions give no 
 countenance to the claim that the 
 court must, if requested, direct 
 them to refrain from commenting 
 on the fact that he did not avail 
 himself of his statutory privilege. 
 The prohibition against reference 
 to, or comment upon, the failure 
 of ctn accused person to testify 
 was evidently intended as a re- 
 straint upon the public prosecutor, 
 and, with the exception indicated 
 by our previous decisions, upon 
 the court as well. State v. Robin- 
 son, 117 Mo. 663, 23 S. W. 1066; 
 State V. Weems. 96 Iowa 426, 65 
 N. W. 387; State v. Pearce, 56 
 Minn. 226, 57 N. W. 652, 1065; Sul- 
 livan V. State, 9 Ohio Cir. Ct. R. 
 652; Enc. PI. & Pr. .352.- 
 
 The statutory provision of Ne- 
 braska is as follows: " * * * nor 
 shall the neglect or refusal to 
 testify create any presumption
 
 1650 FORMS OF INSTRUCTIONS. [§ 2561. 
 
 are further instructed not to allude to this fact in their deliberations 
 in arriving at a verdict. ^^ 
 
 § 2561. Defendant Willfully Swearing Falsely. If the jury believe 
 from the evidence that any witness in this cause has willfully sworn 
 falsely on this trial as to any matter or thing material to the issues 
 in the ease, then the jury are at liberty to disregard his entire testi- 
 mony except in so far as it has been corroborated by other evidence, 
 or by the facts and circumstances proved on the trial. The defend- 
 ant in this case, having gone upon the stand as a witness in his own 
 behalf, subjects himself to all the rules governing the credibility of 
 other witnesses, and this instruction applies equally to him as well as 
 to any other witness."" 
 
 § 2562. Fabrication of Testimony by Defendant. The jury are 
 instructed, that if they believe, from the evidence, that the accused 
 believed that the circumstances surrounding him were calculated to\ 
 awaken suspicion against him, and that he was ignorant of the na- > 
 ture and course of criminal proceedings, and, under such belief, was ' 
 induced by his friends to fabricate testimony, then, the jury may 
 take these facts into consideration in considering the conduct of the 
 defendant in relation to fabricating such testimony, and in deter- 
 mining his guilt or innocence.*'^ 
 
 § 2563. Fabrication of Evidence — Used Against Accused. You 
 
 will understand that your first duty in the ease is to reject all evi- 
 dence that you may find to be false; all evidence that you may find 
 to be fabricated, because it is worthless ; and if it is purposely and 
 intentionally invoked by the defendant it is evidence against him; 
 it is the basis for a presumption against him, because the law says 
 that he who resorts to perjury, he who resorts to subornation of per- 
 juiy to accomplish an end, this is against him, and you may take 
 such action as the basis of a presvimption of guilt.*'^ 
 
 § 2564. Admission of Other Crimes — Indiana. In this ease, as 
 in all other criminal cases, the law provides that the defendant is a 
 competent witness in his own behalf, and that his testimony is to 
 be received and weighed 'by the jury as in the case of the testimony 
 of any other witness ; and if, in this case, the defendant has elected 
 to testify in his own behalf, and in so doing has testified to the com- 
 mission of any other or different crime from the one here charged 
 
 ag-ainst him, nor shall any refer- in the above instruction. It cer- 
 
 en'^e be made to, nor any comment tuinly states the law correctly, 
 
 upon, such neglect or refusal." and it would, therefore seem to be 
 
 Sec. 473 Neb. Crim. Code. unobjectionable. Rider v. People, 
 
 59— "This charge was proper, and 110 111. 13. See also, Spies v. Peo- 
 
 the court did not err in giving pie, 122 111. 1, 12 N. E. 865, 17 N. B. 
 
 the same." McCoy v. State, — 898, 3 Am. St. Rep. 320, 5 Am. Cr. 
 
 Tex. Cr. App. — . 81 S. W. 46 (47). Rep. 637, 6 Am. Cr. Rep. 570." 
 
 60— State v. Melvern, 32 "Wash. 7, 61— Yoe v. People, 49 Til. 410. 
 
 72 Pac. 489 (496). 62— Allen v. U. S., 164 U. S. 492 
 
 "Nor do we perceive any error (499), 17 S. Ct. 154.
 
 § 2565.] CRIMINAL— INDICTMENT. 1651 
 
 in the indictment, you will not, nor have you the right to, consider 
 such testimony for the purpose of punishing him for the crime here 
 charged, nor must you talk about it in your jury room for that pur- 
 pose, but must wholly free your mind from any such thing, and not 
 permit it to prejudice 5'ou or bias your judgment against the cause 
 of the defendant. But you may consider such evidence, if any there 
 be, in this case, in determining what credibility should be given to 
 the defendant's testimony in this case."^ 
 
 §2565. Conduct of Defendant. The defendant has testified to 
 his actions and conduct the night of the fire. You are to inquire 
 whether this is indicative of innocence or guilt and whether it is con- 
 sistent with the hj'pothesis that the defendant did not criminally 
 cause the death of these parties.*^* 
 
 INDICTMENT. 
 
 § 2566. Indictment Not Evidence, (a) The jurors are instructed 
 that the indictment in this case is of itself a mere formal accusation 
 or charge against the defendant, and is not of itself any evidence of 
 the guilt of the defendants, or of any one of them; and no juror 
 should permit himself to be to any extent influenced against any of 
 the defendants because or on account of the indictment in the case, 
 nor by reason of the fact that they were convicts in the penitentiaiy 
 when the killing charged in the indictment occurred.®^ 
 
 (b) The indictment preferring this charge against defendant is 
 no evidence whatever of his guilt; it is simply an accusation or 
 charge ; and no juror should suffer himself to be influenced in the 
 slightest degree by the fact that this indictment has been returned 
 against the defendant.''^ 
 
 (c) The juiy are instructed that the indictment in this case is 
 of itself a mere formal accusation or charge against the defendant, 
 and it is not of itself any evidence of defendant's guilt, and no juror 
 
 63 — Boyle v. State, 105 Tnd. 469, error of which the appellant could 
 
 5 N. E. 203 (208), 55 Am. Rep. 218. avail himself for a reversal of the 
 
 Homicide case. judgment." 
 
 "It has been the law in this 64— Schwantes v. State, 127 Wis. 
 state since 1852 that the conviction 160, 106 N. W. 237. 
 of an infamous crime may be "It is suggested that the Ian- 
 proved against the credibility of a guage tended to convey to the 
 witness, and for hundreds of years jury that the trial court believed 
 it was the rule of the common law the accused to be guilty. No good 
 that the conviction of an infamous reason, in fact, no reason at all, is 
 crime rendered a person incom- given in support of that sugges- 
 petent to testify." tion. "We cannot discover any." 
 
 In Conrad v. State, 132 Ind. 254, 65— State v. Vaughan, 200 Mo. 1, 
 
 31 N. E. 805 (806), it was held not 98 S. W. 2. 
 
 to be error to refuse a .substantial In State v. McCarver, 194 Mo. 717, 
 
 copy of this instruction. The 92 S. W. 684, the court approved a 
 
 onurt held that all that was decid- similar instruction, 
 
 ed in the Boyle case was "that the 66— State v. Moore, 168 Mo. 432, 
 
 riving of the instruction was not 68 S. W. 358 (360).
 
 1652 FORMS OF INSTRUCTIONS. [§ 2567. 
 
 should permit himself to be to any extent influenced against the 
 defendant because or on account of the indictment in the ease. 
 
 (d) The fact that the indictment was found by the grand jury, 
 or the indictment itself, cannot be considered by the jury in making 
 their verdict.^^ 
 
 (e) You are instructed, that while an indictment can be found 
 by the grand jury only after the hearing of evidence, still the in- 
 dictment in this case is a mere accusation or charge against the de- 
 fendant, and is not of itself any evidence in this case that the de- 
 fendant is guilty of the crime therein charged and set forth, but the 
 prosecution must have shown to your satisfaction, beyond a rea- 
 sonable doubt, that the defendant is guilty as therein charged. ^^ 
 
 (f) The court instructs the jury that the indictment in this ease 
 is a mere formal charge, and is no evidence whatever of defendant's 
 guilt.''^ 
 
 (g) The court further instructs the jury that the law presumes the 
 defendant to be innocent of the charge preferred against him by the 
 indictment returned to the court by the grand jury, until all of the 
 allegations in such indictment have been proven to be true, beyond a 
 reasonable doubt, and the law is that he is entitled to have this 
 jury indulge in such presumptions of innocence towards him until 
 you may believe from all the evidence, that he has been proven guilty 
 beyond a reasonable doubt, and the fact that he has been indicted 
 by the grand jury upon a charge of murder and is now being tried 
 upon that charge is not evidence of his guilt, and you are not to 
 consider that fact, or the indictment in this cause, any evidence of 
 his guilt, and if you convict the defendant you must do so upon all 
 the evidence in the case, and you cannot give any weight to any 
 belief to which you may arrive, unless that .belief be founded upon 
 the facts in evidence introduced before you in this ease. And if, 
 after you have heard all the evidence, you then have a reasonable 
 doubt in your minds as to the defendant's guilt, then it is your duty 
 to find him not guilty.''^° 
 
 § 2567. Indictment and Statement of Counsel, Not Evidence — 
 Testimony Stricken Out Not to Be Considered. The indictment in 
 this ease is a mei'e formal charge, and is not in itself any evidence 
 against the defendant. Statements of counsel are not evidence and 
 should not be so considered. Offers to prove certain alleged facts 
 which may have been made in your presence are not evidence, and 
 you should not take the same into consideration, nor allow yourselves 
 to be in any manner influenced thereby. Neither should the jury 
 consider any testimony stricken out by the court. ''^^ 
 
 67— State V. Hollinffsworth, 156 70— Parsons v. People, 218 111. 
 
 Mo. 178, r,6 S. W. 1087. 386 (396, 398), 75 N. E. 993. 
 
 68— Padflfld v. People, 146 111. 71— State v. Hudspeth, 159 Mo. 
 
 660 (662), 35 N. E. 469. 178, 60 S. W. 136. 
 
 69— State v. May. 172 Mo. 630, 72 
 S. W. 918 (920). Murder case.
 
 § 2568.] CRIMINAI^INDICTMENT. 1653 
 
 § 2568. Information Mere Formal Accusation — No Evidence of 
 Guilt — Presumption of Innocence, (a) The information in this case, 
 
 fiied on the day of , 1905, charges the defendant with the 
 
 crime of murder in the first degree. To this charge defendant pleads 
 not guilty. In making up your verdict in this case, the jury will be 
 governed by the instructions given by the court, as follows: The 
 information in this case is a mere formal accusation against the de- 
 fendant. It is no evidence of his guilt, and no juror should permit 
 himself to be influenced against the defendant because or on account 
 of said information. The law presumes the defendant to be inno- 
 cent, and this presumption of innocence attends him throughout the 
 trial until his guilt is established by the evidence beyond a reason- 
 able doubt. If, therefore, upon a consideration of all the evidence, 
 you have a reasonable doubt of the guilt of the defendant, you should 
 acquit him, but a doubt to authorize an acquittal on that ground 
 should be a substantial doubt touching the guilt of defendant, and 
 not a mere possibility of his innocence. '^^ 
 
 (b) The information in this case is a mere formal charge against 
 the defendant, and of itself is no evidence whatever of his guilt, 
 i)nd no juror should permit himself to be in any degree or to any 
 extent influenced by it."^ 
 
 (c) The court instructs the jury that the infonnation filed in this 
 case is a mere formal accusation, and raises no presumption against 
 the defendant, and the jury should not permit themselves to be in- 
 fluenced thereby against the defendant on account of said informa- 
 tion.'^* 
 
 (d) The information in this cause is a mere formal accusation, 
 and does not of itself constitute any evidence of guilt. '^^ 
 
 72— State v. Darling, 199 Mo. 168, 74— State v. Todd, 194 Mo. 377, 92 
 97 S. W. 592. S. W. 674. 
 
 73— State v. Privitt, 175 Mo. 207, 75— State v. Gatlin, 170 Mo. 354, 
 
 75 S. W. 457 (460). 70 S. W. S85 (888, 890).
 
 CHAPTER LXXXIX. 
 
 CRIMINAL— INSANITY — INTOXICATION— JURY JUDGES OF 
 THE LAW AND FACTS IN SOME STATES— MALICE. 
 
 See Erroneous Instructions, same chapter head, Vol. III. 
 
 § 2569. Insanity — Presumption — 
 Burden of proof. 
 
 § 2570. Insanity— Test of criminal 
 responsibility. 
 
 § 2571. Insanity as a means to 
 evade the law — Should be 
 examined with care. 
 
 § 2572. Insanity — Question of law 
 determined by the jury. 
 
 § 2573. Distinguishing- right from 
 wrong. 
 
 § 2574. Knowledge of right and 
 wrong the test. 
 
 § 2575. Obliterating the sense of 
 right and wrong. 
 
 § 2576. Defendant not conscious of 
 nature of act must be ac- 
 quitted. 
 
 § 2577. Want of power to realize 
 nature and quality of act. 
 
 § 2578. Want of will power by 
 reason of some insane im- 
 pulse sufficient defence. 
 
 § 2579. Excitement, passion and re- 
 venge distinguished from 
 insanity. 
 
 § 2580. Excitement, frenzy, irresist- 
 ible impulse no defence. 
 
 § 2581. Uncontrollable impulse. 
 
 § 2582. Irresistible impulse — Essen- 
 tial element of. 
 
 § 2583. Irresistible impulse must re- 
 sult from mental disease — 
 Knowing right and wrong. 
 
 § 2584. Whether mere weakness of 
 mind may amount to in- 
 sanity — Irresistible im- 
 pulse. 
 
 5 2585. Emotional insanity defined. 
 
 S 2586. Partial insanity — Laboring 
 under mental delusion. 
 
 § 2587. When insane delusion is a 
 sufficient defence. 
 
 § 2588. Erroneous conclusion dis- 
 tinguished from insane de- 
 lusion. 
 
 § 2589. Distinction between perma- 
 nent and temporary in- 
 sanity — Delirium tremens. 
 
 1654 
 
 2590. 
 
 2591. 
 
 2592. 
 2593. 
 
 2594. 
 
 2595. 
 
 2596. 
 
 2597. 
 
 2598. 
 2599. 
 2600. 
 2601. 
 
 2602. 
 2603; 
 2604. 
 2605. 
 
 2606. 
 
 2607. 
 
 Insanity — From use of drugs 
 — Requisites — Burden of 
 proof. 
 
 Insanity or idiocy — Must be 
 "clearly proved" — Requi- 
 sites of defence. 
 
 Killing must be the direct 
 consequence of insanity. 
 
 Insanity once shown pre- 
 sumed to continue until 
 disproved beyond reason- 
 able doubt. 
 
 Reasonable doubt as to san- 
 ity of defendant acquits 
 him. 
 
 Prisoner need only create 
 reasonable doubt to cast 
 burden on state. 
 
 Sanity presumed — Unless 
 evidence "clearly estab- 
 lishes" insanity. 
 
 Insanity— Defendant must 
 establish by preponder- 
 ance. 
 
 Burden of proof — Alabama 
 statutory plea of insanity. 
 
 Insanity — Need not be prov- 
 en by direct evidence. 
 
 Insanity at time of trial — 
 Jury not to determine. 
 
 Evidence as to ancestor's 
 insanity admissible only in 
 corroboration. 
 
 Insanity of defendant's 
 mother must be considered. 
 
 Insanity — Suicide not neces- 
 sarily evidence of. 
 
 Children poisoned by mother 
 of suicidal tendency. 
 
 Insanity — Hypothetical case 
 put to experts. 
 
 INTOXICATION. 
 
 drunkenness 
 
 no 
 
 Voluntary 
 
 excuse. 
 Getting intoxicated with a 
 
 view of committing crime.
 
 § 2569. 
 
 CRIMINAL— INSANITY. 
 
 1655 
 
 § 2608. Intoxication procured by ar- 
 tifice of deceased — Not vol- 
 untary. 
 
 § 2609. Irresistible impulse from 
 voluntary drunkenness no 
 defense. 
 
 § 2610. Insanity — Not the immediate 
 effect of intoxicants. 
 
 § 2611. Delirium tremens. 
 
 § 2612. Intoxication not amounting 
 to insanity no defence. 
 
 § 2613. Insanity produced by intox- 
 ication an excuse. 
 
 § 2614. Temporary insanity pro- 
 duced by use of intoxicat- 
 ing liquors in mitigation — 
 Murder. 
 
 § 2615. Intoxication not inconsistent 
 with premeditation. 
 
 S 2616. Intent — Intoxication as af- 
 fecting intention — Larceny. 
 
 S 2617. Voluntary intoxication will 
 not excuse any grade of 
 homicide except murder in 
 first degree. 
 
 5 2618. Intoxication may reduce 
 from murder to man- 
 slaughter. 
 
 § 2619. Drunkenness — Evidence as 
 to must raise a reasonable 
 doubt as to mental capac- 
 ity. 
 
 § 2620. Duty of jury to receive the 
 law the court states. 
 
 § 26Sl. Instruction — Same weight 
 for both state and defend- 
 ant — Adoption by court of 
 instructions. 
 
 § 2622. Jury judges of the law as 
 well as of the facts — 
 Georgia. 
 
 § 2623. Same subject— Illinois. 
 
 § 2624. Same subject — Indiana. 
 
 § 2625. Jury should give instruc- 
 tions of court respectful 
 consideration — Indiana. 
 
 MALICE. 
 
 § 2626. Definition of malice. 
 
 §2627. Malice aforethought — De- 
 fined. 
 
 §2628. Malice aforethought — A 
 question of fact. 
 
 § 2629. Malice express and implied. 
 
 § 2630. Express malice defined. 
 
 § 2631. Malice — Difference between 
 implied or constructive 
 malice and express malice. 
 
 § 2632. Defining "deliberately, felo- 
 niously, willfully, premedi- 
 tatedly, malice, and malice 
 aforethought" — Missouri. 
 
 § 2633. Malice presumed from use 
 of deadly weapon. 
 
 INSANITY. 
 
 § 2569. Insanity — Presumption — Burden of Proof, (a) The court 
 instructs the jury that the hiw presumes every man sane until the 
 contrary is shown by the evidence, and before the defendant can be 
 excused on the grounds of insanity the jury must believe from the 
 evidence that the defendant at the time of the killing was without 
 sufficient reason to know what he was doing, or that, as the result of 
 mental unsoundness, he had not then sufficient will power to govern 
 bis action by reason of some insane impulse which he could not 
 resist or control.^ 
 
 (b) You are instructed that eveiy m'an is presumed to be sane, 
 and to intend the natural and usual consequences of his own acts. 
 As the law presumes a man to be sane until the contrary is shown, I 
 charge you that the burden of proving insanity as a defense to a 
 crime is upon the defendant to establish by a preponderance of the 
 
 1 — Mathley v. Commonwealth, 
 120 Ky. 389, 86 S. W. 988 (989). 
 
 "The above instruction is object- 
 ed to because it places the burden 
 of proving his own insanity upon 
 the accused. This instruction is 
 approved in Abbott v. Common- 
 wealth, 107 Ky. 624, 55 S. W. 196; 
 
 Ball V. Commonwealth, 81 Ky. 662; 
 Brown v. Commonwealth, 14 Bush., 
 Ky.. 1400, and "Wright v. Common- 
 wealth, 24 Ky. L. 1838. 72 S. W. 240, 
 nnd must now be considered as af- 
 fording, when applicable, the cor- 
 rect rule."
 
 1656 FORMS OF INSTRUCTIONS. [§ 2570. 
 
 evidence, and unless insanity is established by a fair preponderance 
 of the evidence the presumption of sanity must prevail.^ 
 
 (c) Every presumption is in favor of the innocence of the defend- 
 ant; the only presumption against him being that he is of sound 
 mind and discretion, and hence responsible for his acts.^ 
 
 § 2570. Insanity — Test of Criminal Responsibility. The question 
 of the insanity of the defendant has exclusive reference to the act 
 with which he is charged and the time of the commission of the 
 same. If he was sane at the time of the commission of the act, he is 
 punishable by law. If he was insane at the time of the commission 
 of the act, he is entitled to be acquitted. A safe and reasonable 
 test is that whenever it shall appear from all the evidence that at 
 the time of committing the act the defendant was sane, and this con- 
 clusion is proven to the satisfaction of the jury, taking into con- 
 sideration all the evidence in the case, beyond a reasonable doubt, 
 he will be held amenable to the law. Whether the insanity be gen- 
 eral or partial, whether continuous or periodical, the degree of it must 
 have been sufficiently great to have controlled the will of the ac- 
 cused at the time of the commission of the act. Where reason ceases 
 to have dominion over the mind proven to be diseased, the person 
 reaches a degree of insanity where criminal responsibility ceases and 
 accountability to the law for the purpose of punishment no longer 
 exists.* 
 
 S 2571. Insanity as a Means to Evade the Law — Should Be Ex- 
 amined with Care, (a) The jury should be careful that it (mean- 
 ing insanity or the plea of insanity) is not used as a means to evade 
 the law, as well as to see to it that a person irresponsible should not 
 be punished.^ 
 
 (b) The defense of insanity is one which may be, and sometimes 
 is, resorted to in cases where the proof of the overt act is so full 
 and complete that any other means of avoiding conviction and es- 
 caping punishment seems hopeless. While, therefore, this is a de- 
 fense to be weighed fully and justly, and, when satisfactorily estab- 
 lished, must recommend itself to the favorable consideration of the 
 humanity and justice of the jury, they are to examine it with care, 
 lest an ingenious counterfeit of such mental disorder should furnish 
 protection to guilt.^ 
 
 2— State V. Clark, 34 Wash. 485, the stren^h of People v. Pico, 62 
 
 76 Pac. 98 (101). Cal. 50. "In People v. Dennis, 39 
 
 3— State V. Mills, 116 N. C. 992, Cal. 625, and in People v. Bum- 
 
 21 S. Vj. 106 (107). berger, 45 Cal. 650, it was held to 
 
 4— Hotema v. United States, 186 be proper for the trial court to In- 
 
 U. S. 413 (416), 22 S. Ct. 895. struct the jury to 'view the evi- 
 
 o — Braham v. State, 143 Ala. 28, dence upon the defense of insanity 
 
 :J8 So. 919 (926). with cure, lest feig-ned insanity 
 
 6 — People V. Donlan, 135 Cal. might shield a defendant from the 
 
 489, 67 Pac. 761 (762), citing People just consequences of his guilt.' " 
 
 V. Larrabee, 115 Cal. 159, 46 Pac. The court said: 
 
 923; where an instruction almost "This instruction met with un- 
 
 identical in terms was' approved ou qualified approval in Sawyer v.
 
 § 2572.] 
 
 CRIMINAL— INSANITY. 
 
 1657 
 
 § 2572. Insanity— Question of How Determined by the Jury. In 
 
 determining the question wliether the defendant was insane at the 
 time of the alleged commission of the act, the jury are to consider 
 all his acts at the time of, before, and since the alleged commission 
 of the act, as such acts and conduct have been shown by the evidence, 
 and the jury have the right to consider the defendant's appearance 
 and actions during the trial as a circumstance in detei'mining his 
 insanity at the time of the homicide." 
 
 § 2573. Distinguishing Right from Wrong, (a) If you believe 
 from the evidence beyond a reasonable doubt that, at the time of 
 doing the alleged acts, the defendant was able to distinguish right 
 from wrong, then j^ou cannot acquit him on the ground of insanity. 
 
 (b) If you believe, from the evidence, beyond a reasonable doubt, 
 that the defendant committed the crime in manner and form as 
 charged in the indictment, and at the time of committing such act 
 was able to distinguish right from wrong, you should find him guilty. 
 
 (c) If from all the evidence in the case, you believe, beyond a 
 reasonable doi^bt, that the defendant committed the crime of which 
 he is accused in manner and fonn as charged in the indictment, and 
 
 State, 35 Ind. SO; and the principle 
 therein enunciated has been refer- 
 red to approvingly in Sanders v. 
 State, 94 Ind. 147; and Butler v. 
 State, 97 Ind. 378. It can hardly be 
 said to contain the statement of 
 any proposition of law, but it Is 
 rather in the nature of a general 
 disparagement of the defense of 
 insanity, which the accused had 
 pleaded, as provided by statute. A 
 case might possibly arise in which 
 such a statement could be appro- 
 priately made by the court. As the 
 judgment in the present case must 
 be reversed for other reasons, we 
 do not determine whether or not it 
 constituted reversible error in this 
 case. It is sufficient to say that, 
 as at present constituted, the 
 court does not regard with favor 
 any statements by the trial court 
 which are designed to cast dis- 
 credit or suspicion upon any de- 
 fense which is recognized by the 
 law as legitimate, and which an 
 accused person is making in ap- 
 parent good faith. In this respect, 
 w'e are unable to appreciate any 
 well-grounded distinction between 
 the defense of insanity, self-de- 
 fense, or alibi. Line v. State, 51 
 Ind. 172, 1 Am. Cr. Rep. 615; Safer 
 v. State, 56 Ind. 378; Albin v. 
 State, 63 Ind. 599, 3 Am. Cr. Rep. 
 295; Simmons v. State, 61 Miss. 
 243; Dawson v. State. 62 Miss. 241; 
 Thomp. Trials, para. 2433. In those 
 jurisdictions where judges are per- 
 
 mitted to comment upon the weight 
 and value of evidence, it has been 
 held proper for the court to cau- 
 tion the jury concerning a defense 
 which judicial experience has 
 shown to be often attempted by 
 contrivance and perjury. Com. v. 
 Webster, 5 Cush. 295, 52 Am. Dec. 
 711; Thomp. Trials, para. 2434. This 
 rule does not prevail in Indiana. 
 Unruh v. State, 105 Ind. 117, 4 N 
 E. 453." 
 
 This instruction, however, was 
 held error in State v. Shuff, 9 Ida- 
 ho 115. 72 Pac. 664 (670), 13 Am. Cr. 
 Rep. 443, where the court said: 
 
 "In all other matters except that 
 of insanity, the defendant is en- 
 titled to every reasonable doubt. 
 It is a well-settled principle that 
 trial courts should be guarded 
 from any expression, in the pres- 
 ence or hearing of the jury, that 
 can in any way be construed into 
 an expression of their views on 
 any evidence that may be before 
 the jury. Aszman v. State, 123 
 Ind. 347, 24 N. E. 123, 8 L. R. A. 33; 
 Dawson v. State, 62 Miss. 241; 
 Thompson on Trials, vol. 2, par.' 
 2433. An inspection of the above 
 authorities will disclose that it was 
 error to give this instruction. The 
 last paragraph of the instruction 
 wns misleading, also, and should 
 not have been given." 
 
 7— People v. Donlan, 135 Cal. 489 
 67 Pac. 761 (763).
 
 1658 FORMS OF INSTRUCTIONS. [§2574. 
 
 that at the time of the commission of such crime, the defendant 
 knew that it was wrong to commit such crime, and was mentally 
 capable of choosing either to do or not to do the acts constituting 
 such crime, and of governing his conduct in accordance with such 
 choice, then it is your duty under the law to find him guilty, even 
 though you should believe from the evidence that at the time of the 
 commission he was not entirely and perfectly sane.^ 
 
 (d) If the jury believe, from the evidence, that at the time when 
 the fatal blow is alleged to have been struck, the defendant was 
 so far affected in his mind and memoi-y that he was not able to 
 distinguish right from wrong, and had not knowledge and under- 
 standing of the character and consequences of his act and power of 
 will to abstain from it, then he was not a legally responsible being, 
 and the jury should find him not guilty.^ 
 
 (e) The law does not excuse unless the insanity is of such a 
 character that it actually renders the person incapable of distinguish- 
 ing between right and wrong in respect to the particular act charged, 
 at the time of its commission.^** 
 
 § 2574. Knowledge of Right and Wrong the Test, (a) If you 
 tihould find beyond a reasonaible doubt that the defendant took the 
 life of Ella Q. as charged in the indictment, and that at the time of 
 such homicide he knew and understood that it was -wrong to take 
 her life, and was able to comprehend and understand the conse- 
 quences of such act, then, and in that event, it will be your duty 
 to find the defendant guilty of murder as charged in the indictment. 
 But, on the other hand, if you should find that he was not able to 
 know that the act of taking her life was wrongful and was not able 
 to comprehend and understand the consequences of such act, then 
 you should find the defendant not guilty.^i 
 
 8— Hornish v. People, 142 111. 620 of sound mind and memory, and 
 
 (624), 32 N. E. 677. Charged assault capable of committing- crime, 
 
 with' intent to murder. Brinkley v. The State, 58 Ga. 296, 
 
 9 — The same instructions were is authority for the above instruc- 
 
 approved in Dunn v. People, 109 tion, but it ignores the fact that an 
 
 111. 635, 4 Am. Cr. Rep. 52; State v. insane person may be able to dis- 
 
 Mewherter, 46 Iowa 88; Com. v. tinguish, but not to choose, between 
 
 Rogers 7 Mete. 500; Freeman v. right and wrong. State v. Keerl, 
 
 People, 4 Denio 10; State v. Hu- 29 Mont. 568, 75 Pac. 362 (363); a 
 
 ting, 21 Mo. 464; Willis v. People, 5 like instruction was approved in 
 
 Tiffany 715; Anderson v. State, 45 State v. Mewherter, 46 Iowa 88, as 
 
 Ga. 11; People v. Coffman, 24 Cal. follows: 
 
 230. * * * This would not exempt him 
 
 10_state V. Coats, 174 Mo. 396, 74 from liability for his acts, if the 
 
 S. W. 864 (870). jury believe, from the evidence, be- 
 
 The jury are instructed, as a yond a reasonable doubt, that he 
 
 matter of law, that if a person intentionally fired the shot which 
 
 has capacity and reason sufficient killed the deceased, and that he 
 
 to enable him to distinguish be- knew and was conscious at the 
 
 tween right and wrong as to the time, that the act he was doing 
 
 particular act in question— that is, was wrong and punishable by the 
 
 If he has knowledge and is con- laws of the land, 
 
 scious that the act he is doing is 11— Queenan v. Territory, 11 Okla. 
 
 wrong and would deserve punish- 261. 71 Pac. 218 (225), 61 L. R. A. 
 
 ment— he is, in the eye of the law, 324. Homicide case.
 
 § 2575.] CRIMINAL— INSANITY. 1659 
 
 (b) If one has sufficient mind and understanding to know right 
 from wrong regarding the particular act, and is able to comprehend 
 and understand the consequences of such act, the law recognizes him 
 as sane, and holds him responsible for such act.^- 
 
 (c) If, from all the evidence in the case, you believe, beyond a 
 reasonable doubt, that the defendant committed the crime of which 
 he is accused, in manner and form as charged in the indictment, and 
 that at the time of the commission of such crime the defendant knew 
 that it was wrong to commit such crime, and was mentally capable of 
 choosing either to do or not to do the act or acts constituting such 
 crime, and of governing his conduct in accordance with such choice, 
 then it is your duty, under the law, to find him guilty, even though 
 you should believe^ from the evidence, that at the time of the com- 
 mission of the crime he was not entirely and i^erfectly sane, or that 
 he was greatly excited or enraged, or under the influence of intoxi- 
 cating liquor.^^ 
 
 (d) If, from all the evidence in the case, A'ou believe beyond a 
 reasonable doubt that the defendant committed the act of which he is 
 accused, in the manner and form as charged in the indictment, and 
 that at the time of the commission of said crime the defendant knew 
 that it was wrong to commit it, and that he was mentallj' capable 
 of choosing either to do or not to do the act constituting such crime, 
 and of governing his conduct according to such choice, then it is 
 your duty, under the law, to find him guilty.^* 
 
 § 2575. Obliterating the Sense of Right and Wrong. You are in- 
 structed, if you believe from the evidence, that the act charged 
 against the defendant in the indictment was committed by him as 
 therein charged, but that at the time of committing the same the 
 defendant was a lunatic or insane to the extent of obliterating the 
 sense of right or wrong as to the particular act done, you should so 
 find A^our verdict. ^^ 
 
 § 2576. Defendant Not Conscious of Nature of Act Must Be Ac- 
 quitted. The court instructs you that, if this prisoner was of un- 
 sound mind to such an extent that he was not conscious of the nature 
 of the act he was committing, then you ought to acquit him on the 
 ground of insanity.^^ 
 
 § 2577. Want of Power to Realize Nature and Quality of Act. If 
 you find from the evidence that at the time of the alleged commis- 
 sion of the offense, the defendant was suffering from mental aberra- 
 
 "We think that this instruction 13— Dunn v. People, 109 III. 635, 
 
 fairly and correctly states the law 4 Am. Cr. Rep. 52. 
 
 applicable to this case, and comes 14— State v. Lyons, 113 La. 959, 37 
 
 within the rule announced by this So. 890 (903-4). 
 
 court in Maas v. Territory, 10 15 — Hornish v. People, 142 111. 
 
 Okla. 714, 63 Pac. 960, 53 L. R. A. 620 (624), 32 N. E. 677; assault with 
 
 814." intent to kill. 
 
 12 — Queenan v. Oklahoma, 190 U. 16 — Commonwealth v. Hollinger, 
 
 S. 548 (550), 23 S. Ct. 762. Homicide 190 Pa. 155, 42 Atl. 548 (550). 
 case.
 
 1660 FORMS OP INSTRUCTIONS. [§ 2578. 
 
 tion or sickness of mind produced by any cause, and by reason thereof 
 his judgment, memory and reason were so perverted that he did not 
 realize the nature and quality of the act he was doing, or that he 
 did not realize that it was wrong, you must find that he was insane, 
 and for that reason not guilty.^^ 
 
 § 2578. Want of Will Power by Reason of Some Insane Impulse, 
 Sufficient Defence, (a) The law presumes every man sane until the 
 contrary is shown by the evidence ; and, before the defendant can 
 be excused on the ground of insanity, the jury must believe from 
 the evidence that the defendant was at the time of the killing without 
 sufficient reason to know what he was doing, or had not sufficient 
 reason to know riglit from wrong, or that, as the result of mental 
 unsoundness, he had not then sufficient will power to govei'n his ac- 
 tions, by reason of some insane impulse which he could not resist or 
 control.^^ 
 
 (b) Insanity means such a perverted and deranged condition of 
 the mental and moral faculties as to render a person incapable of 
 distinguishing between right and wrong, or not conscious at the time 
 of the nature of the act which he is committing; and where, though 
 conscious of it, and able to distinguish between right and wrong, and 
 knowing that the act is wrong, yet his will — by which is meant the 
 governing power of his mind — has been, otherwise than voluntarily, 
 so completely destroyed that his actions are not subject to it, but are 
 be^^ond his control.'^ 
 
 § 2579. Excitement, Passion and Revenge Distinguished from In- 
 sanity. The jury are further instructed that excitement, passions 
 and angered feeling, or revenge, produced by motives of anger 
 hatred or revenge, is not insanity, and that the law holds the wrong- 
 doer of an act under such conditions responsible for his acts, and the 
 jury have no right to excuse or in any wise justify or mitigate de- 
 fendant 's act in the taking of W. 's life, except they can so do under 
 and according to the law.^" 
 
 § 2580. Excitement, Frenzy, Irresistible Impulse to Avenge No 
 Defence. In order to hold the defendant criminally resiDonsible for 
 taking the life of W., it is only necessary that the jury be satisfied 
 from all the evidence [beyond a reasonable doubt] that he had suf- 
 ficient mental capacity to distinguish between right and wrong as to 
 the particular act with which he so stands charged. * * * Excite- 
 ment or frenzy arising from the passion of anger, hatred or revenge, 
 
 17— Schissler v. State, 122 Wis. W. 590; Eckert v. State, 114 Wis. 
 
 365, 99 N. W. 593 (599). 160 (163-164), 89 N. W. 826. Sub- 
 
 18 — Abbott v. Commonwealtli, 107 stantially the s.ame instruction was 
 
 Ky. 624, 55 S. W. 196 (198). approved in Davis v. United 
 
 19— "Sucli ruling has been ex- States, 165 U. S. 373 (378). 17 S. Ct. 
 
 pressly sanctioned by this court." 360. 
 
 T^owe v. State, 118 Wis. 641, 96 N. 20— State v. Privitt, 175 Mo. 207, 
 
 W. 417 (424). CitiiiR- Rutler v. 75 S. W. 457 (459). 
 State, 102 Wis. 364 (366, 367), 78 N.
 
 § 2581.] CRIMINAL— INSANITY. 1661 
 
 no matter how furious, if not the result of a diseased mind, is not 
 legal insanity, and the juiy should not confound excitement, anger 
 or wrath, or acts done or committed in either or both, or in revenge, 
 with actual insanity — insanity recognized by law, because it is only 
 legal insanity, a disease of the brain, rendering a person incapable 
 of distinguishing between right and wrong with respect to the offense 
 charged, that excuses the commission of such act. The doing of such 
 act in frenzy, hatred or revenge, or by reason of some irresistible 
 impulse to avenge some former wrong or grudge, does not excuse. ^^ 
 
 § 2581. Uncontrollable Impulse. The real test, as I understand it, 
 of liability or nonliability rests upon the proposition whether at the 
 time the homicide was committed H. had a diseased brain, and it was 
 not partially diseased or to some extent diseased, but diseased to the 
 extent that he was incapable of forming a criminal intent, and that 
 the disease had so taken charge of his brain and had so imi:)elled it 
 that for the time being his will power, judgment, reflection and con- 
 trol of his mental faculties were impaired so that the act done was an 
 irresistible and uncontrollable impulse with him at the time he com- 
 mitted the act. If his brain was in this condition, he cannot be pun- 
 ished by law.'2 
 
 § 2582. Irresistible Impulse — Essential Elements of. Agaii^, if the 
 accused knew that he was doing wrong, yet, acting under an irresist- 
 ible impulse, having lost his power of self-control, kills the party, he 
 will not be criminally liable. It must be the irresistible impulse of a 
 lunatic, and not the violent passion of a sane man, prompted by re- 
 venge, hatred, jealousy, envy, etc., w^hieh does not exempt from crim- 
 inal liability nor confer irresponsibility.-^ 
 
 § 2583. Irresistible Impulse Must Result from Mental Disease — 
 Knowing Right and Wrong. If the defendant did shoot A. B., but 
 at the time he did so the defendant had mental capacity sufficient to 
 enable him to know right from Avrong, and if at the time he had will 
 power sufficient to enable him to choose 'between shooting and re- 
 fraining from shooting said A. B., the defendant was of sound mind; 
 and if the defendant did shoot A. B., but at the time he did so the 
 defendant had mental capacity sufficient to enable him to know right 
 from wrong, and if his mind was free from disease, then no impulse 
 to shoot said A. B., no matter hoAv violent, and no matter how com- 
 pletely it dominated the will of the defendant, Avas unsoundness of 
 mind.24 
 
 21— State V. Privitt. 175 Mo. 207, 37 So. 890 (903); charge of homi- 
 
 75 S. W. 457 (459-460). homicide. It cide. 
 
 is suggested that the words in 24— In McCarty v. Common- 
 
 hrackets should be Inserted in this wealth, 24 Ky. Law Rep. 1427, 71 
 
 Instruction. S. W. 656 (657); homicide. 
 
 22— Hotema v. U. S., 186 U. S. The court said of this instruc- 
 
 413 (416), 22 Sup. Ct., 895; charge of tion: 
 
 homicide. "It must be the contention of ap- 
 
 23 — State v. Lyons, 113 La. 959, pellant's counsel, that any impulse
 
 1662 FORMS OF INSTRUCTIONS. [§2584. 
 
 S 2584. Whether Mere Weakness of Mind May Amount to Insanity 
 — Irresistible Impulse. Depression or weakness following from phys- 
 ical illness, and such as in all respects ordinarily takes place with men 
 possessing fair ave];age mental power, is not of itself insanity, but if 
 disease, of whatever kind or character, leave the patient in such 
 weakened mental condition that he cannot resist the impulse to com- 
 mit a crime, he is not of sound mind. A person may have sufficient 
 mental capacity to know right from wrong, and be able to compre- 
 hend the nature and consequences of his act, and yet not be crimi- 
 nally responsible; for to make him criminally responsible, he must 
 not only be able to know and apprehend right from wrong, but also 
 to have the will power to control and resist an impulse to commit 
 crime. -•'' 
 
 § 2585. Emotional Insanity Defined. Emotional insanity depends 
 upon the mere emotions of the time arising from some defective or 
 perverted moral sense, which begins on the eve of the crime and ends 
 when it is finished.-'' 
 
 $ 2586. Partial Insanity — ^Laboring under Mental Delusion, (a) 
 
 The court instructs the jury that the law recognizes partial as well 
 as general insanity; that a person may be insane upon one or more 
 subjects, and sane as to others ; that he may be laboring under a 
 mental delusion upon some particular matter, or regarding a par- 
 ticular person, and generally sane upon all other subjects; and that 
 the law made no difference, as regards the guilt of the party charged, 
 whether the act charged was produced by general insanity or by men- 
 tal delusion regarding some particular subject or person. ^'^ 
 
 that at the time may be irresis- If the defendant did shoot A. B., 
 tible, will excuse homicide. Hap- but at the time he shot her the 
 pily for society, this is not the defendant did not have mental ca- 
 law. * * * The irresistible im- pacity sufficient to enable him to 
 pulse recognized by the law is know and understand that it was 
 that only resulting from mental wrong to shoot said A. B., the de- 
 diseases, — from the derangement fendant was of unsound mind; or, 
 of the mind caused by a disease if the defendant did shoot said A. 
 of the mind. It is not material B., but at the time he shot her the 
 how recently the derangement may defendant was prompted to do 
 have occurred. A person acts such shooting by an impulse, re- 
 under an insane, irresistible im- suiting from a diseased mind, of 
 pulse when^ by reason of the du- such violence that it 'overcame the 
 ress of meMal disease, he has lost will of the defendant, and con- 
 the power to choose between right strained him to shoot said A. B., 
 and wrong, to avoid doing the when he did not wish to shoot 
 act in question, his free agency her, the defendant was of unsound 
 being at the time destroyed. 1 mind. 
 
 Bish. Cr. Law, par. 387; JParsons 25— Wheeler v. State, 158 Ind. 68V, 
 
 v. State, 81 Ala. 577, 2 So. 854, 60 63 N. E. 975 (980). 
 
 Am. Rep. 193; Portwood v. Com., 26— Genz v. State, 58 N. J. L. 
 
 104 Ky. 496, 47 S. W. 339; Graham 482, 34 Atl. 816. 
 
 v. Com., 16 B. Mon. 587; Brown v. 27— Thurman v. State, 32 Neb. 
 
 Com., 14 Bush. 398; Mnore v. Com., 224, 49 N. W. 338 (338-9). Charge: 
 
 92 Ky. 637, 18 S. W. 833." Assault with intent to murder, ap- 
 
 In McCarthy v. Commonwealth, proves the above, supplemented 
 
 supra, the following instruction with the following: 
 
 was also approved: Something has been said in the
 
 § 2587.] CRIMINAL— INSANITY. 1663 
 
 (b) The court further instructs j'ou that if you find the accused 
 was possessed of a partial delusion only, and was not in other re- 
 spects insane, then he must be considered in the same situation, as 
 to responsibility, as if the facts with respect to which the delusion 
 exists were real. For example, if, under the influence of his delusion, 
 he supposed another man to be in the act of attempting to take away 
 his life, and he killed that man, as he supposed, in self-defense, he 
 would be exempt from punishment, but if his delusion was that the 
 deceased had done a serious injury to his character or person, and 
 he killed him in revenge for such supposed injuiy, he would be liable 
 to punishment.-^ 
 
 § 2587. When Insane Delusion Is a Sufficient Defense., (a) When 
 a monomania or insane delusion is the species of insanity set up by 
 the accused, it may operate as an excuse for a criminal act only 
 when the delusion is such that the person under its influence has a 
 real and firm belief in some fact, not true in itself, but which, if it 
 were true, would excuse the act, as when the belief is that the party 
 killed has an immediate design on his life, and under that belief the 
 insane man kills his supposed enemy in supposed self-defense. 
 
 (b) But if the delusion held by the defendant was that the party 
 whom he killed had acted dishonestly towards him, or had not prop- 
 erly attended to his business — in fact, had committed any act which 
 did not expose defendant's life to imminent danger or did not subject 
 his pei'son to great bodily harm — such delusion would not justify an 
 acquittal, as, even though such delusion existed, it would not be of 
 such a character, even if it were true, as to justify homicide.^^ 
 
 (c) The court further instructs you that, if you find that the ac- 
 cused was possessed of a delusion or delusions, you are carefully to 
 bear in mind that it is not every delusion that can be considered an 
 
 instructions about insane delu- cuse on the ground of insane de- 
 
 sions. It is not every delusion luslons, because, if thie fact had 
 
 that can be considered an insane really been that the man had done 
 
 delusion. The delusion must be of the person a mean trick, just 
 
 such a character, that, if things imagined, it would not justify the 
 
 were as the delusion imagined shooting. An insane delusion is 
 
 them to be, they would justify the like a waking dream; the subject 
 
 act springing from the delusion, can neither be reasoned into nor 
 
 To illustrate: If a person be out of it. I may throw some light 
 
 under the insane delusion that he on the application of the subject 
 
 is the Almighty himself, or is di- to this case to consider whether 
 
 rectly commissioned or com- a conviction in this case would 
 
 manded by the Almighty himself have a tendency to prevent repe- 
 
 to shoot a particular person that tition of such acts, 
 the Almighty has decided must Citations: 1 Whart. Cr. Law, 
 
 be shot, and is moved by such Sec. 37; Commonwealth v. Rogers, 
 
 delusion alone to do the shooting, 7 Mete. (Mass.) 500; Hadfield's 
 
 that would be an insane delusion, Case, 27 How., St. Fr. 1282; Stef- 
 
 tieciuse, if true, it would justify fens Dig. Crim. Law, 160. 
 the shooting. But if a person be 28— State v. Keerl, 29 Mont. 508, 
 
 imder the delusion that some man 75 Pac. 362 (363). 
 has done him a mean trick, and 29 — State v. Lyons, 113 La. 959, 
 
 tnat he ought to be shot for it, 37 So. 890 (903); charge of homi- 
 
 and the delusion moves the person cide. 
 to shoot the man, that is no ex-
 
 1664 FORMS OF INSTRUCTIONS. [§ 2588. 
 
 insane delusion. The delusion must be of such a character that, if 
 things were as the person possessed of such delusion imagined them 
 to be, they would justify the act springing from the delusion.^*^ 
 
 § 2588. Erroneous Conclusion Distinguished from Insane Delusion. 
 
 There is evidence in this case tending to show that H. believed in 
 witches, and that such belief was taught by the Bible, and had the 
 belief that his people and tribe were being affected by witches, and 
 that the deaths that were occurring in the neighborhood were due to 
 the evil influence of witches, and that the party he slew was a witch. 
 Upon this phase of the case you are instructed that if the evidence 
 shows that the defendant H. believed in witches, and that it was the 
 result of his investigation and belief as to what the Scriptures taught^ 
 and that he acted upon that belief, thinking he had the right to kill 
 the party he is charged with killing, because he thought she was a 
 witch, but at the time he knew it was a violation of human law and 
 he would be punished therefor, in that event it would not be an in- 
 sane delusion upon the part of H., but would be an erroneous con- 
 clusion, and, being so, would not excuse him from the consequences of 
 his act.^^ 
 
 § 2589. Distinction between Permanent and Temporary Insanity — 
 Delirium Tremens. Insanity of a permanent nature, when once shown 
 to exist, is presumed to continue until the contrary appears; but 
 where delirium tremens is set up as a defense, the delirium must ex- 
 ist at the time the act was committed, as there is no presumption of 
 its existence from antecedent fits from which the party has recovered, 
 for this is a mere transient derangement of the mind, and there is 
 no presumption of its recurrence or continuanee.^- 
 
 § 2590. Insanity — From Use of Drugs — Requisites — Burden of 
 Proof. The court instructs the jury that if you further believe it has 
 been shown by a preponderance of the evidence that at the time of 
 the killing defendant, by the continued or recent use of moiphine or 
 cocaine or both, or by such use of either or both of said drugs, com- 
 bined with whiskey, or from any other cause, except the voluntary 
 recent use of ardent spirits alone, as heretofore explained to you, was 
 rendered temporarily insane, and while in such state of insanity 
 killed deceased, and that defendant's mind was at the time of such 
 killing so affected with insanity that he did not understand the nature 
 
 30— State v. Keerl, 29 Mont. 508, literal copy of an instruction ap- 
 
 7n Pac. 362 (363). proved in the case of Goodwin 
 
 .31— Hotema v. United States, 186 v. State, 96 Ind. 550 (560)," and the 
 
 U. S. 413 (419), 22 S. Ct. 895; homi- fact that the evidence showed fre- 
 
 cide. quent attacks of delirium tremens 
 
 32 — WagTier v. State, 116 Ind. 181, and that such frequent attacks 
 
 18 N. E. 833 (836). Affirmin,? con- would have the effect of weaken- 
 
 viction for assault with intent to inj^ the mind did not render it in- 
 
 kill. The court said that, applicable or so erroneous as to 
 
 "With the exception of the last require a reversal of the judg- 
 
 two sentences, the foregoing is a ment.
 
 § 2591.] CRIMINAL— INSANITY. 1665 
 
 and quality and character of the act of killing deceased and its con- 
 sequences, or if his mind at the time of such killing was in such 
 diseased and unsound condition that for the time being his reason, 
 conscience, and judgment was overwhelmed to such an extent that 
 he did not know such act was wrong and criminal, and would sub- 
 ject him to punishment, or create in the mind of the defendant an 
 uncontrollable and irresistible impulse to kill deceased, which because 
 of such unsound condition of his mind, he had not sufficient reason, 
 judgment, and will power to resist, then you will acquit defendant.^^ 
 
 §2581. Insanity or Idiocy — Must Be "Clearly Proved" — Requi- 
 sites of Defense. Among other defenses made in this case is that of 
 insanity or idiocj'. You ai-e charged that only a person with a sound 
 memory and discretion can be punishable for a crime, and that no act 
 done in a state of insanity or idiocy can be held punishable as an of- 
 fense. Every man is presumed to be sane until the contrary appears 
 to the jury trj-ing him. He is presumed to entertain, until this ap- 
 pears, a sufficient degree of reason to be responsible for his acts; and 
 to establish a defense on the ground of insanity or idiocy it must be 
 clearly proved that at the time of committing the act the party ac- 
 cused was laboring under such defect of reason, from diseases of 
 mind, as not to know the nature or quality of the act he was doing; 
 or, if he did know that, he did not know he was doing wrong — that 
 is, that he did not know the difference between the right and wrong 
 as to the particular act charged against him. The insanity or idiocy 
 must have existed at the very time of the commission of the offense, 
 and the mind must have been so dethroned of reason as to deprive the 
 person accused of a knowledge of the right and wrong as to the par- 
 ticular act done. You are to determine from the evidence in this case 
 the matter of insanity or idiocy, it being a question of fact, controlled, 
 so far as the law is concerned, by the instructions herein given you. 
 In case you find from the evidence that the defendant was insane or 
 an idiot at the time of the commission of the act, and you acquit him 
 under the instructions heretofore given you, you will state in your 
 verdict that you have acquitted defendant on the grounds of insanitj'' 
 or idiocy; and the burden of proof to establish his plea of insanity or 
 idiocy devolves upon defendant.^* 
 
 § 2592. Killing Must Be the Direct Consequence of. Insanity will 
 only excuse the commission of a criminal act when it is made to ap- 
 pear, affirmatively, by a preponderance of the evidence, that the per- 
 son committing it was insane, and that the offense was the direct con- 
 sequence of his insanity.^^ 
 
 33 — "This charge is correct, an<3 34 — "The charge of the court is 
 
 is the law of this state." Cannon correct." Nugent v. State, 46 Tex. 
 
 V. State, 41 Tex. Cr. App. 467, 56 Cr. App. 67, 80 S. W. 84. 
 
 S. W. 351 (361); citiner Leache v. 35— State v. Stickley, 41 Iowa 232. 
 
 State, 22 Tex. App. 279, 3 S. W. This states the law only in those 
 
 539, 58 Am. Rep. 638; King v. State, juripdictions where the defence of 
 
 9 Tex. App. 515. insanity must be established by a 
 105
 
 1666 FORMS OF INSTRUCTIONS. [§ 2593. 
 
 § 2593. Insanity Once Shown Presumed to Continue Until Dis- 
 proved beyond Reasonable Doubt. The jury are instructed that a 
 reasonable doubt as to the sanity of the defendant may arise upon 
 the evidence of the state, whether the defendant introduce any evi- 
 dence on the subject or not, and, wherever insanity has once been 
 shown to exist, it will be presumed to have continued until the con- 
 trary has been shown by the evidence (beyond a reasonable doubt). ^° 
 
 § 2594. Reasonable Doubt as to Sanity of Defendant Acquits Him. 
 
 (a) But if you find from the evidence, or have a reasonable doubt in 
 regard thereto, that his brain at the time he committed the act was 
 impaired by disease, and the homicide was a product of such disease, 
 and that he was incapable of forming a criminal intent, and that he 
 had no control of his mental faculties and the will power to control 
 his actions, but simply slew V. C. because he was laboring under a 
 delusion which absolutely controlled him, and that his act was one of 
 irresistible impulse and not of judgment, in that event he would be 
 entitled to an acquittal.^'^ 
 
 (b) Every person is presumed to be sane until the contrary is 
 shown. If no evidence of insanity had been given, then you would 
 presume the respondent to be responsible for her acts. When evi- 
 dence is introduced upon that question, then the question of whether 
 or not the respondent is responsible for her act becomes a question 
 for you to determine from all the evidence bearing upon it; and if, 
 after carefully considering all of such evidence, there should remain 
 any reasonable doubt as to whether or not she was responsible, then 
 your verdict should be "Not guilty, because of insanity. "^^ 
 
 (c) It is claimed by the defendant that at the time of the com- 
 mission of the act he was insane, and therefore not legally responsi- 
 ble for the act. You are instructed that where the defense of in- 
 sanity is set up, it does not devolve upon the defendant to prove 
 that he was insane at the time of the commission of the alleged of- 
 fense by the preponderance of the evidence introduced on the trial, 
 together with all the legal presumptions as explained in these in- 
 structions ; but if, under the evidence the jury entertains a reasonable 
 doubt as to whether the defendant was sane or insane, then in that 
 ease he must be acquitted. ^^ 
 
 (d) The court instructs the jury that, if the evidence in the case is 
 
 preponderance of the evidence, proof concerning- the same, we 
 
 Davis V. U. S., 160 U. S. 469, 16 cannot believe that the failure of 
 
 Sup. Ct. 353, 40 L. Ed. 499. the court to repeat the words 'be- 
 
 36— Blume v. State, 154 Ind. 343, yond a reasonable doubt' opernted 
 
 56 N. E. 771 (774); citing Hauk v. to the prejudice 'Of appellant. 
 
 State, 148 Ind. 238, 46 N. E. 127, Goodwin v. State, 96 Ind. 562." 
 
 47 N. E. 465. It was argued that 37— Hotema v. United States, 186 
 
 this instruction was erroneous, be- U. S. 413 (416), 22 Sup. Ct. 895. 
 
 cause it did not, as given, contain 38— People v. Quimby, 134 Mich. 
 
 thf- words in brackets. 625, 96 N. W. 1061 (1065). 
 
 The court said: "In view of the 39— State v. McCoy, 70 Kan. 672, 
 
 full and careful instructions upon 79 Pac. 156 (158); homicide, 
 the issue of insanity, and the
 
 §2595.] CRIMINAL— INSANITY. 1667 
 
 sufficient to raise a reasonable doubt as to the sanity of the defend- 
 ant, then the jury will find the defendant not guilty.'*" 
 
 (e) The law presumes every man who has reached the years of 
 discretion to be of sound mind; and this presumption continues until 
 arrested by evidence tending to establish insanity, which evidence 
 should be sufficient, to raise in the minds of the prudent, careful juror 
 a reasonable doubt of the sanity of the accused. When, however, 
 evidence of insanity has been introduced, the burden of proof is upon 
 the state to satisfy the jury, by competent evidence, beyond any rea- 
 sonable doubt, that the accused was possessed of a sound mind at the 
 time he committed the act complained of. You should bear in mind, 
 gentlemen, however, that the burden of proof in criminal cases is 
 always upon the state, and never shifts from the state to the de- 
 fendant; that is, the making out of a prima facie ease against the 
 defendant does not shift the burden of proof to the defendant. In 
 such a case it is only necessaiy for the defendant to offer proof suf- 
 ficient to create in the minds of the jury a reasonable doubt of his 
 guilt.41 
 
 § 2595. Prisoner Need Only Create Reasonable Doubt to Cast 
 Burden on State, (a) While the law presumes all men to be sane, 
 yet this presumption may be overcome by evidence tending to prove 
 insanity existed at the time of the commission of the alleged offense. 
 When such evidence is introduced, then the presumption of sanity 
 ceases, and the prosecution is bound to prove the sanity of the ac- 
 cused beyond a reasonable doubt. So in this case where the defense 
 of insanity is interposed, if the jury after considering all the evidence 
 entertain a reasonable doubt of the sanity of the defendant at the 
 time of the alleged offense, then he must be acquitted.'*- 
 
 (b) In order to sustain the defense of insanity it is not necessary 
 that the insanity of the accused be established, by a preponderance 
 of evidence ; if, upon the whole evidence, the jury entertain a reason- 
 able doubt as to the sanity of the accused they must acquit him.*^ 
 
 (c) While it is true the law presumes eveiy man to be sane and 
 
 40 — Jamison v. People, 145 111. 357 legal presumption may be over- 
 
 (380), 34 N. E. 4S6. come by evidence tending to prove 
 
 41— Hill v. State, 42 Neb. 503, 60 insanity of the accused which is 
 
 N. W. 916 (920); People v. Wells, sufficient to raise a reasonable 
 
 145 Cal. 138, 78 Pac. 470 (472); as- doubt of his sanity at the time 
 
 sault. of the commission of the act for 
 
 42 — Jamison v. People, 145 111. 357 which he is sought to be held ac- 
 
 (380), 34 N. E. 486; affirming con- countable. When that is done, the 
 
 viction and sentence of death. presumption of sanity cea.ses, and 
 
 "The instruction is in harmony the burden shifts to the prosecu- 
 
 with what is laid down in Dacey tion, and it is then required to 
 
 V. People, 116 111. 555. 6 N. E. 165, prove his sanity as an element 
 
 6 Am. Cr. Rep. 461. where it was necessary to constitute crime be- 
 
 said: 'The presumption of sanity yond a reasonable doubt.' " 
 
 inheres at every stage of the 43 — Hopps v. People. 31 111. 385; 
 
 trial until insanity is made to ap- People v. Wilson, 49 Cal. 13; State 
 
 pear by the evidence. The law in v. Bruce. 48 la. 530; See State v. 
 
 this .st.ite undoubtedly is that this Wingo, 66 Mo. 181.
 
 J668 FORMS OF INSTRUCTIONS. [§ 2596. 
 
 responsible for his acts until the contrary appears, from the evidence, 
 still, if there is evidence in the case tending to rebut this presump- 
 tion sufficient to raise a reasonable doubt upon the issue of insanity, 
 then the burden of proof is upon the people to show, by the evidence, 
 beyond a reasonable doubt, that the defendant was sane, as explained 
 in these instructions, at the time the alleged offense was committed.*^ 
 
 §2596. Sanity Presumed Unless Evidence "Clearly Establishes" 
 Insanity, (a) You are instructed that every person is presumed to 
 be sane and rational, unless the fact is proven otherwise by a pre- 
 ponderance of the evidence, and you are to treat the acts of the de- 
 fendant at and subsequent to the fire, as shown by the e-\ddence, as 
 the acts of a sane and rational man, unless the evidence shows not 
 only a possibility that his mental condition was otherwise, but fur- 
 ther shows by a fair preponderance of the evidence in the case, that 
 the defendant was then in fact irrational, or suffering from mental 
 [!] abeiTation of the mind. You are not required to find that the 
 defendant was irrational or insane at such time, unless the evidence 
 clearly establishes such fact, and should only find him insane or irra- 
 tional at the time of the fire and subsequent thereto, upon evidence of 
 a reliable character, which convinces you that such fact is proven by 
 a fair preponderance of all the evidence in the ease bearing thereon.'*^ 
 
 (b) It devolves upon defendant to establish his defense of in- 
 sanity by a preponderance of the evidence, clearly to the satisfaction 
 of the jury.^s 
 
 § 2597. Insanity — Defendant Must Establish by Preponderance. 
 The presumption is that at the time of committing this crime, W. 
 was sane, and the burden of proof of insanity being upon him, the 
 defendant, he must satisfy the jury by a fair preponderance of the 
 evidence submitted to them that, at the time he committed the act, 
 be was insane to such an extent that insanity controlled his will, and 
 made the commission of the act he committed appear to him a duty 
 of overruling necessity, or deprived him of all freedom of agency. 
 
 44 — Cone v. McKie, 1 Gray 61; nature of an affirmative defense, 
 
 Greenl. Ev., 13 Ed. § 81. 'except by a preponderance of 
 
 45— State v. Novak, 109 Iowa 717, proof, or (which is the same) satis- 
 
 79 N. W. 465 (475); homicide. factory evidence of his sanity.' 
 
 The court said: "In People v. That preponderance which amounts 
 
 Hamilton, 62 Cal. 377, in consider- to satisfactory evidence of a fact 
 
 Ing the weight of evidence to es- must be such as clearly establishes 
 
 tablish insanity, and in passing the fact. We discover no error 
 
 upon an instruction in which the in the instruction." 
 
 words 'clearly established' were 46— Carlisle v. State, — Tex. Cr. 
 
 used, it is said: 'In the connec- App. — , 56 S. W. 365 (366). "There 
 
 tion in which they are used, to is no error in this charge, as it 
 
 say that insanity must be clearly is the law." Citing Webb v. State, 
 
 established is not to say that the 5 Tex. App. 595; Glebel v. State, 
 
 evidence must more than pre- 28 Tex. App. 151, 12 S. W. 591; 
 
 ponderate, but only that the pre- Smith v. State, 22 Tex. App. 317, 
 
 ponderance must be plainly appar- 3 S. W. 684; Hurst v. State, 40 
 
 ent.' In State v. Felter, 32 Iowa 49, Tex. Cr. R. 378, 46 S. W. 635, 50 
 
 U Is said that the fact of sanity S. W. 719. 
 cannot be avoided, it being in the
 
 § 2598.] CRIMINAL— INSANITY. 1669 
 
 If he fail to do so, — if the fair preponderance of the testimony does 
 not satisfy the juiy of such insanity, but only creates a doubt of 
 his sanity, or reasonable doubt of his sanity, — it is insufficient to jus- 
 tify an acquittal, and the juiy should return a verdict of guilty in 
 such case.*'' 
 
 § 2598. Burden of Proof — Alabama Statutory Plea of Insanity. 
 ]n the trial of a homicide case, where the plea of not guilty and 
 the statutoiy plea of not guilty by insanity are both intei'posed, the 
 burden of proof as to the first plea is upon the state to satisfy the 
 jury beyond a reasonable doubt of the guilt of the defendant ; but, as 
 to the second plea, the burden of proof is upon the defendant to 
 establish the plea of not guilty by reason of insanity to the reasonable 
 satisfaction of the jury, by a preponderance of the evidence, and a 
 reasonable doubt is not sufficient to acquit the defendant under this 
 plea. The rule as to the weight and sufficiency of the evidence as to 
 the one plea is that the state must satisfy the jui'y beyond a reason- 
 able doubt, whereas, as to the other, the defendant must reasonably 
 satisfy the juiy by a preponderance of the evidence.'*^ 
 
 § 2599. Insanity — Need Not Be Proven by Direct Evidence. The 
 court instructs the jury that, to establish the insanity of the defend- 
 ant with respect to the act charged against him in the infoi'mation, 
 positive and direct proof of it is not required. To entitle him to an 
 acquittal by reason of his insanity at the time of the killing of said 
 W. by defendant, circumstantial evidence which reasonably satisfies 
 the mind of its existence is sufficient. As the law presumes the de- 
 fendant innocent, the burden of proving him guilty rests with the 
 state; and before you should convict him his guilt must be established 
 beyond all reasonable doubt. *^ 
 
 § 2600. Insanity at Time of Trial — Jury Not to Determine. You 
 are not required to decide whether or not the defendant is insane at 
 the present time, but j'ou are to consider him as now sane. A person 
 charged with crime cannot be legally tried for such crime unless he 
 be sane at the time of the trial. The defendant has presented the 
 issue to you that at the very time of the alleged commission of the 
 homicide he was insane. The law presumes that he was sane, and 
 therefore the burden of proving his insanity at the time rests upon 
 him.50 
 
 § 2601. Evidence as to Ancestors' Insanity Admissible Only in 
 Corroboration. It is never allowed to infer insanity in the accused 
 
 47— Commonwealth v. Wireback, 49— State v. Privitt, 175 Mo. 207, 
 
 190 Pa. 138. 42 Atl. 542 (547). 70 75 S. W. 457 (460). 
 
 Am. St. 625. In some jurisdic- 50 — Held that this was not or 
 
 tlons this instruction would be er- invasions of the province of thi 
 
 roneous, as they hold that it is jury in a case where no question 
 
 only necessary to raise a reason- was made as to the sanity of the 
 
 able doubt of the sanity of the defendant at the time of the trial, 
 
 accused. See § 2596 post. People v. Donlan, 135 Cal. 4S9, 67 
 
 48_From the opinion in Parrish Pac. 761 (763), citing People v. 
 
 V. State, 139 Ala. 16, 36 So. 1012 Schmidt, 106 Cal. 50, 39 Pac. 205. 
 (1017-8-9).
 
 1670 FORMS OP INSTRUCTIONS. [§ 2602. 
 
 from the mere fact of its existence in the ancestors. But when testi- 
 mony is given directly tending to prove insane conduct on the part 
 of the accused, this kind of proof is admissible as corroborative of the 
 other. And therefore it is that the defense has been allowed to in- 
 troduce evidence to you covering the whole life of the accused and 
 reaching to his family antecedents.^^ 
 
 § 2602. Insanity of Defendant's Mother Must Be Considered. If 
 the juiy believe that the defendant's mother, in her lifetime, was 
 insane, and that insanity is hereditary, they must take that fact into 
 consideration in detennining the question of defendant's insanity 
 at the moment of shooting.^- 
 
 § 2603. Insanity — Suicide Not Necessarily Evidence of. Now, evi- 
 dence has been introduced here tending to show that the father and 
 brother of this respondent committed suicide. Suicide of itself alone, 
 is not evidence of insanity. It may be considered with other facts 
 and circumstances in determining the question of sanity. ^^ 
 
 § 2604. Children Poisoned by Mother of Suicidal Tendency. The 
 only question is, if she administered morphine to those children with 
 the intent to cause their death, did she, at the time of doing it, know 
 it was wrong to so kill them, and could she have refrained from doing 
 it if she had chosen to do so.^* 
 
 § 2605. Insanity — Hypothetical Case Put to Experts. Whether 
 the hypothetical case upon which the opinions of the experts are 
 based corresponds to and coincides with the ease of the defendant, the 
 jury alone must determine, in the light of the testimony presented on 
 this trial. And whenever it supposes facts not given in evidence, it 
 should be disregarded by the jury.^^ 
 
 INTOXICATION. 
 
 § 2606. Voluntary Drunkenness No Excuse, (a) The jury are 
 instructed, that under our law voluntary drunkenness is no excuse for 
 the commission of a crime. Where, without intoxication, the law 
 would impute a criminal intent, proof of drunkenness will not avail 
 to disprove such intent. -"^^ 
 
 (b) The jury are instructed, that voluntary intoxication or drunk- 
 enness is no excuse for crime committed under its influence, nor is any 
 
 51— This extract from the charge 46; State v. Mason, 24 Mont. 341, 
 
 of Judge Cox in the Guiteau case, 61 Pac. 861. 
 
 10 Fed. Rep. 161, was held error 52— People v. Tuczkewitz, 149 N. 
 
 in Montana, where the trial judge Y. 240, 43 N. E. 548 (543). 
 
 is prohibited from commenting on 53 — People v. Quimby. 134 Mich, 
 
 the evidence. State v. Keerl, 29 625, 96 N. W. 1061 (1065). 
 
 Mont. .508, 75 Pac. 362 (365). Citing 54— People v. QuimTiy, 134 Mich, 
 
 State v. Sullivan, 9 Mont. 174, 22 625, 96 N. W. 1061 (1065-6). 
 
 Pac. 1088; State v. Gleim, 17 Mont. 55— State v. Coats, 174 Mo. 396, 
 
 17, 41 Pac. 998, .31 L. R. A. 294, 74 S. W. 864 (870). 
 
 52 Am. St. 655, 10 Am. Cr. Rep. 5fr— Rafferty v. The People, 66 111. 
 
 118.
 
 § 2607.] CRIMINAL— INTOXICATION. 1671 
 
 state of mind resulting from drunkenness, short of actual insanity or 
 loss of reason, any excuse for a criminal aet.^^ 
 
 (e) The court instructs the jury that drunkenness or voluntary 
 intoxication is no excuse for crime, although such drunkenness may 
 be the result of long-continued and habitual drinking without any 
 purpose to commit crime, and may have produced a temporary insan- 
 ity, during the existence of which the criminal act is committed; in 
 other words, a person, whether he be an habitual drinker or not, can- 
 not voluntarily make himself so drunk as to become on that account 
 irresponsible for his conduct during such drunkenness.^^ 
 
 (d) It is immaterial in this case whether the defendant was drink- 
 ing or intoxicated at the time of the homicide spoken of in the evi- 
 dence, as drunkenness neither excuses, palliates nor affects a crime.^^ 
 
 § 2607. Getting Intoxicated with a View of Committing Crime. 
 
 If a person voluntarily becomes intoxicated, with a view of commit- 
 ting a crime, and while so intoxicated, commits the crime, total insan- 
 ity, if the immediate result of such intoxication, would not excuse the 
 criminal act committed while under the influence of such intoxica- 
 tion; for the law will not permit a person to so shield himself under 
 the cloak of drunkenness for the purpose of violating the law of the 
 land.60 
 
 § 2608. Intoxication Procured by Artifice of Deceased, Not Volun- 
 tary. You are instructed that if you find that the defendant, at the 
 time of the alleged shooting, was intoxicated, but that his intoxication 
 had been procured by the artifice or fraud of the deceased or other 
 persons, then, and in such event, it would not be a voluntary intoxi- 
 cation in the eye of the law ; and in such event, if you so find, if the 
 intoxication was to such an extent as to absolutely destroy the reason 
 for the time being, so far as his knowledge of his acts is concerned, — 
 that is, place the defendant in such a mental condition that he had no 
 knowledge of the nature or character of his acts, or whether right or 
 wrong, — then, and in such event, you are iusti'ucted that you should 
 acquit the defendant.*'^ 
 
 § 2609. Irresistible Impulse from Voluntary Drunkenness No De- 
 fense, The court instructs the jury that although they may believe 
 from the evidence that the defendant at the time of the killing of E. 
 W. was without sufficient power to govern his action by reason of 
 
 57— State v. Coleman, 27 La. Ann. 59— State v. May, 172 Mo. 630, 72 
 
 691; Beasley v. State, 50 Ala. 149; S. W. 918 (920). Murder case. 
 
 State v. Thompson, 12 Nev. 140; 60— Hill v. State, 42 Neb. 503, 60 
 
 Fitzpatrick v. People, 98 111. 270; N. W. 916 (920). 
 
 Cobbath v. State, 2 Tex. App. 391. 61— State v. Wright, 112 Iowa 436, 
 
 58— Longley v. Commonwealth, 99 84 N. W. 541 (545). The court said: 
 
 Va. 807, 37 S. E. 339 (340); State "We think this states correctly 
 
 V. Wright, 112 Iowa 436, 84 N. W. the law relating to voluntary in- 
 
 541 (544). But see instructions in toxication. and that the mention 
 
 People V. Fellows, 122 Cal. 333, 54 made of this subject by the court 
 
 Pac. 830. § 2613 post, in its own charge was not broad
 
 1672 FORMS OF INSTRUCTIONS. [§ 2610. 
 
 some impulse which he could not resist or control, yet if they further 
 believe from the evidence that such lack of reason to know right from 
 wrong, or such insufficient will power to govern his actions or to 
 control his impulses, arose alone from voluntary drunkenness, but 
 not from unsoundness of mind, they should not acquit the defendant 
 on the grounds of insanity. *^- 
 
 § 2610. Insanity — Not the Immediate Effect of Intoxicants. If the 
 jury believe, from the evidence, beyond a reasonable doubt, that the 
 defendant committed the act charged, in manner and form as charged 
 in the indictment, still, if the jury further believe, from the evidence, 
 that the defendant, at the time, was in such a state of mental in- 
 sanity (not produced by the immediate effects of intoxicating drink) 
 as not to have been conscious of what he was doing, or that the act 
 itself was wrong, then they should find the defendant not guilty. *^^ 
 
 § 2611. Delirium Tremens. The jury are instructed, that although 
 they may believe, from the evidence, that the defendant committed 
 the criminal act, in manner and form as charged in the indictment, 
 still, if the jury further believe, from the evidence, that at the time 
 he so committed the act he was so affected by what is known as 
 delirium tremens that he did not know the nature of the act, nor 
 whether it was wrong or not, and that such delirium was induced 
 by antecedent and long-continued use of intoxicating drinks, and not 
 as the immediate effect of intoxication, then the defendant cannot be 
 held criminally responsible for such act, and the jury should find the 
 defendant not guilty.®* 
 
 § 2612. Intoxication Not Amounting to Insanity No Defense — 
 Presumption, (a) If the evidence as a whole fails to show beyond 
 a reasonable doubt, that H. was of sound brain, or at least to that 
 extent that he knew right from wrong, and was capable of forming 
 
 and full enough to cover the fact and the want of these mental 
 
 here presented." powers arising from unsoundness 
 
 62 — Mathley v. Commonwealth, of mind. The instruction tells the 
 
 120 Ky. 389, 86 S. W. 988 (989). jury plainly that if appellant's 
 
 "This Instruction is criticised be- lack of reason or will power arose 
 
 cause it is said that it takes from alone from voluntary drunkenness, 
 
 the jury the right to find the de- but not from unsoundness of mind, 
 
 fendant insane, although his mind they should not acquit him on the 
 
 may have been so diseased by long grounds of insanity. This instruc- 
 
 drunkenness as to deprive him of tion is copied from one approved 
 
 th power of knowing right from by this court in Wright v. Com- 
 
 wrong, or of will power sufficient monwealth, 24 Ky. Law Rep. 1838, 
 
 to_ govern his actions, provided 72 S. W. 340, and we adhere to 
 
 this condition was superinduced it as a sound exposition of the 
 
 alone from voluntary drunkenness, liw on the subject of which it 
 
 If the Inference which counsel treats." 
 
 drn.w from the language of this 63— U. S. 'v. Drew, 5 Mason U. 
 
 ln.«trur-tion is correct, their objec- S. Rep. 28; Carter v. State, 12 Tex. 
 
 tlon to It Is well founded; but ROO; Maconnehey v. State, 5 Ohio 
 
 an nnaly."3is of It .shows that it St. 77; Bales v. State, 3 W. Va. 
 
 clearly distinguishes between the 6S.'i; Fisher v. State, 64 Ind. 435. 
 
 lark of reason or will power aris- 64 — Bailey v. State, 26 Ind. 422. 
 ifig from voluntary dninkf-nness
 
 § 2612.] CRIMINAL— INTOXICATION. 1673 
 
 and carrying into execution a criminal intent, he would be entitled to 
 be acquitted, no matter what amount of whiskey he had drunk; but, 
 in arriving at that conclusion, the jury are to look to all the evidence, 
 and if, from all the evidence, they are satisfied that he slew V. by 
 reason of the whiskey he had drunk, and not as a result of an insane 
 delusion above referred to, in that event it would be your duty to 
 convict the defendant; but if you have a reasonable doubt with re- 
 gard to this matter, you will resolve it in favor of the defendant 
 and acquit him.'^^ 
 
 (b) The court instnicts the jury that if the person is sober enough 
 and has mind enough to form a design to take the life of another, and 
 in pursuance of such design does actually shoot and kill, without any 
 justification therefor, then the law presumes that such person is 
 sober enough and of sufficient mind to form the specific intention to 
 kill, and in such ease, where he attempts to take life or does take 
 life, he is criminally responsible for his acts.®^ 
 
 (c) The court instructs the jury that voluntary intoxication or 
 drunkenness is no excuse for crime committed under its influence, 
 short of actual insanity or loss of reason ; and if a person is sober 
 enough to intend to shoot at another, and actually does shoot at and 
 hit him, without justification therefor, then the law presumes that 
 such person is sober enough to form the specific intent to kill the one 
 shot at, and in such ease is criminally responsible for his act. If, 
 therefore, you find from the evidence that the defendant was in such 
 a state of intoxication or drunkenness at the time of the shooting as 
 to be incapable of forming an intent, or of distinguishing between 
 right and wrong, it is a defense for a crime committed while in that 
 condition as to all degree of the crime wherein an intent was neces- 
 sary to complete the degree of the offense. But if you find from the 
 evidence that the defendant was sufficiently sober at the time of the 
 shooting to distinguish right from wrong, and to form a specific in- 
 tent, then the defense of drunkenness cannot avail him.®'' 
 
 (d) The court instructs j'ou that you should bear in mind that 
 under our law voluntary drunkenness is no excuse for the perpetra- 
 tion of crime, and that where, without intoxication, the law would 
 impute a criminal intent, mere proof of drunkenness will not avail 
 to disprove such intent, and that it is only in cases where the con- 
 stant and excessive use of alcoholic stimulants has produced actual 
 insanity, resulting in derangement of the mental and moral faculties 
 to such an extent as to render the person so afflicted incapable of dis- 
 tinguishing right from wrong that crime may be excused thereby.®^ 
 
 65— Hotema v. United States, 186 115, 97 N. W. 992 (995). Estes v. 
 
 U. S. 413 (418), 22 S. Ct. 895. State. 55 Ga. 31, 1 Am. Cr. Rep. 
 
 66— Hill v. State, 42 Neb. 503, 60 596, is authority for the following' 
 
 N. W. 916 (920). instruction, which is really a part 
 
 67— Commonwealth v. McGowan, of the instruction given in the 
 
 189 Pa. 641, 42 Atl. 365 (366), 69 Am. text: 
 
 St. 830. In relation to the question or 
 
 68— State v. Williams, 122 Iowa drunkenness as an excuse for crime.
 
 1674 
 
 FORMS OF INSTRUCTIONS. 
 
 [§ 2613. 
 
 § 2613. Insanity Produced by Intoxication an Excuse, (a) In- 
 sanity produced by intoxication does not destroy responsibility where 
 the party, when sane and responsible, made himself voluntarily in- 
 toxicated. 
 
 (b) The jury is further instructed that, while mere voluntary in- 
 toxication is no excuse or justification for the commission of a crime, 
 still insanity although produced immediately by intoxication is a 
 defense. Under our Code an insane person is incapable of committing 
 a crime; that is to say, if a man kills another while insane, or if 
 his mind is unsound it is no crime, and this is so whether his insanity 
 is produced or brought on by intoxication or the use of intoxicating 
 liquors, or by any other cause.^^ 
 
 (c) Although drunkenness, in itself, is no excuse or palliation for 
 crime committed while under its influence, yet mental unsoundness, 
 superinduced by excessive drunkenness, and continuing after the in- 
 toxication has subsided, may be an excuse; provided such mental 
 derangement be sufficient to deprive the accused of the ability to dis- 
 tinguish between right and wrong.'^*^ 
 
 § 2614. Temporary Insanity Produced by Use of Intoxicating 
 Liquors in Mitigation — Murder, (a) Now, if you believe from the 
 evidence in this case that the defendant, at the time of the commis- 
 sion of the offense for which he is on trial, if you find him guilty of 
 
 the court instructs the jury, that 
 if a person is sober enough to in- 
 tend to shoot at another, and ac- 
 tually does shoot at and hit him, 
 without any justification therefor, 
 then the law presumes that such 
 person is sober enough to form the 
 specific intention to kill the one 
 shot at, and, in such case, he is 
 criminally responsible for his act. 
 
 69— Hill v. State, 42 Neb. 503, 60 
 N. W. 916 (920); People v. Fellows, 
 122 Cal. 333, 54 Pac. 830 (832). 
 
 "Upon the subject of intoxication 
 as an excuse for crime the court 
 of its own motion gave the in- 
 struction first considered in People 
 v. Lewis, 36 Cal. 531, and since 
 then reviewed and approved upon 
 many recurrent occasions. People 
 v. Williams, 43 Cal. 344; People v. 
 Jones, 63 Cal. 168; People v. Ferris, 
 .^)5 Cal. 588; People v. Blake, 65 
 Cal, 275, 4 Pac. 1; People v. Frank- 
 lin, 70 Cal. 641, 11 Pac. 797; Peo- 
 ple v. Vincent, 95 Cal. 425, 30 Pac. 
 581." 
 
 See to the contrary, Longley v. 
 Commonwealth, 99 Va. 807, 37 S. E. 
 339. 
 
 In Wagner v. State, 116 Ind. 181, 
 
 18 N. E. 833 (836), the following 
 instruction was given: 
 
 Mental incapacity produced by 
 voluntary intoxication existing only 
 temporarily, but at the time of the 
 commission of the offense, is no 
 excuse for crime, nor a defense 
 for a prosecution therefor. But 
 where the habit of intoxication, 
 though voluntary, has been long 
 continued, and has produced dis- 
 ease which has perverted or de- 
 stroyed the mental faculties of the 
 accused so that he was incapable 
 at the time of the commission of 
 the alleged crime, on account of 
 the disease, of acting from motive, 
 or distinguishing right from wrong, 
 — in short, insane, — he will not be 
 held accountable for the act 
 charged as a crime committed while 
 in such condition. 
 
 Held, that while not couched in 
 the most specific and appro<priate 
 language, defendant could not com- 
 plain of giving the above instruc- 
 tion. "The proof is conclusive that 
 at the time he did the shooting 
 he was not in such a condition of 
 intoxication as that his knowledge 
 of right and wrong was affected 
 thereby." 
 
 70— Beasley v. The State, 50 Ala. 
 149.
 
 §2615.] CRIMINAI^-INTOXICATION. 1675 
 
 such offense, was laboring under temporary insanity as above defined, 
 produced by the voluntaiy recent use of ardent spirits, you will take 
 such temporary insanity into consideration in determining the grade 
 of the offense, if any, that the defendant may be found guilty of, 
 and in mitigation of the penalty attaching to the offense, if any.''^ 
 
 (b) If you believe that at the time of the commission of the act 
 with which defendant is charged, and is on trial before you, that he 
 was temporarily insane, and that such temporary insanity, if such 
 there was, was produced by the voluntary recent use of ardent spir- 
 its, it would afford no excuse for the commission of the act charged 
 against him, if the act was otherwise criminal. But such temporary 
 insanity produced by voluntary recent use of ardent spirits alone, if 
 you find there was such insanity so produced, should be considered in 
 mitigation of the penalty attached to the offense of which you will 
 find him guilty. '^^ 
 
 § 2615. Intoxication Not Inconsistent with Premeditation. A man 
 
 may be intoxicated, and still have mind enough to plan, deliberate, 
 and premeditate. If the intention to kill is deliberately formed, — is 
 premeditated, then the mere fact that defendant was drunk will not 
 make the crime murder in the second degree.''^ 
 
 § 2616. Intent — Intoxication as Affecting Intention— Larceny. 
 (a) The intent just referred to and explained can only exist when 
 the party is competent to form an intent, and purposely takes the 
 property alleged to have been stolen. Testimony has been received 
 in this ease tending to show that these defendants were intoxicated at 
 the time of the alleged larceny. While mere intoxication is not an ex- 
 cuse for crime, nor a defense to a criminal charge, yet when a specific 
 intent is necessaiy, as in the case of larceny, the question of intoxi- 
 cation becomes important, in determining whether the person charged 
 was or was not in such a state of mind as to be able to form such 
 specific intent. As already explained, the mere taking of property of 
 another does not constitute larceny, unless the intent permanently to 
 deprive the OAvner thereof existed at the time of its taking. You may 
 therefore consider whether or not the defendants or either of them, 
 were so intoxicated at the time of the alleged larceny as to be in- 
 capable of forming the felonious intent which is a necessary element 
 of the crime. If you find that they were, or if you have a reasonable 
 doubt as to whether they were or not, then they are not guilty of 
 the charge and must be acquitted.'^* 
 
 (b) The defendant claims that, at the time he disposed of the ring 
 in question, he was so under the influence of liquor that he was in- 
 
 71_Campos v. State, — Tex. Cr. 72— Edwards v. State, — Tex. Cr. 
 
 App. — , 97 S. W. 100. App. — , 54 S. W. 589 (590), homi- 
 
 The court said this "charge cide. 
 
 given was in accordance with the 73— State v. McDaniel. 115 N. C. 
 
 rule laid down in Evers v. State, 807, 20 S. E. 622 (623). 
 
 31 Tex Cr. R. 31S, 20 S. W. 744, 74— Cnllins v. Stnte, 115 Wis. 596, 
 
 18 L. R. A. 421, 37 Am. St. Rep. 92 N. W. 266 (268), 95 Am. St. 954, 
 811."
 
 1676 FORMS OF INSTRUCTIONS. [§ 2617. 
 
 capable of fonning an intent to steal, and for that reason be claims 
 he is not guilty. Drunkenness is no excuse for crime. If the state 
 lias proved, beyond. a reasonable doubt, that defendant, at and -vvithin 
 the county of Douglas, and state of Nebraska, at or about the time 
 named in the information, temporarily obtained the property in 
 question from the said B., that, while holding the possession of the 
 property, he unlawfully and feloniously converted said property to 
 his own use, without the consent of the said B., by disposing of said 
 property at a i>awn shop, with the intent feloniously to permanently 
 appropriate the same to his own use, against the will of said B., 
 then the burden would rest upon the defendant to satisfy you by 
 evidence that he was so under the influence of liquor at the time that 
 he was mentally unable to form an intent in his mind to steal said 
 property, or raise a reasonable doubt in your minds, after careful 
 weighing and considering all the evidence in the case, whether he is 
 guilt}^, because of such a state of intoxication at the time as not to 
 be able to form an intent to steal. You are to determine this matter 
 from all the evidence in the case.'^^ 
 
 § 2617. Voluntary Intoxication Will Not Excuse Any Grade of 
 Homicide Except Murder in First Degree, (a) Voluntary intoxica- 
 tion will not excuse the commission of any grade of unlawful homi- 
 cide below murder in the first degree, and you will consider the evi- 
 dence with reference to determining the defendant's guilt or inno- 
 cence as to all grades of unlawful homicide below murder in the 
 first degree, without reference to whether he was or was not intoxi- 
 cated, or as to the degree of intoxication, if any.'^^ 
 
 (b) Drunkenness voluntarily produced does not excuse crime. Yet 
 when a homicide, admitting of different degrees of punishment under 
 the law, has been committed by a person in such a condition of drunk- 
 enness as to render him incapable of a willful, deliberated and pre- 
 meditated purpose, the jury cannot find the prisoner guilty of murder 
 in the first degree. 
 
 (c) If the jury believe from the evidence that L. killed B. as 
 charged in the indictment, and at the time of such killing, L. was 
 under the influence of liquor voluntarily taken by him, then said 
 intoxication so produced is in law no excuse for the act done by L,, 
 unless they believe from the evidence that such intoxication was such 
 as did in fact deprive him at the time of killing of the mental capac- 
 
 75— Ford v. Sfnte, 46 Neb. 390, a defense, and the fact that the 
 
 64 N. W. 1082 (1085). court informed the jury that it was 
 
 In comment the court said: "Ob- no excuse for crime In no manner 
 
 j'^'^tion is made to the sentence tended to belittle the prisoner's de- 
 
 'Drunkenness is no excuse for fense, as in the brief sng-ar'^sted." 
 r-rime.' The soun'rlness of this 7^— Thomns v. Stpte, 47 Fla. 99, 
 
 statement cannot be successfuHy "6 Fo. 161 (164). The court said: 
 
 controverted. 3 Rice, Cr. Ev. para. "This charge is correct under the 
 
 .^87; Hopt V. Utah, 104 U. S. 631; decision in Garner v. State. 28 Fla. 
 
 Hill v. State, 42 Neb. 503, 60 N. 113, 9 So. 835, 29 Am. St. Rep. 
 
 "W. 916. Drunkenness was urged as 232."
 
 2618.] 
 
 CRIMINALf— INTOXICATION. 
 
 1677 
 
 ity to form a malicious purpose to kill, in which event they may find 
 L. guilty of murder in the second degree or manslaughter.'^^ 
 
 (d) If you find from the evidence that defendant fired the shot 
 which killed his wife, and if when he did so he was in such a condi- 
 tion from the use of spirituous liquors that he was not capable of 
 forming a premeditated intent to kill her, then you should consider 
 the question of intoxication and you cannot convict him of murder in 
 the first degree. But if he was able to fonn that intent to kill, will- 
 fully, deliberately, and premeditatedly, when he fired the shot, then 
 you must have nothing more to do with the question of his drinking, 
 and you should give it no further thought or consideration in the 
 case, for then it cuts no further figure. '^^ 
 
 § 2618. Intoxication May Reduce from Murder to Manslaughter, 
 (a) There is some evidence as to the drunkenness of defendant at 
 the time of the killing. If the defendant, at the time of the killing, 
 was so intoxicated as not to be callable of forming the design to take 
 life, or of entertaining malice, such drunkenness would then reduce 
 the offense which might otherwise be murder to manslaughter. The 
 mere fact that a party is drunk or intoxicated alone will not reduce 
 the crime of murder to manslaughter, but it must be to the extent of 
 depriving the party of the capacity of malice or intent to take life. 
 
 77 — Approved in Long-ley v. Com- 
 monwealth, 99 Va. 807, 37 S. E. 339 
 (340), in whicii case, the following 
 instructions on intoxication were 
 given upon request of the prosecu- 
 tion: 
 
 Drunkenness or voluntary intoxi- 
 cation is no excuse for crime, 
 although such drunkenness may be 
 the result of long-continued and 
 habitual drinking without any pur- 
 pose to commit crime, and may 
 have produced a temporary in- 
 sanity during the existence of 
 which the criminal act is com- 
 mitted. In other words a person, 
 whether he be an habitual drinker 
 ■or not, cannot voluntarily make 
 himself so drunk as to become 
 on that account irresponsible for 
 his conduct during such drunken- 
 ness. * * * In cases like this, 
 where the prisoner sets up the de- 
 fense of insanity or irresponsibility 
 produced by voluntary intoxica- 
 tion, he cannot rely simply on hav- 
 ing raised a rational doubt in the 
 minds of the jury as to whether 
 he was so drunk at the time he 
 committed the crime as not to be 
 responsible therefor, for the bur- 
 den is upon him to prove this 
 fact to the satisfaction of the jury 
 as fairly results from all evi- 
 dence. 
 
 As to the Commonwealth's In- 
 
 structions compare Ragsdale v. 
 State, 134 Ala. 24, 32 So. 674 (677); 
 Henson v. State, 112 Ala. 41 (46), 
 21 So. 79. 
 
 78— Hempton v. State, 111 Wis. 
 127, 86 N. W. 596 (600), 12 Am. Cr. 
 Rep. 657; Bernhardt v. State, 82 
 Wis. 23, 51 N. W. 1009; Cross v. 
 State, 55 Wis. 261, 12 N. W. 425; 
 Terrill v. State, 74 Wis. 278, 42 N. 
 W. 243; People v. Rogers, 18 N. Y. 
 9, 72 Am. Dec. 482. 
 
 Approving this, the court said, 
 in the Hempton case: "Courts 
 have been very slow to break down 
 the old common-law doctrine as 
 regards the effect of voluntary in- 
 toxication of a person at the time 
 of the commission of a criminal 
 offense by him. Formerly it was 
 held to aggravate rather than to 
 mitigate the offense. Now, if from 
 passion stimulated by intoxication 
 or from any other cause, a person, 
 for the moment, is unable to exer- 
 cise his reason, and while he is 
 in such condition, though conscious 
 of what he is doing and not so 
 completely bereft of reason as to 
 be legally irresponsible, he is un- 
 controllably moved thereby to and 
 does wrongfully kill another, he 
 cannot be convicted of murder in 
 the first degree. Clifford v. State, 
 58 Wis. 477, 17 N. W. 304. 
 
 "It is the condition, no matter
 
 1678 FORMS OF INSTRUCTIONS. [§ 2619. 
 
 (b) Slight drunkenness or intoxication might tend to aggravate 
 a crime, instead of to lessen it.'^^ 
 
 (c) It is a general principle of law that intoxication is no excuse 
 for crime, but this general principle has this important qualification 
 or modification, so far as it relates to murder in the first degree. A 
 particular or specific intent is absolutely essential to the commission 
 of this crime, and if the mind of the person doing the killing is una- 
 ble, because of intoxication, at the time of the killing to form this 
 particular or specific intent, there can be no murder in the first de- 
 gree, unless the person doing the killing became voluntarily intoxi- 
 cated for the purj^ose of killing while intoxicated.^*' 
 
 § 2619. Drunkenness — Evidence as to Must Raise a Reasonable 
 Doubt as to Mental Capacity, (a) You are further instructed that, 
 as a rule of law, voluntary intoxication is no excuse for crime com- 
 mitted under its influence, and that, to excuse the commission of a 
 crime, or in a case like the one now on trial before you, where de- 
 liberation and premeditation are elements charged in the informa- 
 tion, to 'be available as a defense or excuse, the evidence of drunken- 
 ness or intoxication at the time of the killing should be sufficient to 
 raise in the minds of the jury a reasonable doubt as to whether the 
 defendant or person charged with crime was capable of forming in 
 his mind, before the killing, a willful, deliberate and premeditated 
 design to take the life of another, and that in eases where drunken- 
 ness is inteiposed as a defense, before the same can be considered, 
 there should be evidence in support of such defense sufficient to cre- 
 ate a reasonable doubt in the minds of the jury of the accused's abil- 
 ity to distinguish between right and wrong at the time of the com- 
 mission of the crime charged.*^ 
 
 (b) While voluntary intoxication is no excuse or palliation for 
 any crime actually committed, yet if, upon the whole evidence in 
 this cause, you shall have such reasonable doubt whether, at the time 
 of the killing, — if you should find from the evidence accused did kill 
 A. B., — he had sufficient mental capacity to deliberately think upon 
 and rationally to determine so to kill deceased, then you cannot find 
 him guilty of murder in the first degree, although such inability was 
 the result of intoxication. ^^ 
 
 (e) You are instructed that on the question of the intoxication 
 
 how caused, overpowering and con- 347, 24 N. E. 123 (124), 8 L. R. A. 
 trolling reason, which reduces the 33, judgment of conviction was re- 
 offense to some lesser degree of versed because the above instruc- 
 criminal homicide." tion was refused and because the 
 
 79— Winter v. State, 123 Ala. 1, trial court told the jury, that "The 
 
 26 So. 949 (950). condition of mind which usually 
 
 80— Cook v. State. 46 Fla. 20, 35 and immediately follows the ex- 
 
 So. 665 (669), citing Garner v. State, cessive use of alcoholic liquors is 
 
 28 Fla. 113, 9 So. 835, 29 Am. St. not the unsoundness of mind meant 
 
 232. by our law." To like effect, see 
 
 81— Hill v. State, 42 Neb. 503, Carr v. State, 23 Neb. 749, 37 N. 
 
 60 N. W. 916 (920). W. 630 (634). 
 
 82— In Aszman v. State, 123 Ind.
 
 § 2620.] CRIMINAI^DUTY OF JURY. 1679 
 
 of the defendant at the time of the alleged killing, if you find from 
 the evidence he was intoxicated, you must be satisfied beyond a rea- 
 sonable doubt that such intoxication did not incapacitate him from 
 forming a deliberate purpose to kill the deceased; and if you have 
 any reasonable doubt on this question, you must give the prisoner the 
 benefit of such doubt, and find him not guilty of murder in the first 
 degree. ^^ 
 
 JURY JUDGES OF LAW AND FACT IN SOME STATES. 
 
 § 2620. Duty of Jury to Receive the Law from the Court, (a) 
 
 You should receive the law as I state it to be, notwithstanding you 
 may firmly believe that I am wrong, and that the law is or should 
 be, otherwise.** 
 
 (b) The credibility of witnesses and the conclusions of fact which 
 you will draw from the evidence are questions which you must settle. 
 The law of the ease you must take from the court. If the court lays 
 down the law incorrectly, the defendant will have his remedy by ap- 
 pealing to a higher court. But, if jurors disregard the law as laid 
 down by the court, the administration of justice would soon become 
 a mockery, and no man would be safe in his person or property.*^ 
 
 (e) It is the duty of the court to instruct you on all questions of 
 law arising in this ease, and it is your duty to receive such instruc- 
 tions as the law of the case, and find the defendant guilty or not 
 guilty, according to the law as declared by the court and the evi- 
 dence as you have received it under the instructions of the court.** 
 
 (d) The law you will take from the court, but you are the sole 
 judges of the facts in this ease. You will determine the facts from 
 the testimony in the case, and render a true verdict upon the facts 
 found by you, regardless of all other considerations. While you are 
 the sole judges of the facts found by you, the law has left the pen- 
 alty to be imposed with the court alone to determine, and this respon- 
 sibility is with the judge after your verdict has been found. It is 
 your duty only to determine the guilt or innocence of the defendant.*^ 
 
 § 2621. Instructions — Same Weight for Both State and Defendant 
 — Adoption by Court of Instructions. The court instructs the jury 
 that instructions asked and given by the court upon the motion of 
 
 83— Carr v. State, supra. general verdict, 'they are bound, 
 
 84_People v. Worden, 113 Cal. nevertheless, to receive as law 
 
 569, 45 Pac. 844 (845). what is laid down as such by the 
 
 "The latter part of the sentence court.' " 
 
 was unnecessary, but it in no way 85— Roesel v. State, 62 N. J. 216. 
 
 affects the correctness of the prop- 41 Atl. 408 (417-418). 
 
 osition that the jury must take the 86— State v. Privitt, 175 Mo. 207, 
 
 lav from the court, as declared in 75 S. W. 457 (458). 
 
 section 1126 of the Penal Code, 87— State v. Vance, 29 Wash. 435, 
 
 which provides that, although the 70 Pac. 34 (45). 
 
 jury have the power to return
 
 1680 FORMS OF INSTRUCTIONS. [§ 2622. 
 
 the state, or upon the motion or request of the defendant, should 
 have the same weight with the jury, and the juiy should be guided 
 thereby just the same as if given by the court. ^^ 
 
 § 2622. Jury Judges of the Law as Well as of the Facts — Georgia, 
 (a) I charge you that you are the judge of the law and the facts 
 in this case; that is, j'ou are the exclusive judges of the evidence. 
 With that I have nothing to do. I give you the law in charge, and 
 you take the court's construction of the law, and apply it to the 
 facts, and pass upon the ease. While you are the judges of the law, 
 you take the court's construction of the law, and then apply it to 
 the facts.89 
 
 (b) The court cannot express an opinion, and has no official opin- 
 ion, and has no personal care about what you find in this case to 
 be the truth. The court cannot give you any help in that, — cannot 
 do anything but give you in charge certain rules of law, which are to 
 aid 3'ou in the consideration of the evidence and in arriving at your 
 verdict; and, after you get those rules, you are the judges of the 
 law and the fact, — that is to say, you determine how the law, as given 
 you in charge, is to be applied to the facts under the evidence, and 
 when you so determine the facts you make your verdict.^** 
 
 § 2623. Same Subject — Illinois, If the jury can say, upon their 
 oaths, that they know the law better than the court does, they have 
 the right to do so; but before assuming so solemn a responsibility 
 they should be sui-e that they are not acting from caprice or preju- 
 dice; that they are not controlled by their will or their wishes, but 
 from a deep and confident conviction that the court is wrong and that 
 they are right. Before saying this upon their oaths it is their duty 
 to reflect whether from their habits of thought, their study and ex- 
 perience, they are better qualified to judge of the law than the 
 
 88— Dixon v. State, 46 Neb. 298, the duty of counsel even in civil 
 
 64 N. W. 691 (9G4). cases to endeavor to procure a 
 
 "It is argued that in a criminal distortion of the law; but a pros- 
 case the prosecuting- attorney has ecuting attorney may, owing to his 
 no right to request instructions, independent position, be expected to 
 and that, therefore, this instruc- exercise a more dispassionate judg- 
 tion should not have been given, ment, and assume a less partisan 
 We know no principle of law, of attitude. But he has the right 
 no statute, and of no consideration and it is his duty to request such 
 of policy, which prevents the prose- instructions as he believes present 
 cuting attorney, in a criminal case, the principles of law applicable to 
 from submitting to the court a the evidence, and, having re- 
 request for any instruction which quested them, the court, in giving 
 he thinks well founded in law and them, adopts such instructions as 
 applicable to the evidence. A its own. Instructions given at the 
 prosecuting attorney, with proper request of counsel should have the 
 sense of his duty, stands, of course, same, — no less and no inore, — force 
 not entirely in the .attitude of coun- as the instructions given by the 
 sr-l in a civil action. It is his court of its own motion, and it is 
 duty to enforce the criminal law. not error to so tell the jury." 
 It is not his duty to procure a 89 — Powell v. State, 101 Oa. 9, 29 
 wrongful determination of ques- S. E. 309 (313), 65 Am. St. 277. 
 tions of criminal law, or to urge 90— Ford v. State, 97 Ga. 365, 23 
 a wrongful conviction. It is not S. E. 996.
 
 §2624.] CRIMINAL— DUTY OF JURY. 1681 
 
 court. If, under all these circumstances, they are prepared to say 
 that the court is wrong in its exposition of the law, the statute has 
 given them the right.^^ 
 
 § 2624. Same Suhject — Indiana, (a) You are the judges of the 
 law as well as of the facts. You can, take the law as given and ex- 
 plained to you by the court, but, if you see fit, you have the legal 
 and constitutional right to reject the same and construe it for your- 
 selves. Notwithstanding you have the legal right to disagree with 
 the court as to what the law is, still you should weigh the instructions 
 given you in the case as you weigh the evidence, and disregard neither 
 without proper reason. ^^ 
 
 (b) In this case you are the sole judges of the law, and the right 
 to determine the law goes to this extent : that, even if all the facts 
 alleged in the indictment are established by the evidence beyond a 
 reasonable doubt, you have still the right to determine whether or not 
 such facts, when so established, constitute a public offense, under the 
 laws of this state, and if you determine they do not, you have the 
 right to acquit the defendant. You are not bound by the instructions 
 given you by the court as to the law, but are at liberty to disregard 
 such instructions, if you see fit to do so, and determine the law for 
 yourselves.^^ 
 
 § 2625. Jury Should Give Instructions of Court Respectful Consid- 
 eration — Indiana. If, however, you have no well-defined opinion or 
 convictions as to what the law is relating to any particular matter 
 or matters at issue in the case, then, in determining what it is, you 
 should give the instructions of the court respectful consideration.*** 
 
 91 — Schnier v. The People, 23 111. dence, and determine the facts ar- 
 
 17; see also, Mullinix v. The Peo- bitrarily and without cause." 
 pie, 76 111. 211; Spies v. The Peo- 93— Anderson v. State, 104 Ind. 
 
 pie, 122 III. 1, 12 N. E. 865, 17 N. 467, 4 N. E. 63, 5 N. E. 711, 5 Am. 
 
 E. 898, 3 Am. St. 320, 5 Am. Cr. Cr. Rep. 601. 
 Rep. 637, 6 Am. Cr. Rep. 570. 94— Bird v. State, 107 Ind. 154, 
 
 92— Blaker v. State, 130 Ind. 203, 8 N. E. 14 (15). 
 29 N. E. 1077. "It is undoubtedly true that 
 
 "This instruction is fully sus- in this state the jury may dis- 
 
 tained by Anderson v. State, 104 reg-ard the instructions of the court 
 
 Ind. 467, 4 N. E. Rep. 63 and 5 N. in a criminal case, and follow their 
 
 E. Rep. 711, 5 Am. Cr. Rep. 601, own convictions; but it must be 
 
 and is correct on principle. The true, also, that the jury should 
 
 constitution gives to juries in give the instructions of the court 
 
 criminal cases the right to de- a respectful consideration in all 
 
 termine the law as well as the cases, and especially if they are 
 
 facts. It does not, however, give in doubt as to what the law in 
 
 to them the right to disregard the the case may be. It is made the 
 
 law. To aid them in correctly de^ duty of the court to instruct the 
 
 . termining the law, it is made the jury. It would seem to follow that 
 
 duty of the court to instruct them, the jury should at least give to 
 
 They have no more right in de- the instructions a respectful con- 
 
 termining the law to disregard and sideration. Keiser v. State. 83 Ind. 
 
 ignore the court's instructions ar- 234; Lynch v. State, 9 Ind. 541; 
 
 bitrarily and without cause, than Powers v. State, 87 Ind. 144; Nuzum 
 
 to disregard and. ignore the evi- v. State, 88 Ind. 599; Dong v. State, 
 
 95 Ind. 481." 
 
 106
 
 1682 FORMS OF INSTRUCTIONS. [§ 2626. 
 
 MALICE. 
 
 Note. — In this subdivision there ai'e only a few general instructions 
 on malice. For further instructions on this subject, see the chapters 
 on Specific Crimes, viz.. Homicide, etc. 
 
 § 2626. Definition of Malice, (a) The jury are instructed that 
 malice includes not only anger, hatred and revenge, but every other 
 unlawful and unjustifiable motive. Malice is not confined to ill-will 
 towards an individual, but is intended to denote an action flowing 
 from any wicked and corrupt motive — a thing done with a wicked 
 mind, where the fact has been attended with such circumstances as 
 evince plain indications of a heart regardless of social duty, and fa- 
 tally bent on mischief; hence malice is implied from any deliberate 
 or cruel act against another, however sudden, which shows an aban- 
 doned and malignant heart.^^ 
 
 (b) Malice is not confined to ill-will towards an individual, but it ; 
 is intended to denote an action flowing from any wicked and cor-' 
 rupt motive. A thing done with a wicked mind, and attended with 
 such circumstances as plainly indicate a heart regardless of social 
 duty, and fully bent on mischief, indicates malice within the mean- 
 ing of the law ; hence, malice is implied from any deliberate and cruel 
 act against another, however sudden, which shows an abandoned and 
 malignant heart.^^ 
 
 (c) The court instructs the jury, that malice, within the mean- 
 ing of the law, includes not only anger, hatred and revenge, but every 
 other unlawful and unjustifiable motive.^'' 
 
 (d) Malice is that state or condition of mind indicated by a 
 wicked and malicious purpose, which characterizes the perpetration 
 of a wrongful act intentionally committed, and without lawful excuse 
 or justification. It is that quality or frame of mind which prompts 
 the unlawful, premeditated and intentional act, and which shows a 
 heart regardless of social duty and fatally bent on mischief.®^ 
 
 (e) I charge you, gentlemen of the jury, that malice, in its com- 
 mon acceptation, means ill will against a person, but in its legal 
 sense means a wrongful act, done intentionally without just cause or 
 excuse.'*'' 
 
 9n— Parsons v. People, 218 111. 386 "correctly defines malice in its 
 
 (■390). 75 N. E. 993. leg-al sense and was properly given. 
 
 "Tills instruction was approved Clark, Man. Cr. Law, p. 75, § 470 
 
 by this court in Jackson v. Peo- and cases cited. Roscoe Cr. Ev. 
 
 pie, IS III. 269, and McCoy v. Peo- (7th Ed.) p. 21; Broom, Leg. Max., 
 
 pie, 175 id. 224, 51 N. E. 777." top of page 315." 
 
 96— Archey v. State, 64 Ind. 56. In People v. Borgetts, 99 Mich. 
 
 97— State v. Goodenow, 65 Me. 30; 336, 58 N. W. 328, the following 
 
 State V. Weenors, 66 Mo. 13. instruction was given: 
 
 98— Territory v. Outierez, — N. M. Malice is here used in a techni- 
 
 — . 79 Pac. 716 (717). cal sense, including not only anger, 
 
 99— Boulden v. State, 102 Ala. 78, hatred and revenge, but every un- 
 
 15 So. 341 (344). Held that this lawful and unjustifiable motive. It
 
 § 2627.] CRIMINAL— MALICE. 1683 
 
 § 2627. Malice Aforethought Defined. (a) The jui-y are in- 
 structed that the deliberate intention, called malice aforethought, need 
 be only such deliberation and thought as enables a person to appre- 
 ciate and understand, at the time the act was committed, the nature 
 of his act and its probable results. 
 
 (b) To constitute malice aforethought, no particular time need in- 
 tervene between the formation of the intention and the act; it is 
 enough if the intent to commit the act, with a full appreciation of 
 the result likely to follow, was present at the time the act was com- 
 mitted, and that the act was not the result of some sudden heat of 
 passion, provoked by some cause calculated to override the judgment, 
 and before sufficient time elapsed for reason to resume its sway.^"*' 
 
 (c) Malice aforethought is a condition of mind in which one man 
 does an intentional injury to another in the willful disregard of the 
 legal rights of the other, and it is to be inferred from acts committed 
 or words spoken. It exists when one does a cruel act voluntarily, 
 and without excuse, justification or extenuation, and does not neces- 
 sarily include hatred towards the person injured.^ 
 
 § 2628. Malice Aforethought a Question of Fact. Whether the 
 defendant does or does not act with malice aforethought is always to 
 be inferred from the circumstances surrounding the case.^ 
 
 § 2629. Malice— Express and Implied. Murder is the unlawful 
 killing of a human being with malice aforethought. Such malice may 
 be express or implied. It is express when there is manifested a de- 
 liberate intention unlawfully to take away the life of a fellow crea- 
 ture. It is implied when no considerable provocation appears, or 
 
 is not confined to particular ill of the term 'malo animo' is so ex- 
 will to the deceased, but it is in- plained by the context that it was 
 tended to denote an action flowing not likely to mislead an unlearned 
 from a wicked and corrupt motive; juror. We discover no error in 
 a thing done, as the books say, the charge." _ 
 
 "malo animo." Note. Latm words m an m- 
 The court said: struction have been held to be 
 "Unlike the "case of Nye v. error, except such common words 
 People, 35 Mich. 16, the court, as "prima facia." „, ,,. ^ ,^ 
 in this case did not stop with 100— Nye v. People, 35 Mich 16. 
 the bare definition of 'malice' con- 1-Stevens v State 42 Tex. Cr. 
 tained in the first part of the quo- App. 154, 59 S. W. 545 (.549). 
 tation ending with the word 'mo- "T^e usual definition (and we 
 tive ' 'but it included the qualifi- specially commend the same, be- 
 cation of that language by what cause it has been frequently ap- 
 followed. In the case of Nye, the proved by this court) is as fol- 
 jury were told that the offense lows: 'Malice is a condition of 
 would be murder if Nye and Betts, the mind which shows a heart re- 
 or Betts alone, began the attack, gardless of social duty and fatally 
 Again the charge in the case of bent on mischief, the existence of 
 Nye lost sight of the distinctions which is inferred from acts corn- 
 between murder and manslaughter, mitted or words spoken.' We 
 which here were carefully de- think the definition given m the 
 scribed This definition of 'malice' court's charge substantially agrees 
 is one common to the books, being with the definition JU^t quoted, 
 enunciated by a celebrated judge 2— People v. Glover, 141 Cal. 233, 
 in a celebrated case, and the use 74 Pac. 745 (749).
 
 1684 FORMS OP INSTRUCTIONS. [§ 2630. 
 
 when the circumstances attending the killing show an abandoned and 
 malignant heart.^ 
 
 § 2630. Express Malice Defined. The term malice means that the 
 homicide was the result of a formed design, based upon a wicked and 
 depraved spirit, and is maliciously conceived and wickedly and ma- 
 liciously executed without justifiable or lawful excuse. The most 
 usual illustrations, and the ones best understood generally of the term 
 "express malice," are such as lying in wait for the intended victim, 
 and when he approaches he is slain, or the preparation and adminis- 
 tration of poison for the purpose of taking life, because in such 
 instances the acts clearly show the formed design and the unlawful 
 intent and its execution, and therefore is said to be killing upon 
 express malice. These are only illustrations of what is meant by 
 the terms ''express malice," and any homicide that is shown to 
 have been the result of willful intent and committed without legal ex- 
 cuse is said to be a killing upon express malice.* 
 
 § 2631. Malice— Difference Between Implied or Constructive Mal- 
 ice and Express Malice. Implied or constructive malice is an infer- 
 ence or conclusion of law from the facts found by the jury; and, 
 among these, the actual intention of the prisoner becomes an impor- 
 tant and material fact for, though he may not have intended to take 
 away life or to do any personal harm, yet he may have been engaged 
 in the perpetration of some other felonious or unlawful act from 
 which the law raises the presumption of malice. It is the difference 
 between express and implied or constructive malice aforethought 
 which distinguishes murder of the first from murder of the second 
 degree, except, however, that under our statute murder of the first 
 degree may be committed when the malicious killing is done in per- 
 petrating or attempting to perpetrate any crime punishable with 
 death, as rape or arson is in this state, although from such a felonious 
 act malice is merely implied or presumed by law. Therefore murder 
 of the second degree is held to be proved where it is not satisfactorily 
 shown by the evidence submitted to the jury that the killing was done 
 with a deliberately formed design to take life, or in perpetrating or 
 attempting to perpetrate any crime punishable with death, but is so 
 shown that it was done suddenly, without justification or excuse, and 
 without any provocation, or without provocation sufficient to reduce 
 the homicide to the grade of manslaughter, or was done in perpe- 
 trating or attempting to perpetrate a felony not capitally punishable, 
 or any unlawful act of violence from which the law raises the pre- 
 sumption of malice.'' 
 
 S2632. Defining "Deliberately, Feloniously, Premeditatedly, Mal- 
 ice, and Malice Aforethought" — Missouri. As used in the indict- 
 ment and these instructions, "feloniously" means wrongfully and 
 
 3— People V. Mendenhall, 135 Cal. 5— State v. Brinte, Del. , 
 
 344, 67 Pac. 325. 58 Atl. 258 (262). 
 
 4— Hotema v. United States, 186 
 U. S. 413 (414), 22 S. Ct. 895.
 
 §2633.] CRIMINAL— MALICE. 1685 
 
 wickedl}', and also refers to the punishment imposed by law. "Will- 
 fully" means intentionally, and not done by accident. "Premedi- 
 tatedly" means thought of beforehand, for any length of time, how- 
 ever short. "Deliberately" means done in a cool state of the blood, 
 not in sudden passion engendered by lawful or some just cause of prov- 
 ocation. And the court instructs the jury that in this case there is 
 no evidence tending to show the existence of any passion or provo- 
 cation. "Malice" means that condition of the mind which prompts 
 one to do a wrongful act intentionally, and to take the life of an- 
 other without legal justification or excuse. It does not mean mere 
 spite, hatred, or ill will, but it signifies the state of disposition which 
 shows a heart regardless of social duty and fatally bent on mischief, 
 and "malice aforethought" means that the act was done with malice 
 and premeditation. "Malice," as used here, may be presumed from 
 the intentional use of a deadly weapon in a manner likely to produce 
 death.® 
 
 § 2633. Malice Presumed from Use of Deadly Weapon, (a) The 
 law presumes malice from the use of a deadly weapon and casts on 
 the defendant the onus of repelling the presumption unless the evi- 
 dence which proves the killing, shows also that it was' done without 
 malice.''' 
 
 (b) "Malice" means that condition of mind which prompts one 
 to do a wrongful act intentionally, without legal justifieation or ex- 
 cuse. It does not mean mere spite, hatred, or ill will, but signifies 
 that state of disposition which shows a heart regardless of social 
 duty and fatally bent on mischief; and "malice aforethought" means 
 that the act was done with malice and premeditation. "Malice," as 
 used here, may be presumed from the intentional use of a deadly 
 weapon in a manner likely to produce death.^ 
 
 (e) Malice may be implied from an unlawful use of a deadly 
 weapon — not from the mere circumstance that a deadly weapon is 
 used, because a man may use it in self-defense; but it is the unlawful 
 use of a deadly weapon, whereby life is taken, from which the law 
 presumes malice.^ 
 
 6— state v. Vaughan, 200 Mo. 12, 120, 13 S. E. 319, 27 Am. St. 799. As 
 
 98 S. W. 2. every sane person is presumed to 
 
 Substantially the same instruc- intend the ordinary and probable 
 
 tions, slightly differently worded consequences of his acts, an intent 
 
 were approved in: State v. Mc- to kill is presumed from the un- 
 
 Carver, 194 Mo. 717, 92 S. W. 684; lawful use of a deadly weapon 
 
 State V. Darling-, 199 Mo. 168, 97 whereby life is taken. The use of 
 
 S. W. 592; State v. Todd, 194 Mo. a deadly weapon in taking human 
 
 377, 92 S. W. 674. life is unlawful, when it is without 
 
 7— Karr v. State, 106 Ala. 1, 17 legal excuse or justification. In 
 
 So. 328 (329). the law of homicide, malice is im- 
 
 8 — State V. Privitt, 175 Mo. 207, plied from 'a wrongful act done in- 
 
 75 S. W. 457 (458). tentionally without just cause or 
 
 9— State V. Foster, 66 S. C. 469, excuse." " 
 45 S. E. 1 (4). Implied malice may be explained 
 
 The court said: away by countervailing evidence. 
 
 "The charge complained of was Harris v. State, 155 Ind. 265, 58 
 
 In accordance with the law as de- N. E. 75 (77). 
 Glared in State v. Levelle, 34 S. C.
 
 CHAPTER XC. 
 
 CRIMINAI^-PRESUMPTION OF INNOCENCE— REASONABLE 
 
 DOUBT. 
 
 See Erroneous Instructions, same chapter head. Vol. III. 
 
 5 2634. Presumed to be innocent un- 
 until contrary appears be- 
 yond a reasonable doubt — 
 Every reasonable doubt 
 construed in defendants 
 favor. 
 
 5 2635. Same subject— Must be a 
 substantial doubt — Not a 
 mere possibility of inno- 
 cence. 
 
 S 2636. Presumption of innocence — 
 Defendant to be given full 
 benefit of. 
 
 § 2637. Presumption — Matter of evi- 
 dence. 
 
 5 2638. Presumption of innocence 
 overcome only by proof — 
 Proof required. 
 
 § 2639. Presumption of innocence — 
 Continues until every ma- 
 terial element is proven. 
 
 § 2640. Presumption of innocence — 
 Every ingredient must be 
 proven. 
 
 § 2641. Duty of jury to infer inno- 
 cence rather than guilt. 
 
 § 2642. Presumption of innocence — 
 Not a mere form — Defend- 
 ant must be given benefit. 
 
 § 2643. Jury compelled to bear the 
 presumption of innocence 
 in mind. 
 
 § 2644. Presumption of innocence 
 not a shield from convic- 
 tion. 
 
 § 2645. Refusal to instruct on the 
 presumption of innocence 
 is error in many states. 
 
 § 2646. Presumption of Innocence 
 continues throughout the 
 trial. 
 REA.SONABLE DOUBT. 
 
 § 2647. Reasonable doubt defined 
 
 and explained — Reason for 
 
 rule. 
 
 5 2648. Reasonable doubt defined — 
 
 Alabama. 
 
 § 2649. Reasonable doubt defined — 
 
 Arkansas. 
 
 § 2650. 
 
 Reasonable 
 California. 
 
 doubt 
 
 defined— 
 
 § 2651. 
 
 Reasonable 
 Delaware. 
 
 doubt 
 
 defined — 
 
 § 2652. 
 
 Reasonable 
 Florida. 
 
 doubt 
 
 defined — 
 
 § 2653. 
 
 Reasonable 
 Georgia. 
 
 doubt 
 
 defined — 
 
 § 2654. 
 
 Reasonable 
 Illinois. 
 
 doubt 
 
 defined — 
 
 § 2655. 
 
 Reasonable 
 Indiana. 
 
 doubt 
 
 defined^ 
 
 § 2656. 
 
 Reasonable 
 Iowa. 
 
 doubt 
 
 defined^ 
 
 § 2657. 
 
 Reasonable 
 Kansas. 
 
 doubt 
 
 defined — 
 
 § 2658. 
 
 Reasonable 
 
 doubt — K e n- 
 
 
 tucky. 
 
 
 
 § 2659. 
 
 Reasonable 
 Louisiana. 
 
 doubt 
 
 defined — 
 
 § 2660 
 
 Reasonable 
 
 doubt 
 
 defined — 
 
 
 Massachusetts. 
 
 
 § 2661. 
 
 Reasonable 
 Michigan. 
 
 doubt 
 
 defined — 
 
 § 2662. 
 
 Reasonable 
 
 Mississipp 
 
 doubt 
 
 defined — 
 
 § 2663. 
 
 Reasonable 
 Missouri. 
 
 doubt 
 
 defined — 
 
 § 2664. 
 
 Reasonable 
 Nebraska. 
 
 doubt 
 
 defined — 
 
 § 2665. 
 
 Reasonable 
 New Yoi'k 
 
 doubt 
 
 defined— 
 
 § 2666. 
 
 Reasonable 
 Oklahoma. 
 
 doubt 
 
 defined — 
 
 § 2667. 
 
 Reasonable 
 
 doubt 
 
 defined — 
 
 
 South Carolina. 
 
 
 S 2668. 
 
 Reasonable 
 
 doubt 
 
 defined — 
 
 
 South Dakota. 
 
 
 § 2669. 
 
 Reasonable 
 Tennessee 
 
 doubt 
 
 defined — 
 
 § 2670. 
 
 Reasonable 
 
 doubt— 
 
 -Texas. 
 
 § 2671. 
 
 Reasonable 
 
 doubt- 
 
 -Virginia. 
 
 § 2672. 
 
 Reasonable 
 
 doubt 
 
 defined — 
 
 
 West Virginia. 
 
 
 § 2673. 
 
 Reasonable 
 Wisconsin 
 
 doubt 
 
 defined — 
 
 § 2674. 
 
 Reasonable 
 
 doubt 
 
 defined— 
 
 U. S. courts. 
 
 1686
 
 CRIMINAL— PRESUMPTION. 
 
 1687 
 
 § 2675. Presumption of innocence — 
 Reasonable doubt — Suspi- 
 cion of probability of guilt 
 not sufRcient to convict — 
 Insanity or irresponsibility 
 must be proven. 
 
 § 2676. Reasonable doubt — Presump- 
 tion of innocence — Circum- 
 stantial evidence — Links in 
 the chain of circumstances. 
 
 § 2677. Reasonable doubt — R u 1 e 
 where evidence is circum- 
 stantial. 
 
 § 2678. Every material fact or link 
 in the chain of circum- 
 stances must be proved be- 
 yond a reasonable doubt. 
 
 § 2679. Reasonable doubt— Evidence 
 required to convict. 
 
 § 2680. Absolute certainty not re- 
 quired to convict. 
 
 § 2681. Reasonable doubt — Not one 
 produced by" undue sensi- 
 bility or trivial and fan- 
 ciful suppositions. 
 
 § 2682. Reasonable doubt abiding 
 conviction to a moral cer- 
 tainty. 
 
 § 2683. Must be an actual, substan- 
 tial, fixed and reasonable 
 doubt, not imaginary, con- 
 jectural, vague or whimsi- 
 cal. 
 
 § 2684. Reasonable doubt must not 
 be mere speculation. 
 
 § 2685. Reasonable doubt should be 
 a substantial doubt arising 
 from the evidence. 
 
 §2686. Reasonable doubt defined— 
 Compared to conduct in 
 important affairs of life. 
 
 § 2687. Reasonable doubt — Conscien- 
 tious belief. 
 
 § 2688. Caution against conviction 
 from prejudice. 
 
 § 2689. Appealing to individual jur- 
 ors. 
 
 § 2690. Reasonable doubt by one 
 juryman will prevent con- 
 viction. 
 
 § 2691. Reasonable doubt — Doctrine 
 does not apply to mere 
 subsidiary evidence. 
 
 § 2692. Reasonable doubt— Arising 
 from part of the evidence 
 after consideration of the 
 whole. 
 
 § 2693. Reasonable doubt should 
 arise from the evidence as 
 a whole — Possibility of the 
 defendant's innocence will 
 not warrant an acquittal. 
 
 § 2694. Reasonable doubt as to any 
 material fact. 
 
 § 1^695. Reasonable doubt — May arise 
 from want of evidence. 
 
 § 2696. Reasonable doubt— "Doubt" 
 must be within the evi- 
 dence. 
 
 § 2697. Reasonable doubt— Probabil- 
 ity of innocence. 
 
 § 2698. Reasonable doubt — May arise 
 from evidence of previous 
 good character. 
 
 § 2699. Reasonable doubt — Indepen- 
 dent circumstances identi- 
 fying defendant. 
 
 § 2700. Reasonable doubt— Where 
 testimony is limited by 
 election. 
 
 § 2701. Reasonable doubt to acquit 
 must relate to precise 
 crime charged. 
 
 § 2702. Reasonable doubt — Guilty 
 only as to count proven. 
 
 § 2703. Only allegations of indict- 
 ment need be proven be- 
 yond reasonable doubt. 
 
 § 2704. R'?asonable doubt as to 
 which of several killed de- 
 ceased. 
 
 § 2705. Doubting as a juror what 
 one believes as a man. 
 
 § 2706. If reasonable doubt of de- 
 gree of offense, verdict 
 should be guilty of the 
 less offense. 
 
 § 2707. If reasonable doubt whether 
 murder or manslaughtei 
 verdict should be man- 
 slaughter — First or second 
 degree. 
 
 § 2708. Reasonable doubt — Every 
 reasonable hypothesis of 
 innocence excluded. 
 
 § 2709. Duty of jury to adopt hy- 
 pothesis of defendant's in- 
 nocence. 
 
 § 2710. Proof— Must be inconsistent 
 with any reasonable hy- 
 pothesis of defendant's in- 
 nocence. 
 
 § 2711. Jury must acquit if evi- 
 dence consistent with de- 
 fendant's innocence. 
 
 § 2712. Proof of every fact neces- 
 sary to establish guilt be- 
 yond reasonable doubt, and 
 inconsistent with every 
 other reasonable hypothe- 
 sis. 
 
 § 2713. Reasonable doubt defense of 
 alibi established by. 
 
 § 2714. Reasonable doubt as to san- 
 ity acquits.
 
 1688 
 
 FORMS OF INSTRUCTIONS. 
 
 [§ 2634. 
 
 2715. Reasonable doubt that charge 
 
 was caused by hallucina- 
 
 tiODS. 
 
 2716. Reasonable doubt as to 
 
 malice. 
 
 2717. Reasonable doubt— Self de- 
 
 fense — Instruction may as- 
 sume admitted facts. 
 
 § 2718. Self defense— Defendant need 
 only create reasonable 
 doubt. 
 
 § 2719. Reasonable doubt — Conspir- 
 acy. 
 
 §2720. Reasonable doubt — Homicide. 
 
 § 2721. Larceny — Husband and wife. 
 
 § 2722. Reasonable doubt— Slander. 
 
 § 2634. Presumed to Be Innocent Until Contrary Appears Beyond 
 a Reasonable Doubt — Every Reasonable Doubt Construed in Defend- 
 ant's Favor, (a) You are further instructed that the defendants 
 are presumed to be innocent until the contrary appears beyond a 
 reasonable doubt, and that every reasonable doubt or presumption 
 arising from the evidence must be construed in their favox'.^ 
 
 (b) The court charges you that the law presumes the defendant 
 innocent until proven guilty beyond a reasonable doubt. That if 
 you can reconcile the evidence before you upon any reasonable hy- 
 pothesis consistent with the defendant's innocence, you should do so, 
 and in that case find him not guilty. You are further instructed 
 that you cannot find the defendant guilty unless from all the evi- 
 dence you believe him guilty 'beyond a reasonable doubt.- 
 
 (c) Defendant in a criminal case is presumed to be innocent until 
 his guilt is established by legal evidence beyond a reasonable doubt, 
 and in case you have a reasonable doubt as to the defendant's guilt 
 you will acquit him, and say by your verdict, "Not guilty."^ 
 
 (d) The defendant is presumed by the law to be innocent until 
 his guilt is established by legal evidence beyond a reasonable doubt, 
 and if you have a reasonable doubt as to his guilt you will acquit 
 him.* 
 
 (e) Evei-y person charged with crime is presumed to be innocent 
 until his guilt has been established beyond a reasonable doubt.^ 
 
 1 — Cochran v. United States, 157 
 U. S. 286 (298), 15 S. Ct. 628. 
 
 2— Hopt V. Utah, 120 U. S. 430 
 (439), 7 S. Ct. 614. 
 
 S — Adams v. State, — Tex. Cr. 
 App. — . 84 S. W. 231 (233). 
 
 "The objection to this charg-e is 
 that it is not a correct statement 
 of the law, and is prejudicial to 
 the defendant. How or in what 
 way it could possibly be prejudi- 
 cial to defendant, or is not a cor- 
 rect statement of the law, we are 
 at a loss to know, it being the 
 stereotyped statement of the reas- 
 onable doubt approved by this 
 court in many cases." 
 
 4— Hughes V. State, 43 Tex. Crim. 
 App. .^,11, 67 S. W. 104 (105). 
 
 .')— Dalzell V. State, 7 Wyo. 450, 
 5."? Pac. 297; a larceny case. 
 
 "It is urged that the failure of 
 the court to insfrt in this and simi- 
 
 lar instructions the statement that 
 such guilt must be established by 
 'competent evidence' or equivalent 
 words was misleading, and left the 
 jury to indulge presumptions 
 against the defendant not war- 
 ranted by the evidence. It is 
 of course true that the guilt of 
 the defendant can be established 
 lawfully only by competent evi- 
 dence; and if anything in the 
 progress of the trial or the circum- 
 stances of the case should cause 
 it to appear necessary that the 
 attention of the jury should be par- 
 ticularly called to this principle, 
 or the defendant shoiild request 
 that the jury be specially in- 
 structed in regard to it, it might 
 be error to refuse it. But it is 
 not necessary that a jury shall 
 be informed as to the whole scope 
 of their duties in each instruc-
 
 § 2635.] CRIMINAL— PRESUMPTION. 1689 
 
 (f ) You are instructed that the defendant in a criminal action is 
 presumed to be innocent until the contrary is proved, and, in case 
 of a reasonable doubt whether his ^ilt is satisfactorily shown, he 
 is entitled to acquittal.'' 
 
 § 2635. Same Subject — Must Be Substantial Doubt, Not a Mero 
 Possibility of Innocence, (a) The court declares the law to be that 
 the defendant is presumed to be innocent until proven guilty beyond 
 a reasonable doubt; but a doubt, to authorize an acquittal, must be 
 substantial doubt of defendant's guilt and not a mere possibility of 
 his innocence. ''^ 
 
 (b) The defendant is presumed to be innocent, and this presump- 
 tion remains until the state, by evidence, establishes his guilt to your 
 satisfaction, and beyond a reasonable doubt. If, therefore, upon a 
 consideration of all the evidence, you have a reasonable doubt of the 
 defendant's guilt, you should give him the benefit of such a doubt, 
 and acquit him; but, to authorize an acquittal on the ground of 
 doubt alone, it must be a reasonable doubt, and not the mere possi- 
 bility of defendant's innocence.^ 
 
 (c) The court instructs the jui*y that, before they can convict 
 the defendant, they must be satisfied of his guilt beyond a reasonable 
 doubt. Such doubt, to authorize an acquittal upon a reasonable 
 doubt, must be substantial doubt of the defendant's guilt, with a 
 view to all the evidence in the case, and not a mere possibility of the 
 defendant's innocence. 
 
 (d) The court instructs the jury that the law presumes the inno- 
 cence, and not the guilt, of the defendant, throughout the trial, and 
 at the end entitles the defendant to an acquittal, unless the evidence 
 
 tion or even in each case. Much in subsequent decisions. State v. 
 
 is safely left to their intelligence Gibbs, 10 Mont. 213, 25 Pac. 289, 
 
 and knowledge of their duties." 10 L. R. A. 749; State v. Gleim, 17 
 
 A similar instruction was ap- Mont. 17, 41 Pac. 998, 31 L. R. A. 
 
 proved in State v. Harness, 10 294, 52 Am. St. 655, 10 Am. Cr. Rep. 
 
 Idaho 18, 76 Pac. 788 (792). 46; State v. Harrison, 23 Mont. 79, 
 
 In Winfield v. State, 44 Tex. 57 Pac. 647; State v. Bristol, 21 
 
 Grim. App. 475, 72 S. W. 182, the Mont. 578, 55 Pac. 107; State v. 
 
 jury were instructed that: Clancy, 20 Mont. 498, 52 Pac. 267; 
 
 The defendant is presumed to be State v. Vineyard, 16 Mont. 138, 40 
 
 innocent until his guilt is estab- Pac. 173. 
 
 lished to the sati.sfaction of the "The above quoted instruction 
 
 jury beyond a reasonable doubt, is a verbatim copy of section 2072 
 
 and unless you are so satisfied, of the Penal Code, and is, when 
 
 you will find him not guilty. read in connection with instruc- 
 
 6 — State V. Martin, 29 Mont. 273, tion No. 4, substantially the same 
 
 74 Pac. 725 (727). in form and meaning as the in- 
 
 The court said: struction requested by defendant. 
 
 "In another instruction the court This instruction is therefore not 
 
 gave the definition of reasonable open to the objection made by ap- 
 
 dnubt as contained in Territory v. pellant." 
 
 McAndrews. 3 Mont. 158, and which 7— State v. Davis, 194 Mo. 485, 92 
 
 WIS taken from Commonwealth v. S. W. 484; State v. Bond, 191 Mo. 
 
 ■We>iste^, 5 Cush. 295. 52 Am. Dec. 555. 90 S. W. 830. 
 
 711, .ind Commonwealth v. Costley, 8 — StTte v. "Weber, 156 Mo. 249, 
 
 118 Mass. 1. and which has been 56 S. W. 729. 
 repeatedly indorsed by this court
 
 1690 FORMS OF INSTRUCTIONS. [§ 2636. 
 
 in the ease, when taken as a whole, satisfies you of defendant's guilt 
 beyond a reasonable doubt, as defined in these instructions.^ 
 
 § 2636. Presumption of Innocence — Defendant to Be Given Full 
 Benefit of. (a) The law presumes that the defendant is innocent 
 of the crime charged against him in this indictment, and it is your 
 duty, in considering this case, to give him the full benefit of that 
 presumption. If he is convicted at all of either of such crimes, it 
 must be upon the testimony which has been produced here upon this 
 trial." 
 
 (b) The law presumes that persons charged with crime are inno- 
 cent until thej^ are proven by competent evidence to be guilty. To 
 the benefit of this presumption the defendants are all entitled, and 
 this presumption stands as their sufficient protection unless it has 
 been removed by evidence proving their guilt beyond a reasonable 
 doubt." 
 
 (c) The jury are instructed that the law is, that a defendant 
 charged with a criminal offense is presumed to be innocent until his 
 guilt is established by the evidence, beyond a reasonable doubt.^^ 
 
 (d) The law presumes every man innocent, and desires no con- 
 viction if the jury, or any one of them, entertains a reasonable doubt 
 of his guilt ; for while the jury, or any one of them, entertains a 
 reasonable doubt as to the guilt of the defendant of the crime charged 
 he cannot, without a great violence to his conscience and sense of 
 right, agree upon a verdict of conviction. ^^ 
 
 9— State v. Hudspeth, 159 Mo. 178, if. after a full and fair review 
 
 60 S. W. 136 (139. 144). of all the evidence in the cause, 
 
 In State v. Fisher, 162 Mo. 169, you entertain a reasonable doubt 
 
 62 S. W. 690 (691), the court in- of the defendant's guilt, you 
 
 structed as follows: should give him the benefit of such 
 
 "The law presumes the defendant doubt and acquit him; but such 
 to be innocent of the offense doubt, to authorize you to acquit 
 charged. It devolves upon the him on that ground alone, should 
 state to prove him guilty beyond be a substantial doubt founded on 
 a reasonable doubt. If you have the evidence, and not a mere possi- 
 a reasonable doubt of his guilt, bility of his innocence. 
 you should acquit him; but a In State v. Hale, 156 Mo. 102, 56 
 doubt, to authorize an acquittal on S. W. 8S1 (882), the court instruct- 
 that ground, should be a substan- ed the jury: 
 
 tial doubt founded upon the evi- The law presumes the defend- 
 
 dence and not a mere possibility ants' innocence until the state has 
 
 of 'innocence.' " proven their guilt beyond a reason- 
 
 The court said: ' able doubt, and, unless the state 
 
 "This is substantially the instruc- has so proven their guilt, you will 
 
 tion given in State v. Nueslein, 25 acquit them. But such a doubt, to 
 
 Mo. Ill, which has been so often authorize an acquittal on that 
 
 commended by this court. There ground alone, should be a substan- 
 
 was no error in giving it." tial doubt of guilt, and not a mere 
 
 In State v. Lcntz, 184 Mo. 223 possibility of their innocence. 
 
 (232), 83 S. W. 970 (971), the court 10— Boykin v. People, 22 Colo. 496, 
 
 Instructed the jury that: 45 Pac. 419 (420). 
 
 The law pre.sumes the defendant 11 — CofHn v. United States, 156 
 
 Innocent of the crime charged U. S. 432 (452), 15 S. Ct. 396. 
 
 against him in this information, 12 — Padfield v. People, 146 111. 
 
 and the burden of proving him 660 (662), 35 N. E. 469. 
 
 guilty thereof beyond a reasonable 13 — Franklin v. State, 92 "Wis. 
 
 doubt rests upon the state. Now, 269, 66 N. W. 107.
 
 § 2637.] 
 
 CRIMINAI^-PRESUMPTION. 
 
 1691 
 
 § 2637. Presumption — Matter of Evidence, (a) In the absence 
 of evidence to the contrary, the law presumes every one charged with 
 the commission of a crime to be innocent; and this legal presumption 
 of innocence is a matter of evidence, to the benefit of which the de- 
 fendants are entitled in this case.^* 
 
 (b) In the absence of evidence to the contrary, the law presumes 
 every one innocent; and this legal presumption of innocence is a 
 matter of evidence, to the benefit of which the party is entitled. The 
 burden of proof is on the state to satisfy the jury of his guilt. Even 
 if he introduces no evidence at all to overcome or explain that against 
 him, the jury should acquit him, unless the evidence introduced by 
 the state satisfies you, beyond a reasonable doubt, that he is guilty, 
 as charged in this indictment.^^ 
 
 (e) Gentlemen of the jury, the legal presumption of innocence 
 is to be regarded by the jury in every case as a matter of evidence, 
 to the benefit of which the accused is entitled, and as a matter of 
 evidence it attends the accused until his guilt is by the evidence, 
 placed beyond all reasonable doubt. ^^ 
 
 § 2638. Presumption of Innocence Overcome Only by Proof — Proof 
 Required, (a) All persons accused of crime are presumed by law 
 to be innocent until they are proven to be guilty. The consequence 
 
 "We are constrained to hold that 
 the refusal to give such instruc- 
 tion, or its equivalent, was error. 
 'The true rule is that the burden 
 of proof is upon the state to prove 
 the guilt of the defendant, and 
 that he is presumed innocent un- 
 less the whole evidence in the case 
 satisfies the jury, beyond a reason- 
 able doubt, that he is guilty.' Cril- 
 ley V. State. 20 Wis. 232; Baker v. 
 State, 80 Wis. 421, 50 N. W. 518; 
 Fossdahl v. State, 89 Wis. 482, 486, 
 62 N. W. 185. This rule was sanc- 
 tioned by Shaw, C. J., in Com. v. 
 Kimball, 24 Pick. 366, 374. See also 
 State V. Flye, 26 Me. 312; State v. 
 Tibbetts, 35 Me. 81; Ogletree v. 
 State, 28 Ala. 693. Thus it was held 
 error to refuse an instruction to* 
 the effect that the presumption of 
 innocence prevails throughout the 
 trial, and that it is the duty of the 
 jury, if possible, to reconcile the 
 evidence with this presumption. 
 Farley v. State, 127 Ind. 419. 26 N. 
 E. 898. True, the court charged 
 the jury to the effect that they 
 could not convict unless, from all 
 the evidence, there was left in 
 their minds no reasonable doubt of 
 the guilt of the accused. But this 
 is not equivalent to the instruction 
 refused. People v. Ma card, 73 
 Mich. 15, 40 N. W. 784; People v. 
 
 Potter, 89 Mich. 353, 50 N. W. 994." 
 
 14— McVey v. State, 57 Neb. 471, 
 77 N. W. nil (1113); Bartley v. 
 State, 53 Neb. 310, 73 N. W. 744, 
 following Garrison v. People, 6 
 Neb. 285. 
 
 15— Long v. State, 23 Neb. 33, 36 
 N. W. 310 (319). 
 
 "The jury were not informed that 
 the legal presumption of innocence 
 was a matter of evidence, to the 
 benefit of which plaintiff in error 
 was entitled. This part of the in- 
 struction was evidently copied 
 from the syllabus of the opinion 
 w^ritten by the present chief justice 
 in Garrison v. People, 6 Neb. 275. 
 It should have been given." 
 
 16— Harris v. State, 123 Ala. 69, 
 26 So. 515 (516). 
 
 "This charge was copied from 
 the case of Bryant v. State, 116 
 Ala. 446, 23 So. 40, where it was 
 held to assert a correct proposition 
 of law on the authority of Newsom 
 v. State, 107 Ala. 134, 18 So. 206. 
 The court erred in refusing it." 
 
 It w'as likewise held error to re- 
 fuse this instruction in Amos v. 
 State, 123 Ala. 50, 26 So. 524 (525), 
 compare Long v. State, 42 Fla. 612, 
 28 So. 775. where the court doubted 
 whether this presumption is to be. 
 regarded as evidence.
 
 1692 FORMS OP INSTRUCTIONS. [§ 2639. 
 
 of this rule of law is that they are not required to prove their inno- 
 cence, but may rest upon the presumption in their favor until it is 
 overcome by positive affirmative proof. It is therefore the duty of 
 the state to establish to your satisfaction, beyond a reasonable doubt, 
 every essential ingredient necessary to constitute the guilt of the 
 prisoners of the crime charged.^''' 
 
 (b) The court instructs the jury, that the defendant is presumed 
 to be innocent until his guilt is established by such evidence as will 
 exclude every reasonable doubt. Therefore, the law requires that 
 no man shall be convicted of a crime, until each and every one of the 
 juiy is satisfied by the evidence in the case, to the exclusion of every 
 reasonable doubt, that the defendant is guilty as charged. If anyone 
 of the jury, after having duly considered all the evidence, and after 
 having consulted with his fellow juiymen, should entertain such rea- 
 sonable doubt, the jury cannot in such case find the defendant 
 guilty.^® 
 
 (e) The jury are instructed that the indictment contains the for- 
 mal statement of the charge, but is not to be taken as any evidence 
 of defendant's guilt. The law presumes the defendant to be inno- 
 cent, and this presumption continues until it has been overcome by 
 evidence which establishes his guilt to j'our satisfaction and beyond 
 a reasonable doubt. And the burden of proving his guilt rests with 
 the state. If, however, this presumption has been overcome by the 
 evidence, and the guilt of the defendant established to a moral cer- 
 tainty and beyond a reasonable doubt, your duty is to convict. If, 
 upon consideration of all the evidence, you have a reasonable doubt 
 of the defendant's guilt, you should acquit; but a doubt, to authorize 
 an acquittal on that ground, ought to be a substantial doubt touching 
 the defendant's guilt, and not a mere possibility of his innocence.^® 
 
 (d) The court instructed the jury that the defendants are pre- 
 sumed to be innocent until their guilt is established by proof, and 
 that they are entitled to the benefit of any and all reasonable doubts, 
 and cannot be convicted of any crime unless the jury are convinced 
 by the evidence in the case beyond all reasonable doubt, etc.-*^ 
 
 § 2639. Presumption of Innocence Continues Until Every Material 
 Element Is Proven, (a) The law in its humanity, presumes all 
 
 17— State v. Nicholls et al., 50 La. IS— Painter v. People, 147 111. 444 
 
 699, 23 So. 980 (982). (470), 35 N. E. 64. 
 
 In People v. Stewart. 75 Mich. 19— State v. Miller, 190 Mo. 449, 
 
 21, 42 N. W. 662, the following in- 89 S. W. 377. 
 
 struction was given: 20 — People v. Miles, 143 Cal. 636, 
 
 You will start out in the trial of 77 Pac. 566 (668). 
 
 this case with the presumption that "The objection to this instruc- 
 
 the defendant is wholly innocent tion is that the word 'reasonable' 
 
 of the crime charged, and that pre- before the word 'satisfaction' 
 
 sumption must be overcome by therein should have been added, 
 
 evidence so convincing that you The instruction is correct without 
 
 ran sny, beyond any reasonable the addition of thnt word, and has 
 
 doubt, that the defendant Is guilty uniformly received the .sanction 
 
 as charged. and approval of this court."
 
 § 2640.] CRIMINAL— PRESUMPTION. 1693 
 
 persons charged with the commission of crime to be innocent, and 
 this humane presumption continues until every material element that 
 constitutes the crime is proven to the satisfaction of the juiy trying 
 such persons, beyond a reasonable doubt. -^ 
 
 (b) The defendant, in the first instance, is presumed to be inno- 
 cent of the offense charged until he is proven guilty according to the 
 forms of law. His plea of *'not guilty" puts in issue every material 
 allegation of the indictment, and he cannot be rightfully convicted 
 unless the state, by the evidence, has overcome the presumption of 
 innocence in defendant's favor and has made out every material 
 allegation of the indictment to your satisfaction, and beyond all 
 reasonable doubt. Clear and satisfactory proof is required. No 
 mere weight or preponderance of testimony will be sufficient to war- 
 rant a conviction herein, unless it be so strong and convincing as to 
 remove from your minds all reasonable doubt of the defendant's 
 guilt.22 
 
 (c) The court instructs the jury, that the law raises no pre- 
 sumption against the prisoner, but every presumption of the law is in 
 favor of his innocence ; and, in order to convict him of the crime al- 
 leged in the indictment, or of any lesser crime included in it, every 
 material fact necessary to constitute such crime must be proved be- 
 yond a reasonable doubt; and if the jury entertain any reasonable 
 doubt upon a single fact or element necessary to constitute the crime, 
 it is your duty to give the prisoner the benefit of such doubt, and 
 acquit him.^^ 
 
 § 2640. Presumption of Innocence — Every Ingredient Must Be 
 Proven. The law presumes every man to be innocent until his guilt 
 is proven beyond a reasonable doubt. Every ingredient necessary 
 to constitute an offense must be proven beyond a reasonable doubt 
 before you can return a verdict of guilty against the defendants. 2* 
 
 § 2641. Duty of Jury to Infer Innocence Rather than Guilt, (a) 
 Gentlemen of the jury, I charge you, that if the testimony in this 
 case in its weight and effect be such as two conclusions can be rea- 
 sonably drawn from it, the one favoring the defendant's innocence, 
 
 21 — Kirby v. State, 44 Fla. 81, 32 no mere weight or preponderance 
 
 So. 837. is ever strong- enough to exclude 
 
 22 — State v. Brown, 100 Iowa 50, such doubt; but it is not so stated 
 
 69 N. W. 277. (The charge was lar- in argument. The instruction is 
 
 ceny.) not open to a meaning other than 
 
 "The instruction is said to be er- that the weight or preponderance 
 roneous because of the expression, must be sufficient to exclude all 
 'mere weight or preponderance of reasonable doubt. The jury doubt- 
 evidence.' And it is said that the less so understood it." 
 jury might infer that the court 23 — Snyder v. State, 59 Ind. 105. 
 means just the opposite of what it 24 — Bassett et al. v. State, 44 Fla. 
 said, for in plain terms the instruc- 2, 33 So. 262 (263). 
 tion forbids a conviction upon a "The form of this charge has 
 weight or preponderance of evi- been approved by this court in 
 dence not strong enough to exclude Lovett v. State, 30 Fla. 142, 11 So. 
 all reasonable wioubt of guilt. The 550, 17 L. R. A. 705." 
 thought of counsel, likely, is that
 
 1694 FORMS OF INSTRUCTIONS. [§ 2642. 
 
 and the other tending to establish her guilt, law, justice and hu- 
 manity alike demand that the jury shall adopt the former, and find 
 the accused not guilty.^^ 
 
 (b) Where two conclusions can be drawn from a single circum- 
 stance, one tending to establish guilt and the other tending towards 
 the innocence of the accused, the law makes it your duty to accept 
 the conclusion tending towards innocence, rather than the one tending 
 towards guilt.-^ 
 
 (c) The jui-y are instructed that, when a man's conduct may be 
 as consistently and as reasonably, from the evidence, referred to one 
 of two motives, one criminal and the other innocent, it is your duty 
 to presume that such conduct is actuated by the innocent motive 
 and not by the criminal.^^ 
 
 (d) Where the act or language of a person may be attributed to 
 two motives, one criminal, the other not, the law will ascribe it to 
 that which is innocent. This is a general rule, and applies in this 
 ease, unless the testimony convinces the jury the criminal motive is 
 the true one.^^ 
 
 § 2642. Presumption of Innocence — Not a Mere Form — Defendant 
 Must Be Given Benefit. The jury are further instructed that the 
 presumption of innocence is not a mere form, to be disregarded by the 
 jury at pleasure, but it is an essential, substantial part of the law of 
 the land, and binding on the jury in this case, as in all criminal 
 cases; and it is the duty of the jury to give the defendant in this 
 case the full benefit of this presumption, and to acquit the defendant, 
 unless the evidence in the case convinces theni of his guilt as charged, 
 beyond all reasonable doubt.^^ 
 
 § 2643. Jury Compelled to Bear the Presumption of Innocence in 
 Mind. The defendant comes before you clothed with the presumption 
 of innocence, and this presumption is a substantial part of the law 
 of the land; and you are compelled under your oaths, to caiTy this 
 presumption in your minds during every stage of the trial, and give 
 the defendant the benefit of it until such time as you may be con- 
 
 25 — Bryant v. State, 116 Ala. 445, innocent of the charge until proven 
 
 23 So. 40 (41). beyond a reasonable doubt to be 
 
 Compare Miller v. State, 107 Ala. 'guilty. This presumption of inno- 
 
 40, 19 So. 37. cence is not a mere form, to be dis- 
 
 26 — People v. Gilmore, — Cal. — , regarded by the jury at pleasure. 
 
 53 Pac. 806 (807). Not reported. It is an essential, substantial part 
 
 27— McCoy v. People, 175 111. 224 of the law of the land, and bind- 
 
 (233), 51 N. E. 777. ing upon the jury in this case; and 
 
 28— State v. Jackson, 129 N. C. it is the duty of the jury to give 
 
 558, 40 S. E. 41. to the defendant the full benefit of 
 
 29 — People v. Fitzgerald, 138 Cal. this presumption, and to acquit 
 
 39. 70 Pac. 1014 (1017). him, unless you feel compelled to 
 
 The following, which is nearly find him guilty as charged, and 
 
 similar to the text Instruction, was the evidence so convinces you be- 
 
 approved in Allen v. State, 70 Ark. yond all reasonable doubt of his 
 
 337. 68 S. W. 28 (29-30): guilt. 
 
 The defendant is presumed to be
 
 § 2644.] 
 
 CRIMINAI^PRESUMPTION. 
 
 1695 
 
 vinced by the sworn testimony in this case, and beyond all reasonable 
 doubt, of his guilt, as charged in the indictment.^'' 
 
 § 2644. Presumption of Innocence Not a Shield from Conviction. 
 The rule of law which throws around the defendant the presumption 
 of innocence, and requires the state to establish bej'ond a reasonable 
 doubt every material fact averred in the indictment, is not intended 
 to shield those who are actually guilty from just and merited pun- 
 ishment ; but it is a humane pi'ovision of the law, which is intended 
 for the protection of the innocent, and to guard, so far as human 
 agencies can, against the conviction of those unjustly accused of 
 crime.^^ 
 
 § 2645. Refusal to Instruct on the Presumption of Innocence Is 
 Error in Many States. The law presumes the defendant innocent, 
 and this presumi^tion of innocence attends and surrounds him through 
 every stage of the case, until the jury shall finally render its ver- 
 dict.32 
 
 30— Kennard v. State, 42 Fla. 581, 
 28 So. 858 (861). 
 
 31— Anderson v. State, 104 Ind. 
 467, 4 N. E. 64 (66), 5 N. E. 711, 5 
 Am. Cr. Rep. 601. 
 
 "The above instruction is noth- 
 ing- more than a substantial repeti- 
 tion of what has heretofore in some 
 form received the approbation of 
 this court, and notably so in the 
 recent case of Stout v. State, 90 
 Ind. 1. See also Turner v. State, 
 102 Ind. 425. 1 N. E. Rep. 869, 5 Am. 
 Cr. Rep. 360." 
 
 32— State v. Kennedy, 154 Mo. 
 268, 55 S. W. 293 (299). 
 
 "No doubt, we take it, can no 
 longer exist that the presumption 
 of innocence is indulged in favor 
 of every person charged with 
 crime, and that his guilt must be 
 established beyond a reasonable 
 doubt; but the question is, if the 
 court properly and fully instructs 
 the jury on reasonable doubt, will 
 its failure to instruct the jury that 
 the defendant is presumed to be 
 innocent until his guilt is estab- 
 lished constitute reversible error, 
 in and of itself? On the side of 
 the defendant is to be found the 
 supreme court of the United States 
 in Coffin v. U. S., 156 U. S. 432, 15 
 Sup. Ct. 394. 39 L. Ed. 481, on writ 
 of error to the district court of the 
 United States for Indiana. In an 
 opinion by Justice "White, the re- 
 fusal of an instruction in all re- 
 spects similar to the one refused 
 in this case was held reversible 
 error. The learned justice traced 
 the history of the presumption of 
 innrippnre. nnd drew the distinc- 
 tion betueen reasouable doubt and 
 
 the presumption of innocence. As 
 indicating the want of unanimity 
 of judicial opinion, he says: 'The 
 authorities upon this question are 
 few and unsatisfactory.' He cites 
 cases from Texas and Indiana hold- 
 ing it necessary to state to the 
 jury the presumption of innocence, 
 but concedes that in both states 
 statutes required it. In Michigan 
 it has been ruled error to refuse 
 it when asked, but a failure to 
 give it when not prayed was not 
 error. People v. Potter, 89 Mich. 
 353, 50 N. W. 994; People v. Graney, 
 91 Mich. 646, 52 N. W. 66. On the 
 other hand, it has been expressly 
 ruled, after full consideration, in 
 Ohio, that it is not error to refuse 
 to charge the presumption of inno- 
 cence, where the court correctly 
 instructed on the doctrine of rea- 
 sonable doubt. In Morehead v. 
 State, 34 Ohio St. 212, Judge Mc- 
 Uvaine, for the court, said: 'Un- 
 questionably, the defendant was 
 entitled to the benefit of the legal 
 presumption of innocence. We 
 think, however, it was given to 
 him. The benefit of the presump- 
 tion of innocence was fully and 
 practically secured to him in the 
 instruction that the state must 
 prove the material elements of the 
 crime beyond a reasonable doubt.' 
 The court of appeals of Kentucky 
 also had the identical proposition 
 before it in Stevens v. Com. 45 
 S. W. 76, and held, just as the Ohio 
 court did, that, while the presump- 
 tion of innocence might have prop- 
 erly been stated to the jury, he 
 had the full practical benefit in the 
 requirement that his guilt must ba
 
 1696 
 
 FORMS OF INSTRUCTIONS. 
 
 [§ 2646. 
 
 § 2646. Presumption of Innocence Continues Throughout the Trial. 
 
 (a) The defendant is presumed to be innocent of the crime 
 charged against him, and so strong is this presumption that it clings 
 to him, surrounds, shields and protects him, through the entire trial 
 of this case, and until such presumption is overcome by evidence 
 which proves him guilty beyond a reasonable doubt.^^ 
 
 (b) The court instructs the jury that you must presume the 
 defendant to be innocent until his guilt is fully established by legal 
 evidence, beyond a reasonable doubt, and the presumption of inno- 
 cence prevails throughout the trial, and it is your sworn duty as 
 jurors trying this case, to reconcile, if possible, the evidence in this 
 case with this presumption.^* 
 
 proved beyond a reasonable doubt. 
 In Alabama and California, the 
 presumption of innocence and rea- 
 sonable doubt are seemingly treat- 
 ed as synonymous. Ogletree v. 
 State, 28 Ala. 693; Moorer v. State, 
 44 Ala. 15; People v. Lenon, 79 
 Cal. 625, 21 Pac. 967. 
 
 "In this state it has been ruled, 
 in at least three cases, that it is 
 not reversible error to refuse an 
 instruction stating the presump- 
 tion of innocence, when the court 
 had fully instructed on the doctrine 
 of reasonable doubt. State v. 
 Young, 105 Mo. 640, 16 S. W. 408; 
 State v. Harper, 149 Mo. 514, 51 
 S. W. 89; State v. Heinze, 66 Mo. 
 App. 136. While it is now usual, 
 and we think the proper course, to 
 instruct the jury that the law pre- 
 sumes the innocence of the defend- 
 ant, and before the jury can con- 
 vict him they must find him guilty 
 beyond a reasonable doubt, yet 
 when the court has, as in this 
 case, fully instructed in his favor 
 on the doctrine of reasonable doubt, 
 and the evidence so abundantly 
 sustains the verdict of the jury, we 
 do not think the sentence should 
 be reversed solely for the failure 
 to state the presumption. We 
 cited Coffin v. U. S., 156 U. S. 432, 
 15 Sup. Ct. 394, 39 L. Ed. 481; in 
 State V. Hudspeth, 150 Mo. 12, 51 
 S. W. 483, arguendo, to show that 
 the trial court in that case er- 
 roneously required the defendant 
 to prove his innocence, but the 
 question now before us did not 
 arise in that case. We adhere to 
 our previous decisions on this 
 point. It is not easy to determine 
 when the courts of this state first 
 bogan to state this presumption in 
 their instruction to juries, but it is 
 true that for many years It was 
 
 the opinion of both bench and bar 
 that the instruction that 'before 
 the jury could convict, they must 
 be satisfied of the guilt of the de- 
 fendant beyond a reasonable 
 doubt,' secured to him the full 
 benefit of the presumption. Bald- 
 win V. State, 12 Mo. 223; Gardiner 
 v. State, 14 Mo. 98; State v. Nuel- 
 sein, 25 Mo. Ill; State v. Lewis, 69 
 Mo. 92; State v. Edwards, 71 Mo. 
 312." 
 
 33— State v. Privitt, 175 Mo. 207, 
 75 S. W. 457 (461). 
 
 34— Parsons v. The People, 218 
 111. (386, 396), 75 N. E. 993. 
 
 In the same case the following 
 was approved: 
 
 The court instructs the jury that 
 the defendant at the outset of the 
 trial is presumed by the law to be 
 an innocent man, and he is not re- 
 quired to prove himself innocent or 
 to put in any evidence at all upon 
 that subject. And in considering 
 the testimony in this case, you 
 must look at the testimony and 
 view it in the light of the presump- 
 tion with which the law clothes 
 the defendant, that he is inno- 
 cent, and it is a presumption that 
 abides with him throughout the 
 entire trial of the case until the 
 evidence convinces you beyond a 
 reasonable doubt to the contrary. 
 
 In Edwards v. State. 69 Neb. 386, 
 95 N. W. 1038 (1039), the court in- 
 structed the jury as follows: 
 
 The law raises no presumption 
 against the defendant. On the con- 
 trary, the presumption of law is in 
 favor of his innocence. This pre- 
 sumption of innocence continues 
 through the trial until every ma- 
 terial allegation in the information 
 is established by the evidence to 
 the exclusion Of all reasonable 
 doubt.
 
 § 2646. 
 
 CRIMINAL— PRESUMPTION. 
 
 1697 
 
 (c) The court instructs the jury that the law presumes the inno- 
 cence, and not the guilt, of the defendant, and this presumption of 
 innocence attends the defendant throughout the trial, and at the 
 end entitles the defendant to an acquittal, unless the evidence in the 
 ease, when taken as a whole, satisfies you of defendant's guilt be- 
 yond a reasonable doubt, as defined in these instructions.^^ 
 
 (d) The court instructs the jury that the defendants are pre- 
 sumed to be innocent, and this presumption attends them throughout 
 the progress of the whole trial, until it is overcome by evidence prov- 
 ing their guilt beyond any reasonable doubt; and, before the jury 
 can convict, the state must establish the guilt of the defendants be- 
 yond a reasonable doubt that the defendants are guilty as charged. ^^ 
 
 An instruction similar to the fore- 
 going was approved in the earlier 
 case of Bartley v. State, 53 Neb. 
 310, 73 N. W. 744 (760). 
 
 In McVey v. State, 57 Neb. 471, 
 77 N. W. 1111 (1113), the instruction 
 contained this clause: 
 
 The law presumes the defendant 
 innocent, and this presumption con- 
 tinues throughout the trial until 
 they are proven guilty beyond a 
 reasonable doubt. 
 
 In Aszman v. State, 123 Ind. 347, 
 24 N. E. 123 (127), the following in- 
 struction was given: 
 
 The law presumes the defendant 
 to be innocent of the commission 
 of any crime, and this presumption 
 continues in his favor throughout 
 the trial of the cause, step by step; 
 and you cannot find the accused 
 guilty of any of the crimes covered 
 by the indictment until the evi- 
 dence in the cause satisfies you be- 
 yond a reasonable doubt of his 
 guilt. And so long as you, or any 
 one of you, have a reasonable 
 doubt as to the existence of any 
 of the several elements necessary 
 to constitute the several crimes 
 above defined, the accused cannot 
 be convicted of such crime. 
 
 The court said: 
 
 "In Castle v. State, 75 Ind. 146, 
 a judgment of conviction for an 
 assault and battery with intent to 
 commit murder was reversed for 
 no other reason than the refusal 
 of the court to give an instruction 
 substantially like the above. "While 
 we might hesitate to reverse a 
 judgment which was correct in all 
 other respects, we can see no good 
 reason why such an instruction 
 should be refused, when season- 
 ably requested, unless the subject 
 of the individual responsibility of 
 each juror has been adequately 
 covered in some other charge." 
 107 
 
 35— State v. Hottman, 196 Mo. 110, 
 94 S. W. 242. 
 
 36— State v. Hendricks, 172 Mo. 
 654, 73 S. W. 194 (197). 
 
 "The court simply did what it 
 was appropriate for it to do, and 
 made the instruction follow the old 
 beaten path and conform to the 
 recognized and approved form of 
 instructions on that subject." 
 
 In State v. Milligan, 170 Mo. 215, 
 70 S. W. 473 (475), the following in- 
 struction was approved: 
 
 The court instructs the jury that 
 the law presumes the defendant 
 to be innocent of the crime 
 charged, and this presumption sur- 
 rounds and protects him through- 
 out the entire trial, until it is over- 
 come by the evidence in the case 
 that establishes and proves his 
 guilt to your satisfaction, beyond 
 a reasonable doubt. A juror is un- 
 derstood to entertain a reasonable 
 doubt when he does not have an 
 abiding conviction of the truth of 
 the charge to a moral certainty, 
 and, unless you are thus convinced, 
 you must find the defendant not 
 guilty. 
 
 In Campbell v. State, 100 Ga. 
 267, 28 S. E. 71 (72), the court in- 
 structed the jury as follows: 
 
 Notwithstanding the indictment 
 in this case, the defendants enter 
 into this trial with the presump- 
 tion of innocence in their favor, 
 which presumption rests with them 
 throughout the trial until the state, 
 by satisfactory evidence, overcomes 
 that presumption, and establishes 
 their guilt upon each material al- 
 legation contained in the indict- 
 ment, and bej'ond all reasonable 
 doubt. 
 
 The court said the exception to 
 "this charge is by the use of the 
 word 'until' in this connection, and 
 followed by the subsequent clauses
 
 1698 
 
 FORMS OF INSTRUCTIONS. 
 
 [§ 26i7. 
 
 (e) The court instructs the jury that the defendant is presumed 
 to be innocent, and that this presumption continues throughout the 
 trial and until overthrown by the evidence, and that it is the duty 
 of the jury, if it can consistently be done, to reconcile the evidence 
 upon the theory that the defendant is innocent.^^ 
 
 REASONABLE DOUBT. 
 
 § 2647. Reasonable Doubt Defined and Explained — Reason for 
 Rule. The rule of law which clothes every person accused of crime 
 
 set out, the court intimated to the 
 jury an opinion that this presump- 
 tion of innocence had been over- 
 come. We do not thinli the excep- 
 tion well taken. It would have been 
 better to have used the word 'un- 
 less' instead of 'until,' but the evi- 
 dent meaning of the charge is that 
 the presumption of innocence rests 
 or remains with the defendants 
 throughout the trial, or until or 
 up to the time that the state 
 overcomes it, etc. The present, 
 and not the past, tense, is used 
 throughout this part of the charge. 
 It says that the defendants enter 
 (not entered) into their trial with 
 the presumption of innocence in 
 their favor; and this presumption 
 rests (not rested) with them until 
 the state overcomes (not overcame) 
 it, and establishes (not established) 
 their guilt beyond all reasonable 
 ■doubt. This language is not the 
 construction that the presumption 
 of innocence has been overcome by 
 the evidence of the state, and the 
 jury could not have so erroneously 
 understood." 
 
 37— Musser v. State, 157 Ind. 423, 
 61 N. E. 1 (8). 
 
 In Connor v. Commonwealth, 26 
 Ky. 398, 81 S. W. 259, the following 
 was approved: 
 
 The court instructs the jury that 
 the defendant is presumed inno- 
 cent until proven guilty to the ex- 
 clusion of a reasonable doubt, and 
 this presumption attends him at 
 every stage of the trial, and, if the 
 jury entertain a reasonable doubt 
 as to whether the defendant is 
 proven guilty, they should acquit 
 him. 
 
 In Murphy v. State, 108 Wis. Ill, 
 83 N. W. 1112 (1114), the jury were 
 Instructed as follows: 
 
 The defendant in this case entered 
 upon this trial with the presump- 
 tion of innocence in his favor, and 
 thPt prcriumption remains in his 
 favor through the entire trial, and 
 rp to the time you shall agree upon 
 yr.iir k'ordict. 
 
 In comment the court said: "The 
 
 subject was fully considered in 
 Emery v. State, 101 Wis. 627, 78 N. 
 W. 145, where it is said that strict 
 accuracy may be attained by stat- 
 ing that the presumption of inno- 
 cence attends the accused from the 
 beginning to the end of the trial 
 and must prevail unless overcome 
 by evidence so as to establish guilt 
 of the offense charged beyond a 
 reasonable doubt. The instances 
 where courts have held that a re- 
 fusal to instruct the jury in that 
 regard, in addition to the general 
 instruction that the accused is en- 
 titled to an acquittal unless the 
 jury are satisfied from the evidence 
 beyond a reasonable doubt that he 
 is guilty, is error, are grounded 
 upon the omission to give the ac- 
 cused the benefit of the legal pre- 
 sumption of innocence. That prin- 
 ciple was fully stated to the jury 
 in this case, unlike Franklin v. 
 State, 92 Wis. 269, 66 N. W. 107, 
 upon which counsel for plaintiff in 
 error seems to reply. The jury hav- 
 ing been told that there was a legal 
 presumption of innocence which en- 
 titled the accused to an acquittal 
 unless overcome by the evidence, a 
 refusal to repeat the idea in differ- 
 ent language suggested by counsel 
 for the accused, though such 
 language might have more definite- 
 ly impressed such idea upon the 
 minds of the jurors, was not re- 
 versible error. However, it would 
 have been better to have so given 
 it. Buel V. State, 104 Wis. 132, 80 
 N. W. 7S." 
 
 In Suckow V. State, 122 Wis. 156, 
 99 N. W. 410 (441), the court gave 
 this instruction: 
 
 The accused came into court and 
 entered upon the trial with the 
 presumption that he was innocent, 
 and such presumption of innocence 
 attended him throughout the trial 
 of the case and should prevail un- 
 less overcome by evidence suffi- 
 ciently strong and convincing to 
 satisfy you beyond a reasonable 
 doubt of his guilt.
 
 2648.] 
 
 CRIMINAL— PRESUMPTION. 
 
 1699 
 
 with the presumption of innocence, and imposes upon the state the 
 burden of establishing his guilt beyond a reasonable doubt, is not 
 intended to aid any one who is in fact guilty of crime to escape, 
 but is a humane provision of law, intended, so far as human agencies 
 can, to guard against the danger of any innocent person being un- 
 justly punished. A doubt, to justify an acquittal, must be reason- 
 able, and it must arise from a candid and impartial investigation of 
 all the evidence in the case; and unless it is such that, were the 
 same kind of doubt interposed in the graver transactions of life, it 
 would cause a reasonable and prudent man to- hesitate and pause, it 
 is insufficient to authorize a verdict of not guilty. If, considering all 
 the evidence, you can say j-ou have an abiding conviction of the 
 truth of the charge, you are satisfied beyond a reasonable doubt.^^ 
 
 § 2648. Reasonable Doubt — Defined — Alabama, (a) A probabil- 
 ity of innocence is the equivalent of a reasonable doubt, and requires 
 the acquittal of the defeudant.^^ 
 
 38— Willis v. State, 43 Neb. 102, 
 61 N. W. 254 (256). 
 
 "In Polin V. State, 14 Neb. 540, 16 
 N. W. 898, Polin was prosecuted 
 for murder. The district court in- 
 structed the jury that 'the proof 
 is deemed to be beyond a reason- 
 able doubt when the evidence is 
 sufficient to impress the judgment 
 and understanding of ordinarily 
 prudent men with a conviction on 
 which they would act in their most 
 important concerns or affairs in 
 life.' And this court held the in- 
 struction to be correct. In May v. 
 People, 60 111. 119, a reasonable 
 doubt was defined as follows: 'A 
 reasonable doubt, beyond which 
 the jury should iDe satisfied in a 
 criminal case before finding- the 
 accused guilty, is one arising from 
 a candid and impartial investiga- 
 tion of all the evidence, and such 
 as in the graver transactions of 
 life would cause a reasonable man 
 to hesitate and pause.' See, also, 
 Dunn V. People. 109 111. 635, 4 Am. 
 Cr. Rep. 52. The instruction as- 
 sailed was correct." 
 
 39— Whitaker v. State, 106 Ala. 
 30. 17 So. 456 (457). 
 
 The court said: "The sixth (a) 
 Instruction requested by the de- 
 fendant ought to have been given. 
 It merely reaffirms the proposition 
 which ought now to be familiar, 
 that a probability of innocence is 
 the equivalent of a reasonable 
 doubt and requires the acquittal of 
 the defendant. Bain v. State, 74 
 Ala. 38; Winslow v. St.ate, 76 Ala. 
 42, 52 Am. Rep. 314, 5 Am. Cr. Rep. 
 
 43; Smith v. State, 92 Ala. 30, 9 So. 
 408, 25 Am. St. Rep. 20; Croft v. 
 State, 95 Ala. 3, 10 So. 517." 
 
 See also Shaw v. State, 125 Ala. 
 80, 28 So. 390. 
 
 In Hicks v. State, 123 Ala. 15, 26 
 So. 337 (338), the court approved 
 a charge that: 
 
 The state is not required to prove 
 the guilt of defendant to a mathe- 
 matical certainty. 
 
 In Jackson v. State, 136 Ala. 22, 
 34 So. 188 (190), homicide, the fol- 
 lowing instructions were approved: 
 
 I charge you, gentlemen of the 
 jury, if you believe from the evi- 
 dence beyond a reasonable doubt 
 that the defendant is guilty, 
 though j'ou also believe it possible 
 that he is not guilty, you must 
 convict him. Citing Prater v. 
 State, 107 Ala. 27, 18 So. 238: 
 
 I charge you, gentlemen of the 
 jury, that the doubt must be, that 
 which will justify an acquittal, ac- 
 tual and substantial, not a mere 
 possible doubt. Because everything 
 relating to human affairs and de- 
 pending on moral evidence is open 
 to some possible or imaginary 
 doubt. Citing McKleroy v. State, 
 77 Ala. 95; Winter v. State, 123 Ala. 
 1, 12, 26 So. 949: 
 
 I charge you, gentlemen of the 
 jury, that if, after considering all 
 the evidence, you have fixed con- 
 viction of the truth of the charge, 
 you are satisfied beyond a reason- 
 able doubt, and it is your duty to 
 convict the defendant. 
 
 Citing Prater v. State, supra; 
 Thomas v. State, 106 Ala. 19, 17 So.
 
 1700 
 
 FORMS OF INSTRUCTIONS. 
 
 [§2648. 
 
 (b) The court charges the juiy that a doubt, to acquit the defend- 
 ant, must be actual and substantial, not mere possibility or specula- 
 tion. It is not a mere possibility or speculation. It is not a mere 
 possibility or possible doubt because everything relating to human 
 affairs and depending upon moral evidence is open to some possible 
 or imaginary doubt.**' 
 
 460; Rhea v. State, 100 Ala. 119, 14 
 So. 853; Heath v. State, 99 Ala. 179, 
 13 So. 689. 
 
 In Jackson v. State, 136 Ala. 22, 
 34 So. 188 (190), the instruction as 
 requested was given: 
 
 I charge you, gentlemen of the 
 jury, that you must find the de- 
 fendant not guilty, unless the evi- 
 dence against him is such as to ex- 
 clude to a moral certainty every 
 reasonable hypothesis save that of 
 Lis guilt. After giving this charge, 
 the court of its own motion in- 
 structed the jury as follows: "Gen- 
 tlemen, that means that the de- 
 fendant should not be convicted 
 unless you are convinced of de- 
 fendant's guilt beyond a reason- 
 able doubt." 
 
 Held, "There was no error in the 
 court's explaining the written 
 charges given at the request of 
 the defendant as to the meaning 
 of 'reasonable doubt.' This was 
 not a violation of the statute, 
 which requires that charges moved 
 for in writing by either party must 
 be given or refused in the terms 
 in which they are written. Section 
 3328, Code 1896; Williams v. State, 
 98 Ala. 22, 12 So. 808; Fuller v. 
 State, 117 Ala. 200, 23 So. 73; Lowe 
 V. State, 88 Ala. 8, 7 So. 97; and 
 authorities cited in note to above 
 section of the Code." 
 
 In Rogers v. Stnte, 117 Ala. 192, 
 23 So. 82, the following was ap- 
 proved: 
 
 The court charges the jury, if 
 the evidence is in such a state of 
 confusion and uncertainty as that 
 the jury are not convinced of de- 
 fendant's guilt beyond all rea- 
 sonable doubt, the jury must ac- 
 quit the defendant. 
 
 In Walker v. State, 117 Ala. 42, 
 23 So. 149 (151), held error to re- 
 fuse the following: 
 
 Before the jury are authorized 
 to convict the defendant in this 
 case, they must believe from the 
 evidence to a moral certainty that 
 he is guilty of the things charged 
 in the indictment, and, unless the 
 Jury are so satisfied from the evi- 
 
 dence, they should acquit the de- 
 fendant. 
 
 40 — Jimmerson v. State, 133 Ala. 
 18. 32 So. 141 (142). 
 
 In White v. State, 103 Ala. 72, 
 16 So. 63 (65), an instruction ap- 
 proved was: 
 
 The court charges the jury that, 
 if you are reasonably doubtful as 
 to the proof in this case of any 
 material allegation of the indict- 
 ment you must acquit the defend- 
 ant. 
 
 In Spraggins v. State, 139 Ala. 
 93, 35 So. 1000 (1002), homicide, it 
 was held error not to give the fol- 
 lowing: 
 
 The court charges the jury a 
 probability that some other person 
 may have done the shooting is 
 sufRcient to create a reasonable 
 doubt of the guilt of the defend- 
 ant and therefore for his acquittal. 
 
 Orr V. State, 117 Ala. 69, 23 So. 
 696 (697), approved the following: 
 
 If, upon the whole evidence, the 
 guilt of the defendant is not estab- 
 lished beyond a reasonable doubt, 
 the jury must acquit. 
 
 Littleton v. State, 128 Ala. 31, 29 
 So. 390 (391), approves the follow- 
 ing: 
 
 The state is not required to 
 prove defendant's guilt beyond all 
 doubt, but only to prove guilt be- 
 yond a reasonable doubt. 
 
 Turner v. State, 124 Ala. 59, 27 
 So. 272 (275), approves the follow- 
 ing: 
 
 If there is generated in the minds 
 of the jury by the evidence in this 
 case, or any part of the same, 
 after a consideration of the whole 
 of such evidence, a well-founrled 
 doubt of the defendant's guilt, then 
 the jury must acquit him. 
 
 Citing Forney v. State, 98 Ala. 
 19, 13 So. 540; Hurd v. State, 94 
 Ala. 100, 10 So. 528. 
 
 In Bohlman v. State, 135 Ala. 45, 
 33 So. 44, the court gave this in- 
 struction: 
 
 The court further charges the 
 jury that in whatever form the 
 question of reasonable doubt may 
 be couched, and however it may
 
 § 2649.] 
 
 CRIMINAL— PRESUMPTION. 
 
 1701 
 
 § 2649. Reasonable Doubt — Defined — Arkansas. The defendant is 
 entitled to the benefit of every reasonable doubt, and by a "reason- 
 able doubt" is meant that unless you have a firm and abiding con- 
 viction, to a moral certainty, of the truth of the charge, you must 
 acquit the defendant. This benefit of a reasonable doubt is a sub- 
 stantial right of the defendant, and applies to the whole case.^'- 
 
 § 2650. Reasonable Doubt — Defined — California. But by a rea- 
 sonable doubt is not meant every possible or fanciful conjecture that 
 may be suggested. Everything relating to human affairs, and de- 
 pending upon moral evidence, is open to some possible doubt or fan- 
 ciful conjecture. By reasonable doubt is meant that state of the 
 case which, after an entire comparison and consideration of all the 
 evidence, leaves the minds of the jurors in that condition that they 
 cannot say they feel an abiding conviction to a moral certaintj- of 
 the truth of the charge.^^ 
 
 be twisted by words, a reasonable 
 doubt is no more than a reason- 
 able doubt, and that in consider- 
 ing the case you are not to go be- 
 yond the evidence to hunt up 
 doubts, nor must you entertain 
 such doubts as are merely imagin- 
 ary or conjectural. A doubt to 
 justify an acquittal must be rea- 
 sonable, and it must arise from a 
 candid and impartial investigation 
 of all the evidence in the case; and 
 if, after considering all the evi- 
 dence, you can say that you have 
 a fixed conviction of the truth of 
 this charge, you are satisfied be- 
 yond a reasonable doubt. 
 
 Willis V. State, 134 Ala. 429, 33 
 So. 226 (235), holds that the trial 
 court erred in refusing the follow- 
 ing where the charge was em- 
 bezzlement: 
 
 The court charges the jury that 
 if the evidence is not so convincing 
 as to lead the minds of the jury to 
 the conclusion that he is guilty, 
 thev must find him not guilty. 
 
 Citing Walker v. State, 117 Ala. 
 42, 23 So. 149 (151). 
 
 41— Mitchell v. State, 73 Ark. 291, 
 83 S. W. 1050 (1051). See also 
 Thomas v. State, 74 Ark. 431, 86 S. 
 W. 404 (406), homicide charge. 
 
 In Tanks v. State, 41 Ark. 459, 
 75 S. W. S51 (852), the court said 
 the following instruction was 
 proper, and should have been given 
 as asked: 
 
 You are instructed that the bur- 
 den is on the state to prm-e that 
 the defendant is guilty as charged 
 in the indictment, and, if the evi- 
 dence fails to satisfy your minds 
 beyond a reasonable doubt of the 
 
 guilt of the defendant, then it is 
 your duty to give him the benefit 
 of such doubt and acquit. If any 
 reasonable view of the evidence is 
 or can be adopted which admits of 
 a reasonable doubt of the guilt of 
 the defendant, then it is your duty 
 to adopt such view and acquit. 
 
 42— People v. Davis, 135 Cal. 162. 
 67 Pac. 59 (60). 
 
 In People v. Waysman, 1 Cal. 
 App. 246, 81 Pac. 1087 (1088), the fol- 
 lowing was approved: 
 
 If you entertain a reasonable 
 doubt upon any one single inaterial 
 fact, which is inconsistent with 
 the defendant's guilt and arises 
 from the evidence in this case, it 
 is your duty to give the benefit of 
 such doubt to the defendant and 
 acquit him. 
 
 The court said: "The criticism 
 of this instruction is that it dealt 
 only with fa.cts which are incon- 
 sistent with guilt, but does not in- 
 clude facts which are consistent 
 with guilt, and is therefore er- 
 roneous and misleading. As the 
 court had fully instructed the jury 
 elsewhere it is quite apparent that 
 the jury could not have been mis- 
 led by the above instruction." 
 
 In People v. Olsen, 1 Cal. App. 
 17, 81 Pac. 676 (679), the following 
 was approved: 
 
 The jury are instructed that 
 each and every fact and circum- 
 stance relied upon by the prosecu- 
 tion to establish the guilt of the 
 defendant, must be proved by the 
 evidence beyond a reasonable 
 doubt, and if the jury are not en- 
 tirely satisfied, beyond all reason- 
 able doubt, that such fact and cir-
 
 1702 FORMS OF INSTRUCTIONS. [§ 2651. 
 
 §2651. Reasonable Doubt — Defined — Delaware. ''Proof beyond 
 a reasonable doubt" does not mean that the guilt of the accused, or 
 any other fact, shall be established with the absolute certainty of a 
 mathematical demonstration. Matters of fact ai'e required to be 
 proved merely to a moral certainty. To require more in dealing 
 with human conduct and the ordinary affairs of life would be im- 
 practicable and therefore unreasonable. It is sufficient that any 
 disputed fact relating to these shall be established by that amount 
 of competent or appropriate evidence which ordinarily satisfies an 
 unprejudiced mind beyond a reasonable doubt. The circumstances 
 which will amount to this degree of proof can never be previously 
 defined. The only legal test of which they are susceptible is their 
 sufficiency to satisfy the mind and conscience of a man of common 
 sense and ordinary discretion, and so convince him that he would 
 act upon that conviction in matters of the highest concern and im- 
 portance to his own interest. ''Reasonable doubt," in the legal 
 sense, therefore, does not mean a vague, speculative, or whimsical 
 doubt or uncertainty, nor a merely possible doubt of the truth of the 
 fact to be proved.*^ 
 
 § 2652. Reasonable Doubt — Defined — Florida. A reasonable doubt 
 is a doubt for which you can give a reason; in other words, if the 
 evidence of defendant's, guilt satisfies you to such an extent as to 
 leave you without a doubt that he may be innocent, for which you 
 can give an intelligent reason, then it would be your duty to convict. 
 Such a doubt may arise either from affirmative evidence tending to 
 show the defendant's innocence, or from the lack of evidence suffi- 
 cient to establish his guilt.** » 
 
 cumstance has been proven, it is lamp at anybody, your verdict 
 
 your duty to find a verdict of not should be not g-uilty. 
 
 guilty. 43— State v. Brinte, — Del. — , 5S 
 
 People v. Fitzgerald, 138 Cal. 39, Atl. 258 (264). 
 70 Pac. 1014 (1017), approves this: 44 — Judgment was affirmed in a 
 
 The court instructs the jury that, case in which this instraction was 
 
 under the law, no jury should con- given in Wallace v. State, 41 Fla. 
 
 vict a citizen of a crime upon mere 547, 26 So. 713 (723). The court said 
 
 suspicion, however strong, or it had not been able to find that 
 
 simply because there is a prepon- "the exact language here used has 
 
 derance of all the evidence in the ever been passed upon by an ap- 
 
 case against him, or simply be- pellate court. An instruction to the 
 
 cause there is a strong reason to effect that a 'reasonable doubt' is 
 
 suspect that he is guilty; but be- a doubt for having which the 
 
 fore the jury can lawfully convict, jury can give a reason based upon 
 
 they must be convinced of the de- the testimony, was disapproved 
 
 fendant's guilt beyond a reason- in Cowan v. State, 22 Neb. 519, 35 
 
 able doubt. N. W. 405, and Carr v. State, 23 
 
 People v. Manning, 146 Cal. 100, Neb. 749, 37 N. W. 630. because, as 
 
 79 Pac. 856 (857), charge homicide, the court said, it failed to corre- 
 
 approves this: spond with the definition given by 
 
 If there is a reasonable doubt Chief Justice Shnw in Com. v. 
 
 whether the defendant threw the Webster, 5 Cush. 295. though the 
 
 lamp, in this case, your verdict court did not undertake to state 
 
 should be not guilty. If you are the difference in the substantial 
 
 in reasonable doubt whether the meaning- of the two definitions. In 
 
 defendant intended to throw the Morgan v. State, 48 Ohio St. 371, 27
 
 § 2653.] 
 
 CRIMINAL— PRESUMPTION. 
 
 1703 
 
 § 2653. Reasonable Doubt — Defined — Georgia, (a) A reasonable 
 doubt must arise from a candid and impartial consideration of the 
 evidence in the case, and then it must be such a doubt as would cause a 
 reasonably prudent and considerate man to hesitate and pause before 
 
 N. E. 710, an instruction that by 
 'reasonable doubt is not meant a 
 captious or whimsical doubt, but a 
 doubt that you, as a juror, can 
 give a reason for,' was held to be 
 inaccurate. The court asked: 
 'What kind of reason is meant? 
 Would a poor reason answer, or 
 must the reason be a strong- one? 
 Who is to judge? To whom is the 
 reason to be given? To the juror 
 himself? The charge does not say 
 so, and jurors are not required to 
 'assign to others reasons in support 
 of their verdict.' Judge Minshall, 
 however, dissented from these 
 criticisms upon the instruction in- 
 sisting that it was free from error. 
 In Siberry v. State, 133 Ind. 677, 33 
 N. E. 681, an instruction that 'a 
 reasonable doubt is such a doubt 
 as the jury are able to give a rea- 
 son for,' was condemned, upon the 
 ground that it puts upon a defend- 
 ant the burden of furnishing to 
 every juror a reason why he is not 
 satisfied of his guilt with the cer- 
 tainty which the law requires be- 
 fore there can be a conviction, and 
 that we sometimes have doubts in 
 relation to things for which we 
 can give no reason, and of which 
 we have imperfect knowledge. The 
 accuracy of instructions of this 
 nature was doubted in Stnte v. 
 Sauer, 38 Minn. 438, 38 N. W. 355, 
 and People v. Stubenvoll, 62 Mich. 
 329, 28 N. W. 833. See, also, 3 Rice 
 Ev., p. 437, §270. On the other 
 hand, instructions to the effect 
 that a reasonable doubt is 'a doubt 
 for which a reason could be given' 
 or one 'for which some good rea- 
 son arising from the evidence may 
 be given,' or a 'serious sensible 
 doubt, such as you could give a 
 good reason for,' or one 'for which 
 some fair, just reason can be 
 given,' have been approved in 
 Hodge V. State, 97 Ala. 37, 12 So. 
 164, 38 Am. St. Rep. 145; Ellis v. 
 State, 120 Ala. 333, 25 So. 1; People 
 V. Guidici, 100 N. Y. 503, 3 N. E. 
 493; State v. Jefferson, 43 La. Ann. 
 995, 10 So. 199; U. S. v. Johnson, 26 
 Fed. 682; Same v. Jones, 31 Fed. 
 718; State v. Rounds, 76 Me. 123. 
 The authorities pro and con are 
 very fully considered in State v. 
 Morey, 25 Ore. 241, 35 Pac. 655 and 
 
 36 Pac. 573, and the court declined 
 to reverse a conviction because the 
 trial judge in his definition of 'rea- 
 sonable doubt,' stated that 'it was 
 such a doubt as a juror can give 
 a reason for.' It was admitted 
 that this language was subject to 
 the criticism that it did not de- 
 fine, but needed defining, but the 
 court held that, in connection with 
 other instructions given upon the 
 same subject the jury were not 
 mislead; and that case is approved 
 in State v. Serenson, 7 S. D. 277, 64 
 N. W. 130; 2 Thomp. Trials § 2476. 
 In People v. Barker, 153 N. Y. Ill, 
 47 N. E. 31, it is said that 'a rea- 
 sonable doubt' must be founded in 
 reason, and must survive the test 
 of reasoning or the mental process 
 of a reasonable examination. In 
 this state we have held that the 
 doubt authorizing an acquittal is 
 a reasonable, sensible one, not an 
 unreasonable, capricious, whim- 
 sical, speculative, imaginary or 
 forced one, or a mere possible one, 
 or one which is suggested or en- 
 gendered by something outside of 
 the evidence. Lovett v. State, 30 
 Fla. 142, 11 So. 550, 17 L. R. A. 705; 
 Woodruff v. State, 31 Fla. 320, 12 
 So. 653. We are of opinion that 
 the instruction complained of does 
 no more than to state, in a differ- 
 ent form, the same thing as that 
 defined in other language in the 
 Lovett and Woodruff cases. It 
 tells the jury that the burden is 
 upon the state to establish the de- 
 fendant's guilt beyond a reason- 
 able doubt, — that is, beyond a 
 doubt for which they can give an 
 intelligent reason; that this doubt 
 may arise either from affirmative 
 evidence tending to show inno- 
 cence, or from lack of evidence suf- 
 ficient to establish guilt; but that 
 if the evidence of guilt satisfies 
 them to such an extent as to leave 
 them without a doubt that de- 
 fendant may be innocent for which 
 they can give an intelligent rea- 
 son, they should convict. This in- 
 struction puts no burden upon the 
 defendant to furnish the jury with 
 a reason, but it requires the state 
 to satisfy the jury of defendant's 
 guilt to such an extent as to leave 
 their minds without a doubt that
 
 1704 
 
 FORMS OP INSTRUCTIONS. 
 
 [§2653. 
 
 acting in the graver and more important affairs in life. After a 
 careful and impartial consideration of the entire case, if you can 
 see and feel that you have an abiding conviction of the guilt of the 
 defendant, and are fully satisfied of the truth of the charge, then 
 you are satisfied beyond a reasonable doubt.*^ 
 
 defendant may be innocent, for 
 which they can give an intelligent 
 reason. Of course the jury are not 
 required to state reasons for their 
 verdict, but they are nevertheless 
 required by the law and by their 
 duties as jurors, to act in the jury 
 box as reasonable beings, and to 
 exercise their reasoning facilities 
 in passing upon the life and liberty 
 of accused persons. If they enter- 
 tain a doubt, they must, as reason- 
 able men, know upon what that 
 doubt is based, and they are re- 
 quired to examine into the nature 
 and origin of the doubt far enough 
 to ascertain that it is a reasonable 
 one. And if it be found that no 
 intelligent reason can be given for 
 entertaining a doubt, how can the 
 conscience of the jury be satisfied 
 with a verdict for acquittal, rest- 
 ing as it does, under a solemn 
 duty to convict, where the evi- 
 dence convinces them of guilt to 
 that extent as to leave no reason- 
 able doubt upon their minds? To 
 authorize an acquittal because of 
 some vague undefined, unintel- 
 ligible, or inexplicable misgiving 
 is to eliminate the word 'reason- 
 able' from the definition." 
 
 In Bryant v. State, 34 Fla. 291, 
 16 So. 177 (178), one appi-oved in- 
 struction was: 
 
 Before you find the defendant 
 guilty you (must) believe that he 
 is guilty beyond a reasonable 
 doubt. 
 
 See, also, Kirby v. State, 44 Fla. 
 81, 32 So. 837, homicide. 
 
 In Brown v. State, 46 Fla. 159, 
 35 So. 82 (84), homicide case, this 
 charge was approved: 
 
 The defendant is presumed to be 
 innocent until she is proved to be 
 guilty beyond a reasonable doubt. 
 She is entitled to every reasonable 
 doubt arising from the evidence, 
 and a reasonable doubt is one con- 
 formable to reason — a doubt which 
 a reasonable man would entertain. 
 It does not mean a mere possible 
 doubt, because everything relating 
 to human affairs and depending 
 upon moral evidence is open to 
 some possible or imaginary doubt. 
 It is that state of the case which, 
 
 after the entire comparison and 
 consideration of all the evidence, 
 leaves the mind of jurors in that 
 condition that they cannot say 
 they feel an abiding conviction to 
 a moral certainty of the truths 
 of the charge. 
 
 The court further instructs you 
 that if, after a consideration of all 
 the evidence in this case, you can- 
 not say that every material alle- 
 gation of the indictment has been 
 proved beyond a reasonable doubt, 
 it will be your duty to acquit the 
 defendant. 
 
 In Adams v. State, 34 Fla. 185, 
 15 So. 905 (909), the following was 
 approved: 
 
 But if, after a careful consider- 
 ation of all the evidence, you feel 
 an abiding conviction in your 
 minds to a moral certainty that 
 the accused is guilty as charged, 
 then, in law, you should have no 
 reasonable doubt, and you should 
 find a verdict of guilty. 
 
 45— Hayne v. State, 99 Ga. 212, 25 
 S. E. 307 (309). 
 
 Bone v. State, 102 Ga. 387, 30 
 S. E. 845 (846), larceny case, ap- 
 proved the following: 
 
 I have charged you that what 
 you believe in this case against the 
 defendants you must believe be- 
 yond a reasonable doubt. That 
 means what it says. It must be a 
 reasonable doubt as opposed to 
 one that is unreasonable. It is 
 such a doubt as you can give a 
 reason for and based upon reason. 
 It is not a mere guess or a vague 
 conjecture that possibly the de- 
 fendants may not be guilty, but it 
 is such a doubt as leaves your 
 mind in an uncertain condition 
 where you are unable to say with 
 reasonable and moral certainty 
 that the defendants are guilty. If 
 your minds should be in that con- 
 dition, — wavering, uncertain, where 
 you are not satisfied to a moral 
 certainty that the defendants are 
 guilty, — then you have the rea- 
 sonable doubt that the law con- 
 templates and you should find 
 them not guilty. But if, on the 
 other hand, you are satisfied of 
 their guilt to a reasonable and
 
 § 2654.] CRIMINAL— PRESUMPTION. 1705 
 
 (b) A reasonable doubt is not anj^ doubt which may visit the mind 
 of a juror during the investigation of a case, and in making up his 
 verdict. A mere passing hesitation of the mind, if it is not of such 
 gravity as to amount to a reasonable doubt, will not justify a juror 
 in finding the defendant not guilty. If the testimony satisfies him of 
 the gnilt of the defendant beyond a reasonable doubt, he should find 
 the defendant guilty. A reasonable doubt is one that is based upon 
 some ground in the testimony or the want of testimony in the case. 
 When a juror has that sort of doubt, he ought to acquit. But if he 
 has not a doubt of that gravity, he ought to convict, if the testimony 
 satisfies him of his guilt beyond a reasonable doubt. *^ 
 
 § 2654. Reasonable Doubt— Defined— Illinois. The court instructs 
 the jury, that in considering this case you should not go beyond the 
 evidence to hunt for doubts, nor should you entertain such doubts 
 as are merely chimerical or based upon groundless conjecture. A 
 doubt, to justify an acquittal, must be reasonable, and arise from 
 a candid and impartial consideration of all the evidence in the case; 
 and then it must be such a doubt as would cause a reasonable, pru- 
 dent and considerate man to pause before acting in the graver and 
 more important affairs of life. If, after a careful and impartial con- 
 sideration of all the evidence in the case, you can say and feel that 
 you have an abiding conviction of the guilt of the defendant, and 
 are fully satisfied of the truth of the charge, then you are satisfied 
 beyond a reasonable doubt. ^^ 
 
 moral certainty then it w'ould be In May v. People, 60 111. 119, the 
 
 your duty to find them guilty. following was approved: 
 
 Jackson v. State, 118 Ga. 780, 45 The court histructs the jury, 
 
 S. E. 604, approved the following: that a reasonable doubt, within 
 
 The state is not required to dem- the meaning of the law, is such a 
 
 onstrate to a mathematical cer- doubt as would cause a reasonable, 
 
 tainty his guilt, but it does have prudent and considerate man, in 
 
 to show to a moral and reasonable the graver and more important af- 
 
 certainty his guilt. If the state has fairs of life, to pause and hesitate 
 
 succeeded in doing this, then this before acting upon the truth of 
 
 presumption in his favor is re- the matter charged or alleged, 
 
 moved, and it is your duty to con- In Gorgo v. People, 100 111. App. 
 
 Vict. If the state hns failed to do 130 (131), assault, the following was 
 
 this then it is your duty to acquit approved: 
 
 the defendant. A reasonable doubt is that state 
 
 The court said: Cone v. State, of mind which, after a full con- 
 
 102 Ga. 387, 30 S. E. 845, that there sideration and comparison of all 
 
 was no error in giving such a the evidence both for the state 
 
 charge after having correctly and the defense, leaves the minds 
 
 charged the law of reasonable of the jury in that condition that 
 
 doubt. See also Davis v. State, 114 they cannot say that they feel an 
 
 Ga. 104, 39 S. E. 906 (907). abiding faith amounting to a 
 
 46— O'Dell V. State, 120 Ga. 152, moral certainty from the evidence 
 
 47 S. E. 577 (578). in the case that the defendant. 
 
 47— Miller v. The People. 39 111. , is guilty of the charge laid in 
 
 457; People v. Finley, 38 Mich, the indictment. If you have such 
 
 482; Spies v. People, 122 111. 1, 12 a doubt, if your conviction of the 
 
 N. E. 865, 17 N. E. 898, 3 Am. St. defend.Tnt's guilt, as alleged in the 
 
 Rep. 320 n, 5 Am. Cr. Rep. 637, 6 indictment, does not amount to a 
 
 Am. Cr. Rep. 570; State v. Pierce, moral certainty from the evidence 
 
 65 la. 85, 21 N. W. 195. in this case, then the court in-
 
 1706 
 
 FORMS OF INSTRUCTIONS. 
 
 [§ 2655. 
 
 § 2655. Reasonable Doubt — Defined — Indiana. The defendant in 
 a criminal case is not required to satisfy the jury of the existence 
 of any fact, which, if true, is a complete defense. It is sufficient if 
 he creates in the minds of the jury a reasonable doubt of the ex- 
 istence of such fact.** 
 
 § 2656. Reasonable Doubt — Defined — Iowa. A reasonable doubt 
 is such a doubt as fairly and naturally arises in your minds, after 
 fully and carefully weighing and considering all the evidence intro- 
 duced upon the trial of this cause, when viewed in the light of all 
 the facts and circumstances surrounding the same.^^ 
 
 structs you that you must acquit 
 the defendant, . 
 
 Schiutz V. People, 178 111. 320 
 (328), 52 N. E. 903, approves the fol- 
 lowing-: 
 
 The jury is instructed that it is 
 incumbent upon the prosecution to 
 prove every material allegation of 
 the indictment as therein charged. 
 Nothing is to be presumed or 
 taken by implication against the 
 defendants. The law presumes 
 them innocent of the crime with 
 which they are charged until they 
 are proven guilty by competent 
 evidence beyond a reasonable 
 doubt; and if the evidence in this 
 case leaves upon the inind of the 
 jury any reasonable doubt of the 
 defendants' guilt, the law makes 
 it your duty to acquit them. 
 
 Painter v. People, 147 111. 444 
 (469), 35 N. E. 64, homicide case, 
 approves the following: 
 
 The jury are instructed that if 
 there is any reasonable doubt as 
 to one of the facts essential to es- 
 tablish guilt, it is the duty of the 
 jury to acquit. 
 
 Bressler v. The People, 117 111. 
 424, 8 N. E. 62, is authority for the 
 following: 
 
 The court instructs the jury, 
 that before a conviction can be 
 rightfully claimed by the people, 
 in this case, the truth of every ma- 
 terial averment contained in the 
 indictment must be proved to the 
 satisfaction of the jury, beyond 
 any reasonable doubt. 
 
 48— Hinshaw v. State, 147 Ind. 
 334, 47 N. E. 157 (172), the court 
 said: 
 
 "The Instruction is correct as an 
 abstract proposition of law. It is 
 a correct statement of the law as 
 applicable to an affirmative de- 
 fense in a criminal case, and not 
 to the law arising upon a defense 
 negative in its character. An af- 
 firmative defense is such as where 
 
 the defendant attempts to estab- 
 lish his insanity, when he did the 
 act with which he is charged, or 
 that he was acting in his necessary 
 self-defense when he did it, and 
 the like. In such cases he is not 
 required to satisfy the jury of the 
 existence of either of those facts, 
 but it is sufficient if the evidence 
 tending to prove such fact create 
 in the minds of the jury a reason- 
 able doubt of the existence of any 
 such fact. Thut is, if the defend- 
 ant, in seeking to prove his insan- 
 ity as a defense at the time he did 
 the act charged, fails to satisfy 
 the jury of the existence of that 
 fact, yet, if, by such evidence, he 
 creates a reasonable doubt in the 
 mind of the jury of his sanity at 
 the time he did the act, it is suf- 
 ficient to make out his defense. 
 Trogdon v. State, 133 Ind. 1, 32 
 N. E. 725." 
 
 In Walker v. State, 136 Ind. 663, 
 36 N. E. 356 (358), the following was 
 given: 
 
 To entitle the state to a convic- 
 tion, it must prove beyond a reas- 
 onable doubt the material allega- 
 tions of the indictment. If the 
 state has done this, you should 
 convict; if not, you should acquit. 
 
 Held that this was not erron- 
 eous in taking away from the jury 
 the right to determine the suffi- 
 ciency of the indictment. Citing 
 Anderson v. State, 104 Ind. 467, 
 4 N. E. 63, 5 N. E. 711, 5 Am. Cr. 
 Rep. 601. 
 
 49— State v. Case, 96 la. 264, 65 
 N. W. 149. 
 
 In State v. Van Tassel. 103 la. 
 6, 72 N. W. 497 (501), the trial judge 
 charged: 
 
 If, after a careful comparison of 
 the evidence and a full considera- 
 tion of the whole case, your minds 
 are brought to an abiding convic- 
 tion beyond a reasonable doubt 
 etc.
 
 § 2657.; 
 
 CRIMINAL— PRESUMPTION. 
 
 1707 
 
 S 2657. Reasonable Doubt — Defined — Kansas. A reasonable doubt 
 is such a doubt as the jury are able to give a reason for. By a rea- 
 sonable doubt is not meant a mere possible or imaginary doubt aris- 
 ing from caprice or groundless conjectui-e; it is that state of the 
 case which, after a comparison and consideration of all the evidence, 
 leaves the minds of the jurors in that condition that they cannot say 
 they feel an abiding conviction to a moral certainty of the guilt of 
 the defendant. ^'^ 
 
 § 2658. Reasonable Doubt — Kentucky. If, from all the evidence 
 in the case, the juiy have a reasonable doubt of the defendant having 
 been proven guilty, they ought to find him not guilt3^5l 
 
 § 2659. Reasonable Doubt — Defined— Louisiana. This doubt must 
 be a reasonable one; that is, one founded upon a real, tangible, sub- 
 stantial basis, and not upon a mere caprice, fancy or conjecture. It 
 must be such a doubt as would induce action without hesitation in 
 an important matter by reasonable men in the exercise of an ordi- 
 
 Held that a criticism "that the 
 instruction is faulty because it 
 fails to use the words 'to a moral 
 certainty' is captious. When the 
 mind is brought to an abiding- con- 
 viction beyond a reasonable doubt 
 that a thing exists, it is a 'moral 
 certainty.' Com. v. Costley, 118 
 Mass. 23." 
 
 State V. Judiesch, 96 la. 249. 65 
 N. W. 157, seduction case, approves 
 the following: 
 
 The court instructs the jury that 
 to warrant a conviction, the de- 
 fendant must be proved to be 
 guilty so clearly and conclusively 
 that there is no reasonable theory 
 on which he can be innocent, when 
 all the evidence in the case is con- 
 sidered together. 
 
 .50— State v. Patton, 66 Kan. 486, 
 71 Pac. 840. 
 
 "The requirements of a reason for 
 doubt is set over against capricl- 
 ousness, conjecture, the indulgence 
 of speculation upon possibilities, 
 and the invasion of the realm of 
 Imagination. Instructions present- 
 ing such a contrast have been ap- 
 proved in the following cases: 
 Hodge v. The State, 97 Ala. 37, 
 12 So. 164, 38 Am. St. Rep. 145; 
 Vann v. State, 83 Ga. 44, 9 S. E. 
 945; State v. Jefferson, 43 La. Ann. 
 995, 10 So. 199; People v. Guidici, 
 100 N. T. 503, 3 N. E. 493; State 
 v. Harras. 25 Wash. 416, 65 Pac. 
 774; Wallace v. State. 41 Fla. 547, 
 26 So. 713; Butler v. State, 102 Wis. 
 364. 78 N. W. 590; State v. Rounds, 
 76 Me. 123; State v. Serenson, 7 S. 
 D. 277, 64 N. W. 130. And judges 
 
 of the federal courts have fre- 
 quently employed equivalent 
 phrases in charging juries in crim- 
 inal cases. United States v. But- 
 ler, 1 Hughes 457, Fed. Gas. No. 
 14, 700; United States v. Johnson, 
 — C. G. — . 26 Fed. 682; United 
 States V. Jackson, — G. G. — , 29 
 Fed. 504; United States v. Jones, — 
 G. G. — , 31 Fed. 718. Similar in- 
 structions h:ive been criticised, 
 however, in a number of states. 
 State V. Morey, 25 Ore. 241. 35 Pac. 
 655, 36 Pac. 573; State v. Sauer. 38 
 Minn. 438, 38 N. W. 355; People v. 
 Stubenvoll, 62 Mich. 329, 28 N. W. 
 833; Morgan v. State, 48 Ohio St. 
 371, 27 N. E. 710; Klyce v. State, 78 
 Miss. 450, 28 So. 827. And like 
 charges have been declared to be 
 erroneous in the following states: 
 Silberry v. State, 133 Ind. 677, 33 
 N. E. 681; Avery v. State, 124 Ala. 
 20, 27 So. 505; State v. Gohen, 108 la. 
 208, 78 N. W. 857, 75 Am. St. 213; 
 Carr v. State, 23 Neb. 749, 37 N. W. 
 630." 
 
 51— Benge v. Com., 24 Ky. L. 
 1466, 71 S. W. 648 (650). 
 
 Clark V. Com., 23 Kv. L. 1029, 
 63 S. W. 740 (747), homicide case, 
 holds that it was error to refuse 
 this: 
 
 If, upon the entire case, you 
 have a reasonable doubt of defend- 
 ant's being guilty, or as to any 
 fact necessary to establish his 
 guilt, you should acquit him; or, 
 if you have such doubt as to the 
 degree of the offense, you will find 
 him guilty of manslaughter only.
 
 1708 FORMS OP INSTRUCTIONS. [§ 2660. 
 
 nary, yet prudent judgment. It must be such a doubt as would make 
 you feel you had not an abiding conviction as to the prisoner's guilt. 
 If, after a fair and imj^artial consideration to all the facts in the 
 case, you find the evidence unsatisfactory upon any point, indispensa- 
 bly necessary to constitute the prisoner's guilt, this would give rise 
 to such a reasonable doubt as would justify you in rendering a ver- 
 dict of not guilty. You are not permitted to go beyond the evidence 
 to seek for doubts, but must confine yourselves strictly to a dispas- 
 sionate and impartial consideration of the testimony given upon the 
 trial. You should not resort to extraneous facts or circumstances in 
 reaching your verdict.^^ 
 
 § 2660. Reasonable Doubt — Defined — Massachusetts. Then what 
 is a reasonable doubt? It is a term often used, probably pretty well 
 understood, but not easily defined. It is not mere possible doubt; 
 because everything relating to human affairs and depending on moral 
 evidence is open to some possible or imaginary doubt. It is that 
 state of the case which, after the entire comparison and considera- 
 tion of all the evidence, leaves the minds of jurors in that condition 
 that they cannot say they feel an abiding conviction to a moral cer- 
 tainty of the truth of the charge. The burden of the proof is upon 
 the prosecutor. All the presumptions of law, independent of evidence, 
 are in favor of innocence; and every person is presumed to be in- 
 nocent until he is proved guilty. If, upon such proof, there is rea- 
 sonable doubt remaining, the accused is entitled to the benefit of it 
 by an acquittal; for it is not sufficient to establish a probability, 
 though a strong one, arising from the doctrine of chances, that the 
 fact charged is more likely to be true than the contrary, but the 
 
 52— State v. Nicholls, 50 La. 699, In State v. Martin, 47 La. Ann. 
 
 23 So. 980 (985), homicide case. 1540, 18 So. 508 (509), a charge was 
 
 The court said: approved: 
 
 "We have read and considered That tlie jury may be said not 
 the objection to this part of the to entertain a reasonable doubt, 
 charge. The expression is ques- when, after the entire comparison 
 tioned in the argument, that it and consideration of all the evi- 
 'must be such a doubt as would dence, they can say that they feel 
 induce action without hesitation, in an abiding conviction, to a moral 
 an important matter, by reason- certainty, of the truth of the 
 able men, in the exercise of or- charge; that proof beyond reason- 
 dinary but prudent judgment.' able doubt is such proof as pre- 
 The comment is that the reason- eludes every reasonable hypothesis 
 able doubt is not that which in- except that which it tends to sup- 
 duces, but that which deters, ac- port; it is proof to a moral cer- 
 tion. Between the doubt that de- tainty, as distinguished from an 
 ters and that which induces action, absolute certainty; that the two 
 the difference is metaphysical, phrases "proof beyond a reason- 
 Taking this whole charge, we do able doubt" and "proof to a moral 
 not think it could have been mis- certainty" are synonymous and 
 understood by the jury. "We should equivalent. Kach signifies such 
 find it extremely difficult on this proof as satisfies the judgment and 
 g-round to set aside this verdict conscience of the jury as reason- 
 and the difficulty in thus setting able men, and applying their 
 it aside would not be as serious reason to the evidence before them, 
 as giving a satisfactory reason for that the crime charged has been 
 It." committed by the defendant, and
 
 §2661.] CRIMINAL— PRESUMPTION. 1709 
 
 evidence must establish the truth of the fact to a reasonable and 
 moral certainty — a certainty that convinces and directs the under- 
 standing, and satisfies the reason and judgment of those who are 
 bound to act conscientiously upon it. This we take to be proof be- 
 yond a reasonable doubt; because, if the law, which mostly depends 
 upon consideration of a moral nature, should go further than this, and 
 require absolute certainty, it would exclude circumstantial evidence 
 altogether.^2 
 
 § 2661. Reasonable Doubt — Defined — Michigan. Now the court 
 will define to you what is meant by a reasonable doubt. It is a doubt 
 that grows out of the evidence in the case, if it exists at all. It 
 cannot originate anywhere else. It is not an imaginative doubt, not 
 a speculative doubt, not a doubt based upon a fancy. It is a doubt 
 based upon reason ; such a doubt as you can give a reason for. And 
 as you investigate this case along the lines of evidence (and nowhere 
 else) you are to say whether you find that kind of doubt in the proof 
 which causes you to hesitate and halt in your deliberations. The 
 court does not say to you in these instructions that if you hesitate in 
 your deliberations until by discussion you harmonize these differences, 
 that each i^laee where you hesitate is a reasonable doubt ; but if 
 you reach a point beyond which you cannot go conscientiously, and 
 say that this respondent is guilty, then your deliberations come to a 
 halt. It is such an obstruction that you cannot, as conscientious 
 men, get by. The train of facts and circumstances in the ease moves 
 along, and, though there be obstructions here and there on the track, 
 if they can be removed by fair, dispassionate discussion, and you 
 reach the end of the journey, and then become satisfied in your 
 minds that this respondent is guilty, then 3^ou have removed these 
 obstructions, and they are not reasonable doubts, or any one of them. 
 But if, as I say, the train of circumstances stops, and you are una- 
 ble, after fair, calm, unprejudiced discussion, to get by that stopping 
 place, then there is such a reasonable doubt, growing out of the evi- 
 dence in the case, that you cannot get over or get by, and you should 
 
 so satisfies them as to leave no gather." It is claimed that this 
 
 other reasonable conclusion possi- portion of the instruction is arg-u- 
 
 ble. mentative, and for that reason 
 
 53 — Shaw, C. J., in Commonwealth vicious. It is somewliat argu- 
 
 V. Webster, 5 Cush. (59 Mass.) 295 mentative, but only in the way of 
 
 (320), 52 Am. Dec. 711, in which giving a reason for a rule of law. 
 
 case the evidence was circumstan- It is not argumentative upon the 
 
 tial. evidence, nor was it at all preju- 
 
 In Carleton v. State, 43 Neb. 373, dicial to the rights of the accused. 
 
 61 N. W. 699 (714), the Supreme This instruction has been approved 
 
 Court of Nebraska said of this in the following Nebraska cases: 
 
 instruction, that the only reason- Polin v. State, 14 Neb. 540, 16 N. 
 
 able ground of criticism is to that W. 89S; Langford v. State, 32 Neb. 
 
 portion of it which says that if the 782, 49 N. W. 766; Willis v. State, 
 
 law, "which mostly depends upon 43 Neb. 102, 61 N. W. 254; Cowan 
 
 considerations of a moral nature, v. State, 22 Neb. 519, 35 N. W. 
 
 should go further than this, and 405, and Carr v. State, 23 Neb. 
 
 require absolute certainty, it would 749, 37 N. W. 630. See § 2164. 
 defeat criminal prosecutions alto-
 
 1710 
 
 FORMS OF INSTRUCTIONS. 
 
 [§ 2662. 
 
 say then that the respondent should have the benefit of that reason- 
 able doubt, and be acquitted by your verdict.^* 
 
 § 2662. Reasonable Doubt — Defined — Mississippi. Where there is 
 a probability of the innocence of the defendant, there is a reasonable 
 doubt of his guilt, and you should then find him not guilty.^^ 
 
 § 2663. Reasonable Doubt — Defined — Missouri. If, after fully and 
 deliberately "weighing and considering all the evidence before them 
 in this case, the jury entertain any reasonable doubt of the defend- 
 ant's guilt, they must give him the benefit of such doubt, and acquit 
 him. A juror is understood to entertain a reasonable doubt when he 
 has an abiding conviction of mind, founded on the evidence, to a 
 moral certainty, that the defendant is guilty as charged.^^ 
 
 54— People v. Rich, 133 Mich. 14, 
 94 N. W. 375 (377). 
 
 In People v. Stewart, 75 Mich. 
 21, 42 N. W. 662 (665), homicide, it 
 was held error to refuse the fol- 
 lowing requests: 
 
 A reasonable doubt is such a 
 doubt arising- out of the evidence 
 that you cannot say to a moral 
 certainty that the defendant is 
 guilty; and, if there is any other 
 reasonable explanation of the death 
 of the stranger than the guilt of 
 the defendant, you are bound to 
 acquit. The prosecution claim that 
 the evidence in this case is made 
 up of a chain of circumstances of 
 facts or links so connected to- 
 gether that they lead up, with all 
 reasonable certainty, to the defend- 
 ant's guilt; and, gentlemen, I 
 charge you that, in order to con- 
 vict the defendant upon that class 
 of evidence, you must be satis- 
 fied, beyond any reasonable doubt, 
 that each material fact or neces- 
 sary link in the chain has been 
 proven, and, if you have any reas- 
 onable doubt about any one of 
 the necessary facts or links con- 
 stituting the chain of circum- 
 stances, then you should acquit the 
 defendant. To illustrate: The first 
 material fact or link is the death; 
 the second, death by violence at 
 the hand of some person. The first 
 fact, the death, is not disputed; 
 the second is contested; and, if you 
 have any reasonable doubt as to 
 either one of them, then you must 
 acquit. 
 
 People v. Albers, 137 Mich. 
 678. 100 N. W. 908 (912). 
 
 55— Strother v. State, 74 Miss. 
 247, 21 So. 147 (148), 34 L. R.. A. 
 472. 
 
 In Hammond v. State, 74 Miss. 
 214, 21 So. 150, homicide, the charge 
 was: 
 
 The court instructs the jury for 
 the state, that you are not required 
 to know that defendant inflicted 
 wounds on the child by violence, 
 nor is it necessary for you to 
 know that the child died from such 
 wounds. All that is required is 
 for you to take into consideration 
 all the facts and circumstances in 
 evidence, and from thein to con- 
 scientiously believe beyond a rea- 
 sonable doubt, that he made 
 wounds on the child from which 
 he died. 
 
 The court said "that 'conscien- 
 tiously,' is a word of quality and 
 not of quantity, and ought not to 
 be used in charges as to reason- 
 able doubt. But in the charge 
 here it was mere surplusage, for 
 the jury are not only told that 
 they must 'conscientiously' believe, 
 but that they must 'conscientiously 
 believe beyond a reasonable 
 doubt.' " 
 
 See also Wells v. State, — Miss. 
 — 18 So. 117. 
 
 56— State v. Privitt, 175 Mo. 207, 
 75 S. W. 457 (460), homicide case. 
 
 In State v. Pyscher, 179 Mo. 140, 
 77 S. W. 836 (842), forgery, the fol- 
 lowing was approved: 
 
 The court instructs the jury that 
 the law clothes the defendant with 
 the presumption of innocence, 
 which attends and protects him 
 until it is overcome by evidence 
 which proves his guilt beyond a 
 reasonable doubt, which means 
 that the evidence of his guilt, as 
 charged, must be clear, positive 
 and abiding, and fully satisfying 
 the minds and consciences of the 
 jury. It is not sufficient in a crim- 
 inal case to justify a verdict of 
 guilty that there may be strong 
 suspicions or even strong proba- 
 bilities of guilt, but the law re- 
 quires proof by legal and credible
 
 § 2664. 
 
 CRIMINAL— PRESUMPTION. 
 
 1711 
 
 § 2664. Reasonable Doubt — Defined — Nebraska. You are in- 
 structed that by the words "reasonable doubt/' as used in these in- 
 structions, is meant an actual, substantial doubt of guilt arising from 
 the evidence, or want of evidence, in the case.^'' 
 
 evidence, of such nature that, 
 when it is all considered, it pro- 
 duces a clear, undoubting and en- 
 tirely satisfactory conviction of de- 
 fendant's guilt; and the burden of 
 establishing the guilt of the de- 
 fendant, as above referred, is upon 
 the prosecution. 
 
 In State v. Mitligan, 170 Mo. 215, 
 70 S. W. 473, the following was ap- 
 proved: 
 
 The court instructs the jury that, 
 if they have a reasonable doubt of 
 the defendant's guilt, they must 
 acquit him; but such a doubt of 
 an acquittal, must be a substantial 
 doubt, arising from a full and fair 
 consideration of all the facts and 
 circumstances in proof, and not a 
 mere possibility of his innocence. 
 
 In State v. Hendricks, 172 Mo. 
 654, 73 S. W. 194 (197), homicide 
 case, the following was approved: 
 
 The court instructs the jury that 
 in criminal cases, even when the 
 evidence is so strong as to demon- 
 strate the probability of the guilt 
 of the party accused, still, if it 
 fails to establish beyond a reason- 
 able doubt the guilt of the defend- 
 ant in manner and form as 
 charged in the indictment, then it 
 is the duty of the jury to acquit. 
 
 State V. Nueslein, 25 Mo. Ill, and 
 State V. Knock, 142 Mo. 524, 44 S. 
 W. 235, and State v. Maupin, 196 
 Mo. 164, 93 S. W. 379 (383), are 
 authority for the following: 
 
 The court instructs the jury 
 that, before you can convict the 
 defendant, you must believe him 
 guilty beyond a reasonable doubt, 
 but a doubt to authorize an ac- 
 quittal must be a substantial doubt 
 based on the evidence, and not a 
 mere possibility of innocence. 
 
 In State v. McCarver, 194 Mo. 
 717, 92 S. W. 684, this was ap- 
 proved: 
 
 The court instructs the jury that 
 the defendant is presumed to be 
 innocent, and this presumption at- 
 tends and protects him at every 
 stage of the case until it is over- 
 come by testimony which proves 
 his guilt beyond a reasonable 
 doviht; and it is not enough in a 
 criminal case to justify a verdict 
 of guilty that there may be a 
 
 strong suspicion or even strong 
 probabilities of the guilt of the 
 defendant, but the law requires 
 proof so clear and satisfactory as 
 to leave no reasonable doubt of 
 defendant's guilt. 
 
 See, also, State v. Hottman, 196 
 Mo. 110, 94 S. W. 240; State v. 
 Hendricks, 172 Mo. 654, 73 S. W. 
 194 (197). 
 
 State V. Moore, 156 Mo. 204, 56 
 S. W. 883 (884), homicide case, ap- 
 proves the following: 
 
 The court instructs you that the 
 burden of proving the defendant's 
 guilt beyond a reasonable doubt 
 rests upon the state, and if, upon 
 the evidence considered as a v/hole, 
 the jury should entertain a reason- 
 able doubt as to defendant's guilt, 
 you should give him the benefit 
 of such doubt and find him not 
 guilty; but a doubt, to authorize 
 an acquittal on that ground alone, 
 should, as stated, be a reasonable 
 doubt, and one fairly arising from 
 the evidence as a whole, and the 
 possibility that the defendant may 
 be innocent will not warrant you 
 in acquitting him on the ground 
 of reasonable doubt. 
 
 57— Ferguson v. State, 52 Neb. 
 432, 72 N. W. 590, 66 Am. St. Rep. 
 512. "The objection raised by coun- 
 sel for the accused to this in- 
 struction is that 'it is impossible 
 to tell from the instruction whether 
 the doubt or guilt must arise from 
 the evidence on the part of the 
 state or want of evidence on the 
 part of the defendant.' The court's 
 definition of a reasonable doubt 
 will not bear any such interpre- 
 tation. The idea plainly conveyed 
 by this portion of the charge is 
 that, if the jury, on the considera- 
 tion of the evidence introduced by 
 the state and defense, or for any 
 lack of evidence in the case, en- 
 tertain a reasonable doubt of the 
 guilt of the accused, there must 
 be an acquittal. The court's de- 
 finition of a 'reasonable doubt' was, 
 in form, approved by this court 
 in Langford v. State, 32 Neb. 782, 
 49 N. W. 766." See, also. O'Brien 
 v. State, 69 Neb. 691, 96 N. W. 
 649 (650). 
 
 In Whitney v. State, 53 Neb. 287,
 
 1712 
 
 FORMS OF INSTRUCTIONS. 
 
 [§ 2665. 
 
 § 2665. Reasonable Doubt — Defined — New York. A reasonable 
 doubt, gentlemen, is not a mere whim, or surmise; nor is it a mere 
 subterfuge to which resort may be had in order to avoid doing a 
 disagreeable thing; but it is such a doubt as reasonable men may 
 entertain, after a careful and honest review and consideration of the 
 evidence in the case. It is a doubt founded in reason and coming 
 from reason, or, as the learned counsel for the defense has well ex- 
 pressed it, a doubt coming from reason, and which survives reason.^^ 
 
 § 2666. Reasonable Doubt — Defined — Oklahoma. (a) You are 
 further instructed that if you entertain a reasonable doubt of the 
 guilt of the defendant, which arises from the incomplete or unsatis- 
 factory character of the evidence offered on behalf of the territory, 
 or from the evidence offered on the part of the defendant, or if you 
 entertain such reasonable doubt from a consideration of all the evi- 
 dence, and facts and circumstances in evidence, in the case, then it 
 is your duty as jui'ors to give the defendant the benefit of such 
 doubt, and acquit him. 
 
 (b) If, after considering all the evidence, you can say on your 
 oaths as jurors and your conscience as men that you have an abiding 
 
 73 N. W. 6S6 (699), the same in- 
 struction was approved with the 
 following addition thereto: 
 
 That by reasonable doubt is not 
 meant that the accused may pos- 
 sibly be innocent of the crime 
 charged against him, but it means 
 some actual doubt having some 
 reason for its basis. A reasonable 
 doubt that entitled to an acquittal 
 is a doubt reasonably arising froin 
 all the evidence or want of evi- 
 dence in this case. The proof is 
 deemed to be beyond a reasonable 
 doubt when the evidence is suffi- 
 cient to impress the reason and 
 understanding of ordinarily pru- 
 dent men with a conviction on 
 which they would 'act in the most 
 important concerns or affairs of 
 life. 
 
 The court said: "The foregoing 
 states the law correctly. Instruc- 
 tions either in the identical lan- 
 guage or in substance the same 
 have been approved by this court 
 in the following cases: Polin v. 
 State, 14 Neb. 540, 16 N. W. 898; 
 Langford v. State, 32 Neb. 782, 49 
 N. W. 766; and Lawhead v. State, 
 46 Neh. 607, 65 N. W. 770." 
 
 In Martin v. State, 67 Neb. 36, 
 93 N. W. 161 (162), the following 
 was approved: 
 
 Unless the doubt is such that, 
 were the same kind of doubt inter- 
 posed in the graver transactions 
 
 of life, it would cause a reason- 
 able and prudent man to hesitate 
 and pause, it is insufficient to au- 
 thorize a verdict of not guilty. 
 
 In numerous Nebraska cases the 
 charge of Chief Justice Shaw in 
 Commonwealth v. Webster, 5 Cush. 
 (Mass.) 320, 52 Am. Dec. 711, 
 has been approved. Carleton v. 
 State, 43 Neb. 373, 61 N. W. 699 
 (714); Savarg v. State, 62 Neb. 166, 
 87 N. W. 34 (37); Polin v. State, 
 14 Neb. 540, 16 N. W. 898; Willis 
 V. State, 43 Neb. 102, 61 N. W. 
 254; Maxfield v. State, 54 Neb. 44, 
 74 N. W. 401; Morgan v. State, 51 
 Neb. 672, 71 N. W. 788 (795), homi- 
 cide; Lawhead v. State, 46 Neb. 
 607, 65 N. W. 779, larceny. See 
 § 2660, n. 53. 
 
 58— People v. Barker, 153 N. T. 
 Ill, 47 N. E. 31 (32). 
 
 "It must be admitted that this 
 [the last] sentence lacks clearness 
 of expression, but it is quite ob- 
 vious that the idea sought to be 
 conveyed is that a reasonable 
 doubt must be found in reason, and 
 must survive the test of reason- 
 ing, or the mental process of a 
 reasonable examination. Taken in 
 connection with the sentence which 
 preceded it, and already quoted, 
 we are of opinion that the jury 
 were sufficiently instructed upon 
 the question of reasonable doubt."
 
 § 2667.] 
 
 CRIMINAL— PRESUMPTION. 
 
 1713 
 
 conviction of the truth of the charge, amounting to a moral certainty, 
 you are satisfied beyond a reasonable doubt.^^ 
 
 § 2667. Reasonable Doubt — Defined — South Carolina. So, gentle- 
 men, in all cases on the criminal side of the court, the law is still 
 charitable and it says that, if you have a reasonable doubt on any 
 material fact necessary to make the case of the state, you will solve 
 that doubt in favor of the defendant; that is, where the facts are so 
 evenly balanced, or where your reason and your judgment is in such 
 doubt, that you cannot form a satisfactory judgment as to the result, 
 if it is in that state, the law, taking a charitable view, says solve 
 it in favor of the defendant.*'*' 
 
 § 2668. Reasonable Doubt— Defined— South Dakota. You are fur- 
 ther instructed that the reasonable doubt which entitles an accused 
 to an acquittal is a doubt of guilt reasonably arising from all the 
 evidence in the case. The proof is deemed to be beyond reasonable 
 doubt when the evidence is sufficient to impress the judgment of or- 
 dinarily prudent men with a conviction on which they would act with- 
 out hesitation in their own most important concerns or affairs of 
 life. In other words, in a legal sense, a reasonable doubt is a doubt 
 which has some reason for its basis. It does not mean a doubt from 
 mere caprice or groundless conjecture. A reasonable doubt is such 
 a doubt as the jury are able to give a reason for.^^ 
 
 59— Hodge v. Territory, 12 Okl. 
 108, 69 Pac. 1077 (1080). 
 
 60— State v. Hutto. 66 S. C. 449, 
 45 S. E. 13 (15), homicide case. 
 
 In State v. Petsch, 43 S. C. 132, 
 20 S. E. 993 (994), the court 
 charged: 
 
 Reasonable doubt is that state 
 of the case which, after the entire 
 comparison and consideration of 
 all the evidence, leaves the minds 
 of jurors in such a condition that 
 they are unable to say that they 
 feel an abiding conviction, to a 
 moral certainty, as to the guilt of 
 the accused. Now, Mr. Foreman, 
 the law says that this doubt, to 
 which every prisoner is entitled 
 when charged with a crime, must 
 be a reasonable doubt. It must be 
 a doubt arising from the consid- 
 eration of the testimony for which 
 the juror can conscientiously give 
 himself a reason why he cannot 
 sign the verdict of guilty. If, 
 after a fair and impartial consid- 
 eration of all the testimony in the 
 case, you have such a doubt, then 
 the state has failed to establish 
 the guilt of the party, and your 
 verdict should be not guilty. If 
 must be a substantial doubt, aris- 
 ing from the consideration of the 
 testimony, as distinguished from a 
 108 
 
 speculative or Imaginary doubt; 
 and I can charge you safely that it 
 must not be a doubt influenced by 
 your sympathy for the accused, or 
 by your prejudice against him; be- 
 cause the law contemplates that in 
 the trial of this cause you, so far 
 as you can, will divest yourselves 
 of all feeling of human sympathy 
 as certainly as of all prejudice, and 
 that you will be guided in reach- 
 ing your verdict, whatever it may 
 be, by your honest conviction, de- 
 rived from a consideration of the 
 testimony. 
 
 61— State v. Serenson, 7 S. D. 277, 
 64 N. W. 130 (132). 
 
 It seems almost unnecessary 
 to undertake to explain and eluci- 
 date to the average juror, who is 
 presumed to possess ordinary in- 
 telligence, the meaning of the ex- 
 pression 'reasonable doubt,' which 
 appears to have been chosen by 
 the common-law judges, and 
 adopted by text writers, on ac- 
 count of the simplicity of the 
 phrase. While the language em- 
 ployed by the courts to define the 
 expression, and assist jurors in its 
 application, is often beyond their 
 comprehension, if not misleading, 
 we see nothing in the foregoing 
 instructions that could result in
 
 1714 
 
 FORMS OF INSTRUCTIONS. 
 
 [§ 2669. 
 
 §2669. Reasonable Doubt — Defined — Tennessee. ''Reasonable 
 doubt" is such a doubt as will create in the minds a feeling of un- 
 rest or misgiving on the part of the jury, and which will not permit 
 their minds to rest easy upon a verdict of guilty.*^^ 
 
 § 2670. Reasonable Doubt — Texas. Defendant is presumed to be 
 innocent until his guilt is established by legal evidence beyond a 
 reasonable doubt, and, if you have a reasonable doubt of his guilt, 
 you will find him not guilty.^^ 
 
 any prejudice to the defendant, and 
 we would therefore be reluctant to 
 reverse the case upon the assig-n- 
 ment of error relating thereto. In 
 the recent case of State v. Morey, 
 25 Ore. 241, 36 Pac. 573, the trial 
 court defines a reasonable doubt 
 as 'such a doubt as a juror can 
 give a reason for,' and in the 
 opinion, sustaining a conviction, 
 upon rehearing, the court said: 'If 
 every criminal case is to be re- 
 versed for some technical inaccur- 
 acy in the definition of a reason- 
 able doubt, then, indeed, the ad- 
 ministration of justice becomes im- 
 practicable.' Mr. Starkie, in the 
 9th .American edition of liis work 
 on Evidence, at page 865, says: 'A 
 juror ought not to condemn, unless 
 the evidence excludes from his 
 mind all reasonable doubt as to the 
 guilt of the accused, and unless he 
 be so convinced by the evidence 
 that he would venture to act upon 
 the conviction in matters of the 
 highest concern and importance as 
 to his own interest.' The able law 
 writer, Austin Abbott, in his Brief 
 for Criminal Cases, at page 487, 
 discusses 'a reasonable doubt,' and 
 says: 'The gist of the rule is that 
 the law contemplates a doubt for 
 which a good reason, arising on 
 the evidence, can be given,' and 
 cites People v. Guidici, 100 N. Y. 
 503, 3 N. E. 493. Instructions have 
 been frequently sustained on ap- 
 peal which admonish the jury that 
 a_ 'reasonable doubt' is not a cap- 
 tious doubt, a possible doubt, a 
 conjectural doubt, an imaginary 
 doubt, a far-fetched doubt, be- 
 cause everything relating to hu- 
 man affairs and depending on 
 moral evidence is open to conjec- 
 ture and speculation, and because 
 the law does not require absolute 
 certainty. 2 Thomp. Trials, p. 
 1832, and numerous cases there 
 cited." 
 
 62— Wilson v. State, 109 Tenn. 
 167, 70 S. W. 57 (58). 
 
 "While we think that no defini- 
 
 tion of 'reasonable doubt' is so 
 plain and unainbiguous and easily 
 understood as the mere words 
 themselves, we think there is noth- 
 ing in the definition given that 
 would constitute error." 
 
 63— Huggins v. State, 42 Tex. 
 Crim. App. 364, 60 S. W. 52. 
 
 "We have specifically held this 
 charge to be sufficient, and that 
 it is not necessary to give the 
 charge requested by appellant. 
 Day v. State, 21 Tex. App. 213, 17 
 S. W. 262; Lewis v. State, 42 Tex. 
 Cr. App. 278, 59 S. W. 1116." 
 
 In McNamara v. State, — Tex. 
 Cr. App. — , 55 S. W. 823 (824), the 
 following was approved: 
 
 The evidence on the whole must 
 produce in your minds to a reason- 
 able and moral certainty that the 
 accused, and none other, commit- 
 ted the offense. 
 
 The court said: 
 
 "We think this clause of the 
 charge clearly covers the phrases 
 of law insisted upon by appellant." 
 
 In Head v. State, 40 Tex. Cr. App. 
 265, 50 S. W. 352 (353), homicide 
 case, the following was approved: 
 
 If you do not believe beyond a 
 reasonable dpubt, from the evi- 
 dence, that L. is dead; that the 
 defendant unlawfully killed him, — 
 you will find defendant not guilty. 
 
 In Williams v. State, — Tex. Cr. 
 App. — , 55 S. W. 500 (501), the 
 charge approved ended with tho 
 words: 
 
 In case you have a reasonable 
 doubt as to the defendant's guilt, 
 you will acquit him, and say by 
 your verdict, "Not guilty." 
 
 In Giles v. State, 44 Tex. Cr. 
 App. 435, 71 S. W. 961, homicide, 
 held the court should not have re- 
 fused the following: 
 
 If, under the evidence, you have 
 a reasonable doubt as to whether 
 the witness B. killed the said G., 
 you should acquit defendant. 
 
 In Boersh v. State, — Tex. Crim. 
 App. — 62 S. W. 1060, the court 
 charged the jury that the circum^
 
 § 2671.] CRIMINAL— PRESUMPTION. 1715 
 
 § 2671. Reasonable Doubt — Virginia. The court instructs the 
 jury that, to warrant the conviction of the prisoner, every fact nec- 
 essary to establish his guilt must be proved beyond a reasonable 
 doubt, and especially so where the evidence is wholly circumstantial. 
 The accused is entitled to acquittal unless his guilt is proved to 
 the exclusion of every reasonable hj^pothesis of his innocence. And, 
 although the jury believe that the evidence is sufficient to create a 
 strong suspicion of guilt, yet this is insufficient to warrant the con- 
 viction of the accused of any offense.*'* 
 
 § 2672. Reasonable Doubt — Defined — ^West Virginia. The court 
 
 instructs the jury that, after they shall have compared and con- 
 sidered all the evidence in the case, if they have a reasonable doubt 
 as to the guilt of the prisoner, V. S., as charged in the indictment, 
 they cannot convict; that by reasonable doubts is meant such doubts 
 based upon the evidence as they may honestly and reasonably en- 
 tertain as to any material fact essential to prove the crime charged. 
 Il must not be an arbitrary doubt, without evidence to sustain it, 
 but must be serious and substantial in its nature, in order to war- 
 rant an acquittal, and one which men may honestly and conscien- 
 tiouslj' entertain.®^ 
 
 § 2673. Reasonable Doubt — Defined — Wisconsin, (a) The rea- 
 sonable doubt mentioned, beyond which guilt must be affirmatively 
 proved, in order to justify a verdict of guilty, means, as its name 
 implies, a doubt resting in reason, and it must arise from the whole 
 evidence fairly and rationally considered. 
 
 (b) When after a full and impartial consideration of the whole 
 
 stances, taken together, must be 582, 39 S. E. 676 (687), the following 
 
 of a conclusive nature, leading, on was approved: 
 
 the whole, to a satisfactory con- The court instructs the jury that 
 
 elusion, and producing in effect a reasonable doubt, to warrant ac- 
 
 reasonable and moral certainty quittal in criminal cases, is not a 
 
 that accused, or accused acting mere possible doubt, but is such a 
 
 with some other person, committed doubt as, after mature comparison 
 
 the offense charged. and consideration of all the evi- 
 
 Held: "Considering the latter por- dence, leaves the minds of the 
 
 tion of the charge, it is a correct jurors in such a condition that 
 
 application of the law to this case; they cannot say they feel an abid- 
 
 it being shown that accused and ing conviction to a moral certain- 
 
 his co-defendant were acting to- ty of the truth of the charge, or 
 
 gether. Under this state of facts for which reason can be given, 
 
 the charge above copied, as given In State v. Dodds, 54 W. Va. 289, 
 
 by the court, is correct. See Moore 46 S. E. Rep. 228 (230), homicide 
 
 v. State, 39 Tex. Cr. App. 266, 45 case, the following was approved: 
 
 S. W. 809." The court instructs the jury that 
 
 64 — Longley v. Commonwealth, 99 a reasonable doubt, such as is con- 
 
 Va. 807, 37 S. E. 339 (341). templated in law, is not a mere 
 
 See also McCue v. Common- fanciful or imaginary doubt, but is 
 
 wealth, 103 Va. 870, 49 S. E. 623 a fair and substantial doubt, based 
 
 (629). on the evidence or lack of evidence 
 
 65 — State v. Staley, 45 W. Va. in the case, and one for which a 
 
 792, 32 S. E. 198 (199), homicide man who entertains such doubt 
 
 case. should be able to give a good and 
 
 In State v. Sheppard, 49 W. Va. substantial reason arising from the
 
 1716 FORMS OF INSTRUCTIONS. [§ 2674. 
 
 evidence the judgment of the jury is convinced to a moral certainty 
 that the accused are guilty — that there is no reasonable explanation 
 of the facts proved except upon the hypothesis that the accused com- 
 mitted the crime charged, then every reasonable doubt is removed 
 and a verdict of guilty should follow. 
 
 (c) A mere fanciful or speculative doubt, such as a skeptical 
 mind may suggest, does not amount to a reasonable doubt within 
 the meaning of the law. A doubt such as this, one that ignores a 
 reasonable construction of the whole evidence and proceeds upon 
 mere speculation or suspicion, is unreasonable, and would acquit one 
 proven guilty as easily as one not so proven and so does not justify 
 a verdict of not guilty. 
 
 (d) If, after a careful and thoi'ough view of the evidence, there 
 arise in your mind a doubt for which a good reason arising from 
 the evidence can be given, it is your duty to give the defendants 
 the fullest and amplest benefit of this, and acquit them.*^*^ 
 
 § 2674. Reasonable Doubt— Defined— U, S. Courts. I will not 
 undertake to define a reasonable doubt further than to say that a 
 reasonable doubt is not an unreasonable doubt — that is to say, by 
 a reasonable doubt you are not to understand that all doubt is to 
 be excluded; it is impossible in the determination of these questions 
 to be absolutely certain. You are required to decide the question 
 submitted to you upon the strong probabilities of the case, and the 
 probabilities must be so strong as, not to exclude all doubt or possi- 
 bility of error, but as to exclude reasonable doubt. ^'^ 
 
 § 2675. Presumption of Innocence — Reasonable Doubt — Suspicion 
 or Probability of Guilt Not Sufficient to Convict — Insanity or Irre- 
 sponsibility Must Be Proven, (a) The court further instructs the 
 jury that the law presumes the accused to be innocent until he is 
 proved guilty beyond a reasonable doubt, and, if there is upon the 
 minds of the jury any reasonable doubt of the guilt of the accused, 
 the law makes it their duty to acquit him; and that mere suspicion 
 or probability of his guilt, however strong, is not sufficient to con- 
 evidence or a lack of evidence in Defendant is entitled to the ben- 
 the case. efit of -any reasonable doubt exist- 
 
 66 — Emery v. State, 101 "Wis. 627, ing- in the evidence in this case. If, 
 78 N. W. 145 (152). after a full consideration of the 
 
 "It is not necessary to say testimony, you shall have any rea- 
 whether the explanation of the sonable doubt, you will give him 
 rule of reasonable doubt given by the benefit of that doubt by an ac- 
 the learned judge who presided at quittal. 
 
 the tri;il is the best that can be Cupps v. State, 120 "Wis. 504, 97 
 made. It is sufficient to say that N. "W. 210 (218), 102 Am. St. 996, 
 it is free from error, and we may approves the following: 
 properly ndd, it is a clearer expla- If there then remains in your 
 nation than many that may be mind no reasonable doubt of the 
 found referred to in reported cases defendant's guilt you should con- 
 ns mrtdels." vict him; otherwise you should ac- 
 
 Murphv v. Stnte, 108 "Wis. Ill, 83 quit him. 
 N. W. 1112 (1114), approves the fol- 67— Dunbar v. U. S., 156 U. S. 185 
 lowing: (199), 15 S. Ct. 325.
 
 §2676.] CRIMINAI^PRBSUMPTION. 1717 
 
 viet, nor is it sufficient if the greater weight or preponderance of 
 evidence supports the charge in the indictment. But, to warrant his 
 conviction, his guilt must be proved so clearly, and the evidence 
 thereof must be so strong, as to exclude every reasonable hypothesis 
 of his innocence. But in this connection the court further tells the 
 jury that in cases like this, where the prisoner sets up the defense 
 of insanity or irresponsibility produced by voluntary intoxication, 
 he cannot rely simply on having raised a rational doubt in the 
 minds of the jury as to whether he was so drunk at the time he 
 committed the crime as not to be responsible therefor, but the bur- 
 den is upon him to prove this fact to the satisfaction of the jury, as 
 fairly results from all evidence. "^^ 
 
 (b) The court instructed the jury that the law presumes the 
 defendants in this ease to be innocent of murder in the first degree, 
 and clothes him or them with such presumption of innocence through- 
 out the trial ; and you should act on such presumption, and acquit 
 the defendant unless the state, by evidence, satisfies you of his or 
 their guilt beyond a reasonable doubt. ""'^ 
 
 § 2676. Reasonable Doubt — Presumption of Innocence — Circum- 
 stantial Evidence — Links in the Chain of Circumstances, (a) The 
 law requires the jury to be satisfied of the defendant's guilt beyond 
 a reasonable doubt in order to warrant a conviction, but does not 
 require that you should be satisfied beyond a reasonable doubt of 
 each link in the chain of circumstances relied upon to establish the 
 defendant's guilt. It is sufficient if, taking the testimony all to- 
 gether, you are satisfied beyond a reasonable doubt that the defend- 
 ant is guilty as charged in the indictment. 
 
 (b) You are further instructed that the law raises no presumption 
 whatever against the defendant, but that every presumption of law is 
 in favor of his innocence until he is proven guilty beyond all reason- 
 able doubt, and, in order to convict him of the alleged crime, eveiy 
 material fact necessary to constitute such crime must be proven 
 beyond a reasonable doubt; and if the jury entertain any reasonable 
 doubt upon any single essential element necessary to constitute the 
 crime, it is your duty to give the defendant the benefit of such 
 doubt, and acquit him. 
 
 (e) Where the prosecution lies wholly or in part upon circum- 
 stantial evidence for a conviction, each fact necessary to the con- 
 clusion sought to be established must be proven by competent evi- 
 dence beyond a reasonable doubt. All the facts — that is, the neces- 
 sary facts to the conclusion — must be consistent with each other 
 and with the main fact sought to be proved, and the circumstances, 
 taken together, must be of conclusive nature, leading, on the whole, 
 to a satisfactory conclusion, and producing, in effect, a reasonable 
 
 68 — Longley v. Commonwealth, 98 S. W. 2; Connor v. Common- 
 99 Va. 807. 37 S. E. 339 (341). wealth. 26 Ky. Law Rep. 398, 81 
 
 69— State v. Vaughan, 200 Mo. 1, S. W. 259 (260), homicide.
 
 1718 
 
 FORMS OF INSTRUCTIONS. 
 
 2677. 
 
 and moral certainty that the accused committed the offense in tlie 
 manner charged in the indietmentJ*' 
 
 8 2677. Reasonable Doubt — Rule Where Evidence Is Circumstan- 
 tial, (a) The jury are instructed as a matter of law that when a 
 conviction for a criminal offense is sought upon circumstantial evi- 
 dence alone, the prosecution must not only show, by a preponderance 
 of the evidence, that the alleged facts and circumstances are true, 
 but they must show by such facts and circumstances as are abso- 
 lutely incompatible, upon any reasonable hypothesis, with the inno- 
 cence of the defendant, and incapable of explanation, upon any rea- 
 sonable hypothesis, other than that of the guilt of the defendant.'^^ 
 
 (b) The court charges the jury that a person charged with a 
 felony should not be convicted, unless the evidence excludes to a 
 moral certainty every reasonable hypothesis but that of her guilt; 
 no matter how strong the circumstances are, they do not come Up 
 to the full measure of proof, which the law requires, if they can 
 be reasonably reconciled with the theory, that the defendant is 
 innocent.''^ 
 
 (c) You are instructed that, in order to warrant a conviction on 
 
 70— Hodge v. Territory, 12 Okla. 
 108, 69 Pac. 1077 (1079). 
 
 "Case of State v. Furney, 41 Kan. 
 115, 21 Pac. 213, 13 Am. St. Rep. 
 262. In this case the Supreme Court 
 of Kansas reversed the cause upon 
 two instructions identical to this 
 instruction. The court in the sylla- 
 bus, which is the law of the case, 
 says: 'Where circumstantial evi- 
 dence constituting- a single chain 
 is relied upon by the state for a 
 conviction, each essential fact in 
 the chain of circumstances must 
 be found to be true by the jury be- 
 yond a reasonable doubt to war- 
 rant a conviction.' In State v. 
 Hayden, 45 Iowa 12, the court, in 
 its syllabus, uses the following lan- 
 guage: 'Where the evidence is cir- 
 cumstantial, the jury need not be 
 satisfied beyond a reasonable 
 doubt of every link in the chain of 
 circumstances necessary to estab- 
 lish the defendant's guilt; it is a 
 reasonable doubt of guilt, arising 
 from a consideration of all the evi- 
 dence in the case, which entitled 
 the defendant to an acquittal.' In 
 Bressler v. People, 117 111. 422, 8 
 N. E. 67, the supreme court of Illi- 
 nois had this identical question be- 
 fore it for consideration. The in- 
 struction of the court given in that 
 ca.se was as follows: 'The jury are 
 instructed that the rule requiring 
 the jury to be satisfied of a de- 
 ff-ndnnt's guilt beyond a reason- 
 able doubt of each link in the chain 
 
 of circumstances relied upon to es- 
 tablish the defendant's guilt; it is 
 sufficient if, taking the testimony 
 all together, the jury are satisfied 
 beyond a reasonable doubt that the 
 defendant is guilty.' It is insisted 
 that this is erroneous, because it is 
 essential that the circumstances 
 be proved beyond a reasonable 
 doubt, and it is just as essential 
 that the connecting facts be estab- 
 lished beyond a reasonable doubt. 
 It has often been said by this court 
 (and its correctness is obvious, al- 
 though it might never have been 
 said) that whether, in a given case, 
 there should be reversal for error 
 in giving an instruction, depends 
 quite as much upon the evidence 
 before the jury to which the in- 
 struction might be applied as upon 
 the abstract accuracy of the lan- 
 guage of the instruction; and so, 
 if it is apparent that the language 
 of the instruction, though inaccu- 
 rate, yet when applied to the evi- 
 dence before the jury, it could not 
 have misled the jury to believe 
 that their duty was different from 
 what it actually was, the inaccur- 
 acy can afford no reason for rever- 
 sal." 
 
 71— Benton v. State, 78 Ark. 284, 
 94 S. W. 693, charge of homicide. 
 
 72— Bryant v. State, 116 Ala. 445, 
 23 So. 40 (41), cit'ng Prater v. State, 
 107 Ala. 27, 18 So. 238; Howard v. 
 State, 108 Ala. 572, 577, 18 So. 813; 
 3 Greenl. Ev. par. 29.
 
 § 2677.] CRIMINAI^PRESUMPTION. 1719 
 
 circumstantial evidence, each fact necessary for the conclusion 
 sought to be established must be proved by competent evidence be- 
 yond a reasonable doubt. All the facts, that is, the necessary facts 
 to the conclusion, must be consistent with each other and with the 
 main fact sought to be proved, and the circumstances taken together 
 must be of a conclusive nature, leading on the whole to a satisfactory 
 conclusion and producing in effect a reasonable and moral certainty 
 that the accused and no other person committed the offense charged.''^ 
 (d) You are further instructed as a matter of law, where a con- 
 viction for a criminal offense is sought upon the circumstantial evi- 
 dence alone, the state must not only show by a preponderance of 
 the evidence that the alleged facts and circumstances are true, but 
 they must be such facts and circumstances as are absolutely incom- 
 patible upon any reasonable hypotheses with the innocence of the 
 accused, and incapable of explanation upon any reasonable hy- 
 potheses, other than that of the guilt of the accused. And in this 
 class of cases the jury must be satisfied, beyond a reasonable doubt, 
 that the crime has been committed by some one in manner and form 
 as charged in the indictment, and then you must not only be sat- 
 fied that all the circumstances proved are consistent with the de- 
 fendant having committed the act, but you must also be satisfied 
 that the facts are such as to be inconsistent with any other rational 
 conclusion than that the defendant is the guilty person. It is your 
 first duty to determine from the evidence what facts and circum- 
 stances are thereby established, and then to draw from such facts 
 and circumstances, after carefully examining and weighing them, 
 your conclusion as to the guilt or innocence of the defendant. It 
 is your duty to exercise great care and caution in drawing conclu- 
 sions from proved facts. They should be fair and natural, and not 
 forced or artificial, conclusions, and all the facts and circumstances 
 taken together should be of a conclusive nature and tendency, lead- 
 ing on the whole to a satisfactory conclusion, and producing, in 
 effect, a reasonable and moral certainty that the accused, and no 
 one else, committed the offense charged. It is not sufficient that 
 they create a probability, though a strong one, and if, therefore, 
 assuming all the facts to be true which the evidence tends to es- 
 tablish, they may j^et be accounted for upon any hypothesis which 
 does not include the guilt of the accused, the proof fails. It is es- 
 sential therefore that the circumstances, taken as a whole, and giv- 
 ing them their reasonable and just weight, and no more, should to 
 a moral certainty exclude every other hypothesis. If then all the 
 facts and circumstances established by the evidence beyond a rea- 
 
 73 — Henderson v. State, — Tex. stantial evidence. This was omitted 
 
 Cr. App. — , 96 S. W. 37 (38). from the charge. However, we 
 
 "It is urged that this charge on talce it that, the jury having been 
 
 circumstantial evidence is defective charged on circumstantial evidence, 
 
 in that the jury were not informed they understood it was such a 
 
 that the case was one of circum- case."
 
 1720 FORMS OF INSTRUCTIONS. [§ 2678. 
 
 sonable doubt cannot be reconciled with any reasonable hypothesis 
 of the defendant's innocence, but do concur in showing the de- 
 fendant's guilt, and, when taken together, are sufficient to prove 
 beyond a reasonable doubt the guilt of the crime charged in the in- 
 dictment, or any other crime included therein, then you are in- 
 structed that it is your duty to convict the defendant of the crime 
 so established.'^* 
 
 § 2678. Every Material Fact, or Link, in the Chain of Circum- 
 stances Must Be Proved Beyond a Reasonable Doubt. The prosecu- 
 tion claim that the evidence in this case is made up of a chain of 
 circumstances and facts, or links, so connected together that they lead 
 up with all reasonable certainty to the defendant's guilt. Gentle- 
 men, I charge you that, in order to convict the defendant upon this 
 class of evidence, you must be satisfied beyond a reasonable doubt 
 that each material fact, or necessary link, in the chain has been 
 proven, and if you have any reasonable doubt about any one of 
 the material facts, or links, constituting the chain of circumstances, 
 then you should acquit the defendant. To illustrate the first ma- 
 terial fact or link is death. That is not disputed. Second, death by 
 violence at the hands of some person. That is disputed. Third, death 
 by violence at the hand of the defendant. That is denied by the 
 defendant. If you have any doubt of whether or not the defendant 
 inflicted any blow on the deceased, then it is your duty to acquit 
 him. If you have any doubt that th^ blow claimed to have been 
 inflicted by the defendant was the sole cause of the death of the 
 deceased, it is still your duty to acquit him.''^ 
 
 74— State v. Novak, 109 Iowa 717, v. Felter, 32 Iowa 53. The proposi- 
 
 79 N. W. 465 (473). tion has wide, if not general, sup- 
 
 The court said: port on authority. Clare v. People, 
 
 "The criticism upon the instruc- 9 Colo. 122, 10 Pac. 799; Mullins v. 
 
 tion arises largely from the use of People, 110 111. 42; Leigh v. People, 
 
 the words 'preponderance of evi- 113 111. 372; Bradshaw v. State, 17 
 
 dence' in the first part of it, be- Neb. 147, 22 N. W. 361. Looking to 
 
 cause of which the instructions on the language of the instruction un- 
 
 the weight of evidence necessary der consideration it will be seen 
 
 to convict are said to be conflict- that the purpose of that part of 
 
 ing to such an extent as to be pre- the instruction was rather to guard 
 
 judicial. Not read with a view to against the effect of facts found by 
 
 criticism, there is little difficulty a preponderance of evidence, than 
 
 in harmonizing all parts of the in- to permit a conviction upon facts 
 
 structions on this subject. The so found, unless the facts, when 
 
 clearly manifest purpose of the found, are absolutely incompatible, 
 
 court throughout its instructions upon any reasonable hypothesis, 
 
 to preserve the rights of the dc- with the innocence of the accused." 
 
 fendant against prejudice by a con- 75 — People v. McArron, 121 Mich, 
 
 viction on an undue weight of evi- 1, 79 N. W. 944-. 
 
 dence is so plain as to be beyond Compare the above with the next 
 
 peradventure. In State v. Hayden, two instructions stating that every 
 
 45 Iowa 11, we held that: 'It is not link need not be proved beyond a 
 
 a reasonable doubt of any one reasonable doubt. However, from 
 
 proposition of fact in a case which the comment of the courts, it ap- 
 
 ontitled to an acquittal. It is a pears that the word "links" in these 
 
 reasonable doubt of guilt arising instructions were held to mean 
 
 from a consideration of all the evi- "facts," and therefore distinguish- 
 
 dence in the case.' See, also. State able from the text instruction.
 
 §2679.] 
 
 CRIMINAL— PRESUMPTION. 
 
 1721 
 
 § 2679. Reasonable Doubt — Evidence Required to Convict. Evi- 
 dence, in order to warrant a conviction, must be clear, satisfactoi-y 
 and abiding, fully satisfying the mind and conscience of each and 
 every juror. It is not sufficient in a criminal case, to justify a ver- 
 
 In People v. Rich, 133 Mich. 14, 
 94 N. W. 375 (377), the court in- 
 structed as follows: 
 
 And when I say that the case 
 must be proven as laid beyond a 
 reasonable doubt before you could 
 convict, I do not mean that every 
 fact and every circumstance and 
 every link in the chain must be 
 proven beyond a reasonable doubt; 
 I don't mean that; that would be 
 unreasonable. I mean that the en- 
 tire evidence in the case, when 
 connected together as a whole, con- 
 vinces you that it is a safe basis 
 upon which to rest a verdict of 
 guilty, and that you are satisfied 
 beyond a reasonable doubt, acting 
 upon all the evidence in the case, 
 that this respondent is guilty of 
 one or another of the offenses 
 which the court has defined. 
 
 The supreme court said: 
 
 "Respondent's counsel contend 
 that the instruction first above 
 quoted is in conflict with the hold- 
 ing of this court in People v. Aikin, 
 66 Mich. 481, 33 N. W. 821, 11 Am. 
 St. Rep. 512. It is true that in that 
 case an instruction that the jury 
 need not be satisfied beyond a rea- 
 sonable doubt of each link in the 
 chain of circumstances relied upon 
 to establish the respondent's guilt 
 was held erroneous. That was a 
 case, however, depending upon cir- 
 cumstantial evidence, and very 
 clearly the rule as given by the 
 circuit court in that case was er- 
 ror. But in the same case, the case 
 of Marion v. State, 16 Neb. 359, 29 
 N. W. 294, was cited, in which the 
 following inquiry and reasoning ap- 
 pears, which is very pertinent to 
 the present case: 'What is meant 
 by the word "link," as used there- 
 in? If the jury were given to un- 
 derstand that it referred only to 
 evidentiary facts which might add 
 force or weight to other facts froin 
 which the inference of guilt could 
 be drawn, then the instruction 
 might be said to be correct.' We 
 'h'nk this is precisely what the 
 iv-v would have understood from 
 •he charge in this case." 
 
 In Morgan v. Stnte, 51 Neb. 672, 
 71 N. W. 788 (795), the following 
 like instruction was held not to 
 necessitate a reversal: 
 
 The law requiring the jury to be 
 satisfied of the defendant's guilt 
 beyond a reasonable doubt, in or- 
 der to warrant a conviction, does 
 not require that you should be sat- 
 isfied beyond a reasonable doubt 
 of each link in the chain of circum- 
 stances relied upon to establish 
 guilt. It is sufficient if, taking the 
 testimony altogether, you are satis- 
 fied beyond a reasonable doubt that 
 the defendant is guilty of the 
 crime charged in the second count 
 of the information. But if you 
 have a reasonable doubt of the de- 
 fendant's guilt, because of the 
 weakness of one link of the chain 
 of circumstances relied upon by 
 the state to establish the defend- 
 ant's guilt, when taken and weighed 
 by you with all the evidence in 
 the case, it may fairly be said that 
 a reasonable doubt exists in your 
 minds, and you should acquit the 
 defendant of the criine charged in 
 the second count of the informa- 
 tion. The court said: 
 
 "This instruction is vigorously 
 assailed upon the ground that it 
 authorizes a conviction, although 
 the proof may be insufficient to 
 establish beyond a reasonable 
 doubt one or more of the facts es- 
 sential in order to warrant the con- 
 clusion of guilt, — a criticism we 
 think wholly unmerited. The meta- 
 phor of the chain is, it must be 
 confessed, inaccurate and mislead- 
 ing, inasmuch as the circum- 
 stances which the evidence tended 
 to prove are not interdependent, 
 i. e., each depending for its sup- 
 port upon the others. But the fatal 
 weakness of the argument ad- 
 vanced in this connection is that it 
 ignores the distinction between 
 facts relied upon to sustain the 
 particular charge, and those facts 
 which are necessary to the con- 
 clusion sought to be established. 
 It is permissible for the state to 
 introduce evidence of any number 
 of facts and circumstances tending 
 to connect the defendant on trial 
 with the offense charged. In so 
 doing it may be said to rely upon 
 each and all of the facts thus 
 sought to be established, and, if 
 those actually proved beyond a rea- 
 sonable doubt are sufficient to ex-
 
 1722 FORMS OF INSTRUCTIONS. [§ 2680. 
 
 diet of guilty, that there may be strong suspicion, or even strong 
 probability', of guilt; but the law requires proof by legal and credible 
 evidence of such nature that, when it is all considered, it produces a 
 clear, undoubting and entirely satisfactory conviction of the defend- 
 ant's guilt. The burden of proof is upon the state to make out and 
 establish by the evidence, beyond a reasonable doubt, and to the 
 satisfaction of the jury, every fact and circumstance necessary to 
 prove his guilt ; and, unless his guilt is so established, the jury must 
 find him not guilty.'^^ 
 
 § 2680. Absolute Certainty Not Required to Convict, (a) Abso- 
 lute certainty is not required, and it is rarely, if ever, possible in any 
 case; but, to justify a conviction, the evidence when taken as a whole 
 and fairly considered, must so satisfy your judgments and consciences 
 as to exclude every other reasonable conelusion.'^^ 
 
 (b) To prove beyond a reasonable doubt does not mean that the 
 state must make the proof by an eye witness, or to a positive, abso- 
 lute, mathematical certainty. This latter measure of proof is not 
 required in any case. If from all the evidence the jury believe it is 
 possible, or that it may be, or perhaps, the defendant is not guilty, 
 this degree of uncertainty does not amount to a reasonable doubt, 
 and does not entitle the defendant to an acquittal. All that is re- 
 quired is that the jury should from all the evidence, believe beyond 
 a reasonable doubt that the defendant is guilty; and if you so be- 
 lieve, and you further believe, beyond all reasonable doubt, from 
 the evidence that the killing occurred in this county and before the 
 finding of this indictment, you must find the defendant guilty, al- 
 though you may also believe from the evidence that it may be that 
 he is not guilty, or that it is possible that he is not guilty.''^ 
 
 § 2681. Reasonable Doubt — Not One Produced by Undue Sensi- 
 bility or Trivial and Fanciful Suppositions. The court further in- 
 structs the jury, as a matter of law, that the doubt which the juror 
 is allowed to retain on his own mind, and under which he should 
 frame his verdict of not guilty, must always be a reasonable one. 
 A doubt produced by undue sensibility in the mind of any juror 
 in view of the consequences of his verdict is not a reasonable doubt, 
 and a juror is not allowed to create sources or materials of doubt 
 
 elude to a moral certainty every 89 N. W. 1077; Vaughn v. State, 
 
 reasonable hypothesis save that of 130 Ala. 18, 30 So. 669 (671). 
 
 the defendant's guilt, he is not en- 76— State v. Privitt, 175 Mo. 207, 
 
 titled to an acquittal because of a 75 S. W. 457. 
 
 failure of proof with respect to 77 — State v. Marshall, 105 Iowa 
 
 one or more of the facts thus re- 38, 74 N. W. 763 (766). 
 
 lied upon." "This is a correct statement of 
 
 See also Houser v. State, 58 Ga. the law. Certainty is seldom pos- 
 
 78; Jarrell v. State, 58 Ind. 293; sible, and never required. But the 
 
 State v, Hayden, 45 la. 11; Bressler conclusion must be so certain as 
 
 V. People, 117 111. 422, 8 N. E. 62; to exclude any other reasonable 
 
 State v. Lucas, 122 la. 141, 97 N. W. hypothesis." 
 
 1003 n007); State v. Cohen, 108 la. 78— Rnulden v. State, 102 Ala. 78, 
 
 208, 78 N. W. 857, 75 Am. St. Rep. 15 So. 341 (344). 
 213; State v. Hossock, 116 la. 194,
 
 §2682.] CRIMINAL— PRESUMPTION. 1723 
 
 by resorting to trivial, or fanciful suppositions and remote conjec- 
 tures as to possible states of facts differing from those established by 
 the evidence. You are not at liberty to disbelieve as jurors, if, from 
 the evidence, you believe as men; your oath imposes on you no obli- 
 gation to doubt where no doubt would exist if no oath had been ad- 
 ministered. The juiy are instructed that if, after a careful and im- 
 partial consideration of all the evidence in the case, you can say 
 you feel an abiding conviction of the guilt of the defendant, and 
 are fully satisfied to a moral certainty of the truth of the charge 
 made against him, then the jury are satisfied beyond a reasonable 
 doubt." 
 
 § 2682. Reasonable Doubt, Abiding Conviction to a Moral Cer- 
 tainty, (a) As jurors charged with the solemn duty in hand, you 
 must carefully, impartially and conscientiously consider, compare 
 and weigh all the testimony; and if, after doing this, you find that 
 your understanding, judgment and reason are satisfied and convinced 
 by it to the extent of having a full, firm and abiding conviction to 
 a moral certainty that the charge is true, then you should find the 
 defendants guilty. If, however, after carefully considering, compar- 
 ing and weighing all the testimony, both for the state and the de- 
 fense, there is not an abiding conviction to a reasonable and moral 
 certainty as to the truth of the charge, or if, after having a convic- 
 tion, it is yet one which is not abiding or stable, but wavers and 
 vacillates or is one of which there is not a moral certainty, then the 
 truth of the charge is not made out beyond a reasonable doubt, and 
 you should find a verdict of not guilty.^" 
 
 (b) Defendants are presumed to be innocent until they are 
 proved to be guilty beyond a reasonable doubt. They are entitled 
 
 79— "Willis v. State, 43 Neb. 102, sonable one. Jurors may not law- 
 
 61 N. W. 254 (256). fully disbelieve as jurors if, from 
 
 The court said: "In Dunn v. the evidence, they would believe 
 People, 109 111. 635, an instruction as men; the oath taken by a juror 
 much like the one under consider- does not impose on him an obliga- 
 ation was held by that court to be tion to doubt where no doubt 
 more like an argument than a would exist if no oath had been 
 proposition of law, and declared to administered; and if, from all the 
 be erroneous. There is, however, evidence in the case, the jury have 
 a difference between the instruc- an abiding' conviction of the guilt 
 tion in the Illinois case and the of the defendant, and are satisfied 
 one under consideration. For our to a moral certainty of the guilt of 
 part, we entirely approve of this the defendant, and are satisfied to 
 instruction given by the trial court, a moral certainty that he is guilty 
 The doubt on which a juror prcdi- of the charge made against him, 
 cates his verdict of guilty must al- then the jury is satisfied beyond a 
 ways be a reasonable one; and a reasonable doubt. These are the 
 doubt produced by undue sensibil- propositions enunciated by the in- 
 ity in the mind of a juror, in view struction, and they are not argu- 
 of the consequences of his verdict, ments, they are propositions of 
 is not a reasonable doubt. Nor law, as sound as they are sen- 
 can a juror lawfully conjecture the sible." 
 
 existence of a fact not warranted 80 — Bassett et al. v. State, 44 Fla. 
 
 by the evidence, and say that a 2, 33 So. 262. 
 doubt predicated thereon is a rea-
 
 1724 FORMS OF INSTRUCTIONS. [§ 2683. 
 
 to every reasonable doubt arising from the evidence. A reasonable 
 doubt is one conformable to reason — one which a reasonable man 
 would entertain. It is that state of the ease which after the entire 
 comparison and consideration of all the evidence leaves the minds 
 of the jurors in that condition that they cannot say they feel an 
 abiding conviction to a moral certainty of the truth of the charge. ^^ 
 
 (c) The jury are further instructed that in order to be con- 
 vinced beyond a reasonable doubt, you must find, after consideration 
 of all the evidence, that you have an abiding conviction to a moral 
 certainty of the guilt of the defendant, and unless you are so con- 
 vinced beyond a reasonable doubt you will acquit him,^^ 
 
 (d) Before a defendant can be convicted of any criminal of- 
 fense, each juror must be convinced of the guilt of the defendant 
 beyond a reasonable doubt and the burden of proof is always upon 
 the state to so satisfy you of his guilt before you can convict. You 
 must also be convinced to a moral certainty of the guilt of the ac- 
 cused before you can convict, and each juror must be so convinced. 
 But this doubt which the law requires to be removed, or says should 
 not exist, to support a conviction, is a reasonable doubt, and it is 
 a doubt which arises out of the evidence or the lack of evidence. 
 It is not any doubt that may be imagined or conjured up, but it is 
 a reasonable doubt. While the guilt of the accused must be proven 
 to a moral certainty — which means the same as beyond a reasonable 
 doubt — it does not mean it must be proven to a mathematical cer- 
 tainty. Everything human is subject to some kind of doubt. ^^ 
 
 § 2683. Must Be an Actual, Substantial, Fixed and Reasonable 
 Doubt, Not Imaginary, Conjectural, Vague or Whimsical, (a) I 
 charge you, gentlemen of the jury, as a matter of law, that in con- 
 sidering this case, you are not to go beyond the evidence to hunt 
 up doubts, nor must you entertain such doubts as are merely im- 
 aginary or conjectural. A doubt, to justify an acquittal, must be 
 reasonable, and it must arise from a candid and impartial investi- 
 gation of all the evidence in the case; and unless it is such that, 
 were the same kind of doubts interposed in the graver transactions 
 of life, it "would cause a reasonable and prudent man to hesitate 
 and pause, it is insufficient to authorize a verdict of not guilty. If, 
 after considering all the evidence, you can say that you have a fixed 
 conviction of the truth of the charge, you are satisfied beyond a 
 reasonable doubt. 
 
 (b) I charge you, gentlemen of the jury, if you believe from all 
 the evidence beyond a reasonable doubt that the defendant is guilty, 
 though you also believe it possible that he is not guilty, you must 
 convict him. 
 
 (c) I charge you, gentlemen of the jury, that the doubt must be 
 
 81_Myers et al. v. State, 43 Fla. 83— Winter v. State, 123 Ala. 1, 
 
 500. 31 So. 275 (281). 26 So. 949 (950). 
 
 82— Horn v. State, 12 Wyo. 80, 73 
 Pac. 705 (725).
 
 § 2684.] CRIMINAL— PRESUMPTION. 1725 
 
 actual and substantial, not mere possible, doubt, because everything 
 relating to human affairs and depending on moral evidence is open 
 to some possible or imaginary doubt. ^* 
 
 (d) Every accused person is presumed to be innocent until he 
 is proven to be guilty beyond a reasonable doubt. Such reasonable 
 doubt, within the meaning of the law, is not a vague, fanciful, whim- 
 sical doubt, but a doubt naturally arising out of all the evidence in 
 the case; and such a doubt as intelligent, impartial, fair-minded 
 jurors may reasonably entertain after a careful consideration of all 
 relevant evidence before them.*^ 
 
 § 2684. Reasonable Doubt — Must Not Be Mere Speculation, (a) 
 A doubt to acquit defendants, or either of them, must be a reason- 
 able doubt — not mere speculation or. possibility. The state is not 
 required to prove defendant's guilt beyond all doubt, but beyond all 
 reasonable doubt.^^ 
 
 (b) It is not a mere doubt that authorizes an acquittal. The 
 doubt which authorizes an acquittal must be a reasonable doubt.^'^ 
 
 § 2685. Reasonable Doubt Should Be a Substantial Doubt Arising 
 from the Evidence, (a) You are instructed that the law presumes 
 the innocence, and not the guilt, of the defendants; and this pre- 
 sumption attends them throughout the trial, and at the end entitles 
 them to an acquittal unless the evidence in the case, when taken as a 
 whole, satisfies you of their guilt beyond a reasonable doubt. You 
 are, however, instructed that a reasonable doubt of the guilt of the 
 defendants which would warrant you in acquitting them on the 
 ground of your having such reasonable doubt of their guilt should be 
 a substantial doubt of their guilt upon a full and fair consideration 
 by you of all the evidence, facts, and circumstances in the ease, and 
 not a mere possibility that they may be innocent.^* 
 
 84— Prater v. State, 107 Ala. 26, The court instructs the jury that 
 
 18 So. 238 (239); Boulden v. State, the defendants are presumed to be 
 
 102 Ala. 78, 15 So. 341 (344). innocent, and it devolves upon the 
 
 85— State v. Davis, 3 Del. 220, 50 state to prove their guilt beyond a 
 
 Atl. 99. reasonable doubt, and, unless the 
 
 86 — Thompson et al. v. State, 106 state has established the guilt of 
 
 Ala. 67, 17 So. 512 (513), 42 Am. the defendants, as charged in the 
 
 Rep. 101. indictment, to your satisfaction and 
 
 87 — Dodge v. State, 122 Ala. 107, beyond a reasonable doubt, you 
 
 26 So. 200, 82 Am. St. 23. should give the defendants the ben- 
 
 88— State v. Spaugh, 200 Mo. 571, efit of such doubt and return a 
 
 98 S. W. 55 (63). verdict of not guilty. But such 
 
 "The cases of State v. Clark, 147 doubt, to authorize an acquittal 
 
 Mo. 22, 47 S. W. 886, and State v. on that ground alone, should be a 
 
 Fannon, 158 Mo. 149, 59 S. W. 75, substantial doubt of guilt arising 
 
 do not in the least sustain defend- from the evidence in the case, and 
 
 ant's criticism of the instruction not a mere possibility of inno- 
 
 on reasonable doubt in this case, cence. 
 
 It has often been approved by this And in Watkins v. Common- 
 court, and is entirely sufficient." wealth, 29 Ky. Law 1273, 97 S. W. 
 
 In State v. Vaughan, 200 Mo. 1, 740, the following was approved: 
 
 98 S. W. 2, the following instrue- The jury are further instructed 
 
 tion on the same subject was ap- that the defendant is presumed to 
 
 proved: be innocent, and this presumption
 
 1726 FORMS OP INSTRUCTIONS. [§2686. 
 
 (b) The defendant is presumed to be innocent. Before you can 
 convict him, the state must overcome that presumption by proving 
 him gruilty beyond a reasonable doubt. If you have a reasonable 
 doubt as to his guilt, you should acquit him. But a doubt, to au- 
 thorize an acquittal, should be a substantial doubt, founded on the 
 evidence, and not a mere possibility of innocence.^^ 
 
 (c) The law presumes the defendant innocent of the crime 
 charged against him in this information, and the burden of proving 
 him guilty thereof beyond a reasonable doubt rests upon the state. 
 Now if, after a full and fair review of all the evidence in the cause,- 
 you entertain a reasonable doubt of the defendant's guilt, you 
 should give him the benefit of such doubt, and acquit him; but such 
 doubt, to authorize you to acquit him on that ground alone, should 
 be a substantial doubt touching his guilt, and not a mere possibility 
 of his innocence.^** 
 
 (d) The court instructs the jury that the defendant is presumed 
 to be innocent of the offense charged. Before you can convict him, 
 the state must overcome that presumption by proving him guilty be- 
 3'ond a reasonable doubt. If you have reasonable doubt of defend- 
 ant's guilt, you must acquit him. But a doubt to authorize an acquit- 
 tal must be substantial doubt, founded on the evidence, and not a mere 
 possibility of innocenee.^^ 
 
 § 2686. Reasonable DoUbt Defined, Compared to Conduct in Im- 
 portant Affairs in Life, (a) In criminal cases the defendant enters 
 upon his trial with the presumption of innocence in his favor, and 
 the burden of proof is upon the state to establish his guilt, and the 
 evidence must be sufficient to establish in your judgment his guilt 
 beyond all reasonable doubt. As long as you have a reasonable 
 doubt of the defendant's guilt, it is your duty to acquit him. A rea- 
 sonable doubt which entitles an accused person to an acquittal is a 
 doubt of guilt reasonably arising from all the evidence in the case. 
 Proof is said to be deemed to be beyond all reasonable doubt when 
 the evidence is sufficient to impress the judgment of ordinarily pru- 
 dent men with a conviction on which they would act without hesi- 
 tation in their own most important concerns and affairs of life. And 
 if you have any such reasonable doubt, you must give him the benefit 
 thereof, and acquit bim.^^ 
 
 of his innocence entitles him to an 65 S. W. 270; State v. May, 172 Mo. 
 
 acquittal at their hands, unless his 630, 72 S. W. 918 (920). 
 
 guilt has been proved from the 92 — Frank v. State, 94 Wis. 211, 
 
 evidence beyond a reasonable 68 N. W. 657 (660). 
 
 doubt. "These instructions are clearly 
 
 89— State v. Todd, 194 Mo. 377, 92 distinguishable from the instruc- 
 
 S. W. 674. tion criticised by Mr. Justice Wins- 
 
 90— State v. Gatlin, 170 Mo. 354 low in Emery v. State, 92 Wis. 152, 
 
 (365), 70 S. W. 885 (888), homicide 65 N. W. 850. relied upon by coun- 
 
 case. sel. We do not think the instruc- 
 
 91 — State V. Smith, 164 Mo. 567, tions here given are obnoxious to 
 
 the criticisms here made."
 
 § 2687.] CRIMINAL— PRESUMPTION. 1727 
 
 (b) The court further charges you that a reasonable doubt is a 
 doubt based on reason, and which is reasonable in view of all the 
 evidence. And if, after an impartial comparison and consideration 
 of all the evidence, you can candidly say that you are not satisfied 
 of the defendant's g'uilt, you have a reasonable doubt; but if, after 
 such impartial comparison and consideration of all the evidence, 
 you can truthfully say that you have an abiding conviction of the 
 defendant's guilt, such as you would be willing to act upon in the 
 more weighty and important matters relating to your own affairs, you 
 have no reasonable doubt.^^ 
 
 § 2687. Reasonable Doubt — Conscientious Belief. The court 
 charges the jury for the state that you are not to convict the de- 
 fendant unless they believe from the evidence beyond a reasonable 
 doubt that he is guilty. Still that does not mean that they must 
 know that he is guilty, but if, after considering, comparing and 
 weighing all the evidence, you conscientiously believe from all the 
 evidence beyond a reasonable doubt that he is guilty, that is suffi- 
 cient, and you should convict.^* 
 
 § 2688. Caution Against Conviction from Prejudice. I further 
 instruct you, gentlemen of the jury, and caution you against convic- 
 tion from prejudice of insufficient evidence. Unless you are satis- 
 fied from the evidence beyond a reasonable doubt of the giiilt of 
 the accused, you should render a verdict of not guilty, however strong 
 may be your prejudice, if any you have.^^ 
 
 93— Hopt v. Utah, 120 U. S. 430, 7 you feel morally certain of the 
 
 S. Ct. 714; Williams v. U. S., 4 Ind. guilt of the defendant as charged 
 
 Ter. 269, 69 S. W. 871, approves the in the indictment, you are satisfied 
 
 following instruction: beyond a reasonable doubt, and 
 
 Not every doubt which may should find the defendant guilty of 
 
 arise in your minds is of necessity murder or manslaughter, accord- 
 
 a reasonable doubt, but, in order ing to the law and evidence. 
 
 to be a reasonable doubt, it must 94 — Moore v. State, 86 Miss. 160, 
 
 amount to a real doubt of the guilt 38 So. 504. 
 
 of the defendant. It must be such "The use of the word 'conscien- 
 a doubt as, if arising in the solu- tiously' in this instruction is ob- 
 tion of one of the graver affairs of jected to as erroneously qualifying 
 life, would cause a reasonable and the reasonable doubt which should 
 prudent man to hesitate and say, acquit. There is no merit in this 
 "I am not satisfied." In order to objection. In this instruction the 
 be a reasonable doubt as applied word is mere surplusage. If 
 in this case, it must be a substan- omitted altogether, the instruction 
 tial doubt of the defendant's guilt, is correct. Surely the defendant 
 growing out of the contradictory was not injured by an instruction 
 or unsatisfactory nature of the tes- to the jury informing them that, 
 timony, or a lack of testimony, in order to a conviction, they must 
 which, after considering all the conscientiously believe from all 
 facts and circumstances in proof the evidence, beyond a reasonable 
 before you, causes you to hesitate doubt, that defendant is guilty, 
 and say, "I am not satisfied of the The instruction given does not sub- 
 f'nilt of the defendant." If you stitute conscientious belief for be- 
 have on your mind such a reason- lief beyond a reasonable doubt, but 
 rhi^ doubt of the defendant's guilt, warrants a conviction only upon a 
 then you should resolve that doubt conscientious belief of guilt beyond 
 in favor of the defendant and ac- a reasonable doubt." 
 quit him; but if, after considering 95 — Myers et al. v. State, 43 Fla. 
 all the facts and circumstances in 500, 31 So. 275 (282), homicide case, 
 proof before you, you can say that
 
 1728 
 
 FORMS OF INSTRUCTIONS. 
 
 [§ 2689. 
 
 § 2689. Appealing to Individual Jurors, (a) If any individual 
 juror is not convinced of defendant's guilt beyond all reasonable 
 doubt, and to a moral certainty, the jury cannot convict.^^ 
 
 (b) The court charges the jury that before they can convict the 
 defendant the evidence must be so strong as to convince each juror 
 of his guilt beyond reasonable doubt; and if, after considering 
 all the evidence, a single juror h.is a reasonable doubt of the de- 
 fendant's guilt, ai-ising out of any part of the evidence, then they 
 cannot convict him.*^^ 
 
 (c) Unless each of you is convinced beyond a reasonable doubt 
 of the guilt of the defendants, from the evidence in the case, then 
 you should not convict them. 
 
 (d) Before you can convict the defendants you should each be con- 
 vinced beyond a reasonable doubt of their guilt from the evidence 
 and the evidence alone.^^ 
 
 § 2690. Reasonable Doubt by One Juryman Will Prevent Convic- 
 tion, (a) In this case, if the jury entertain any reasonable doubt 
 of defendant's guilt, they should acquit him; or, if they entertain 
 
 96— In Hale v. State, 122 Ala. 85, 
 26 So. 236 (237), it was held error 
 to refuse this instruction. The court 
 said that many similar charges 
 had recently been brought under 
 review before it. "Some of them 
 have been held bad, and others 
 good; depending upon whether the 
 particular charge under consider- 
 ation asserted simply and only that 
 the defendant should not be con- 
 victed so long as any one of the 
 jurors had a reasonable doubt of 
 his guilt. If it was clear to this 
 intent, and did not tend to mislead 
 the jury to an acquittal upon a 
 reasonable doubt of one or any 
 number of the jurors, less than the 
 whole number, nor to inculcate the 
 idea that the conclusion of each 
 juror should be reached and ad- 
 hered to 'without the aid of that 
 consideration and deliberation with 
 his fellows which the law intends 
 shall take place in the jury room,' 
 nor to render each juror the keeper 
 of the consciences of his fellows, 
 nor involve other misleading ten- 
 dencies, the charge has been held 
 to be good; and if it went beyond 
 this it has been disapproved. Car- 
 ter v. State, 103 Ala. 93, 15 So. 893; 
 Goldsmith v. State, 105 Ala. 8. 16 
 So. 933; Pickens v. State, 115 Ala. 
 42, 22 So. 551; Cunningham v. State, 
 117 Ala. 59, 66, 23 So. 693; Lewis v. 
 State, 121 Ala. 1, 25 So. 1017." 
 
 97— In Mitchell v. State, 129 Ala. 
 23, 30 So. 348 (354), homicide, judg- 
 ment of conviction was reversed 
 
 solely because the trial judge re- 
 fused to give the above instruction. 
 
 The court said: 
 
 "That charge combines two 
 principles, each of which, as stated 
 in separate charges, has been 
 sanctioned by decisions of this 
 court: Fii'st. To warrant a con- 
 viction the evidence must be such 
 as to convince each juror of guilt 
 beyond a reasonable doubt. See 
 Carter v. State, 103 Ala. 93, 15 So. 
 893; Grimes v. State, 105 Ala. 86, 
 17 So. 184; Hale v. State, 122 Ala. 
 85. 26 So. 236. Second. Such a 
 doubt arising from any part of the 
 evidence, upon consideration of the 
 whole, precludes a rightful convic- 
 tion. McLeroy v. State, 120 Ala. 
 274, 25 So. 247; Turner v. State, 124 
 Ala. 60, 27 So. 272. Charges some- 
 what like but different from those 
 considered in the cases cited in 
 support of the first proposition 
 were condemned in Cunningham v. 
 State, 117 Ala. 59, 23 So. 693, and 
 Lewis v. State, 121 Ala. 1, 25 So. 
 1017; but respecting that feature the 
 charge now in question cannot be 
 distinguished from those pnssed on 
 in the cases of Carter, Grimes and 
 Hale, supra. It must be held that 
 the refusal of charge 2 (b) requires 
 a reversal of the judgment." 
 
 The same request was held prop- 
 erly refused in Conk v. State, 46 
 Fla. 20, 35 So. 665 (669), also a homi- 
 cide case. 
 
 98— Carter et al. v. State, 103 Ala, 
 93, 15 So. 893.
 
 § 2691.] CRIMINAL— PRESUMPTION. 1729 
 
 any reasonable doubt as to whether he was excusable and justified 
 in the acts complained of, they should acquit him; or if one of the 
 jury, after having considered all the evidence and having consulted 
 with his fellow jurymen, should entertain such a reasonable doubt, 
 the jury cannot in such ease find the defendant guilty.^" 
 
 (b) Now, gentlemen, I have said 'to you that this man is pre- 
 sumed to be innocent until he is proven guilty. There is about him 
 that presumption, and it attaches to the entire case. The burden 
 is upon the people to prove his guilt beyond a reasonable doubt. He 
 is presumed to be innocent until proven guilty, and all of the jury 
 must be satisfied beyond a reasonable doubt in order to convict.^"" 
 
 (c) It is incumbent upon the state to establish the guilt of the 
 defendant of some offense embraced Avithin the indictment, to the 
 exclusion of every reasonable doubt in the mind of each of you before 
 you can return a verdict of guilty. The minds of each and all of 
 you must concur in your vei'diet, and if any one of you has a rea- 
 sonable doubt of the defendant's guilt, or a reasonable doubt as to 
 whether he was justifiable or excusable in what he did, you cannot 
 convict.^ 
 
 § 2691, Reasonable Doubt — Doctrine Does Not Apply to Mere 
 Subsidiary Evidence, (a) By reasonable doubt is not meant a whim, 
 or captious or speculative doubt. It is properly termed a reasonable 
 doubt, as distinguished from an unreasonable or speculative doubt; 
 and it must arise from all the evidence relating to some material 
 fact or facts charged in the indictment, and not spring from mere 
 subsidiary evidence. Such uoubt may also arise from the absence 
 of evidence as to material matters. 
 
 (b) But the doctrine of reasonable doubt, as a rule, has no proper 
 application to mere matters of subsidiary evidence, taken item by 
 item, but is applicable always to the constituent elements of the 
 crime charged, and to any fact or group of facts which may consti- 
 tute the entire proof concerning any of the constituent or elemen- 
 tary facts necessary to constitute guilt. If from the whole evidence, 
 or the want of evidence, any material fact essential to a conviction 
 has not been established to your satisfaction, beyond a reasonable 
 doubt, as explained in these instructions, the defendant should be 
 aequitted.2 
 
 99 — State v. Moore, 156 Mo. 204, yet, in a broader sense, it must, in 
 
 56 S. W. 883 (884). order to convict, rely upon and 
 
 100 — People v. Curtis, 96 Mich, establish beyond a reasonpble doubt 
 
 489, 56 N. W. 925. all the material facts which con- 
 
 "The instruction given was all stitute the accused guilty of the 
 
 that the law requires." crime charged. It is to such facts, 
 
 1 — Harris v. State, 155 Ind. 265, and not to the mere items of sub- 
 
 58 N. E. 75 (76). sidiary evidence, which may aid in 
 
 2— Hauk v. State, 148 Ind. 238, 46 proving the essential facts, that 
 
 N. E. 127 (132), 47 N. E. 465. the rule of reasonable doubt ap- 
 
 "While the state, in a criminal plies." 
 
 prosecution, may rely upon mere The court cited. Wade v. State, 
 
 subsidiary or subservieut facts, 71 Ind. 535. As to the words "want 
 109
 
 1730 FORMS OP INSTRUCTIONS. [§ 2692. 
 
 § 2692. ReasonalDle Doubt— Arising from Part of the Evidence 
 After Consideration of the Whole, (a) If the evidence or any part 
 thereof, after a consideration of the whole of such evidence, gener- 
 ates a Avell-founded doubt of defendant's guilt, the jury must acquit 
 him.^ 
 
 (b) If the jury, upon considering all the evidence, have a reason- 
 able doubt about defendant's guilt, arising out of any part of the 
 evidence, they must find him not guilty."* 
 
 (c) In weighing the evidence, each piece and all the evidence 
 should be weighed with all the other evidence, and you should make 
 up your verdict from due consideration of the whole of the evidence. 
 If the jury, after considering all of the evidence, have a reasonable 
 doubt of defendant's guilt, arising out of any part of the evidence; 
 they should find him not guilty. But this does not mean that you 
 have got to find every single item of testimony to be true before 
 you can convict. If, after weighing all the evidence, you have a 
 reasonable doubt as to any of the elements which constitute any 
 offense charged in this indictment, then you are bound to acquit. It 
 does not mean that you have got to believe every word of the tes- 
 timony in order to convict.^ 
 
 § 2693. Reasonable Doubt Should Arise from the Evidence as a 
 Whole — Possibility of the Defendant's Innocence Will Not Warrant 
 an Acquittal, (a) The court instructs you that the burden of prov- 
 ing the defendant guilty beyond a reasonable doubt rests upon the 
 state, and if upon the evidence, considered as a whole, the jury en- 
 tertain a reasonable doubt as to defendant's guilt, you should give 
 him the benefit of such doubt, and find him not guilty; but a doubt, 
 
 of evidence," see Harris v. State, of, and, when considered together 
 
 155 Ind. 265, 58 N. E. 75 (76). and as a whole, tend to prove or 
 
 Hinshaw v. State, 147 Ind. 334, disprove the existence of one or 
 
 47 N. E. 157 (171), homicide, ap- more of the primary facts neces- 
 
 proves the following: sary to make out the defense. Sub- 
 
 The doctrine of reasonable doubt, sidiary and evidentiary facts may 
 
 as a general rule, has no applica- be considered by you in determin- 
 
 tion to subsidiary evidence taken ing the necessary and essential 
 
 item by item. It is applicable to facts, when established by clear 
 
 the constituent elements of the and satisfactory proof, 
 
 crime charged, and to any fact or The court said: "The law as 
 
 facts which constitute the entire laid down in Wade v. State, 71 Ind. 
 
 proof of one or more of the constit- 535, fully justifies the court in giv- 
 
 uent elements of the crime ing the above instruction." 
 
 charged. That is to say, all 3— Held that this request by de- 
 
 the facts which must have existed fendant "asserts a correct proposi- 
 
 in order to make out the guilt of tion and should have been given." 
 
 the accused must be established Hunt v. State, 135 Ala. 1, 33 So. 
 
 beyond a reasonable doubt before 329 (331). Citing Turner v. State, 
 
 you can convict. But the rule of 124 Ala. 59 (63), 27 So. 272. See also 
 
 reasonable doubt does not apply to Mitchell v. State, 129 Ala. 23, 30 So. 
 
 subsidiary and evidentiary facts; 348; McLeroy v. State, 120 Ala. 274, 
 
 that is to say, to such facts and 25 So. 247. 
 
 circumstances in evidence, if there 4— Hunt v. State, 135 Ala. 1, 33 
 
 be any such, as are not essential So. 329 (330), homicide case, 
 
 elements of the crime charged, and 5— Bnndurant v. State, 125 Ala. 
 
 not necessary to the proof where- 31, 27 So. 775 (776), homicide case.
 
 § 2694.] CRIMINAL— PRESUMPTION. 1731 
 
 to authorize an acquittal on tliat ground alone, should, as stated, 
 be a reasonable doubt, and one fairly arising from the evidence as 
 a whole. The mere possibility that the defendant may be innocent 
 "will not warrant you in acquitting him on the ground of reasonable 
 doubt.^ 
 
 (b) The court instructs the jury that the burden of proof to 
 establish the guilt of the defendant rests upon the state, and the 
 defendant is presumed to be innocent of the charge against him, 
 and this presumption of innocence attends and protects him through- 
 out the trial until overcome by evidence which shows the guilt 
 of the defendant beyond a reasonable doubt. If the jury have a 
 reasonable doubt of the defendant's guilt, you should give him the 
 benefit of such doubt and acquit him. By ''reasonable doubt" is 
 meant a doubt which has reason for its basis, and arising from a con- 
 sideration of all the evidence in the case, and not a mei'e possibility 
 of his innocence.'^ * 
 
 § 2694. Reasonable Doubt as to Any Material Fact, (a) The 
 court instructs the jury that if, from the evidence, you hav-e a rea- 
 sonable doubt as to whether any material fact given in evidence 
 in the case is true or untrue, it is the duty of the jury to give the 
 defendant the benefit of such doubt, and if, from all the evidence 
 in the case, the jury have a reasonable doubt of the defendant's 
 guilt, you should acquit him.^ 
 
 (b) The law presumes the defendant to be innocent; and, in 
 order to convict him of either of the crimes I have mentioned [mur- 
 der in the first degree, etc.], every fact necessary to constitute such 
 crime must be pi'oved beyond a reasonable doubt, and, if the jury 
 entertains any reasonable doubt on any single fact or element nec- 
 essaiy to constitute the crime, it is your duty to give the defendant 
 the benefit of such doubt and acquit him.^ 
 
 6 — State v. Harper, 149 Mo. 514, they shall believe from all the 
 
 51 S. W. 89. facts and circumstances in evi- 
 
 7— State v. Kinder, 184 Mo. 276 dence, beyond a reasonable doubt 
 
 (290), 83 S. W. 964 (966). arising- out of such facts and cir- 
 
 It has been held error in a crim- cumstances, that the accused is 
 inal prosecution to refuse to give guilty of killing H., they shall ac- 
 an Instruction to the jury "that if quit the accused, 
 there is a probability of defend- The court instructs the jui^ that 
 ant's innocence, they will find for the defendant is presumed to be 
 defendant," since such probability innocent until his guilt has been 
 is equivalent to a reasonable doubt, shown by the evidence in the case 
 Shaw V. State, 125 Ala. 80, 28 So. beyond a reasonable doubt, and if, 
 390. See also Alabama cases cited from all the evidence, the jury- 
 in "Whitaker v. State, 106 Ala. 30, have a reasonable doubt of the de- 
 17 So. 456 (457). fendant's guilt, they shall acquit 
 
 8 — Alderson v. Commonwealth, 25 him. 
 
 Ky. Law 32. 74 S. W. 679 (681), ap- Toler v. State, 41 Tex. Cr. App. 
 
 proving also the following instruc- 659, 56 S. W. 917, approves an in- 
 
 tions: struction similar to the preceding 
 
 The court instructs the jury that, one. 
 
 in arriving at their verdict, they 9 — State v. Lindgrind, 33 Wash. 
 
 shall consider all the facts and cir- 440, 74 pac. 565 (566). 
 cumstances in evidence, and unless
 
 1732 FORMS OF INSTRUCTIONS. [§ 2695. 
 
 (c) The presumption of innocence is in favor of the defendant 
 as to each and every element of the offense charged, and yon must 
 acquit unless the state has established by the evidence the existence 
 of each and every element of the particular offense, and the defend- 
 ant 's guilt thereof beyond all reasonable doubt. ^'^ 
 
 § 2695. Reasonable Doubt — May Arise from Want of Evidence. 
 
 (a) The reasonaWo doubt may arise from the evidence already 
 given in the case, or for want of evidence. In this case the de- 
 fendant has introduced evidence before you that b3 was with a 
 young lady that he was waiting on, by the name of X, from about 
 half-past nine on the night of the transaction until twenty minutes 
 of one the next morning. If this evidence raises a reasonable doubt 
 in your minds as to whether the defendant was the person that 
 committed the alleged transaction in the manner and form alleged, 
 then, and in that event, you cannot convict the defendant.^^ 
 
 (b) The court instructs you that the defendant, in law, is pre- 
 sumed to be innocent, and that it devolves upon the state to prove, 
 by evidence, to the satisfaction of the jury, beyond a reasonable 
 doubt, that the defendant committed the crime as charged in the 
 indictment and explained in these instructions ; and if, upon a view 
 of the whole case, you have a reasonable doubt of defendant's guilt, 
 you will give him the benefit thereof, and acquit him. But a rea- 
 sonable doubt to authorize an acquittal on that ground, must be a 
 substantial doubt of defendant's guilt, formed on the careful con- 
 sideration of all the facts and circumstances proven in the case, 
 and not a mere possibility of the defendant's innocence. ^^ 
 
 10 — Ryan v. State, 115 Wis. 488, cumstances as are lacking- to es- 
 
 92 N. W. 271 (274), charge of homi- tablish and make complete the full 
 
 cide. measure of defendant's guilt. These 
 
 11 — Fleming v. State, 136 Ind. 149, two considerations of the evidence 
 
 36 N. E. 154 (155). and the lack of evidence are bound 
 
 The court said: "We have read together in an indissoluble connec- 
 
 carefully all of the charges given, tion as surely as the premises of a 
 
 and feel constrained to hold that syllogism involve its conclusion. It 
 
 they do not cover fully the prop- is logically impossible for a jury 
 
 ositions of the instructions refused, to consider the sufficiency of evi- 
 
 The jury wei-e nowhere told that a dence without at the same moment 
 
 reasonable doubt might arise upon considering, and with the same 
 
 the evidence given, as well as for thought, its insufficiency. A differ- 
 
 the lack of evidence. While the ent mental operation would be as 
 
 instruction refused is not clearly much dehors the powers of the hu- 
 
 stated, it was intended to, and we man mind as would be the remem- 
 
 think did, present the further ques- brance and the forgetting of the 
 
 tion that a reasonable doubt could same thing at the same instant, 
 
 properly arise from a consideration In State v. Sacre, 141 Mo. 64, 41 
 
 of the alibi evidence referred to, S. W. 905, an instruction similar 
 
 and that, if it did so arise, the to the one under review was ruled 
 
 jury could not convict." to be unobjectionable. In State v. 
 
 12— State V. Holloway, 156 Mo. Blunt, 91 Mo. 503, 4 S. W. 394, a 
 
 222, 56 S. W. 734 (736). like ruling was made where the 
 
 "A reasonable doubt 'formed on instruction complained of read: 
 
 the careful consideration of all 'To authorize an ncquittnl on the 
 
 the facts and circumstances in the ground of reasonable doubt alone, 
 
 case,' necessarily involves a con- such a doubt should be a real, 
 
 sideration of such facts and cir- substantial, well-founded doubt.
 
 § 2696.] CRIMINAL— PRESUMPTION. 1733 
 
 §2696. Reasonable Doubt— "Doubt" Must be Within the Evi- 
 dence. By "reasonable doubt" I mean a doubt of the guilt for 
 which a reason can be given, ai'ising out of the evidence. You are 
 not to go outside of the evidence to hunt up doubts, nor should you 
 entertain a doubt that is merely fanciful, sjieeulative, or chimerical, 
 or which is based only upon unreasonable or groundless conjecture. 
 A doubt which ignores a reasonable construction of the whole evi- 
 dence is not a reasonable doubt. Guilt is proven beyond a reason- 
 able doubt when all the evidence in the ease, clearly, impartially, and 
 rationally considered, is sufficient to impress the judgment of ordi- 
 nary, reasonable and prudent men with a conviction upon which they 
 Would act without hesitation in their own gravest and most impor- 
 tant affairs of life.^^ 
 
 § 2697. Reasonable Doubt — Probability of Innocence, (a) Unless 
 you are satisfied from the evidence, beyond all reasonable doubt, 
 of the defendant's guilt, you should not convict him. I do not mean 
 that you must be satisfied beyond all possible doubt, but beyond 
 all reasonable doubt. The law does not require the defendant's guilt 
 proved to a mathematical certainty, but the law does require his 
 guilt proved to a moral certainty before he can be convicted. It is 
 not necessary that you should be so convinced of his g-uilt by the 
 evidence that there can be no jDossibility of his innocence, but it is 
 necessary that before you can convict the defendant j^ou must be 
 convinced of his guilt by the evidence that there can be no proba- 
 bility of his innocence, and no reasonable doubt of his guilt. If there 
 is probability of his innocence, this is just ground for reasonable 
 doubt and requires acquittal.^* 
 
 (b) The court charges the juiy that if there is from the evidence 
 a reasonable probability of defendant's innocence, then this is a just 
 foundation for a reasonable doubt, and would authorize an ac- 
 quittal.^^ 
 
 arising- out of the evidence in the St. 23, 27 So. 438 (440), holds that 
 
 cause, and not a mere possibility such probability must arise from a 
 
 that defendant is innocent.' The consideration of the entire evidence 
 
 objection, therefore, taken to the and not of a part merely, 
 
 instruction, must be held unten- 15— Mims v. State, 141 Ala. 93, 37 
 
 able. But it is difficult to refrain So. 354. 
 
 from asking why it is that circuit "The above charge refused to 
 Judges do not copy the instruction the defendant would unquestion- 
 on reasonable doubt which passed ably have been proper if the word 
 muster in Nueslein's Case, 25 Mo. 'reasonable' had not been em- 
 Ill, and in every other case since ployed before the w^ord 'probabil- 
 where it has been copied. No other ity.' Does the use of this word 
 reason suggests itself, except that render it objectionable? We think 
 the opinions of this court are never not. 'Pi-obability is defined to be 
 read, or, if read, are never heeded, the state of being probable.' pain 
 ty the trial judges." v. State, 74 Ala. 39. 
 
 13— Secor v. State, 118 Wis. 621, "To say that a state of facts have 
 
 95 N. W. 942 (947). a probable existence ex vi termini 
 
 14 — Karr v. State, 106 Ala. 1, 17 implies that there is reason for 
 
 So. 328 (329), homicide case. the belief that they exist. If there 
 
 Liner v. State, 124 Ala. 1, 82 Am. is no reason for such belief, there
 
 1734 
 
 FORMS OF INSTRUCTIONS. 
 
 [§2698. 
 
 (e) The jury are instructed that if, from the evidence, there 
 is a probability of the innocence of defendants, you should acquit 
 them.i*^ 
 
 § 2698. Reasonable Doubt — May Arise from Evidence of Previous 
 Good Character. The court charges the jury that good character 
 itself may, in connection Avith all the evidence, generate a reasonable 
 doubt and entitle the defendant to an acquittal, even though without 
 such proof of good character you would convict.^'' 
 
 § 2699. Reasonable Doubt — ^Independent Circumstances Identify- 
 ing Defendant. You are instructed that, when independent facts 
 and circumstances are relied upon to identify the accused as the 
 person who committed the crime charged, each material, independ- 
 ent fact or circumstance necessary to complete such chain or series 
 of independent facts tending to establish his guilt should be estab- 
 lished to the same degree of certainty as to the main fact which 
 these independent circumstances, taken together, tend to establish. 
 That is to say, each essential, independent fact in the chain or 
 series of facts relied upon to establish the main fact must be estab- 
 
 is probability of their existence. In 
 order to find that there is a prob- 
 ability of the existence of a fact, a 
 reason for believing in the exist- 
 ence of such fact must be enter- 
 tained. The employment of the 
 word 'reasonable' does not and can 
 not affect the correctness of the 
 charge. It is but a statement of 
 what would have been implied 
 from the word 'probability' had it 
 been used alone. The charge 
 should have been given." 
 
 16— Bardin v. State, 143 Ala. 74, 
 38 So. 833. 
 
 Bones v. State, 117 Ala. 138, 23 
 So. 138 (139), holds that there was 
 error in refusing the following: 
 
 If there is a probability of the 
 defendant's innocence the jury 
 must acquit. 
 
 If the evidence in the case con- 
 vinces the jury that there is a 
 probability of the innocence of the 
 defendant, then your verdict should 
 he "Not guilty." 
 
 The court said that they "each 
 assert the same correct principle, 
 that if there was a probability of 
 defendant's innocence, the defend- 
 ant should be found not guilty. A 
 probability of defendant's inno- 
 cence is the equivalent of a rea- 
 sonable doubt, of guilt, which re- 
 quires his acquittal. Bain v. State, 
 74 Ala. 38; Croft v. State, 95 Ala. 
 3. 10 So. .517; Whitaker v. State, 106 
 Ala. 30, 17 So. 456." 
 
 But compare Stewart v. State, 
 
 133 Ala. 105, 31 So. 944 (945), where 
 the court said that the following 
 was a correct statement of the law 
 and should have been given: 
 
 The court charges the jury that 
 a reasonable doubt of defendant's 
 guilt is not the same as a probabil- 
 ity of his innocence. A reasonable 
 doubt of defendant's guilt may ex- 
 ist when the evidence fails to con- 
 vince the jury that there is a prob- 
 ability of defendant's innocence. 
 
 The court cited in support of the 
 instruction. Croft v. State, 95 Ala. 
 3, 10 So. 517. 
 
 See also Davis v. State, 131 Ala. 
 10, 31 So. 569 (571), citing Carroll v. 
 State, 130 Ala. 99, 30 So. 394, where 
 it was held error to refuse this 
 charge: 
 
 A reasonable doubt may exist, 
 though there is no probability of 
 defendant's innocence ' from the 
 testimony, and if the jury have not 
 abiding conviction to a inoral cer- 
 tainty of his guilt then they should 
 find him not guilty. 
 
 17— Bryant v. State, 116 Ala. 
 445, 23 So. 40 (41), approving this, 
 says that "it is a copy of a charge 
 approved in Newson v. State, 107 
 Ala. 133, 138, 18 So. 206. See also 
 Goldsmith's Case, 105 Ala. 9, 16 
 So. 933. 
 
 See also to same effect, Watkins 
 v. State, 133 Ala. 88, 32 So. 627 (628); 
 People V. Elliott, 163 N. Y. 11, 5? 
 N. E. 103 (104).
 
 § 2700.] CRIMINAL— PRESUMPTION. 1735 
 
 lished to a moral certainty, beyond a reasonable doubt, and to your 
 entire satisfaction, or you must acquit the defendant. ^^ 
 
 § 2700. Reasonable Doubt — Where Testimony Is Limited by Elec- 
 tion. The state has elected to ask for a conviction of the defendant 
 on the testimony of certain witnesses, and if the defendant is con- 
 victed by the jury it must be upon the testimony of those wit- 
 nesses, and on the particular count which the jury believes, beyond 
 a reasonable -doubt, that the evidence of such witnesses sustain.^^ 
 
 § 2701. Reasonable Doubt, to Acquit, Must Relate to Precise 
 Crime Charged. The jury are further instructed, that if the evi- 
 dence leaves a reasonable doult in the mind of the jury whether 
 the defendant is guilty of the precise crime with which he is charged 
 in the indictment, then the jury should find the defendant not 
 guilty; although the evidence may show conduct of no less turpitude 
 than the crime charged, that is not enough to authorize a conviction 
 in this trial.-'* 
 
 § 2702. Reasonable Doubt — Guilty Only as to Count Proven. 
 You are instructed that the burden rests upon the state to prove 
 every material allegation in each count in the information beyond 
 a reasonable doubt, and, unless the allegations are so proven, you 
 cannot find the defendant guilty upon such count as is not so 
 proven; but if you should find that it was not so proven upon the 
 first count, but was so proven upon the second count, in that case 
 your verdict would be ''Guilty upon the second count of the in- 
 formation."-^ 
 
 § 2703. Only Allegations of Indictment Need Be Proven beyond 
 Reasonable Doubt. It is not neeessaiy that the jury should believe 
 that every material fact or circumstance in evidence before them 
 has been proved beyond a reasonable doubt, but that it is sufficient 
 for the jui-y to believe from the evidence in the case that every ma- 
 terial allegation in the indictment or either count thereof in manner 
 and form as therein stated and charged has been proven beyond a 
 reasonable doubt.-- 
 
 § 2704. Reasonable Doubt as to Which of Several Killed De- 
 ceased. If you find from the testimony, beyond a reasonable doubt, 
 
 18— People v. Olsen, 1 Cal. App. terial allegations of the indict- 
 
 17, 81 Pac. 676 (679), homicide case, ment, but has no application to 
 
 19 — State v. Green, 69 Kan. 865, 77 these mere evidentiary facts which 
 
 Pac. 95. the testimony of the witnesses 
 
 20 — Stuart v. People, 73 111. 20. may tend to establish. In all cases 
 
 2i_Dunn v. State, 58 Neb. 807, 79 where the evidence is circumstan- 
 
 N. W. 719 (720), assault with intent tial, its primary tendency is to 
 
 to rape. prove certain acts which are mere- 
 
 22 — J.imison v. People, 145 111. 357 ly evidentiary in their character, 
 
 (380), 34 N. E. 486. and from which the ultimate facts 
 
 "We are able to perceive no sub- to be proved fall as conclusion 
 
 stantial objection to this instruc- either in fact or at law. It is only 
 
 tion. It merely holds that the rule the latter which must be proved 
 
 requiring proof beyond a reason- beyond a reasonable doubt." 
 able doubt applies only to the ma-
 
 1736 FORMS OF INSTRUCTIONS. [§ 2705. 
 
 that W. has been killed, and also find that he was killed by some 
 one or more of several persons, but there is a reasonable doubt as 
 to which person committed the offense, that reasonable doubt must 
 prevail and result in the acquittal of the defendant, unless you find 
 that the defendant was present aiding, abetting or assisting in the 
 commission of the offense.^^ 
 
 § 2705. Doubting as a Juror What One Believes as a Man. (a) 
 A doubt, to justify an acquittal, must be reasonable, and it must 
 arise from a candid and impartial investigation of all of the evi- 
 dence in the case. A doubt produced by an undue sensibility in the 
 mind of any juror, in view of the consequences of his verdict, is not 
 a reasonable doubt. And the juror is not allowed to create sources 
 or materials of doubt by resorting to trivial or fanciful suppositions 
 and remote conjectures as to possible states of facts differing from 
 those established by the evidence. Your oath imposes upon you no 
 obligation to doubt where no doubt would exist if no oath had been 
 administered. If, after a careful and impartial examination and 
 consideration of all of the evidence in the case, you can say that 
 you feel an abiding conviction of the guilt of the defendant, and 
 : are fully satisfied to a moral certainty of the truth of the charges 
 made against him, then the jury are satisfied beyond a reasonable 
 doubt.2* 
 
 (b) You are not at liberty to disbelieve as jurors, if from all 
 the evidence you believe as men. Your oath imposes on you no ob- 
 ligation to doubt, where no doubt would exist if no oath had been 
 administered.^^ 
 
 23— Benton v. State, 78 Ark. 284, of not guilty, say that they be- 
 
 94 S. W. 693. lieved the man w^as guilty, but 
 
 24 — In Barney v. State, 49 Neb. that the commonwealth had not 
 
 515, 68 N. W. 636 (639), the above proved it. This is a great error, 
 
 was approved: for if you believe a man guilty, 
 
 The court said: "The instruc- solely from the evidence, the com- 
 tion complained of was, in sub- monwealth has proved it.' This is 
 stance, that given in the so-called as good law as it is good sense, 
 'Anarchist Cases' (Spies v. People, and there was no error in direct- 
 122 111. 1, 12 N. E. 865, and 17 N. E. ing the jury that in w^eighing the 
 898, 3 Am. St. 320, 5 Am. Cr. Rep. evidence they should not under- 
 637, 6 Am. Cr. Rep. 570, and ap- take, by virtue of their oaths, to 
 proved by the supreme court of pursue a course of reasoning dif- 
 Illinois. The portion complained fering from that which their expe- 
 of was merely a paraphrase of the rience as men had taught them, to 
 common expression that a jury be safe and trustworthy." 
 cannot doubt as jurymen while they 25 — Bartley v. State, 53 Neb. 30, 
 believe as men. With regard to 73 N. W. 744 (759), the supreme 
 this expression, the supreme court court said: "An expression almost 
 of Pennsylvania has said that 'it in the foregoing language was ap- 
 is the familiar language found in proved in the celebrated case of 
 the text-books and decisions which Spies v. People, 122 III. 1, 12 N. E. 
 treat of the subject.' Nevling v. 865, and 17 N. E. 898, 3 Am. St. 320. 
 Com., 98 Pa. St. 332. As said by 5 Am. Cr. Rep. 637, 6 Am. Cr. Rep. 
 the trial judge in the case last 570, and Nevling v. Com. 98 Pa. St. 
 cited: 'I have heard men who have 322, and by this court in at least 
 .sat on juries in criminal cases, two cases, Willis v. State. 43 Neb. 
 after they had rriirlorcd a verdict 102, 61 N. W. 254; and Davis v.
 
 § 2706.] CRIMINAI^PRESUMPTION. 1737 
 
 §2706. If Reasonable Doubt of Degree of Offense, Verdict 
 Should Be Guilty of the Less Offense, (a) If the jury believe from 
 the evidence beyond a reasonable doubt that the defendant is guilty, 
 but have a reasonable doubt as to the degree of his offense, then 
 they should find him guilty of that offense highest in degree of 
 which they may have no reasonable doubt.^® 
 
 (b) The court further instructs the juiy that if they believe 
 from the evidence, to the exclusion of a reasonable doubt, that the 
 defendant is proven guilty, but entertain a reasonable doubt as to 
 whether he is proven guilty as to the offense defined in the first 
 instruction, or the one in the second instruction, they should find 
 him guilty of the less offense, and should fix his punishment for 
 the less offense.-^ 
 
 § 2707. If Reasonable Doubt Whether Murder or Manslaughter, 
 Verdict Should Be Manslaughter — First or Second Degree, (a) 
 The court instructs the jury that, if they have a reasonable doubt 
 as to whether the defendant has been proven guilty of manslaughter 
 or murder, they shall give him the benefit of that doubt, and find 
 him guilty of manslaughter.-^ 
 
 (b) Even if you should find the malicious purpose, and absence 
 of excuse, cause or provocation necessary to constitute murder in 
 the first degree, but should entertain a reasonable doubt as to 
 whether there was any premeditated design to kill, then you should 
 find the defendant guilty of murder in the second degree.-^ 
 
 (c) If the juiy have a reasonable doubt as to whether the kill- 
 ing was done deliberately, or as to whether it was done premedi- 
 tatedly, then you cannot find the defendant guilty of muixler in the 
 first degree; and, if they have a reasonable doubt as to whether the 
 killing was done in malice, then you cannot find the defendant 
 guilty of murder in either degree, but only of manslaughter at the 
 most; and if, after considering all the evidence, the jury have a 
 reasonable doubt as to the defendant's guilt of manslaughter, aris- 
 ing out of any part of the evidence, then you should find the de- 
 fendant not guilty of any offense.^" 
 
 (d) If the jury have a reasonable doubt, as to whether the 
 killing was done deliberately, or as to whether it was done premed- 
 itatedly, then jou cannot find the defendant guilty of murder in 
 
 State, 51 Neb. 301, 70 N. W. 984. Rj^an v. State, 115 Wis. 4S8, 92 N. 
 
 With those decisions we are con- W. 271 (274). 
 
 tent. A discussion of the subject 27 — Connor v. Commonwealth, 
 
 anew would be profitless." supra. 
 
 Compare Siberrv v. State, 133 28 — Hibler v. Commonwealth, 25 
 
 Ind. 677, 33 N. E. 681 (683), holding Ky. Law 277, 74 S. W. 1079, 13 Am. 
 
 that such an instruction in effect Cr. Rep. 416. 
 
 relieves the jury from the oblig-a- 29— State v. Vance, 29 Wash. 435, 
 
 tion of their oaths. 70 Pac. 34 (45). 
 
 26— Conner v. Commonwealth, 26 30— Stonekine: v. State, 118 Ala. 
 
 Ky. 398. 81 S. W. 259 (260). For an 68, 24 So. 47 (48). 
 Instruction to the same effect see
 
 1738 FORMS OF INSTRUCTIONS. [§ 2708. 
 
 either degree, but only of manslaughter at most; and if, after con- 
 sidering all the evidence, the jury have a reasonable doubt as to 
 defendant's guilt of manslaughter, arising out of all the evidence, 
 then you should find the defendant not guilty of any offense.^^i 
 
 (e) If the jury have a reasonable doubt of defendant being 
 guilty of murder in the first degree, you should acquit him of that 
 oifense, and next proceed to inquire whether he is guilty of murder 
 in the second degree.^^ 
 
 (f) If you have a reasonable doubt of the defendant having 
 been proven guilty, you will find him not guilty. Or if you shall 
 believe from the evidence, beyond a reasonable doubt, that the de- 
 fendant has been proven guilty, but have a reasonable doubt whether 
 his crime be willful murder or voluntary manslaughter, you should 
 find him guilty of voluntaiy manslaughter.^^ 
 
 § 2708. Reasonable Doubt — Every Reasonable Hypothesis of In- 
 nocence Excluded, (a) The court charges the jury, if the jury are 
 not satisfied beyond all reasonable doubt, to a moral certainty, and 
 to the exclusion of every other reasonable hypothesis but that of 
 defendant's guilt, you should find him not guilty, and it is not 
 necessaiy to raise a reasonable doubt, that the jury should find 
 from all the evidence a probability of defendant's innocence in the 
 testimony, but such a doubt may arise even when there is no prob- 
 ability of his innocence in the testimony; and if the jury have not 
 an abiding conviction to a moral certainty of his guilt, it is the 
 duty of the jury to find the defendant not guilty.^* 
 
 (b) The court charged the jury that before the jury can convict 
 the defendant they must be satisfied to a moral certainty not only 
 that the proof is consistent with the defendant's guilt, but that it 
 
 31— Adams v. State, 133 Ala. 166, 33— Wilson v. Commonwealth, 24 
 
 31 So. 851 (854). Ky. 185, 68 S. W. 121 (122). 
 
 "This charge was held g-ood in 34— Rogers v. State, 117 Ala. 192, 
 
 Compton v. State, 110 Ala. 34, 20 23 So. 82; Fuller v. State, 117 Ala. 
 
 So. 119, and in Stoneking v. State, 200, 23 So. 73 (74), where this was 
 
 118 Ala. 70, 24 So. 47; the only dif- approved: 
 
 ference between the charge here Before the jury can convict the 
 and the charge in those cases being defendant, they must be satisfied 
 that in the latter the language used to a moral certainty, not only that 
 is: 'If the jury has a reasonable the proof is consistent with the de- 
 doubt of defendant's guilt of man- fendant's guilt, but that it is 
 slaughter arising out of any part wholly inconsistent with every 
 of the evidence,' while the Ian- other rational conclusion; and, un- 
 guage used in the present charge less the jury are so convinced by 
 is 'arising out of all the evidence.' the evidence of defendant's guilt 
 The change, instead of detracting that the jury would each venture 
 from the charge tended to make it to act upon that decision in mat- 
 a more perfect one and the court ters of the highest concern and 
 erred in its refusal." importance to his own interest, 
 
 For an instruction to the same then they must find the defendant 
 
 effect see Commonwealth v. Mc- not guilty. 
 
 Gowan, 189 Pa. St. 641, 42 Atl, 365, Compare Collins v. State, 138 Ala. 
 
 69 Am. St. 836. 57, 34 So. 993 (994); Thayer v. State, 
 
 32— Smith v. State, — Tex. Or. 138 Ala. 39, 35 So. 406 (408); Bohl- 
 
 App. — , 78 S. W. 694 (695). man v. State, 135 Ala. 45, 33 So. 44.
 
 2709.] CRIMINAL— PRESUMPTION. 1739 
 
 is wholly inconsistent with every other rational conclusion and unless 
 the jury are so convinced by the evidence of defendant's guilt that 
 they would venture fo act upon that decision in matters of the 
 highest concern and importance to his own interest, then they must 
 find the defendant not guilty.^^ 
 
 (c) The court instructs the jury that circumstantial evidence 
 to wai-rant a conviction must exclude eveiy reasonable hypothesis 
 except the imjilying defendant's guilt, and that incriminating cir- 
 cumstances not proven beyond a reasonable doubt were not entitled 
 to any weight or influence. ^"^ 
 
 (d) The law presumes the accused to be innocent until he is 
 proved guilty beyond a reasonable doubt, and if there is upon the 
 minds of the juiy any reasonable doubt of the guilt of the accused, 
 the law makes it their duty to acquit him. Mere suspicion or prob- 
 ability of his guilt however strong, is not sufficient to convict, nor 
 is it sufficient if the greater weight or preponderance of evidence 
 supports the charge in the indictment. But to warrant his convic- 
 tion his guilt must be proved so clearly, and the evidence thereof 
 must be so strong, as to exclude every reasonable hypothesis of his 
 innocence.^'^ 
 
 § 2709. Duty of Jury to Adopt Hypothesis of Defendant's Inno- 
 cence. In considering the evidence if you can reasonably account 
 for any fact in this ease upon a theory or hypothesis which will 
 admit of the defendant's innocence, it is your duty under the law 
 to do so and if j'ou have a reasonable doubt of his guilt you should 
 acquit him.^® 
 
 35— Brown v. State, 108 Ala. 18, Sherrill v. State, 138 Ala. 3, 35 
 
 18 So. 811 (813). So. 129 (130), approves the follow- 
 
 "This instruction requested by lug: 
 
 the defendant was extracted liter- Gentlemen of the jury, you should 
 
 ally from an instruction which was acquit the defendant unless, the 
 
 declared at the last term to assert evidence excludes every reasonable 
 
 a correct legal proposition. Burton supposition but that of his guilt. 
 
 v. State, 107 Ala. 108, 18 So. 284. The court said: "This has hereto- 
 
 When analyzed and Interpreted, fore been approved as a correct 
 
 the instruction means no more than instruction which should be given, 
 
 that the guilt of the accused must Bones v. State, 117 Ala. 138, 23 So. 
 
 be fully proved, — as it is usually 138. In Baldwin v. State, 111 Ala. 
 
 expressed, proved beyond a reason- 15, 20 So. 528, and in Horn v. State, 
 
 able doubt,— and that this degree 102 Ala. 145, 15 So. 278, charges 
 
 of proof is not reached unless all otherwise similar w-ere condemned 
 
 reasonable supposition of inno- solely on the ground that in the 
 
 cence is excluded. When, in its charges, the word 'reasonable' be- 
 
 present form, the instruction may fore the word 'supposition' was 
 
 be given, the court, ex mere motu, omitted. Yarbrough v. State, 103 
 
 if apprehensive that it may unduly Ala. 45, 56, 16 So. 758, 761." 
 
 influence the jury, or that it may Bones v. State, 117 Ala. 138, 23 
 
 mislead them, has the power, and So. 138 (139), holds it was error to 
 
 it may become a duty, to explain refuse the following: 
 
 its true interpretation and mean- I charge you to acquit unless the 
 
 ing. McKleroy v. State, 77 Ala. 95." evidence excludes every reason- 
 
 36— O'Brien v. State, 69 Neb. 691, able supposition but that of de- 
 
 96 N. W. 649 (651). fendant's guilt. 
 
 37— Lronglev v. Commonwealth, 99 38— People v. Clark, 145 Cal. 727, 
 
 Va. 807, 37 S. E. 339 (340). 79 Pac. 434.
 
 1740 FORMS OF INSTRUCTIONS. [§ 2710. 
 
 § 2710. Proof Must Be Inconsistent with Any Reasonable Hy- 
 pothesis of Defendant's Innocence, (a) To warrant a conviction, 
 the state is required to prove beyond a reasonable doubt that the 
 
 defendant feloniously killed his wife, , at the time and place, 
 
 and in the manner and form as alleged in the indictment. It is not 
 
 sufficient if the state had enveloped the death of in mystery 
 
 that is incapable of exj^lanation without inferring the defendant's 
 guilt. To convict, the state is required to exi:)lain all mystery, suf- 
 ficiently to remove all reasonable doubt, and establish facts that 
 are susceptible of explanation upon no reasonable hypothesis con- 
 sistent with the defendant's innocence, and that point to his guilt 
 beyond any other reasonable solution and beyond all reasonable 
 doubt.^^ 
 
 (b) The court instructs the jury that the guilt of the accused 
 is not to be inferred because the facts proven are consistent with 
 his guilt, but they must be inconsistent with his innocence.*'' 
 
 (c) The court instructs the jury that, to justify a conviction, no 
 mere weight of evidence is sufficient, unless it excludes all reason- 
 able doubt (not unreasonable) as to the guilt of any of the defend- 
 ants. The proof of guilt must be inconsistent with any other ra- 
 tional supposition. *i 
 
 § 2711. Jury Must Acquit if Evidence Consistent with Defend- 
 ant's Innocence, (a) The jury must find the defendant not guilty, 
 if the evidence, upon a reasonable hypothesis, is consistent with his 
 innocence. 
 
 (b) Before the jury can convict the defendant, every member of 
 the jury must be satisfied beyond a reasonable doubt of the guilt 
 of the defendant. 
 
 (c) The burden is upon the state, and it is the duty of the state, 
 to show, beyond all reasonable doubt, and to the exclusion of every 
 other hypothesis, every circumstance necessary to show that the 
 defendant is guilty; and unless the state has done that in this 
 ease, it is your duty, gentlemen of the jury, to render a verdict 
 of not guilty. 
 
 (d) The only foundation of guilty in this case is that the entire 
 jury shall believe from the evidence, beyond a reasonable doubt, 
 and to a moral certainty, that the defendant is guilty as charged 
 in the indictment, to the exclusion of every probability of his inno- 
 cence, and every reasonable doubt of his guilt; and if the prosecution 
 has failed to furnish such measure of proof, and to so impress the 
 minds of the jury of his guilt, they should find him not guilty. 
 
 (e) Before the jury can convict the defendant, they must be 
 
 39— Hinshaw v. State, 147 Ind. Va. 807, 37 S. E. 339 (341), homicide 
 
 334, 47 N. E. 157 (173), citing Tro.s?- case. 
 
 don V. State, 133 Ind. 1, 32 N. E. 41— Mnrrhv v. State, 86 Wis. 626, 
 
 725. 57 N. W. 361 (363). 
 
 40 — Long-ley v. Commonwealth, 99
 
 § 2712.] CRIMINAL— PRESUMPTION. 1741 
 
 satisfied, to a moral certainty, not only that the proof is consistent 
 with the guilt of the defendant, but that it is wholly inconsistent 
 with every other rational conclusion; and, unless the jury are so 
 convinced by the evidence of the defendant's guilt that they would 
 each venture to act upon that decision in matters of highest con- 
 cern and importance to his own interest, they must find the defend- 
 ant not guilty.-*^ 
 
 § 2712. Proof of Every Fact Necessary to Establish Guilt Beyond 
 Reasonable Doubt, and Inconsistent with Every Other Reasonable 
 Hypothesis, The court further instructs the jury that to wairant 
 the conviction of the defendant, each fact necessary to establish his 
 guilt, must be proven by competent evidence, beyond a reasonable 
 doubt, and all the facts and circumstances proven should not only 
 be consistent with the guilt of the defendant, but inconsistent with 
 every other reasonable hypothesis or conclusion than that of guilt, 
 to produce in your minds a reasonable and moral certainty that the 
 defendant committed the offense as charged in the indictment.*-^ 
 
 §2713. Reasonable Doubt — Defense of Alibi Established By. (a) 
 One defense in this case is what is known in law as an ''alibi"; 
 that is, that the defendants were not present at the time and place 
 of the commission of the offense charged in the indictment, if any 
 such offense has been committed, but that they were at that time 
 at another and different place. As to this defense, you are instructed 
 that it is not necessaiy for defendants to prove an alibi to your 
 satisfaction, beyond a reasonable doubt, nor by a preponderance of 
 the testimony, but if, after a fair and full consideration of all the 
 facts and circumstances in evidence, you entertain a reasonable 
 doubt as to whether or not the defendants were present at the time 
 and place of the commission of the offense charged in the indict- 
 ment, if such offense has been committed by any one, it will be your 
 duty to give the defendants the benefit of such doubt and acquit 
 them.** 
 
 (b) The jury are instructed that if you should entertain a rea- 
 sonable doubt of the defendant's guilt, he should be acquitted, al- 
 though the jury may not be able to find that the alibi is fully 
 proven.*^ 
 
 § 2714. Reasonable Doubt as to Sanity Acquits, (a) Was the 
 defendant H, at the time he committed the homicide charged labor- 
 ing under an insane delusion produced by an impaired brain, and did 
 it go to the extent for the time being of controlling his will power, 
 
 42— "Abstractly considered, the 43— Parsons v. People, 218 Til. 386 
 
 above charges were sound exposi- (396, 397, 398), 75 N. E. 993. 
 
 tion of law. Thev were .applicable 44— State v. Hale et al., 156 Mo. 
 
 to the case as prescribed by the 102, 56 S. W. 881 (882). 
 
 evidence. They should have been 45— Territory v. Garcia, 12 N. M. 
 
 given." Brown v. State, 118 Ala. 87, 75 Pac. 34 (35). 
 Ill, 23 So. 81 (82).
 
 1742 FORMS OF INSTRUCTIONS. [§ 2715. 
 
 reflection, reason and judgment, and was the homicide committed 
 by I'eason of such insane delusion ? If the proof has shown beyond 
 a reasonable doubt that such was not the case, you will convict the 
 defendant, but if there is a reasonable doubt as to such mental con- 
 dition, you will resolve such doubt in favor of the defendant and 
 acquit him. 
 
 (b) Did H. commit the homicide not laboring under an insane 
 delusion, but believing that by teachings of the Bible he had right 
 to kill the party he did kill because he thought she was a witch, 
 and at the time of such killing he performed the same solely upon 
 such belief, and was not laboring under an insane delusion? If 
 you believe this state of case existed, and so believe it beyond a 
 reasonable doubt, you will find the defendant guilty as charged in 
 this indictment, but if you have a reasonable doubt in regard there- 
 to, you will acquit the defendant.*^ 
 
 (c) The jury are instructed that to warrant a conviction in this 
 case, it is incumbent upon the people to establish by evidence to 
 the satisfaction of the jury, beyond a reasonable doubt, the exist- 
 ence of every element necessaiy to constitute the crime charged ; 
 and if, after a careful and impartial examination of the evidence 
 in the case bearing upon the question of sanity or insanity, the jury 
 entertain any reasonable doubt of the guilt of the defendant at the 
 time of the alleged offense, they should give the defendant the bene- 
 fit of that doubt and acquit him.*'' 
 
 § 2715, Reasonable Doubt that Charge Was Caused "by Hallu- 
 cinations. The court instructs the jury that if the evidence in this 
 ease raises a reasonable doubt in their minds that the charge made 
 by Miss J. was superinduced by chloroform and ether taken by her, 
 or by hysteria and nervousness, or by all or lany of these, then the 
 jury should acquit the defendant.*^ 
 
 § 2716. Reasonable Doubt as to Malice. The court charges the 
 jury that if from all the evidence you have a reasonable doubt 
 
 46— Hotema v. U. S., 186 U. S. 413 ticular fact in the case.' See also 
 
 (419), 22 S. Ct. 895. Crews v. People, 120 111. 317, 11 
 
 47— Horiiish v. People, 142 111. 620 N. E. 404; Leigh v. People, 113 111. 
 
 (924), 32 N. E. 677. 372, and Davis v. People, 114 111. 
 
 The court said: "This is quite 86, 29 N. E. 192." 
 
 in harmony with the rule laid 48 — State v. Perry, 41 W. Va. 641, 
 
 down in repeated decisions of this 24 S. E. 634 (637). The charge was 
 
 court. Thus in Mullins v. People, rape. 
 
 110 111. 42, where a defendant on "This is, in effect, equivalent to 
 
 trial for robbery attempted to saying: 'If the jury believe from 
 
 prove an alibi, we said: 'Nor is it the evidence that it was possible 
 
 proper for the court to designate that the charge made by Miss J. 
 
 any particular branch of the case, against the prisoner was caused 
 
 and tell the jury that unless it is by hallucination resulting from 
 
 proved beyond a reasonable doubt, the use of chloroform and ether, 
 
 they should acquit. The reasonable and such possibility raised in the 
 
 doubt the jury is permitted to en- minds of the jury only a reason- 
 
 tertain must be as to the whole of able doubt as to the guilt of the 
 
 the evidence, and not as to a par- prisoner, they should acquit him.' "
 
 §2717.] 
 
 CRIMINAL— PRESUMPTION. 
 
 1743 
 
 as to whether or not defendant fired the fatal shot of malice or 
 only in the heat of passion, suddenly aroused, under sufficient 
 provocation, then the jury cannot convict the defendant of murder 
 in the second degree.'*^ 
 
 § 2717. Reasonaljle Doubt — Self -Defense — Instruction May As- 
 sume Admitted Facts, (a) You are instructed that, if you are not 
 satisfied bj' the evidence beyond a reasonable doubt that the de- 
 fendant was not acting in self-defense when he killed P., you should 
 acquit him.^° 
 
 (b) Of course, if what he (the defendant) did there, was justi- 
 fiable, by way of self-defense, under the rule of law as I have 
 given it to you, then your verdict should be a verdict of not guilty; 
 and if you have a reasonable doubt upon that subject, you should 
 give it to the defendant — and that applies not only to that partic- 
 ular feature of the case, but to every other feature of the case, 
 as well as to the question of the degree of crime, if one has been 
 committed. ^^ 
 
 (c) The jury are instructed, that if you believe, from the evi- 
 dence in the case, that there is a reasonable doubt as to whether 
 the prisoner, at the time of the shooting, was under reasonable ap- 
 I^rehension that the prosecuting witness intended to inflict upon him 
 great bodily harm, and that he fired the shot in self-defense, then 
 the jury must acquit.^- 
 
 49— Naugher v. State, 116 Ala. 
 463, 23 So. 26 (27). 
 
 50— State v. Mitchell, 130 la. 697, 
 107 N. W. 804 (806). 
 
 "The criticism is that the court 
 assumed it to be an established 
 fact that the defendant killed P. 
 It was an established fact, estab- 
 lished by the defendant's own 
 word, and hence it was not error 
 so to treat it. State v. Bone, 114 
 Iowa 537, 87 N. W. 507, 55 L. R. A. 
 378. 
 
 51— People V. Bog^iano, 179 N. Y. 
 267, 72 N. E. 102, homicide case. 
 
 52— Lawlor v. People, 74 111. 230. 
 
 In Carleton v. State, 43 Neb. 373, 
 61 N. W. 699 (710), the following in- 
 struction on self-defense, omitting 
 to state that the state must prove 
 the case beyond a reasonable 
 doubt, was held cured by the fre- 
 quent reference to it in other in- 
 structions: 
 
 The jury are instructed that the 
 law of self-defense does not imply 
 the right of attack, nor will it per- 
 mit of acts done in retaliation or 
 for revenge. Therefore, if the jury 
 believe, from the evidence, that 
 the defendant sought, brought on 
 or voluntarily entered into a dif- 
 
 ficulty with the deceased, A. B., 
 for the purpose of wreaking ven- 
 geance upon him, or to accomplish 
 some unlawful purpose, or if the 
 jury shall find and believe from 
 the evidence that he killed the de- 
 ceased at a time when he had, be- 
 cause of the acts of the deceased, 
 no reasonable apprehension of im- 
 mediate and impending injury to 
 himself, and did so to accomplish 
 some unlawful purpose, or did it 
 from a spirit of retaliation and re- 
 venge, for the purpose of punish- 
 ing the deceased for past-threat- 
 ened injuries done to him, the de- 
 fendant, then the defendant cannot 
 avail himself of the law of self- 
 defense. Before a person can 
 justify taking the life of a human 
 being on the ground of self-de- 
 fense, he must, when attacked, em- 
 ploy all reasonable means within 
 his power, consistent with his own 
 safety, to avoid the danger, and 
 avert the necessity for the kill- 
 ing. 
 
 The supreme court said: 
 
 "In this case the jury was over 
 and over again impressed with the 
 necessity of being satisfied beyond 
 a reasonable doubt of the defend-
 
 1744 FORMS OF INSTRUCTIONS. [§ 2718. 
 
 § 2718. Self-Defense — Defendant Need Only Create Reasonable 
 Doubt, (a) If, therefore, you believe from the evidence that the 
 said T. intentionally shot and killed the said B., but further believe 
 that at the time of so doing the deceased was in the act of making 
 or about to make an attack upon him, which from the manner and 
 character of it, together with the weapon used or attempted to be 
 used, if any, caused the defendant to have a reasonable expectation 
 or fear of death or serious bodily injury at the hands of deceased, 
 and acting under such reasonable expectation or fear of death or 
 serious bodily injury he intentionally shot and killed the said B., 
 then you will acquit him, or, if there is in your minds a reasonable 
 doubt thereof, you will acquit him, and so say by your verdict.'^^ 
 
 (b) When the taking of life is sought to be justified on the ground 
 of self-defense, it is not incumbent uj^on the accused to satisfy the 
 jury that the killing was justifiable, but, if the evidence on that 
 question is sufficient to raise a reasonable doubt in the minds of 
 the jury as to whether the defendant was justifiable, then the de- 
 fendant is entitled to an acquittal.^* 
 
 (c) If you, or either of you, have a reasonable doubt as to 
 whether the defendant acted in self-defense when he fired the shots, 
 he should not be convicted. ^^ 
 
 § 2719, Reasonable Doubt — Conspiracy. You are instructed that 
 if the evidence in this case does not satisfy your minds beyond all 
 reasonable doubt that the defendant, M., was a party to a con- 
 spiracy to murder the deceased, R., your verdict must be that the 
 defendant is not guilty. And you are further instructed that if 
 the defendant was merely present to witness the murder, if any, or 
 to witness a beating or a fight, and did nothing to aid and abet the 
 person or persons committing the act, then your verdict must be 
 that the defendant is not guilty. But it is exclusively for the jury 
 to determine whether the defendant was present, and, if so, for what 
 purpose, if any, and to what extent, if any, he was connected with 
 
 ant's guilt, and in at least five trict v. Foster, 31 Neb. 501, 48 N. 
 
 places they were expressly or by W. 267. But these were all cases 
 
 plain implication told that the where the instruction complained 
 
 state must make out every essen- of misstated the law. On the other 
 
 tial feature beyond a reasonable hand, where an instruction is 
 
 doubt. We do not think that, after simply incomplete, so that, taken 
 
 having- once impressed this fact by itself, it might operate to mis- 
 
 upon the jury, it was necessary in lead, another instruction, comple- 
 
 every instruction to repeat it. As mentary thereto, and stating the 
 
 opposed to this view, counsel cites proper limitations and conditions, 
 
 us to certain cases holding that, if cures the error which might other- 
 
 the court misstates the law in one wise exist in the first instruction." 
 
 instruction, the error is not cured 53 — Teel v. State, — Tex. Cr. App. 
 
 by a correct statement in another. — , 73 S. W. 11 (12). 
 
 Among such cases are Wasson v. 54 — Harris v. State, 155 Ind. 265, 
 
 Palmer, 13 Neb. 376, 14 N. W. 171; 58 N. E. 75 (76). 
 
 Ballard v. State, 19 Neb. 609, 28 N. 55— Whitney v. State, 154 Ind. 573, 
 
 W. 271; Fitzgerald v. Meyer, 25 57 N. E. 398 (400). 
 Neb. 77, 41 N. W. 123; School Dis-
 
 § 2720.] CRIMINAI^PRESUMPTION. 1745 
 
 the person or persons, if any, committing the act, if any was com- 
 mitted/'** 
 
 § 2720. Reasonable Doubt — Homicide, (a) If you have any rea- 
 sonable doubts upon any facts which are necessary to convict the 
 defendant, he is entitled to the benefit of that doubt. If you have 
 any reasonable doubt of his guilt, he is entitled to be acquitted. If 
 you have any reasonable doubt of his guilt of murder in the first de- 
 gree, you cannot convict him on that count. If you have any reasonable 
 doubt of his guilt of murder in the second degree, you cannot con- 
 vict him on that count; or if you have any reasonable doubt as to 
 manslaughter in either degree, you cannot convict him of that, and 
 he must be acquitted. You must understand what a reasonable 
 doubt is. It is not a mere guess or surmise that the man may not 
 be guilty. It is such a doubt as a reasonable man might entertain 
 after a fair review and consideration of the evidence, — a doubt for 
 which some good reason arising from the evidence can be given. 
 When you find such a doubt as that in a case, it is your duty to give 
 the prisoner the fullest and amplest benefit of it.^'^ 
 
 (b) You are instructed that, if X. shot and killed deceased, and 
 if you further find that defendant, Y., though present at the time 
 and place of such killing, did not participate or aid in such killing, 
 or if you have a reasonable doubt as to whether or not defend- 
 ant, X., participated or aided in such killing, then and in that event 
 you will acquit defendant; and this even though you may further 
 find from the evidence that such killing upon the part of said X. 
 was done in such manner and under such circumstances as to render 
 the said X. guilty of either murder or manslaughter.^^ 
 
 (c) If the jury have a reasonable doubt growing out of the evi- 
 dence as to whether the killing was done deliberately, or as to 
 whether it w^as done premeditatedly, then they cannot find the de- 
 fendant guilty of murder in the first degree; and if they have reason- 
 able doubt growing out of the evidence as to whether the killing 
 was done out of malice, then they cannot find the defend- 
 ant guilty of murder in either degree, but only of manslaughter at 
 the most; and if, after considering all the evidence the jury have 
 a reasonable doubt as to the defendant's guilt of manslaughter 
 arising out of any part of the evidence, then they should find the 
 defendant not guilty.^^ 
 
 56 — People v. Moran, 144 Cal. 48, wise, the attention of the court 
 
 77 Pac. 777 (781). should have been directed to it." 
 
 57— People v. Guidici, 100 N. T. 58— Monroe v. State — Tex. Cr. 
 
 503. 3 N. E. 493 (495). App. — , 81 S. W. 726 (727). 
 
 The exception to this charge was 59 — Hunt v. State, 135 Ala. 1, 33 
 
 general; no error was specifically So. 329 (331). 
 
 pointed out. Of this, the court said: "Chnrge 
 
 The court said: "We find in the (2) refused to defendant is copied 
 
 language of the judge nothing to from Compton v. State, 110 Ala. 24, 
 
 mislead or perplex a juror; but if 20 So. 119, where it was held to be 
 
 counsel at the trial thought other- a correct charge; and this ruling 
 
 110
 
 1746 
 
 FORMS OF INSTRUCTIONS. 
 
 [§ 2721. 
 
 § 2721. Reasonable Doubt — Larceny — Husband and "Wife. The 
 
 government is bound to prove beyond any reasonable doubt all the 
 elements that are necessary to be proved in order to make out the 
 guilt of the defendant upon each of these counts. The larceny of 
 the property and the liability of the defendant if she is a married 
 woman, and if with her husband at the time of the larceny, if there 
 was any, under the first count — the government has to prove that 
 beyond a reasonable doubt. It is for you to say whether the evidence 
 satisfies you beyond a reasonable doubt of the guilt of the defendant 
 under the rules of law as I have stated them to you.*^" 
 
 § 2722. Reasonable Doubt — Slander. The court instructs the jury 
 that if they believe from the evidence that the statements made by 
 defendant concerning X., if any were made, were true, or if they 
 have a reasonable doubt as to whether or not statements were true, 
 they should acquit.^^ \ 
 
 has been reaffirmed in Stoneking v. 
 State, 118 Ala. 70, 24 So. 47; and 
 Adams v. State, 133 Ala. 166, 31 So. 
 851." 
 
 In State v. Elsham, 70 Iowa 531, 
 31 N. W. 66 (68), and in State v. 
 Pierce, 65 Iowa 75, 21 N. W. 195, 
 the following was held unobjec- 
 tionable though parts of it stand- 
 ing alone might be criticised: 
 
 If there is a reasonable doubt of 
 the defendant being proven guilty, 
 he must be acquitted. In criminal 
 cases full and satisfactory proof of 
 guilt is required. No mere weight 
 of evidence will warrant a convic- 
 tion, unless it be so strong and 
 satisfactory as to remove from 
 your minds all doubt of the guilt 
 of the accused. In considering this 
 case, you are not to go beyond the 
 evidence to hunt for doubts. Nor 
 should you entertain such doubts 
 as are merely chimerical, or are 
 based upon groundless conjecture. 
 A doubt, to justify an acquittal, 
 must be reasonable, and arise from 
 a candid and impartial consider- 
 ation of all the evidence in the 
 case, and then it must be such a 
 doubt as would cause a reasonable, 
 prudent and considerate man to 
 hesitate and pause before acting 
 in the grave and more important 
 affairs of life. If, after a careful 
 and impartial consideration of all 
 the evidence in the" case, you can 
 sny and feel that you have a firm 
 and abiding conviction of the guilt 
 of the defendant, and are fully 
 
 satisfied of fhe truth of the charge 
 to a moral certainty, then you are 
 satisfied beyond a reasonable' 
 doubt. 
 
 Substantially the same thing 
 passed muster in the homicide case 
 of Painter v. People, 147 111. 444 
 (467), 35 N. E. 64. 
 
 For other instructions, in homi- 
 cide cases, as to reasonable doubt, 
 see Morgan v. State, 51 Neb. 672, 
 71 N. W. 788 (794); Stout v. Com- 
 monwealth, 29 Ky. Law 627, 94 S. 
 W. 15; Hibler v. Commonwealth, 25 
 Ky. Law 277, 74 S. W. 1079; Ireland 
 v. Commonwealth, 22 Ky. Law 478, 
 57 S. W. 616 (617); People v. Curtis, 
 97 Mich. 489, 56 N. W. 925, 37 Am. 
 St. 360; People v. Moran, 144 Cal. 
 48, 77 Pac. 777 (781); People v. 
 Manning, 146 Cal. 100, 79 Pac. 856 
 (857); People v. Olsen, 1 Cal. App. 
 17, 81 Pac. 676 (678); Hammond v. 
 State, 74 Miss. 214, 21 So. 150; State 
 V. Moore, 156 Mo. 204, 56 S. W. 883 
 (884); Clark v. Commonwealth, '23 
 Ky. Law 1029, 63 S. W. 740 (747); 
 State V. Clark, 134 Nor. Car. 698, 47 
 S. E. 36 (38); Karr v. State, 106 
 Ala. 1, 17 So. 328 (329). 
 
 60 — Commonwealth v. Adams, 186 
 Mass. 101, 71 N. E. 78 (80). 
 
 "And the fact that the govern- 
 ment had to prove its case and the 
 whole of it beyond a reasonable 
 doubt was repeated several times. 
 This was correct." 
 
 61— West v. State, 44 Tex. Cr. 
 App. 417, 71 S. W. 967 (968).
 
 CHAPTER XCI, 
 
 CRIMINAL— PRINCIPALS AND ACCESSORIES- 
 MISCELLANEOUS. 
 
 See Erroneous Instructions, same chapter head, Vol. III. 
 
 § 2723. Who are principals. § 2744. 
 
 § 2724. What the true criterion is 
 
 in determining who are § 2745. 
 principals. 
 
 § 2725. All persons concerned in the 
 commission of a felony are 
 principals— What to be al- § 2746. 
 leg-ed in indictment. 
 
 § 2726. Accessory defined. 
 
 § 2727. Distinction between princi- 
 pal and accessory abro- 
 gated — Proof required for § 2747. 
 conviction. 
 
 § 2728. Accomplice guilty as princi- § 2748. 
 pal. 
 
 § 2729. Principal and accessory — 
 
 Jointly indicted. § 2749. 
 
 § 2730. Co - defendant chargeable 
 with wrong done by the 
 other — Participation there- § 2750. 
 in required. 
 
 § 2731. Accessory — Presence, actual 
 
 or constructive. § 2751. 
 
 § 2732. Actual or constructive pres 
 
 ence will render one a § 2752. 
 principal — Illustrations 
 given. 
 
 § 2733. Principal and accessory — § 2753. 
 Aiding, abetting, or con- 
 senting. 
 
 § 2734. Aiding or encouraging — 
 Reasonable doubt — Alibi. 
 
 § 2735. Aiding, advising, etc., may 
 be by words or acts. 
 
 § 2736. Aiding and abetting as § 2754. 
 principal in the second de- 
 gree. 
 
 § 2737. Common purpose or design. § 275e 
 
 § 2738. Concert of action need not 
 be by express agreement. 
 
 § 2739. Mere presence not sufficient . 
 
 — Must have been aiding, s _/ob. 
 counseling, abetting, or 
 encouraging. 
 
 § 2740. Advising and encouraging, 
 
 not being present. § 2757. 
 
 § 2741. Present, but not aiding or 
 assisting. 
 
 § 2742. Without knowledge, conniv- § 2758. 
 ance, or assent of defend- 
 ant. § 2759. 
 
 § 2743. Encouraging another to kill. 
 
 1747 
 
 Watching while another 
 killed. 
 
 Homicide committed while 
 escaping from prison — All 
 who aid and abet are prin- 
 cipals. 
 
 Accomplice in robbery guil- 
 ty of murder if murder is 
 committed, although op- 
 posed to the murder being 
 committed. 
 
 Accessory — Assault with in- 
 tent to kill — Intent. 
 
 Testimony of an accomplice 
 must be corroborated in 
 order to convict. 
 
 Testimony of accomplice — 
 What corroboration suffi- 
 cient. • 
 
 Testimony of accomplice 
 corroborated by confes- 
 sion. 
 
 Testimony of accomplice — 
 Need not be corroborated. 
 
 Testimony of accomplice 
 should be received with 
 caution. 
 
 An accomplice cannot cor- 
 roborate herself — Corrob- 
 oration must be by evi- 
 dence outside and beyond 
 her statements, acts and 
 declarations — Seduction. 
 
 MISCELLANEOUS. 
 
 Statements of prosecuting 
 attorney not based on evi- 
 dence. 
 
 Opinion of prosecuting at- 
 torney as to guilt of de- 
 fendant is not to be con- 
 sidered by the jury. 
 
 Instruction correcting state- 
 ment of attorney in argu- 
 ment — Reference to Bibli- 
 cal laws. 
 
 Arguments of counsel — Lay- 
 ing foundation for civil 
 suit. 
 
 Consideration due to argu- 
 ment of counsel. 
 
 Comment on evidence by 
 court to be disregarded.
 
 1748 
 
 FORMS OF INSTRUCTIONS. 
 
 [§ 2723. 
 
 § 2760. Duty to convict— Expres- § 2770. 
 sion of opinion. 
 
 § 2761. Defendant may rely upon 
 
 any theory or claim he § 2771, 
 may see fit — Trumped up 
 charge or conspiracy as a § 2772. 
 defense. 
 
 § 2762. Tried by evidence only— Not § 2773. 
 on suspicion — Evidence ex- 
 cluded or stricken out. § 2774. 
 
 § 2763. Must first determine guilt 
 before fixing punishment. 
 
 § 2764. Witness excused from an- § 2775. 
 swering when the answer 
 might incriminate. 
 
 § 2765. Contradictory and inconsist- § 2776, 
 ent statements. § 2777. 
 
 § 2766. Impeaching witnesses by 
 contradictory statements. 
 
 § 2767. Credibility — Rejecting evi- § 2778. 
 dence of perjured witness. 
 
 § 2768. Testimony of police officers § 2779. 
 and detectives — Greater 
 care in weighing. § 27S0. 
 
 § 2769. Police officers' testimony not 
 to be discarded or sus- 
 picion cast on it. I § 2781. 
 
 Witness who testified in 
 commitment court .dead — 
 What evidence considered. 
 
 Credibility — Testimony stip- 
 ulated into the case. 
 
 Irreconcilable conflict in evi- 
 dence. 
 
 Duty to consider all the evi- 
 dence. 
 
 Two counts in indictment — 
 Duty to consider all evi- 
 dence under each count. 
 
 Attendance of witnesses — 
 Limit of process — Taking 
 testimony by commission. 
 
 Plea of not guilty. 
 
 Joint trial — Jury may find 
 one or more guilty — Others 
 not guilty. 
 
 Former acquittal as a de- 
 fense. 
 
 Former conviction of de- 
 fendant. 
 
 Detection of crime — Means 
 must not amount to in- 
 ducement or solicitation. 
 
 Date of crime. 
 
 Note. — At common law, persons participating' in a crime are either 
 principals or accessories. If the crime is felony, they are alike felons. 
 Principals, are such either in the first or second degree. Principals in 
 the first degree are those who are the immediate perpetrators of the 
 act. Principals in the second degree are those who did not with their 
 own hands commit the act, but who were present, aiding and abetting 
 it. 
 
 An accessory before the fact is he who, being absent at the time 
 the felony is committed, does yet procure, counsel or command an- 
 other to commit a felony. In many, if no't most, of the states, an ac- 
 cessory before the fact is by statute declared to be in law, as he is in 
 rea.son, either actually or substantially a principal. 
 
 § 2723. Who are Principals, (a) All persons are principals who 
 are guilty of acting together in the commission of an offense.^ 
 
 (b) Any participation in a general felonious plan, provided such 
 participation be concocted, and there be actual or constructive pres- 
 ence, is enough to make a man a principal as to any crime committed 
 in the execution of such concocted plan. 
 
 (c) Previous consent to or procurement of the caption and as- 
 portation will not make one a principal, nor will subsequent reception 
 of the thing stolen, or the aiding and concealing or disposing of it, 
 have that effect. ^ 
 
 (d) The court instructs the jury that any person who advises or 
 agrees to the commission of an offense, and who is present when the 
 same is committed, is a principal thereto whether he aids or not in 
 
 1— Thornton v. State, — Tex. Cr. 2— Baldwin et al v. State, 46 Fla. 
 App. — , 65 S. W. 11C5 (1107). 115, 35 So. 220 (222).
 
 § 2724.] PRINCIPALS AND ACCESSORIES. 1749 
 
 the illegal act, and any person who is a principal, under the rules 
 hereinabove g-iven you, may be prosecuted, and if found guilty, may 
 be convicted and punished as such.^ 
 
 (e) Any person who advises or agrees to the commission of an of- 
 fense, and who is present when the same is committed, is a principal, 
 whether he aids in the illegal act or not.* 
 
 § 2724. What the True Criterion is in Determining Who are Prin- 
 cipals. All i^ersons are principals who are guilty of acting together 
 in the commission of an offense. When an offense has been actually 
 committed by one or more persons, the true criterion for determining 
 wdio are principals is, did the parties act together in the commission 
 of the offense 1 Was the act done in pursuance of a common intent, 
 and in pursuance of a previously formed design, in which the minds of 
 all united and eoncuiTed? If so, then the law is that all are alike 
 guilty, provided the offense was actually committed during the ex- 
 istence and in the execution of the common design and intent of all, 
 whether in point of fact, all were actually bodily present on the 
 ground when the offense was actually committed or not. So, in this 
 case, if you find that F. C. was guilty of assault with intent to kill 
 upon T. J. K. at the time and place charged, beyond a reasonable 
 doubt; and you further find beyond a reasonable doubt that defend- 
 ant J. H. was then and there present with said C. and that he, J. H., 
 then and there well knowing the intent and purpose of said F. C. in 
 making such assault, if any, he, the said J. H., did then and there aid 
 by acts or encourage by words said C. in the commission of said as- 
 sault, if any — then if you find beyond a reasonable doubt, defendant 
 J. H. would be guilty as principal, the same as F. C.^ 
 
 § 2725. All Persons Concerned in the Commission of a Felony Are 
 Principals — What to be Alleged in Indictment. You are further in- 
 structed that the distinction between an accessory before the fact and 
 a principal, and between principals in the first and second degree, in 
 cases of felony is abrogated; and all persons concerned in the com- 
 mission of felony, whether they directly commit the act constituting 
 the offense or aid and abet in its commission, though not present, 
 shall be prosecuted, tried and punished as principals; and no other 
 
 3— Grimsinger v. State, 44 Tex. We think the charge is applicable 
 
 1, 69 S. W. 583 (587). to the facts. At . the time of the 
 
 "This charge is a substantial burglary appellant's co-defendant 
 
 copy of article 78, Pen. Code, was in the house, and appellant 
 
 which reads: 'Any person who ad- standing on the outside. He ran 
 
 vises or agrees to the commission away from said building as the 
 
 of an offense, and who is present officers approached. This testi- 
 
 when the same is committed, is a mony would present the issue of 
 
 principal thereto, whether he aids principals. It is true that appel- 
 
 or not in the illegal act.' " lant insists his presence was an 
 
 4 Tally v. St ite, — Tex. Or. innocent one; but this issue was 
 
 App. — , 90 S. W. 1113 (1114). properly presented to the jury, and 
 
 "The objection urged to this in- they found against appellant." 
 struction is that there is no evi- 5— Henry v. Slate. — Tex. Or. 
 
 dence authorizing such a charge. App. — , 54 S. W. 592 (593).
 
 1750 FORMS OF INSTRUCTIONS. [§ 2726. 
 
 facts need be alleged in any indictment against such an accessory 
 than are required in an indictment against a principal.^ 
 
 § 2726. Accessory Defined, (a) The mere presence of the de- 
 fendant at the time and during the act of killing would not, of itself, 
 be sufficient to constitute him an aider and abettor in the commission 
 of the act; but it is not essential, in order to constitute him such, 
 that he should himself have fired the fatal shot. It is sufficient if at 
 the time of the killing he was there present, consenting to and en- 
 couraging the act, and ready, if needed, to give assistance to him who 
 did the act.''' 
 
 (b) The court instructs the jury, as a matter of law, that an ac- 
 cessory is he who stands by, and aids, abets or assists, or who, not 
 being present aiding, abetting or assisting, hath advised, encouraged, 
 aided or abetted the perpetration of the crime. He who thus aids, 
 abets, assists, advises, or encourages, shall be considered as principal 
 and punished accordingly. Every such accessory, when a crime is 
 committed within or without this state, by his aid or procurement in 
 this state, may be indicted and convicted at the same time as the 
 principal, or before or after his conviction, and whether the principal 
 is convicted or amenable to justice or not, and punished as principal.^ 
 
 (e) The court instructs the jury, that an accessory is one who 
 stands by and aids, abets or assists, or who, not being present aiding, 
 abetting or assisting, hath advised, encouraged, aided or abetted the 
 perpetration of the crime charged. He who thus aids, abets, assists, 
 advises or encourages, is considered a principal and punished accord- 
 ingly.^ 
 
 § 2727. Distinction Between Principal and Accessory Abrogated — 
 Proof Required for Conviction. The jury are instructed that in this 
 state the distinction between accessory before the fact and the prin- 
 cipal, and between principals in the first and second degree, in cases 
 of felony, is abrogated; and all persons concerned in the commission 
 of a felony, whether they directly commit the act constituting the 
 offense, or aid and abet in its commission, though not present, must be 
 prosecuted, tried and punished as principals, and no other facts need 
 be alleged or proved under an information against such accessory 
 than are required under an information against his principal.^" 
 
 6— Statp V. ■Rlfind, 9 Idaho 796, 8— Coates v. People. 72 111. 303. 
 76 Pac. 780 (783). 9— Iowa Code, §4314; State v. 
 
 "This instruction is in the identi- Hessian, 58 la. 68, 12 N. W. 77. 
 cal language of section 7697 of the 10— State v. De Wolfe, 29 Mont. 
 
 Revised Statutes of 1887 and cer- 415, 74 Pac. 1084 (1087). 
 tainly could in no wise injure or "The above instruction," said 
 
 projiulire the defendant." the court, "is practically in the 
 
 7— Kelly v. State, 44 Fla. 441, 33 language of section 1852 of the 
 
 So. 235 (237). Penal Code. The words 'such an 
 
 "We discover no error in this accessory,' as used in that section, 
 
 charge. It does nothing more than clearly refer to the words 'an ac- 
 
 'defme an aider and abettor in the cessory before the fact' used In 
 
 commission of a crime, and does the opening sentence thereof." 
 so, as we think, correctly."
 
 § 2728.] PRINCIPALS AND ACCESSORIES, 1751 
 
 § 2728. Accomplice Guilty as Principal, (a) The court instructs 
 the jury that if you find from the evidence beyond a reasonable doubt 
 that the defendant J. was at the time of the killing, present, aiding, 
 abetting, i3roeuring, and assisting O. in the commission of the crime, 
 and that the killing was done with felonious intent, and with delib- 
 erate and premeditated malice, then the defendant J, would be guilty 
 as a principal in the transaction.^^ 
 
 (b) The court further instructs the jury that if you find and be- 
 lieve from the evidence in this cause, beyond a reasonable doubt, that 
 one H. v., in the county of C, Mo., on the 24th day of Nov., 1905, 
 feloniously, willfully, deliberately, premeditatedly, and of his malice 
 aforethought, shot with a pistol, and by such shooting killed J., and 
 that the defendants G. R., C. S., and E. R. were then and there pres- 
 ent, feloniously, willfully, deliberately, premeditatedly, and of their 
 malice aforethought, aiding and abetting, advising, counseling, assist- 
 ing, or procuring the said H. V., in such shooting and killing, then de- 
 fendants G. R. and E. R. were within the meaning of the law, each as 
 guilty as if he had fired the fatal shot himself.^- 
 
 (c) The court instructs the jury that if you believe from the 
 evidence beyond a reasonable doubt that the defendant V., in connec- 
 tion with T. W., and A. killed J., and that the defendant participated, 
 aiding or assisting, in the killing of J., it will not "be necessary, in 
 order to convict the defendant, for the state to prove that he fired any 
 shot or shots that resulted in the death of the deceased; and if you 
 believe from the evidence beyond a reasonable doubt that he was pres- 
 ent, aiding, abetting, and assisting, he would be as guilty as though 
 he had fired the fatal shot,^^ 
 
 (d) The court instructs the jury that if they believe from the evi- 
 dence, beyond a reasonable doubt, that D. was present at the time of 
 the killing of H., with intent to aid and abet in the murder of H., 
 if his assistance became necessary, and that H. was murdered as 
 charged in the indictment, then D. is as guilty as the one who did the 
 killing, though he may not have actually taken any other part in such 
 homicide.^* 
 
 (e) If you believe and find from the evidence in this cause that 
 one C, in the county of Butler and state of Missouri, at any time 
 prior to the 14th day of September, 1901, willfully, deliberately, pre- 
 meditatedly and of his malice aforethought shot with a pistol, and by 
 shooting killed, E. G., and that the defendant, W. G., was then and 
 there present, willfully, deliberately, premeditatedly and of his malice 
 aforethought aiding, helping, abetting, assisting, comforting, main- 
 taining, moving or inciting the said C. in so shooting and killing 
 said E. G., then defendant, W. G., willfully, deliberately, premedi- 
 tatedly and of his malice aforethought shot and killed E. G., within 
 
 11— Jahnke v. State, 68 Neb. 154, 13— Vasser v. State, 75 Ark. 373, 
 
 94 N. W. 158, 104 N. W. 154. 87 S. W. 635 (636). 
 
 12— State V. Vaughan, 200 Mo. 1, 14— Dean v. State, 85 Miss. 40, 
 
 98 S. W. 2. 37 So. 501.
 
 1752 FORMS OF INSTRUCTIONS. [§ 2729. 
 
 the meaning of this instruction, and is as guilty, under this informa- 
 tion, as if he had fired the pistol himself; and if you find the above 
 facts you will find the defendant guilty of murder in the first de- 
 gree. ^^ 
 
 § 2729. Principal and Accessory — Jointly Indicted. If the jury 
 believe, from the evidence, beyond a reasonable doubt, that the de- 
 fendant deliberately and intentionally shot with a loaded revolver, as 
 charged in the indictment, and that the defendant A. B. in any way 
 or manner aided, advised or encouraged such shooting, then the jury 
 'should find the defendants both guilty; provided, the jury further 
 find, from the evidence, beyond a reasonable doubt, that such shoot- 
 ing was not necessary, and did not reasonably appear to be necessary 
 to save their own lives, or to prevent them, or either of them, receiv- 
 ing great bodily harm.^^ 
 
 § 2730. Co-defendant Chargeable with Wrong Done by the Other — 
 Participation Therein Required, (a) The court- charges the jury 
 that, although the defendant stands indicted with others, he is not 
 chargeable with anything which any other one named in the indict- 
 ment may have done, unless he advised, aided, or abetted others in the 
 commission of the offense, intending at the time, by his word or act, 
 to aid or encourage the commission of the offense. 
 
 (b) Even though the jury should believe that H. threw the hog in 
 the controversy over the fence some time between 10 and 12 o 'clock of 
 the day on which the hog was found dead, and the hog was dead at 
 the time it was thrown over the fence, the defendant's participation 
 in the act of throwing the hog over the fence would not constitute 
 him guilty of the offense charged in this case, unless the jury be- 
 lieve beyond a reasonable doubt that he had before that time killed 
 the hog, or assisted in killing it, or aided or abetted, counseled or en- 
 couraged, some one or more in killing the hog.^''' 
 
 § 2731. Accessory — Presence, Actual or Constructive. When an 
 offense is actually committed by one person, but another is present, 
 and, knowing the unlawful intent, aids by acts or encourages by 
 words or gestures the person actually engaged in the commission of 
 the unlawful act, or who, not being actually present, keeps watch 
 so as to prevent the interruption of the person engaged in the com- 
 mission of the offense, such person so aiding, encouraging, or keeiDing 
 watch is a principal offender.^** 
 
 15— State V. Gntlin, 170 Mo. 354, and abetting-, at the fact, or be 
 
 70 S. W. 885 (888, 890). ready to afford assistance if nec- 
 
 16 — Smith v. People, 74 111. 144. essary; but the presence need not 
 
 17 — Howser v. State, 117 Ala. 176, be strict, actual, immediate pres- 
 
 23 So. 680 (681). ence, — such a presence as would 
 
 18 — Grimsinser v. State, 44 Tex. make him an eye or ear witness 
 
 Cr. A pp. 1, 69 S. W. 583 (585). of whnt pa.sses,— but may be a con- 
 
 The court said: "In order to structive presence. 1 Russ. Crimes, 
 
 rendf-r a person a principal in the § 49. The Am. & Eng-. Enc. of 
 
 second deg-ree, or an aider or abet- Law defines 'present' as follows: 
 
 tor, he must be present, aiding 'Being: in view or immediately at
 
 §2732.] PRINCIPALS AND ACCESSORIES. 1753 
 
 § 2732. Actual or Constructive Presence Will Render One a Prin- 
 cipal — Illustration Given, (a) The court instructs you that if de- 
 fendant is jDresent actually or constructively at the time of the com- 
 mission of the crime, and is so situated with reference to it, and 
 while so situated willfully and intentionally knowing the purpose of 
 the man who strikes the deadly blow or fires the fatal ball, and while 
 so situated the defendant then willfully and intentionally aids either 
 by doing some physical act or by being present at the place by reason 
 of a previous agreement, and the very fact of that presence exerts 
 an influence ui3on the mind of the party who fires the fatal shot, 
 showing that he more readily or quickly does the act, then the de- 
 fendant is present at the place and is actually an aider and abettor 
 and is a principal in the crime. 
 
 (b) Now a word further as to what is meant by this idea of con- 
 structive presence. I have already told you that the test is if a man 
 is so near to the place, no matter how far in feet or yards he may 
 be awaj', if from the circumstances and from the character of the 
 act done and the way it is done he is so near to where it is actually 
 done as to be able to render assistance or to contribute to the produc- 
 tion of that act, and he is there actually to do so, or is there ready to 
 do so willfully, and intentionally present in pursuance of a previous 
 agreement, and he confederated to render aid and assistance, he is 
 then present in the law. As an illustration take the case decided in 
 Nevada, where the man was 30 odd miles away from the place where 
 a stage was robbed ; he built a fire on the top of a mountain to signal 
 to his confederates the approach of the stage, they being down in the 
 valley waiting to rob it. He was arrested as a principal in that crime, 
 although as a matter of fact at the time of the robbery he was 32 
 miles away, or 30 odd miles away, but the law said he was present, 
 because the test of the law as to what is meant by presence is fully 
 satisfied, because the proof showed that he was able to render assist- 
 ance that looked toward the eomi:)letion of it — towards the execution 
 of it. Another case: If a man goes to a store kept in the country 
 and decoys away the clerk who slept in the store, decoys him to go 
 
 hand.' In the case of Pryor v. in the house, a few feet away, — 
 State, 40 Tex. Cr. 643, 51 S. W. 375, having agreed with R. that he 
 we had under consideration a sim- should go and kill her husband; 
 ilar question to the one now at is- and she was standing on the out- 
 sue. In that case, by an inspec- side, watching. Whether or not 
 tion of the original papei's, we find this last statement be true, her 
 that appellant was in the shed juxtaposition is such as clearly 
 room when the killing occurred brings her, in legal contemplation, 
 in the front room of the residence, present at the homicide. It fol- 
 Appellant earnestly insisted under lows, therefore, that the court did 
 this state of facts, that the court not err in giving said charge. For 
 erred in not charging on the law a discussion of the law of princi- 
 of accomplices. We held that, un- p-rls, see McClain, Cr. Law, §§199, 
 der the facts, appellant was clear- 204; State v. Arden, 1 Bay. 487; 
 ly a principal. In this cnse, de- 1 Am. & Eng. Enc. Law (2d Ed.), 
 fendant, under the most fnvorable p. 258. Furthermore, we think the 
 aspects, was at the woodshed at charge is a correct statutory defl- 
 the time her husband was killed nition of 'principals.' "
 
 1754 FORMS OF INSTRUCTIONS. [§ 2733. 
 
 to a dance some miles distant from the store, and detained him at the 
 dance while his confederate robbed the store. ^^ 
 
 § 2733. Principal and Accessory — Aiding, Aljetting or Consenting, 
 (a) The court instructs the jury that, if they believe from the evi- 
 dence in this cause beyond a reasonable doubt, that at the county of 
 H., and state of Missouri, the defendant, M., alone, or that the de- 
 fendant, M., and one F., or either of them, and the other present, aid- 
 ing, abetting or consenting thereto did on or about the 26th day of 
 March, 1899, feloniously, willfully, deliberately, premeditately, and of 
 his (the defendant's) malice aforethought, kill and murder G. in the 
 manner and former charged in the indictment, you should find the 
 defendant guilty of murder in the first degree, and so state your 
 verdict.-" 
 
 (b) You are instructed that, if you believe beyond a reasonable 
 doubt that defendant, with express malice aforethought, advised the 
 said R. to commit said offense, or agreed with him that it should be 
 so committed, and that she was, with express malice aforethought, 
 present at the time of the killing, knowing the unlawful intent of the 
 said R., and that such killing was in pursuance of such advice or 
 agreement, whether she aided or not in the illegal act.^^ 
 
 (c) If you find from the evidence beyond a reasonable doubt that 
 B. killed A. while he (B.) was in the commission of an unlawful act, 
 without malice and without the means calculated to produce death, or 
 if you find, beyond a reasonable doubt, that B. was in the prosecution 
 of a lawful act done without due. caution and circumspection, and you 
 further find, from the evidence, beyond a reasonable doubt, that the 
 defendant E. stood by, aided, abetted, or assisted B. in taking the 
 life of A., as defined in this instruction, then you should convict the 
 defendant of involuntary manslaughter. 
 
 (d) If you find fi'om the evidence beyond a reasonable dov:bt that 
 E. stood by, aided, abetted, or assisted B. in unlawfully taking the 
 life of A., then he would be guilty of some degi^ee of felonious homi- 
 cide as defined in these instructions, whether there was or was not a 
 combination between the defendant and his brother, B., to do an un- 
 lawful act. 
 
 (e) If you find that there was no agreement or combination, as 
 defined in these instructions, between E. and B. to do an unlawful act, 
 and you further find that E. did not stand by, aid, abet, or assist B. 
 in unlawfully taking the life of A., then E. would not be responsible 
 for the killing of A.^^ 
 
 (f) If the evidence convinces you beyond a reasonable doubt that 
 the defendant unlawfully killed H. by shooting him, as charged, or 
 that he was present at the time aiding and abetting another, who 
 
 19 — Johnson alias Overton v. 21 — Grimsinper v. State, 44 Tex. 
 
 United States, 157 U. S. 320 (321), 15 Cr. Avv. 1. 69 S. W. 5S3 (587). 
 S. Ct. 614. 22— Burnett v. State, 80 Ark. 225, 
 
 20— Stfite V. Miller, 15 Mo. 76, 56 96 S. W. 1007. 
 S. W. 907 (910).
 
 §2734.] PRINCIPALS AND ACCESSORIES. 1755 
 
 unlawfully, and from a premeditated design to effect H. 's death, did 
 kill him by shooting him as charged, and that in doing so the defend- 
 ant acted from such premeditated design to effect H. 's death, as 
 already defined to you, you will find him guilty of murder in the first 
 degree.-" 
 
 § 2734. Aiding or Encouraging — Reasonable Doubt — Alibi. (a) 
 Unless tha evidence pi'oves beyond a reasonable doubt that the de- 
 fendant w^as not onlj' present at the killing, but that he had knowl- 
 edge of the unlawful intent of R. and F., if that has been shown, and 
 that he aided or encouraged them in the killing, then you should 
 acquit him. If the evidence raises in your minds a reasonable doubt 
 as to the presence of the defendant at the time and place of the 
 killing, then you should acquit him.-* 
 
 (b) If 3^ou should believe, from the evidence, that W. 's house was 
 burglarized at the time and place, and in the manner alleged in the 
 indictment, and if you should further believe that C. acted as a prin- 
 cipal in committing such burglary, if any was committed, then I in- 
 struct you that you cannot convict defendant, unless you further 
 believe, beyond a reasonable doubt, that defendant Avas present and 
 knew the unlawful intent of C, and aided, encoui'aged and advised 
 him or agreed vfith. him to commit such burglary.-^ 
 
 § 2735. Aiding, Advising, etc., may be by Words or Acts, (a) The 
 
 court instructs the jury, that the advising or encourag-ing that may 
 make one an accessory to crime need not be by words. It may be by 
 words or acts, signs or motions, done or made for the purpose of en- 
 couraging the commission of the crime.-*' 
 
 (b) The court instracts the jury that all persons are equally guilty 
 who act together with a common intent in the commission of a crime, 
 and a crime so committed by two or more jjersons jointly is the act 
 of all and of each one so acting.-''^ 
 
 23 — "We discover no error in this 27— State v. Valle, 164 Mo. 539, 65 
 
 charge." Kelly v. State, 44 Fla. S. W. 232 (235). 
 
 441, 33 So. 235 (237), citing- McCoy The court said, in commenting, 
 
 V. State, 40 Fla. 494, 24 So. 485. that "while the authorities hold 
 
 24 — Gutirrez v. State, — Tex. Cr. that the mere presence of a person 
 
 App. — , 59 S. W. 274. while a felonious assault is being 
 
 "A similar charge to this was committed by another upon a 
 
 discussed in Gallagher v. State, 28 third person, or a mental approval 
 
 Tex. App. 247, 12 S. W. 1087, and of what is being done, will not, 
 
 approved by this court. The sub- in the absence of some word or 
 
 stance of this charge is to the ef- act of approval or encouragement, 
 
 feet that, if the jury entertain a make such party guilty of a felo- 
 
 reasonable doubt as to the pres- nious assault, yet if he be present, 
 
 ence of the defendant at the time and by words or actions aid or ad- 
 
 and place of the killing, they vise or encourage another to com- 
 
 should give defendant the benefit mit a felonious assault, with the 
 
 of such reasonable doubt, and ac- intent that the words or acts of 
 
 quit him. In this there was no encouragement should encourage 
 
 error." and abet the crime committed, he 
 
 25_Glenn v. State, — Tex. Cr. will be equally guilty with the per- 
 
 App. — , 76 S. W. 757 (758). son who actually commits the 
 
 26-^Br'ennan v. People, 15 111. 511. physical act; 'and a party may be
 
 1756 FORMS OF INSTRUCTIONS. [§ 2736. 
 
 (c) If from the conduct of the parties here charged with murder, 
 as shown in the testimony, and from the other testimony in the case, 
 the jury are satisfied beyond a reasonable doubt that the defendant 
 entertained the intent, or knew that the one who fired the pistol 
 entertained the intent, thereby to kill and murder A., when C. fired 
 the pistol, if he did fire it, and with such intent or knowledge, said 
 defendant B. was present encouraging, aiding or abetting C, or ready 
 to do so, then said B. was an accomplice and would be alike guilty 
 with him who fired the shot.-® 
 
 § 2736. Aiding and Abetting as Principal in the Second Degree. 
 The defendant M. is charged by the indictment in this case as prin- 
 cipal in the first degree in the killing of one L., and that the defend- 
 ant W., being present when his co-defendant killed the said L., know- 
 ing the unlawful and premeditated design of the said M. in the killing 
 of the said L., did aid and abet him in the murder of the said L., as 
 principal in the second degree. Said indictment having been read to 
 the said defendants, and being required to plead thereto, each of said 
 defendants said that he was not guilty as charged in said indictment. 
 Whether the defendants, or either of them, are guilty as charged in 
 the indictment, is the issue you are to try.-^ 
 
 § 2737. Common Purpose or Design, (a) If, however, defendant 
 and such other person or persons were not acting together with a 
 common purpose to take the life of B., or do him some great bodily 
 hann, and with the intent to assist each other in accomplishing such 
 pui"pose, then defendant would not be responsible for the acts of such 
 other person or persons, even though they may have also cut and 
 stabbed B. at the same time that defendant did so.^'' 
 
 (b) You are instructed that if you believe, from the evidence, 
 beyond a reasonable doubt, that M. K. and S. H. were jointly engaged 
 in pursuance of a common design in firing their pistols in the crowd 
 assembled at the i^ienic at the time W. G. was killed, with the felon- 
 ious intent to kill the said W. G., and the said W. G. was killed by a 
 pistol shot fired by either of them, and they at the time did not act 
 in necessary self-defense, then it is immaterial which of said defend- 
 ants fired the shot that caused the death of the deceased, but, if both 
 
 charg-ed with doing an act himself evidence that a person advised an 
 
 and be held liable under such a act, or aided by an overt net in its 
 
 charge for being present, aiding commission, but siich fact may be 
 
 nnd assisting another in doing it.' shown by facts and circumstances. 
 
 Will V. Lucas, 110 Mo. 219, 19 S. State v. Gooch, 105 Mo. 392, 16 S. 
 
 \V. 726. .S3 Am. St. Rep. 436; Cani- W. 892. 
 
 fax v. Chapman, 7 Mo. 17.5; Page 28— Singleton v. State, 106 Ala. 
 
 v. Freemnn, 19 Mo. 421; Alfred v. 49, 17 So. 327. And see Grimsinger 
 
 Bray, 41 Mo. 484, 97 Am. Dec. 283; v. State. 44 Tex. Cr. App. 1, 69 S. 
 
 Murphy v. Wilson, 44 Mo. 313, 100 W. 583 (587), for an instruction to 
 
 Am. Dec. 290; Cooper v. Johnson, the same effect. 
 
 81 Mo. 483; State v. Orrick, 106 Mo. 29— Mercer et al. v. State, 41 Fla. 
 
 Ill, 17 S. W. 176, 329. 279. 26 So. 317 (318). 
 
 And it is not necessary to a con- 30 — State v. Thornhill, 177 Mo. 
 
 victiou that it be proven by direct 691, 76 S. W. 948 (949).
 
 §2738.] PRINCIPALS AND ACCESSORIES. 1757 
 
 of them were present, aiding and abetting each other, then the law 
 imputes the injury caused by one to the other.^^ 
 
 (c) The court instructs you, gentlemen of the jury, that before 
 you convict the defendant in this case you must find and believe from 
 the evidence and beyond a reasosable doubt either that prior to the 
 shooting of G. by C. there was a common pui-pose or agreement be- 
 tween this defendant and the said C. that the life of X. was to be 
 taken, and that deceased was shot and killed in furtherance of such 
 fixed design, intent or common purpose in the minds of C. and this 
 defendant, or that prior to the shooting there existed in the mind of 
 C. a fixed pui-pose to take the life of G., of which this defendant had 
 knowledge ; and that this defendant did some act in f urthei-ance of 
 the accomplishment of such fixed design or intention. "^ 
 
 § 2738. Concert of Action Need not be by Express Agreement. 
 The juiy are instructed, that while the law requires, in order to find 
 all the defendants guilty, that the evidence should prove, beyond a 
 reasonable doubt, that they all acted in concert in the commission of 
 the crime charged, still it is not necessaiy that it should be positively 
 proven that they all met together and agreed to commit the crime; 
 such concert may be proved by circumstances; and if, from all the 
 evidence, the jury are satisfied, beyond a reasonable doubt, that the 
 crime was committed by the defendant, and that they all acted to- 
 gether in the commission of the crime, each aiding in his own way, 
 this is all the law requires to make them all equally guilty.^^ 
 
 § 2739. Mere Presence not Sufficient — Must Have Been Aiding, 
 Counseling, Abetting or Encouraging, (a) The bare fact that T. was 
 present at the time the alleged killing of the deceased took place 
 would not be sufficient evidence to vrarrant his conviction, or to justify 
 you in finding him guilty. You must be satisfied, bej'ond a reasonable 
 doubt, that he was present when the fatal shot was fired, and then 
 and there aiding, counseling, abetting, or encouraging MeC. to kill the 
 deceased ; and if, from the evidence, you are not thus satisfied, under 
 these instructions, then you should acquit the defendant T., although 
 you are satisfied, from the evidence, beyond a reasonable doubt, that 
 McC. is guilty of murder in the first, second or third degi-ee, or of 
 manslaughter.^* 
 
 (b) The court charges the jury that if they believe, from the evi- 
 dence, that B., C. and E. went to the house of A. P. on the night the 
 killing is said to have been done, and an olfense was committed by 
 
 31 — Humphrey v. State, 74 Ark. and H. was in furtherance and 
 
 554. 86 S. W. 431 (432). prosecution of a common design 
 
 The court said in comment that or plan previously entered into by 
 
 "the objection urged against the them. Green v. State, 51 Ark. 189, 
 
 foregoing instruction is that there 10 S. W. 266." 
 
 was no evidence upon which to 32— State v. Gatlin, 170 Mo. 354, 
 
 base it. As to it, it is sufficient 70 S. W. 8S5. 
 
 to say that it should not have been 3.3— Miller v. People. 39 111. 457. 
 given unless there was evidence 34— McCoy v. State, 40 Fla. 494, 
 
 showing that the shooting by K. 24 So. 485 (487).
 
 1758 FORMS OF INSTRUCTIONS. [§ 2740. 
 
 one of them from causes having no connection with the common object 
 for which they went there, the responsibility for such offense rests 
 solely on the actual perpetrator of the crime, and the jury cannot 
 find the defendant guilty simply because he happened to be present at 
 the time the offense was committed.^^ 
 
 (c) You cannot convict defendant unless you further believe, 
 beyond a reasonable doubt, that defendant was present at the time 
 and place such offense was committed, and that he knew of said un- 
 lawful intent of W. H., and aided and encouraged and advised him or 
 agreed with him to commit such offense.^*' 
 
 (d) The court instructs the jury that the mere presence of a per- 
 son at the scene of a homicide, does not make him a guilty participator 
 in said homicide. To make him a guilty participator he must have 
 aided, assisted, instigated, abetted or advised said killing as explained 
 in other instructions given by the court in this case.^^ 
 
 (e) The court instructs the jury that the mere fact of one person 
 being present at the time the shooting occurred, and the further fact 
 that he follows along after the party doing the shooting, are not of 
 themselves sufficient to convict the party following or aiding and 
 abetting in the shooting; but before you can find that the defendant 
 was aiding and abetting in the shooting, you must find that he was 
 acting in concert with those committing the crime, and actually par- 
 ticipating in some manner in the shooting. 
 
 (f ) Even if the jury should find, from the evidence, beyond a rea- 
 sonable doubt, that the deceased, F., was killed at the time and place 
 in question, and that the said defendant, V., was present at the time 
 of such killing, and that such killing was murder, still if you are not 
 satisfied from the evidence beyond a reasonable doubt that the said 
 V. was previously aware of the purpose to commit such murder, or 
 that he in some way aided, abetted, or assisted in the killing, or ad- 
 vised or encouraged it, then you should find V. not guilty.^® 
 
 § 2740. Advising and Encouraging, not Being Present. The court 
 instructs the jury, that if they believe, from the evidence, beyond a 
 reasonable doubt, that any one or more of the defendants is guilty of 
 the offense charged in the indictment, and that any other of the de- 
 fendants stood by at the time and aided, abetted or assisted in the 
 commission of the crime, or who, not being present, had advised or en- 
 couraged .the commission of the same, then such other person, so aid- 
 ing, abetting, advising or encouraging, are, in law, guilty as prin- 
 cipals, and the jury should so find by their voi-dict."" 
 
 § 2741. Present, but not Aiding or Assisting. Though the jury 
 may believe, from the evidence, that the said A. B, was murdered at 
 
 35— Evans v. State, 109 Ala. 11, 37— State v. Vaughan, 200 Mo. 1, 
 
 19 So. 535 (536). 98 S. W. 2. 
 
 36— Tally v. State, — Tex. Cr. 38— Vasser v. State. 75 Ark. 373, 
 
 A pp. — , 90 S. W. 1113 (1114), bur- 87 S. W. 635. 
 
 glary. 39— Sharp v. State, 6 Tex. App,
 
 §2742.] PRINCIPALS AND ACCESSORIES. 1759 
 
 the time and place in question, and that the defendant C. D. was pres- 
 ent at the time of such murder, still, if the jury are not satisfied, from 
 the evidence, beyond a reasonable doubt, that the said C. D. was 
 previously aware of the pui-pose to commit such murder, or that he, 
 in some way, aided, abetted or assisted in the killing, or advised or 
 encouraged it, then they should find the said C. D. not guilty, though 
 they further believe, from the evidence, that he subsequently failed 
 to disclose the killing, or even concealed the same.*** 
 
 § 2742. Without Knowledge, Connivance or Assent of Defendant. 
 The court charges the jury that, if they believe, from the evidence, 
 that the fatal shot which took the life of W. A. was fired by J. F., 
 and without the knowledge, connivance or assent of this defendant, 
 then the juiy mut:t find this defendant not guilty.*^ 
 
 § 2743. Encouraging Another to Kill, (a) If the presence of the 
 defendant in this Case at the place where the proof shows he was, 
 was by previous agreement or concert, with W., and it was the pur- 
 pose on his part to assist, aid, or abet the killing of R., and he was 
 there willfully or knowingly for the purjwse, if it should be necessary, 
 of assisting W. in killing R., and the knowledge on the part of W. of 
 the presence of the defendant, at the place where he was for the pur- 
 pose of assisting him in the killing of R. emboldened his purpose and 
 encouraged his heart, or afforded him hope or confidence in his enter- 
 prise, or spurred on his mind to do the act, or nerved or strengthened 
 his arm to fire the pistol shot, then the defendant would be present 
 aiding and abetting the killing. He may not have done any actual 
 physical act, but if his relation to the act was of the character that I 
 have just named, the relation was a criminal relation on his part; it 
 was a relation that sprung out of a preconceived design between W. 
 and defendant to take the life of R., and if such a presence for the 
 purpose of aiding or assisting or abetting, should it become necessary, 
 exerted a mental influence upon AV., so that he the more readily or 
 quickly executed the act, the defendant Avould then be present at the 
 crime whether he was really and actually at the place or whether he 
 was so near to the place, as by the means I have described to exert an 
 influence of that character upon the mind of W., he would then be 
 present at the crime and he would be an actual participant in it. If 
 at the time W. shot and killed R. the defendant was constructively 
 present at the place of the killing, and he was at such place with the 
 intent to knowingly and Avillfully assist W. in killing R., should it 
 become necessary to consummate the deadly purpose, but that such 
 aid was not necessary, as W. did the killing without such help, then 
 such constructive presence with such purpose would be a legal pres- 
 ence and would make the defendant a participant in the killing.*^ 
 
 (b) The court instructs the jury that if they believe, from the 
 
 650: State v. Hamilton, 13 Nev. 41— Ferguson v. State. 141 Ala. 
 386: State v. Maloy, 44 la. 104. 20, 37 So. 448 (449). 
 
 40— State v. Maloy, 44 la. 104. 42— Johnson alias Overton v.
 
 1760 FORMS OF INSTRUCTIONS. [§ 2744. 
 
 whole evidence, beyond a reasonable doubt, that H. was murdered, 
 and that D, aided, assisted and encouraged C. or any other person in 
 murdering H., then he is as guilty as such other person, and the jury 
 should return a verdict of guilty.*^ 
 
 § 2744. Watching While Another Killed. If you further believe, 
 beyond a reasonable doubt, that defendant, with express malice afore- 
 thought, knowing the unlawful intent of said R. to kill and murder 
 upon his express malice aforethought, did keep watch so as to prevent 
 the interruption of the said R. in the committing of said offense, 
 though not actually present, then you will find the defendant guilty of 
 murder in the first degree. ^^ 
 
 § 2745. Homicide Committed While Escaping from Prison — All 
 Who Aid and Abet Are Principals. The court instructs you that if 
 several persons confined in the state 's prison conspire to escape there- 
 from, 'and if necessary to kill any person who shall lawfully attempt 
 to arrest or recapture them, and the death of a person so engaged in 
 the attempt to lawfully arrest and recapture them ensue in the prose- 
 cution of said common design, it is murder in all who are present 
 aiding and abetting in the common design. The law m'akes no distinc- 
 tion or difference between any of the parties so engaged.'*^ 
 
 § 2746. Accomplice in Robbery Guilty of Murder if Murder is Com- 
 mitted, Although Opposed to the Murder Being Committed. Testi- 
 mony has been adduced before you tending to show that the defend- 
 ant L. and others were engaged in a robbery of one M. and the deceased 
 McC. at the M. ranch in S. county, that while so engaged and in fur- 
 therance of the common purpose of L. and his associates to accomplish 
 this robbery, the deceased McC. was slain by the defendant, or by 
 some of the parties with whom he was then engaged in the alleged 
 robbery. I charge you that it is no defense to a party associated with 
 others in and engaged in a robbery that he did not propose or intend 
 to take life in its perpetration, or that he forbade his associates to 
 kill, or that he disapproved or regretted that any person was thus 
 slain by his associates. If the homicide in question was committed 
 by one of his associates engaged in the robbery, in furtherance of 
 their common purpose to rob, he is as accountable as though his own 
 hand had intentionally and actually given the fatal blow, and is 
 guilty of murder in the first degree.*** 
 
 United States, 157 U. S. 320 (322), structions given in the Vasquez 
 
 15 S. Ct. 614. Case and appearing- in the opinion 
 
 43— Dean v. State, 85 Miss. 40, in that case People v. Vasquez, 
 
 37 So. 501 (502). 49 Cal. 562. The appellant does not 
 
 44 — Grimsinger v. State, 44 Tex. question the correctness of the 
 
 Cr. App. 1, 69 S. W. 5S3 (587). general principle of law contained 
 
 45 — People v. Wood, 145 Cal. 659, in the instruction, but claims that 
 
 79 Pac. 367 (369). the use of certain language in it 
 
 46 — People v. Lawrence, 143 Cal. constituted prejudicial error. His 
 
 148, 76 Pac. 893 (897). complaint is of the use of the 
 
 "This instruction is a verbatim words in the instruction: 'that he 
 
 copy, with the exception of the did not propose or intend to take 
 
 names of the parties, from the in- life in its perpetration' and the
 
 §2747.] PRINCIPALS AND ACCESSORIES. 1761 
 
 § 2747. Accessory — Assault with Intent to Kill — Intent. Whether 
 H. fired, into the house or not, if you believe, beyond a reasonable 
 doubt, from the evidence, that he was one of the party, some of whom 
 did fire into 'the house of J. J. with the intent to murder him, and 
 that was his purpose in going there, then you are authorized to find 
 H. guilty, whether he fired one of the shots or not.''^ 
 
 § 2748. Testimony of an Accomplice Must be Corroborated in Order 
 to Convict, (a) Under the law of this state a conviction cannot be 
 had on the testimony of an accomplice unless he is corroborated by 
 other evidence which, in itself and without the aid of the testimony 
 of the accomplice, tends to connect the defendant with the commission 
 of the. offense. And the corroboration is not sufficient if it merely 
 shows the commission or the circumstances thereof. 
 
 (b) Under the provisions of the statute of this state the corrobo- 
 rating evidence must, in itself, without the aid of the testimony of the 
 accomplice, tend in some degree to connect the defendant with the 
 commission of the offense. This corroborating evidence need not be 
 sufficient of itself to establish the guilt of the defendant, but it must 
 tend in some degree to implicate and connect the defendant with the 
 commission of the offense charged. The requirements of the statute 
 are fulfilled if there be any corroborating evidence which, of itself, 
 tends to connect the defendant with the commission of the offense. 
 The statute does not require that such witness should be corroborated 
 in respect to every material fact, but only in respect to such of the 
 material facts as constitute the necessary elements in the crime 
 charged.** 
 
 (c) If you are satisfied, from the evidence, that the witnesses, V. 
 J., E. S., J. B., and J. R., or either of them, were "accomplices," or 
 if you have a reasonable doubt as to whether they, or either of them, 
 were not, as that tenn is defined in the foregoing instructions, then 
 
 additional use of the word 'regret- and it is no defense that the party- 
 ted.' We do not think the use of did not intend that life should be 
 this lang-uag-e in the instruction, taken in the perpetration of the 
 particularly when the whole in- robbery, or forbade his associates 
 struction is considered, at all war- to kill, or regretted that it had 
 rants the criticism directed been done. This was but the dec- 
 against it by counsel that thereby laration of the rule of absolute re- 
 the court assumed the existence of sponsibility of a party for a homi- 
 a state of facts of which there was cide committed by his associates 
 no evidence. We do not perceive in furtherance of their common 
 that the court made any such as- purpose to rob, emphasized by a 
 sumption. In that portion of the reference to possible defenses 
 instruction challenged by counsel, which might in such a case be 
 the court was not referring to urged, but unavailingly, against 
 what the evidence tended to show, that responsibility, and we cannot 
 It was declaring an abstract prin- perceive that the appellant has 
 ciple of law to its fullest extent— any reasonable ground to corn- 
 that a party associated with others plain of it." 
 
 for the purpose of engaging in a 47— Hicks v. State, 123 Ala. 15, 
 
 robberv, in which a homicide is 26 So. 337 (338). 
 
 committed by one of his associates, 48— State v. Bond, 12 Idaho 424, 
 
 is as guilty of murder as if he had 86 Pac. 43 (48). 
 actually done the killing himself; 
 
 111
 
 1762 FORMS OP INSTRUCTIONS. [§ 2748. 
 
 you are further instructed that you cannot find the defendant guilty 
 upon their testimony, unless you are satisfied that the same had been 
 corroborated by other evidence tending to establish that the defend- 
 ant did in fact commit the offense.*'* 
 
 (d) You are instructed that, under the law of this state, a person 
 charged with a crime cannot be convicted upon the evidence of an ac- 
 complice, unless the testimony of such accomplice is coiToborated by 
 other e\ddence tending to connect the defendant with the commission 
 of the offense charged; and the corroboration is not sufficient if it 
 merely shows the commission of the crime. An '' accomplice," as the 
 word is here used, means any one connected with the crime committed, 
 either as principal, an accomplice, an accessory or otherwise. It 
 means a person who is connected with the crime by unlawful act or 
 omission on his part, transpiring either before, at the time of, or 
 after the commission of the crime, and whether or not he was present 
 and participated in the commission of the crime. The corroborative 
 evidence must be such as of itself, and without the aid of the testi- 
 mony of the accomplice, tends in some degree to show that the defend- 
 ant was engaged in the' commission of the crime. And where circum- 
 stances are relied upon as corroboration, these circumstances must be 
 criminative; that is, these circumstances, if the accomplice had not 
 testified at all, must to some extent be consistent with the innocence 
 of defendant of the crime charged. So, if you believe, from the evi- 
 dence, that the witness M. R., who has testified before you, is an ''ac- 
 complice" within the meaning of that word as used in this charge, 
 then you cannot convict the defendant on his testimony, even though 
 you should believe his testimony has been corroborated by other evi- 
 dence in the case, outside of his testimony, and outside of any evidence 
 that may merely show the commission of the crime, that tends in some 
 degree to connect defendant with the commission of the offense 
 charged; and you must further believe, from the evidence, that the 
 facts and circumstances relied upon by the state as corroboration are 
 criminative — that is, inconsistent to some extent with the innocence 
 of defendant of such unlawful killing.^" 
 
 (e) Under the laws of this state, a person cannot be convicted 
 upon the testimony of an accomplice unless he be corroborated by 
 
 49— Stevens v. State, — Tex. Cr. in^- to connect defendant with the 
 
 App. — , 58 S. W. 96. offense committed." For decisions 
 
 50— McKinnev v. State, — Tex. on tliis question, see section 997, 
 
 Cr. App. — , 88 S. W. 1012 (1013). White's Ann. Code Cr. Proc. In 
 
 Appellant criticises this charge, Jones v. State. 3 Tex. App. 575, a 
 as we understand, because the charg'e containing the lansuap:e 
 court says the evidence must tend here criticised on the question of 
 in some decree to connect defend- corroboration was approved. How- 
 ant with the commission of the ever, we believe that it is better 
 offense, and that by the use of the practice to follow the statute. This 
 words "some deproe" the court re- is not a case of circumstantial evi- 
 quired less corroboration than the dence. Appellant's confession 
 statute Article 781, White's Ann. takes it out of the rule; and, be- 
 Code Cr. Proc. reads, "Unless cor- sides, the testimony of M. R. clear- 
 roborated by other evidence tend- ly does so.
 
 §2749.] PRINCIPALS AND ACCESSORIES. 1763 
 
 such other evidence in the case as shall tend to connect the defendant 
 with the commission of the offense, and the corroboration is not suf- 
 ficient if it merely shows the commission of the offense, or the cir- 
 eimistanees thereof.^^ 
 
 (f ) You are charged that the witness, J. S., is an accomplice and 
 you cannot convict defendant on his testimony, unless corroborated 
 by other evidence tending to connect defendant with the offense com- 
 mitted, and the corroboration is not sufficient if it merely shows the 
 commission of the offense. ""^ 
 
 § 2749. Testimony of Accomplice — What Corroboration Sufl&cient. 
 (a) The slightest corroboration of the testimony of an accomplice is 
 sufficient if it tends to connect the defendant with the commission of 
 the offense. °^ 
 
 (b) It is not necessarj' that the testimony of the accomplice be 
 corroborated circumstantially and in detail, but the corroboration is 
 sufficien>t if the coiToborative evidence of itself, and without the aid 
 of the accomplice testimony, in any material matter tends to connect 
 defendant with the commission of the offense for which he is charged ; 
 but it need not be sufficient of itself to establish defendant's guilt. ^^ 
 
 (c) The corroboration is not sufficient if it merely shows the com- 
 mission of the offense or the circumstances thereof. And in this case 
 you are instructed that mere proof of the death of the deceased, M. S., 
 from poison, is not such corroboration as would justify a conviction 
 upon the testimony of the said E. S. alone, if you find she was an ac- 
 complice in causing the death of said M. S. But if you fail to find 
 that E. S. was an accomplice as heretofore defined, then if you believe 
 her testimony to be true, and you find it connects the defendant with 
 the commission of the crime, then it would be sufficient to connect the 
 defendant with the commission of the crime without further testi- 
 
 51_This charg-e in the words of convict said defendant upon the 
 
 the code approved in State v. Rus- evidence of said E. S. so corrobo- 
 
 sell, 90 Iowa 493, 58 N. W. 890, 28 rated alone, if you believe the said 
 
 Li. R. a. 195. witness, and if you further find 
 
 In State v. Smith, 106 Iowa 701, that her evidence warrants such 
 
 77 N. W. 499 (500), homicide, the conviction, 
 
 following was approved: 52— Winfield v. State, 44 Tex. Or. 
 
 But, upon this question of cor- App. 475, 72 S. W. 182. 
 
 roboration of an accomplice, you The court said: 
 
 are further instructed that you "If the testimony raises the is- 
 
 have a right to consider the death sue merely of an accomplice then 
 
 of the deceased, the cause of said it is proper for the court to submit 
 
 death, in connection with all the this to the jury by charge; but 
 
 facts and circumstances, if any, where the evidence is undisputed 
 
 shown or disclosed by the evi- going to show that witness is an 
 
 dence, which tend to connect the accomplice, it is not on the weight 
 
 defendant with causing said death of the evidence, nor erroneous, for 
 
 of deceased; and if you find that the court to so instruct the jury, 
 
 the facts and circumstances, if Hatcher v. State, 65 S. W. 97, 3 
 
 any. shown or disclosed by the Tex. Ct. Rep. 234." 
 
 evidence, corroborate the testi- 53— Crittenden v. State, 134 Ala. 
 
 mony of the witness tend- 145, 32 So. 273 (275). 
 
 ing to connect the defendant with 54— Wilkerson v. State. — Tex. 
 
 the commission of the crime Cr. App. — , 57 S. W. 956 (962). 
 charged, then you are entitled to
 
 1764 FORMS OF INSTRUCTIONS. [§ 2750. 
 
 moiiy. But, upon this question of corroboration of an accomplice, you 
 are further instructed that you have a right to consider the death of 
 the deceased, the cause of said death, in connection with all the facts 
 and circumstances, if any, shown or disclosed by the evidence, which 
 tend to connect the defendant with causing said death of deceased; 
 and if you find that the facts and circumstances, if any, shown or dis- 
 closed by the evidence, corroborate the testimony of the witness E. S. 
 tending to connect the defendant with the commission of the crime 
 charged, 'then you are entitled to convict said defendant upon the evi- 
 dence of said E. S. so coiToborated alone, if you believe the said 
 witness, and if you further find that her evidence warrants such con- 
 viction.^^ 
 
 S 2750. Testimony of Accomplice — Corroborated by Confession. 
 (a) A confession by the defendant, if one was made, is admissible as 
 corroborating evidence of that of an accomplice, and may be taken 
 by the jury as a sufficient corroboration to authorize a conviction.^*' 
 
 § 2751. Testimony of Accomplice — Need Not Be Corroborated, (a) 
 It is not the rule of law, but it is rather the result of our experience 
 in dealing with that class of testimony, that, while you may convict 
 upon the uncorroborated testimony of an accomplice, still you should 
 act upon his testimony with great caution, subject it to a careful 
 examination in the light of the other evidence in the case, and you are 
 not to convict upon such testimony alone, unless satisfied, after a 
 careful examination, of its truth, and also that you can safely rely on 
 it. If that testimony is corroborated, and it satisfies you beyond a 
 reasonable doubt of defendant's guilt, it is your duty to convict. If 
 you find, from all the other evidence, that the charge brought by 
 the state is made out, it is your duty to say so by a verdict of guilty. 
 It is your duty to bring in a verdict of guilty, if you feel that you can 
 rely upon the testimony of that witness, even if not corroborated, if 
 you are satisfied beyond a reasonable doubt of the truth of the 
 charge.^''^ 
 
 (b) The evidence of an accomplice should be received by the jury 
 with great caution, but if the testimony carries conviction, and the 
 jury, after careful consideration of all the evidence, are convinced 
 
 55— State v. Smith, 106 Iowa 701, The court said "There is no 
 
 77 N. W. 499 (500). doubt that an accomplice is a 
 
 56 — Crittenden v. State, 134 Ala. competent witness, provided he is 
 
 145, 32 So. 273 (275). not being- tried at the same time 
 
 57 — State v. Hauser, 112 La. 313, with the accused for or against 
 
 36 So. 396 (402). whom he is called on to testify; 
 
 In State v. Vicknair, 52 La. Ann. the fact of his being- an accom- 
 
 1921, 28 So. 273 (276), the following plice affecting- his credibility only, 
 
 charge was approved: of which the jury are the judges. 
 
 The fact that a witness was an State v. Prudhomme, 25 La. Ann. 
 
 accomplice may affect his credi- 522; State v. Bayonne, 23 La. Ann. 
 
 bllity, but not his competency; 78; State v. Mason, 38 La. Ann. 476. 
 
 thnt he is a legal witness, and you The objection that the testimony 
 
 must determine what credit you of an accomplice could not be 
 
 think his testimony is entitled to, taken unless corroborated was 
 
 whether corroborated or uncor- therefore not well made, and was 
 
 roborated. properly overruled."
 
 §2752.] PRINCIPALS AND ACCESSORIES. 1765 
 
 of its truth, they should give to it the same effect as would be allowed 
 to that of a witness who is in no resj^eet implicated in the offense.^® 
 
 (c) The testimony of an accomplice is competent evidence, and 
 the credibility of such an accomplice is for the jury to pass upon as 
 they do upon any other witness; and, while the testimony of an ac- 
 complice will sustain a verdict when uncorroborated, yet the testimony 
 of an accomplice must be received with great caution; but if the 
 testimony cari-ies conviction, and the juiy are convinced of its truth, 
 they should give to it the same effect as would be allowed to a witness 
 who is in no respect implicated in the offense. ""^ 
 
 § 2752. Testimony of Accomplice — Should be Received with Cau- 
 tion, (a) You are instructed that the testimony of an accomjDlice 
 in a crime — that is, a person who actually commits or assists or par- 
 ticipates in the crime — is admissible in evidence. Yet the evidence 
 of an accomplice in a crime, when not corroborated by some person 
 or persons not implicated in the crime as to matters material to the 
 issues — that is, matters connecting the defendant with the commission 
 of the crime charged against him — ought to be received with great 
 caution by you before you convict the defendant on such testimony.^" 
 
 (b) The testimony of an accomplice should be weighed with great 
 caution, and the jury may disbelieve such testimony altogether, if they 
 believe it untrue, the juiy being the sole judge of the credibility of 
 the witness. The jury is not bound to accept W. 's evidence as true, 
 or any part of it, if they believe it untrue, and the jury should weigh 
 the testimony of an accomplice with great care and caution.^^ 
 
 (c) The information in this case jointly charges the witness, D. B., 
 and defendant with the killing of S. J. The testimony of an accom- 
 plice in crime — that is, a person who actually commits, or participates 
 in the crime — is admissible. Yet the evidence of an accomplice in 
 crime, when not corroborated by some person or persons not im- 
 plicated in the crime, as to mattei-s connecting the defendant with 
 the commission of the crime, as charged against him, and identifying 
 him as the pei-petrator thereof — ought to be received with great cau- 
 tion by the juiy, and the jury ought to be satisfied of its truth befoi-e 
 they should convict the defendant on such testimony. The jury may 
 convict the defendant on the uncoiToborated testimony of an accom- 
 plice alone, if you believe the statements given by such accomplice in 
 his testimony to be true, if you fui'ther believe that the state of facts 
 testified to by such witness, if any, is sufficient to establish the guilt 
 of the defendant. ^2 
 
 58— Myers et al. v. State, 43 Fla. 60— State v. MUler, 190 Mo. 449. 
 
 500, 31 So. 275 (279). 89 S. W. 377: State v. Spra.^ue, 14S 
 
 This languag-e has been approved Mo. 409. 50 S. 'W. 901 (905). 
 
 in Bacon v. Stiite, 22 Fla. 51, and 61— Wilson v. State. 71 Miss. 880 
 
 Shiver v. State, 41 Fla. 630, 27 So. 16 Sn. 304: Brown v. State, 72 Miss 
 
 36. 990. 18 So. 431 (432). 
 
 59— Shiver v. State, 41 Fla. 630, 62— State v. Darling, 199 Mo. 168, 
 
 27 So. 36 (39). citing Bacon v. 97 S. "W. 592. 
 State, 22 Fla. 51.
 
 1766 FORMS OF INSTRUCTIONS. [§ 2753. 
 
 § 2753. An Accomplice Cannot Corroborate Herself — Corroboration 
 Must be by Evidence Outside and Beyond Her Statements, Acts and 
 Declarations — Seduction. The court instructs that you cannot con- 
 vict defendant upon the uncorroborated testimony of B. R. Before 
 you would be authorized to convict upon her testimony, it is necessary 
 for her to be corroborated upon both the alleged promise of marriage, 
 and also upon the alleged act of sexual intercourse ; and in this connec- 
 tion the court further instructs you that no act, statement or declara- 
 tion made by said B. R. subsequent to the alleged seduction can be 
 considered by you as corroborating her testimony. The court in- 
 structs you that said corroboration is absolutely essential to a legal 
 conviction; that although the jury might believe the testimony of B. 
 R. to be true, still they cannot convict unless they further believe that 
 thera is other testimony outside of her testimony tending to connect 
 defendant with the commission of the offense charged.''^ 
 
 MISCELLANEOUS. 
 
 § 2754. Statements of Prosecuting Attorney not Based on Evidence. 
 
 The jury are instructed, that it would be highly improper and wrong 
 for them to regard the statements of the prosecuting attorney that, 
 etc., as entitled to any weight whatever in this ease. And this is true 
 of any and all other statements of his that are not based on the evi- 
 dence in the case, if any such have been made.*^* 
 
 § 2755. Opinion of Prosecuting Attorney as to Guilt of Defendant 
 is not to be Considered by the Jury. You are instructed that the 
 opinion of the prosecuting attorney that the defendant is guilty 
 should not be considered by you. It does not matter what his opinions 
 may be. Before you can find the defendant guilty, you must believe 
 he is guilty, beyond a reasonable doubt, from the evidence as testified 
 by the witnesses in the case.*'^ 
 
 § 2756. Instruction Correcting Statement of Attorney in Argument 
 —Reference to Biblical Laws. Under the Mosaic dispensation I be- 
 lieve it is true, as my Brother Davis informed the jury, that it re- 
 quired more tlran one witness to establish the guilt of a person. Moses 
 was a great lawgiver, and no one respects that lawgiver more than 
 your humble servant. He codified the laws. He enacted as laws for 
 the government of Israel under the peculiar conditions in which they 
 ■were placed in that day. But it is not the law of Georgia. Our law- 
 
 63 — Barnard v. State, — Tex. Cr. ments made before the jury by the 
 
 App. — , 76 S. W. 475 (476). prosecuting- offlecr. The confessed 
 
 64— Kennedy v. The People, 40 purpose of the charge being- to re- 
 
 111. 488. fute some' remarks of the solicitor 
 
 In White v. State, 133 Ala. 122, 32 in his closing argument; citinff 
 
 So. 139, the court held that it is Mitchell v. State, 129 Ala. 23, 30 
 
 not error in the court to refuse a So. 349. 
 
 charge having no other purpose 65— Cox v. State, 72 Ark. 544, 81 
 
 than to respond to or offset argu- S. W. 1056 (1057).
 
 § 2757.] 
 
 CRIMINAL— MISCELLANEOUS. 
 
 1767 
 
 makers have believed, for reasons satisfactory^ to themselves, that 
 such laws are not applicable nor suitable to our day and time, and 
 therefore the laws of Georgia are laid down in our Code as follows: 
 ' * The testimony of a single witness is generally sufficient to establish 
 a fact. ' ' Exceptions to this rule are made in specified cases, such as 
 to convict of treason or perjury (this is not treason or perjury) and 
 in any case of felony where the only witness is an accomplice (this is 
 not a felony, nor is it contended that any witness is an accomplice). 
 Even in these cases (except in treason) coii'oborating circumstances 
 may dispense with another witness. Now, gentlemen, that is the law 
 of Georgia. That is the law you are sworn to try criminal cases by 
 under the jurisprudence of Georgia.^^ 
 
 § 2757. Arguments of Counsel — Laying Foundation for Civil Suit. 
 There has been some suggestion by counsel for the defendant that this 
 prosecution is laying the foundation for a civil suit. That is a matter 
 jx)u have nothing to do with. It has no place in this case at all. Your 
 simple duty is to determine whether upon the testimony produced 
 before you in this hearing this defendant is guilty as charged, and, 
 if you are satisfied from such testimony that he is guilty, then it is 
 your duty so to say; othei-wise you should acquit him.^'' 
 
 § 2758. Consideration Due to Argument of Counsel. You will now, 
 gentlemen of the jury, listen to the arguments of counsel, who will 
 
 66— Cole V. State, 120 Ga. 485, 48 
 S. E. 156. 
 
 "From the assignment of error 
 on this charge it appears that in 
 his argument to the jury the so- 
 licitor made reference to 'the bib- 
 lical injunction not to put the bot- 
 tle to thy neighbor's lips'; that 
 counsel for the accused in his re- 
 ply argued 'that, if the Bible was 
 the rule we were trying this case 
 on, then the state would wholly 
 fail, because the great lawgiver 
 had said that in the mouth of two 
 witnesses shall a fact be estab- 
 lished.' It is urged that the court 
 in the charge quoted, singled out 
 the argument of counsel for the 
 accused, and in effect answered it 
 and discredited it to the detriment 
 of the accused. It is also contend- 
 ed that the charge practically in- 
 structed the jury that, if one wit- 
 ness had testified against the ac- 
 cused, he should be convicted, and 
 that the reference to corroborat- 
 ing circumstances was erroneous, 
 because, as contended in this case 
 there were no corroborating cir- 
 cumstances. Whatever may be 
 said of the charge under consider- 
 ation, it cannot be denied that it 
 states a proposition of law emi- 
 "neutly sound in the abstract. It 
 
 will be noted that it is not object- 
 ed that the charge was argumenta- 
 tive, but merely that it singled out 
 a portion of the argument of coun- 
 sel for the accused and answered 
 it. Under the circumstances we 
 think this was permissible. Counsel 
 on both sides of the case seem to 
 have abandoned the law and re- 
 lied on the prophets; and it was 
 clearly the right of the court to 
 remind the jury that the issue of 
 the case was to be determined 
 under the laws enacted by the 
 Georgia Legislature, and not by 
 those handed down from Sinai. In 
 the early case of Matthews v. 
 Poythress, 4 Ga. 294, Nisbet J., de- 
 livering the opinion, said: 'If, in 
 the argument, legal positions are 
 taken by counsel, which in the 
 judgment of the court are wrong, 
 I see no sort of objection to the 
 court instructing the jury ac- 
 cording to its judgment of those 
 positions.' The rather argumenta- 
 tive tone of the charge excepted to 
 in the present case is to be dep- 
 recated, but, as no objection was 
 made to it on this ground, it will 
 not work the grant of a new 
 trial." 
 
 67— State V. Clark, — N. J. — , 64 
 Atl. 984.
 
 1768 FORMS OF INSTRUCTIONS. [§ 2759. 
 
 endeavor to aid you to reach a proper verdict in this cause by refresh- 
 ing in your minds the evidence which has been given to you in this 
 cause, and by showing the application thereof to the law; but, what- 
 ever counsel may say, you will bear in mind that it is your duty to be 
 governed in your deliberations by the evidence as you understand it 
 and remember it to be, and by the law as given in these instructions, 
 and render such verdict as to your consciences and reason and candid 
 judgment seems to be just and proper.^^ 
 
 § 2759. Comment on Evidence by Court to be Disregarded. Under 
 the constitutions and laws of this state, the jury are the sole judges 
 of the facts, and the judge is prohibited from commenting upon the 
 facts. Therefore, if in ruling upon objections or in answering ques- 
 tions asked by counsel for either the state or defendant, or in any 
 other way, or under any other circumstances the court has commented 
 upon the testimony in this case, the court instructs you that you are 
 to disregard entirely any and all such comment by the court, if any 
 has been made.^'' 
 
 § 2760. Duty to Convict — Expression of Opinion. You take this 
 case, gentlemen of the jury, and determine what the truth is. If the 
 defendant is guilty, and you are satisfied of it to the extent I have 
 charged you, it would be your duty to convict him. If so, just say, 
 *'We, the jury, find the defendant guilty."^** 
 
 § 2761. Defendant May Rely Upon Any Theory or Claim He May 
 See Fit — Trumped-up Charge or Conspiracy as a Defense. The court 
 instructs you that it is claimed by the defense that this whole matter 
 concerning the charge against this respondent is a conspiracy or the 
 outgrowth of a conspiracy; that it is a trumped-up charge — in other 
 words, made out of whole cloth, as we say in common parlance — and 
 that there is no truth in it whatever. Now, that evidence goes into 
 this case to be considered with the other evidence in the ease, not 
 necessarily as affirmative proof, because, as I said, when all the evi- 
 dence in the case is before the juiy, the burden of proof remains 
 where it is started, with the prosecution. But this is the respondent 's 
 claim. You can measure it, you can weigh it, you can sift it, and see 
 what there is to it; that is what you may do. The defense does not 
 have to have a theory, except as they see fit to adopt a theory. The 
 
 68— State v. Gatlin, 170 Mo. 354, satisfied to the extent that he had 
 
 70 S. W. 885 (888). charged them— that is, beyond a 
 
 69 — State v. Manderville, 37 reasonable doubt — that the accused 
 
 Wash. 365, 79 Pac. 977 (978). was guilty, it was their duty un- 
 
 70— Addis v. State, 120 Ga. 180, 47 der the law to convict him, and 
 
 S. E. 505. there was no error in instructing 
 
 "We do not think the charge them to this effect. Properly con- 
 subject to the criticism made up- strued, there was nothing in the 
 on it. The judge had fully charged charge complained of which con- 
 the jury as to the law of reason- tained an expression of opinion, or 
 able doubt, and also the rules to be which constrained the jury to find 
 foilowod in detormiiiiiig cases of any other way than according to 
 circumstantial evidence; and if the the evidence as it appeared to 
 .1ury, from the evidence, were them."
 
 § 2762.] CRIMINAI^-MISCELLANEOUS. ' 1769 
 
 defense is ''not guilty;" that is the plea; and, as I told you, they rest 
 upon that plea until the prosecution shall convince the jury of the 
 guilt of the respondent. They may meet that proof in whatever way 
 they see fit. That is what I mean by saying that the defense rely upon 
 a conspiracy. They may meet it by such claim as they see fit to put 
 forth in the case.'^^ 
 
 § 2762. Tried by Evidence Only — Not on Suspicion — Evidence Ex- 
 cluded or Stricken Out. (a) The defendant is to be tried only on the 
 evidence which is before the jury, and not on suspicions that may 
 have been excited by questions of counsel, answers to which were not 
 pennitted. 
 
 (b) The court deems it proper to admonish you that you are not 
 to consider evidence which has been excluded by the court in deter- 
 mining any fact in the case.'^- 
 
 § 2763. Must First Determine Guilt Before Fixing Punishment. I 
 have no right to instruct .you as to what the sentence might be in case 
 the defendant is found guilty on either of the three counts in the in- 
 dictment. That is a question which you have nothing in the woi'ld 
 to do with. The question that you have to determine is simply a ques- 
 tion of fact. It is entirely out of place for you to consider what pun- 
 ishment might be inflicted upon the defendant in case he is found 
 guilty of any offense; that is a question that comes later in the case. 
 You are to consider the evidence adduced in this case, and then deter- 
 mine as to the defendant's guilt or innocence, and nothing else. The 
 law prohibits this court from giving you any instructions, or making 
 any remarks to you whatever, as to what punishment the defendant 
 might receive in case he is found guiltj'.'^^ 
 
 § 2764. Witness Excused from Answering, When the Answer Might 
 Incriminate. In this case the witness A. B. was asked whether, etc., 
 and declining to answer the question on the ground that the answer 
 might criminate himself, he was excused from answering. From this 
 failure to answer, the jury must not infer that, etc., — the jury are not 
 at liberty to suppose, infer or imagine what would have been his 
 answer, if one had been given. The case, so far as that question to 
 that witness is concerned, stands as if the question had not been put. 
 The jury must act upon the evidence in the case and not upon what 
 they may imagine the evidence might have been.'^* 
 
 71_People V. Rich, 133 Mich. 14, 73— Clarey v. State, 61 Neb. 688, 
 
 94 N. W. 375 (377). 85 N. W. 897. 
 
 72 — People v. Roberts, 1 Cal. App. The court said "this instruction 
 
 447, 82 Pac. 625. assumes nothing, and very proper- 
 
 The court said that "when the ly told the jury it was none of 
 
 jury were told that the defendant their business as to the punish- 
 
 is to be tried only on the evidence ment. That question, in a case like 
 
 which is before the jury, they as this, is for the court, and arises 
 
 sensible men must have under- after verdict of guilty, and not h«^- 
 
 stood that evidence stricken out fore." 
 
 was not before the jury, and evi- 74 — People v. Brewer, 27 Mich, 
 
 dence excluded may fairly be said 134. 
 to include evidence stricken out."
 
 1770 FORMS OF INSTRUCTIONS. [§ 2765. 
 
 § 2765. Contradictory and Inconsistent Statements. The court 
 further instructs the jury, that the fact that witnesses disagree in 
 minor points in their recollection and recital of transactions does not 
 necessarily militate against the candor of any of them. It may only 
 indicate a failure of observation or recollection. Jurors have not the 
 right to captiously or unreasonably disregard the testimony of wit- 
 nesses, but, unless there appears something which indicates a lack of 
 candor or untruthfulness on the part of the witness, the testimony of 
 all the witnesses should receive proper and candid consideration by 
 the jury, in an honest discharge of their sworn duties.'^^ 
 
 § 2766. Impeaching Witnesses by Contradictory Statements. Evi- 
 dence has been offered as to the whereabouts of other persons who are 
 jointly indicted with this defendant, at the time when this offense was 
 alleged to have been committed. This evidence has been offered but 
 for one purpose, namely, for the purpose of throwing light upon the 
 credibility of witnesses in this case. To make this plain to you, cer- 
 tain witnesses have been offered as to certain parties other than the 
 defendant being- present at the scene of the killing. Witnesses have 
 been offered to prove that these parties were not present. This last 
 evidence is only relevant for the purpose of contradicting or impeach- 
 ing such witnesses. You are not to pass upon the guilt or innocence 
 of these parties. In considering this evidence, you only consider it in 
 determining the credit to be given to the testimony of such witnesses, 
 because a witness may be impeached by proof of contradictory state- 
 ments, and also by disproving the facts testified to by him.'^" 
 
 § 2767. Credibility— Rejecting Evidence of Perjured Witness, (a) 
 The jury are the sole judges of the credibility of the witnesses, and 
 of the weight and value to be given to their testimony. In determin- 
 ing as to the credit you will give a witness, and the weight and value 
 you will attach to a witness' testimony, you should take into con- 
 sideration the conduct and appearance of the witness upon the stand, 
 the interest of the witness, if any, in the result of the trial, motives 
 actuating the witness in testifying, the witness ' relation to or feeling 
 for or against the defendant or the alleged injured party, the prob- 
 ability or improbability of the witness' statements, the opportunity 
 the witness had to observe and to be informed as to matters respecting 
 which such witness gives testimony, and the inclination of the wit- 
 ness to speak truthfully or otherwise as to matters within the knowl- 
 edge of such witness. All those matters being taken into account with 
 all other facts and circumstances given in evidence, it is your province 
 
 75— State v. McDivitt, 69 la. 549, the court had not been called to 
 
 29 N. W. 459. pass on its admissibility for any 
 
 76— Cochran v. State, 113 Ga. 736, other purpose. That being the case, 
 
 39 R. E. 337 (339). it was not error to restrict its con- 
 
 "We see no error in this charge, sideration by the jury to the pur- 
 
 The evidence in question was of- pose for which it was admitted, 
 
 fcred for the distinct purpose of even if it were admissible for other 
 
 impeaching certain witnesses, and purposes."
 
 § 2768.] CRIMINAL— MISCELLANEOUS. 1771 
 
 to give each witness such value and weight as you deem proper. If, 
 upon a consideration of all the evidence, you conclude that any wit- 
 ness has sworn willfully falsely as to any material matter involved 
 in the trial, you may reject or treat as untrue the whole or any part 
 of such witness' testimony.'^^ 
 
 (b) The jury are the sole judges of the credibility of the witnesses, 
 and of the weight and value of their testimony. In determining such 
 credit, weight, and value, you may take into consideration the char- 
 acter of the witness; his or hep- manner on the stand and of testifying; 
 his or her interest, if any, in the result of the case ; his or her relation 
 to or feeling for the defendant or the deceased ; the probability of his 
 or her statement, as well as all other facts and circumstances detailed 
 in evidence ; and in this connection you are further instructed that, if 
 you believe any witness has willfully sworn falsely to any material 
 fact in the ease, you are at liberty to disregard or treat as untrue the 
 ■whole or any part of such witness ' testimony, except in so far as the 
 same may be corroborated by other credible evidence or by facts and 
 circumstances in evidence in the case."^^ 
 
 § 2768. Testimony of Police Officers and Detectives — Greater Care 
 in Weighing. The court instructs the jury that certain police officers 
 and detectives have testified in this case on behalf of the state, and 
 that, under the law of this state, in weighing their testimony greater 
 care should be used, because of the natural and unavoidable tendency 
 of such persons in procuring and stating evidence against the ac- 
 cused.'^^ 
 
 § 2769. Police Officers' Testimony not to be Discarded or Suspicion 
 Cast on it. The police department is an impoi'tant part of the ma- 
 chiner}- of our government, and it is well enough to bear in mind that 
 your homes, your lives and your property would not be safe but for 
 the police department and officers. It does not follow that because 
 an officer testifies in the court room that his testimony is to be dis- 
 
 77 — State v. Gatlin, 170 Mo. 354, 70 ability of the witness' statements, 
 
 S. W. 885 (888); homicide. the opportunity that the witness 
 
 78— State v. Kinder, 184 Mo. 276 had for ascertaining- the facts to 
 
 83 S. W. 964 (966); murder. which he or she has testified, to- 
 
 A nearly identical instruction Is gether with all the other facts and 
 approved in State v. May, 172 Mo. circumstances detailed in evidence; 
 630, 72 S. W. 918 (920). It is as fol- and if you believe that any wit- 
 lows: ness has willfully sworn falsely to 
 
 The jury are instructed that they any material fact in the case, you 
 
 are the sole judges of the credi- are at liberty to reject any poi-tion 
 
 bility of the witnesses and of the or all of such witness' testimony, 
 
 weight to be given to their testi- 79 — Kastner v. State, 58 Neb. 767, 
 
 mony, and in determining such 79 N. Vv^. 713 (716). 
 
 credibility and weight you will The court held "this instruction 
 
 take into con.sideration the charac- to be in harmony with the rule an- 
 
 ter of the witness, his or her man- nounced in Preuit v. People, 5 Neb. 
 
 ner on the witness stand, his or 378; and Heldt v. State, 20 Neb. 
 
 her relation to or feeling toward 492, 30 N. W. 626, 57 Am Rep. 835." 
 
 the defendant or the prosecuting But see Frudie v. State, 66 Neb. 
 
 witness, the probability or improb- 244, 92 N. W. 320.
 
 1772 FORMS OF INSTRUCTIONS. [§ 2770. 
 
 carded, or any suspicion cast upon it, unless there is something about 
 it which calls your attention to it.^** 
 
 § 2770. Witness Who Testified in Commitment Court Dead— What 
 Evidence Considered. But in this case what was testified to as to 
 what the dead boy (claimed to have been a witness in the justice's 
 court trial), said is not to be considered by you as evidence, unless 
 you believe the boy was sworn and testified to it in the commitment 
 court. What has been testified to, here, as to what he did say, if he 
 was not sworn, you discard entirely.^^ 
 
 § 2771. Credibility — Testimony Stipulated Into the Case. In con- 
 sidering the written testimony of G. W., admitted in this trial, by the 
 state, as facts wliich G. W. would testify to if present, the jury must 
 give the same weight to such testimony as they would give to it had 
 W. been before them on the stand, testifying under oath ; and if, from 
 all the testimony in the case, — the testimony of W. inclusive, — there is 
 a reasonable doubt of the guilt of the accused as charged in the in- 
 dictment, the jury must aequit.^^ 
 
 § 2772. Irreconcilable Conflict in Evidence. If the evidence is in-e- 
 concilable, you must consider that evidence which you deem worthy 
 of credit, and discard that which you do not deem worthy of credit. 
 You must give the evidence just such weight as you think it deserves. 
 The jury should weigh all the evidence and reconcile it, if possible; 
 but, if there be irreconcilable conflict in the evidence — they ought to 
 take that evidence which they think worthy of credit, and give it just 
 such weight as they think it entitled to.^^ 
 
 § 2773. Duty to Consider all the Evidence. You must consider all 
 the evidence in connection with the law as given you, and therefrom 
 reach a decision. In doing so you must consider without fear, favor 
 or affection, bias or prejudice, or sympathy, compare weig'ht and con- 
 sider all the facts and circumstances shown by the evidence, with the 
 sole, fixed and steadfast purpose of doing equal and exact justice be- 
 tween the state and the defendant.'''^ 
 
 § 2774. Two Counts in Indictment — Duty to Consider all Evidence 
 Under Each Count. For the pui-pose of determining the guilt or in- 
 nocence of the defendant ui^on the two coitnts in the complaint upon 
 which he is being tried, you should consider upon each count the testi- 
 mony of all the witnesses that have appeared before you.^'^ 
 
 § 2775. Attendance of Witnesses — ^Limit of Process — Taking Testi- 
 mony by Commission, (a) The court instructs the jury that the 
 process of the state of Florida to compel the attendance of witnesses 
 does not run beyond the limits of the state, and the attendance of 
 witnesses beyond the limits of the state cannot be compelled. 
 
 80— People v. Shoemaker, 131 83— Bondurant v. Stfite, 125 Ala. 
 
 Mich. 107, 90 N. W. 1035 (1036). 31. 27 Po. 775 (776); homicide. 
 
 81— Ford V. State, 97 Ga. 365, 23 S4— State v. Ruralli, 27 Nev. -^l, 
 
 S. K. 996 (997). 71 Pac. 532 (535); homicide. 
 
 82— Lee v. State, 75 Miss. 625, 23 85— Lincoln Center v. Bailey, 64 
 
 So. 628. Kan. 885, 67 Pac. 455.
 
 §2776.] 
 
 CRIMINAL— MISCELLANEOUS. 
 
 1773 
 
 (b) T'he constitution of the state requires the prosecution to pro- 
 duce the witnesses against the defendant face to face with him. Under 
 the laws of this state a defendant in a criminal ease can have a com- 
 mission issued, and the testimony of an. absent witness taken on 
 deposition. The state cannot do this.*^ 
 
 § 2776. Plea of Not Guilty. When the defendant interposed his 
 plea of not guilty, he thereby put in issue eveiy fact necessary to 
 establish guilt. '^^ 
 
 § 2777. Joint Trial— Jury May Find One or More Gruilty, Others 
 Not Guilty, (a) The court instructs the jury that they are at liberty 
 to find one or more of the defendants guilty and others not guilty, as 
 they may deem right and proper under the instructions of the court 
 and the evidence in the case.^^ 
 
 (b) The court charges the jury that E. is not on trial in this case. 
 
 86— Leslie v. State, 35 Fla. 171, 
 17 So. 555 (558). 
 
 87— People v. Manning, 146 Cal. 
 100, 79 Pac. 856 (858). 
 
 88— State v. Vaughan, 200 Mo. 1, 
 98 S. W. 2. 
 
 "It is insisted that this instruc- 
 tion should have been given, and 
 a separate finding or verdict as to 
 each one, because each of them 
 had the right to have his case 
 passed upon by the jury, as if he 
 alone were upon trial. As the 
 case went to the jury, this phase 
 of it was not submitted to them, 
 in the absence of which the jury 
 may have believed that it was 
 their duty under the evidence and 
 instructions to find the defendants 
 all guilty or to acquit them all. 
 While it may be true that they 
 were all alike guilty, were they not 
 entitled to have the jury instruct- 
 ed that they were at liberty to 
 find one or more of them guilty and 
 others not guilty as they might 
 believe from the evidence? We 
 think they were. It is no aaswer 
 to this suggestion to say that un- 
 der the evidence they were all 
 alike guilty, for that question was 
 for the consideration of the jury, 
 and it was their province, if so 
 inclined, to have acquitted either 
 one or all of them, or to have 
 acquitted some of them and found 
 the others guilty, or guilty of a 
 less degree of crime than that 
 charged, notwithstanding the evi- 
 dence to the contrary. State v. 
 Orstrander. 30 Mo. 13, was a prose- 
 cution under an indictment charg- 
 ing murder in the first degree, and 
 although no instructions were 
 given bearing upon murder in the 
 second degree, and the evidence 
 clearly showed the defendant 
 
 guilty of murder in the first de- 
 gree, a verdict returned by the 
 jury finding the defendant guilty 
 of murder in the second degree was 
 held to be responsive to the in- 
 dictment, and that the trial court 
 was bound to receive it. Each one 
 had the right to have the jury 
 pass upon his guilt or innocence, 
 and the evidence considered by the 
 jury in regard to his particular 
 case, unbiased or uninfluenced by 
 the evidence in respect to the guilt 
 of his codefendants. In the case 
 at bar the jury might have con- 
 victed a part of the defendants, 
 and disagreed as to the others, or 
 have acquitted a part of them 
 and convicted or failed to agree as 
 to the others, had they been so in- 
 structed. 1 Bishop's New Crimi- 
 nal Prac. par. 1036; State v. Kaiser, 
 124 Mo. 651, 28 S. W. 182. In 
 Abrams v. State, 121 Ga. 170, 48 
 S. E. 965, Abrams and One Os- 
 burn were jointly indicted for 
 grand larceny. They were tried 
 together, and both were convicted. 
 The point was made in a motion 
 for a new trial that the court failed 
 to instruct the jury distinctly that 
 they might acquit one of the ac- 
 cused even though the other was 
 convicted. The Supreme Court held 
 that it was erroneous under the 
 peculiar facts of the case to fail 
 to instruct the jury distinctly, 
 though one of the accused was 
 found guilty, the other might 
 nevertheless be acquitted. In 
 State v. Daniels, 115 La. 59, 38 So. 
 894, it is held that, where three 
 persons are being prosecuted at 
 the same time and under the same 
 indictment, the jury ought to be 
 instructed that one or two may be 
 convicted or acquitted without the
 
 1774 FORMS OF INSTRUCTIONS. [§ 2778. 
 
 and that, if the jury believe that the defendants are guilty, they can 
 find them gaiilty whether the jury believes that E. had anything to do 
 with the burning of the house or not. 
 
 (c) The juiy may convict one or more of the defendants as the 
 evidence may justify, and this jury has nothing to do with the influ- 
 ence that a verdict of guilty in this case may have in another case 
 against E. for the same otfense ; they must try this ease on its own 
 merits.*^ 
 
 § 2778. Former Acquittal as a Defense. You are instructed that, 
 if you believe, from the evidence, that the defendant's plea of former 
 acquittal is true, you need not look further into the case, but return 
 a verdict as follows: ''We, the jury, find that the defendant's plea 
 of former acquittal is true, and find the defendant not guilty. ' ' But 
 if you should believe, from the evidence, beyond a reasonable doubt, 
 that the defendant 's plea of former acquittal is not true, then you will 
 determine whether or not the defendant is guilty as charged; and, if 
 you find the defendant guilty, beyond a reasonable doubt, the form of 
 your verdict will be as follows.^" 
 
 § 2779. Former Conviction of Defendant. The defendant had a 
 right to be sworn and testify in his own behalf, but that in weighing 
 his testimony, and in determining the weight which should be given 
 thereto, the jury may take into consideration his interest in the result 
 of the trial, and his action and demeanor while on the witness stand, 
 and the further fact, if the same was proven, which was admitted by 
 the defendant, that he had been convicted of a felony and confined in 
 the penitentiary of another state, as affecting his credibility as a wit- 
 ness. °^ 
 
 § 2780. Detection of Crime — ^Means Must Not Amount to Induce- 
 ment or Solicitation. The court instructs the jury that it is legitimate 
 to adopt such measures as may be deemed necessary to detect crime, 
 provided the means used do not amount to a practical inducement or 
 solicitation to commit it.^^ 
 
 § 2781. Date of Crime. It is not necessary, in order to establish 
 the offense charged, that the state should prove the charge or crime to 
 have been committed on the exact day alleged in the information. It 
 would be sufficient to show that the crime was committed at any time 
 
 within two years prior to the day of , which was the day 
 
 this prosecution was begun.^^ 
 
 conviction, or acquittal of the 92— -State v. Dudoussat, 47 La. 
 
 otlier or others. Our conclusion is 977. 17 So. 685 (687). 
 
 that this instruction or one of sim- 9;^ — State v. Lackey, 72 Kan. 95, 
 
 iUir import should have been priven 82 Pac. 527. 
 
 in view of the first instruction "This is the usunl and correct 
 
 given on the part of the state." instruction g-iven relating to the 
 
 89— James v. State, 104 Ala. 20, certainty of date and the limita- 
 
 16 So. 94 (96). tion of the action, where, as is 
 
 90— Stone v. Stat'^. — Tex. Cr. usual, only one crime is charged 
 
 At>t>. — , 85 S. W. 808. in the information, but was er- 
 
 91— Keating v. State, 67 Neb. 560, ronoous and misleading in the case 
 
 93 N. W. 980 (981). at bar."
 
 CHAPTER XCII. 
 
 CRIMINAL — ABDUCTION — ABORTION — ADULTERY — BAS- 
 T^iRDY— BIGAMY— DISORDERLY HOUSE- 
 INCEST— RAPE— SEDUCTION. 
 
 See Erroneous Instructions, same chapter head. Vol. III. 
 
 ABDUCTION. 
 § 2782. Abduction— Proof of. 
 § 2783. Abduction — Previous chaste 
 character presumed. 
 
 ABORTION. 
 
 § 2784. Abortion — Result of natural 
 causes. 
 
 § 2785. Abortion, resulting in in- 
 juries causing death, mur- 
 der or manslaughter, ac- 
 cording to intent. 
 
 § 2786. Abortion — Definition of — 
 Present, aiding and abet- 
 ting, may be murder in the 
 first degree. 
 
 ADULTERY — CRIiONAL. 
 
 § 2787. Criminal prosecution for 
 adultery — Adulterous dis- 
 position or inclination. 
 
 § 2788. Adultery may be presumed 
 from the conduct and situ- 
 ation of the parties — Night- 
 time defined. 
 
 § 2789. Living in state of adultery 
 not proved by occasional 
 illicit acts. 
 
 § 2790. Prosecution must be at the 
 instance of either husband 
 or wife. 
 
 BASTARDY. 
 
 § 2791. Question of paternity ma- 
 terial, not the character 
 of complainant. 
 
 § 2792. Previous birth of another 
 bastard not to be consid- 
 ered — Prior chastity not 
 material. 
 
 5 2793. Sexual intercourse with 
 other men about the time 
 the child was begotten. 
 
 § 2794. Credibility of complaining 
 witness in bastardy pro- 
 ceedings. 
 
 \ 2795. Only evidence that of the 
 prosecutrix — Jury at lib- 
 erty to disregard it if they 
 believe it to be untrue. 
 
 § 2796. 
 § 2797. 
 § 2798. 
 
 § 2799. 
 § 2800. 
 § 2801. 
 
 § 2802. 
 
 § 2803. 
 § 2804. 
 
 § 2805. 
 § 2806. 
 
 § 2807. 
 
 § 2808. 
 § 2809. 
 § 2810. 
 § 2811. 
 § 2812. 
 § 2813. 
 
 BIGAMY. 
 
 Acts and conduct which 
 would tend to prove mar- 
 riage. 
 
 Persons exempt from charge 
 of bigamy on account of 
 prior marriage. 
 
 Criminal intent presumed 
 from the doing of the pro- 
 hibited act. 
 
 DISORDERLY HOUSE. 
 
 Disorderly house and lewd- 
 ness defined. 
 
 Keeping disorderly house- 
 Other offenses not in issue.' 
 
 Extorting money under 
 threats of criminal prose- 
 cution for keeping bawdy 
 house. 
 
 Accessory — House of ill 
 fame. 
 
 INCEST. 
 
 Definition of — Consent of 
 both parties not essential 
 to the crime of incest. 
 
 Question of relationship — 
 Admission of competent 
 evidence. 
 
 RAPE. 
 
 Rape defined. 
 
 Proof of intercourse alone 
 not sufficient to convict. 
 
 Moral character of prosecu- 
 trix— Reputation for chas- 
 tity. 
 
 Defense of consent by pros- 
 ecutrix. 
 
 Involuntary consent induced 
 by fear. 
 
 Rape — Prompt complaint by 
 prosecutrix. 
 
 Failure of prosecutrix to 
 complain. 
 
 Failure of prosecutrix to 
 make outcry. 
 
 Outcry by prosecutrix pre- 
 vented by fear. 
 
 1775
 
 1776 
 
 FORMS OF INSTRUCTIONS. 
 
 [§ 2782. 
 
 § 2S14. Adulterous disposition of 
 defendjant and prosecutrix 
 — How material. 
 
 § 2815. Rape— Circumstances sum- 
 med up by the court. 
 
 § 2816. Prosecutrix under age of 
 consent. 
 
 § 2817. Age of prosecutrix, how 
 proven. 
 
 § 2818. Reasonable doubt as to age 
 of girl. 
 
 § 2819. Testimony of the prosecu- 
 trix. 
 
 § 2820. Whether prosecutrix need to 
 be corroborated. 
 
 § 2821. Attempted rape— Definiiion 
 of. 
 
 § 2822. Assault with intent to com- 
 mit rape — Essential ele- 
 ments. 
 
 § 2823. Assault with intent to com- 
 mit rape — Abandonment of 
 purpose. 
 
 § 2824. Intent to overcome prosecu- 
 trix with force essential. 
 
 § 2825. Reasonable doubt as to de- 
 fendant's intent to over- 
 come all resistance with 
 force. 
 
 § 2826. Not necessary that every 
 instruction should show 
 the prosecutrix not to be 
 the wife of the defendant. 
 
 § 2827. Definition of carnal abuse. 
 
 § 2828. Rape— Assault with intent 
 to commit rape — Series. 
 
 SEDUCTION. 
 
 § 2829. Illicit intercourse alone is 
 not seduction — What con- 
 stitutes the offense. 
 
 § 2830. Not seduction when by force 
 and against her will. 
 
 § 2831. Seduction under promise of 
 marriage — Refusal of pros- 
 ecutrix to marry defend- 
 ant — Proof required. 
 
 § 2832. Promise of marriage — Fe- 
 male thought to be of 
 previous chaste character 
 — Unchaste at time of se- 
 duction. 
 
 § 2833. Previous chaste character — 
 Promise to marry — Rea- 
 sonable doubt. 
 
 § 2834. Voluntary consent as a de- 
 fense. 
 
 § 2835. Circumstantial evidence suf- 
 ficient to corroborate — 
 Proof of acquaintance and 
 opportunity not sufficient. 
 
 § 2836. Complainant's contradictory 
 evidence — Reasonable 
 doubt. 
 
 § 2837. Presumption of innocence — 
 Jury must reconcile evi- 
 dence and indictment — 
 Compromise cannot bar 
 prosecution. 
 
 ABDUCTION. 
 
 § 2782. Abduction — Proof of. You are instructed that before 
 you should convict the defendant in this ease you must believe 
 from the evidence beyond all reasonable doubt that defendant ma- 
 liciously, willfully or fraudulently did lead, take, carry away, decoy, 
 or entice away F. H., without the consent of her mother, etc.^ 
 
 § 2783. Abduction— Previous Chaste Character Presumed. The 
 jury are instructed that the presumption of the law is that the life 
 and previous character of the prosecuting witness, A. S., were chaste, 
 and the onus is upon the defendant to produce sufficient evidence to 
 overcome such presumption. ^ 
 
 1— Riley v. State, — Miss. — , 18 
 So. 117. 
 
 2— Pradshaw v. People, 153 111. 
 156 (l.'')9). 38 N. F. 652, 9 Am. Crim. 
 Rep. 23. 
 
 The court said: "If the words 
 'previous character,' as used in the 
 Instruction, do not mean substan- 
 tially the same as 'conversation' 
 as used in the statute in the phrase 
 'a chaste life and conversation,' 
 they arc to our minds meaning- 
 less. They might properly have 
 
 been omitted from the instruction, 
 but we are unable to discover in 
 what manner the use of them 
 placed any greater burden upon 
 the defendant than would have 
 been done by the instruction with- 
 out them. . . The general rule in 
 such cases is that "chaste charac' 
 ter will be presumed, and the bur- 
 den is on the defendant to impeach 
 it, notwithstanding the presump- 
 tion of innocence in his favor.' 
 (See cases cited in Vol. 87 Ameri-
 
 §2784.] CHIMIN AI^ABORTION. 1777 
 
 ABORTION. 
 
 § 2784. Abortion — Result of Natural Causes. If the jury believes 
 that A. aborted from natural causes, or from any one of the several 
 causes testified to by the medical witnesses in the case, then you 
 should find the respondent not guilty. If the jury believes that A. 
 aborted by reason of the ordinary sickness and vomiting, augmented 
 by the nervous, mental excitement, fatigue, lack of nourishment, and 
 the change of climate, then you should find the respondent not guilty.^ 
 
 § 2785. Abortion Resulting in Injuries Causing Death, Murder or 
 Manslaughter, According to Intent, (a) If you believe from the 
 evidence, beyond a reasonable doubt, that prior to the finding of the 
 indictment herein, in the county of U., state of Kentucky, the de- 
 fendant, C, did willfully, feloniously and with malice aforethought 
 kill and murder W. by thnisting into her body an instrument, which 
 by said use was ordinarily dangerous to her life, with the intent to 
 procure an abortion upon her, you shall find him guilty as charged in 
 the indictment, and in your discretion fix his punishment at death, or 
 confinement in the penitentiary of the state during his natural life, 
 
 (b) If, however, the instrument, as used by defendant, if he used 
 any instrument on her, was not necessarily dangerous to life, yet if 
 you believe fi'om the evidence, beyond a reasonable doubt, that it was, 
 by the defendant, thrust into the body of W. with the intent to pro- 
 cure an abortion, and she was thereby killed, contrai-y to the wish 
 and expectation of defendant, he should be acquitted of murder, but 
 you should find him guilty of voluntary manslaughter, and fix his 
 punishment at confinement in the penitentiary from two to twenty- 
 one years, in your discretion. 
 
 (c) Though the wound inflicted on W. by the defendant, if he 
 inflicted any, may not have been sufficient of itself to produce death, 
 yet if you believe, beyond a reasonable doubt, from the evidence, that 
 such wound, owing to her condition, produced her death, when, but 
 for the w^ound, she would not then have died, the wound is, in law, 
 the cause of her death, and you should so find.'* 
 
 § 2786. Abortion — Definition of — Present, Aiding and Abetting, 
 May Be Murder in First Degree. Where two persons agree to commit 
 a felony, each is responsible for the act of the other, provided it be 
 done in pursuance of the original understanding or in furtherance 
 
 can decisions, note on p. 406, also fense was that death resulted 
 
 Slocum V. People, 90 111. 274." from natural causes. That theory 
 
 3 — People V. Seaman, 107 Mich, should have been submitted to the 
 
 348. 65 N. W. 203 (208), 61 Am. St. jury," citing People v. Cummins. 
 
 326. 47 Mich. 334, 11 N. W. 184, 186. 
 
 The court said above requested 4 — Clark v. Commonwealth, 111 
 
 instruction should have been Ky. 443, 63 S. W. 740 (746). 
 
 given. "The above instructions, in our 
 
 "The testimony tending to prove opinion," said the court, "are with- 
 
 the body of the crime was circum- out just criticism." 
 stantial. The theory of the de- 
 112
 
 1778 FORMS OF INSTRUCTIONS. [§ 2787. 
 
 of the common purpose. Hence if you find that the defendant agreed 
 together with A. and B. and others to take W. to the V. house 
 for B. to produce an abortion on her, producing an abortion 
 being a felony, and an abortion being as follows: '* Every per- 
 son who shall administer to any woman either pregnant or quick 
 with child, or prescribe for any such woman, or advise or procure any 
 such woman to take any medicine, drug, or substance whatever, or 
 shall use or employ any instrument or other means with intent thereby 
 to destroy said child, unless the same shall have been necessary to 
 preserve the life of such mother, and every person who shall admin- 
 ister to any pregnant woman, or prescribe for any such woman, or 
 advise and procure such woman to take any medicine, drug or any- 
 thing whatsoever with intent thereby to procure the miscarriage of 
 any such woman, or to injure or destroy such woman, or shall use 
 any instrument or application for an^ of the above pui-poses, " — and/ 
 the defendant in pursuance of that agreement, carries her to the V. \ 
 house to effect that purpose, and B. killed her in the attempt to pro- (■ 
 duce the abortion, the defendant being present, aiding and abetting, f 
 it would be murder in the first degree, if he knew the nature of the ' 
 act he was doing and that the act was wrong.^ 
 
 ADULTERY. 
 
 § 2787. Criminal Prosecution for Adultery — Adulterous Disposition 
 or Inclination, (a) You may also take into consideration any evi- 
 dence tending to show an opportunity upon the part of these parties 
 to commit this crime. Evidence of an adulterous disposition or in- 
 clination, together with evidence of an opportunity to commit the 
 crime, would be sufficient to justify you in bringing in a verdict of 
 guilty against this defendant, if this evidence satisfies you beyond 
 a reasonable doubt that the crime was committed.^ 
 
 (b) You can take into consideration evidence tending to show an 
 adulterous or amorous disposition on the part of the accused, and 
 also on the part of the person with whom it is alleged that he com- 
 mitted this crime — any adulterous or amorous disposition, or evidence 
 tending to show an inclination on the part of these parties to commit 
 
 5— State v. Mills. 116 N. C. 992, 21 Freeman, 31 Wis. 235. If adultery 
 
 S. E. 106 (107). could be inferred from the exist- 
 
 6 — State v. Eggleston, 45 Ore. 346, cnce of an opportunity to commit 
 
 77 Pac. 738 (742). the act, it would be unsafe for 
 
 "In State v. Scott, 28 Ore. 331, 42 persons of opposite sex to meet, 
 Pac. 1, it is said: 'Mere proof of except in the presence of others, 
 an opportunity to commit adultery When, however, proof of an adult- 
 is insufficient to convict a person erous disposition on the part of 
 of that crime, unless there be each party has been produced, evi- 
 proof also of an adulterous mind dence of an opportunity to commit 
 on the part of both parties; and to the act is admissible, and from 
 prove this state of mind circum- these combined factors the com- 
 stantial evidence is admissible to mission of the crime may be rea- 
 Ehow a purpose or inclination to sonably inferred. No error was 
 commit the act." To the same ef- committed in giving such jnstruc- 
 fect, see Hcrberger v. Herberger, tion." 
 16 Ore. 327, 14 Pac. 70; Freeman v.
 
 § 2788.] 
 
 CRIMINAL— ADULTERY. 
 
 1779 
 
 adulteiy. You can take into consideration any evidence tending to 
 show such a disposition, either before or after the time when this 
 crime is alleged to have been committed; and you may take into con- 
 sideration any evidence tending to show that this act was committed 
 at other times and places, although it may show distinct and separate 
 crimes, because such evidence would tend to show an adulterous dis- 
 position or inclination on the part of the parties. ''^ 
 
 § 2788. Adultery May Be Presumed from the Conduct and Situa- 
 tion of the Parties — Nighttime Defined, (a) If you find from the 
 evidence, and beyond reasonable doubt, that the defendant went to 
 the dwelling house of D. secretly and in the nighttime, and there 
 secretly entered the dwelling house, and was shortly thereafter found 
 undressed and in bed with Mrs. B., who was then also undressed, 
 then a strong presumption would arise that he did so enter for the 
 purpose of committing adultery; and such presumption would con- 
 tinue until rebutted by the evidence, and, if not so rebutted, would 
 justify you in finding such intent to have existed at the time of the 
 entry. ** Nighttime" means the time between darkness after sun- 
 down and dawn of daylight in the morning.^ 
 
 (b) The court instructs the jury that if a married man is found 
 with a woman not his wife, in a room with a bed in it, and stays 
 
 of their functions.' It is argued 
 that, if all that is enumerated in 
 the instruction was proven, yet, in 
 view of the defendant's evidence, 
 it was a question of fact for the 
 jury whether an intent to commit 
 adultery should be presumed there- 
 from. Counsel for appellee quote 
 the part of said section preceding 
 that quoted by appellant, as fol- 
 lows: 'A presumption of law is a 
 conclusive or Indisputable infer- 
 ence which the law, by a settled 
 rule, draws from a given fact. 
 Such an inference is therefore 
 made by the judge, and not by the 
 jury.' In State v. Fox, 80 Iowa 312, 
 45 N. W. 874, 20 Am. St. 425, the 
 court instructed as follows: 'If 
 you find that, in the nighttime, 
 the defendant broke and entered 
 the dwelling house described in 
 the indictment, this fact would be 
 strong presumptive evidence that 
 the defendant did such breaking 
 and made such entry with the in- 
 tent to commit a public offense. 
 But such presumption may be 
 overcome by evidence.' That in- 
 struction was approved, the court 
 holding that the facts 'raise a pre- 
 sumption of an intent to commit ? 
 public offense.' This instruction, 
 like that, does not declare the pre- 
 sumption 'conclusive or indisput- 
 able,' hut only a strong presump- 
 tion, that should continue until ra« 
 
 7 — State V. Eggleston, supra, 
 
 "This instruction," said the 
 court, "was evidently founded on 
 the rule announced in State v. 
 Bridgman, 24 Am. Rep. 124, where 
 it was held on the trial of an in- 
 dictment for adultery that evi- 
 dence was admissible of improper 
 familiarity and adultery both be- 
 fore and after the commission of 
 the offense charged, although it 
 proved other and different of- 
 fenses." 
 
 8 — State v. Mecum, 95 Iowa 
 433, 64 N. W. 286 (287). 
 
 "The contention is that the court 
 presumes the intent charged, not- 
 withstanding there was evidence 
 tending to show that defendant 
 did not have that intention 'when 
 he went to the house and window.' 
 Appellant quotes from section 2290, 
 2 "Thomp. Trials, as follows: 'A 
 presumption of fact is simply an 
 inference or conclusion of the ex- 
 istence of a fact from some other 
 fact. It is always drawn by the 
 jury, who are the triors of ques- 
 tions of fact. It is therefore mere- 
 ly a repetition of what has already 
 been said to say that it is for the 
 jury and not for the judge to 
 draw presumptions of fact, and 
 that for the judge to tell the jury 
 what presumptions of fact they 
 ought to draw from a given fact 
 or series of facts is a usurpation
 
 1780 FORMS OF INSTRUCTIONS. [§ 2789. 
 
 through the night with her there, that is sufficient to warrant a finding 
 of adultery against him.^ 
 
 § 2789. Living in State of Adultery Not Proved by Occasional 
 Illicit Acts, (a) The court charges the jury that if you believe from 
 the evidence that W. lived with his mother, near the college, and that 
 L. lived with her mother, in Needmore, and that they did not live 
 together in adultery or fornication, you should acquit the defendant ; 
 and before defendants, or either of them, can be convicted, the evi- 
 dence must satisfy your minds beyond a reasonable doubt, that the 
 defendants did more than occasional acts of illicit or criminal in- 
 timacy.^" 
 
 (b) The court instructs the juiy that you are to determine from 
 all the circumstances as brought out by the evidence whether or not 
 the defendants lived together in a state of adultery, and in order to 
 find the defendants guilty, you must find, from the evidence, that the 
 defendants were living together in an open and notorious state of 
 adulteiy, and that they were cohabiting together; and if the evidence 
 does not establish the living together and cohabiting together of the 
 defendants in the minds of the jurors beyond a reasonable doubt, 
 then you must find the defendants not guilty.^^ 
 
 § 2790. Prosecution Must Be at the Instance of Either Husband 
 or Wife. You are instructed that you should be satisfied that this 
 prosecution was brought at the instance of the wife before you can 
 convict.^^ 
 
 BASTARDY. 
 
 § 2791. Question of Paternity Material, Not the Character of Com- 
 plainant. The material question to be detennined by this action is not 
 what is the character of the complaining witness, but the question for 
 you to determine from the evidence under the instructions of the 
 court is, is the defendant the father of her bastard child as charged ? 
 If you shall find from the evidence in the case, under the instructions 
 given you, that the defendant is the father of her bastard child, it is 
 immaterial on that question what the character of the complaining 
 witness, J. K., was or is.^^ 
 
 butted. See also State v. Maxwell, 10— McAlpine v. State, 117 Ala. 
 
 42 Iowa 208, and State v. Teeter, 93, 23 So. 130. 
 
 69 Iowa 717. 27 N. W. 485." 11— Tomlinson v. People, 102 111. 
 
 9— Commonwealth v. Clifford, 145 App. 542 (543). 
 
 Mass. 97. 13 N. E. 345 (346). In this case said the court, "the 
 
 "The form of expression miglit defendants were indicted not for 
 
 be used in such a way as to preju- adultery but for living- in an open 
 
 dice the jury, but on its face it state of adultery; itwas therefore 
 
 only means that there is evidence necessary to a conviction that the 
 
 to be considered by the jury, and evidence should show beyond a 
 
 that they have a right to infer reasonable doubt that they had so 
 
 guilt if that inference appears to lived," citing Searles v. People. 13 
 
 them the true one. Such a ruling 111. 565; Miner v. People, 58 111. 59. 
 
 is unexceptionable, and the correc- 12 — State v. Eggleston. 45 Ore. 346, 
 
 tion left the defendant without 77 Pac. 738 (743). 
 
 ground of complaint. Eldridge v. 13 — Suckow v. State, 122 Wis. 
 
 Hawley. 115 Mass. 410; Goodnow v. 156, 99 N. W. 440 (441). 
 Hill, 125 Mass. 587."
 
 § 2792.] CRIMINAL— BASTARDY. 1781 
 
 § 2792. Previous Birth of Another Bastard Not to Be Considered — 
 Prior Chastity Not Material. You are instructed that in determining 
 whether or not the defendant is the father of said bastard child, it 
 is entirely immaterial as to the plaintiff's chastity prior to the time 
 that the child in question was begotten; and it is improper for you 
 to consider in passing upon this point, or take into consideration, the 
 fact that the plaintiff was the mother of another bastard child several 
 years previous to the birth of this one.^* 
 
 § 2793. Sexual Intercourse with Other Men about the Time the 
 Child Was Begotten, (a) Evidence has been permitted to go to you 
 of the relatrix's association with one X. The purpose of evidence 
 of this character is to prove that at about the time the child in ques- 
 tion was begotten the relatrix had intercourse with said X., and that 
 the child was begotten by such intercourse; and it is com^Detent only 
 for this purpose. It is your province alone to determine the weight 
 of the evidence, and it is for you to say whether or not the evidence 
 on this point is sufficient to establish the fact that such intercourse 
 did take place between the relatrix and X. 
 
 (b) If you should be satisfied from the evidence that the relatrix 
 did have intercourse with X. about the time the child in question was 
 begotten, it does not necessarily follow that your finding shall be for 
 the defendant, but it is a circumstance you should consider in deter- 
 mining the question as to whether or not the defendant is the father 
 of the child. 
 
 (e) The state must show by a preponderance of the evidence that 
 the defendant is the father of the child, and if j^ou should find from 
 the evidence that about the time the child was begotten both the de- 
 fendant and X. had intercourse with the relatrix, and that you are 
 unable to tell which of them is the father of the child, then you must 
 find for the defendant. ^^ 
 
 14 — Morgan v. Stone, 4 Neb. 115 ject of the testimony, the mere fact 
 
 (Unof.), 93 N. W. 743 (745). of association between the relatrix 
 
 15 — Goodwine v. State, 5 Ind. and other men proves nothinj un- 
 
 App. 63, 31 N. E. 554. less it tends to establish criminal 
 
 The court said in comment that connection other than that to 
 "it is true the question whether or which the relatrix attributes the 
 not X is the father of the relatrix's conception and pregnancy, and 
 child is not an issue in this cause, that the child was begotten at a 
 It may also be true that proof of time and by one other than as 
 sexual intercourse with another claimed by her. . . . 
 would tend to throw doubt upon "... We agree with the court 
 the credibility of the relatrix's that it does not necessarily fol- 
 testimonv. O'Brien v. State, 14 Ind. low that the jury must find for the 
 468. But, after all, the only pur- defendant even if they were satis- 
 pose of proof of intimate relation- fled that the relatrix had inter- 
 ship and association with X must course with X about the time the 
 be to show criminal connection, child was begotten, although, in 
 for certainly it could not be main- our opinion, it would have been 
 tained that proof of mere intimacy better to leave the entire question 
 between the relatrix and another, as to the force and effect of such 
 without sexual intercourse, tenrled testimony to the jury. There is no 
 to impeach her as a witness, doubt, however, that there are or 
 Whatever may be the ultimate ob- may be circumstances enabling a
 
 1782 FORMS OF INSTRUCTIONS. [§2794. 
 
 § 2794. Credibility of Complaining Witness in Bastardy Proceed- 
 ings. The jury are instructed that while the precise day on which 
 sexual intercourse took place, resulting in pregnancy and the birth of 
 a child, in a ease of this kind, is not material, yet in this case, if the 
 juiy believe that the complaining witness testified falsely that the 
 defendant had sexual intercourse with her on Sunday, May 19, 1901, 
 the juiy have a right to take that fact, if such is the fact, into con- 
 sideration as affecting her credibility in determining whether or not 
 the defendant is the father of the child in question.^'' 
 
 § 2795. Only Evidence That of the Prosecutrix — Jury at Liberty 
 to Disregard It if They Believe It to Be Untrue, (a) The court 
 instructs the jury that if they believe from the evidence that the 
 only evidence tending to prove the guilt of the defendant is the 
 testimony of the prosecuting witness, Miss R. J., and that her testi- 
 mony on any material point is untrue, then the jury is at liberty to 
 disregard her whole testimony. 
 
 (b) The court instructs the jury that if they believe from the evi- 
 dence in the ease that the crime charged against the defendant rests 
 alone on the testimony of the prosecuting witness, Miss R. J., then 
 they should scrutinize her testimony with care and eaution.^'^ 
 
 BIGAMY. 
 
 § 2796. Acts and Conduct Which Would Tend to Prove Marriage. 
 
 You may look to the fact that the defendant and the woman. A., lived 
 together 13 years; that they lived in the same house under the same 
 roof that long; that a few years ago, when one of their children died, 
 that the defendant and A. went to the grave of the child together, 
 she leaning on his arm; and that they signed deeds as husband and 
 wife, — in deciding what weight you will give to the testimony of the 
 woman A.^** 
 
 § 2797. Persons Exempt from Charge of Bigamy on Account of 
 Prior Marriage. The jury is instructed that section 800 of the Re- 
 vised Statutes as amended by Act No. 93 of 1898 reads as follows: 
 "If any married person shall many, the former husband or wife 
 
 female to determine to which of find that at about the time con- 
 two or more connections her con- ception took place both the de- 
 ception is due. Kintner v. State, fendant and X had carnal knowl- 
 45 Ind. 175. There wa.s, therefore, edge of the relatrix, and they are 
 no technical Inaccuracy in the unable to decide which of them is 
 statement of the court, and, as the the father of the child, they should 
 jury were also told that they were find for the defendant. Whitman 
 the exclusive judges of the weight v. State, 34 Ind. 360; Kintner v. 
 and effect of the evidence, no harm State, supra." 
 
 could have resulted from the in- 16— Beck v. People, 115 111. App. 
 
 struction, and we cannot say upon 19 (21). 
 
 the whole thnt the province of the 17— State v. Perry, 41 W. Va. 641, 
 
 jury was invaded by it. 24 S. E. 634 (63S). 
 
 The last instruction properly in- 18— Bynon v. State, 117 Ala. 80, 23 
 
 forms the jury, wc think, if they So. 640, 67 Am. St. 163.
 
 § 2798.] CRIMINAL— DISORDERLY HOUSE. 1783 
 
 being alive, the one so offending shall, on conviction, be imprisoned 
 at hard labor in the state penitentiary for a period of not more 
 than five yeai-s, and not less than one year. The provisions of this 
 statute shall not extend to any person whose husband or wife shall 
 absent himself, or herself, from the other for the space of five years, 
 the one not knowing the other to be living within that time; nor to 
 any person who shall be at the time of such marriage divorced by 
 competent authority, nor to any person whose former marriage by 
 sentence of competent authority shall be declared void. ' '^^ 
 
 §2798. Criminal Intent Presumed from the Doing of the Pro- 
 hibited Act. The criminal intent of the accused is presumed to exist 
 whenever a statute has made it criminal to do any act under par- 
 ticular circumstances, and the party voluntarily does the act. He is 
 thereby chargeable with the ciiminal intent by the doing of the act.^o 
 
 DISORDERLY HOUSE. 
 
 § 2799. Disorderly House and Lewdness Defined. A house resorted 
 to for the purpose of prostitution and lewdness is a house visited by 
 persons of both sexes for the purpose of having sexual intercourse, 
 or some other lewd purpose; lewdness is the unlawful indulgence of 
 the animal desires.^^ 
 
 § 2800. Keeping Disorderly House — Other Offenses Not in Issue. 
 However bad she may be, or however guilty of other offenses, the 
 question for you to determine here is whether she is guilty of the 
 offense charged, and has that guilt been shown beyond a reasonable 
 doubt ?22 
 
 19— State V. Cain, 106 La. 708, vorced, or those whose first mar- 
 
 31 So. 300 (301). riages have been decreed void — 
 
 The court said in comment that would not incur the penalty de- 
 
 "bigamy is a statutory crime, and nounced by the first paragraph, 
 
 the crime denounced by the first even if they had not been specially 
 
 paragraph of section 800, Rev. St., exempted, for the reason that they 
 
 falls within the commonly accept- are not included within the terms 
 
 ed definition thereof. 2 Whart. Cr. of the first paragraph; and with 
 
 Law (10th Ed.) §1682. regard to the other class, 1. e., per- 
 
 The act of 1898 imposes a penalty sons whose husbands or wives 
 for bigamy, and repeals all laws have been absent, etc., — the de- 
 in conflict with its provisions; fendant has no concern. He would, 
 hence it operates the repeal of the therefore, have no reason to corn- 
 penalty for that crime as provided plain if the charge had been er- 
 in the first paragraph of section roneous, but there was no error." 
 800, Rev. St. But the second para- 20— State v. Cain, 106 La. 708, 31 
 graph of that section purports to So. 300 (302). citing Com. v. Marsh, 
 exempt certain classes of persons 7 Mete. 472; 4 Am. & Eng. Enc. 
 from the penalty denounced by Law p. 40 note. 
 
 the first, and the fact that one 21— State v. Wilson, 124 Iowa 
 
 penalty is substituted for the 264, 99 N. W. 1060 (1061). 
 
 other does not affect such exemp- 22 — People v. "Wells, 112 Mich, 
 
 tion. In fact, of the three classes 648. 71 N. W. 176 (177). 
 
 mentioned, two — that is to say. The court held that "there was 
 
 persons who at the time of their no error in this instruction. It had 
 
 second marriage have been di- crept out in the testimony that de-
 
 1784 
 
 FORMS OF INSTRUCTIONS. 
 
 [§ 2801. 
 
 § 2801. Extorting Money Under Threats of Criminal Prosecution 
 for Keeping Bawdy House. The court instructs the jury that, the 
 keeping of a bawdy house is an offense against the ordinances of the 
 city of Pensaeola, and if the defendant thrq,atened to turn M. over to 
 the criminal court for keeping a bawdy house unless she paid money, 
 this would be threatening to accuse her of a crime against the ordi- 
 nances of the city of Pensacola.^^ 
 
 § 2802. Accessory — House of 111 Fame. The court instructs the 
 jury, as a matter of law, that any one who aids, abets, assists or 
 encourages in the keeping or superintending of a house or of prem- 
 ises where pi'ostitution, fornication or concubinage is allowed or prac- 
 ticed, is guilty as principal.^* 
 
 INCEST. 
 
 § 2803. Definition of — Consent of Both Parties Not Essential to the 
 Crime of Incest. The court instructs you that the consent of both 
 parties is not essential to the crime of incest. If the party charged 
 have sexual intercourse with a female related to him within the de- 
 gree of consanguinity within which marriage is prohibited, he is 
 guilty of the crime of incest, whether the intercourse was with or 
 without the consent of such female.^^ 
 
 fendant had been charged with 
 selling- liquor without a license, 
 and testimony affecting her char- 
 acter for chastity had been given. 
 This instruction was in her inter- 
 est, and to ward against the jury 
 giving undue weight to those items 
 of testimony which tended to show 
 her guilty of other offenses." 
 
 23— Wallace v. State, 41 Fla. 547, 
 26 So. 713 (725). 
 
 24— Mash v. People, 220 111. 86, 77 
 N. E. 92 (95). 
 
 "This instruction, as an abstract 
 proposition of law, correctly states 
 the rule that all who are acces- 
 sories to the commission of a crime 
 are held as principals. It does not 
 purport to state that any one who 
 aids, abets, etc., in the operation 
 of a house of prostitution, is guilty 
 of the crime charged in the indict- 
 ment under which the plaintiff was 
 put to trial, and is not, as argued 
 by the plaintiff in error, faulty in 
 that it ignores all the elements 
 necessary to be found by the jury 
 to warrant a conviction of the 
 plaintiff in error." 
 
 25— People v. Stratton, 141 Cal. 
 604. 75 Pac. 166 (167). 
 
 The court said in comment that 
 "incest is denned by the Code as 
 follows: 'Persons, being within the 
 degrees of consanguinity within 
 
 which marriages are declared by 
 law to be incestuous and void, who 
 intermarry with each other, or 
 who commit fornication or adult- 
 ery with each other are punish- 
 able by imprisonment in the State 
 Prison not exceeding ten years.' 
 Pen. Code, par. 285. Upon this it 
 is urged and argued that the crime 
 of incest cannot be committed 
 without the mutual consent of the 
 parties, and that where, as here, 
 the act is shown to have been ac- 
 complished under circumstances 
 amounting to the rape of the fe- 
 male, the crime is not incest but 
 rape. In support of this view 
 there is authority of great weight 
 and dignity. Incest was not known 
 to the common law, and being, 
 therefore, a statutory crime, its 
 definition will be found to be as 
 various as the statutes themselves. 
 But in many states where no sub- 
 stantial distinction can be dis- 
 cerned between their laws defining 
 the offense and our own, the de- 
 cisions fully supnort appellant's 
 contention. The Supreme Court of 
 Oregon, in a careful and learned 
 opinion, reviews many of the 
 cases, and reaches the conclusion 
 which it expresses as follows: 'We 
 think the decided weight of au- 
 thority is that under a statute like
 
 §2804.] 
 
 CRIMINAL— INCEST. 
 
 1785 
 
 § 2804. Question of Relationship — Admission of Competent Evi- 
 dence, (a) If the defendant B. has been proven to have admitted 
 that G. was his daughter, such admission is competent evidence for 
 the jury to consider upon the question of the relationship of the de- 
 fendant to B., and is sufficient to establish the fact she was his 
 daughter, if it satisfies the jury on that fact beyond a reasonable 
 doubt. 
 
 ours, the crime of rape by forcible 
 ravishment and Incest cannot be 
 committed by the same act, but 
 that of incest requires the concur- 
 ring assent of both parties.' State 
 V. Jarvis, 26 Pac. 302, 23 Am. St. 
 141, 20 Or. 437. In DeGroat v. Peo- 
 ple, 39 Mich. 124, the learned Jus- 
 tice Cooley, speaking for the court, 
 said: 'Fornication, when the ele- 
 ment of near relationship makes it 
 incest, may be an offense equally 
 detestable and heinous, but it still 
 lacks the distinguishing character- 
 istic of rape. The one is accom- 
 plished by the impelling will of 
 one person, and the other by the 
 concurrent assent of two.' The 
 reasoning by which this conclusion 
 is reached in all of the cases which 
 so hold can be stated in the lan- 
 guage of the Supreme Court of 
 Oregon, in the case above cited, 
 as follows: 'It will be noticed that 
 the language of the statute is "with 
 each other," which necessarily im- 
 plies a concurrent act and the con- 
 sent of both parties. If one of the 
 parties is compelled by force to 
 submit to the act, there can be no 
 consent of such party, and the act 
 cannot be committed 'with each 
 other,' as declared by the statute.' 
 But this reasoning does not com- 
 mend itself. It interprets the law 
 as making mutuality of agreement 
 and joint consent of the essence of 
 the crime. This is done by judicial 
 construction, and not by the ex- 
 press declaration of the law. The 
 gravamen of the crime of incest, 
 as of rape, is the unlawful carnal 
 knowledge. In rape, it is unlawful 
 because accomplished by unlawful 
 means. In incest, it is unlawful, 
 without regard to the means, be- 
 cause of consanguinity or affinity. 
 Where both the circumstances of 
 force and consanguinity are pres- 
 ent, the object of the statute being 
 to prohibit by punishment such 
 sexual intercourse, it is not less in- 
 cest because the element of rape 
 is added, and it is not less rape 
 because perpetrated upon a rela- 
 tive. In this, as in every offense, 
 the guilt of the defendant is meas- 
 
 ured by his knowledge and intent, 
 and not by the knowledge and in- 
 tent of any other person. That 
 such has been the view of this 
 court is evidenced by People v. 
 Kaiser, 119 Cal. 456, 51 Pac. 702, 
 where the defendant was indicted 
 for the crime of incest, alleged to 
 have been committed upon his 
 daughter, a girl under 13 years of 
 age. As intercourse with a female 
 child incapable in law of giving 
 consent is declared to be rape, it 
 was argued against the indictment 
 that the offense charged was rape. 
 But this court said: 'Assuming 
 that the facts stated in the indict- 
 ment in this case were sufficient to 
 constitute the crime of rape, the 
 daughter then being under the age 
 of consent, still, under section 285 
 of the Penal Code, they clearly 
 constituted the crime of incest, and 
 the defendant was therefore prop- 
 erly put upon trial for that of- 
 fense.' In further support of this 
 view may be cited Bishop, Statu- 
 tory Crimes, par. 660; Wharton, 
 Criminal Law, par. 1751; State v. 
 Ellis, 74 Mo. 385, 41 Am. Rep. 321, 8 
 Am. Dec. 175; Mercer v. State, 17 
 Tex. App. 452; People v. Barnes, 
 2 Idaho (Hasb.) 161, 9 Pac. 532; 
 Smith v. State, 108 Ala. 1, 19 So. 
 S06, 54 Am. St. 140; State v. Cham- 
 bers, 87 Iowa 1, 53 N. W. 1090, 43 
 Am. St. 349; State v. Ellis, 11 Mo. 
 App. 588; Porath v. State, 90 Wis. 
 527, 63 N. W. 1061, 48 Am. St. 954. 
 
 If the prosecutrix, being of the 
 legal age of consent, consents to 
 the incestuous intercourse, un- 
 questionably she is particeps crim- 
 inis, and her testimony, like that 
 of any other accomplice, is insuf- 
 ficient to uphold a conviction. 
 Schoenfeldt v. State, 30 Tex. App. 
 695, 18 S. W. 640. But if, upon the 
 other hand, she is the victim of 
 force or fraud or undue influence, 
 or is too young to be able to give 
 legal assent, so that she does not 
 willfully and willingly join in the 
 inf^estuous act, she cannot be re- 
 garded as an accomplice. Porath 
 v. State, supra. In this case, the 
 instructions fairly left this matter
 
 1786 
 
 FORMS OF INSTRUCTIONS. 
 
 [§2805. 
 
 (b) If from the evidence you believe that the defendant B. and 
 the defendant G. 's mother were never married to each other, and that 
 the defendant B. is not the father of G., then the court instructs j'ou 
 that any sexual intercourse between the defendants, B. and G., would 
 not be incest, and you should acquit the defendant. 
 
 (c) If from the evidence you believe that the defendant B. is 
 not the father of G., but was the husband of her mother, and that 
 her mother was dead before any sexual intercourse, if any, occurred 
 between the defendants, B. and G., then the defendant B. would not 
 be guilty of incest, and you should acquit him. 
 
 (d) If you have any reasonable doubt from the evidence that B. 
 is the father of G., then you should give him the benefit of the doubt 
 and acquit him. 
 
 (e) If you have any reasonable doubt from the evidence of the 
 guilt of the defendant B. according to the instructions given you 
 then you should acquit the defendant.^^ 
 
 RAPE. 
 
 § 2805. Rape Defined. To constitute the crime of rape, it will 
 be necessary for you to find beyond all reasonable doubt that this 
 defendant had carnal knowledge of the body of this young lady by 
 
 open to the determination of the 
 jury." 
 
 26— Brown v. State, 42 Fla. 184, 
 27 So. 869 (871). 
 
 "It is contended," said the court 
 in comment, "that the instruction 
 excepted to is erroneous, under the 
 principles governing- the decision in 
 Green v. State, 21 Fla. 403, 58 Am. 
 Rep. 670. The indictment in that 
 case was for polygamy, and the 
 judgment of conviction w^as re- 
 versed because the only evidence 
 of the first marriage was that 
 proving cohabitation and repute. 
 If we admit that the principles 
 controlling the decision in that 
 case are applicable to proof of 
 marriages on indictments like the 
 one before us, they would not ap- 
 ply to the instruction complained 
 of here, because this instruction 
 does not relate to evidence of a 
 marriage, but to evidence of the 
 relationship between the parties 
 charged with crime. Perhaps, if 
 It had been necessary to prove that 
 O. was the legitimate daughter of 
 the plaintiff in error, the instruc- 
 tion would have been erroneous, 
 bocfiuse, to prove legitimacy, it 
 might be necessary to prove a 
 valid marriage; in which case, ac- 
 
 cording to the decision in State v. 
 Roswell, 6 Conn. 446, the principles 
 of the Green Case would be ap- 
 plicable. But the crime denounced 
 by our statute can be committed 
 by a father with his illegitimate 
 daughter, and it was therefore not 
 necessary to prove a valid mar- 
 riage between plaintiff in error and 
 the mother of G. Bishop St. 
 Crimes, par. 727; Baker v. State, 
 30 Ala. 521; People v. Jenness, 5 
 Mich. 305; State v. Schaunhurst. 34 
 Iowa 547; State v. Laurence, 95 
 N. C. 659. Evidence of the char- 
 acter mentioned in the instruction 
 is not only admissible, but it is 
 sufficient for the jury to found 
 their verdict upon, if believed by 
 them to be true. There was no er- 
 ror in giving this instruction in 
 connection with the other instruc- 
 tions mentioned. People v. Harri- 
 den, 1 Parker Cr. R. 344; Ewell v. 
 State, 6 Yerg. 364, 27 Am. Dec. 480; 
 State V. Bullinger. 54 Mo. 142; 
 Cook V. State, 11 Ga. 53; State v. 
 Sch'aunhursit, 34 Iowa 547; People 
 V. Jenness, 5 Mich. 305; Bergen v. 
 People, 17 111. 426, 65 Am. Dec. 
 672; 2 Whart. Cr. Law, par. 1753; 
 Bishop St. Crimes, par. 735."
 
 § 2806.] CRIMINAL— RAPE. 1787 
 
 force and against her Tvill, and I mean by that, it will be necessary 
 for you to find that the act was committed by force and against the 
 will of this young lady; that she did everything she could under the 
 circumstances to prevent defendant from accomplishing his purpose. 
 If she did not do that, it is not rape.^'^ 
 
 § 2806. Proof of Intercourse Alone Not Sufi&cient to Convict. You 
 are instructed that you cannot find the defendant guilty in this case 
 upon proof alone that defendant had intercourse with the complaining 
 witness."^ 
 
 § 2807. Moral Character of Prosecutrix — Reputation for Chastity. 
 Evidence has been introduced as to the moral character of the prose- 
 cuting witness, and as to her reputation for chastity and virtue. 
 You are not to understand from this that a rape cannot be com- 
 mitted on a woman of bad moral character. A woman may be a 
 common prostitute, and may still be a victim of a rape. This evi- 
 dence has been introduced only for the purpose of affecting her credi- 
 bility as a witness, and as a circumstance affecting the probability 
 of the act of intercourse being voluntary or against her will, — upon 
 the theory that a person of bad moral character is less likely to 
 speak the truth as a witness than one of good moral character, and 
 that a woman who is chaste and virtuous will be less likely to con- 
 sent to an act of illicit carnal intercourse than one who is unchaste. 
 So that whatever conviction the evidence may produce in your minds 
 as to whether she is of good or bad moral character, or as to whether 
 she is chaste or unchaste, you will treat it as a circumstance affecting 
 her credibility to aid you in determining whether her stoiy is true or 
 false, and the act of intercourse voluntary or against her will.-'' 
 
 § 2808. Defense of Consent by Prosecutrix, (a) To authorize 
 a conviction of rape, the jury must believe from the evidence, beyond 
 a reasonable doubt, that the defendant had carnal connection with 
 the prosecuting witness, forcibly and against her will, and that she 
 did not yield her consent during any part of the act. To constitute 
 the crime of rape, the will of the female alleged to have been outraged 
 must have been overcome, either by force, violence or fear. If she 
 consents to sexual intercourse in the least during any part of the act 
 there is no such opposing will as the law requires to convict on the 
 charge of rape.^° 
 
 (b) If the jury believe from the evidence that, on or about the 
 28th day of last July, the prosecutrix went to the barn where the 
 defendant was engaged in harnessing horses, and that mutual over- 
 tures were made between them leading to a mutual understanding 
 and desire to have intercourse there in the bara when they were dis- 
 
 27— People v. Murphy, 145 Mich. 467, 4 N. E. 64 (65), 5 N. E. 711, 
 524 (528). 108 N. W. 1009 (1011). 5 Am. Cr. Rep. 601. 
 
 28— People v. Howard, 143 Cal. 30— Brown v. People, 36 Mich. 
 316, 76 Pac. 1116 (1118). 203, 2 Am. Cr. Rep. 586; Ulrich v. 
 
 29 — Anderson v. State, 104 Ind. People, 39 Mich. 245; Maxey v. 
 
 State, 66 Ark. 523, 52 S. W. 2 (6).
 
 1788 FORMS OF INSTRUCTIONS. [§ 2809. 
 
 covered then the jury are instructed that they must find the defend- 
 ant not guilty.^*^ 
 
 § 2809. Involuntary Consent Induced "by Fear, (a) If you be- 
 lieve from the evidence in this case, that an act of sexual intercourse 
 did take place between the defendant and the prosecutrix, as averred 
 in the indictment, then, the question as to whether or not she did 
 voluntarily consent to such act, is a question of fact for you to de- 
 termine, from the evidence in the case. The defendant insists that 
 she did voluntarily consent thereto, and that he used no force or 
 coercion of any kind to compel such consent, but that she yielded to 
 his desires upon his request alone. While the prosecution insists 
 that she did not voluntarily consent, but that she resisted to the full 
 extent of her ability, and only yielded when her will was overpowered, 
 and that if she finally submitted to her fate it was against her will, 
 and for the fear of more serious consequences. You are to say from 
 the evidence, which, if either, is right, and, if, after giving due weight 
 to all the evidence, you find the prosecutrix did voluntarily consent 
 to such act of intercourse, and not under coercion, you should acquit; 
 but if you find, beyond a reasonable doubt, that the act was by force, 
 and against her will, and find the other facts averred in the indict- 
 ment established beyond a reasonable doubt, you should convict.^^ 
 
 (b) You are instructed that rape is a carnal knowledge of a 
 female, forcibly and against her will; and where threats of personal 
 violence are made to overcome her will, and she believes that her 
 person is in danger from said threats, and defendant has sexual con- 
 nection with her, then the law considers such carnal knowledge as 
 having been forcibly had, and against the will of the female.^^ 
 
 (c) If, at the time 'the man had carnal knowledge of the female, 
 her mind was overpowered by fear induced by the man, and thei'efore 
 she made no resistance, it is rape.^* 
 
 (d) If she w^as incapable of resistance through fear, or if resist- 
 ance -was entirely useless, there might be rape if no resistance was in 
 fact made. 
 
 (e) It is to be expected that resistance will be made, unless the 
 mind of the woman is so overcome by fear that she is incapable of 
 resistance, or unless there is such an exhibition of brute force as to 
 make resistance useless or impossible.^^ 
 
 (f) If the jury believe, from the evidence, beyond a reasonable 
 
 31— Adams v. People, 179 111. 633 will of the woman. Surely there 
 
 (637), 54 N. E. 296; assault with in- could not he such an absurdity as 
 
 tent to rape. claiming- that the act was not 
 
 32— Anderson v. State, 104 Ind. against the will of the woman 
 
 467. 4 N. E. 64 (65), 5 N. E. 711, 5 when her will was paralyzed with 
 
 Am. Cr. Rep. 601. fear through the wrongful act of 
 
 33— State v. Urie, 101 Iowa 411, 70 the defendant and she was inra- 
 
 N. W. 603 (604). pable of voluntarily consenting." 
 
 34— Rice v. State, 35 Fla, 236, 17 The court cited Hollis v. State, 27 
 
 So. 286 (287), 48 Am. St. 245. Fla. 387, 9 So. 67. 
 
 "The gist of the offense is forci- 35— State v. Long, 72 Conn. 39, 43 
 
 ble carnal knowledge against the Atl. 493 (495).
 
 § 2810.] CRIMINAL— RAPE. 1789 
 
 doubt, that the defendant had sexual intercourse with the said A. B. 
 against her will, then the defendant may be guilty of the crime of 
 rape, although the said A. B. did not make the utmost physical re- 
 sistance of which she was capable to prevent such intercourse, pro- 
 vided the jury further believe, from the evidence, beyond a reasonable 
 doubt, that the defendant threatened to use force and to do her great 
 bodily injury in case she did not submit, and that she did submit to 
 such sexual intercourse through fear that 'the defendant would do her 
 great bodily injurj-.^^ 
 
 § 2810. Rape — Prompt Complaint by Prosecutrix, (a) Upon the 
 trial of a defendant accused of the crime of rape the fact that the 
 prosecutrix made prompt and early complaint of the wrong and in- 
 jury committed u^Don her person, and to her character and chastity, 
 is admissible and may be received and considered by the jury in cor- 
 roboration of her other testimony given in the case.^'^ 
 
 (b) The court instructs the jury that if you believe, from the evi- 
 dence, that the prosecuting witness told her father of the assault 
 alleged to have been made on her at the earliest opportunity, then 
 that is a corroborating circumstance tending to sustain the truth of 
 her statements.^^ 
 
 § 2811. Failure of Prosecutrix to Complain. Though the jury 
 may believe, from the evidence, that the prosecuting witness did not 
 tell her (mother) or others of the alleged outrage upon her until, etc., 
 still, if the jury believe, from the evidence, beyond a reasonable 
 doubt, that the defendant was guilty of the crime charged in the in- 
 dictment, and, if the jury further believe, from the evidence, that at 
 the time of the alleged outrage the defendant threatened to take her 
 life if she ever told of what had occurred, and she was afraid she 
 would lose her life, or suffer soine great bodily harm, if she should 
 tell of the injuries complained of, then these facts would excuse the 
 prosecuting witness from communicating the knowledge of such in- 
 jury to others.2^ 
 
 § 2812. Failure of Prosecutrix to Make Outcry. If the jury be- 
 lieve, from the evidence, that at the time of the alleged rape other 
 people were at the same time in the same house, who might easily 
 
 36 — State v. Ruth, 21 Kas. 583. guarded, and have said that the 
 
 37 — People v. Keith, 141 Cal. 686, prosecuting- witness' telling her 
 
 75 Pac. 304. father of the assault was a cir- 
 
 "That the instruction is a cor- cumstance tending to sustain the 
 
 rect statement of the law is held truth of her statement on trial, 
 
 in People v. Lambert, 120 Cal. 170, and that such an assault was 
 
 52 Pac. 307, and in People v. Wil- made. This was the substantial 
 
 mot, 139 Cal. 103, 72 Pac. 838, and meaning of the instruction given, 
 
 we can see no error in so inform- and was probably so accepted." 
 ing the jury." See also State v. Niles, 47 Vt. 82; 
 
 38— Bean v. People, 124 111. 576 Pefferling v. State, 40 Tex. 486. 
 (582). 16 N. E. 656. 39— Turner v. People, 33 Mich. 
 
 The court said this "was .strictly 363. 
 too broad in its use of the term See al.so Brown v. State, 72 Miss, 
 
 'statements.' The instruction 997, 17 So. 278 (279). 
 
 might properly have been more
 
 1790 FORMS OF INSTRUCTIONS. [§ 2813. 
 
 have heard her had she made any outcry, and that she in fact made 
 no outcry at the time defendant was attempting 'to have connection 
 with her, these facts will tend to raise a presumption that no rape 
 was committed upon her at the time.-*** 
 
 § 2813. Outcry by Prosecutrix Prevented by Fear. If you find 
 the defendant committed the alleged offense upon the plaintiff, and 
 that the defendant threatened her and put her in fear, that is a cir- 
 cumstance to be taken into consideration by you in rebutting un- 
 favorable inferences from her not making outcry and offering more 
 physical resistance to the commission of the alleged offense-*^ 
 
 § 2814. Adulterous Disposition of Defendant and Prosecutrix— 
 How Material. You are further instructed that evidence of previous 
 act of sexual intercourse between the defendant and the prosecutrix, 
 and of improper familiarity on 'the part of the defendant towards 
 and with the prosecutrix, both before and after the time charged 
 in the information, is received and admitted in evidence to prove 
 the adulterous disposition of the defendant herein, and as having 
 a tendency to render it more probable that the act of sexual inter- 
 course charged in the information was committed on the 23d day of 
 February, 1902, and for no other pui-pose.*^ 
 
 § 2815. Rape — Circumstances Summed Up by the Court. The 
 charge of rape against a person is easy to make, difficult to prove, 
 and more difficult to disprove, and in considering a case of this kind, 
 it is the duty of the jury to carefully and deliberately consider, com- 
 pare and weigh all the testimony, facts and circumstances bearing 
 on the acts complained of, and the utmost care, intelligence and free- 
 dom from bias should be exercised by the jury in the consideration 
 thereof. The time and place of the alleged acts, relation of the de- 
 fendant to the said Y., upon whom the assault is alleged to have been 
 made; her age and intelligence, strength and physical development, 
 his influence and power over her, if any; her condition thereafter, 
 together with the condition of her clothes; evidence of injuries, if 
 any, upon her person; appearance of the same when examined; the 
 time since said injuries appeared to have been made; the length of 
 time after the alleged transaction before complaint was made by her; 
 the place where said acts are alleged to have been committed; the 
 corroborating evidence, if any; what was said by him, if anything 
 to the little girl, W., at the time of the alleged acts; what, if any- 
 
 40 — State v. Hagerman, 47 la. 151. fense had been committed was en- 
 
 41— Witzka v. Moudry, 83 Minn, tirely unnecessary." 
 
 78, 85 N. W. 911 (912). 42— People v. Edwards, — Cal. 
 
 "It seems very clear, upon a — , 73 Pac. 416 (417). 
 proper construction of this request, "In a ca.se like this it has been 
 that it cannot be held prejudicial held not to be error to admit evi- 
 to the defendant; for, if the of- dence of previous acts of sexual 
 fense had actually been committed intercourse between the parties for 
 as it assumes, the plaintiff was the purpose of showing the dis- 
 entitled to recover whether there position of the defendant. People 
 were threats or not, and all that v. Williams, 133 Cal. 168, 65 Pac, 
 relates to this subject after the of- 323; People v. Manahan, 32 Cal. 68."
 
 § 2816.] CRIMINAL— RAPE. 1791 
 
 thing, she, W., saw and heard at the time, — together with all the 
 other facts and circumstances of the case, as the same have been de- 
 veloped and established by the proof in the ease, should be consid- 
 ered by you while you are considering whether the defendant is or 
 is not guilty of the crime charged.*^ 
 
 § 2816. Prosecutrix Under Age of Consent, (a) Rape is the car- 
 nal knowledge of a female under the age of fifteen years, other than 
 the wife of the person, with or without her consent, and with or 
 without the use of force, threats or fraud. To constitute the crime 
 of rape, it is necessary that penetration be shown, but, if penetration 
 be shown to have actually taken place as a matter of fact, the degree 
 of penetration is immaterial. Penetration, as herein used, means the 
 penetration of the female organ of a female with the male member 
 or of a man.** 
 
 (b) If you believe from the evidence in this case beyond a rea- 
 sonable doubt that the defendant, J. P., in the county of Brazos and 
 state of Texas, on or about the month of February, A. D. 1902, did 
 have carnal knowledge of L. P., and did penetrate the female organ 
 
 of said L. P. with his male member or , and that said L. P. was 
 
 then and there a female under the age of fifteen years, and was not 
 then and there the wife of the defendant, J. P., you will find the de- 
 fendant guilty under the first count of the indictment, and assess his 
 punishment by death or by confinement in the penitentiary for life 
 or for any term of years not less than five.*^ 
 
 (c) You are further instructed that it is the policy of our law, as 
 expressed in the statutes, that any female under the age of sixteen 
 years shall be incapable of consenting to the act of such intercourse, 
 and that any one committing the act with a girl within that age 
 shall be guilty of rape, notwithstanding he obtained her actual con- 
 
 4J— ^State V. Watson, 81 la. 380, Compare People v. Totman, 135 
 
 46 N. W. 868 (869). Cal. 133, 67 Pac. 51 (53), where a 
 
 "In the Meshek case, 51 Iowa 308, like instruction is held to be an in- 
 
 1 N. TV. 685, an instruction was vasion of the province of the jury, 
 
 disapproved because the effect la State v. Trusty, 122 la. 82, 97 
 
 of it was to exclude from the con- N. W. 989 (991), the following in- 
 
 sideration of the jury certain evi- struction was refused by the trial 
 
 dence proper for the determination court: 
 
 of an important fact in the case. Such an accusation is easily 
 No such objection can be urged to made, hard to prove, and harder to 
 this instruction. It does call at- be defended against by the party 
 tention to particular and important accused, though ever so innocent, 
 facts, but has no such effect as The supreme court said: "While 
 limiting the evidence to be consid- it might have been given, yet we 
 ered in the finding of any fact in think, in view of the entire charge, 
 the case. So far as the condition there was no error in denying it. 
 of the hymen is concerned, it is No case has ever been reversed, 
 silent, as it is with regard to many to our knowledge, because of fail- 
 other incidental questions in the ure to give such cautionary in- 
 case but none are excluded in ef- struction." 
 
 feet because not mentioned. The 44 — Price v. State, 44 Tex. Cr. 
 
 mention of each fact in instruc- App. 304, 70 S. W. 966 (967); Bu- 
 
 tions Is not required of the court, chanan v. State, 41 Tex. Cr. App. 
 
 State v. Miller, 65 Iowa 60, 21 N. W. 127. 52 S. W. 769 (771). 
 
 181." 45 — Price v. State, supra.
 
 1792 FORMS OP INSTRUCTIONS. [§ 2817. 
 
 sent, and whether the girl in fact consented or resisted is immaterial 
 in this case. In the present case neither the element of force nor 
 the question of consent has any application. The prosecutrix could 
 not consent, and the law resists for her.*^ 
 
 (d) The jury are instructed that if you find, from the evidence, 
 beyond a reasonable doubt, that on the date mentioned in the indict- 
 ment the defendant was above the age of sixteen years and that the 
 prosecuting witness was under the age of fourteen years; and if you 
 further find, from the evidence, beyond a reasonable doubt, that the 
 defendant and the prosecuting witness were then in the office of the 
 defendant; and that the defendant then and there had the intent and 
 puri^ose to have carnal intercourse with M. G., either with or without 
 her consent, and that in pursuance of and in furtherance of such 
 intent and purpose the defendant then and there did acts toward the 
 accomplishment of such intent and purpose, and that he had then 
 and there the present ability to accomplish such intent and purpose, 
 then you should find the defendant guilty as charged.*'^ 
 
 § 2817. Age of Prosecutrix — How Proven. The state would not 
 be required to show the age of said Emma M. by a family record or 
 any instrument in writing; such proof may be made by oral testimony 
 of witnesses, and said Emma M. is a competent witness as to her 
 age, and such testimony may be based upon information with respect 
 thereto, if any she may have, from her parents.'*^ 
 
 § 2818. Reasonable Doubt as to Age of Girl. If you believe from 
 the evidence that at the time the defendant had sexual intercourse 
 with the prosecuting witness, as alleged, she was of the age of 15 
 years or over, then you will find the defendant not guilty; or, if you 
 have a reasonable doubt of the fact that she was under the age of 
 15 years, you will give defendant the benefit of such doubt and find 
 him not guilty.*'' 
 
 § 2819. Testimony of the Prosecutrix. The court instructs the 
 juiy that you yourselves are the sole judges of the weight of the 
 
 46 — People v. Totman, 135 Cal. the offense was forcible and 
 
 133, 67 Pac. 51 (52); People v. against the will of the girl or not, 
 
 Roach, 129 Cal. 33, 61 Pac. 574. and that the indictment was 
 
 47 — Addison v. People, 193 111. good." 
 
 405 (416), 62 N. E. 235. The prin- Note: By statute in Illinois age of 
 
 ciple stated in the instruction is consent is now sixteen years for fe- 
 
 correct and according^ to our de- male when with male of seventeen 
 
 cisions, although the authorities years or upwards. Male of sixteen 
 
 are not uniform on the subject, or upwards guilty of rape if done 
 
 That view was adopted in Porter without consent of female any age. 
 
 v. People, 158 111. 370 where W. A. III. Scss. Laws, 1905, p. 194. 
 
 P.. being over sixteen years old, 48 — State v. Scroggs, 123 la. 649, 
 
 was indicted for assault with in- 96 N. W. 723 (724). 
 
 tent to commit rape upon a girl 49 — Curry v. State, — Tex. Cr. 
 
 under fourteen, and the indictment App. — 94 S. W. 1058 (1060). 
 
 did not charge force. It was held "It did not impose on him the 
 
 that, inasmuch as the consum- burden of proof in that respect; 
 
 mated offense would have been nor was it a charge on the weight 
 
 rape, it was immaterial whether of testimony."
 
 § 2820.] CRIMINAL— RAPE. 1793 
 
 testimony that has been introduced before you, and in determining 
 what weight to give the testimony of the complaining witness in 
 this ease, you should take into consideration her appearance while 
 upon the stand, her ajDparent interest or lack of interest in the pro- 
 ceeding, if any appear, and her manner of testifying; and, in the 
 light of all her testimony, and of the other evidence in the case, you 
 should give to her testimony such weight, and only such weight, as 
 you think, under all the circumstances, it is entitled to. And if, 
 upon consideration of all the evidence in the case and the former 
 instructions of the court, you find that all the material allegations of 
 the complaint have been proved beyond a reasonable doubt, you 
 should find the defendant guiliy. If you find that the material alle- 
 gations of the complaint have not been so proved, then you should 
 find the defendant not guilty.^'' 
 
 § 2820. Whether Prosecutrix Need to Be Corroborated, (a) You 
 are instructed that in the case of rape it is not essential that the 
 prosecutrix should be corroborated by the testimony of other wit- 
 nesses as to the particular act constituting the offense, and if the 
 jury believe from the testimony of the prosecutrix, and the cor- 
 roborating circumstances, and facts testified to by other witnesses, 
 that the defendant did make the assault as charged, the law would 
 not require that the prosecutrix should be corroborated by other wit- 
 nesses as to what transpired at the immediate time and place when 
 it is alleged the assault was made.^^ 
 
 50— Maxfield v. State, 54 Neb. 44, State, 19 Neb. 728, 28 N. W. 278; 
 
 74 N. W. 401. Fager v. State, 22 Neb. 332, 35 N. 
 
 The above instruction was given W. 195; Hammond v. State, 39 Neb. 
 
 in response to an inquiry by a 252, 58 N. W. 92. This is exactly 
 
 juror was held good. the idea which the instruction con- 
 
 The court said: veys. It is not susceptible, we 
 
 "The contention is that the in- think, of any other reasonable in- 
 struction was not responsive to the terpretation." 
 
 inquiry made by the juror, and See also Matthews v. State, 19 
 
 for that reason was misleading Neb. 330, 27 N. W. 234. 
 
 and prejudicial. This criticism is In Brenton v. Territory, 15 Okla. 
 
 unavailing. The doctrine has been 6 (8), 78 Pac. 83, the following in- 
 
 repeatedly stated that mere non- struction was given: 
 
 direction by the trial court is no The court instructs the jury that 
 
 cause for the reversal of a crim- they cannot find the defendant 
 
 inal cause where there has been no guilty of the charge made in the 
 
 lefusal of a proper instruction indictment unless the testimony of 
 
 tendered. Hill v. State, 42 Neb. the prosecutrix is corroborated by 
 
 502, 60 N. W. 916; Housh v. State, other testimony admitted upon the 
 
 43 Neb. 163, 61 N. W. 571; Pjarrou trial of the cause. The testimony 
 
 v. State, 47 Neb. 294, 66 N. "W. 422." required by law in corroboration 
 
 51— Dunn v. State, 58 Neb. 807, must be of such character as, 
 
 79 N. W. 719 (720). standing alone, and without the 
 
 The court said: aid of the testimony of the prose- 
 
 "While the law in this class of cutrix, tends to connect the de- 
 cases requires that the prosecu- fendant with the commission of the 
 trix shall be corroborated. It does crime charged; and such testimony 
 not demand that the corroboration in corroboration must apply direct- 
 shall be by direct evidence of the ly to the defendant, and not be of 
 particular fact constituting the that character which may apply 
 crime. Proof of incriminating cir- as well to any other man. Unless 
 cumstances is sufficient. Krum v. the evidence in corroboration is of 
 113
 
 1794 FORMS OF INSTRUCTIONS. L§ 2820. 
 
 (b) In this case the prosecution relies for a conviction upon the 
 testimony of L. S., the prosecuting witness, and no other witness was 
 called by the territory to testify directly to the time and place or 
 circumstances of the alleged offense; and fon are instructed, in eases 
 where the territory relies upon the uncorroborated testimony of the 
 prosecutrix, unsustained by other evidence, or by facts and circum- 
 stances corroborating it, that you should view such testimony with 
 great caution, and it is the duty of the court to warn the jury of the 
 danger of conviction on such testimony. You are further instructed 
 that in considering her testimony you may take into consideration 
 the facts and circumstances surrounding the place where the alleged 
 offense is charged to have been committed — all the facts and cir- 
 cumstances at the time and immediately after the alleged offense 
 was committed — in determining the weight of her testimony, 
 and the reasonableness thereof, as tending to show to your minds the 
 credit to be given to the same.^^ 
 
 (c) The court instructs the jury that it is their province to de- 
 termine the weight and credibility to be given the testimony of a 
 female upon whom it is alleged in an information that a rape has 
 been committed, and who testifies to the facts and circumstances of 
 such rape as of any other witness testifjing in the case. And, if 
 such testimony creates in the mind of the jury a satisfaetoiy con- 
 viction and belief beyond a reasonable doubt of the defendant's guilt, 
 it is sufficient of itself, without other corroborating circumstances 
 or evidence, to justify a verdict of guilty of rape upon the trial of the 
 case.^^ 
 
 (d) The defendant in a prosecution for rape, or an assault with 
 intent to commit rape, cannot be convicted upon the testimony of the 
 
 such a character, then it is your viz.. Nebraska and New Mexico, 
 duty to find the defendant not With criminal procedure acts like 
 guilty. The test!mony of the sev- ours, the states of California, 
 eral witnesses who testified to ad- Florida, North Dakota, and Mon- 
 missions made by the defendant tana have held that such corrobo- 
 and the testimony of C. N. as to ration is not required, and the 
 the age of M. N. was intended to same is held by the courts of high- 
 corroborate, and was introduced est resort in Alabama, Arkansas, 
 for the purpose of corroborating, Arizona, Georgia, Illinois, Ken- 
 Ihe testimony of the prosecuting tucky, Michigan, Minnesota, Missis- 
 witness; and if you believe such sippi, Oregon, Pennsylvania, Texas, 
 testimony to be true, it would be Utah, Virginia, and Wyoming. 
 a sufficient corroboration of the Courts of last resort should be as 
 prosecuting witness; if, standing ready to correct their own errors 
 alone and without the aid of the as they are that of inferior courts, 
 testimony of the prosecuting wit- and, believing that the rule as 
 ness, it tends to connect the de- enunciated in Sowers v. Territory, 
 fendant with the commission of 6 Okla. 436, 50 Pac. 257, is not the 
 the crime, and tends to prove each law, said case is overruled. It 
 material fact in the case testified follows that the instruction given 
 by her. was more favorable to the defend- 
 The court said: ant than the law authorized." 
 "The rule of requiring the prose- 52— Trimble v. Territory, 8 Ariz, 
 cutrix to be corroborated in rape 273, 71 Pac. 932 (933). 
 cases is followed, it is believed, in 53 — People v. Keith, 141 Cal. 686, 
 but one state and one territory, ex- 75 Pac. 304. 
 cept where adopted by statute.
 
 § 2820.] CRIMINAL— RAPE. 1795 
 
 pei'soii injured, unless she be corroborated by other evidence tending 
 to connect the defendant with the commission of the offense. The 
 fact that a crime has been committed by some one may be estab- 
 lished by the testimony of the injured party alone. But in order to 
 convict for the offense of rape, or assault with intent to commit rape, 
 it is necessary that the testimony of the injured party be cor- 
 roborated b}^ other evidence tending to connect the defendant with 
 the commission of the crime. In arriving at a conclusion as to 
 whether the prosecutrix, M. S., has been corroborated by other evi- 
 dence tending to connect this defendant with the offense of rape, or 
 assault with intent to commit rape, you may consider all the facts and 
 circumstances surrounding the case established by the evidence at 
 the time of the commission of the offense, if one was committed, and 
 all other circumstances as shown by the evidence may be considered 
 by you in determining whether the prosecutrix, M. S., has been cor- 
 roborated by other evidence tending to connect the defendant with 
 the commission of the offense of rape, or assault with intent to com- 
 mit rape, if either of such offenses was committed. Mere proof of 
 opportunity to commit the offense is not sufficient coiroboration. 
 However, it is enough that the corroborating evidence tends to 
 strengthen and corroborate the prosecutrix in connecting the defend- 
 ant with the commission of the offense, and point out the defendant 
 as the person who committed the offense, if any was committed. It 
 is for 5'^ou to determine whether the testimony of the prosecutrix 
 in tins case has been sufificienth'' corroborated by other evidence 
 tending to connect the defendant with the commission of the offense 
 of rape, or assault with intent to commit rape, if either of such of- 
 fenses has been committed. 
 
 (e) You should acquit the defendant of the offense of rape un- 
 less the testimony of M. S. has been corroborated by other evidence 
 tending to connect the defendant with the commission of such of- 
 fense. And you should acquit the defendant of the offense of assault 
 with intent to commit rape unless the testimony of M. S. has been 
 corroborated by other evidence tending to connect the defendant with 
 the commission of such offense. 
 
 (f) Evidence has been admitted tending to show that the prose- 
 cutrix, M. S., made complaint to her brother and mother on July 18, 
 1902, that she had been ravished by defendant. Such complaints, if 
 any, would not be evidence corroboi'ating the testimony of prosecutrix 
 tending to connect the defendant with the commission of the offenses 
 of rape, or assault with intent to commit rape, if either of such 
 offenses was committed; and neither would the existence of injuries, 
 if any, to her genital organs, be corroboration of the testimony of 
 the prosecutrix tending to connect the defendant with the commis- 
 sion of either offense of rape, or assault with intent to commit rape, 
 if either offense was committed: but the evidence of such complaints 
 was admitted as tending to confirm or corroborate the truth of her 
 testimony. The law is that a failure by the prosecutrix to imme-
 
 1796 FORMS OP INSTRUCTIONS. [§ 2821 
 
 diately complain is looked upon as a suspicious circumstance that her 
 story is a fabrication. Hence the testimony of such complaints was 
 admitted for the purpose of testing the accuracy and veracity of the 
 prosecuting witness, and for no other i3urpose.2'* 
 
 § 2821. Attempted Rape — Definition of. (a) It will be necessary 
 for you to find that the defendant made an assault upon this young 
 girl, and actually intended to use whatever force was necessary to 
 accomj^lish his purpose, and if you find that he did that and actually 
 intended that, it would be your duty, and you would be authorized 
 in finding him guilty of an assault with intent to commit the crime 
 of rape, if you find that he ought not to be convicted of the graver 
 charge. ^^ 
 
 (b) The jury are instructed that they should acquit defendant 
 unless they believe from the evidence, beyond a reasonable doubt, 
 that defendant did by force attempt to enter the house mentioned in 
 the indictment, and that it was then and there his intention to have 
 carnal knowledge of the said X. by force, and without her consent.^® 
 
 § 2822. Assault With Intent to Commit Rape — Essential Elements. 
 
 (a) If you are satisfied beyond a reasonable doubt, from the 
 evidence, that the defendant took hold of said X., and tore open her 
 cloak, and seized her arm, with the intent of having carnal inter- 
 course with her against her will, and with the intent of accomplishing 
 his object at all events, without regard to any resistance she would 
 make, then he is guilty of an assault with intent to commit rape; 
 and, if you are satisfied of this beyond a reasonable doubt, you should 
 so find.^^ 
 
 (b) The jury should convict the defendant of an assault with in- 
 tent to commit a rape, if they believe, from the evidence, beyond a 
 reasonable doubt, that at the time in question he committed an assault 
 on the prosecutrix for the purpose of having carnal intercourse with 
 her, and that in making the assault he intended to use whatever force 
 might be necessary to overcome the prosecutrix and accomplish his 
 purpose.^^ 
 
 (c) It must be shown in this ease by the evidence, beyond a rea- 
 
 54— State v. Carpenter, 124 Iowa App. 51, 51 S. W. 923 (924). 96 Am. 
 
 5, 98 N. W. 775 (778). St. 762. 
 
 55— People v. Murphy, 145 Mich. 57— State v. Urie, 101 Iowa 411, 
 
 524, 108 N. W. 1009 (1011). 70 N. W. 603 (604). 
 
 "It is objected that in this case "The court simply tells the jury 
 
 the court was in error in charging that certain facts, if proven, would 
 
 the jury that respondent might be constitute an assault, and also 
 
 found guilty of an offense less than says that if they found they were 
 
 the crime of rape. The action of done with a certain intent and 
 
 the court was authorized by the against her will, then he will be 
 
 decisions of this court. People v. guilty of the crime charged. There 
 
 Miller, 96 Mich. 119, 55 N. W. 625, is no doubt of the correctness of 
 
 find cases cited; People v. Abbott, this instruction." 
 
 97 Mich. 484, 56 N. W. 862, 37 Am. 58- State v. Cnnnada, 68 la. 397; 
 
 St. 360 and cases cited." Krum v. State, 19 Neb. 728. 
 
 56— Byas v. State, 41 Tex. Cr.
 
 § 2823.] CRIMINAL— RAPE. 1797 
 
 sonable doubt, not only that the defendant committed an assault 
 upon the female, but that he did so with intent to compel her, by 
 force and against her will, to have sexual intercourse with him not- 
 withstanding any resistance she might make.°^ 
 
 (d) If you are satisfied beyond a reasonable doubt, from the evi- 
 dence, that the defendant took hold of the prosecuting witness with 
 intent to have carnal intercourse with her against her will, and with 
 an intent to accomplish his object at all events by his strength and 
 power, or by threats of violence, against any resistance which she 
 might offer, then he was guilty of an assault with intent to commit 
 a rape, w^hether he succeeded in his purpose or not.*^° 
 
 (e) The information charges the defendant with an assault with 
 an intent to commit rape. You are instructed that the attempt eon- 
 temjDlated in this charge must be manifested by acts which would end 
 in the consummation of the particular offense but for the intervention 
 of circumstances independent of the will of the accused; and al- 
 though you find from the evidence that the defendant did, at the 
 time charged in the information, take hold of the said X., expose her 
 pi'ivate parts, and make an indecent exposure of his own person, yet 
 if he desisted in his attemj^ts to have sexual intercourse or abuse 
 her upon his own volition, without the intervention of circumstances 
 independent of his own will, the law would presume that he did not 
 intend to carnally know or abuse said X. ; but, on the other hand, if 
 you should find from the evidence, and beyond a reasonable doiabt, 
 that the defendant proceeded in efforts to carnally know or abuse 
 the said X., and desisted therefrom by reason of some intervening 
 circumstance not dependent upon his own will, or by the intei'vention 
 of some third party, then the law would presume that he did intend 
 to carnally know or abuse the child in question; and this would be 
 true even though you should believe from the evidence that sexual 
 intercourse between the defendant and the said X. would be impos- 
 sible, and that the only physical possibility in the attempt at sexual 
 intercourse was to place the genital organs of the defendant in con- 
 tact with the genital organs of the said child. ®^ 
 
 § 2823. Assault with Intent to Commit Rape — Abandonment of 
 Purpose. The jury are instructed that if you are satisfied, from tho 
 evidence, bej^ond a reasonable doubt, that the defendant laid hands 
 on L. C. violently and against her will, for the purpose of having 
 sexual intercourse with her, and that at the time he so laid hands 
 upon her he intended to accomplish his purpose at all hazards, ii^ 
 
 59— State v. McDevitt, 69 la. 549; that they miarht find the priso- 
 
 State V. Kendall, ?A N. W. S43. guilty of the offense cha'-p-ed '^ 
 
 60— People v. Lynch, 29 Mich, though they beMeved he d''"" -■^ 
 
 274. tend to h'^ve sexual int'^" ■ 
 
 61— Palin v. State, 38 Neb. 862, with X. Webster de«nps th- ■ 
 
 57 N. W. 743 (744). 'afcrse' th"s: 'To vio'-^te; tn r??v- 
 
 The court .said: ish'; and the noun 'abuse' t^^e same 
 
 "The jury could not have infer- authority defines as 'violation; 
 
 red from the language of the court rape; as, abuse of a female child.' "
 
 1798 FORMS OF INSTRUCTIONS. [§ 2824. 
 
 defiance of and notwithstanding any resistance that she might make, 
 then the defendant was guilty of an assault with intent to commit 
 rape, although he may have subsequently abandoned his purpose. '''- 
 
 § 2824, Intent to Overcome Prosecutrix with Force Essential. In 
 order to convict the defendant of an assault Avith an intent to commit 
 a rape, the jury must be satisfied beyond a reasonable doubt, from 
 the evidence, that the defendant assaulted the prosecuting witness 
 with the intent at the time to overcome any resistance which might 
 be offered by her. And so although the juiy may believe that the 
 defendant, inflamed with passion, went to the bed of the prosecuting 
 witness with intent to have carnal connection with her, still, if you 
 have any reasonable doubt, from the evidence, as to whether he in- 
 tended to accomplish his purpose by force and to overcome by 
 violence or fear any force that might be offered to resist him, or 
 whether he went with the design only to accomplish his puipose if he 
 could without force or threats, then the act would only amount to an 
 assault or assault and battery, but the defendant cannot be convicted 
 of an assault with an intent to commit a rape.'^^ 
 
 § 2825. Reasonable Doubt as to Defendant's Intent to Overcome 
 All Resistance with Force. The jury are further instructed, as a mat- 
 ter of law, that the intent is, in this case, the essence of the offense 
 charged, and, although you may find, from the evidence, that the de- 
 fendant did commit an assault upon the prosecutrix for the purpose 
 of having carnal intercourse with her, still, if, after considering all 
 the evidence in the case, you are no^t satisfied bej'^ond a reasonable 
 doubt, that, at the time of committing the assault, he intended to 
 compel her by force and against her will, to have sexual intercourse 
 with him, notwithstanding any resistance she might make, then it 
 will be your duty, under the law, to acquit the defendant. *^'^ 
 
 § 2826. Not Necessary That Every Instruction Should Show the 
 Prosecutrix Not to Be the Wife of the Defendant. If you believe 
 from the evidence that defendant did have carnal knowledge of said 
 X., and if you further believe from the evidence that said. X. was 
 then under the age of fifteen years, you will convict defendant of 
 rape.^'^ 
 
 § 2827. Definition of Carnal Abuse. Carnal abuse means any 
 abuse of the female child's genital organs, either by the defendant's 
 
 62— State v. Williams, 121 N. C, 65— Hill v. State, — Tex. Cr. App. 
 
 628, 28 S. E. 405 (406). — , 77 S. W. 808. 
 
 See also Palin v. State, 38 Neb, In that case the first portion of 
 
 862. t,7 N. W. 743 (744). the charge, in defining- rape, stated 
 
 6.3 — People v. Lynch, 29 Mich, that the same must be committed 
 
 274. "upon another than the wife of the 
 
 64 — State v. Cannada, 68 la. 397; person," etc. The evidence showed 
 
 Krum V. State, 19 Neb. 728; State that prosecutrix was not the wife 
 
 V. Kendall, 73 Ta. 255, 34 N. W. 843; of defendant. H^d therefore 
 
 Strong V. State, 63 Neb. 440, 88 N. there was no reversible error in 
 
 W. 772 (773). the omission mentioned.
 
 §2828.] CRIIVnNAL-RAPE. 1799 
 
 private parts, or by rough handling of or use of her private pai'ts by 
 him in an3' way.*'^ 
 
 § 2828. Rape— Assault with Intent to Commit Rape— Series. 
 
 (a) Rape Defined— Rape is the carnal knowledge of a female, 
 forcibly and against her will. So, in this case, if you should find 
 from the evidence, beyond a reasonable doubt, that the defendant, 
 J., in Crawford County, Arkansas, at any time before the finding of 
 the indictment herein, which was on April 4, 1899, forcibly and against 
 the will of a female named H., had cai-nal knowledge of her, the said 
 H., you will find the defendant gniilty of rape. If you do not so 
 find beyond a reasonable doubt, you will acquit the defendant of rape. 
 
 (b) Carnal Knowledge Defined— Carnal knowledge is the inser- 
 tion of the male organ of the male to some extent, however slightly, 
 into the female organ of a female; and if this is done forcibly and 
 against the will of the female it is rape. 
 
 (e) Carnal Knoxoledge, Consent— li you believe from the evi- 
 dence that the defendant did not have carnal knowledge of the prose- 
 cuting witness, you will, of course, not find him guilty of rape; and 
 if you find from the evidence that he did have carnal knowledge of 
 her, but that it was with her consent, why, then, you will find him 
 not guilty. 
 
 (d) Force — Absence of Consent — To authorize a conviction of 
 rape, the jury must believe from the evidence, beyond a reasonable 
 doubt, that the defendant had carnal knowledge of the prosecuting 
 witness, forcibly and against her will, and that she did not yield her 
 consent during any part of the act. To constitute the crime of rape, 
 the will of the female alleged to have been outraged must have been 
 overcome, either by force, violence or fear. If she consents to sexual 
 
 66 — State v. Hummer, 72 N. J. successfully attempted to insert 
 
 Law 328 (331), 62 Atl. 388. his into the private parts of 
 
 "The contention made on behalf this girl, causing her some pain in 
 of the defendant is that there may doing- so. No evidence was intro- 
 be a rough handling of the private duced showing any rough handling 
 parts of a female child under such of her parts, except this attempted 
 circumstances as to disprove that entrance of her person. The ab- 
 the person so doing was guilty of stract proposition complained of 
 the crime of carnal abuse, and that might possibly have been consid- 
 therefore this instruction was er- ered by the jury as an instruction 
 roneous. But, assuming that this that, in order to justify a con- 
 contention is well founded, it af- viction, there must have been a 
 fords no ground for reversing the rough handling of the girl's private 
 conviction. By virtue of the 136th parts while attempting to effect an 
 section of the criminal procedure entrance into her person. It is not 
 act (P. L. 1898, p. 915), no judgment possible, it seems to us, that they 
 given upon any indictment shall should have based their verdict of 
 be reversed for any error, except guilty upon a conclusion that there 
 such as shall or may have preju- had been no attempt on the part 
 diced the defendant in maintain- of the plaintiff to enter the girl's 
 ing his defense upon the merits, person, but that he had roughly 
 In the case before us the proof handled her private parts, in the 
 submitted by the state, in sup- absence of any evidence whatever 
 port of the charge laid agaitjst the upon which to found such a con- 
 defendant, was that he had un- elusion."
 
 1800 FORMS OF INSTRUCTIONS. [§ 2828. 
 
 iBtercourse in the least during any part of the act, there is not such 
 an opposing will as the law requires to convict on the charge of 
 rape. 
 
 (e) Penetration— li you have a reasonable doubt from all the 
 evidence in the ease that the defendant's private part or member ac- 
 tually penetrated the private part or organ of H. forcibly and against 
 her will, then you must acquit the defendant of the charge of rape, 
 
 (f) Presumption of Innocence— You must not allow the gravity 
 of the charge, nor the fact that the defendant is a negTO and the 
 prosecuting witness a white woman, to in any way sway or bias your 
 judgment in your deliberations upon a verdict. You must look alone 
 to the evidence in this case, and from it make your decision. The 
 defendant is entitled to your calm, unbiased and deliberate judgment 
 upon the truthfulness of the charge against him. He is presumed 
 by the law to be innocent, and this presumption is evidence in his 
 behalf, and protects him from a conviction until his guilt is estab- 
 lished beyond a reasonable doubt. If therefore you have a reasonable 
 doubt of the defendant's guilt, after a careful and unbiased con- 
 sideration of all the evidence in the case you must resolve that doubt 
 in his favor and return a verdict of not guilty. 
 
 (g) Reasonable Doubt — The defendant is presumed to be innocent, 
 and this presumption is evidence in his favor, and protects him from 
 conviction until his guilt is established to your satisfaction beyond 
 a reasonable doubt. If the evidence does not so satisfy you, this 
 presumption of innocence absolutely entitles the defendant to an 
 acquittal. A reasonable doubt is not a mere captious or imaginary 
 doubt, but it is a doubt that arises naturally in your minds after a 
 fair and impartial consideration of all the evidence in the case, and 
 leaves your minds in that condition that you do not feel an abiding 
 conviction to a' moral certainty of the truth of the charge. The law, 
 in order to convict does not require the guilt of the defendant to 
 be established to an absolute certainty, but it does require his guilt 
 to be established to your satisfaction to a moral certainty; and that 
 is a certainty that convinces and directs your understanding and 
 satisfies your reason and judgment of the truth of the charge. If 
 therefore the proof in this case convinces and directs your under- 
 standing, and satisfies your reason and judgment of the guilt of the 
 defendant of the charge here made ag'unst him, you will convict him. 
 If it does not you will acquit the defendant. 
 
 (h) Credihiliti/ and Weight— The jury are the sole and exclusive 
 judges of the credibility of the witnesses, and of the weight to be 
 attached to their testimony, and in determining this you may take 
 into consideration the intere'^t, if any. the witness has in the result of 
 the trial; his bias or preiudiee, if nnv. for or aca^nst the accused; 
 his mental capacitv fr\v knnwin<r nn^l h'=; moans of kn'-'w^ns" that about 
 which he testifies: the reasonableness or unreasonableness of his 
 statements, his demeanor on the witness stand; his candor or eva-
 
 § 2828.] CRIMINAL-RAPE. 1801 
 
 sion, if either appear, — and applying your knowledge and observa- 
 tion of human actions, motives, and affairs, you will find the tx'uth, 
 and present the same in your verdict. 
 
 (i) Alibi— The defendant in this case undertakes to show that at 
 the time the rape charged was alleged to have occurred, he was not 
 at the place where it was alleged to have happened, but at another 
 place, and that, therefore, he is not guiltj' of the charge made against 
 him. The burden of showing an alibi is upon the defendant, but if, 
 on the whole ease, the testimony raises a reasonable doubt that the 
 defendant was present when the crime was committed, if in fact, it 
 was committed, he should be acquitted, but the jury should scrutinize 
 the testimony of witnesses to see if some of them may or may not 
 have been mistaken as to the precise time they saw the defendant 
 on the evening the offense is alleged to have been committed, and 
 in arriving at your conclusion on this point, the jury should consider 
 whether it may or maj' not be true that the defendant was present 
 at the time the offense is said to have been committed, if in fact, it 
 was committed, and that some of the witnesses are honestly mistaken 
 as to the exact time they saw the defendant on the evening of March 
 17, 1899. 
 
 (j) Evidence, Direct or Circumstantial— The guilt of the defendant 
 may be established by either direct or circumstantial evidence or by 
 both, and if his guilt is established to your satisfaction beyond a 
 reasonable doubt, by either direct or circumstantial evidence, or by 
 both, you will convict; if not you will acquit. 
 
 (k) Assault with Intent to Rape— An assault is an unlawful at- 
 tempt, coupled with present abilitj", to commit a violent injury on 
 the person of another. An assault with intent to commit a rape, is 
 an assault committed upon a female with the intent existing in the 
 mind of the assaulting party to have carnal knowledge of the female 
 forcibly and against her will. 
 
 (1) Summary — In this ease, if you should find, from the evidence 
 beyond a reasonable doubt that the defendant in Crawford County, 
 Arkansas, at any time within three yeai's next before the 4th of April, 
 1899, committed an assault upon a female named H. with the intent 
 at the time to have carnal knowledge of her forcibly and against her 
 will, and entertain a reasonable doubt as to whether such attemjDted 
 carnal knowledge was completely effectuated, you will convict de- 
 fendant of assault with intent to rape, and assess his punishment in 
 the penitentiary at some period of time (naming it) not less than 
 three years nor more than twenty-one years. If the defendant is 
 not shown beyond a reasonable doubt to be guilty of either rape or 
 assault with intent to rape committed on a female named H. you 
 will acquit him entirely, but if he is shown to be guilty of either rape 
 or assault with intent to rape, you will convict of the one of which 
 his guilt is established beyond a reasonable doubt. Or, if his guilt
 
 1802 FORMS OP INSTRUCTIONS. [§2829. 
 
 of both is made out beyond a reasonable doubt, you will convict of 
 rape.^^ 
 
 SEDUCTION. 
 
 § 2829. Illicit Intercourse Alone Is Not Seduction— What Consti- 
 tutes the Oliense. The jury are instructed that illicit intercourse 
 alone does not constitute the crime of seduction. To constitute this 
 offense it must appear from the evidence, beyond a reasonable doubt, 
 that the complaining witness yielded to some sufficient promise or 
 inducement held out to her by the defendant and had been thereby 
 drawn aside from the path of virtue which previous to that time she 
 had been honestly pursuing. "^^ 
 
 § 2830. Not Seduction When By Force and Against Her Will. 
 Though the jury may believe, from the evidence, beyond a reasonable 
 doubt, that the defendant had sexual intercourse with the complain- 
 ing witness, still, if the jury further believe, from the evidence, that 
 he had such intercourse by force and against the will of the said 
 A. B., this would not constitute the crime of seduction, and the juiy 
 should acquit the defendant of that charge.^'' 
 
 § 2831. Seduction Under Promise of Marriage — Refusal of Prose- 
 cutrix to Marry Defendant — Proof Required. If the jury believe 
 from the evidence, beyond a reasonable doubt, that the defendant ob- 
 tained carnal knowledge of S. by virtue of an exjDress promise of 
 marriage made by him to her, and that said marriage was by agree- 
 ment of the parties set to take place on the fourth Sunday in June, 
 1899, and that said marriage has not taken place, and that the de- 
 fendant seeks to justify his failure to make said marriage on the 
 ground of the refusal of the sadd S. to join him in the maiTiage, then 
 he must prove such refusal on the part of said S. to your satisfaction, 
 by a preponderance of the testimony; in other words, the burden of 
 proof is on the defendant in such matter of defense.'^*' 
 
 § 2832. Promise of Marriage — Female Thought to Be of Previous 
 Chaste Character — Unchaste at Time of Seduction. Although the jury 
 may believe from the evidence, beyond a reasonable doubt, that the 
 prisoner had illicit connection with the prosecutrix under promise of 
 marriage, and may have thought at the time that she was a female 
 of previous chaste character, yet they must find him not guilty if 
 they believe she was unchaste at the time of said seduction.'^' 
 
 § 2833. Previous Chaste Character— Promise to Marry— Reasonable 
 Doubt. The court instructs the jury that if you believe from the 
 evidence, beyond a reasonable doubt, that the prosecutrix was an un- 
 married female, of previous chaste character, at the time of her al- 
 leged seduction, and that she was seduced by the prisoner by having 
 
 f;7_l\Toxey v. Rtnte, 66 Ark. 523, 70— Cnlrlwell v. State, 69 Ark. 322, 
 
 r.2 S. W. 2 (3) approves the above 63 S. W. 59 (61). 
 
 .series of Instructions. 71 — Barker v. Commonwealth, 90 
 
 68— People v. Clark, 33 Mich. 112. Va. 820, S. E. 20, 776 (777). 
 
 69— Slate v. Dewis, 48 la. 578, 30 
 Am. Rfp. 407.
 
 § 2834.] CRIMINAL— SEDUCTION. 1803 
 
 illicit connection with her under jiromise of marriage, you should 
 find him guiltj\'^- 
 
 § 2834. Voluntary Consent as a Defense. The court charges the 
 juiy that, if the evidence shows beyond a reasonable doubt that P. 
 consented and entered into the sexual act voluntarily, the defendant 
 cannot be convicted.'^ 
 
 § 2835. Circumstantial Evidence Sufficient to Corroljorate — Proof 
 of Acquaintance and Opportunity Not Sufficient, (a) The court in- 
 structs the jury that circumstantial evidence may be relied upon to 
 establish the corroboration required by the statute in such eases, and, 
 if it be shown by evidence, other than that of the prosecuting witness, 
 that the defendant visited her at her home or elsewhere, and that they 
 kept company together, and acted as lovers usually do, is sufficient 
 to justify a conviction, if, when considered in connection with her 
 evidence and all the other evidence in the case, you are satisfied be- 
 yond a reasonable doubt of the defendant's guilt. You will bear 
 in mind, however, that you are the judges of the sufficiency of the 
 corroborating evidence when it is such as tends to connect the de- 
 fendant with the commission of the oifense charged. 
 
 (b) Mere proof of acquaintance and opportunity to have com- 
 mitted the offense is not sufficient, but there must be such corroborat- 
 ing evidence as tends to connect the defendant with the commission 
 of the offense and coii'oborate her evidence in relation to the crime 
 charged.'* 
 
 §2836. Complainant's Contradictory Evidence — Reasonable Doubt. 
 In determining what credit should be given to the testimony of the 
 complaining witness, it is your duty to consider her contradictory 
 statements upon the stand, and her testimony that she had knowingly 
 sworn falsely, and if, after such consideration, you have a reasonable 
 doubt of the truth of her testimony in relation to the defendant's 
 promise of mamage, or her yielding to him in consequence thereof, 
 you must acquit the defendant.''^^ 
 
 § 2837. Presumption of Innocence — Jury Must Reconcile Evidence 
 and Indictment — Compromise Cannot Bar Prosecution, (a) The 
 court instructs the jury tliat the prisoner comes to trial presumed to 
 be innocent, and this presumption continues until it is rebutted by the 
 commonwealth beyond a reasonable doubt: and the juiy cannot con- 
 vict unless they can reconcile from the evidence the guilt of the pris- 
 oner with all the necessary allegations of the indictment. 
 
 (b) The court instinicts the jury that no compromise between the 
 prosecutrix and the prisoner, or any one else, could bar a prosecu- 
 tion by the commonwealth for the crime charged in the indictment.'''^ 
 
 72— Barker v. Commonwealth, 90 74— State v. Smith, 124 Iowa 334 
 
 Va. S20, 20 S. E. 776. citing Kenyon (339), 100 N. W. 40 (42). 
 
 V. People, 26 N. Y. 203, 84 Am. Dec. 75— People v. Hubbard, 92 Mich. 
 
 177; Boyce v. People. 5.5 N. Y. 644; 322, 52 N. W. 729 (730). 
 
 State v. Heatherton, 60 Iowa 175, 76 — Barker v. Commonwealth, 90 
 
 14 N. W. 230. Va. 820, 20 S. E. 776. 
 
 73— Hall V. State, 134 Ala. 90, 32 
 So. 751 (755).
 
 CHAPTER XCIII. 
 
 CRIMINAL— ASSAULT AND BATTERY. 
 See Erroneous Instructions, same chapter head. Vol. III. 
 
 §2838. Assault and battery— De- 
 fined. 
 
 §2839. Intent— How proven. 
 
 § 2840. Assault in sudden affray, 
 and in sudden heat of pas- 
 sion — Punishment. 
 
 § 2841. Mutual combat— Both par- 
 ties guilty. 
 
 § 2842. Justification— Ejecting tres- 
 passer upon land. 
 
 § 2843. Justification— Keeping order 
 in religious meeting. 
 
 § 2844. Repelling seizure of dog. 
 
 §2845. Insults as justification. 
 
 § 2846. Prosecutrix visiting defend- 
 ant. 
 
 § 2847. Violating ordinance against 
 profane sweai'ing — At- 
 tempted arrest — Shooting 
 at offender. 
 
 § 2848. Assault by policeman- 
 Striking with hand or club 
 — Self defense. 
 
 § 2849. Counter-assault — Bringing 
 on difficulty- Self-defense. 
 
 §2850. Use of fire arms; pointing 
 g'un in the air or discharg- 
 ing same. 
 
 § 2851. Presence of others at the 
 time of assault — Aiding or 
 abetting. 
 
 § 2852. Aggravated assault — De- 
 fined. 
 
 § 2853. Aggravated assault — Em- 
 bracing a woman — Intent 
 to injure. 
 
 ASSAULT WITH INTENT TO KILT- 
 
 OR MURDER. 
 § 2854. Assault with intent to mur- 
 der — To kill defined. 
 
 § 2855. Assault with intent to mur- 
 der — What lesser crimes 
 included. 
 
 § 2856. Intent must be proven. 
 
 § 2857. Assault with intent to mur- 
 der—Intent — How proven. 
 
 § 2858. Whether intent is proved. 
 
 § 2859. What jury should consider 
 in determining whether in- 
 tent was present. 
 
 § 2860. Animus, purpose and intent 
 may be shown by writing 
 of a valentine. 
 
 § 2861. Incapable of f oi-ming intent 
 from drunkenness. 
 
 § 2862. Burden of proof— Justifica- 
 tion. 
 
 § 2863. Adequate cause — Insulting- 
 words. 
 
 § 2864. Must be murder had death 
 ensued — Deliberation. 
 
 § 2865. Assault with intent to mur- 
 der — Malice and delibera- 
 tion necessary elements — 
 Malice defined. 
 
 § 2866. Assault with intent to kill 
 — Malice and deliberation 
 not necessary elements. 
 
 § 2867. Assault with deadly weapon 
 — Implied malice. 
 
 § 2868. Assault with intent to com- 
 mit voluntary manslaugh- 
 ter. 
 
 § 2869. Included crimes — Reason- 
 able doubt acquits. 
 
 § 2870. Assault with intent to kill- 
 Circumstantial evidence. 
 
 S 2871. Assault with intent to mur- 
 der — Form of verdict. 
 Note. — For instructions on the 
 
 subject of Self-Defense, see chap- 
 ter, Homicide — Self-defense. 
 
 § 2838. Assault and Battery — Defined, (a) The court instructs 
 the jury that an assault is an unlawful attempt to commit violence 
 upon the person of another, with the present ability to do so. 
 
 (b) A battery is an unlawful beating of another. Every battery 
 includes an fis'^rti^'''^/' 
 
 1 — State V. Cndy, 'J4 li. iuj, o. ''We think *hp definition in 
 N. W. 702, 10 Am. Cr. Rep. 41. either case is sufficiently accurate. 
 
 1804
 
 §2839.] CRIMINAI^-ASSAULT AND BATTERY. 1805 
 
 (e) You are charged that the use of any dangerous weapon, or the 
 semblance thereof, in an angi-y or threatening manner, with the intent 
 to alarm another, and under circumstances calculated to effect that 
 object is an assault.^ 
 
 (d) The use of any unlawful violence upon the person of another 
 with intent to injure him, whatever be the means or degree of vio- 
 lence used, is an assault and battery. Any attempt to commit a 
 battery, or any threatening gesture, showing in itself or by words 
 accompanying it an immediate intention coupled with an ability to 
 commit a battery, is an assault.^ 
 
 § 2839. Intent — How Proven, (a) The court instructs the jury 
 that the intent with which an act is done is a mental process, and as 
 such generally remains hidden within the mind where it is con- 
 ceived, and is rarely, if ever, susceptible of proof by direct evidence, 
 but must be infeiTed or gathered from the outward manifestations by 
 the words or acts of the party entertaining them, and the facts or 
 circumstances sun'ounding or attendant ujwn the assault with which 
 it is charged to be connected.^ 
 
 (b) In this case the intent must be derived from the evidence of 
 the deed committed, in connection with the other evidence in the case ; 
 and it is for you to say from the evidence in the case whether or not 
 an intent existed in the mind of the respondent, at the time of the 
 commission of the alleged offense, to commit upon the person of the 
 injured man great bodily hann, less than the crime of murder, or 
 whether he committed a simple assault and battery, or whether he is 
 guilty of any offense at all. The extent of the injuiy inflicted, no 
 matter how severe or disproportionate to the provocation, if there 
 was any provocation, will not take the case out of that of 'an assault 
 and battery, unless j^ou find the existence of the intent to do great 
 bodily harm, less than the crime of murder. But the severity and 
 aggravated character of the assault, and extent of the injuiy received, 
 as well as the weapon with which it was committed, may be con- 
 sidered by you, in connection with other evidence in the case, in your 
 endeavor to find from the evidence whether or not such intent stimu- 
 lated the respondent's action. If from the evidence you find that 
 the respondent struck the complainant with a dangerous and offensive 
 
 In Bishop's New Criminal Law 4 — Clarey v. State, 61 Neb. 688, 85 
 
 (volume 1, para. 584) it is said: 'A N. W. 897 (898). 
 
 battery is an unlawful beating-, or The court said: 
 
 other physical violence or con- "The criticism is upon the word 
 
 straint, inflicted upon a human 'must.' The court, by employing 
 
 being without his consent. . . . the word, merely intended to con- 
 
 An assault is included in every vey to the jurj- that the intent of 
 
 battery.' This language clearly in- a person is deducible from his 
 
 dicates that an unlawful beating words and conduct only, and not 
 
 is a wrongful physical violence." that the jury were obliged to in- 
 
 2 — Werner v. State, — Tex. Cr. fer the unlawful intent in the case. 
 
 App. — , 68 S. W. 681 (682). The instruction was doubtless 
 
 3— Perrin v. State, 45 Tex. Cr. copied from the opinion in Botsch 
 
 App. 560, 78 S. W. 930 (932). v. State, 43 Neb. 501, 61 N. W. 
 
 730."
 
 1806 FORMS OP INSTRUCTIONS. [§ 2840, 
 
 weapon, and that the result was serious bodily harm to the com- 
 plaining witness, less than the crime of murder, you may take all 
 these facts into consideration in determining whether or not the 
 respondent intended to do great bodily harm, less than the crime of 
 murder, at the time he committed the assault, if he committed an 
 assault at all. In this case^ the intent is the gist of the offense 
 charged in the information, and the law usually presumes that a 
 man intends the natural results of his own acts. And this rule ap- 
 plies in this case, with the usual conditions that if the circumstances 
 and surroundings of the case shown by the evidence establish the fact 
 that there was no intention to do what was done, in the way of in- 
 flicting the injury, or leaves in your mind a reasonable doubt of such 
 intent, then your duty is to acquit the respondent of the offense 
 charged in the information.^ 
 
 (e) That to constitute the offense charged in this ease, the intent 
 alleged in the indictment is necessarily to be proved, but direct and 
 positive testimony is not necessary to prove the intent; it may 
 be inferred from the evidence, if there are any facts proved which 
 satisfy the jury, beyond a reasonable doubt, of its existence.^ 
 
 § 2840. Assault in Sudden Affray, and in Sudden Heat of Passion 
 ■ — Punishment. If, however, the juiy believe from all the evidence in 
 this case, to the exclusion of a reasonable doubt, that in this county, 
 and within one year next before the finding of the indictment herein, 
 the accused, F., in sudden affray, and in sudden heat and passion, 
 without malice, did cut, stab and wound L. with a weapon and in 
 the manner described in another instruction, then they will find him 
 guilty of the misdemeanor or offense included in the indictment, and 
 fix his punishment at a fine of not less than $50 nor more than $500, 
 in their reasonable discretion, or by confinement in the county jail, 
 in their reasonable discretion, for not less than six months nor more 
 than one year, or both so fine and imprison, in their reasonable dis- 
 cretion, and they may say in their verdict that such fine or imprison- 
 ment, or both, shall be at hard labor, in their reasonable discre- 
 tionJ 
 
 § 2841. Mutual Combat — Both Parties Guilty. If the jui-y believe 
 from the evidence that it was a mutual combat engaged in by both 
 parties for the gi'atification of their evil passions, and a mutual desire 
 to inflict punishment and hurt on each other, and voluntarily engaged 
 in to gratify their own bad feelings to each other, and is not the 
 result of insult on the part of the prosecutrix or defendant, and is 
 not the purpose of self-defense, and is simply a mutual combat, both 
 would be guilty (of assault), and the defendant on trial would be con- 
 victed.^ 
 
 5— People V. Resh, 107 Mich. 251, 7 — Approved in Ford v. Common- 
 
 K5 N. W. 99. wealth, ?.0 Ky. L. 54, 97 S. W. 370. 
 
 See also People v. Jassino, 100 8— Ford v. State, 97 Ga. 365, 23 S. 
 
 Mich. 536, 59 N. W. 230 (231). E. 996 (997). 
 
 6 — Roberts v. People, 19 Mich. 
 401.
 
 § 2842.] CRIMINAL— ASSAULT AND BATTERY. 1807 
 
 § 2842. Justification — Ejecting Trespasser Upon Land. The court 
 
 instructs the jury that if you find and believe from the evidence that 
 the defendant E. H. was on the 3d day of February, 1897, on the 
 inside of the building where the assault is alleged to have been com- 
 mitted, and that he had closed and fastened the doors thereof, then 
 the defendant was in possession of said building, and the prosecut- 
 ing witness G. had no right to forcibly enter the said building, 
 and if you find from the evidence he did so, then the defendant had 
 the legal right to forcibly eject said G. by using only such force and 
 violence as was necessary to eject said G. therefrom.^ 
 
 § 2843. Justification — Keeping Order in Religious Meeting. But if 
 he (G.) was not asked there to investigate, but was simply asked to 
 come to the house there to attend a meeting of that kind, and it 
 was a meeting, so far as this defendant, H., was concerned, which 
 was fair and honorable in its character, it would be the duty of a 
 person who came there under such circumstances to observe proper 
 decorum, not to rudely interfere with the proceedings and religious 
 rite, which, so far as the defendant was concerned, was being held 
 in good faith. He would not have a right to do those things which 
 would interfere with the comfort and peace and enjoyment of other 
 persons who might be there for honest purposes. And if he did do 
 things of that character, whether it was a religious meeting or 
 whether it was not, I think this defendant would have a right to use 
 reasonable means to restrain such conduct. If he only went so far 
 as seemed to him at the time to be reasonably necessary to preserve 
 decorum there in his own house, and protect the comfort and peace of 
 those whom he had invited to his house there, then I think he would 
 be justified in what he did.^° 
 
 § 2844. Repelling Seizure of Dog. You are instructed that de- 
 fendant, J. W., had the right of possession to the dog as against 
 every person except the true owner, and that even the true owner 
 would not be authorized to go upon the premises of defendant's father 
 and forcibly take away or remove the dog against the protest and 
 remonstrances of defendant. In this case defendant had the legal 
 possession of the dog, and had the right to use such force, and no 
 more, as the surroundings show might have been necessary to repel 
 the forcible seizure and removal of the property, and if it became 
 necessary to slay the party or pretended owner making the seizure 
 in order to prevent the removal of the dog after all other means had 
 failed, defendant would have had the right to do so, and if you should 
 so believe you should acquit defendant.^^ 
 
 9 — State V. Howell, 21 Mont. 165, passer or even burglar who comes 
 
 53 Pac. 314 (315). along-, and enter?;, and takes pos- 
 
 "If a man may not lawfully de- session during his temporary ab- 
 
 fend his property — his home — by sence therefrom," citing Montana 
 
 the use of whatever force is neces- Penal Code, Sec. 404, subd. 3. 
 
 sary to use under the circum- 10— People v. Hughes, 116 Mich, 
 
 stances of the case, then he is at 80. 74 N. W. 309 (310). 
 
 the mercy of every tramp, tres- 11 — Weaver v. State, — Tex. Cr.
 
 1808 FORMS OF INSTRUCTIONS. [§ 2845. 
 
 § 2845. Insults as Justification, (a) The law does not permit one 
 to measure his wrongs, to go and take out what he conceives to be re- 
 dress upon any citizen. The law does not tolerate that. You have the 
 right to strike your neighbor to keep him from striking you; that is 
 based upon necessity; that is self-defense. All civilized countries rec- 
 ognize the right of self-defense. You have the right to repel force with 
 force. But it (the law) does not give to any man the right to go and 
 chastise or beat — inflict punishment on — another for words spoken, 
 no matter how opprobrious or insulting. If you have been aggrieved, 
 slandered, the courts are open. You can bring your suit for a civil 
 action for slander, or a criminal action, either — both branches of the 
 court.^2 
 
 (b) The court charges the jury that the jury may look to the fact, 
 if it be a fact, that S. used abusive or insulting language to R. at 
 or near the time of the difficulty, and such language may be taken 
 in mitigation or justification of the offense, as the jury may deter- 
 mine.^3 
 
 § 2846. Prosecutrix Visiting Defendant. If the prosecutrix went 
 there to see Cornelia F., in a visit, or otherwise, she had the right to 
 be there; and it is not to be taken against her, if she went there for 
 that purpose, and got in the fight afterwards.^* 
 
 § 2847. Violating Ordinance Against Profane Swearing — Attempted 
 Arrest — Shooting at Offender. If the jury find from the evidence 
 that the plaintiff had violated the town ordinance against loud and 
 profane swearing on the streets, and that the defendant had attempted 
 to arrest him, and that plaintiff got loose and was running from de- 
 fendant, and while so running defendant had shot at him with a 
 pistol, then, in law, that would be an assault, and they should respond 
 *'Yes" to the first issue.^^ 
 
 A pp. — , 76 S. W. 564 (565), 53 Am. when the offense Is committed in 
 
 Rep. 389. his presence, and to this part of the 
 
 "We believe the court should charge th'sre was no objection by 
 
 have given the requested instruc- the plaintiff, but exception was 
 
 tion as the facts raise the issue, taken to the following passages in 
 
 and the court nowhere in the gen- the charge of the court: 
 
 eral charge instructed the jury as (1) if you are satisfied from the 
 
 to the rights of defendant in pro- evidence that the defendant had 
 
 tecting his possession to the dog in reasonable grooind to believe and 
 
 the controversy." did believe, that plaintiff was vio- 
 
 12— Hayes v. State. 51 S. C. 534, lating in his presence the ordi- 
 
 29 S. E. 259 (261) ,,„ ., ^„„ nance prohibiting loud and profane 
 
 13— Rogers v. State, 117 Ala. 192, swearing in the corporate limits 
 
 23 So. 82. of the town of Concord, and ar- 
 
 l^Ford V. State, 97 Ga. 365, 23 rested the plaintiff although the 
 
 S E. 996 (997). defendant was mistaken, he would 
 
 15— Sossamon v. Cruse, 133 N. C. be excused; and you are the judges 
 
 ^'^?' 45 S._ E. 757. of the reasonableness of the 
 
 This mstruction the court re- grounds upon which the defendant 
 
 fused to give, and the plaintiff ex- acted. 
 
 cepted. The court charged the (2) If the jury believe from the 
 
 jury fully in regard to the power evidence that the plaintiff was 
 
 of a policeman to arrest for the violating, in the presence of the 
 
 violation of a town ordinance, defendant, the ordinance of Con-
 
 §2848.] CRIMINAL— ASSAULT AND BATTERY. 1809 
 
 § 2848. Assault by Policeman — Striking with Hand or Club — Self- 
 Defense. (a) If tlie juiy believe from the evidence that the de- 
 fendant, G. M., was standing upon the sidewalk on the 2Gth day of 
 October, 19 — , at C. and N. streets, near H. 's saloon, in the city of 
 St. Louis, Mo., and that he was conducting himself in a peaceable 
 and quiet manner, and that the policeman, D., ordered and commanded 
 him to move on, or to move and go away, and the defendant failed 
 or refused to obey him, and that thereupon the said officer, D., as- 
 saulted the defendant, or struck him with his hand or with a club, 
 or shoved him, and that the defendant then struck said D. and 
 knocked him down, then such act was in the nature of self-defense 
 on the part of the defendant, and is in law justifiable. 
 
 (b) The jury are further instructed that under the law a police 
 oflBcer in the city of St. Louis has no right, power or authority to com- 
 pel any person who is standing upon a public street or highway in a 
 quiet and peaceable attitude to move or go away at the bidding of 
 said officer, or to do his mere bidding; and that the officer, upon 
 such person failing or refusing in a peaceable way to obey him, has 
 no right whatever to assault, beat or strike such person; and such 
 person has the right to resist force by force, meet violence with 
 violence, and to use all the means necessary to preserve his life, 
 or so prevent great bodily harm from being inflicted upon him, even 
 to the extent to taking the life of his assailant, whether he be an 
 officer or private citizen. 
 
 (c) The court instructs the jury that if you believe and find from 
 the evidence that the defendant, G. M., was standing on the corner 
 
 cord prohibiting^ loud and profane upon the facts as found by them 
 swearing- within the corporate under the rule of law as to the 
 limits, and the defendant not being burden of proof, and such proper 
 actuated by ill will, malice, hatred instructions from the court as will 
 or malevolent purpose, arrested enable the jury to intelligently 
 the plaintiff, and the plaintiff, not weigh and apply the evidence. 
 being out of the control of the de- State v. Barrett, 123 N. C. 753, 31 
 fendant, attempted to escape, and S. E. 731; Wilkie v. Railroad, 127 
 to prevent such an escape, the de- N. C. 203, 37 S. E. 204. 
 fendant fired his pistol, such firing We are of the opinion that, upon 
 would not constitute an assault. the evidence in the case the court 
 Before discussing what we re- should have given the instruction 
 gard as the principal and vital asked by the plaintiff in his 
 question in the case, we will call prayer. The exception to the re- 
 attention to the phraseology of fusal to give the instruction may 
 the second passage taken from the conveniently be considered with 
 charge of the court. The jury is the first of the above instructions 
 there told that, if 'they believe given by the court, to which ex- 
 from the evidence' the facts there- ception was also taken. That in- 
 in recited, the acts of the defend- struction was, in substance, that 
 ant did not constitute an assault, 'if the plaintiff had been lawfully 
 This court has referred to this arrested and not being out of the 
 form of expression as being open control of the defendant, had at- 
 to the objection that the jury tempted to escape, and to prevent 
 might believe that certain facts such an escape th^ defendant fired 
 existed when they would not be his pistol, such firing would not 
 willing to find that they did exist, constitute an assault.' This in- 
 and that the law, as given by the struction in view of what seems to 
 court to the jury, should be based, be the uncontrnverted facts in the 
 not upon their belief, merely, but case was erroneous." 
 114
 
 1810 FORMS OF INSTRUCTIONS. [§ 2849. 
 
 of C. and N. streets, at the side of or near H.'s saloon, on C. and N. 
 streets, in the city of St, Louis, Mo., on the night of the 26th day 
 of October, 19 — , and that he was acting in a quiet and peaceable 
 manner, and that he was assaulted, shoved or struck by the police- 
 man, D., then he (defendant) had the right in law to resist said 
 assault or batteiy by such means and in such manner as was necessary 
 to repel his assailant. And the jury are instructed that said D., 
 although a police officer of said city of St. Louis, with authority to 
 make arrests for offenses against the law, had no right to assault, beat 
 or strike or shove the defendant, G. M., if he, the defendant, was 
 conducting himself in a peaceable and law-abiding manner.^^ 
 
 § 2849. Counter-Assault — Bringing on Difficulty — Self-Defense. (a) 
 K the jury shall find from the evidence that the prosecuting wit- 
 ness, T. H., made the first assault without the right to do so, as ex- 
 plained in these instructions, and that the defendant had good reason . 
 to believe, and did believe, that the said H. was about to do him 
 some great bodily harm, then the defendant had the right to meet 
 such assault by the use of such force and means as were reasonable I 
 and necessaiy to protect himself from such assault; and, if the jury 
 shall believe from the evidence that the defendant acted in self- 
 defense, as herein explained, they will find him not guilty. 
 
 (b) The prosecuting witness, T. H., had no right to assault the 
 defendant with a club merely because the defendant was using threat- 
 ening and insulting language towards him, nor unless the conduct of 
 the defendant at the time, considered in connection with what he said, 
 was such that the said H. had good reason to believe, and did be- 
 lieve, that it was necessary for him to strike the defendant in order 
 to protect himself from an assault by the defendant then about to be 
 made upon him.^' 
 
 (c) The state claims that there is some evidence tending to prove 
 that the defendant in going upon the brewery premises and into the 
 building where W., the complaining witness, was, under the circum- 
 stances under which he did enter and with the knowledge of the 
 unfriendly relations existing between himself and the two W. boys, 
 G. and M., voluntarily went into said building where the complaining 
 witness was, with the intent and for the purpose of provoking an 
 affray or a difficulty with said W. and there so conducted himself 
 as to bring on the assault and affray as it took place in the boiler 
 room. The court instructs that if you believe and find from the 
 evidence that the defendant did so, that is to say, that he voluntarily 
 entered and went into said boiler room with the intent and for the 
 purpose of provoking an affray and difficulty with said W., there 
 so conducted himself as to bring on the assault and affray as it 
 
 16 — In State v. Meyers, 174 Mo. fest error in refusing' the Instruc- 
 
 252, 74 S. W, 862 (863). the court tions which the defendant asked." 
 
 says of the above instructions: 17— State v. Higigerson, 157 Mo. 
 
 "In the light of the uncontra- 395, 57 S. W. 1014 (1015-6). 
 dieted evidence, there was maal-
 
 §2850.] CRIMINAL— ASSAULT AND BATTERY. 1811 
 
 took place in the boiler room, that he, the defendant, is not entitled 
 to the plea of self-defense. And the assault and battery which took 
 place in the boiler room cannot excuse or justify the shooting which 
 took place outside the boiler room.^^ 
 
 § 2850. Use of Fire Arms, Pointing Gun in the Air or Discharging 
 Same. I instruct the juiy that the ix)inting of a gun in the air is 
 not an unlawful act, and I charge you that the respondent would 
 have a right to take a gun out in the field to the east of the house 
 and point the same in the air, so long as in doing so he did not take 
 it there for the purpose of obstructing or resisting the officer, Elisha 
 Moore, and did not use it for that purpose. I instruct you that the 
 discharging of the gun, by respondent in the air, is not an unlawful 
 act, and I charge you that the respondent would have the right to 
 take the gun out into the field east of the house and discharge the 
 same in the air, so long as by doing so he did not take it there for 
 the purpose of obstructing or resisting the officer, Elisha Moore, 
 and did not use it for that purpose, and did not use it in such man- 
 ner as to amount to a reckless disregard of human life by so using 
 it. The respondent, under the law, had a right to take the gun with 
 him to the field where the shooting occurred, so long as 'by doing so he 
 did not take it there for the purpose of obstructing and resisting the 
 officer, Elisha Moore, and did not use it for that purpose, and to 
 carry said gun in his hands and to point the same in the air, so long 
 as he did not have the gun there for the purpose of obstructing the 
 officer or resisting the officer, but he would not have the right to 
 knowingly point said gun in the direction of any person. ^^ 
 
 § 2851. Presence of Others at the Time of Assault — Aiding or 
 Abetting. If the juiy believe from the evidence that the prisoner, 
 B., in pursuance of an understanding and combination between him- 
 self and D. and E., or either of them, assaulted B. in the nighttime, 
 on the street, in the City of Huntington, in this county, for the pur- 
 pose of whipping him or doing him an injury, and did then and there 
 inflict any punishment or bodily injury upon said B., and the said D. 
 and E., or either of them, were present when the said assault was 
 so made and injury inflicted by said prisoner, and that they, or either 
 of them, aided or abetted said prisoner, in said assault, either by 
 word or action, then they must find the prisoner guilty as charged in 
 the indictment.-*' 
 
 18 — Holmes v. State, 124 Wis. the lower field, so long as the logs 
 
 133, 102 N. W. 321 (324). called for, had not in fact been 
 
 19— People V. Sauer, 143 Mich, secured, the writ had not spent its 
 
 308. 106 N. W. 866. force. If, however, the jury were 
 
 The court said: satisfied that the officer was not, 
 
 "We think this charge sufficient- at the time he was shot down act- 
 
 ly recognized the defendant's ing under the writ, the charge ful- 
 
 theory insofar as it was entitled ly protected the rights of the ac- 
 
 to consideration. The writ was cused." 
 
 still in the officer's hands, and, 20 — State v. Bingham, 42 W. Va. 
 
 whatever may have occurred in 234, 24 S. E. 883.
 
 1812 FORMS OF INSTRUCTIONS. [§ 2852. 
 
 § 2852. Aggravated Assault — Defined, (a) You are iostrueted 
 that if any male adult should use any unlawful violence upon the 
 person of a female with intent to injure her, whatever be the means 
 or degree of violence, he is deemed guilty, under the law, of an ag- 
 gravated assault and battery.^^ 
 
 (b) An assault and battery become aggravated when a serious 
 bodily injury is inflicted upon the person assaulted or when com- 
 mitted with a deadly weapon. A deadly weapon is one which, from 
 the manner used, is calculated or likely to produce death or serious 
 bodily injui-y. 
 
 (e) If you find that defendant struck M. with a stick or club 
 with no intention to take his life, and that he was not justifiable on 
 the ground of self-defense, and if you further find that such stick 
 or club was then and there a deadly weapon, or that by means of 
 such assault serious bodily injury was inflicted upon M., then you 
 may find defendant guilty of an aggravated assault and battery, and 
 if you find him guilty you will assess his punishment at, etc.^^ 
 
 § 2853. Aggravated Assault — Embracing a Woman — Intent to In- 
 jure. If you believe the defendant put his arm on the back of the 
 
 buggy seat, and thereby touched the prosecutrix, ; or if you 
 
 believe that he took hold of her and endeavored to embrace her, but 
 did so with no intention of injuring her or her feelings, and had 
 probable ground to believe, and did believe, that such touching or 
 taking hold of her, if any, or such attempt to embrace her, if any, 
 would not be objected to by her, or w^ould not be offensive to her, or 
 hurt her feelings — then he would not be guilty of any offense, and 
 you will acquit. And in passing upon this issue, you will look to 
 all the facts and circumstances in evidence, and the conduct of the 
 parties, both before and after the commission of the alleged offense; 
 and if you have a reasonable doubt of the defendant's guilt, or of 
 his intent to injure the prosecuting witness, yovi will find him not 
 guilty." 
 
 ASSAULT WITH INTENT TO KILL OR MURDER. 
 
 §2854. Assault With Intent to Murder— To Kill— Defined, (a) 
 
 An assault becomes and is an assault with intent to murder when it 
 
 21— Millard v. State, — Tex. Cr. feet that if the defendant tried to 
 
 App. — , 59 S. W. 273. kiss plaintiff, but did so with no 
 
 "We think the charge presents a intent to injure her or her feelings, 
 correct proposition of law, and is and had probable grounds to be- 
 not subject to the criticism urged lieve, and did believe, that said 
 by appellant." trying to kiss her would not be ob- 
 
 22 — Perrin v. State, 45 Tex. Cr. jectionable to her, or would not 
 
 App. 561, 78 S. W. 930 (932). be offensive to her feelings, then 
 
 23 — Stripling v. State, — Tex. Cr. he would not be guilty of any of- 
 
 App. — , SO S. W. 376 (377). fense. As we understand the 
 
 "The court should have given charge asked by appellant in this 
 
 this charge. The case of Chamb- case, it is practically the same as 
 
 less V. State, — Tex. Cr. App. — , in the Chambless case. Citing also 
 
 79 S. W. 577, in many of its phases Floyd v. State, 29 Tex. App. 341, 
 
 Is like this case. We there held 15 S. W. 819." 
 that the court should charge in ef-
 
 §2855.] CRIMINAL— ASSAULT AND BATTERY. 1813 
 
 is committed -^'ith a deadly weapon and with intent to kill the person 
 assaulted, done unlawfully and intentionally and with malice afore- 
 thought and under such circumstances that, had death resulted there- 
 from to the person assaulted, the killing would have been murder.-* 
 
 (b) The court charges the jury that if they believe, from the 
 evidence in this case, beyond a reasonable doubt, that the defendant 
 on the 1st day of February, 1902, assaulted M. H. with the intent 
 to murder him, then they must find the defendant guilty as charged. ^^ 
 
 (c) If from the evidence you are satisfied bej^ond a reasonable 
 doubt that defendant, L., at any time within three years before 
 the filing of the indictment, to-wit, the 28th day of January, 1904, 
 in the countj' of Webb and state of Texas, with a deadly weapon, or 
 instrument reasonably calculated and likely to produce death or seri- 
 ous bodilj^ injury from the manner in which it was used, and with 
 malice aforethought, did assault the said G., with intent then and 
 there to kill and murder her, then you will find defendant guilty of 
 an assault with intent to murder.-*^ 
 
 (d) You cannot find defendant guilty of the crime charged 
 here unless you would find defendant guilty of murder if he had 
 killed C, and was on trial for mui'der.-" 
 
 (e) If from the evidence, and under these instructions, you find 
 and believe that at the city of St. Louis and state of Missouri, on 
 December 31, 1899, the defendant V., either alone or acting together 
 with another one, with a common intent, feloniously made an as- 
 sault upon and shot B. with a pistol loaded with gunpowder and 
 leaden ball, and that he did so willfully, on puipose, and of his malice 
 aforethought, and with the intent to kill the said B., you will find 
 the defendant guilty of an assault with intent to kill, and assess 
 his punishment, etc.; and unless you find the facts so to be, you 
 wil acqui't the defendant of such assault with intent to kill.-^ 
 
 (f) The court instructs the jury that if you find [and believe, 
 beyond a reasonable doubt,] from the evidence in the case that the 
 defendant at the county of St. Charles in the state of Missouri, on 
 or about the 25th day of March, 1899, on purpose and intentionally 
 made an assault on one Z. W., with a loaded pistol and shot him, with 
 the intent to kill him, the said W., and not under such circumstances 
 as to justify him on the gi'ounds of self-defense, as explained in 
 other instructions, then you will find the defendant guilty of assault 
 with intent to kill as charged, and assess his punishment at impris- 
 onment, etc.-'' 
 
 § 2855. Assault With Intent to Murder — What Lesser Crimes In- 
 cluded. The following crimes are included necessarily in the charge 
 
 24— Alvarez v. State. — Tex. Cr. 27— Goodwin v. State, 73 Miss. 
 
 App. — , 58 S. W. 1013 (1014), 13 Am. 873. 19 So. 712, 55 Am. St. 573. 
 
 Cr. Rep. 137. 28— State v. Valle, 164 Mo. 539, 
 
 25— Deal v. State, 136 Ala. 52, 34 65 S. W. 232 (235). 
 
 So. 23 (24). 29— State v. Moore, 168 Mo. 432, 
 
 26— Lozano v. State, — Tex. Cr. 68 S. W. 358 (360). 
 App. — , 81 S. W. 37 (38).
 
 1814 FORMS OF INSTRUCTIONS. [§ 2856. 
 
 contained in the indictment, viz., assault, assault and battery, assault 
 with intent to do a great bodily injury, assault with intent to commit 
 manslaughter, and assault with intent to commit murder; and the de- 
 fendant may, if the evidence justifies the finding, be convicted of 
 either one of these crimes.^° 
 
 §2856. Intent Must Be Proven, (a) If you believe, [beyond a 
 reasonable doubt, from the evidence,] that the defendant and the 
 prosecuting witness B. got into a fight, and the defendant cut the 
 prosecuting witness B., without intent to do so, then you will find 
 the defendant not guilty.^^ 
 
 (b) If it appears that the alleged assault was committed under 
 such circumstances as would, had death ensued, have mitigated the 
 offense from murder to manslaughter, S'Uch intent was not premedi- 
 tated, and you cannot find the defendant guilty of the charge pre- 
 ferred against him.^^ 
 
 (c) Should you believe [from the evidence, beyond a reasonable 
 doubt,] that the said pistol was discharged by the defendant, but 
 have a reasonable doubt as to whether the same was discharged ac- 
 cidentally, you will find the defendant not guilty.^^ 
 
 § 2857. Assault With Intent to Murder — Intent — How Proven, (a) 
 The jury are further instructed thai they may take into consideration 
 whether it is true that the defendant made any declaration or state- 
 ment at the time, or immediately before the shooting, as to what 
 
 30 — State v. Graham, 51 Iowa 72, another with intent to murder,' etc. 
 
 50 N. W. 285 (286). Intent is one of the essential in- 
 
 It was argued "that this instruc- gredients of the crime charged 
 tion is erroneous because the crime against the defendant. U. S. v. 
 of an assault and battery is not Buzzo, 18 Wall. 125, 21 L. Ed. 812; 
 necessarily included in the crime Territory v. Pino, 9 N. M. 598, 58 
 of an assault with intent to mur- Pac. 393; U. S. v. Folsom, 7 N. M. 
 der. Section 4466 of the Code pro- 532, 38 Pac. 70; Territory v. Vigil, 
 vides that 'in all other cases the 8 N. M. 583, 45 Pac. 1117. There- 
 defendant may be found guilty of fore if the defendant did what 
 any offense the commission of he is charged to have physically 
 which is necessarily included in done without any intent in fact, 
 that with which he is charged in the defendant would not be guilty, 
 the indictment.' It is doubtless Whether or not he did intend to 
 correct that if this indictment had do that which he is alleged to 
 charged an assault inerely, with- have done was a fact to be deter- 
 out a battery, as by discharging a mined by the jury upon the evi- 
 gun at the prosecuting witness or dence in the case. If there was 
 the like, the crime of assault and any evidence tending to show that 
 battery would not be necessarily the defendant did not cut the pro- 
 included in the crime charged. But secuting witness with intent to 
 the defendant is charged, not only murder him, then the court should 
 with an assault but a most griev- not have refused to give this in- 
 ous battery. It is, in fact, an in- struction asked by the defendant, 
 dlctment for an assault and bat- as the court nowhere gave its 
 tery under such allegations as to equivalent in its own instructions." 
 have made the crime murder, if 32 — People v. Mendenhall, 135 Cal. 
 death had ensued. We think the 344, 67 Pac. 325 (327). 
 instruetion was not erroneous." 33 — Alvarez v. State, — Tex. Cr. 
 
 31— Territory v. Baca, 11 N. M. App. — , 58 S. W. 1013 (1014), 13 Am. 
 
 559, 71 Pac. 460 (462). Cr. Rep. 137. approves the above 
 
 "The Code (Section 1083) pro- without the words in ibrackets. 
 vides, 'if any person shall assault
 
 § 2858.] CRIMINALr-ASSAULT AND BATTERY. 1815 
 
 his intentions "were, and also his testimony regarding his intentions 
 at the time of the shooting, if any, and also the testimony regarding 
 the defendant's chai-aeter and reputation as a peaceable and quiet 
 citizen; and if, after considering all these matters, together with all 
 the other evidence in the case, the jury entertain any reasonable doubt 
 as to whether the defendant intentionally shot the said pistol at or 
 against the said C, or if they entertain any reasonable doubt as to 
 whether the defendant fired the pistol with the intention thereby to 
 take the life of said C, then the defendant is not guilty of an assault 
 with intent to murder.^* 
 
 (b) The court instructs the jury that direct and positive testi- 
 mony is not necessary for proving the intent alleged in the indict- 
 ment, but such an intent may be inferred from the evidence, if there 
 are any facts and circumstances proven that show beyond a reason- 
 able doubt that the assault in question was made with an abandoned 
 and malignant heart and a reckless disregard of human life, and in 
 such a manner as was likely to cause the death of the party as- 
 saulted.^^ 
 
 (c) The intent to murder cannot be implied as matter of law. 
 It must be proved as a matter of fact, and its existence the jury 
 must determine from all the facts and circumstances in evidence. 
 The offense of intent to murder cannot exist unless, if death had 
 resulted, the completed offense would have been murder; and even 
 if the act of shooting would have been murder if death had resulted, 
 still, if the defendant did not intend to kill, he is not guilty of assault 
 with intent to murder.^® 
 
 § 2858. Whether Intent Is Proved, (a) The court instructs the 
 jury, for the defendant, that if they believe the evidence in this case 
 
 34 — Rollins v. State, 62 Ind. 46. evidence if there were 'facts and 
 
 35 — Crosby v. People, 137 111. 325 circumstances proved which show 
 
 (338), 27 N. E. 49 (51), in which case beyond a reasonable doubt that 
 
 judgment was reversed because of the assault in question was made 
 
 a bad instruction as to drunken- with an abandoned and malignant 
 
 ness. heart and reckless disregard of 
 
 The court said: "It is objected human life, and in such a manner 
 
 that the latter clause of this in- as was likely to cause the death 
 
 struction lays down an improper of the party assaulted.' If one 
 
 rule, and that there was no evi- with an abandoned disregard of 
 
 dence that there was an assault of human life makes an assault that 
 
 a character likely to cause the in its manner and circumstances 
 
 death of the party assaulted. And is likely to produce the death of 
 
 again, the instruction is divided, by the party assailed, not only is 
 
 counsel, in argument, and it is in- malice presumed, but the specific 
 
 sisted that the intent to murder intent to take life may also be in- 
 
 cannot be inferred from the facts ferred, for if, with malice, he 
 
 and circumstances which show be- makes an assault in a manner likely 
 
 yond a reasonable doubt that the to produce death, he must be pre- 
 
 assault was made with an aban- sumed to intend the result likely 
 
 doned and malignant heart and to, that is, which probably and 
 
 reckless disregard of human life, naturally would, flow from his 
 
 It is sufficient to say that no such act." 
 
 division is made of the instruction 36 — Keady v. People, 32 Colo. 57, 
 
 itself. The jury were told that the 74 Pac. 892 (894). 
 intent might be inferred from the
 
 1816 FORMS OF INSTRUCTIONS. § 2859. 
 
 shows that defendant had another load in his gun, and could have 
 used it, and killed said F., if he had so desired, but did not do so 
 because he did not want to kill him, the jury should take this into 
 consideration, along with all the other facts and circumstances in the 
 case, in determining whether the defendant did intend to kill and 
 murder P., and if, from all the facts and circumstances in evidence, 
 they have a reasonable doubt as to whether he really meant to murder, 
 they cannot lawfully convict him of assault and battery with intent 
 to kill and murder.^''' 
 
 (b) If the jury have a reasonable doubt, from the evidence in the 
 case, whether the gun was accidentally or intentionally discharged, 
 the defendant is entitled to 'the benefit of such doubt, and the jury 
 should find the defendant not guilty.^^ 
 
 (e) If you believe from the evidence that the defendant shot X, as 
 charged in the bill of indictment, and that in doing so he was not 
 acting in self-defense, nor under other circumstances justifying him 
 in shooting, yet, if you should believe that at the time of the shooting 
 it was not 'the intention on the part of the defendant to take the 
 life of the prosecutor, X., then you would not be authorized to return a 
 vei'diet finding the defendant guilty of an assault with intent to com- 
 mit murder; but, if you should believe that to be the truth of the 
 case, then you would be authorized to return a verdict finding the 
 defendant guilty of the offense of shooting at another.^^ 
 
 (d) If you believe that the instrument used is one not likely to 
 produce death, intent to murder is not presumed, but must be proved 
 from the nature of its use, or by specific proof. Where an assault 
 oceui's under the influence of sudden passion, or by the use of means, 
 not in their nature calculated to produce death, the person assaulting 
 is not deemed guilty of assault to murder, unless it appears that there 
 was an intention to kill, but he should be convicted of a lower grade 
 of assault and battery.*" 
 
 § 2859. What Jury Should Consider in Determining Whether In- 
 tent Was Present. In order to convict the prisoner at the bar, in 
 manner and form as he stands indicted, it is necessary for the state 
 to satisfy you, beyond a reasonable doubt, that the assault was com- 
 mitted by the prisoner, that it was committed with an intent to 
 murder the person assaulted, and that if the person assaulted had 
 died from the effects of the injuries received thereby, the prisoner 
 
 37— MrCaa V. State, — Miss. — , appellant was a negro, and C, N. 
 
 38 So. 228. and B. were white men. Under this 
 
 38— State v. Connor, 59 la. 357, 13 state of facts we believe that the 
 
 N. W. 327. provisions of article 717 Pen. Code, 
 
 39— Frazier v. State, 112 Ga. 868, 1895, should have been given in 
 
 38 S. K. 349 (350). charge to the jury, and the court 
 
 ■40 — Johnson v. State, — Tex. Cr. erred in refusing to give the spe- 
 
 App. — , 93 S._W. 735 (736). cial requested instruction, which, 
 
 "We think it reasonably appears in suh.stance, submits the provi- 
 
 that he could have used his knife sions of said article." 
 oftener. The evidence shows that
 
 §2860.] CRIMINAL— ASSAULT AND BATTERY. 1817 
 
 would have been guilty of murder, either of the first or second degree. 
 The intent to commit murder is an essential ingredient of the charge, 
 and it must be jDroved to your satisfaction, just as any other material 
 fact in the case. It may be proved, however, by direct evidence, 
 such as the declarations of the prisoner made at the time of the 
 shooting, or by circumstantial evidence. It is your duty therefore 
 to consider all the facts proved in the case in order 'to determine 
 whether such an intent to commit murder existed or not ; and in de- 
 termining whether there was such intent, you should consider the 
 words or threats which may have been made by the prisoner at the 
 time of the shooting, the character of the assault, the kind of weapons 
 used, the danger of producing death, and the means used to avoid or 
 cause death, and all the acts and conduct of the prisoner with the 
 circumstances attending them, as shown by the evidence.*^ 
 
 § 2860. Animus, Purpose and Intent May Be Shown By Writing of 
 a Valentine. If the juiy believe from the evidence, beyond a reason- 
 able doubt, that defendant wrote the valentine in question, then you 
 can consider said fact as a circumstance going to show the animus, 
 purpose, and intent of appellant at the time of the attempted homi- 
 cide; and if the jury do not believe, beyond a reasonable doubt, that 
 defendant was the author of said valentine, you should not consider 
 said valentine in the case for any purpose. ■*- 
 
 § 2861. Incapable of Forming Intent from Drunkenness, (a) In- 
 toxication is no defense or excuse for crime ; but in certain cases, 
 where a specific intent is an element in the offense, the fact of in- 
 toxication, if shown, is to be eonsidei'ed. If it appears from the 
 evidence that the prisoner was intoxicated at the time, and if you 
 find that his state of intoxication was such that he had so far lost his 
 intelligence, and his reason and faculties, that you have a reasonable 
 doubt whether he was able to form and have a purpose to kill, or to 
 know what he was doing, then you should find him not guilty of 
 intent to kill.^^ 
 
 (b) The court instructs the juiy, that, in this case, in order to 
 warrant a conviction of the defendant, the jury must be satisfied, 
 from the evidence, not only that the defendant made an assault upon 
 the said A. B., as charged in the indictment, but it must also appear, 
 from the evidence, that, at the time he made the assault, he had 
 formed in his own mind an intention to take the life of the said 
 A. B. ; and, if the jury further believe, from the evidence, that at 
 the time of the alleged assault, the defendant was so deeply in- 
 toxicated or besotted with drink that he was incapable of entertain- 
 ing or forming an intent to kill the said A. B., then the juiy should 
 
 41— State V. Brown — Del. — , 63 State, 37 Tex. Cr. App. 314, 39 S. "W. 
 
 Atl. 328. 674; Wilson v. State, — Tex. Cr. 
 
 42— Kellv V. State, 43 Tex. Cr. App. — . 36 S. W. 587. 
 
 App 40, 62 S. W. 915 (917). 43— State v. Fiske, 63 Conn. 388, 
 
 Citing Martin v. State, 38 Tex. 28 Atl. 572 (573). 
 Or. App. 285, 43 S. W. 91; Russell v.
 
 1818 FORMS OF INSTRUCTIONS. [§2862. 
 
 acquit the defendant of the crime of an assault with intent to commit 
 murder,** 
 
 § 2862. Burden of Proof — Justification, (a) If you find defendant 
 guilty as charged in the infoi-mation under the instructions so far 
 given you by the court, of course that is the end of your labors in 
 this case, and you will return such a verdict. 
 
 (b) You should find him guilty as charged in the information, 
 unless you find that such shooting was justifiable under the rules 
 which will hereafter be given to you by the court.*^ 
 
 (c) The burden of proof is on the state, in order to convict of 
 the crime charged, to show that the shooting was not only done de- 
 liberately and feloniously and with malice aforethought, but that it 
 was done without legal excuse or justification ; and unless it has 
 made such proof so clearly on the whole evidence as to remove from 
 your minds every reasonable doubt, you must acquit of the crime 
 charged.*^ 
 
 § 2863. Adequate Cause — Insulting Words, (a) If the jury be- 
 lieve that defendant committed an assault upon S. with the specific 
 intent to kill him, but you further believe that said assault was com- 
 mitted under the immediate influence of sudden passion, arising from 
 having been told that said S. had used insulting words or had been 
 guilty of insulting conduct towards defendant's sister, then you will 
 acquit defendant of assault with intent to murder and convict him of 
 an aggravated assault; and this though you should believe that said 
 S. had not used insulting words or been guilty of insulting conduct 
 towards defendant's sister. 
 
 (b) By the expression "adequate cause" is meant such as would 
 commonly produce a degree of anger, rage, resentment, or terror, in 
 a person of ordinary temper, sufficient to render the mind incapable 
 of cool reflection; and the condition of the mind at the time of the 
 homicide is a question to be determined by the jury from all the facts 
 and circumstances in evidence; and when a sudden transport passion 
 is once engendered in a mind, the law does not prescribe any specific 
 length of time for the mind to become cool and deliberate, if it does 
 so change, but leaves that as a question of fact to be determined by 
 the jury from the evidence. Insulting words or conduct of the person 
 killed towards a female relative of the party guilty of the homicide 
 is such adequate cause, provided the homicide occurs upon the first 
 meeting of the person committing the homicide with the person slain. *^ 
 
 (c) If you believe from the evidence that defendant shot C. when 
 he appeared to be in no danger at C. 's hands, but that such shooting 
 
 44 — Mooney v. The State, 33 Ala. charge in Holmes v. State, 124 Wis. 
 
 419; State v. Garvey, 11 Minn. 154; 133, 102 N. W. 321 (324). 
 
 Plgman v. State, 14 Ohio 555, 45 46— Godwin v. State, 73 Miss. 873, 
 
 Am. Dec. 558; Pays v. State, 5 Tex. 19 So. 712, 55 Am. St. 573. 
 
 App. 35; Parke v. State, 5 Tex. 47— Jones v. State, — Tex. Cr. 
 
 App. 552. App. — , 85 S. W. 5 (6). 
 
 45 — Approved as part of the
 
 § 2864.] CRIMINAI^-ASSAULT AND BATTERY. 1819 
 
 was in the heat of passion, and without deliberation, j'ou must acquit 
 of the crime charged.*^ 
 
 § 2864. Must Be Murder Had Death Ensued — Deliberation, (a) In 
 
 order to justify a verdict of guilty of the crime of an assault with 
 intent to commit murder, the facts and circumstances proved in the 
 case must be such that if death had resulted from the shooting, the 
 jury would have found the defendant guilty of willful murder.'*^ 
 
 (b) You are instructed that while the law requires, in order to 
 constitute an assault with intent to commit murder, that the assault, 
 killing, and murder must have been committed under such circum- 
 stances and with such premeditation and design as would have made 
 the killing murder had death ensued, while it does not require that 
 willful intent, premeditation or deliberation shall exist for any length 
 of time before the crime was committed, it is sufficient if there was 
 a design and determination to kill distinctly formed in the mind at 
 any moment before or at the time the blow was struck or pistol fired. 
 In this case if you believe from the evidence beyond reasonable doubt 
 that the respondent discharged his pistol at the undersheriff, and that 
 before or at the time he did so, he had formed in his mind a willful, 
 deliberate, and premeditated desig-n to take the life of X., or any 
 person who should attempt to seize the boat under the warrant intro- 
 duced in this case, and that the pistol was fired in furtherance of 
 that design or purpose, and without justifiable cause or legal excuse 
 therefor, then you should find the defendant guilty. ♦ * * j^ de- 
 termining the defendant's intent, you may consider the threats made 
 by him, if you are satisfied beyond reasonable doubt that they were 
 so made; and you will also consider the fact of his leaving the state 
 in the manner he claimed he did as well as the fact that some of 
 the witnesses testified to having heard four shots, as claimed by the 
 defendant.^" 
 
 § 2865. Assault with Intent to Murder — Malice and Deliberation 
 Necessary Elements — Malice Defined, (a) You are instructed that 
 malice and deliberation are essential elements of the crime of assault 
 with intent to murder; and that malice is not necessarily inferred 
 from the use of a deadly weapon, or the mere fact of shooting or 
 killing a person; and, while it is true that malice may be implied, 
 it is not an offense or presumption of law, but a question of fact to 
 be found by the juiy from the proof of facts and circumstances, and 
 sufficient to warrant such implication ; and the evidence of such facts 
 and circumstances surrounding and attending the shooting should be 
 
 48 — Godwin v. State. 73 Miss. 873, portionate to such abusive lan- 
 
 19 So. 712, 55 Am. St. 573. guage." 
 
 In Ford v. State, 97 Ga. 365. 23 49— King v. State, 21 Ga. 220, 68 
 
 S. E. 996 (997), the court said to Am. Dec. 457; State v. Malcomb, 8 
 
 the jury: la. 413; Sharp v. State, 19 Ohio 379. 
 
 "See whether the nature and ex- 50 — People v. Bernard, 125 Mich, 
 
 tent of the battery, taken together 550, 84 N. W. 1092 (1094), 65 L. R. A. 
 
 with the nature and extent of 559. 
 abusive language, was not dispro-
 
 1820 FORMS OF INSTRUCTIONS. [§2866. 
 
 of such a character as to remove all reasonable doubt in your minds 
 on the question of defendant's malice before you can find him guilty.^^ 
 
 (b) ** Malice," in its legal sense, means the intentional doing of 
 a wrongful act towards another, Avithout legal justification or excuse. ^^ 
 
 § 2866. Assault with Intent to Kill — Malice and Deliberation Not 
 Necessary Elements. But the state goes further, and has alleged 
 another element of criminality in this case — the element of malice, 
 which is not necessary in the offense known as assault with intent to 
 kill. And if the evidence justifies you in finding that the element of 
 malice existed in this case, beyond a reasonable doubt, as well as the 
 assault with intent to kill, then the state will have made out the full 
 offense as charged. I have to say to you that no deliberation or 
 previous design or premeditation is necessary to constitute this offense 
 of an assault with intent to kill and murder with malice aforethought. 
 Thei'e are necessary only the assault, the intent to kill, and the malice 
 aforethought; no deliberation being neeessary.^^ 
 
 § 2867. Assault with Deadly Weapon — Implied Malice. Implied 
 malice means that which may be inferred from the acts and facts 
 shown. Thus, when a wanton, wicked, cruel, or i-evengeful act is 
 shown, the inference or implication may be drawn that the person 
 who did such an act was actuated by malice. And when one person 
 assaults another with a deadly weapon— that is a weapon that will 
 likely produce death — ^the law presumes malice from that fact alone, 
 in the absence of proof, either direct or implied, to the contrary. The 
 selection and use of a weapon, such as a revolver, in a deadly manner, 
 without legal excuse, raises a presumption and is evidence of malice.^* 
 
 51 — Keady v. People, 32 Col. 57, 74 books and adjudicated cases. See 
 
 Pac. 892 (894). Com. v. York, 9 Mete. (Mass.) 93, 43 
 
 52— Beau v. State, — Tex. Cr. Am. Dec. 373, opinion by Shaw, C. J. 
 
 A'pp. — , 51 S. "W. 946. The statement of the facts referred 
 
 "If the court had used the ex- to 'raised a presumption and is 
 pression 'malice aforethought,' in- evidence of inalice' added nothing 
 stead of the word 'malice,' in this to what was already stated, and 
 sentence, it seems, in the view of should be taken in connection with 
 appellant, the charge would have what preceded, to the effect that 
 been correct. His objection is such presumption arose in the ab- 
 hypercritical," citing Martinez v. sence of other proof to the con- 
 state, 30 Tex. App. 129. See also trary. The rule almost everywhere 
 State V. Moore, 168 Mo. 432, 68 S. W. is that from the mere fact of kill- 
 358 (360). ing, the inference of malice arises; 
 
 53 — State v. Fiske, 63 Conn. 388, the burden being on the prosecu- 
 
 28 Atl. 572 (573). tion to raise it to murder in the 
 
 54 — State v. Hayden, 131 la. 1 (7), first degree and on the defense to 
 
 107 N. W. 929 (931). reduce it to manslaughter. See 
 
 "It has support in the following cases cited in 21 Am. & Eng. Ency. 
 
 oases: State v. Gillick, 7 Iowa 311; pp. 140 and 170. Of course, we do 
 
 State v. Ostrander, 18 Iowa 435; not mean to say that a jury should 
 
 State v. Hockett, 70 Iowa 442, 30 ever be instructed that the burden 
 
 N. W. 742; State v. Zeibart, 40 is upon a defendant to show want 
 
 Iowa 169; State v. Sullivan, 51 Iowa of malice. We use the above ex- 
 
 142, 50 N. W. 572; State v. Town- pression for want of better term 
 
 Rfiid, 66 Iowa 741, 24 N. W. 535; in which to convey the thought. 
 
 State V. Roan, 122 Iowa 136, 87 N. What we mean is that an unex- 
 
 W. 997; and except for the last plained killing with a deadly weap- 
 
 clause in practically all the text on is evidence of malice, and that
 
 §2868.] CRIMINAI^-ASSAULT AND BATTERY. 1821 
 
 § 2868. Assault with Intent to Commit Voluntary Manslaughter, 
 (a) To convict the defendant of an assault and battery with intent 
 to commit the crime of voluntary manslaughter, the evidence must 
 prove, beyond a reasonable doubt, that the defendant committed an 
 assault and battery upon the person of X., as charged in the indict- 
 ment, and that at the time he did so he was in a sudden heat or 
 passion, produced by a provocation given by said X., in the use of 
 personal violence by him, upon his person, and, being in such heat, 
 he, by said assault and batter}^, without malice, purposed and designed 
 to kill said X.^^ / 
 
 (b) If you find, from the evidence, that the defendant, at the time 
 and place charged in the indictment, unlawfully assaulted said R. 
 with a pistol, and shot him in the breast, and you further find that 
 said assault was made upon reasonable provocation, in the heat of 
 blood, but without malice, and without legal excuse, and with the 
 intent to kill, then you would be justified in finding the defendant 
 guilty of an assault with intent to commit manslaughter.^^ 
 
 § 2869. Included Crimes — Reasonable Doubt Acquits, (a) If you 
 are satisfied bej'ond a reasonable doubt in this case that the defendant 
 did, within three years prior to the filing of the information in this 
 case, assault the prosecuting witness in manner and form as charged 
 in the information, in the county of Yakima, state of Washington, 
 and that he intended to commit the crime of murder, as previously 
 defined to you, it will be your duty to find him guilty as charged. If 
 you find he committed the assault alleged, but without intent to com- 
 mit murder, you will find him guilty of assault. If you entertain a 
 reasonable doubt as to whether or not he committed the assault al- 
 leged to have been committed in the information, or that he com- 
 mitted it with intent to commit murder, then it will be your duty to 
 give the defendant the benefit of that doubt and acquit him.^'' 
 
 (b) The crime charged in the indictment included assault with 
 intent to commit great bodily injury, assault and battery and assault, 
 
 the burden is on the accused in instruction requires the defendant 
 that sense that he must make pi'oof to prove the facts, beyond a rea- 
 of leg-al excuse, justification, or ex- sonable doubt, necessary to reduce 
 tenuation, or take the risk of a the grade of the offense from that 
 conviction upon the presumption charged in the indictment to the 
 or inference of malice. 3 Current lowest degree. The indictment con- 
 Law 1651, 5 Current Law 1711 and tained charges of all three degrees, 
 cases cited; State v. Moore, 25 Iowa namely, an assault and battery 
 128, 95 Am. Dec. 776; Harkness v. with intent to commit murder in 
 State, 129 Ala. 71, 30 So. 73; People the first degree, the same with in- 
 V. Phelan, — Cal. — , 56 Pac. 424; tent to commit murder in the sec- 
 Com. V. Webster, 5 Cush. (Mass.) ond degree, the same with intent 
 295, 52 Am. Dec. 711. Moreover, the to commit manslaughter, and a 
 court fully and carefully explained simple assault." 
 
 all the degrees of homicide, and 56 — The former edition cited State 
 
 the instruction upon manslaughter v. White, 45 la. 325, and State v. 
 
 was as favorable to defendant as Connor, 59 la. 357, 13 N. W. 327, in 
 
 he could ask." support of the instruction. 
 
 55— Newport v. State, 140 Ind. 57— State v. Williams, 36 Wash. 
 
 299, 39 N. E. 926, holds that "An ob- 143, 78 Pac. 780 (781). 
 jection is not well taken that this
 
 1822 FORMS OF INSTRUCTIONS. [§ 2870. 
 
 and if you find defendant guilty, it should be of the highest of the 
 included offenses of which the evidence showed him guilty beyond a 
 reasonable doubt, but if there is a reasonable doubt of his guilt of 
 the higher charge, you should then consider the lower degree, and 
 so consider each to the last included crime if necessary, and if there 
 was a reasonable doubt in respect to his guilt in each instance, then 
 he should be acquitted.^* 
 
 § 2870. Assault with Intent to Kill — Circumstantial Evidence, In 
 this case the state seeks a conviction on circumstantial evidence alone, 
 and, while it is the law that a person may be convicted of such an 
 offense on circumstantial evidence alone, before you can convict on 
 such evidence, the circumstances, when all taken together, should be 
 consistent with each other and consistent with the theory of defend- 
 ant's guilt, and absolutely inconsistent with any reasonable theoiy of 
 innocence ; and circumstantial evidence should always be cautiously 
 considered, and, to warrant a conviction, it must be such as to produce 
 in the minds of the jury that certainty of guilt that a discreet man 
 would be willing to act upon in his own most important affairs; and, 
 if you are not satisfied of the guilt of the defendant on this charge 
 beyond a reasonable doubt, you ought to acquit him, although the 
 unfavorable circumstances [if any] may not have been disproven or 
 explained. ^^ 
 
 § 2871. Assault with Intent to Murder — Form of Verdict. If, after 
 a careful consideration of all the testimony in the case, you are not 
 satisfied beyond a reasonable doubt that the prisoner committed the 
 assault alleged, your verdict should be not guilty. But if you believe 
 that he did commit the assault, and are not satisfied that it was his 
 intent to commit murder, your verdict should be not guilty in the 
 manner and form as he stands indicted, but guilty of assault only. 
 If, however, you believe and are satisfied that he not only committed 
 the assault alleged, but that it was his intention at the time to murder 
 the person assaulted, your verdict should be guilty in manner and 
 form as he stands indicted.®" 
 
 58 — State v. Leuhrsman, 123 Iowa been better if the bracketed words, 
 
 476. 99 N. W. 140 (142). "if any," liad been inserted after 
 
 59 — State v. Naves, 185 Mo. 125 "unfavorable circumstances." 
 
 (138), 84 S. W. 1 (4). 60— State v. Brown, — Del. — , 63 
 
 The court thought it would have Atl. 328.
 
 CHAPTER XCIV. 
 
 CRIMINAL— BURGLARY— ROBBERY. 
 
 See Erroneous Instructions, same chapter head. Vol. III. 
 
 BUKGLARY. 
 
 S2872. Burglary defined— Limita- 
 tion. 
 
 § 2873. Burglary— Robbery— What is 
 necessary to constitute. 
 
 5 2874. What is sufficient proof of 
 ownership in charge of 
 burglary. 
 
 § 2875. Intent to steal necessary ele- 
 ment to constitute bur- 
 glary. 
 
 § 2876. Prima facie case — Intent pre- 
 sumed. 
 
 § 2877. How intent is manifested — 
 Sound mind and discretion. 
 
 § 2878. What constitutes a break- 
 ing. 
 
 § 2879. Breaking into car. 
 
 § 2880. Breaking into chicken coop. 
 
 § 2881. What constitutes an entry. 
 
 5 2882. In charge for burglary ac- 
 cused may be found guilty 
 of larceny. 
 
 § 2883. Time burglary committed 
 generally immaterial — May 
 be material. 
 
 § 2884. Day time or night time. 
 
 § 2885. Possession of stolen goods 
 — Reasonable doubt. 
 
 § 2886. Possession — Explanation 
 must be reasonable. 
 
 § 2887. Attempt of burglary— Co- 
 operating with burglar. 
 
 9 2888. Must prove defendant com- 
 mitted burglary beyond 
 reasonable doubt. 
 
 ROBBERY. 
 
 § 2889. Robbery defined. 
 
 § 2890. What acts would constitute 
 robbery. 
 
 § 2891. Not necessary that force be 
 used. 
 
 § 2892. Violence used must not be 
 subsequent to the taking. 
 
 § 2893. Intending to use whatever 
 force is necessary. 
 
 § 2894. Holding up a train— Intent. 
 
 § 2895. Taking from the immediate 
 presence does not necessa- 
 rily mean the immediate 
 view. 
 
 § 2896. Taking must be from the 
 person of another. 
 
 § 2897. What is meant by taking 
 from the person — Series. 
 
 § 2898. Taking from the very per- 
 son not necessary. 
 
 § 2899. Taking from the person or 
 in his presence by putting 
 in fear or by force and 
 violence held sufficient. 
 
 § 2900. Retaking of one's property 
 by force and putting in 
 fear. 
 
 § 2901. Possession of the fruits of 
 the robbery. 
 
 § 2902. Case of each co-defendant 
 to be considered separately 
 — Common enterprise. 
 
 BUKGLARY. 
 
 § 2872. Burglary Defined— Limitation. The court instructs the jury 
 that the allegation of time in the information filed in this case is only 
 material for the pui-pose of fixing the commission of the crime within 
 the statute of limitations, which, in the state of Nebraska, is three 
 years for the crime of burglary. And if you find from the evidence, 
 beyond a reasonable doubt, that the defendant forcibly, feloniously 
 did, on or about the 28th day of May, 18 — , in the night season, at 
 the place charged in the information, break and enter the bam of X. 
 
 1823
 
 1824 FORMS OP INSTRUCTIONS. [§2873. 
 
 by opening a closed door, as explained in these instructions, and after 
 so entering- said barn of said X. did feloniously take therefrom any 
 property of any value belonging to said X., then your verdict should 
 be guilty as charged in the information.^ 
 
 § 2873. Burglary — Robbery — What Is Necessary to Constitute, (a) 
 The court instructs the jury that if you believe and find from the 
 evidence, beyond a reasonable doubt, that the defendants, at the 
 county of P. and state of Mo., at any time within three years before 
 
 the finding of this indictment, which was on the , did forcibly 
 
 break the outer door of the dwelling house of M., and enter said 
 building, and at the time of such breaking and entering there was a 
 human being in said building, and that the defendants did break and 
 enter said building with the intent to rob the said M. of any money 
 cr property that might be in said building, they will find the defend- 
 ants guilty as charged in the indictment, and assess their punish- 
 ment at imprisonment in the penitentiary for a term not less than 
 ten years. 
 
 (b) The crime of robbing may be committed by taking the money 
 or property of another from his person or presence, forcibly and 
 against his will, or by violence to his person, or by putting him in fear 
 of some immediate injury to his person.^ 
 
 (c) The ecurt instructs the jury that if you believe and find from 
 the evidence that the defendant, W. S., at and in the county of D. 
 and state of Mo., on the night of the 9th day of , did will- 
 fully and unlawfully break into and enter a certain storehouse, and 
 if the said storehouse was at the time and place aforesaid in the 
 possession of the D. Co., a corporation organized under the laws of 
 the state of Mo., and if the said defendant broke into and entered 
 the said store building, at the time and place aforesaid, with the 
 intent then and there to take, steal, and carry away, and convert 
 to his own use, and deprive the owners of the use thereof, of any 
 
 l_Ferguson v. State, 52 Neb. 432, fense.' In Yeoman v. State, 21 Neb. 
 
 72 N. W. 590, 66 Am. St. 512. 171, 31 N. W. 669, the same prin- 
 
 The court said: ciple was stated and applied. The 
 
 "The objection to this portion of question has been set at rest by 
 
 the charge is twofold: First. The those decisions, if, indeed, it ever 
 
 authorization of a conviction if the was a doubtful one in this state, 
 
 offense was committed at any time The instruction quoted is further 
 
 within the statute of limitations criticised for the use of the words 
 
 is claimed to be wrong. The de- 'on or about.' Time was not of the 
 
 cision« are the other way. The essence of the offense, and it was 
 
 identical question was passed upon not error to direct the jury that it 
 
 in Palin v. State, 38 Neb. 862, 57 was sufficient to find that the crime 
 
 N. W. 743, where this language was was committed on or about the 
 
 used: 'The allegation in the infor- time charged in the information, 
 
 mation as to the time the crime State v. Fry, 67 Iowa 475, 25 N. 
 
 was committed is not material. The W. 738; State v. Williams, 13 Wash, 
 
 state was not required to prove 335, 43 Pac. 15; State v. Thompson, 
 
 that the transaction occurred on 10 Mont. 549, 27 Pac. 349; State v. 
 
 the day alleged, but it is sufficient Harp, 31 Kas. 496, 3 Pac. 432." 
 
 if proven to have been committed 2 — State v. Hale, 156 Mo. 102, 56 
 
 within the time limited by the stat- S. W. 881 (882). 
 ute for the prosecution of the of-
 
 § 2874.] CRIMINALf— BURGLARY— ROBBERY. 1825 
 
 valuable goods, wares and merchandise situate, kept and deposited 
 in the said building, then you will find him guilty of burglary, and 
 assess his punishment at imprisonment in the penitentiary for a term 
 of not less than three years. And if you further believe and find from 
 the evidence that this defendant, W. S., at the time and place afore- 
 said, did willfully and feloniously steal, take, and eari-y away from 
 within said building, with intent to convert, to his own use, and de- 
 prive the owners of the use thereof, any goods, wares, and merchan- 
 dise of any value whatever, and if such goods, wares, and merchan- 
 dise were then and there the property of the D, Co., a corporation 
 as aforesaid, you will also find him guilty of larceny, and assess 
 his punishment for such larceny at imprisonment in the penitentiaiy 
 for not less than two years nor more than five years. 
 
 (d) Although you may not believe and find from the evidence 
 that the defendant broke into and entered the building in ques- 
 tion, yet if you find and believe from the evidence that the defend- 
 ant, W. S., on the night of , at and in the county of D. and 
 
 state of Mo., did willfully and feloniously take, steal, and carry 
 away any of the goods, wares and merchandise charged in the indict- 
 ment, with the intent to convert the same to his own use, and to 
 deprive the owners of the use thereof, and if said goods, wares and 
 merchandise you may find to have been so taken by defendant, if 
 you find they were so taken by him, were of the value of thirty dollars 
 or more, and were at the time and place aforesaid the property of the 
 D. Co., a corporation organized under the laws of Mo., you will 
 find him guilty of larceny, and assess his punishment at imprison- 
 ment in the state penitentiaiy for a term of not less than two nor 
 more than five years.^ 
 
 § 2874. What Is Sufficient Proof of Ownership in Charge of 
 Burglary, Proof that a room in the building was entered with an 
 intent to commit the misdemeanor charged, such room being used 
 for an office, and in the possession of L., would sustain the charge 
 in the indictment of the building being the property of L.* 
 
 § 2875. Intent to Steal Necessary Element to Constitute Burglary. 
 I charge you, gentlemen of the jury, that, in order to obtain at j^our 
 bands a verdict of guilty, the state must establish by competent 
 evidence to your satisfaction beyond a reasonable doubt every essen- 
 tial element of the crime of burglary. One of the essential elements 
 of the crime of burglary, as charged in this indictment, is that, after 
 breaking by force, the car described in the indictment, under circum- 
 stances such as would constitute a burglarious breaking under the 
 instructions already given you. the defendant entered into such car 
 with intent to steal the coal therein contained. This intent to steal 
 thus required to be established by the state to your satisfaction 
 beyond a reasonable doubt on the part of the defendant at the time 
 
 3— State V. Sprague. 149 Mo. 409, 4— State v. Tough, 12 N. D. 425, 
 50 S. W. 901. 96 N. W. 1025 (1027), 
 
 115
 
 1826 FORMS OF INSTRUCTIONS. [§2876. 
 
 of breaking and entering the car must have been the intent on the 
 part of the defendant to take, steal, and carry away the coal in 
 said ear contained, without the consent of the owner, and with the 
 intent to deprive him thereof; such taking, stealing, and carrying 
 away to be accomplished by fraud and stealth. If, therefore, the 
 defendant's intent at the time of entering said car, or at the time 
 of forcibly breaking the same, if you find he did so forcibly break 
 the car under the instructions already given you, was not to steal 
 the coal therein contained, but that such entry was made under the 
 belief that he had a right to tak.-^, the coal, or if you have a reasonable 
 doubt that it was his intent to steal the coalj then your verdict must 
 be not guilty.^ 
 
 § 2876. Prima Facie Case — Intent Presumed. If the jury believe, 
 from the evidence, that the defendant was found, on the night in 
 question, in the house of the said A. B., and in the bed-room of the 
 witness E. D., and that he entered the house by raising a window, 
 then such being in the house, unless explained in some way by the 
 evidence, consistently with innocence, will justify the jury in presum- 
 ing that such entry was made with a felonious intent, in manner and 
 form as charged in the indictment.® 
 
 § 2877. How Intent Is Manifested — Sound Mind and Discretion. 
 In every crime or public offense there must exist a union or joint 
 operation of act and intent or criminal negligence. The essence of 
 every crime is criminal intent without which the offense cannot be 
 committed. It is the intent with which an act is done that constitutes 
 its criminality. The act and criminal intent must concur to consti- 
 tute the crime. The intent or intention is manifested by the circum- 
 stances connected with the offense and the sound mind and discre- 
 tion of the accused. * * * As to the intent or intention, you must 
 arrive at it from all the testimony in the case, and all the acts, con- 
 duct or circumstances shown in the case.'^ 
 
 § 2878. What Constitutes a Breaking, (a) The court instructs 
 the jury, tliat while it is necessary, in order to constitute the 
 crime of burglary, that there should be a breaking and an entry of the 
 building described in the indictment, with the intent therein charged, 
 yet to constitute a breaking into the building it is not necessai*y that 
 any injury should be done to the building, its doors or windows ; 
 such breaking may be actual or constructive. An actual breaking 
 may be by lifting a latch and opening a door, by turning back 
 or opening the lock and opening the door, removing or breaking 
 a pane of glass, or raising a window, or anything by which an 
 obstruction to entering the building by the body, or any part of it, 
 is removed, is a breaking within the meaning of the law.^ 
 
 5— Leslie v. State, 35 Fla. 171, 17 8— Timmons v. State, 34 Ohio St. 
 
 So. 555 (558). 426, 32 Am. Rep. 376; Dennis v. 
 
 6— Com. V. Shedd, 140 Mass. 451. People, 27 Mich. 151; State v. Reid, 
 
 7— People V. Gilmore, — Cal. — , 20 la. 413; Harris v. People, 44 
 
 53 Pac. 806 (807). Not reported. Mich. 305, 38 Am. Rep. 267.
 
 § 2879.] CRIMINAL—BURGLARY— ROBBERY. 1827 
 
 (b) A constructive breaking is committed when admission is 
 obtained by threats, or by fraud, or false pretenses." 
 
 § 2879. Breaking into Car. If you find from the evidence, and be- 
 yond a reasonable doubt, that at the time and place named in the in- 
 dictment the witness A., or any other person or persons, unlawfully 
 broke and entered the car in question, and that said ear was then 
 under the charge and control of the Railway Company, and was 
 sealed, and contained goods and merchandise for transpoi'tation, and 
 that the defendant B. aided and abetted such other person or persons 
 in the acts just named herein, then the defendant is guilty as charged 
 in the indictment, and you should so find.^'* 
 
 § 2880. Breaking into Chicken Coop. If the jury believe from 
 the evidence in this cause and beyond a reasonable doubt that the 
 
 defendant, on or about the 8th day of at the county of and 
 
 state of , broke into and entered in the night time the chicken 
 
 house of one L. S., by forcibly unfastening the latch of the outer door 
 of said chicken house building and forcibly pushing said door open, 
 and that there were at said time in said chicken house building 
 goods, wares, and merchandise, and other valuable things, to wit, 
 chickens and turkeys, kept and deposited, and further believe from 
 the evidence and beyond a reasonable doubt that the defendant did 
 so break into and enter said chicken house building with the intent 
 of stealing, taking and carrying away, converting to his own use, and 
 of depriving the owner permanently of his property, and against the 
 owner's consent, and without any honest claim of right thereto, 
 any of the chickens and turkey's then in said chicken house and be- 
 longing to said L. S., then the jury will find the defendant guilty of 
 burglaiy in the second degree, and will assess his punishment at im- 
 prisonment in the penitentiary for a term of years not less than 
 three years.^^ 
 
 § 2881. What Constitutes an Entry. And to constitute an entry 
 within the meaning of the law it is not necessary that the whole body 
 should be introduced into the building. It is sufficient if the hand, 
 or even a finger, or any instrument held in the hand is introduced 
 into the building for the pui-pose and with the intent charged in the 
 indictment. ^^ 
 
 § 2882. In Charge for Burglary Accused May Be Found Guilty of 
 Larceny. The jury are instructed that under an information for 
 burglary the accused may be found guilty of larceny- ; and if, in this 
 case, the jury are not satisfied from the evidence beyond a reasonable 
 doubt, that the defendant committed the burglaiy as charged in the 
 information, still, if the jury believe from the evidence, beyond a 
 reasonable doubt, that the defendant did steal the goods described 
 
 9— Johnson v. Com., 85 Penn. St. 11— State v. McGuire, 193 Mo. 215, 
 
 54. 27 Am. Rep. 622. 91 S. W. 939 (940). 
 
 10— State V. Berger, 121 Iowa 581, 12—1 McClain Grim. Law, § 503. 
 96 N. W. 1094.
 
 1828 
 
 FORMS OF INSTRUCTIONS. 
 
 [§ 2883. 
 
 in the information from the possession of the said X., then the jury 
 may, under this information, find the defendant guilty of larceny.^^ 
 
 § 2883. Time Burglary Committed Generally Immaterial — May Be 
 Material. Perhaps I ought to charge you that the time this burglary 
 was committed, if you believe that a burglary was committed, is im- 
 material. The law allows the state to go back four years, in cases 
 of this sort, prior to the date when the bill of indictment was found. 
 But if, upon the testimony, the time is made by the evidence 
 material, it may be made from the run of the evidence material, and 
 therefore, if that is the case, you are to consider the time." 
 
 § 2884. Day Time or Night Time. If you find that the defendant 
 was guilty of breaking and entering the house of the said X. with the 
 intent charged, but have a reasonable doubt as to whether such 
 breaking and entering was done in the night time, then the defendant 
 would not be guilty of the offense of burglary, but he would, under 
 such circumstances, be guilty of the offense of breaking and entering 
 in the day time.^^ 
 
 13— Ferguson v. State, 52 Neb. 
 432, 72 N. W. 590 (591), 66 Am. St. 
 512. 
 
 "The objection brought forward 
 against the foregoing is that it as- 
 sumed that a burglary had been 
 committed, and withdrew that 
 question of fact from the consider- 
 ation of the jury; and Metz v. 
 State, 46 Neb. 547, 65 N. W. 190, is 
 relied upon to sustain the argu- 
 ment. This criticism is absolutely 
 without foundation. From the lan- 
 guage complained of, no fair in- 
 ference can be drawn that the trial 
 court assumed or stated as a fact 
 that a burglary had been commit- 
 ted by any one, much less by the 
 defendant. That question was left 
 for the jury to ascertain from the 
 evidence; and, if they failed to find 
 that the crime of burglary had 
 been committed, as charged in the 
 information, then the jury were di- 
 rected to ascertain and determine 
 whether or not the accused was 
 guilty of larceny of the harness. 
 The decision in the Metz case lacks 
 analogy. There the trial court in- 
 structed the jury that 'If you be- 
 lieve from the evidence, beyond a 
 reasonable doubt, that soon after 
 the burglary of the storehouse or 
 warehouse of the said B., and the 
 larceny of the corn therefrom, por- 
 tion of the said corn so stolen was 
 in the exclusive possession of the 
 defendant, M., you are instructed 
 that this circumstance, if so prov- 
 en, is presumptive, but not con- 
 clusive, evidence of the defendant's 
 guilt.' Undoubtedly, the foregoing 
 
 practically told the jury that the 
 storehouse had been burglarized 
 and that the corn had been stolen 
 therefrom; and this court so held. 
 The mere quoting of the two in- 
 structions is sufficient to make 
 plain that the case cited has no 
 bearing upon the question under 
 consideration." 
 
 14— Johnson v. State, 92 Ga. 577, 
 20 S. E. 8 (9). 
 
 15— State v. Jordan, 87 Iowa 86, 
 54 N. W. 63 (64). 
 
 The court said: 
 
 "It is said that the giving of this 
 instruction is erroneous, because 
 the defendant is not charged with 
 such a crime, and there is no evi- 
 dence to sustain it. In State v. 
 Frahm, 73 Iowa 355, 35 N. W. 451, 
 this court held that 'burglary of a 
 dwelling house is of two degrees — 
 the first, the breaking and enter- 
 ing in the nighttime with intent to 
 commit a felony; the second, the 
 breaking and entering in the day- 
 time.' Code, § 4465, is as follows: 
 'Upon an indictment for an offense 
 consisting of different degrees, the 
 jury may find the defendant not 
 guilty of the degree charged in the 
 indictment, and guilty of any de- 
 gree inferior thereto, or of an at- 
 tempt to commit the offense, if 
 punishable by indictment.' The 
 statute is authority for the in- 
 struction. Breaking and entering 
 in the daytime is a degree of the 
 offense charged. As to there being 
 no evidence of such an offense, we 
 need only say there is testimony on 
 which the jury found that there
 
 § 2885.] CRIMINALr— BURGLARY— ROBBERY. 1829 
 
 § 2885. Possession of Stolen Goods — Reasonable Doubt, (a) The 
 
 court charges the jury, while the law is that the recent possession of 
 stolen goods, if unexplained, may justify a conviction yet, if defendant 
 has explained his possession of the goods to the reasonable satisfaction 
 of the jury, and if, upon a fair consideration of all the evidence, the 
 juiy have a reasonable doubt growing out of any part of the evidence, 
 as to defendant's guilt the juiy must acquit him. 
 
 (b) The court charges the jury that if, after considering all the 
 evidence the jui'y have a. reasonable doubt as to defendant's guilt 
 growing out of the evidence of B. G. the jury must acquit the 
 defendant.^" 
 
 (c) The exclusive possession of stolen property by the prisoner 
 soon after the theft, the property being shown by the evidence to 
 have been stolen from a building entered, such possession, unex- 
 plained, is sufficient to warrant a conviction of the offense charged.^'' 
 
 (d) Possession of goods recently stolen does not in itself create 
 presumption or amount to ijrima facie proof that the possessor is 
 guilty of breaking and entering the building in which the goods were 
 kept; but if other evidence in the case shows beyond a reasonable 
 doubt that the building was broken and entered by some one, that the 
 theft of the goods was accomplished at the time and by means of 
 the breaking and entering, proof of possession unexplained, or in the 
 absence of circumstances raising a reasonable doubt as to whether 
 the possession of the goods had been acquired otherwise than by the 
 crime charged, is sufficient to warrant a conviction.^* 
 
 (e) If you find from the evidence, beyond a reasonable doubt, 
 that on or about the 18th of March, 19 — , a building belonging t>o 
 
 or in the possession or occupancy of , and situated in Benton 
 
 Count}^, Iowa, was broken into and entered, and that personal prop- 
 erty was stolen therefrom, and you further find that within a few 
 
 was a breaking and entering at session sliown in tliis case has been 
 
 some time, with tlie felonious in- explained to the reasonable satis- 
 
 tent necessary to constitute bur- faction of the jury, and upon a fair 
 
 glary. This breaking and entering consideration of all the evidence 
 
 must have been either in the night- they have a reasonable doubt, 
 
 time or in the daytime. If the evi- growing out of any part of the 
 
 dence did not, with that degree of evidence, as to defendant's guilt, 
 
 certainty necessary to convict, he should be acquitted. This in- 
 
 show the offense to be of the high- struction does not authorize acquit- 
 
 est degree, it was the duty of the tal on a reasonable doubt resting 
 
 jury, under a familiar rule, to find on a part of the evidence only, but 
 
 it of the lower degree and hence, if upon such doubt which may have 
 
 there was evidence to convict of been created by a part of the evi- 
 
 burglary, it is certainly sufficient dence, but remains after a fair 
 
 to sustain a verdict for the lower consideration of all the evidence 
 
 degree." and thus rests upon the whole evi- 
 
 16— Hale v. State, 122 Ala. 85, 26 dence. The second charge refused 
 
 So. 2"6 (237). to the defendant is, upon like c"n- 
 
 The frst charge, the court said, siderati^ns. free from infirmitv." 
 
 shouVl have been given. "It cor- 17— "There was no error in g'ving 
 
 rectly t^^^ates the law in respect of th's charge." Leslie v. State 35 
 
 possession of stolen goods, and the Fla. 171. 17 So. 555 (558). 
 
 explanation offered of such posses- 18— State v. Donovan, 129 la. 239 
 
 sion, and declares that if the pos- 101 N. W. 122 (123). *
 
 1830 FORMS OF INSTRUCTIONS. [§ 2885. 
 
 liours thereafter the property so stolen was in the possession of the 
 defendants, you will, in such case, be warranted in concluding and 
 finding that such property was stolen by the defendants from said 
 building by breaking and entering the same, unless the facts and cir- 
 cumstances disclosed, or the evidence introduced by the state or the 
 defendants, raises in your minds a reasonable doubt as to whether the 
 defendants did not come honestly into the possession of such property. 
 If such reasonable doubt has been raised in your minds by the testi- 
 mony and facts and circumstances introduced and appearing in the 
 ease, then you should not act upon said presumption in convicting 
 the defendants, and should not convict the defendants, unless their 
 guilt has otherwise been proven, as you are directed it must be.^^ 
 
 (f ) The jury are instructed, if they believe from the evidence that 
 the house of X. was burglariously entered by some person about the 
 time alleged in the indictment, and recently thereafter defendant was 
 found in possession of the property which was situated and con- 
 tained in the house of X. at the time it was burglarized, which had 
 been stolen from said house at the time said burglary was committed, 
 if it was, and, when his possession of said propei'ty was first ques- 
 tioned, he made an explanation how he came by it, and accounted 
 for his (defendant's) possession in a manner consistent with his 
 innocence, and you believe such explanation is reasonably and proba- 
 bly true, then you should acquit the defendant.^" 
 
 (g) I charge you, gentlemen, that the mere fact of the defendant 
 having in his possession, and disposing of the property alleged to 
 have been stolen ; that is, if you are satisfied beyond a reasonable 
 doubt that he had in his possession the property alleged to have been 
 stolen, and attempted to dispose of it — I say that these facts are only 
 
 19 — 'State V. Ryan, 113 Iowa 536, that the defendant is on trial 
 
 85 N. W. 813. charged with an offense, and is an 
 
 ^ The court said: interested witness; but, while this 
 
 ' "This instruction is supported by should not cause you to disregard 
 
 the following cases: State v. Tay- his testimony, yet you should con- 
 
 lor, 25 Iowa 275; State v. Hessians, sider that fact while weighing his 
 
 50 Iowa 137; State v. Richart, 57 testimony.' This instruction is fully 
 
 Iowa 246, 10 N. W. 657; State v. sustained in State v. Moelchen, 53 
 
 Kelly, 57 Iowa 645, 11 N. W. 635; Iowa 316, 5 N. W. 186; State v. 
 
 Johnson v. Miller, 63 Iowa 538, 17 Sterrett. 71 Iowa 388, 32 N. W. 387." 
 
 N. W. 34, 50 Am. Rep. 758; State v. 20— McCoy v. State, — Tex. Cr. 
 
 Golden, 49 Iowa 49; State v. Rivers, App. — , 81 S. W. 46, 78 Am. Dec. 
 
 68 Iowa 616, 27 N. W. 781; State v. ' 520. 
 
 La Grange, 94 Iowa 61, 62 N. W. "This charge is a substantial 
 
 664. Other cases might be cited to copy of the first portion of the 
 
 the same effect. Williams v. State, charge approved by this court in 
 
 60 Neb. 526, 83 N. W. 681. is not in Wheeler v. State, 34 Tex. Cr. R. 
 
 point, as a different rule prevails in 350, 30 S. W. 913. The latter clause 
 
 that state. The defendant, having of the charge approved authorized 
 
 testified in his own behalf, the the jury to consider the falsity of 
 
 court instructed that such weight the explanation as a circumstance, 
 
 and influence should be given to if they believed it was false. This 
 
 his testimony as it was entitled to, portion was not given to the jury, 
 
 and that 'in weighing his testimony The charge given in this case is 
 
 you have the right to and should correct." 
 take into consideration the fact
 
 §2886.] CRIMINALr-BURGLAEY— ROBBERY. 1831 
 
 circumstances tending to show guilt, but they are not of themselves 
 sufficient to prove that he committed the burglary. And if the 
 defendant has explained satisfactorily how he came into possession 
 of the alleged stolen property, and from such explanation you be- 
 lieve that he did not participate in the burglary, and there is no other 
 evidence connecting him with the crime, then you will return a verdict 
 of not guilty.2^ 
 
 § 2886. Possession — Explanation Must Be Reasonable. Where 
 property taken by breaking and entering with intent to commit a 
 felony is found in the exclusive possession of the defendant being 
 tried on the charge, recently after the breaking and entering and the 
 theft of the goods so found, when standing alone, is sufficient to cast 
 upon him or them the burden of explanation how he came by them, 
 or of giving some explanation ; and if he fail to do so, to warrant the 
 jury of convicting him of the crime charged. The explanation given 
 must not only be reasonable; it must be credible, or enough so to 
 raise a reasonable doubt in the minds of the jury, who are the judges 
 of the reasonableness and probability as well as credibility.^^ 
 
 § 2887. Attempt of Burglary — Co-operating with Burglar. You 
 have obser\-ed that the charge is that defendant attempted to break and 
 enter into said building with intent to commit a larceny. If another 
 man than the defendant feloniously broke and entered said building 
 with intent to commit a larceny, he must first have attempted to do so 
 before consummating the breaking and entering and if the defendant 
 was concerned in the commission of that offense, and co-operating 
 with the person committing it in its commission, then he is charge- 
 able with the attempt made by such a person the same as if he had 
 made the attempt himself. If such a breaking and entering was with 
 intent to commit a larceny and the defendant was concerned in the 
 
 21 — People V. Lang-, 142 Cal. 482, tending to show guilty knowledge 
 
 76 Pac. 232 (234). on his part, and it is evidence, with 
 
 State v. Harrison, 66 Vt. 523, 29 the other circumstances in the 
 
 Atl. 807, 44 Am. St. 864, is authority case, tending to show that he is 
 
 for the following instruction: guilty of the crime with which he 
 
 One of the gentlemen from Can- stands charged. The mere posses- 
 
 ada — I think Mr. M. — testifies that sion of these shirts, although they 
 
 this respondent, when telling about were stolen property, is not suf- 
 
 the shirts taken from him, told him flcient of itself, to convict him of 
 
 that he obtained these shirts be- a crime; but if you are satisfied, as 
 
 tween this place and that, without I say, beyond a reasonable doubt, 
 
 saying where. The respondent R. that he falsified about the time 
 
 testifies that the shirts were given and place and manner in which he 
 
 to H. south of here, in that barn, became thus possessed of the shirts. 
 
 If you are satisfied beyond a rea- that is evidence tending to show 
 
 sonable doubt that this respondent his guilt. 
 
 did tell M. that he obtained these 22— Robertson v. State, 40 Fla. 
 
 shirts between this place and S., 509, 24 So. 474 (479), 52 L>. R. A. 751. 
 
 and are satisfied that that was not The court said: 
 
 true, and that he obtained the "This instruction was correct and 
 
 shirts as the respondent R. says he strictly in line with the decisions 
 
 obtained them, and find that this of this court," citing Tilly v. State, 
 
 respondent falsified in respect to 21 Fla. 242; Leslie v. State, 35 Fla. 
 
 when and where he got the shirts, 171, 17 So. 555; Rimes v. State, 36 
 
 then that falsification is evidence Fla. 90, 18 So. 114.
 
 1832 FORMS OF INSTRUCTIONS. [§ 2888. 
 
 commission of the breaking and entering with that intent he is 
 chargeable with such an intent. If you find beyond a reasonable, well 
 founded doubt upon all the evidence that the defendant did thus at- 
 tempt to break and enter into said building, and the said attempt to 
 break and enter was with intent to commit a larceny, then you will find 
 him guilty; but if upon a view of the whole evidence you have a 
 reasonable doubt of his guilt as charged, you will acquit him.^^ 
 
 § 2888. Must Prove Defendant Committed Burglary Beyond 
 Reasonable Doubt, (a) The court instructs the jury that it was 
 incumbent upon the state to show beyond a reasonable doubt that 
 the defendant at the time and in the county alleged, entered the house 
 alleged, with the parties named in the accusation, and after entering 
 said house, did privately, with the parties named in the accusation 
 steal therefrom the pi'operty described.-* 
 
 (b) If you have a reasonable doubt whether the defendant broke 
 into the office of the company in this case, you will find him not 
 guilty. 
 
 (c) Before the jury should convict the defendant, the hypothesis 
 of his guilt should flow naturally from the facts proved, and be con- 
 sistent with all of them. 
 
 (d) If you believe that the defendant has reasonably accounted 
 for his possession of the stolen checks in this case, you should find him 
 not guilty.25 
 
 ROBBERY. 
 
 §2889. Robbery Defined. The term ''robbery,*' as mentioned in 
 these instructions, means the felonious taking of the money or prop- 
 erty of another from his person or in his presence, and against his 
 will, either by violence to his person, or by putting him in fear of 
 some immediate injury to his person, with the intent to permanently 
 deprive the owner of such money or property, and without any 
 honest jlaim to it. An attempt to perpetrate a robbery means the 
 willful doing of an act or acts towards the commission of a robbery 
 for that purpose with that intent, but a failure in the perpetration 
 thereof.-" 
 
 § 2890. What Acts Would Constitute Robbery. If the jury believe, 
 from the evidence, beyond a reasonable doubt, that some time about 
 the day of, etc., A. B. was at the saloon of E. M., in this county, and 
 that he then had in his possession any of the treasury notes or bank 
 
 23— Stnte v. Mahoney, 122 Iowa v. Schmidt, 136 Mo. 651, 38 S. W. 
 
 168, 97 N. W. 1089 (1090). 719; Same v. Foster, 136 Mo. 655, 
 
 24— Hargrove v. State, 117 Ga. 38 S. W. 721; Same v. Hopkirk, 84 
 
 706 45 S. E. 58. Mo. 278; Same v. Meyers, 99 Mo. 
 
 25_Brown v. State, 118 Ala. Ill, 107, 12 S. W. 516; Same v. Donnel- 
 
 23 So. 81. ly. 130 Mo. 642, 32 S. W. 1124, 51 
 
 26— State v. McGlnnis. 158 Mo. Am. St. 585. 
 105, 59 S. W. 83 fS7), citing State
 
 §2891.] CRIMINAL— BURGLARY— ROBBERY. 1833 
 
 bills described in the indictment in this case, and that such notes or 
 bills were genuine, and of some value, and further, that one C. D. 
 requested the said A. B. to loan him some money, and that thereupon 
 the said A. B. took out his said treasury notes or bank notes for the 
 purpose of making such loan, and further, that the said defendant 
 then grabbed the said money and forcibly took the same from the 
 person of the said A. B., and then ran away with said money, with 
 the intention of stealing the same, this would constitute robbeiy on 
 the part of the defendant, and the jury should find him guilty, in 
 manner and form as charged in the indictment.-^ 
 
 § 2891. Not Necessary that Force Be Used. The jury are in- 
 structed that, to constitute the crime of robbery, it is not necessary 
 •that any force be used to obtain possession of the property. It is 
 sufficient if such possession is obtained from the person of the owner, 
 against his will, by threats or menaces of personal violence against 
 him.2^ 
 
 § 2892. Violence Used Must Not Be Subsequent to the Taking. 
 The jui-y are instructed that violence, in order to constitute an assault 
 ■with intent to rob, must not be subsequent to the attempt to take the 
 property.29 
 
 § 2893. Intending to Use Whatever Force Is Necessary. You are 
 
 further instructed that you should convict the defendant of assault 
 with an intent to commit robbeiy if you believe from the evidence 
 beyond a reasonable doubt that at the time in question he committed 
 an assault, or aided or advised the assault upon the prosecuting wit- 
 ness for the purpose of robbeiy and that in making the assault he 
 intended to use whatever force might be necessary to overcome the 
 prosecuting witness and accomplish his pui-pose, — that of robbery.-^'^ 
 
 § 2894. Holding Up a Train— Intent. The court instructs the juiy 
 that to flag and stop a train is not in itself unlawful, unless coupled 
 with evidence of an intent to commit the specific crime charged in the 
 indictment.^i 
 
 27— Roscoe's Crim. Evi. 893. "The testimony tended to show 
 
 McClain, in his Criminal Law, that after the taking- of the prop- 
 
 vol. 1, sec. 469, states that the mere erty had been abandoned by the 
 
 snatching of property from the defendant, a struggle to avoid an 
 
 hand of another before any resist- arrest ensued. However violent 
 
 ance is made is not sufficient, but this struggle, it did not characterize 
 
 if resistance, however slig-ht, is the attempt to take the diamond 
 
 overcome, the violence is sufficient; stud. The jury should have been 
 
 so, where a handbag carried on the plainly told that the charge of as- 
 
 arm was taken with such force as sault with intent to rob by vio- 
 
 to bruise the arm, the violence lence was not proved by subse- 
 
 was held sufficient, citing Klein v. quent violence used to avoid an ar- 
 
 People. 113 111. 596. rest." 
 
 28— Phinn v. State, 64 Ind. 13, 31 30— State v. Fenton 30 Wash 
 
 Am. Rep. 110, 3 Am. Cr. Rep. 396. 325. 70 Pac. 741 (742). 
 
 29— Hanson v. State, 43 Ohio 376, 31— State v. West 157 Mo 309 57 
 
 1 N. E. 136 (137), 5 Am. Cr. Rep. S. W. 1071 (1076). ' 
 625.
 
 1834 FORMS OF INSTRUCTIONS. [§2895. 
 
 § 2895. Taking from the Immediate Presence Does Not Necessarily 
 Mean the Immediate View. You are further instructed that it is not 
 necessary, to constitute the stealing or carrying away from the imme- 
 diate presence of the deceased, that it should have been done, if done, 
 in his immediate view, Avhere he could see it done; and if you find 
 from the evidence beyond a reasonable doubt that he made a violent 
 assault upon the deceased, by choking him and causing him to fall 
 upon the ground, and that he then took from his pockets the sum of 
 money as charged in the information, then you will find the defendant 
 guilty of robbery as charged in the information.^^ 
 
 § 2896. Taking Must Be from the "Person" of Another. If a con- 
 vict take a gun from a guard forcibly for the purpose of making safe 
 his escape, but not feloniously, with intent to appropriate the same 
 to his own use, the offense would not be robbery, and not a felony.^^ 
 
 § 2897. What Is Meant by Taking from the Person — Series, (a) 
 
 It is provided by our statutes that if any person with force or violence, 
 or by putting in fear, steal and take from the person of another any 
 property that is subject of larceny, he is guilty of robbery. 
 
 (b) Under this statutory provision, it is not essential that the 
 stealing and taking, if any, was literally from the person, or, in other 
 Avords, that the property, if any, was on, or attached to, or touching, 
 the literal physical person of the party alleged to have been robbed, 
 but it is sufficient if the stealing and taking, if any, was done in the 
 immediate presence of such person, and while the property was under 
 the control and in the custody of such party. 
 
 (c) If, therefore, you find from the evidence, beyond a reasonable 
 doubt, that the defendant, in this county and state, at a time within 
 three years next preceding the finding of the indictment in this case, 
 did steal and take from the immediate presence of the said N. B., 
 named in the indictment, the property named in the indictment, oi- 
 some part of it, and that the stealing and taking, if any, was ac- 
 complished with force or violence towards said N. B., or by putting 
 her in fear, and you further so find that the property, if any, thus 
 stolen, was at the time owned by, or in the possession of, said N. B., 
 and was of some value, then and in such case you should return a 
 
 32 — State v. Mitchell, 32 Wash, lent taking of money, goods or 
 
 64. 72 Pac. 707 (708). chattels from the person of an- 
 
 33— State v. Whittle, 59 S. C. 297, other by force or intimidation 
 
 37 S. E. 923 (926). without the consent of the owner.' 
 
 "This charge was upon a hypo- By this statute, as at common law, 
 
 thetical statement of facts, which it is essential to the crime of rob- 
 
 it has frequently been held is not a bery that the taking shall be 'from 
 
 charge in respect to matter of fact, the person' of another. As the fact 
 
 in violation of the Constitution hypothetically stated did not neces- 
 
 prohihiting the same. Nor was the sarily include a taking from the 
 
 charge contrary to the law of person, the charge was not erro- 
 
 Georgia as to felony. It appears, neous, even if under the Georgia 
 
 from the Criminal Code of Georgia, statute, the animus furandi is 
 
 offered in evidence by the defend- eliminated as an essential element 
 
 ants (section 151), that 'robbery is of robbery." 
 the wrongful, fraudulent and vio- But see next section.
 
 §2897.] CRIMINAI^-BURGLARY— ROBBERY. 1835 
 
 verdict of guilty of robbery; but if you do not so find as to these 
 several matters, you cannot find the defendant guilty of robbeiy. 
 
 (d) It is not necessary, in order to constitute a stealing and car- 
 rying away in the immediate presence of the said N. B., that it 
 should have been done, if done, in her immediate view or where she 
 could see it done. And if you find, from the evidence, beyond a 
 reasonable doubt, that the defendant made a violent assault upon 
 said N. B. by choking her and causing her to fall upon the floor of 
 one of the rooms or apartments of her house, and then tied her hands 
 and feet for the purpose and with the intention of stealing some 
 money or property in the house, and you further so find that she, 
 through fear of personal violence, told defendant where her money 
 or watch was in an adjoining room or rooms, and you further so 
 find that thereupon defendant passed through a door or doors into 
 such room or rooms, and did there, within hearing of said N. B., take 
 and carry away from said room or rooms the property described in the 
 indictment, or some part thereof, and you further so find that such 
 property was under her immediate control, and that such taking, if 
 any, was against the will of the said N. B., and was without any right 
 or claim of right of defendant in said property, and with the intent 
 to permanently deprive her thereof, then, and in such case, there 
 would be a sufficient stealing and taking from the immediate presence 
 of the said N. B., within the meaning of the law. 
 
 (e) It is charged in the indictment that, at the time of the 
 alleged robbery, the defendant was armed with a dangerous weapon, 
 with intent, if resisted, to kill or maim the said N. B., and, being so 
 armed, did wound said N, B. If you find the defendant guilty of 
 robbery, you will determine whether this charge in the indictment is 
 sustained. The only evidence relied upon by the state, as tending 
 to show that defendant was armed with a deadly weapon, is the 
 evidence tending to show that, at the time of the alleged robbery, 
 the defendant had with him the piece of cord or rope introduced 
 in evidence. It is for you to say from the evidence, whether he did 
 have and used such cord or rope ; and if he did, whether the same 
 was a dangerous weapon; and, if it was, whether he intended by the 
 use of it (if he did use it) if resisted, to kill or maim said N. B. 
 therewith or did wound her. 
 
 (f) A dangerous weapon is one which, from the use made of it 
 at the time, is likely to produce death, or do great bodily harm; and 
 unless you find that said cord or rope was of such a character you 
 cannot find that the defendant was armed with a dangerous weapon. 
 If it was only calculated to produce, from the use of it (if used), a 
 slight injury upon the person of the said N. B.. then it would not be 
 a dangerous weapon within the meaning of the law.^* 
 
 34 — The above instructions for The facts in th^ case were as fol- 
 
 the State was sustained in State lows: The defendant bound the 
 
 V. Calhoun, 72 la. 432, 34 N. W. prosecuting witness and putting her 
 
 194, 2 Am. St. 252. in fear by this violence he extorted
 
 1836 FORMS OF INSTRUCTIONS. [§ 2898. 
 
 § 2898. Taking from the Very Person Not Necessary. If you find 
 that X. was holding Y., and that Y., to keep defendants from taking 
 his money, threw his poeketbook down on the ground, and tried to 
 kick the same under a railroad tie, and the defendant Z. picked it 
 up and ran away with it, then the fact, if it be a fact, that the 
 defendant did not get the poeketbook out of the pocket of Y., but off 
 the ground, where Y. had thrown it, would not make the act any the 
 less robbery.^'^ 
 
 § 2899. Taking from the Person or in His Presence by Putting in 
 Fear or by Force and Violence Held SuflEicient. The court instructs 
 the jui-y that if you find and believe from the evidence that at any 
 time within three years next before the 19th day of December, 1903, 
 D., either alone or acting in concert with another or others, took and 
 carried away any money , or property described in the information, 
 the property of one T., from his person, or in his presence, and 
 against his will, by force and violence to his person, by putting him in 
 fear of an immediate injury to his person, without honest claim to 
 such money or property on the part of the defendant, and with the 
 intent to deprive said T. of his ownership therein, and convert the 
 same to his own use, then you will find defendant guilty of robbery 
 in the first degree, and assess his punishment at imprisonment in 
 the State Penitentiary for any term not less than five years.^^ 
 
 §2900. Retaking of One's Property from Another by Force and 
 Putting in Fear. Although you might believe from the evidence that 
 M. had taken the property from defendant, or from defendant and 
 W., and had the same in his possession at the time of the alleged 
 robbery, such fact would not justify the defendant and the said W., 
 or either of them, in assaulting and putting M. in fear of life or bodily 
 injuiy, and thereby fraudulently taking from his person and posses- 
 sion the money described in the indictment; but their act in so doing 
 would be robbery, and you should find the defendant guilty, provided 
 you believe from the evidence, beyond a reasonable doubt, that de- 
 fendant, acting alone, or in connection with the said W., in such 
 manner as to make him a principal offender, took said money from 
 
 from her information of the place is that, as the statute is in the dis- 
 
 where she kept her money and junctive, by the omission of tlie 
 
 watch in another room of the word 'or' after the phrase, 'by 
 
 house. Leaving- her bound he went force and violence to his person,' 
 
 into that room and took the and before the phrase 'by putting 
 
 money. The Supreme Court of him in fear of an immediate in- 
 
 lowa held that the money was jury,' etc., in its effe(^t tells the 
 
 taken from her person in the sense jury the two phrases are equiva- 
 
 of the words used in the statute. lents. We cannot take the view 
 
 Citing 2 Bish. Crim. Law, § 975; that this instruction could have 
 
 Whart. Crim. Law, § 1696. misled the .inr■'^ All the evidence 
 
 But see previous section. tended tn s^nw robbery 'by force 
 
 35— Rains v. State, 137 Ind. 83, and ->'in1en(-p.' aiid so much of the 
 
 36 N. ■R. 532 (533). instrur'tion as related to putting in 
 
 36— State v. Davis, 186 Mo. 533, 85 fear was unnecessary and useless 
 
 S. W. 354 ("355). surplusage." 
 
 To this instruction "the insistence
 
 § 2901.] CRIMINAL^BURGLARY— ROBBERY. 1837 
 
 the said M. under such circumstances as to make him guilty of rob- 
 bery as explained to you in another part of this charge.^' 
 
 § 2901. Possession of the Fruits of the Robbery, (a) The posses- 
 sion of the fruits of a crime recently after the crime, if unexplained 
 to the satisfaction of the jury, becomes a very strong circumstance 
 
 of guilt. In this case, the witness was knocked down and robbed 
 
 on the streets of the night of , 18 — . The 
 
 defendant is seen next day with his watch, and gives his explanation 
 of his possession. A few days later he gives other explanations of 
 his possession, and in his testimony here on the stand gives his ex- 
 planation. The witness M., from whom he claims, personally testifies, 
 denying having had the watch ; and it is for you to consider all these 
 matters and determine whether the defendant has explained his 
 possession of the watch in such a way as to raise a reasonable doubt 
 in your mind as to his guilt. If he has not, then the law -oakes that 
 possession a very strong presumption of guilt, and very justly so, for 
 the reason that any one getting property honestly can usually present 
 ample proof of it.^* 
 
 (b) The jui-y are instructed that if the defendant obtained from 
 J. S. possession of any of the property described in the indictment, 
 or if any other persons were in company with defendant and obtained 
 possession of any of such property from J. S., yet if you believe that 
 such possession of said property was obtained by purchase or by gift, 
 or by both purchase and gift, from said J. S., or if you have a rea- 
 sonable doubt as to whether said possession of the property was ob- 
 tained by purchase or gift, or by means of assault, violence or putting 
 said S. in fear of his life or bodily injmy, then you must acquit 
 the defendant.^" 
 
 § 2902. Case of Each Co-defendant to Be Considered Separately — 
 Common Enterprise. Bearing in mind what I have said, you are to 
 consider the case of the defendants separately. In order to convict 
 either defendant however of the charge made against him in this in- 
 formation there should be evidence against such defendant which con- 
 vinces you beyond a reasonable doubt of the guilt of that particular 
 defendant. While these defendants are tried together, and are 
 charged with a joint offense, it is necessary that evidence should be 
 given against each one of them, and it is w-ithin the power of the 
 jury, and it is the duty of the juiy, to consider the case of each de- 
 fendant separately, as though he were on trial here alone; and if 
 the evidence is not sufficient to convict him, no matter whether it is 
 sufficient to convict the other or not, then you should consider the ease 
 of each one, just the same as if he were on trial alone, and you 
 can render a verdict with regard to one which may be one way, and 
 
 37_Beard v. State. 44 Tex. Cr. 39— Ford v. State, 41 Tex. Cr. 
 App. 402. 71 S. W. 960 (961). App. 1, 51 S. W. 935 (937). 
 
 38_State v. Harris. 97 la. 407, 66 
 N. W. 728 (730).
 
 1838 FORMS OF INSTRUCTIONS. [^ 2ii02 
 
 with regard to the other which may be the other way. Now if you 
 find from the testimony in this case beyond a reasonable doubt, that 
 both the men who are accused in this case, that is McL. and B. 
 had hold of the peddler with the intention of robbing him, and that 
 McL. did not take anything from the person, and that B. did, you can 
 find both guilty of robbery. If you find from the testimony in this 
 case that they were not engaged in this common purpose, but that 
 McL. intended to rob without having any knowledge or taking any 
 part in B. 's acts and intentions, and was prevented from doing so, you 
 can find him guilty of assault with intent to rob. In either case as I 
 said you must be satisfied beyond a reasonable doubt that they are 
 guilty, or else it is your duty to acquit them.*<> 
 
 40— People v. Blanchard, et al., 136 Mich. 146, 98 N. W. 983.
 
 CHAPTER XCV. 
 
 CRIMINAL— CONSPIRACY. 
 
 See Erroneous Instructions, same chapter head, Vol. III. 
 
 § 2903. Conspiracy defined. 
 
 § 2904. What must be proved to 
 convict. 
 
 S 2905. Sufficient to prove con- 
 spiracy by circumstantial 
 evidence — What is and 
 what is not necessary to 
 prove. 
 
 J 2906. Sufficient proof of common 
 design. 
 
 § 2907. Act of one is act of all. 
 
 § 2908. One conspirator responsible 
 for acts of all until he 
 withdraws — -Rule after he 
 withdraws — When previous 
 agreement is entered into. 
 
 § 2909. What facts tend to show 
 conspiracy. 
 
 § 2910. Participants after the con- 
 spiracy is formed. 
 
 § 2911. Not necessary that the de- 
 sign should succeed. 
 
 § 2912. Not necessary that the meet- 
 ing should have been for 
 an unlawful purpose. 
 
 § 2913. Conspiracy to commit mur- 
 der. 
 
 § 2914. Conspiracy to rob or mur- 
 der — Former acquittal of 
 one conspirator — Testi- 
 mony of conspirator. 
 
 § 2915. Conspiracy to escape from 
 prison. 
 
 § 2916. Conspiracy to escape, when 
 a felony or misdemeanor. 
 
 § 2917. Conspiracy to tar and 
 feather. 
 
 § 2918. Assent to or knowledge of 
 conspiracy by defendant — ■ 
 Identity. 
 
 § 2919. Intoxication as defense to 
 conspiracy. 
 
 § 2920. Proof of conspiracy beyond 
 reasonable doubt. 
 
 § 2903. Conspiracy Defined. The court instructs the jury, as a 
 matter of law, that a conspiracy is a combination of two or more 
 persons by some concert of action to accomplish some criminal or 
 unlawful purpose, or some purpose, not in itself criminal or unlawful, 
 by criminal or unlawful means. ^ 
 
 § 2904. What Must Be Proved to Convict, (a) The court charges 
 the jury that before you can convict defendant upon the theory of a 
 conspiracy between defendant and J., S., and B., his alleged associ- 
 ates, you must find from the evidence beyond a reasonable doubt, and 
 to a moral certainty, that they conspired together, before the blow 
 was struck, to do some unlawful act, or to do some lawful act in an 
 unlawful manner, and that the fatal wound was inflicted by one of 
 them, and in furtherance of the purpose for which they had so con- 
 spired.^ 
 
 (b) The court instructs you that if the evidence before you 
 shows any conversations between parties other than defendant, you 
 will not consider such conversations as evidence against this de- 
 
 l_Ptate V. Rowley, 12 Conn. 101; 2— Liner v. State, 124 Ala. 1, 27 
 
 Smith V. People. 25 111. 17, 76 Am. So. 438 (440). 
 Dec. 780; Alderman v. People, 4 
 Mich. 414, 69 Am. Dec. 321. 
 
 1839
 
 1840 FORMS OF INSTRUCTIONS. L§ 2905. 
 
 fendant, unless the state has established beyond a reasonable doubt 
 that a conspiracy had been formed to slay A., and that this defen- 
 dant was a party to this conspiracy, or had guilty knowledge of the 
 same, and with such knowledge, aided by words or acts in pursuance 
 of such common design; and you are the judges of the evidence, 
 and you can only say if such conspiracy existed, and if defendant 
 acted in pursuance of the same.^ 
 
 § 2905. Sufficient to Prove Conspiracy by Circumstantial Evidence 
 — What Is and What Is Not Necessary to Prove, (a) The court 
 instructs the jury that evidence in proof of conspiracy will generally 
 be circumstantial, and it is not necessary, for the purpose of showing 
 the existence of the conspiracy, for the state to prove that the de- 
 fendant and some other person or persons came together and actually 
 agreed upon a common design or purpose, and agreed to pursue such 
 common design and purpose in the manner agreed upon. It is suffi- 
 cient if such common design and purpose is shown to your satisfaction 
 by circumstantial evidence. 
 
 (b) The court instructs the jui*y that while it is necessary, in 
 order to establish the existence of a conspiracy, to prove a combina- 
 tion of two or more persons by concert of action to accomplish a 
 criminal or unlawful purpose, yet it is not necessary to prove that the 
 conspirators came together and entered into a formal agreement to 
 effect such pui'pose; that such common design may be regarded as 
 proved if the jury believe from the evidence that the parties to such 
 conspiracy were actually pursuing in concert the common design or 
 purpose, whether acting separately or together, by common or differ- 
 ent means, provided they all were leading to the same unlawful 
 result.* 
 
 (c) The court instructs the jury, as a matter of law, that the 
 evidence in proof of a conspiracy will, in general, be circumstantial; 
 and, although the common design is the essence of the charge, it is 
 not necessary to prove that the defendants came together and actually 
 agreed, in terms, to have that design and to pursue it by common 
 means.^ 
 
 (d) The court instnicts the jury, as a matter of law, that if 
 the juiy, from the acts of the parties, as proven, and from all the 
 
 3_]Srel.son v. State, 43 Tex. Grim. E. 225; Kelley v. People, 55 N. Y. 
 
 App. 553, 67 S. W. 320. 565, 14 Am. Rep. 342, 350; People v. 
 
 4_Mu.sser v. State, 157 Ind. 423, Arnold, 46 Mich. 277, 9 N. W. 406; 
 
 61 N. E. 1 (7). Dayton v. Monroe, 47 Mich. 194. 
 
 The court said that "the law as 196, 10 N. W. 196; Spies v. People, 
 
 declared in said instructions is sus- 122 111. 1. 12 N. E. 865, 17 N. E. 
 
 tained by many authorities. 3 898, 3 Am. St. Rep. 320. 395, and 
 
 Oreenl. Ev. para. 93; 3 Russ. note page 476, Am. St. Rep., 5 Am. 
 
 Crimes f9th Am. Ed.) marg. pp. Cr. Rep. 637, 6 Am. Cr. Rep. 570." 
 
 165, 166; Whart. Cr. Law (9th Ed.) 5— Spies et al. v. People, supra; 
 
 paras. 1398, 1.399. 1401; Whart. Cr. The Mussel-Slough Case, 5 Fed. 
 
 Ev. paras. 32, 698; McKee v. State, Rep. 680; Tucker v. Finch, 66 Wis. 
 
 Ill Tnd. 378, 383, 12 N. E. 510; Arch- 17, 27 N. W. 817. 
 er v. State, 106 Ind. 426, 432, 7 N.
 
 § 2906.] CRIMINAL— CONSPIRACY. 1841 
 
 facts and circumstances in evidence, believe, beyond a reasonable 
 doubt, that the defendants did pursue the common object of, etc., as 
 charged in the indictment, and by the same means, one perform- 
 ing one part, and another another part, so as to accomplish the 
 common object, then the jury would be justified in the conclusion 
 that the defendants were engaged in a conspiracy to effect that 
 object.^ 
 
 § 2906. Sufficient Proof of Common Design. The court instructs 
 the jury, as a matter of law, that while it is necessary, in order 
 to establish a conspiracy, to prove a combination of two or more 
 persons, by concerted action to accomplish the criminal or unlawful 
 purpose alleged in the indictment, yet it is not necessary to prove 
 that the parties ever came together and entered intx) any formal 
 agreement or arrangement between themselves to effect such purpose; 
 the combination, or common design, or object, may be regarded as 
 proved, if the jury believe, from the evidence, beyond a reasonable 
 doubt, that the parties charged were actually pursuing, in concert, the 
 unlawful object stated in the indictment, whether acting separately 
 or together, by common or different means ; providing all were leading 
 to the same unlawful result.''' 
 
 § 2907. Act of One Is Act of All. If two or more persons, moved 
 and influenced by a common intent and purpose to feloniously as- 
 sault another with deadly weapons and take his life, and each knows 
 of the common felonious intent and purpose of the other to make 
 such a felonious assault upon such person, and take his life, then 
 the law says, under such circumstances, the aec of one is the act of all 
 the assailants; the blow of one is the blow or shot of all; they are 
 all responsible under such cii'cumstances, for the acts of each other.^ 
 
 § 2908. One Conspirator Responsible for Acts of All Until He 
 Withdraws — Rule After He Withdraws — When Previous Agreement 
 Is Entered Into, (a) But in a second ease, where a conspiracy 
 arises out of a concert of action simply, and without any previous 
 agreement of compact as to its extent or purpose, the responsibility 
 of any one of the parties thereto would cease when he abandoned 
 the common purpose and withdrew from any further concert of 
 action with the others, and withdrew all his aid, countenance, and 
 encouragement from the enterprise; but his resix)nsibility for the 
 acts of all, done in furtherance of the common purpose, would 
 continue until he did this. 
 
 (b) Accordingly, if the evidence in this case is such as to lead 
 you to believe that a large body of these striking miners, including 
 this defendant, assembled together on , vrithout any spe- 
 
 6 — Rose. Grim. Ev. 416; Smith v. that conspiracy need not be proven 
 
 People. 25 111. 1. by direct evidence," M^as approved. 
 
 In Caddell v. State, 136 Ala. 9, 34 7— U. S. v. Cole, 5 M. C. Lane 513. 
 
 So. 191 (192), the instruction: 8— Hinkle v. State, 94 Ga. 595, 21 
 
 "The court instructs the jury S. E. 595 (601). 
 
 116
 
 1S42 FORMS OF INSTRUCTIONS. [§ 2909. 
 
 cifie agreement or understanding as to what they would do; that 
 they united in attacking the men from the Standard mine, and 
 drove them away; that defendant took part in such attack; but that, 
 when the same was ended, lie withdrew from the crowd, and withdrew 
 all his aid, countenance, and encouragement, in any further action; 
 that he neither went to Keystone No. 2, nor aided, encouraged, nor 
 advised the others in going there; and that previous to their going 
 there the defendant had withdrawn entirely from any and all concert 
 of action with the others, and had withdrawn all his aid, countenance 
 and encouragement from the enterprise, — he will not be responsible 
 for any acts of the other parties after he had so severed his connec- 
 tion with them; and, if you find this to be the state of the case, the 
 defendant should be acquitted. But if he went to Keystone No. 2, 
 and assisted in attacking the house where M. and his comrades were; 
 or if he did not in fact go there himself, but if he advised, aided or 
 encouraged others to go there, for the purpose of driving or taking 
 the new miners away, and in the prosecution of that purpose the 
 house where Munson and the other new miners were, was attacked 
 and fired into by them, and M. was killed by any of such shots, — the 
 defendant will be lial^le, with all the others so engaged with him, 
 for such killing.^ 
 
 § 2909. What Facts Tend to Show Conspiracy. The court further 
 instructs the jury that if they believe from the evidence in this 
 case that the prisoner assaulted and beat B., and inflicted upon 
 
 him injuiy, in this county, on or about the night of , and 
 
 that D. and E. were present when said assault was so made by said 
 defendant, upon said B., and that they 'aided and abetted said 
 defendant in said assault and battery, either by preventing others 
 from interfering to prevent or stop said assault, or by assisting in 
 administering punishment to said B. themselves, then they must 
 presume that said assault was made and such injury inflicted in pur- 
 suance of a combination and conspiracy between said prisoner, 
 D., and E. ; and the burden of proving that such combination and 
 conspiracy did not exist, and that such assault w^as not made and 
 such injury inflicted in pursuance thereof, is upon the prisoner, and 
 unless he shows by clear, satisfactoi-y, and convincing proof that 
 such combination and conspiracy did not exist, or it appears from the 
 whole circumstances and evidence of the case, then they must find the 
 prisoner guilty.^** 
 
 9— State V. McCahill, 72 Iowa 111, present. The rule announced can- 
 
 .33 N. W. 599-601. not be questioned, and we can dis- 
 
 "The instructions read together cover no possible prejudice result- 
 present the correct rule of law. ing' to defendant from its repeti- 
 
 Counsel think the court erred in tion. It does not appear to us that 
 
 repeating in three or four instruc- it was broug-ht to the attention of 
 
 lions, the thought that defendant the jury in an improper connec- 
 
 is guilty if he aided, abetted, or tion." 
 
 enr-ouraged others to commit the 10— State v, Bingham, 42 W. Va, 
 
 ^rime, even though he was not 234, 24 S. E. 883.
 
 § 2910.] CRIMINAI^-CONSPIRACY. 1843 
 
 § 2910. Participants After the Conspiracy Is Formed. The court 
 instructs the jury, as a matter of law, that all who take part in a 
 conspiracy after it is formed, and while it is in execution, and all 
 who, with knowledge of the facts, concur in the plans originally 
 formed and aid in executing them, are fellow conspirators. Their 
 concurrence, without proof of an agreement to concur, is conclusive 
 against them. They commit the offense when they become partners to 
 the transaction, or further the original plan.^^ 
 
 § 2911. Not Necessary that the Design Should Succeed, (a) The 
 court instructs the jurj^, as a matter of law, that to constitute the 
 crime of conspiracy it is not necessaiy that the conspirators should 
 .succeed in their designs. Nor is any overt act necessary to complete 
 the crime ; the offense is complete when the confederacy to pursue the 
 common purpose is made.^- 
 
 (b) The court instructs the jury-, as a matter of law, that to con- 
 stitute the crime of conspiracy it is not necessary that the con- 
 spirators should succeed in their design ; it is enough if the common 
 design was formed, in manner and form as charged in the indict- 
 ment, and that any act was done in furtherance of such design by any 
 one of the conspirators. If the conspiracy, charged in the indictment, 
 has been proved to the satisfaction of the jury, beyond a reasonable 
 doubt, then the act of any one of the conspirators, in furtherance 
 of the common design, if proved, will be regarded as the act of all.^^ 
 
 § 2912. Not Necessary that the Meeting Should Have Been for an 
 Unlawful Purpose. Though the jury may believe, from the evi- 
 dence, that when the parties came together upon the occasion in 
 question, they met for some lawful purpose, yet, if the juiy fui'ther 
 believe, from the evidence, beyond a reasonable doubt, that they 
 then joined in attempting to accomplish the unlawful purpose stated 
 in the indictment, in manner and form as therein alleged, then this 
 would be sufficient evidence of a conspiracy to accomplish such 
 purpose, and it is unnecessary to prove any previous plan or under- 
 standing to that effect by the parties. i* 
 
 § 2913. Conspiracy to Commit Murder, (a) The court instructs 
 the jury, as a matter of law, that if they believe, from the evidence, 
 beyond a reasonable doubt, that the defendant and others, known 
 or unknown, conspired and agreed to kill S., and in pursuance of such 
 conspiracy S. was killed, the defendant, B., is guilty of murder, 
 whether present at the killing or not. 
 
 (b) The court instructs the jury, that if you believe, beyond a 
 reasonable doubt, that the defendant shot and killed S., or that he 
 
 11— People V. Mather, 4 Wend. H. 393; Johnson v. State, 3 Tex. 
 
 229 (N. Y.), 21 Am. Dec. 122. App. 590. 
 
 12— State v. Ripley. 31 Me. 386; 13— State v. Norton. 23 N. J. L. 
 
 Alderman v. People, 4 Mich. 414, 33; Com. v. Crowninshield, 10 Pick. 
 
 69 Am. Dec. 321; State v. Pulle, 12 497 (27 Mass.). 
 
 Minn. 164; State v. Straw, 42 N. 14— Lowery v. State, 30 Tex. 402.
 
 1844 FORMS OF INSTRUCTIONS. [§ 2913. 
 
 aided or abetted any other person or persons, in pursuance of a con- 
 spiracy or agreement, it matters not that such evidence is circum- 
 stantial.^^ 
 
 (c) If you should find that C. H. and P. D., or either of them, 
 unlawfully killed J. J., you cannot convict the defendant, J. M., of 
 the homicide, unless you further believe from the evidence before you 
 beyond a reasonable doubt either that such killing was the result of a 
 previously formed conspiracy between said defendant and the party 
 who did the same, or that the defendant' was present when the same 
 was done, and knew the unlawful intent of the party who did such 
 killing, and aided such party by acts, or encouraged him by words or 
 gestures to do such killing, in such manner as to make him a principal 
 thereto, as the term "principal" is herein explained.^^ 
 
 (d) Some testimony has been admitted tending to show that X., 
 who was jointly indicted with the defendant for the murder, shortly 
 after the alleged murder was committed had in his possession large 
 sums of money, which, it is claimed by the state, w^as the property of 
 ihe deceased. This fact, if it has been proved, is proper for you to 
 consider, together with all the other facts and circumstances pi'oved 
 on the trial, in determining the guilt or innocence of the defendant, 
 if you further find that said money, or any part thereof, was ob- 
 tained or procured by said X., and from the deceased, as the fruits 
 of a conspiracy theretofore entered into by and between the defendant 
 and the said X., or by and between the defendant, Y., and some 
 other person or persons, for the robbing and murder of the deceased, 
 or for the burglarizing of the house of the deceased; and said 
 facts, if any such facts have been proven, must be considered by 
 you with all the other facts and circumstances proved, in determin- 
 ing the guilt or innocence of the defendant, whether the defendant 
 was or was not present at the time said X. was seen with said 
 money, or any part thereof, in his possession.!'^ 
 
 15 — Boone v. People, 148 111. 440 case also tending- to prove the guilt 
 
 (446, 451), 36 N. E. 99. of appellant. There was no doubt 
 
 "The last clause of the instruc- that a homicide had been commit- 
 
 tioii does not require that the con- ted. The question of the guilt or 
 
 spiracy or agreement, in which the innocence of appellant was to be 
 
 defendant aided any other person determined by the jury. There was 
 
 or persons, was one to kill S., and evidence tending to show that 
 
 left it to the jury to speculate as three persons were present at the 
 
 to whether the defendant was an commission of the crime, and any 
 
 accessory after the fact, and, there fact tending to connect any of 
 
 was no evidence on which to base them with the crime was compe- 
 
 it." tent evidence against the others. 
 
 16 — Moore v. State, 44 Tex. Cr. That evidence of this character is 
 
 App. 45, 68 S. W. 279 (281). admissible is well settled. Frazier 
 
 17— Musser v. State, 157 Ind. 423, v. State, 135 Ind. 38, 40, 41, 34 N. 
 
 61 N. E. 1 (4). E. 817; Fitzpatrick v. U. S., 178 U. 
 
 The court said in approving the S. 304, 20 Sup. Ct. 944, 44 L. Ed. 
 
 instruction, that "the evidence was 1078; St. Clair v. U. S., 134, 139, 14 
 
 concerning a physical fact, and Sup. Ct. 1002, 38 L. Ed. 936; People 
 
 tended to prove the guilt of , v. Cleveland, 107 Mich. 367, 65 N. 
 
 and was considered in connection W. 216; Angley v. State, 35 Tex. 
 
 ■with all the other evidence in the Cr. R. 427, 34 S. W. 116; Pierson v.
 
 §2914.] 
 
 CRIMINAL— CONSPIRACY. 
 
 1845 
 
 § 2914. Conspiracy to Rob or Murder— Former Acquittal of One 
 Conspirator— Testimony of Conspirator, (a) The court instructs 
 the jury if you believe beyond a reasonable doubt from all the 
 facts and circumstances in evidence, that defendant and said X., or 
 defendant, X., and some other person or persons, entered into a 
 conspiracy to commit the offense charged, such proof is sufficient to 
 establish the existence of such conspiracy, though no direct evidence 
 showing such conspiracy was introduced. 
 
 (b) The court instructs the jury that the declarations of X. be- 
 fore the crime charged was committed, in the absence of the de- 
 fendant, are proper to be considered by you, with all the other facts 
 and circumstances proven on the trial, in determining the guilt or in- 
 nocence of defendant, if the jury believe, from the evidence, beyond 
 a reasonable doubt, that defendant prior to the murder entered into 
 a conspiracy with said X. to rob or murder or to burglarize the 
 house of the deceased, and that such declarations were made in fur- 
 therance of such conspiracy or common design ; and the fact, if it be 
 a fact, that X. has been tried and acquitted of said charge, will not 
 make such statements or declarations incompetent, if such conspiracy 
 has been shown by the evidence.^® 
 
 State, IS Tex. App. 524; Mimms v. 
 State, 16 Ohio St. 221; Allen v. 
 State, 80 Tenn. 424; Rvan v. State, 
 83 Wis. 486, 53 N. W. 836; Clark v. 
 State, 28 Tex. App. 189, 12 S. W. 
 729, 19 Am. St. 817; Jackson v. 
 State, 28 Tex. App. 370, 13 S. W. 
 451, 19 Am. St. 839; Pace v. State 
 (Tex. Cr. App.), 20 S. W. 762; Conde 
 V. State, 33 Tex. Cr. Rep. 10, 24 S. 
 W. 415, 60 Am. St. 22; Thompson v. 
 State, 35 Tex. Cr. R. 511, 34 S. W. 
 629; Armstrong- v. Com., 16 Kv. L. 
 494, 29 S. W. 343; Watt v. People, 
 126 111. 9, 18 N. E. 340, 1 L. R. A. 
 403." 
 
 In Renner v. State, 43 Tex. Cr. 
 App. 347, 65 S. W. 1102 (1103-4), the 
 court said that the following 
 charge, taken in connection with 
 the charge requested by appellant 
 to be given the jury in answer to 
 their query, should have been 
 given, or the principle announced 
 in the two charges should have 
 been given the jury: 
 
 The court instructs you, in an- 
 swer to your query, that if you 
 find the facts to be as stated, you 
 will acquit the defendant. Before 
 you can find him guilty, you must 
 find beyond a reasonable doubt 
 that he was actually present at 
 the time the fire was ignited, and, 
 knowing- the unlawful intent of C. 
 and F., aided and abetted therein. 
 If his participation therein was 
 without knowledge of their unlaw- 
 ful intention, he could not be 
 
 guilty. His failure to try to ex- 
 tinguish flames would not make 
 him guilty, unless, as hereinbefore 
 stated, he had knowledge of the 
 unlawful intent of the other 
 parties. If what he did was in a 
 joke, you are told to acquit him. 
 Before he could be bound by the 
 acts of others, he must have had a 
 knowledge of their guilty inten- 
 tions. 
 
 You are instructed that, if you 
 should find and believe beyond a 
 reasonable doubt that an unlawful 
 conspiracy to slay C. P. B. had 
 been formed between J. C. and E. 
 F. at the time of or before the de- 
 fendant entered C. & F.'s saloon, 
 then, in that event, before this de- 
 fendant could be convicted, he 
 must have had knowledge of the 
 conspiracy, if any, and aided and 
 abetted therein, as charged in the 
 main charge. 
 
 IS— Musser v. State, 157 Ind. 423, 
 61 N. E. 1 (8). 
 
 "The instructions," said the court, 
 "are to be read and construed to- 
 gether as an entirety (Shields v. 
 State, 149 Ind. 395, 406, 407, 410, 49 N. 
 E. 351), and when so construed it 
 appears that on the subject of 
 proof of the facts constituting the 
 conspiracy they were more favor- 
 able to appellant than he was en- 
 titled to demand. It is clear from 
 what we have alreadv said on the 
 admissibility of the record of X.'s
 
 1846 FORMS OF INSTRUCTIONS. [§ 2915. 
 
 (e) A conspiracy cannot be established by the testimony of an ac- 
 complice or accomplices alone, and in this connection I charge you 
 that unless you believe from the evidence outside of the evidence of 
 P. D., and also outside of the evidence of B. J., if you find that B. J. 
 was also an accomplice, that there was a conspiracy to rob J. J., or 
 rob and murder J J., then the evidence is not sufficient to establish a 
 conspiracy, and you cannot consider any of the acts or declarations 
 of P. D., or any of the acts and declarations of C. H., as to such con- 
 spiracy, against the defendant in this case.^^ 
 
 § 2915. Conspiracy to Escape from Prison. If a person serving a 
 sentence for a misdemeanor enter into a conspiracy to make his 
 escape, and not to commit murder the offense is not a felony. If a 
 convict or a person under sentence as for a misdemeanor is serving 
 out that sentence, and enters into a conspiracy to make his escape for 
 the purpose of escaping and not to commit murder, the offense is not a 
 felony; that is, a conspiracy to esoajje is one offense, — a misde- 
 meanor; a conspiracy to murder is another offense, and o^ a higher 
 grade.2° 
 
 § 2916. Conspiracy to Escape, When a Felony or Misdemeanor. 
 
 If a person serving sentence for a misdemeanor enters into a con- 
 spiracy to make his escape, and not to commit murder, the offense is 
 not a felony.-i 
 
 § 2917. Conspiracy to Tar and Feather. If you find from the 
 evidence in this ease, beyond a reasonable doubt, and to a moral 
 certainty, that the defendant and some other person or persons 
 
 entered into a conspiracy to go to jail at at the time and 
 
 place alleged in the information for the purpose of unlawfully 
 tarring and feathering the deceased, and that said defendant and 
 others, in pursuance of said act, also agreed and conspired together at 
 
 the , on the way to the jail, after they had arrived at the 
 
 jail, or at any other time and place, that they or either of them 
 would shoot and kill the deceased, if necessary in order to carry out 
 
 acquittal that the court did not err a conspiracy to escape from serv- 
 
 in informing- the jury, in the in- ing under a sentence for a mis- 
 
 struction last quoted, that the dec- demeanor is more than a misde- 
 
 larations of X. referred to in said meanor. On the contrary, it ap- 
 
 instruction were to be considered pears in the brief that escaping 
 
 by the jury, even if X. had been fi'om a chain gang under sentence 
 
 tried and acquitted on said indict- for selling liquor is in Georgia a 
 
 ment, if the conspiracy was proven misdemeanor, and punishable not 
 
 by the evidence. Holt v. State, 39 exceeding one year on the chain 
 
 Tex. Cr. R. 282, 45 S. W. 1016, 46 S. gang. It further appears by section 
 
 W. 829; People v. Kief, 126 N. Y. 2, Cr. Code Ga., offered in evidence, 
 
 661, 27 N. E. 556." that the term 'felony' means an 
 
 19 — Moore v. State, 44 Tex. Cr. offense for which the offender on 
 
 App. 45. 68 S. W. 279 (281). conviction shall be liable to be 
 
 20 — State v. Whittle, 59 S. C. 291, punished by death or imprisonment 
 
 37 S. E. 923 (925). in the penitentiary and not other- 
 
 21 — State v. Whittle, supra. wise. From these it does not ap- 
 
 The court held that it is not pear that there was any error in 
 
 shown "that by the law of Georgia the charge, as complained of."
 
 § 2918.] CRIMINAI^OONSPIRACY. 1847 
 
 the unlawful design of tari-ing" and feathering the deceased, then I 
 instruct you that under such circumstances, if you should find beyond 
 all reasonable doubt that defendant feloniously and of his malice 
 aforethought shot and killed the deceased, your verdict should be 
 guilty; and should you have a reasonable doubt in your minds 
 as to whether the defendant fired the shot that killed the deceased, 
 and still you believe beyond a reasonable doubt that he fired a shot 
 feloniously at the deceased, and about the same time, or shortly aft- 
 erwards, another shot was feloniously and with malice aforethought 
 fired at the deceased, which caused his death, and that said shot was 
 fired feloniously in furtherance of the unlawful design and con- 
 spiracy so entered into by defendant and the other person or persons, 
 then I instruct you that under such circumstances it would be your 
 duty to find the defendant guilty, and then proceed to determine 
 from the evidence and instructions of the court, whether it is murder 
 in the first degree, murder of the second degree, or manslaughter.-- 
 
 § 2918. Assent to or Knowledge of Conspiracy by Defendant — 
 Identity, (a) If you should believe from the evidence that there 
 was a conspiracy to commit a robbery, as before explained, and 
 that the same was so undertaken, and that said B. was killed, yet if 
 you have 'a reasonable doubt whether such general purpose was 
 contemplated and assented to by defendant, or whether it was 
 done, if at all, with his knowledge, and in furtherance of a common 
 design to commit said offense ; or if you have a reasonable doubt of 
 defendant's identity as one of the persons engaged in such robbery, if 
 any, or if you have a reasonable doubt of the presence of defendant 
 at the robbery, if any, at the time thereof, — in either event you will 
 find him not guilty.^^ 
 X^ (b) You are charged that mere knowledge of the existence of a 
 conspiracy, on the part of defendant does not make him a party to 
 such conspiracy, but the evidence must show beyond a reasonable 
 doubt that the defendant not only knew of the conspiracy, but 
 participated in such conspiracy, and, if you do not so find from 
 the evidence, you will not consider the evidence of acts and declara- 
 tions of S. and Mrs. S., but disregard the same in your consideration 
 of the case.** '' . ' 
 
 § 2919. Intoxication as Defense to Conspiracy. It is claimed by the 
 state that the defendant conspired with others to go to C. 's barn for 
 the purpose of engaging in an unlawful act, and it is claimed on the 
 part of the defendant that he was so drunk at the time as to be in- 
 capable of entering into such a conspiracy with a free will and under- 
 standing. Now you are instructed on this branch of the case that if 
 
 22 — People v. Cowan, 1 Cal. App. clearly, fairly and succinctly states 
 
 411, 82 Pac. 339. the law applicable to the defense 
 
 23— Nite v. State, 41 Tex. Cr. urged by appellant." 
 
 App. 340, 54 S. W. 763 (767). 24— Smith v. State, — Tex. Cr. 
 
 The court said: App. — , 89 S. W. 817. 
 
 "We think this charge very
 
 1848 FORMS OF INSTRUCTIONS. [§ 2920. 
 
 you find that the defendant was so drunk as to be incapable of 
 knowing and understanding the nature of the contemplated con- 
 spiracy and the consequences thereof, in going to C. 's barn then you 
 should find him not guilty of entering into such a conspiracy.^^ 
 
 § 2920. Proof of Conspiracy Beyond Reasonable Doubt, (a) The 
 court further instnicts the jury that, before you can find the defen- 
 dant, J. R., guilty as charged in the indictment, you must believe be- 
 yond all reasonable doubt that he entered into a conspiracy and eon- 
 federation with T. H., E. M., M. P. and J. R., or any one of them, 
 for the purpose of robbing B., and in pursuance of such conspiracy 
 said B. was robbed, as charged in the indictment and that such be- 
 lief must be founded upon the evidence adduced before them in the 
 trial of this case.^^ 
 
 (b) The court charges the jury that if you find from the evidence 
 that defendant and his associates acted illegally and maliciously in 
 what they did, with the same end in view, yet, unless you are satis- 
 fied from the evidence beyond a reasonable doubt, and to a moral 
 certainty that their acts were done pursuant to a mutual agreement, 
 you should convict the defendant, unless you believe from the evi- 
 dence beyond a reasonable doubt, and to a moral certainty, that 
 defendant inflicted the fatal wound, or aided or abetted whoever did 
 inflict it; and if you have a reasonable doubt of defendant's guilt, 
 under the rules above stated, you should acquit the defendant.-'^ 
 
 (c) If the jury are in doubt as to which of the prisoners shot the 
 deceased, and have a reasonable doubt as to whether E. shot the de- 
 ceased, or whether C. shot him, then the verdict should not be guilty 
 as to both, unless the jury shall be satisfied beyond a reasonable 
 doubt that there was a conspiracy on the part of the prisoners to 
 kill the deceased, or that they were aiding or abetting each other.'" 
 
 25— State V. Pasnau, 118 la. 501, 27— Liner v. State, 124 Ala. 1, 27 
 92 N. W. 682 (683). So. 438 (440). 
 
 26— State v. Roberts, 50 W. Va. 28— State v. Edwards, 126 N. C. 
 422, 40 S. E. 484 (486). 1051, 35 S. E. 540 (541).
 
 CHAPTER XCVI. 
 
 CRIMINAL— EMBEZZLEMENT— FALSE PRETENSES- 
 FORGERY. 
 
 See Erroneous Instructions, same chapter head. Vol. III. 
 
 EMBEZZLEMENT. 
 
 § 2921. Meaning- of the term— No 
 embezzlement, unless done 
 secretly, with intent to de- 
 fraud. 
 
 § 2922. Ownership of property — In- 
 tent. 
 
 § 2923. Felonious intent necessary. 
 
 § 2924. No felonious intent, when. 
 
 § 2925. Felonious intent inferred 
 from the act — Embezzle- 
 ment by employee. 
 
 § 2926. Embezzlement, from a dis- 
 tracted person — Consent. 
 
 § 2927. Bailee cannot commit em- 
 bezzlement — Obtaining pos- 
 session by trick device or 
 fraud requisite. 
 
 § 2928. Original taking of bailee need 
 not be felonious — Gist of 
 the offense is conversion. 
 
 § 2929. Venue of conversion. 
 
 § 2930. Embezzlement of money — 
 Check is not money. 
 
 § 2931. Whether wrongfully con- 
 verted or drawn for ben- 
 efit of bank. 
 
 § 2932. Pledging bonds, held as 
 treasurer, in security for 
 his notes — Intent. 
 
 § 2933. Special or general deposit. 
 
 § :;934. Embezzlement by employee 
 during employment. 
 
 § 2935. Embezzlement — Right to re- 
 tain commission by agent. 
 
 § 2936. Selling horse as own prop- 
 erty, instead of as agent, 
 and converting proceeds. 
 
 § 2937. Embezzlement by banker — 
 Illinois statute. 
 
 § 2938. Receipts as evidence. 
 FALSE PRETENSES. 
 
 5 2939. False pretenses, some prop- 
 erty must have been ob- 
 tained thereby. 
 
 § 2940. False pretenses — Knowledge 
 and intent. 
 
 FORGERY. 
 
 § 2941. Forgery, elements necessary 
 to be proved. 
 
 § 2942. Elements constituting for- 
 gery — Assisting or encour- 
 aging another to commit 
 though without writing 
 same himself. 
 
 § 2943. Intent to defraud must be 
 proved beyond a reason- 
 able doubt, gain or profit 
 not material — Presumption 
 from attempt to utter. 
 
 § 2944. Presumption that one in- 
 tends the natural conse- 
 quences of his act. 
 
 § 2945. Attempt to utter or pass for 
 personal gain must be 
 proved. 
 
 § 2946. Possession of forged instru- 
 ment — Lack of revenue 
 stamp, invalid instrument. 
 
 § 2947. Possession and uttering of a 
 forged instrument is strong 
 evidence of forgery — Ven- 
 ue. 
 
 § 2948. Possession of and claiming 
 under a forged deed consti- 
 tutes strong evidence of 
 guilt. 
 
 § 2949. Forgery of the name of a 
 deceased party to a deed 
 of certain land. 
 
 § 2950. Proof that part of a forged 
 writing was in the same 
 handwriting as the balance 
 as evidence of guilt. 
 
 § 2951. Drunkenness as a defense to 
 forgery. 
 
 § 2952. Forgery of telegram — Induc- 
 ing girl to marry through 
 forging mother's name to 
 telegram — Series. 
 
 EMBEZZLEMENT. 
 
 § 2921. Meaning of the Term — No Embezzlement, Unless Done 
 Secretly, with Intent to Defraud. The court instructs the jury, 
 
 1849
 
 1850 FORMS OF INSTRUCTIONS. [§ 2922. 
 
 that the meaning of the word embezzlement is the fraudulently re- 
 moving or secreting personal property, with which a party has been 
 intrusted, for the purpose of applying it to his own use. There can 
 be no embezzlement, within the legal meaning of the word, unless 
 the party, when he takes the property or money, does it secretly, 
 with an intent to defraud the owner.^ 
 
 § 2922. Ownership of Property — Intent, (a) If you find from 
 the testimony, or have reasonable doubt in the matter, that the de- 
 fendant honestly believed that he was entitled to the $20,500 so paid 
 to him by check on the First National Bank of Seattle, Washington, 
 and that he, so believing retained the money as his part of the 
 transaction by which the money was obtained, then your verdict 
 must be "Not guilty." There can be no conviction of embezzlement, 
 unless there was a criminal intent at the time, on the part of the 
 defendant ; and, that if the defendant believed he was entitled to keep 
 the money, no matter how groundless you may find that belief was, 
 yet he cannot be convicted of embezzlement if you have a reasonable 
 doubt as to wdiether or not he believed it was his money, and he was 
 entitled to keep it. 
 
 (b) If you find from the evidence in this case that the defendant 
 H. was the owner of $20,500 referred to in the information, or that 
 Torrence paid the defendant that amount, by cheek or otherwise, 
 in part payment of mining claims owned by the defendant, referred 
 to in the mining deed introduced in evidence, you must find the 
 defendant not guilty. 
 
 (c) If, after hearing all the evidence in the ease, you have any 
 reasonable doubt as to whether the said sum of $20,500 was or was 
 not the property of the defendant in part settlement of such mining 
 claims, you must return a verdict of not guilty.' 
 
 § 2923. Felonious Intent Necessary. To constitute the crime 
 of larceny a felonious intention, that is an intention to steal, must 
 always exist. And, under our statute, making the conversion of 
 property to his own use by a bailee larceny, the crime is not made 
 out by merely showing a conversion of the property to his own use 
 by the bailee, but it must further appear that such conversion was 
 with an intent to steal the same. The jury are instructed, that the 
 taking or conversion of personal property which renders 'a person 
 guilty of simple larceny, or of embezzlement, is a feloniously taking 
 or conversion, and before you can convict the defendant in this case, 
 you must be satisfied, from the evidence, beyond a reasonable doubt, 
 that the property mentioned in the indictment, or some part of it, 
 was converted to his own use by the defendant, with an intention, at 
 the time, to steal the same.^ 
 
 1— People v. Hurst, 62 Mich. 304, People v. Husband, 3(5 Mich. 306; 
 
 28 N. W. 838. Hill v. State, 57 Wis. 377. 15 N. W. 
 
 2— State v. Hoshor, 26 Wash. 643, 445; People v. Galland, 55 Mich. 
 
 67 Pac. 386 (390). 628, 22 N. W. 81. 
 
 3— Phelps V. People, 55 111. 334;
 
 § 2924.] CRIMINALr— EMBEZZLEMENT. 1851 
 
 § 2924. No Felonious Intent, When. If the jury believe, from 
 the evidence, that the defendant, as clerk or salesman of the said 
 A. B., received moneys belonging to him, and honestly and fairly 
 charged himself with the same on the account books kept for that 
 purpose, and afterwards used the money for his own benefit, without 
 the knowledge of the said A. B., never attempting to conceal the fact, 
 but acknowledged the same when spoken to about it, and promised 
 to repay it as soon as he was able, these facts are all proper to be 
 taken into account by the jury, with all the other evidence in the 
 case, in determining the question whether the defendant used the 
 money with any felonious or f I'audulent intent ; and if, upon a con- 
 sideration of all the facts and circumstances proved, the jury have 
 any reasonable doubt of such felonious and fraudulent intent, they 
 should find the defendant not guilty.* 
 
 § 2925. Felonious Intent Inferred from the Act — Embezzlement by- 
 Employee, (a) The court instructs the jury that the law presumes 
 that every man intends the natural and probable consequences of his 
 own acts, and if you find from the evidence that the defendant un- 
 lawfully converted the money alleged in the information to have been 
 embezzled, to his own use, you will be authorized to infer therefrom 
 the criminal intent, and that he did at the time intend to embezzle 
 and convert the same to his own use, and to deprive E. B. of it. The 
 court further instructs the jui-y that ** feloniously " means a wrong- 
 ful act willfully done.^ 
 
 (b) The court instructs the juiy that every sane person, old 
 enough to be accountable for his acts, is presumed to intend to do 
 
 4 — 2 Bishop on Cr. Law, § 360; 1 with him as to his further inten- 
 
 McCIain Cr. Law, § 641. tlon of returning the money at a 
 
 5— State v. Lentz, 184 Mo. 223, 83 later period, or making- good his 
 S. W. 970 (971), citing State v. Man- shortage when called to account, 
 ley, 107 Mo. 364, 17 S. W. 800; State It suffices for the state to prove 
 v. Pratt, 98 Mo. 483, 11 S. W. 977; an intent on the part of the de- 
 State v. Adams, 108 Mo. 208, 18 S. fendant to do that which the law in 
 W. 1000; State v. King, 86 N. C. fact forbids. The effort of counsel 
 603; Bishop's New Cr. Law, Par. to have the court require the jury 
 300. "The taking of an employer's to find some other or further in- 
 money by his clerks or agents is tent was to open the door for argu- 
 legally wrong in itself. The action ment that the defendant might 
 of the trial court in giving the in- knowingly and intentionally do 
 struction was not erroneous. the very act which the law de- 
 
 This court, in State v. Silva, 130 nounced as criminal, and yet not 
 Mo. 463, 32 S. W. 1007, in discussing be guilty, provided he did not in- 
 the question of intent, as appli- tend to keep the money permanent- 
 cable to the offense of embezzle- ly, or intended to return it in the 
 ment, very clearly announced the future. But when an act forbid- 
 correct rule. Gantt, J., speaking for den by law Is intentionally done, 
 this court, said: 'When the agent the intent to do the act is the crim- 
 or servant takes his employer's inal intent which imparts to it 
 money with the intent to convert the character of the offense, and 
 it to his own use without the mas- no one, who violates a law which 
 ter's knowledge, that moment he he is conclusively presumed to 
 is guilty of the criminal intent de- know, can be heard to say he had 
 nounced by the statute. The law no criminal intent in doing it.' " 
 will not enter upon the inquiry
 
 1852 FORMS OF INSTRUCTIONS. [§ 2926. 
 
 that which he does do, and is presumed to intend the natural and 
 probable consequences of his voluntary acts; and such presumption 
 becomes conclusive in the absence of evidence to the contrary.® 
 
 (e) The intent with which an act is done may be proved by direct 
 and positive testimony, or the intent may be inferred from all the 
 facts and circumstances surrounding and attending the act as shown 
 by the evidence in the case, and the intent in this case must be de- 
 termined from the evidence given in this ease.'^ 
 
 (d) The rule of law in regard to intent is that intent to defraud is 
 to be inferred from willfully and knowingly doing that which is illegal, 
 and which, in its necessary consequences and results, must injure an- 
 other. The intent may be presumed from the doing of the wrongful 
 and fraudulent or illegal act, and in this case, if you find that the de- 
 fendant placed that which was worthless or of little value among the 
 assets of the bank at a greatly exaggerated value and had that ex- 
 aggerated value placed to his own personal account upon the books 
 of the bank, from such finding of fact you must necessarily infer that 
 the intent with which he did that act was to injure or defraud the 
 bank, but this inference or presumption is not necessarily conclusive. 
 There may be other evidence which may satisfy the jury that there 
 was no such intent, but such an inference or presumption throws 
 the burden of proof upon the defendant, and the evidence upon him 
 in rebuttal to do away with that presumption of guilty intent must be 
 sufficiently strong to satisfy you beyond a reasonable doubt that there 
 was no such guilty intent in such transaction.^ 
 
 § 2926. Embezzlement, from a Distracted Person — Consent. If 
 Mrs. T. was a demented or distracted person, of unsound mind and 
 memory, and not capable of transacting the ordinaiy business of life, 
 and defendant knew it, it was not material whether she parted with 
 the possession of the check willingly or unwillingly.^ 
 
 § 2927. Bailee Cannot Commit Embezzlement — Obtaining Posses- 
 sion by Trick, Device or Fraud Requisite. A bailee who has lawful 
 possession cannot commit larceny. The possession, however, must 
 have been originally obtained lawfully, ^and without the intent to ap- 
 e—Ford V. State, 46 Neb. 390, 64 derstood by the instruction that, 
 N. W. 1082 (1085). from the fact of the conversion of 
 
 "Doubtless, where one who has the ring-, they were bound to find 
 the lawful possession of the prop- that the defendant had a specific 
 erty of another converts the same intent to steal the same. The in- 
 to his own use, the intent to con- struction, as entirety, left to the 
 vert alone mig-ht be inferred from jury to determine the question of 
 the acts, rather than the intent to intent with which the act was corn- 
 steal. But whether such inference mitted, from a consideration of all 
 shall be drawn depends upon the the evidence adduced." 
 facts of each particular case. The 7— State v. Merkel, 189 Mo. 315, 
 mere proving of the conversion 87 S. W. 1186 (1187). 
 alone, not coupled with any crimi- 8 — Agnew v. United States, 165 
 natinj- circumstances, would be in- U. S. 36 (49), 17 S. Ct. 235. 
 sufficient to establish the intent to 9— Kobbs v. People, 183 111. 336 
 steal. The jury could not have un- (338), 55 N. E. 692, 47 L. R. A. 795.
 
 § 2928.] CRIMINAL— EMBEZZLEMENT. 1853 
 
 propriate the property to his own use. One who obtains the possession 
 by trick, device, or fraud, with intent to appropriate the property to 
 his own use — the owner intending to part with the possession only — 
 commits larceny when he subsequently appropriates it.^" 
 
 § 2928. Original Taking of Bailee Need Not Be Felonious— Gist of 
 the Offense Is Conversion. If you find from the evidence, beyond a 
 reasonable doubt, that defendant obtained the ring in question tem- 
 porarily from said X., and that he afterwards, without the knowledge 
 or consent of said X., unlawfully disposed of said ring at a pawn shop, 
 and received money thereon, such an act on the part of the defendant 
 would be a conversion of the property in question to defendant's own 
 use: and if you find, beyond a reasonable doubt, that defendant un- 
 lawfully converted said ring to his own use, by disposing of the same 
 at a pawn shop, and received money thereon, with intent to steal the 
 same, then defendant would be guilty of larceny of said ring, the 
 same as if he had originally feloniously stolen said property from the 
 said X. at the time he obtained possession thereof from said X., if 
 he did obtain it.^^ 
 
 § 2929. Venue of Conversion. Although the jury may believe, 
 from the evidence, beyond a reasonable doubt, that the defendant had 
 in his possession, in this county, money of the said A., and afterwards 
 converted the same to his own use, still, if you further believe, from 
 the evidence, that he canied said money into the county of S., and 
 then for the first time formed a purpose in his own mind of convert- 
 ing the same to his own use, and did afterwards convert the same, 
 etc., in the said county of S., then the jury should find the defendant 
 not guilty.^2 
 
 § 2930. Embezzlement of Money — Check Is Not Money, (a) The 
 
 10— Finlayson v. State, 46 Fla. 81, ceny, while this is for larceny as 
 
 35 So. 203. bailee. In the decisions referred to, 
 
 The court said "the authorities the original taking must have been 
 
 sustaining the charge are abund- felonious in order to constitute the 
 
 ant. Clark's Crim. Law. p. 250, ofCense charged, while such is not 
 
 and cases cited: Bish. Stat. Crimes, the case in a prosecution like this, 
 
 par. 419; 1 Whart. Crim. Law, par. Here the gist of the offense is not 
 
 1009; Johnson v. People, 113 111. the felonious taking of the ring, 
 
 99; State v. Woodruff, 47 Kan. 151, but the conversion thereof by F.' 
 
 27 Pac. 842. 27 Am. St. Rep. 285; without the knowledge and consent 
 
 Levy v. State, 79 Ala. 259; State v. of the owner, with the intent to 
 
 Williams. 35 Mo. 229; People v. steal it. The statute under vs^hich 
 
 Smith, 23 Cal. 280." the information in this case was 
 
 11— Ford v. State, 46 Neb. 390, 64 filed (section 121b. Cr. Code) de- 
 
 N. W. 1082 (1084). Clares 'that, if any bailee of any 
 
 "It is argued that this instruc- money, bank bill or note, goods or 
 
 tion is fatally defective, in that it chattels shall convert the same to 
 
 omitted the element of 'felonious his own use, with intent to steal 
 
 taking'; and Mead v. State, 25 Neb. the same, he shall be deerhed guilty 
 
 444, 41 N. W. 277. and Barnes v. of larceny, in the same manner as 
 
 State, 40 Neb. 545, 59 N. W. 125, are if the original taking had been 
 
 cited to support the proposition, felonious.' The instruction includes 
 
 Those cases are clearly distinguish- every element of the offense de- 
 
 able from the one at bar. They scribed in the statute." 
 
 were prosecutions for simple lar- 12— Campbell v. State, 35 Ohio 70.
 
 1854 FORMS OF INSTRUCTIONS. [§ 2931. 
 
 court instructs the jury that a cheek is not money, and if you believe 
 from the evidence that defendant received from Mrs. R. no money, 
 then you must find him not guilty. 
 
 (b) If the state has failed to prove 'to the satisfaction of the juiy, 
 beyond all reasonable doubt, that C. was the agent of Mrs. R, and as 
 such received her money, the jury will find him not guilty on the first 
 count of the indictment. 
 
 (e) If the state has failed to prove, beyond all reasonable doubt, 
 to the satisfaction of the jury — First, that C. was the agent of Mrs. 
 R. ; second, that C. received bank notes to his own use, or embezzled 
 the same, then the jury will find him not guilty.^^ 
 
 § 2931. Whether Wrongfully Converted or Drawn for Benefit of 
 Bank, (a) If you are convinced the accused embezzled or wrongful- 
 ly converted to their own use the money of the bank, it will be your 
 duty to convict. 
 
 (b) If, on the O'ther hand, you find that though the money of 
 the bank was taken by the accused, or either, that it was not em- 
 bezzled or wrongfully converted, but was drawn for the benefit of 
 the bank, and was so used, it will be your duty to acquit.^* 
 
 § 2932. Pledging Bonds, Held as Treasurer, in Security for His 
 Note — Intent. The court instructs the jui'y that intent in this case 
 may be inferred from the fact if you find, from the evidence, beyond 
 a reasonable doubt, that it is a fact that the defendant, while treas- 
 urer of the University of Illinois, pledged the bonds in question in 
 this ease, held by him, as such treasurer, as part of an endowment 
 fund of the University, to secure his note to the First National Bank 
 of Chicago; and the jury in considering the subject of intent should 
 consider it with reference to the pledging of the bonds in question if 
 the jury shall find that he did so pledge the said bonds as distin- 
 guished from his motive or purposes as to the use of any fruits of 
 such pledge. ^^ 
 
 § 2933, Special or General Deposit. The state must prove to you, 
 by evidence, all the material ingredients constituting the offense. Now, 
 gentlemen of the jury, if the evidence leaves you a reasonable doubt 
 as to whether or not the agreement between Mrs. R. and the defend- 
 ant was that the defendant 'took the check, and to collect and account 
 
 13— Carr v. State, 104 Ala. 43, 16 first of above charg-es, asked by 
 
 So. 155 (158, 160), 53 Am. St. 17. defendant, asserts this, and should 
 
 The court said that "each count have been given. Upon the same 
 
 of the complaint charges the de- considerations, charges 2 and 3, 
 
 fendant with having received in having reference to the first and 
 
 one form or another, money from second counts of the indictment, 
 
 Mrs. R. On one aspect of the evi- respectively, should have been 
 
 dence, he received only a check given." 
 
 from her, directly or indirectly. 14 — State v. Nichols, 50 La. Ann. 
 
 Obviously, a check is not money; 699. 23 So. 980 (986). 
 
 and obviously, also, unless he did 15— Spalding v. People, 172 111. 40 
 
 receive money of hers, the jury (55), 49 N. E. 993. 
 should have acquitted him. The
 
 § 2934.] CRIMINAL— EMBEZZLEMENT. 1855 
 
 for the money as ordinary or general depositors, with the understand- 
 ing that it was to be held out as Mrs. R's. special fund, to prevent 
 her husband's creditors from interfering with it, or whether it was a 
 special deposit in law, then you must give the defendant the benefit 
 of such doubt.^*^ 
 
 § 2934. Embezzlement by Employee During Employment, (a) 
 The court instructs the juiy that if you believe and find from the evi- 
 dence in this cause that at any time within three years jDrior to the fil- 
 ing of the infoi'mation in this cause that the defendant was the agent 
 and attorney of a certain private person, to wit, E. B., and that the de- 
 fendant during the time of his employment as such agent and attorney 
 of said E. B. was not a person under the age of sixteen years, and 
 that, during such employment as such agent, did, by virtue of his em- 
 ployment, take or receive into his possession, as the money of said E. 
 B., the sum of eighty-nine dollars, or any portion thereof of the value 
 of thirty dollars or more, and that after receiving said money the de- 
 fendant did, at the county of Butler and state of Missouri, and with- 
 in three years prior to the filing of the information in this cause, 
 feloniously, unlawfully, and intentionally embezzle and fraudulently 
 convert said money, or any portion of the same, to the amount of 
 thirty dollars or more, to his (the defendant's) own use, without the 
 assent of his employer, E. B., and that he (the defendant) did so con- 
 vert the same with the felonious intent to deprive the said E. B. of 
 the said money, and that said money so embezzled and converted by 
 the defendant then and there belonged to, and was the property of, 
 said E. B., then you should find the defendant guilty of embezzlement, 
 as charged, and assess his punishment at imprisonment in the peni- 
 tentiary for a period of not less than two nor more than five years. ^''^ 
 
 (b) You may take the books of defendant together with the expense 
 bills, and consider them in connection with all of the evidence, and 
 
 16 — Carr v. State, 104 Ala. 43, 16 jury had a reasonable doubt, be- 
 So. 155 (158, 159), 53 Am. St. 17. cause of this evidence, whether the 
 
 The court said that "there was deposit was special or not, the de- 
 also evidence upon which it was fendant should not have been con- 
 open to the jury to conclude that victed, since a general deposit is 
 notwithstanding the pass book not alleged in the indictment, and 
 given Mrs. R. by C. described her confessedly, if it had been, no crim- 
 deposit as a special deposit, and inal responsibility attached to the 
 notwithstanding, also, that C. fur- use of money so deposited by the 
 nished her with a form of a filled- defendant or the bank; it being 
 out check to be used in drawing on the money of the bank, on account 
 this fund, whereon he wrote the of which the relation of debtor and 
 words 'Special Deposit,' the deposit creditor only could exist between 
 was nevertheless a general one, the parties. The charge above as- 
 and was called and written down a serts this proposition and should 
 'special deposit' only for the pur- have been given, unless its refusal 
 pose of keeping it safe from the may be justified on the ground 
 creditors of Mrs. R.'s husband, and that it refers a legal question to 
 not to the end that the bank should the jury." 
 
 safely keep the particular money 17 — State v. Lentz, 184 Mo. 223, 83 
 
 as hers, for her, and return it to S. "W. 970. 
 her. If this was true, or if the
 
 1856 FORMS OF INSTRUCTIONS. [§ 2935. 
 
 that if the books thus considered show, beyond a reasonable doubt, 
 a shortage, and that the defendant knew it was as to money collected 
 by him as agent of the S. Railway Company, and that said money be- 
 longed to said railway company, and that said defendant knowingly 
 withheld said money, and knowingly failed to account for it, then 
 this would be a circumstance tending to show a criminal intent. 
 
 (c) If the jury is satisfied from the evidence beyond a reasonable 
 doubt, that in the county of Cherokee, and within three years before the 
 finding of this indictment against the defendant, there was a shortage 
 of more than $25 of money collected by the defendant for the S. 
 Railway Company; that at the time of said collection the defendant 
 was the agent of said railway company, and that said money was 
 the property of said railway company, and that the defendant knew 
 it at the time of the collection, and that defendant collected said 
 money by virtue of his employment as said agent, and that the de- 
 fendant had fraudulently converted it to his own use — that then you 
 must find the defendant guilty as charged in the indictment.^^ 
 
 § 2935. Embezzlement — Right to Retain Commission by Agent. 
 The jury are instructed that, if you believe, from the evidence, that 
 she was, at the time of the alleged embezzlement, a collector for the 
 company with the right to retain he. commission, that is, that she was 
 not required to pay over to the company the gross sum or sums of 
 money collected by her, but might first deduct her commissions and 
 then pay over the balance or net amount due the company, — she was 
 not such an agent or servant as is contemplated in the statute defining 
 embezzlement, and the verdict should be not guilty.^° 
 
 § 2936. Selling Horse as Own Property, Instead of as Agent, and 
 Converting Proceeds. And so, if you believe from the evidence that 
 defendant received from T. 's possession the horse in question, under 
 the agi'eement that defendant should act as the agent of the said T. 
 in the sale of said horse, and that defendant should sell said horse, 
 and pay over to and deliver to said T. the proceeds which defendant 
 should secure from the sale of said horse; and you further believe 
 that defendant sold said horse as his own property, and not as the 
 agent for said T., and that at the time of said sale defendant had the 
 fraudulent intent to appropriate the proceeds of said sale to his own 
 use and benefit, without tile consent of said T., — you will find de- 
 fendant guilty of embezzlement of said horse, etc.^" 
 
 § 2937. Embezzlement by Banker — Illinois Statute, (a) If you 
 
 18— Willis V. State, 134 Ala. 429, opinion that the evidence amply 
 
 33 So. 226 (230). supports the verdict of the jury. 
 
 19— McElroy v. People, 202 111. 473 Epperson v. State. 22 Tex. App. 694, 
 
 (477-8). 66 N. E. 1058. 3 S. W. 789, as sug-arested by our 
 
 20 — Huffg-ins v. State, 42 Tex. Cr. able assistant attorney general, is 
 
 App. 364. 60 S. W. 52. almost identical with the case at 
 
 "We think," said the court, "that bar. See, also. Leonard v. State, 
 
 1.S a proper presentation of the law 7 Tex. App. 417." 
 applicable to the facts, and are of
 
 §2938.] CRIMINAL,— FALSE PRETENSES. 1857 
 
 ibelieve, beyond a I'easonable doubt, from the evidence, that the de- 
 fendant was engaged in the business of banking, and in such busi- 
 ness received on ueposit with intent to defraud, from one fe. i)., the 
 
 sum of $ , or any other sum, that at the time such deposit was 
 
 made said D. was not indebted to the defendant, that at the time of 
 receiving said deposit the defendant was insolvent, and knew himself 
 to be so, and that said deposit or any portion of it was lost to said 
 D., then you should find the defendant guilty. 
 
 (b) It is not necessary that the prosecution should prove, by 
 direct and positive evidence, that the defendant was insolvent on the 
 
 day of, etc., or that he knew he was insolvent, but it is sufficient, 
 
 if you are satisfied beyond a reasonable doubt, from all the circimi- 
 stanees in evidence in the case, that he was insolvent at that time, 
 and took and converted the deposit with fraudulent intent. 
 
 (e) It is your province, as jurors, to say under your oaths, from 
 the evidence, whether or not the defendant was insolvent at the time 
 he received the deposit. 
 
 (d) A depositor of money in a bank is a person who places his 
 money therein for safe keeping.^^ 
 
 § 2938. Receipts as Evidence. You are instructed that the re- 
 ceipts and other writings introduced in evidence in this ease are only 
 prima facie evidence of the receipt of the money, and are not con- 
 clusive, and may be qualified and explained by other competent evi- 
 dence; and, in determining the truth in relation thereto, you will 
 take into consideration all the evidence introduced bearing upon this 
 point.22 
 
 FALSE PRETENSES. 
 
 § 2939. False Pretenses, Some Property Must Have Been Ob- 
 tained Thereby. If the defendant at the time such representations 
 were made obtained any of the property charged in the indictment 
 from said B. by reason of the alleged false pretenses, the indictment 
 may be sustained. ^^ 
 
 § 2940. False Pretenses — Knowledge and Intent. Now if he knew, 
 when he did that (made out the bill for services and attached the 
 certificate) that she was not a stranger not belonging to this state 
 and intended in presenting that bill to cheat and defraud the state 
 out of the amount of the 'bill, and deceive the state by it, so that he 
 
 21 — Murphy v. People, 19 111. App. 23 — Approved in Commnnwealth 
 125. V. Lee, 149 Mass. 179, 21 N. E. 299 
 
 In Carr v. State, 104 Ala. 43, 16 (300). 
 
 >. 
 
 So. 155 (157), 53 Am. St. 17, the This instruction, said the* court, 
 
 court held that collecting a check "compelled the commonwealth to 
 
 or certificate through a New York show that some definite portion of 
 
 bank and not bringing: it to the the property charged in the indict- 
 
 defendant's state, Alabama, would ment had been obtained by the al- 
 
 not be embezzlement. leged false pretenses. Common- 
 
 22— Mills v. State, 53 Neb. 263, 73 wealth v. Stone, 4 Mete. 43; Com- 
 
 N. W. 761 (766). monwealth v. Coe, 115 Mass. 481." 
 
 117
 
 1858 FORMS OF INSTRUCTIONS. [§ 2941. 
 
 got the amount of his bill, then the offense is proved. » » * it 
 is for you to say, when the respondent made up that bill and sent it 
 to the Auditor General, did he know that she was a resident here? If 
 he knew that, did he intend to cheat and defraud the state by making 
 a state case out of that inquest in submitting that bill"? If the state 
 was deceived by it, and, relying on that bill, paid the money, and the 
 facts are as set forth in 'the information then the offense is proved. 
 It is not disputed that the defendant as coroner, submitted this bill, 
 but the knowledge existing in the mind of 'the defendant at the time 
 of the act is disputed. Was he aware that the representations made 
 in the bill and certificate were false?-* 
 
 FORGERY 
 
 § 2941. Forgery, Elements Necessary to Be Proved. If you find 
 from the evidence, beyond a reasonable doubt, that said note is a 
 forged instrument, and you further find from the evidence, beyond a 
 reasonable doubt that the defendant uttered said note and published 
 same as true, knowing that same was false or forged, with intent to 
 defraud, then he is guilty of the crime of uttering a forged instru- 
 ment, as charged in the indictment; but if you fail to find from the 
 preponderance of the evidence either that said instrument was a 
 forged instrument, or that the defendant uttered and published said 
 note as true, knowing the same to be false or forged with intent to 
 defraud then you should find the defendant not guilty, and so return 
 your verdict.^^ 
 
 § 2942. Elements Constituting Forgery — Assisting or Encouraging 
 Another to Commit though without Writing Same Himself. In order 
 to establish defendant's guilt it is necessary for the state to prove 
 beyond a reasonable doubt that the instrument described in the in- 
 dictment is a writing obligatory; that it was not signed by T. or any 
 one for him with his consent, and not afterwards ratified by him; 
 and that the defendant made all of it, or a distinct part of it, and 
 thereby intended to defraud the G — ■ Company or the A — Company.^^ 
 
 § 2943. Intent to Defraud Must Be Proved Beyond a Reasonable 
 Doubt, Gain or Profit Not Material — Presumption from Attempt to 
 Utter. Defendant is indicted for forgery. Bill contains two counts. 
 In order to convict under either count, the state must satisfy you 
 from the evidence beyond a reasonable doubt of defendant's guilt. 
 Now, what does it take to constitute the crime of forgery or the 
 uttering and publishing of such? (Here the court reads the statutes). 
 
 24— people v. Hoffman, 142 Mich, may become a principal in forgery. 
 
 531 (r.75), 105 N. W. 838 (854). If a party be present, aiding:, ad- 
 
 25— Stnte v. Rivers, 124 la. 17, 98 vising?, assisting:, or encourag:ing: 
 
 N. W. 785 (787). annthor to commit a forgery, hfi is 
 
 26— King: V. State, 43 Fla. 211, 31 Ruilty of forg-ery, thoug-h lie writes 
 
 So. 254 (259). no part of the instrument. The 
 
 "The instruction," said the court, incompleteness of the instruction 
 
 "so far as it goes, is correct, complained of does not operate 
 
 though it does not state all the again.st defendant but in his favor, 
 
 circumstances under which a parly and he has no ground to complain."
 
 § 2944.] CRIMINAL— FORGERY. 1859 
 
 You will observe that in either case — that of forgery or that of 
 uttering or publishing the instrument — the guilty intent to injure 
 or defraud must appear. It is not necessary, in order to consti- 
 tute the crime, that the person committing the forgeiy should be 
 the gainer thereby, but it is sufficient if there is a fraudulent intent 
 to deceive by a forged paper; and the fact that no one is defrauded 
 is immaterial, the other elements of the crime being established. 
 That where one is found in possession of a forged instrument, and 
 is endeavoring to obtain money or advances upon it, this raises a 
 presumption that the defendant either forged or consented to forging 
 such instrument, and, nothing else appearing, the person would be 
 presumed to be guilty. Therefore, if you are satisfied beyond a rea- 
 sonable doubt that the pajDer (in this case the note) was a forgery 
 and that defendant had it in his possession, and tried to obtain 
 money from C. or S. or the bank upon it, then this raises a presump- 
 tion of guilt, and, unless he has rebutted it, you will return a verdict 
 of guilty. If, upon the whole evidence, any reasonable doubt re- 
 mains as to the innocence of defendant, you will give him the benefit 
 of it, and return a verdict of not guilty.^^ 
 
 § 2944. Presumption that One Intends the Natural Consequences 
 of His Act. The court instructs the jury that the law presumes a 
 man to intend the reasonable and natural consequences of any act in- 
 tentionally done.-^ 
 
 § 2945. Attempt to Utter or Pass for Personal Grain Must Be 
 Proved. If you find from the evidence that the note referred to in the 
 indictment was forged, you cannot convict, unless you find further, 
 beyond a reasonable doubt, that defendant attempted to utter, pass or 
 deliver said. note for personal gain or for a fraudulent pui'j)0se.-^ 
 
 § 2946. Possession of Forged Instrument — Lack of Revenue Stamp, 
 Invalid Instrument, (a) The possession of a forged paper does not 
 raise even a prima facie presumption of guilt. 
 
 (b) It being shown by the state that the note did not bear upon it 
 a revenue stamp, and such paper writing being one on which no action 
 
 27— State v. Peterson, 129 N. C. 116 Mo. 548, 22 S. W. 792. '(2) If 
 
 556, 40 S. E. 9 (10), 85 Am. St. 756. you are satisfied beyond a reason- 
 
 The court said that in this case able doubt that the paper (in this 
 
 "the defendant excepted to this case the note) was a forgery, and 
 
 charge because of the following in- that defendant had it in his pos- 
 
 structions: '(1) Where one is found session and tried to obtain money 
 
 in the possession of a forged instru- from C. or S. or the bank upon it, 
 
 ment, and is endeavoring to obtain then this raises a presumption of 
 
 money or advances upon it, this guilt, and, unless he has rebutted 
 
 raises a presumption that defend- it, you w^ill return a verdict of 
 
 ant either forged or consented to guilty.' This is also warranted by 
 
 the forging such instrument, and, the precedents. 2 McClain, Cr. Law, 
 
 nothing else appearing, the person par. 809, and cases there cited." 
 
 would be presumed to be guilty.' 28 — Spears v. People, 220 111. 72, 
 
 In this there was no error. State 77 N. E. 112 (114). 
 
 V. Morgan, 19 N. C. 348; State v. 29— State v. Peterson, supra, 
 Britt, 14 N. C. 122; State v. Allen,
 
 1860 FORMS OF INSTRUCTIONS. [§ 2947. 
 
 of debt or contract might be based, you are instructed that in this 
 case you cannot return a verdict of guilty. ^° 
 
 § 2947. Possession and Uttering of a Forged Instrument is Strong 
 Evidence of Forgery — Venue. The court instructs the jury that, in 
 order to find the defendant guilty under the indictment, it is not neces- 
 sary for state to prove by direct evidence (that is, it is not necessary 
 for witnesses who saw the act done) that the defendant signed the 
 names of B. and H. to the note in controversy, but the same may be 
 infeiTed from the proof of other facts and circumstances in the case. 
 Therefore, if the juiy find and believe from the evidence that the 
 said note was in the possession of the defendant, in the county of 
 Harrison, recently after the same is dated and purports to have been 
 executed, and if you further believe that the defendant sold and de- 
 livered said note as a genuine note to the witness W., then ifhese facts, 
 if proven, unless satisfactorily explained by the defendant, will war- 
 rant you in finding that the names of B. and H. were actually writ- 
 ten and signed by 'the defendant, and you will find the defendant 
 guilty, as defined in other instructions.^^ 
 
 § 2948. Possession of and Claiming Under a Forged Deed Consti- 
 tutes Strong Evidence of Guilt, (a) The court instructs the jury 
 that if you find and believe from the evidence that the deed read in 
 evidence and described in the information, or any part thereof (not in- 
 cluding the acknowledgment of the same), was falsely made and 
 forged, with intent to cheat and defraud, as defined in other instruc- 
 tions, and that the defendant had possession of the same in Saline 
 county, Missouri, and that he made claim to the land described there- 
 in, or any part thereof, by virtu© of and under said deed, then these 
 facts constitute evidence that he committed the forgery .of the same, 
 or caused the same to be forged, and that he committed said forgery 
 in Saline county and state of Missouri; and, unless he explains or ac- 
 counts for his possession thereof in a manner consistent with his in- 
 nocence, then these facts are sufficient to warrant the jury in finding 
 him guilty of forgery, as charged in the information. 
 
 (b) The court instructs the jury that if you find and believe from 
 the evidence that the deed read in evidence and described in the in- 
 formation, or any part thereof (not including the acknowledgment of 
 the same), was falsely made and forged, with intent to cheat and de- 
 fraud, as defined in other instructions, and the defendant had had 
 possession of the same in Saline county, Missouri, and that he made 
 claim to the land described therein, or any part thereof, by virtue of 
 
 30 — State v. Peterson, supra. strument, or the uttering' of it, by 
 
 31— Ptate V. Millig-an, 170 Mo. 215, one in the county where the indict- 
 
 70 R. W. 473 (474). ment Is found, is strong- evidence 
 
 The court said this "instruction is not only to show thnt he forgred it. 
 
 In accordance with the rule an- hut to show that the forgery of 
 
 nounced in the case of State v. the instrument was committed by 
 
 Yorker, 86 Mo. 33, wherein it is said him in the same county. State v. 
 
 that the possession of a forged In- Burd, 115 Mo. 405, 22 S. W. 377."
 
 § 2949.] CRIMINAL— FORGERY. 1861 
 
 and under said deed in said county of Saline, then such facts raise 
 the presumption that he forged or caused the same to be forged in 
 Saline county, state of Missouri, and that, unless such possession by 
 the defendant of said deed and his claim thereunder are satisfactorily 
 explained to the jury by the evidence in the case in a manner con- 
 sistent with the innocence of the defendant, then such presumption of 
 guilt becomes conclusive.^^ 
 
 § 2949. Forgery of the Name of a Deceased Party to a Deed of 
 Certain Land. If the jury find and believe from the evidence that the 
 defendant, at the county of Saline, in the state of Missouri, at any 
 time within three years before the filing of the information in this 
 ease, to wit, November 27, 1901, caused or procured to be forged or 
 falsely made the deed described in the information and read in evi- 
 dence, or any part thereof (not including the acknowledgment of the 
 same), purporting to be the act of one K., who was not then living, 
 but had formerly lived and died in Saline county, Missouri, the name 
 of said K. being affixed to said deed, by which an interest in the lands 
 described in said deed and in the infonnation purported to be trans- 
 ferred or conveyed to one P., and that the same was done feloniously 
 (that is, wickedly and wrongfully), against the admonition of the 
 law, and with intent on the part of the defendant to cheat and de- 
 fraud, then you will find the defendant guilty under the second count 
 of the information, and, so finding, will so state in your verdict, and 
 assess his punishment at imprisonment in the penitentiary for a term 
 of not less than ten years. ^^ 
 
 32 — State v. Pyscher, 179 Mo. 140, session of this deed, and defend- 
 
 77 S. W. 836 (841). ant's claim under it, were not de- 
 
 "These instructions," said the nied. It was his defense that the 
 
 court, "correctly declare the law deed was not foi-g-ed, but was a 
 
 as applicable to the facts of this valid instrument, properly execut- 
 
 case. . . . The possession of *'his ed and delivered to the defendant 
 
 deed by the defendant, and claim- by Mrs. K. This issue was fairly 
 
 ing the land described in it, if the submitted to the jury, and they 
 
 jury first determine that the deed found adversely to the defendant." 
 
 was forged, was sufficient to au- 33 — State v. Pyscher, supra, 
 
 thorize a conviction. State v. The court held that "there is no 
 
 Haws, 98 Mo. 188, 11 S. W. 574, 12 S. merit in the complaint against this 
 
 W. 126. The instructions now being instruction. It is insisted that it is 
 
 discussed, while not strictly in ac- erroneous because it fails to tell 
 
 cord with the approved precedents, the jury that they must find the 
 
 are substantially correct. The facts as enumerated in the declara- 
 
 court, in the instructions, fairly tion beyond a reasonable doubt, 
 
 and fully submitted the question as There is no necessity for, and the 
 
 to whether or not the deed had law of this state does not require, 
 
 been forged. This being done, we the application of the term 'beyond 
 
 think it is a clear legal proposition a reasonable doubt' to each item 
 
 that if defendant had possession of of evidence introdviced in the cause, 
 
 the deed, and was claiming under It is sufficient to give a general in- 
 
 it, it constituted strong evidence of structinn on that subject, ar.pii- 
 
 guilt, and, unless explained upon cable to the testimony as a whole, 
 
 some theory consistent with his in- State v. Good, 132 Mo. 126, 33 S. W. 
 
 nocence, authorized his conviction. 790." 
 It will also be noted that the pos-
 
 1862 FORMS OF INSTRUCTIONS. [§ 2950. 
 
 § 2950. Proof that Part of a Forged Writing was in the Same 
 Handwriting as the Balance as Evidence of Guilt. The court instructs 
 the jury that, although you cannot find the defendant guilty of the 
 charge in the information upon proof that the acknowledgment to 
 said deed was forged and fraudulently made, yet the jury are further 
 instructed that if you believe from the evidence that the acknowledg- 
 ment to said deed, and the name of the notary before whom the same 
 purports to have been made, was forged, and that the body of the 
 deed, containing the names of the grantor and grantee, and the de- 
 scription of the land conveyed in said deed, was written by the same 
 person who wrote said acknowledgment, then, in determining whether 
 or not the deed was a forgery, you have a rig-ht to consider the fact 
 that the acknowledgment to said deed, and the name of the notary 
 before whom the same purpoi'ts to have been taken, were forgeries, 
 along with the other facts 'and circumstances in evidence.^* 
 
 § 2951. Drunkenness as a Defense to Forgery. Drunkenness, al- 
 though not an excuse for crime, may be considered in passing upon 
 a question of intent, and in an indictment for forgery the burden is 
 on the state to establish a guilty knowledge and a guilty and fraudu- 
 lent intent.^^ 
 
 § 2952. Forgery of Telegram — Inducing Girl to Marry Through 
 Forging Mother's Name to Telegram — Series, (a) I charge you 
 
 34 — State v. Pyscher, 179 Mo. 140, knowledg-ment was introduced, not 
 
 77 S. W. 836 (842). for the purpose of showing intent 
 
 "It is insisted," said the court, on the part of defendant, but that 
 "that this instruction is erroneous it miglit be considered in the estab- 
 for the reason it does not restrict lishment of the important fact that 
 the purpose of the forgery of the the deed had been forged. An anal- 
 acknowledgment to the question of ysis of the instruction makes it ap- 
 inteut on the part of the defendant, parent that this w^as the purpose, 
 It is also urged that the instruction and also shows clearly that the 
 assumes the forgery of the ac- fact that the acknowledgment was 
 knowledgment. This contention is forged was not assumed, but the 
 a misconception of the purposes of jury are expressly required, before 
 the acknowledgment. The testi- considering it, to find that it was 
 mony as to the forged acknowl- forged. While the defendant was 
 edgment and the introduction of not charged with the forgery of the 
 the acknowledgment was not for acknowledgment of the deed, and 
 the purpose of showing intent on the instrvictions all strictly guard 
 the part of the defendant. If de- his rights in that respect, yet the 
 fendant in fact forged or caused to acknowledgment being so closely 
 be forged the deed, it required no connected with the deed, its forg- 
 evidence of intent. The act itself ery may shed light, in very im- 
 carried with it the intent. But the portant particulars, upon the in- 
 evident purpose of showing the vestigation of the forgery of the 
 forgery of the acknowledgment — deed itself. There was no error in 
 it being on the same paper, and so this instruction, and the cases cited 
 closely related to the deed — was relied upon by counsel for appel- 
 that this fact might be considered lant (State v. Myers, 82 Mo. 558, 52 
 in determining whether the deed Am. Rop. 389; State v. Baynes, 88 
 had been, in fact, forged. The Mo. 611), are not applicable to this 
 forgery of the deed was a fact that instruction." 
 
 had to be proved in the case, and 35 — State v. Peterson, 129 N. C. 
 
 the testimony in respect to the ac- 556, 40 S. E. 9, 85 Am. St. 756.
 
 § 2952.] CRIMINAL— FORGERY. 1863 
 
 that even if you find that the defendant falsely represented himself 
 as a man of wealth and social position to Norine S., and concealed 
 from her the fact that he had previously been convicted of felony, and 
 thereby induced her to marry him, that this of itself was not sufficient 
 to convict the defendant, nor does it prove any element of the crime 
 charged in the information. 
 
 (b) In the contract of marriage which forms the gateway to the 
 marriage status, the parties take each other for better or worse, for 
 richer or pooi'er, to cherish each other in sickness or in health; and 
 consequently a mistake by one of the parties to the marriage, whether 
 resulting from accident or in general from fraudulent practices in 
 respect to character, fortune, health or the like, is not a crime under 
 the laws of this state. 
 
 (c) The law indulges in no presumption, nor is a jury permitted 
 to indulge in any presumption that it is more probable that a person 
 previously convicted of felony will commit a subsequent crime. 
 
 (d) I charge you that if you find that Norine S. on the 23d 
 day of February, 19 — , was moi'e than 18 years of age, that the consent 
 of her mother or father or either of them was not essential or neces- 
 sary to consummate a legal marriage between the said Norine S. and 
 the defendant. 
 
 (e) I charge you that if you find that on Februaiy 23d, 19 — , that 
 Norine S. was more than 18 years of age, that she had the right to 
 marry the defendant or any other person without the consent of either 
 of her parents. 
 
 (f) I charge you that if you find on Februaiy 23d, 19 — , that 
 Norine S. was 18 years of age or more, that her parents or either of 
 them had no right, by process of law or otherwise, to prevent the said 
 Norine S. from marrying any man of her choice. 
 
 (g) If you find from the evidence that at the time of the sending 
 of said telegram there w^as a preconceived arrangement between the 
 defendant and Norine S. that such a telegram should be sent 
 by the defendant without the consent, authority or knowledge of 
 Marie S., and that at the time of the sending of the telegram the 
 defendant did not intend to defraud, deceive or injure Norine S. by 
 the sending of the said telegram, and if the said Norine S. knew when 
 said telegram was received that it was sent without the authority of 
 her mother then your verdict must be "We, the jury, find the de- 
 fendant not guilty." 
 
 (h) If you find that Norine S. at the time she received said tele- 
 gram at Crockett, knew that the said telegram was not signed, au- 
 thorized or sent by her mother M. S., and knew that said telegram 
 was sent in pursuance of an arrangement between her and the de- 
 fendant, and that she was not deceived thereby, and that the defend- 
 ant did not intend to deceive, defraud or injure her, in the sending of 
 the said telegram, then your verdict must be not guilty.
 
 1864 FORMS OF INSTRUCTIONS. [§ 2952, 
 
 (i) As has been stated to you, the defendant is on trial for the 
 crime charged in this information, and for no other crime. The law 
 in its wisdom does not undertake to regulate the moral conduct of its 
 subjects, and even if you find that the defendant's conduct has been 
 very reprehensible morally, still if you are not convinced of his guilt 
 beyond a reasonable doubt of the crime charged in the information, 
 you should find the defendant not guilty, no matter what your opinion 
 may be of his conduct otherwise.^® 
 
 36— People v. Chadwick, 143 Cal. 116, 76 Pac. 884 (886),
 
 CHAPTER XCVII. 
 
 CRIMINAL— HOMICIDE. 
 
 See Erroneous Instructions, same chapter head, Vol. III. 
 
 § 2953. Murder defined — Alabama. 
 
 § 2954. Murder defined — Malice de- 
 fined — Delaware. 
 
 § 2955. Murder — Essential elements 
 — Illinois. 
 
 § 2956. Murder defined — Mississippi. 
 
 § 2957. Murder defined — Malice de- 
 fined — North Carolina. 
 
 § 2958. Killing wife caught in 
 adultery. 
 
 § 2959. Killing by corporal punish- 
 ment. 
 
 § 2960. Killing servant or child by 
 cruel treatment. 
 
 § 2961. Killing policeman in pur- 
 suance of unlawful con- 
 spiracy. 
 
 § 2962. Homicide — Preventing es- 
 cape of prisoner. 
 
 § 2963. Conspiracy to kill — Con- 
 spirators equally liable. 
 
 § 2964. Death caused by reckless 
 driving of horses. 
 
 § 2965. Homicide — Previous rela- 
 tions of parties. 
 
 § 2966. Shooting at one man, killing 
 another. 
 
 § 2967. Defendant charged with 
 killing one, evidence of 
 killing of another not to be 
 considered. 
 
 § 2968. Mutual threats to kill both 
 carrying deadly weapons. 
 
 § 2969. Shooting with gun or pistol, 
 loaded with power and 
 leaden balls. 
 
 § 2970. Homicide — Discharging of 
 gun into the air. 
 
 § 2971. Mere peacemaker should be 
 acquitted. 
 
 § 2972. Killing by accident excus- 
 able. 
 
 § 2973. "Wound not necessarily fatal 
 — Death from neglect. 
 
 § 2974. Murder— No defense that life 
 might have been saved. 
 
 § 2975. Defense of death from other 
 causes. 
 
 § 2976. Turbulent disposition of de- 
 ceased. 
 
 § 2977. Immaterial whether defend- 
 ant angry or excited. 
 
 § 2978. Instruction to jury to con- 
 sider only unlawful homi- 
 cide. 
 
 1865 
 
 § 2979. Essential elements to con- 
 vict — Must be proved be- 
 yond reasonable doubt. 
 
 § 2980. Recommending a person to 
 mercy. 
 
 § 2981. Furnishing forms of ver- 
 dicts. 
 
 § 2982. Homicide — General sum- 
 mary. 
 
 § 2983. Murder in first or second de- 
 gree — Series. 
 
 § 2984. Homicide^Various elements 
 — Series. 
 
 MURDER IX FIRST DEGREE. 
 
 § 2985. Murder in the first degree— 
 What constitutes. 
 
 § 2986. Murder first degree— What 
 constitutes — Duration of 
 deliberation. 
 
 § 2987. Murder in the first and sec- 
 ond degree distinguished. 
 
 § 2988. Whether murder or man- 
 slaughter. 
 
 § 2989. Murder in the first and sec- 
 ond degree and man- 
 slaughter defined and dis- 
 tinguished — Elements of — 
 Michigan. 
 
 § 2990. Murder in the first degree — 
 Idaho statute. 
 
 § 2991. Order in which jury may 
 consider the issues — New 
 York code. 
 
 § 2992. Deceased assaulting defend- 
 ant—Defendant killing de- 
 ceased after cooling time. 
 
 § 2993. Seeking quarrel with de- 
 ceased with expectation of 
 shooting him. 
 
 § 2994. Deceased making first hostile 
 demonstration — Direct evi- 
 dence not necessary. 
 
 § 2995. Murder by poison— Essen- 
 tial facts. 
 
 § 2996. Deceased having had illicit 
 intercourse with defend- 
 ant's wife. 
 
 § 2997. Murder in the first degree- 
 Definition of — Murder com- 
 mitted in perpetration of 
 robbery. 
 
 §2998. Murder— i\ttempt to escape. 
 
 § 2999. Killing while attempting to 
 commit rape. 
 
 § 3000. Fatally wounded by striking 
 with billiard cues.
 
 1866 
 
 FORMS OF INSTRUCTIONS. 
 
 § 3001. Deadly weapon— Killing with 
 a large stone or piece of 
 iron. 
 
 § 3002. Murder in first degree— Met- 
 al knucks or means un- 
 known — Stabbing with 
 knife. 
 
 § 3003. Murder in the first degree 
 — Form of verdict. 
 
 MURDER IN SECOND DEGREE. 
 
 § 3004. Murder in the second de- 
 gree — Elements of. 
 
 § 3005. Murder in second degree de- 
 fined—Shooting with re- 
 volving pistol loaded with 
 gunpowder and leaden 
 balls. 
 
 § 3006. Murder— Distinction between 
 first and second degree. 
 
 § 3007. Murder in second degree- 
 Elements to consider — Cali- 
 fornia statute. 
 
 § 3008. Murder in second degree- 
 North Carolina. 
 
 § 3009. Murder in second degree- 
 Killing must be malicious 
 — Reasonable doubt — Ala- 
 bama, 
 
 § 3010. Malice necessary in murder 
 in second degree, but will 
 be implied — Texas. 
 
 § 3011. Need not be previously plan- 
 ned or deliberated upon, 
 but must be a cold blooded 
 and malicious act — Wyo- 
 ming. 
 
 § 3012. Murder in the second degree 
 — Killing before cooling 
 time had elapsed. 
 
 § 3013. In violent passion from of- 
 fensive language used. 
 
 § 3014. Heat of passion — Determined 
 with reference to ordinary 
 men. 
 
 § 3015. Under such passion as to de- 
 prive defendant of the 
 power to form intent to 
 kill. 
 
 § 3016. Sudden transport of passion 
 — Without adequate cause 
 — Deadly weapon — Leather 
 belt may be. 
 
 § 3017. Mutual combat — Deadly 
 weapon suddenly snatched 
 up. 
 
 § 3018. Criminal intimacy of de- 
 ceased with defendant's 
 sister no defense. 
 
 § 3019. Killing child by beating its 
 mother. 
 
 § 3020. Murder in second degree pre- 
 sumed — Burden of proof. 
 
 § 3021. Murder in second degree — 
 Presumed from killing 
 with billiard cues. 
 
 § 3022. Murder in second degree — 
 Form of verdict. 
 
 MANSLAUGHTER. 
 
 § 3023. Manslaughter defined. 
 
 § 3024. Manslaughter defined— U. S. 
 Courts. 
 
 § 3025. Manslaughter defined — Sud- 
 den conflict arising from 
 quarrel. 
 
 § 3026. Manslaughter— Facts 
 amounting to. 
 
 § 3027. Voluntary manslaughter — 
 What constitutes. 
 
 § 3028. Manslaughter in the first de- 
 gree — Definition of. 
 
 § 3029. Manslaughter — Second de- 
 gree. 
 
 § 3030. Manslaughter in third degree 
 —In a heat of passion and 
 without a design to kill — 
 Missouri. 
 
 § 3031. Manslaughter in the fourth 
 degree. 
 
 § 3032. Murder and voluntary man- 
 slaughter distinguished. 
 
 § 3033. Manslaughter distinguished 
 from self-defense. 
 
 § 3034. Under indictment for mur- 
 der. 
 
 § 3035. Murder or voluntary man- 
 slaughter — Reasonable 
 doubt as to which, to be 
 resolved in favor of man- 
 slaughter — Where there are 
 two motives ascribed — any 
 doubt should be resolved 
 in favor of defendant. 
 
 § 3036. Homicide — Degree of — Sever- 
 al defendants. 
 
 § 3037. Under the immediate in- 
 fluence of sudden passion — 
 Provocation must arise at 
 the time of the killing — 
 Passion and adequate 
 cause defined. 
 
 § 3038. In the heat of overwhelming 
 passion, superinduced by 
 sudden and sufficient 
 provocation — Sudden and 
 uncontrollable passion. 
 
 § 3039. Provocation and passion 
 must concur. 
 
 § 3040. Slight or trivial provocation 
 not sufficient — Provocation 
 defined. 
 
 § 3041. Manslaughter — Malice and 
 intent not essential. 
 
 § 3042. Manslaughter— Sheriff kill- 
 ing one who attempts to 
 release prisoner. 
 
 § 3043. Manslaughter — Killing in 
 attempt to procure abor- 
 tion. 
 
 § 3044. Manslaughter — Intimacy of 
 deceased with defendant's 
 wife. 
 
 § 3045. Manslaughter — Negligence 
 causing boiler explosion. 
 
 § 3046. Form of verdict.
 
 §2953.] CRIMINAL— HOMICIDE. 1867 
 
 § 2953. Murder Defined — Alabama. If the deceased died from the 
 effects of a wound inflicted by a gun in the hands of the defendant, 
 and such Avound was intentionally inflicted in pursuance of a previous- 
 ly formed design to take his life, he would be guilty of murder.^ 
 
 § 2954. Murder Defined — Malice Defined — Delaware. Murder is 
 the unlawful killing of a human being, under the peace of the state, 
 by a person of sound memory and discretion, with malice afoi-e- 
 thought, either express or implied. The chief characteristic of this 
 crime, distinguishing it from manslaughter and every other kind of 
 homicide, and therefore indispensably necessary to be proved, is 
 malice preconceived or aforethought. This tenii "malice," is not re- 
 stricted to spite or malevolence toward the deceased in particulai*, 
 but, in its legal sense, it is understood to mean that general malignity 
 and recklessness of the lives and personal safety of others which pro- 
 ceed from a heart void of a just sense of social duty 'and fatally bent 
 on mischief. Malice is implied by law from every deliberate, cruel act 
 committed by one person against another, no matter how sudden such 
 act may be. For the law considers that he who does a cruel act vol- 
 untarily, does it maliciously.- 
 
 § 2955. Murder — Essential Elements — Illinois. You are further 
 instructed that, if you believe, from the evidence in this case, beyond 
 a reasonable doubt, that the defendant, with malice aforethought^ 
 either expressed or implied, inflicted upon the deceased, H. M., the 
 mortal wound or wounds in manner and fonn as charged in the in- 
 dictment, not in self-defense as the same is defined in these in- 
 structions, and not upon a sudden heat of passion, caused by a provo- 
 cation apparently sufficient to make the passion irresistible, and that 
 the said H. M. did thereafter die from said mortal wound or wounds, 
 in manner and form as charged in the indictment, then the jury should 
 find the defendant guilty of murder.^ 
 
 § 2956. Murder Defined — Mississippi. The court instructs the jury 
 that murder is the killing of a human being with the deliberate de- 
 sign to effect the death of the person killed, [without authority of 
 law,] and if the juiy believe from all the evidence in the case, be- 
 yond a reasonable doubt, that the defendant so killed the deceased, 
 then the jury will find the defendant guilty as charged.* 
 
 1 — Harknoss v. State, 129 Ala. 71, was the duty of the jury to find the 
 
 30 So. 73 (74). defendant g-uilty of murder. Th^s 
 
 2 — State v. Brinte. — Del. — . 58 being so. the concluding- words 
 
 Atl. 258 (262), citing State v. Golds- were proper." 
 
 borousrh. Houst. Cr. Cas. 314. 4— Ivy v. State, 84 Miss. 264, 36 
 
 3_Carle v. People. 200 Til. 494 So ''fiS (266). 
 
 (500). 66 N. E. 32, 93 Am. St. 208. "The above instruction fn^- the 
 
 "This instruction contains all the stite oueht to ha^'e contained the 
 
 elements of the crime of murder words 'without authority of law,' 
 
 in the facts which it assumes to since it was manifestly drawn un- 
 
 exist. and if those elements were der the statute." 
 established by the testimony, it
 
 1868 FORMS OF INSTRUCTIONS. [§ 2957. 
 
 § 2957. Murder Defined— Malice Defined — North Carolina. It is 
 murckr when a person of sound mind and discretion nnlawfully killeth 
 any reasonable creature in being and under the peace of the state, 
 with malice aforethought, either express or implied. By sound mind 
 and discretion is meant that the one doing the killing has a will or 
 legal discretion. Malice is a wicked intention to do the injury, and 
 is of two kinds^express malice and implied malice. When a party 
 evinces an intention to commit the crime it is express malice. When 
 a person commits an act unaccompanied by any circumstances justify- 
 ing its commission it is implied malice ; the law presumes he has acted 
 advisedly, and intended the consequences produc'ed by his act.^ 
 
 § 2958. Killing Wife Caught in Adultery. The law is that if a 
 man discovers his wife in the act of adultery, and his passion is 
 greatly aroused, and through this passion he strikes and kills his wife, 
 it would not be murder, but manslaughter. The law does not say that 
 under all circumstances a man is not guilty of murder if he kill his 
 wife, even if in the act of adultery at the time of the killing. The 
 test is, does the slayer slay by reason of passion aroused or induced 
 by revenge or malice ? If a wife has lost her virtue and continues to 
 defile her marriage bed, and the husband knows this, and after so 
 knowing, and after reflection, while the mind is coolly operating, 
 kills her to avenge his wounded honor, and not by reason of passion, 
 it would be murder, not manslaug'liter. Therefore, in the case at bar, 
 gentlemen of the jury, if you should find from the evidence that the 
 defendant caught her in the act, and through the influence of passion, 
 shortly thereafter killed her, this would be manslaughter; but if you 
 should find that the defendant caught his wife in the act of adultery, 
 and before the killing there was sufficient cooling time, and he killed 
 her through hatred and revenge, this would be murder and not man- 
 slaughter.*^ 
 
 5 — State V. Mills, 116 N. C. 992, and provoked by the wrong done 
 
 21 S. E. 106 (107). him, and moved by the passion 
 
 6 — McNiMll v. State, 102 Ala. 121, naturally ensrendered, he imme- 
 
 15 So. 352 (354), 48 Am. St. 17. diately kills her, he is not guilty 
 
 The court said that the several of murder, but of manslaughter 
 
 sentences of the general charge only; but that on the ether hand 
 
 should be read in the light of the if he does not strike and kill until 
 
 context. Citing Montgomery, etn., after there has been time for his 
 
 R. R. Co. V. Stewart, 91 Ala. 421, passion to cool and for reason to 
 
 427, 8 So. 708; Williams v. State, 83 reassert itself, or if he strikes and 
 
 Ala. 68, 3 So. 743; O'Donnell v. kills immediately, but is not moved 
 
 Rodiger, 76 Ala. 222, 52 Am. Rep. thereto by the heat of passion, but 
 
 322; Liouisville R. R. Co. v. Orr, 94 by prior malice or hatred, a desire 
 
 Ala. 602, 10 So. 167. to nvonge the wrong done him, or 
 
 Continuing the court said: bv any other motive, or upon any 
 
 "Considered in this way nnd dcsiarn whatever, except such as is 
 
 P'-obabiy •P'ithont rf^fereni^e to the pr-csently enarendered by the parox- 
 
 p»-incip1e lust st'^ted. t^at part of ysm of rage into which he is 
 
 th" court's general charce to whir>h thrown by th's extreme provoca- 
 
 p-^T-pntion*? wcp rPF'^T"^''^d asse'-ts ti'^n hp is gin'ltv o*' murdpr. And 
 
 no mnrp than th'<=; Th^t if a man this beyond all doubt is the law." 
 find his wife in the act of adultery,
 
 § 2959.] CRIMINAL— HOMICIDE. 1869 
 
 § 2959. Killing by Corporal Punishment. Where a killing is ef- 
 fected by unlawful means, productive of corporal punishment, and 
 the natural consequence of which is to produce death, it may be 
 murder or manslaughter, though there was no specific intention to 
 kill, such as where one in cold blood unlawfully and deliberately beats 
 another so that he dies, it might be murder, though he did not intend 
 to kill, if the instrument or manner of beating be apt to kill, or the 
 natural consequence of which was to produce death.'^ 
 
 § 2960. Killing Servant or Child by Cruel Treatment. Killing by 
 cruel treatment might be murder, though the murderer might have 
 the authority to correct in a reasonable and proper manner, — as a 
 father his child, or a master his servant.^ 
 
 § 2960a. Policeman— When Not Justifiable in Killing Citizen. If 
 defendant used the warrant of arrest as a mere pretext for killing 
 deceased, or if defendant did shoot deceased before deceased mani- 
 fested any intention of offering serious resistance, or if, at the time 
 of shooting, defendant knew his own life was not in danger, nor 
 was he threatened with great bodily injuiy, then he would not be 
 justified in taking the life of deceased.^ 
 
 § 2961. Killing Policeman in Pursuance of Unlawful Conspiracy. 
 Although you may believe that said M. had threatened to arrest de- 
 fendant and parties with him, and had exhibited his pistol for that 
 purpose, and although you may further believe that said M., as an 
 officer, had no right to arrest said parties outside of the corporate 
 limits of D,, still if you believe beyond a reasonable doubt, from 
 the evidence, that said killing was 'done in compliance with and in 
 furtherance of an unlawful conspiracy, such killing would be 
 murder.^** 
 
 § 2962. Homicide — Preventing Escape of Prisoner, (a) The court 
 instructs the jury that, if you believe from the evidence deceased 
 was drunk and disorderly in the presence of appellant, the latter, 
 as marshal of the town of McH., had the right to arrest him without 
 a warrant, and to hold him in custody until the presence of the police 
 judge could be secured to make some disposition of the ease, and, 
 if you further believe from the evidence that, after the arrest of 
 the deceased, and while appellant had him in custody, deceased at- 
 tempted by force or violence to effect his release from appellant's 
 custody as an officer, appellant had the right to use such force as 
 was necessary or what reasonably appeared to him to be necessaiy, 
 but no more, to ovei'come the forcible resistance of deceased, and 
 if, under these circumstances, he shot and killed deceased, the kill- 
 ing was excusable, if appellant could not otherwise overcome the 
 
 7— Winter v. State, 123 Ala. 1, 26 9— Bartay v. State," — Tex. Cr. 
 So. 949 (950). App. — . 67 S. W. 416 (417). 
 
 8— Winter v. State, 123 Ala. 1, 26 10— Rruner v. United States, 4 
 So. 949 (950). Ind. Ter. 80, 76 S. W. 244 (246).
 
 1870 FORMS OF INSTRUCTIONS. [§ 2963. 
 
 forcible resistance of deceased, or it reasonably appeared to liim that 
 he could not do so.^^ 
 
 (b) If an officer has lawfully in his custody a person charged 
 with having committed a crime not a felony, the officer is not au- 
 thorized in order to prevent his escape to shoot him or at him or to 
 draw a dangerous weapon for the purpose of preventing such es- 
 cape.^2 
 
 § 2963. Conspiracy to Kill — Conspirators Equally Liable, (a) If 
 you believe from the evidence beyond a reasonable doubt that there 
 was a conspiracy between the defendants and the father to take 
 the life of the deceased or do him great injury, and the father of 
 defendants fired the fatal shot that killed the deceased, then de- 
 fendants would be equally liable with the father, if the shooting 
 by the father was done in carrying out the conspiracy previously 
 entered into by them.^^ 
 
 (b) If you cannot say from the evidence beyond a reasonable 
 doubt who killed G. (that is, whether it was H. or T.) but can say 
 from the evidence beyond a reasonable doubt that one of the two 
 killed him, and that H. and T. were acting together in the killing, 
 the defendant would be guiltj^, and it would be your duty to convict 
 him.i* 
 
 (c) The court instructs the jury that when two or more persons 
 act together in the commission of an unlawful act or purpose, that 
 what either does in carrying out suoh unlawful act or purpose is, 
 in law, the act of each of said persons. ^^ 
 
 § 2964. Death Caused by Reckless Driving of HorseSo If you find 
 from the evidence in the case that the deceased came to his death 
 by the mutual mistake of the deceased and the defendant in the 
 honest endeavor to avoid a collision both on the part of the deceased 
 and the defendant, then in that event such killing would be acci- 
 dental and not criminal, and your verdict should be not guilty. In 
 connection with that instruotion, gentlemen of the jury, I instruct 
 you that if the defendant was at the time alleged in this information 
 engaged in an unlawful act, to wit, the aot of driving horses and 
 a wagon upon the public highway in such a manner as to endanger 
 the lives and persons of others, and such unlawful act resulted in 
 the killing of the person named in the information mentioned, it 
 would then be immaterial whether the killing was accidental or in- 
 tentional; the defendant would be guilty.^** 
 
 § 2965. Homicide — Previous Relations of Parties. If in this you 
 are in doubt as to the precise circumstances under which the homi- 
 cide was committed — that is, are in doubt as to whether the de- 
 ll—Stevens v. Commonwealth 14— Hunt v. State, 135 Ala. 1, 33 
 — Ky. — , 98 S. W. 284. So. 329 (330). 
 
 12— Commonwealth v. Carter, — 15— State v. Hottman, 196 Mo. 
 Mass. — , 66 N. E. 716 (719). 110, 94 S. W. 237 (240). 
 
 13— Ptovens v. State, 133 Ala. 28, 16— State v. Stentz, -33 "Wash. 
 32 So. 270 (271). 444. 74 Pac. 588 (590).
 
 §2966.] CRIMINAL— HOMICIDE. 1871 
 
 ceased, at the vei'y moment of the killing, was, in fact, about to 
 inflict upon defendant great bodily harm — then the previous relations 
 between the parties and their previous conduct towards each other 
 and defendant 's knowledge of the deceased become important for 
 your consideration; and those previous relations and that previous 
 conduct and knowledge embrace every word and act, in short, every 
 fact and circumstance, bearing upon that point, of which evidence 
 has been received. You are to place yourselves as nearly as possible 
 in the situation of the parties, as respects each other, at the veiy 
 scene and time of the homicide. ^^ 
 
 § 2966. Shooting At One Man, Killing Another. If the jury be- 
 lieve from the evidence, beyond a reasonable doubt, that the de- 
 fendant, in Hardin county, and before the finding of the indictment, 
 did unlawfully, willfully, and feloniously, not in his necessary or 
 apparently necessary self-defense, shoot at D. with a pistol loaded 
 with powder and leaden balls, but that the ball or balls so shot at 
 said D. did miss him, and, instead, then and thei'e strike and kill 
 W., they should find defendant guilty. That is, guilty of murder, 
 if they believe from the evidence, beyond a reasonable doubt, that 
 the shooting was done with malice aforethought; or, of voluntary 
 manslaughter if they believe from the evidence, beyond a reasonable 
 doubt, that it was done in a sudden affray, or in sudden heat and 
 passion, and without previous malice. If they find the defendant 
 guilty of murder, 'the jury should fix the punishment at death, or 
 confinement in the penitentiaiy for life, in their discretion. But if 
 they find him guilty of voluntary manslaughter, they should fix his 
 punishment at confinement in the penitentiary not less than — nor 
 more than — years, in their diseretion.^^ 
 
 § 2967. Defendant Charged With Killing One, Evidence of Kill- 
 ing of Another Not to Be Considered. The defendant is on trial, 
 charged with shooting Abe C. only, and if you do not believe the evi- 
 dence sufficient to convict him under that charge you cannot convict 
 him for shooting the Italian girl.^^ 
 
 § 2968. Mutual Threats to Kill, Both Carrying Deadly Weapons. 
 If the jury believe from the evidence established beyond a reasonable 
 doubt that the defendant and the deceased bore malice to each other, 
 and that there had been mutual threats to kill against the other, 
 
 17— People V. Gallanar, 3 Cal. the case, and no intimation was 
 
 App. 431, 86 Pac. 814 (815). given that appearances might be 
 
 "Appellant contends that this in- determined from probabilities aris- 
 
 struction amounted to the advice ing from circumstances not in evi- 
 
 of the court to the jury that it dence. Besides, this instruction 
 
 might discard the direct evidence must be read with other instruc- 
 
 in the case and arrive at a verdict tions which were given upon ap- 
 
 on certain circumstantial evidence pearances." 
 
 and probabilities. But such a 18— Held that the trial court erred 
 
 theory cannot be maintained, for in refusing this instruction. Wheat- 
 
 the jury was distinctly told that ley v. Commonwealth, 26 Ky. L. 
 
 the previous relations, previous 436, 81 S. W. 687 (689). 
 
 conduct and knowledge must be 19 — Watson v. State, — Tex. Cr. 
 
 such as shown by the evidence in App. — , 89 S. W. 270 (271).
 
 1872 FORMS OF INSTRUCTIONS. [§ 2969. 
 
 known to each of them, and that each, with the knowledge of the 
 other, had deliberately procured pistols for the purpose of fighting 
 with them, and had thereupon deliberately fought with their pistols, 
 and under these circumstances the defendant, being quicker than the 
 deceased, fired and killed the deceased, the juiy would be authorized 
 to find the defendant guilty of the crime of murder.-" 
 
 § 2969. Shooting With Gun or Pistol, Loaded With Powder and 
 Leaden Balls. The jury should find the defendant not guilty, unless 
 the juiy believe from the evidence, beyond a reasonable doubt, that 
 the defendant did, in F. county, Ky., and prior to the 28th day of 
 March, 1905, willfully shoot and kill L., by shooting said L., with 
 a gun or pistol, or both, loaded with powder and leaden balls, or 
 other hard substances.-^ 
 
 § 2970. Homicide — Discharging of G-un Into the Air. I instruct 
 you that the pointing of a gun in the air is not an unlawful act, 
 and I charge you that the respondent would have the right to take 
 a gun out into the field to the east of the house and to point the same 
 in the air, as long as in doing so he did not take it there for the 
 purpose of obstructing or resisting the officer, E. M., and did not 
 use it for that i^urpose. 1 instruct you that the discharging of the 
 gun, by respondent, in the aii', is not an unlawful act, and I charge 
 you that the respondent would have the right to take the gun out 
 into the field east of the house and discharge the same into the air, 
 as long as by doing so he did not take it there for the purpose of 
 obstructing or resisting the officer, E. M., and did not use it for that 
 purpose and did not use it in such manner as to amount to a reckless 
 disregard of human life by so using it. The respondent, under the 
 law, had a right to take the gun with him into the field where the 
 shooting occurred, so long as by so doing he did not take it there 
 for the purpose of obstructing and resisting the ofifleer, E. M., and 
 did not use it for that purpose, and to carry said gun in his hands 
 and to point the same in the air, so long as he did not have the gun 
 there for the purpose of obstructing the officer or resisting the offi- 
 cer, but he would not have the right to knowingly point said gun in 
 the direction of any person. -- 
 
 § 2971. Mere Peacemaker Should Be Acquitted. The court charges 
 the jury that if the jury believe from all the evidence that E. B. 
 and C. N. shot and killed S., and that defendant did no more than 
 
 20— Roark v. State, 105 Ga. 736, 32 ever may have occurred in the 
 
 S. E. 125 (126). lower field, so long as the logs 
 
 21 — Stout V. Commonwealth, 29 called for had not in fact been se- 
 
 Ky. L. 627, 94 S. W. 15. cured, the writ had not spent its 
 
 22— People v. Sauer, 143 Mich. 308, force. If, however, the jury were 
 
 106 N. W. 866. satisfied that the ofl^cer was not, 
 
 "We think this charge sufficient- at the time he was shot down, act- 
 
 ly recognized the defendant's ing under the writ, the charge fully 
 
 theory in so far as it was entitled protected the rights of the ac- 
 
 to cnnsideration. The writ was still cused." 
 in the officer's hands, and, what-
 
 § 2972.] CRIMINAL— HOMICIDE. 1873 
 
 try to keep peace, the night of the shooting, then the defendant is 
 not guilty, and the jury ought to acquit the defendant.-'* 
 
 § 2972. Killing By Accident Excusable, (a) If you believe from 
 the evidence, beyond a reasonable doubt, that defendant J. S., abouit 
 the time alleged in the indictment, did shoot and thereby kill the 
 deceased, and you further believe from the evidence that such shoot- 
 ing was accidental, and not intentional, upon the part of defendant, 
 then and in that event the homicide is excusable ; and if you so 
 'believe from the evidence, or if you have a reasonable doubt thereof, 
 then you will find the defendant not guilty.-* 
 
 (b) If, after reviewing all the evidence in the case, the jury 
 entertains a reasonable doubt therefrom, as to whether or not, 
 at the time the pistol was fired, the defendant and the deceased were 
 scuffling for the possession of the pistol, and [believe] that it was 
 fired accidentally during such scuffle, and without intent to take 
 life, then the jury must acquit.-^ 
 
 (c) If you fail to find that R. 's death was due to human agency, 
 that will end the case in favor of the pi'isoner. But if you consider 
 that fthe theory of accidental death cannot reasonably be entertained 
 on this evidence, there remains the question whether the prisoner 
 inflicted the injuries.-^ 
 
 § 2973. Wound Not Necessarily Fatal— Death From Neglect, (a) 
 If you believe, from the evidence, beyond a reasonable doubt, that 
 the gunshot wound was in itself mortal and reasonably calculated 
 from its nature and extent to produce death without any medical 
 or surgical treatment, then it would be no defense that the deceased, 
 under better or different medical treatment, might or probably would 
 have recovered, nor will the law justify a verdict of acquittal, merely 
 upon the ground, if proved, that the medicine administered or the 
 surgical treatment adopted to restore or relieve the deceased in point 
 of fact, co-operated with the wound in producing death. It would 
 be enough if you believe, from the evidence, beyond a reasonable 
 doubt, that the gunshot wound of itself, would have resulted in death 
 and that it did in fact contribute directly to the death, provided 
 also, you further believe, from the evidence, beyond a reasonable 
 
 23 — Nicholson v. State, 117 Ala. lishing the offense beyond a reason- 
 
 32, 23 So. 792. able doubt, and told them, that the 
 
 24 — Scott V. State, 46 Tex. Cr. evidence being entirely circum- 
 
 App. 536, 81 S. W. 294. stantial, it must be such as to ex- 
 
 "We think the charge is correct, elude every reasonable theory con- 
 
 and not subject to the criticism sistent with the prisoner's inno- 
 
 urged by appellant. Hull v. State, cence; that that was but another 
 
 — Tex. Cr. App. — , 80 S. W. 380. statement of the rule that the of- 
 
 25 — Johnson v. State, — Miss^ — , fense must bo established beyond a 
 
 30 So. 39 (40). reasonable doubt, for, if there re- 
 
 26 — State v. Bean, 77 Vt. 384, 60 mained a reasonable ground on 
 
 Atl. 807 (814). which the killing could be ac- 
 
 In this case "the couvt had al- counted for without the agency of 
 
 ready instructed the ju ry ns to the the prisoner, it could not be said 
 
 burden of proof res'^ing on the that his guilt was established be- 
 
 Btate, and the neceF.gjty of esta^^ yond. a reasonable doubt." 
 118
 
 1874 FORMS OF INSTRUCTIONS. [§2974. 
 
 doubt, that the said wound was inflicted with malice aforethought.^^ 
 
 (b) Upon the question, what was the cause of the death of the 
 deceased, the court instructs you that in order to convict the de- 
 fendant under this indictment, you must be able, from the evidence, 
 to trace the death to the injury alleged to have been inflicted by 
 the defendant and that, too, beyond any reasonable doubt. ^* 
 
 (c) If one person inflicts wounds upon another, which are dan- 
 gerous in themselves, though not necessarily fatal, but which do pro- 
 duce death through a chain of natural causes and elfects, unin- 
 fluenced by human action, then the wounds are to be regarded as 
 the cause of the death. And in this case if you believe, from the 
 evidence, beyond a reasonable doubt, that the defendant did inflict 
 wounds upon the deceased, in manner and form as charged in the 
 indictment, and that these wounds were dangerous in themselves 
 though not necessarily fatal, and that these wounds caused conges- 
 tion of the brain, and that the deceased died of such congestion 
 or that the congestion caused him to expose himself to the inclemency 
 of the weather, and that such exposure was the immediate cause 
 of his death, still, in law, it will be held that the defendant, by in- 
 flicting the wounds, caused the death of the deceased. ^^ 
 
 (d) If the jury believe, from the evidence, beyond a reasonable 
 doubt, that the defendant cut the deceased, G. W., in the arm with 
 a knife or other instrument capable of inflicting a similar wound, 
 as charged in the indictment, it is no excuse to say that the de- 
 ceased would not have died if he had taken proper care of himself, 
 or that neglect or the want of proper applications to the wound had 
 brought on blood poisoning, and of that he died, provided you be- 
 lieve, from the evidence, beyond a reasonable doubt, that the wound 
 was the primary or true cause of his death.^*' 
 
 (e) The law is, that if one unlawfully inflicts upon another a 
 wound which is not in its nature necessarily mortal, but which 
 might be cured by proper care and surgical treatment, and the person 
 injured neglects to procure such care, or refuses to receive such 
 surgical treatment, and he die of the wound owing to such want 
 of care and treatment, this will not excuse the person inflicting the 
 wound; and if, in such case, the jury further believe, from the 
 evidence, beyond a reasonable doubt, that the injury was inflicted 
 by accused with malice aforethought, as explained in these instruc- 
 tions, and that the deceased died from such wounds, then the jury 
 should find the accused guilty of murder.^^ 
 
 § 2974. Murder — No Defense that Life Might Have Been Saved. 
 (a) If the jury believe and find from the evidence that the death 
 of X. resulted from the effects of a blow upon the head inflicted 
 
 27— People v. Cook. 39 Mich. 236; (118), 24 N. E. 765, affirming con- 
 
 Powles v. State, 58 Ala. 335. viction of manslaughter. 
 
 28— Ppoplo v. Cook, 39 Mich. 236. 31—2 Bishop Crim. Law, § 638- 
 
 29— Kplley v. State, 53 Ind. 311. 639; State v. Bantley, 44 Conn. 537; 
 
 30— Duncan v. People, 134 111. 110 Williams v. State, 2 Tex. App. 271.
 
 § 2975,] CRIMINAL— HOMICIDE. 1875 
 
 by defendant with a pistol in D. county, Missouri, in November, 
 
 , said death occurring- in said county and state in December, 
 
 , you cannot, in arriving at your verdict, take into considera- 
 tion the fact, if fact it be, that said X. 's life might have been saved, 
 after the infliction of said blow, by a proper medical or surgical 
 treatment.^^ 
 
 (b) If a man gives another a stroke or wound which it may be 
 is not of itself mortal or fatal, but might with good treatment 
 be cured, yet, if death was accelerated by the violence of the de- 
 fendant, he may be guilty.^^ 
 
 § 2975. Defense of Death From Other Causes. If the jury should 
 find from the evidence in this case that the accused died of the 
 effects of alcoholism, extreme heat, cr other causes than the alleged 
 violence of the defendant, as I have defined it to you, he cannot be 
 convicted of murder or manslaughter, but might be convicted of an 
 assault with intent to murder.-''* 
 
 § 2976. Turbulent Disposition of Deceased. If the jury believe 
 from the evidence that the deceased was of a rash, violent, and 
 turbulent disposition, and that the defendant had knowledge of such 
 disposition, then it is a circumstance for the consideration of the 
 jury in considering the reasonable cause for defendant's apprehen- 
 sion of great personal injury to himself.^^ 
 
 § 2977. Immaterial Whether Defendant Angry or Excited. Whether 
 or not the defendant was angry or excited at the time he killed the 
 decedent is immaterial, provided that you find that the killing was 
 unjustifiable, and with malice aforethought, as heretofore defined. ^"^ 
 
 §2978. Instruction to Jury to Consider Only Unlawful Homicide. 
 More precisely, gentlemen, you are concerned with that species of 
 homicide which the law defines to be unlawful or criminal, for no 
 possible aspect of the case presented upon the evidence makes it 
 necessary or profitable for you to consider that class of homicide 
 which the law regards as excusable or justifiable.^'' 
 
 32— State v. Lane, 158 Mo. 572, 59 33— Winter v. State, 123 Ala. 1, 26 
 
 S. W. 965 (967). So. 949 (950). 
 
 "No effort had been made to 34 — Winter v. State, supra, 
 
 show any maltreatment of the 35 — State v. Darling, 199 Mo. 168, 
 
 wound, or any misconduct on the 97 S. W. 592. 
 
 part of deceased with reference to 36 — State v. Hunter, 118 la. 686, 
 
 his wound, and the evidence of all 92 N. W. 872 (875). See also People 
 
 the physicians was to the effect v. Tuczlcewitz, 149 N. Y. 240, 43 N. 
 
 that the wound caused the death of E. 548 (553). 
 
 X. The court was right in telling 37— State v. Marx, 78 Conn. 18, 60 
 
 the jury in plain language that the Atl. 690 (692). 
 
 post mortem discovery that tre- The court said that "there is no 
 
 phining at the proper time would error in this. It does not appear 
 
 have saved the life of the deceased that any possible aspect of the 
 
 was no defense whatever to the case, as it was presented to the 
 
 charge. State, v. Landgraf, 95 Mo. jury upon the evidence, required 
 
 97, 8 S. "W. 237, 6 Am. St. 26; State a consideration of the law which 
 
 v. Strong, 153 Mo. 548, 55 S. W. 78; defines an excusable or justifiable 
 
 Com. v. Hackett, 2 Allen 136, 1 homicide. No claim of this kind 
 
 Hale, P. C. 428." was made upon the trial. Under
 
 1876 FORMS OF INSTRUCTIONS. [§ 2979. 
 
 § 2979. Essential Elements to Convict — Must be Proved Beyond 
 Reasonable Doubt, (a) It is incumbent upon the prosecution to es- 
 tablish all the material allegations of the information beyond a 
 reasonable doubt. The material allegations of the information as 
 here used are as follows: (1) That A. B. was killed by some criminal 
 agency; (2) that he was killed within this county at or about the 
 time stated; and (3) that the defendant had a criminal agency in 
 that killing. If these allegations are established in your minds be- 
 yond a reasonable doubt, then the prosecution has established beyond 
 a reasonable doubt all the material allegations of the information. 
 It is not necessary that other facts or circumstances surrounding 
 such testimony as has been given on behalf of the state should be 
 established by a preponderance of evidence, or may not be estab- 
 lished. It is not meant that it is incumbent upon the prosecution 
 to establish every fact surrounding such testimony, as given, beyond 
 a reasonable doubt. All that is incumbent on the prosecution is 
 that all the facts and circumstances taken together should establish 
 the defendant's guilt beyond a reasonable doubt. If you are satis- 
 fied beyond a reasonable doubt, from all the evidence in the case, of 
 the defendant's guilt, you should find him guilty.^* 
 
 (b) If, after careful consideration of all the evidence, you en- 
 tertain in your minds a reasonable doubt of the guilt of the de- 
 fendants of murder in the first or second degree, and of man- 
 slaughter, then you should acquit the defendants by a general verdict 
 of not guilty.^^ 
 
 (e) This is a very grievous offense. It is easily charged, and 
 the negative of it difficult to prove. The prosecution must satisfy 
 you, beyond a reasonable doubt, of the defendant's guilt. The evi- 
 dence should be plain and satisfactory in proportion as the crime is 
 detestable. You must acquit the defendant unless you are satisfied 
 that his guilt has been strictly and impartially proven — that it is 
 true beyond a reasonable doubt.*" 
 
 § 2980. Recommending a Person to Mercy, (a) Now, upon the 
 question of recommendation for mercy, that is a matter the law 
 leaves entirely with you, and I give you this in charge: You may 
 recommend, if, in your judgment, you think you are justified in so 
 doing. It is for you to say whether the facts — all the circumstances 
 in the case — warrant yon in making such a recommendation: but you 
 are not limited or circumscribed in any respect, and the law pre- 
 scribes no rule for the exercise of your discretion. It is a matter 
 entirely with you.*^ 
 
 these circumstances, instructions Pac. 705 (723), citing 1 Bish. New 
 
 upon the law defining excusable or Cr. Proc. 1076. 
 
 justifiable homicide could serve no 39 — McCoy v. State, 40 Fla. 494, 
 
 useful purpose, and the court prop- 24 So. 485 (487). 
 
 rrlv so stated to the jury. State v. 40 — People v. Graney, 91 Mich. 
 
 Smith. 49 Conn. 388." 646, 52 N. W. 66 (67). 
 
 38— Horn v. State, 12 Wyo. 80, 73 41— Hackett v. State, 108 Ga. 40, 
 
 33 S. E. 842 (843).
 
 § 2981.] CRIMINAL— HOMICIDE. 1877 
 
 (b) Now, gentlemen, as to the form of your verdict. If you be- 
 lieve that defendant struck this blow in self-defense, write a verdict 
 of not guilty. If you believe he struck this blow to keep J. H. fi-om 
 entering his house, write a verdict of not guilty. If you disbelieve 
 both of these defenses and believe that he struck out of a malicious 
 heart, write a verdict of guilty. If you believe he did not strike out 
 of a hard heart, write a verdict of manslaughter. With reference 
 to a general verdict of gTiilty, gentlemen, it is proper for me to say 
 to you, in special cases, that it is proper for the jury to recommend 
 a party to mercj'. That practically, gives them the right to fix the 
 penalty. No man can forfeit his life, under the laws of this country, 
 except by consent of a jury. To recommend a party to mercy is to 
 thereby save his life, and the law fixes the punishment at lifetime 
 imprisonment. Now, gentlemen, this is a solemn business for you. 
 I am going to put it where the law puts it — where the constitutional 
 law puts it — upon your shoulders. This is your country. The de- 
 fendant at the bar is your fellow citizen. The dead man was your 
 fellow citizen. Whatever your verdict be, gentlemen, write it upon 
 the back of this indictment, and sign your name as foreman. 
 
 § 2981. Furnishing Forms of Verdicts. You will be furmshed with 
 five forms of verdicts, as follows: One finding the defendant guilty 
 of murder in the first degree, and fixing the penalty of death; 
 another finding him guilty of murder in the first degree, and fixing 
 the penalty of imprisonment in the penitentiaiy during life; another 
 finding him guilty of murder in the second degree; another finding 
 him guilty of manslaughter; another finding him not guilty. From 
 these you will select the one you desire to use, and sign and return 
 the same.'*^ 
 
 § 2982. Homicide — General Summary. The duty of counsel and 
 the court has now been performed. The counsel engaged in this 
 case have been untiring in their efforts to bring before you all pos- 
 sible evidence that may aid you in arriving at the truth. They have 
 ably assisted you in apphang the evidence to the facts in conten- 
 tion. The court has endeavored to rightly advise you in the law, 
 and now there confronts you the final and important duty of pro- 
 
 In holding this instruction cor- this court. In the case of Inman 
 
 rect the court commented as fol- v. State, 72 Ga. 269, where the 
 
 lows: judge, in the trial of a capital 
 
 "So far as I am concerned, if it case, charged the jury that: 'If 
 were an original proposition, I you find him guilty, and the case 
 should not hesitate to pronounce be one in which you think you are 
 this charge error, and wholly un- justified in doing so (the facts and 
 warranted by the law. The qual- circumstances justify you in doing 
 ity of mercy is free. "Whether it sn). you can say in ynur verdict 
 shall be exercised or not in a cap- that 'we recommend that he be 
 ital case is for the jury alone to imnrisoned in the penitentiary for 
 determine, and the judge may not life:' and, upon that recnmmenda- 
 lawfully abridge this right by in- tinn. it would be my duty to in- 
 structions which, even in the slight- flict that puni<5hment upon him.' " 
 est degree, qualify its exercise. But 42— Rhea v. State, 63 Neb. 461, 88 
 I am bound by previous rulings of N. W. 789 (799).
 
 1878 FORMS OF INSTRUCTIONS. [§ 2983. 
 
 ncuucing upon the guilt or innocence of the defendant. I submit 
 this case to you with the eonfidenee that you will faithfully discharge 
 the grave duty resting upon you without, upon the one hand, being 
 moved by any undue demand for conviction on the part of counsel 
 for the state, or being swayed from its right performance by any 
 undue appeal to your sympathies. You will bear in mind that neither 
 the life nor the liberty of the accused may be trifled away, and 
 neither taken by careless or inconsiderate judgment. But if, after 
 a careful consideration of the law and the evidence in the case, you 
 are satisfied beyond a reasonable doubt that the defendant is guilty, 
 you should return your verdict accordingly. Duty demands it and 
 the law requires it. You must be just to the defendant and equally 
 just to the state. As manly, upright men, charged with the respon- 
 sible duty of assisting the court in the administration of justice, 
 you will put aside all sympathy and sentiment, all consideration of 
 public approval or disappi'oval, and look steadfastly and alone to 
 the law and evidence in the case, and return into court such a verdict 
 as is warranted thereby.*^ 
 
 § 2983. Murder in First or Second Degree — Series, (a) If the 
 jury believe from the evidence, be.yond a reasonable doubt, that the 
 defendant, A. A., in Howard county, Missouri, on or about the 16th 
 day of December, 1899, with a certain pistol, willfully, deliberately, 
 premeditatedly and of his malice aforethought, shot and killed H. 
 H., then the jury will find the defendant guilty of murder in the 
 first degree, and will so state in their vei-diet. 
 
 (b) If the jury believe from the evidence, beyond a reasonable 
 doubt, that th'e defendant, A. A., in Howard county, Missouri, on 
 or about the 16th day of December, 1899, with a certain pistol, will- 
 fully, premeditatedly, and of his malice aforethought, but without 
 deliberation, shot and killed H. H., then the jury will find the de- 
 fendant guilty of murder in the second degree, and assess his punish- 
 ment at imprisonment in the penitentiary for a term of not less than 
 ten years. 
 
 (c) The court instructs the jury that if they believe from the 
 evidence, beyond a reasonable doubt, that the defendant intentionally 
 killed H. H., by shooting him with a loaded pistol, in a vital jiart 
 of the body, then the law presumes such killing was murder in the 
 
 43 — Hinshaw v. State, 147 Ind. impaired or infringed by the jury 
 
 334, 47 N. E. 157 (173). strictly following tlie instruction in 
 
 "An instruction involving the the consideration of the case? The 
 
 same sort of generalization was question admits of no other than a 
 
 upheld by this court in Lynch v. negative answer, if we confine our- 
 
 Bates, 139 Ind. 206-08, 38 N. E. selves to the language of the in- 
 
 806; and in Stout v. State, 90 Ind. struction. We need scarcely say 
 
 1-13. Indeed, the only proper test that we are bound to presume, in 
 
 we know of, by which to determine the absence of a contrary showing 
 
 whether the instruction amounts in the record, that the jury would 
 
 to error prejudicial to the rights of and did strictly obey and follow 
 
 the appellant, is the answer to the the instruction. Therefore there 
 
 question: Would the appellant's was no available error in giving 
 
 legal rights in any way be invaded, it."
 
 § 2983.] CRIMINAI^HOMICIDE. 1879 
 
 second degree, in the absence of proof to the contrary, and it de- 
 volves upon the defendant to adduce evidence to meet or repel that 
 presumption, unless it is met or overcome by evidence introduced by 
 the state. 
 
 (d) The court instnicts the juiy that ''willfully" means in- 
 tentionally, not accidentally, and, in the absence of qualifying facts 
 and circumstances, the law presumes that a person intends the 
 ordinary and probable results of his own acts and conduct. 
 
 (e) The court instructs the jury that "malice," as used in the 
 indictment and foregoing instructions, does not mean mere spite 
 and ill will or dislike, as it is ordinarily understood, but means that 
 condition of the mind which prompts one person to take the life of 
 another without just cause or provocation, and it signifies a state 
 of disposition which shows a heart regardless of social duty and 
 fatally bent on mischief. 
 
 (f) The court instructs the jury that "malice aforethought" 
 means that the act was done with malice and premeditation. "Pre- 
 meditation" means thought of beforehand for any length of time, 
 however short. 
 
 (g) The court instructs the jury that "deliberately" means in 
 a cool state of the blood. It does not mean brooded over or re- 
 flected upon for a week, a day or an hour; but it means an intent to 
 kill, executed by defendant in a cool state of the blood, in further- 
 ance of a formed design to gratify a feeling of revenge or to ac- 
 complish some other unlawful purpose, and not done under the 
 influence of a violent passion suddenly aroused by some provoca- 
 tion. 
 
 (h) If the jury have a reasonable doubt as to defendant's guilt, 
 they should acquit; but a doubt, to authorize an acquittal on that 
 ground, ought to be a substantial doubt touching defendant's guilt, 
 and not a mere possibility of his innocence. 
 
 (i) The jury are the sole judges of the weight of the evidence 
 and credibility of the witnesses. In determining what weight they 
 will give to the testimony of any Avitness, the jury should take into 
 consideration the interest of the witness in the event of the case as 
 a party or otherwise ; the manner and conduct of the witness on 
 the stand; any feeling or motive which may have influenced the 
 witness in testifying; the probability or improbability of the testi- 
 mony of such witness in view of all the evidence, facts and circum- 
 stances surrounding the case. 
 
 (j) If the jury believe that any witness has willfully sworn 
 falsely to any material facts in the case, you are at liberty, in 
 the exercise of their judgment, to disregard all or anj' pai't of such 
 witness's testimony. 
 
 (k) The court instructs the jury that the defendant is a compe- 
 tent witness in his own behalf, but, in determining the weight and 
 credibility you will give to his testimony, the jury may take into
 
 1880 FORMS OF INSTRUCTIONS. [§ 2983. 
 
 consideration that he is the defendant, testifying in his own behalf, 
 and the interest he may have in the result of this tiial. 
 
 (1) The court instructs the jury that, before you can acquit the 
 defendant on the ground of self-defense, you must find and believe 
 from the evidence that the defendant had reasonable cause to ap- 
 prehend, and did apprehend, that H. H., the deceased, was about to 
 inflict upon him some great bodily harm or take his life, and de- 
 fendant believed, and had reasonable cause to believe, that such 
 danger was imminent and impending; and, unless the jury so believe, 
 you cannot acquit the defendant on the ground of self-defense. 
 
 (m) He who willfully (that is, intentionally) uses upon another, 
 at some vital point, a deadly weapon, such as a pistol, must, in the 
 absence of qualifying facts, be presumed to know that the result is 
 likely to be death, and, knowing this, must be presumed to intend 
 death, which is the probable consequence of such an act ; and, if 
 such deadly weapon is used without just cause or provocation, he 
 must be presumed to do it wickedly and from a bad heart. If, 
 therefore, you believe and find from the evidence in this cause that 
 the defendant killed H. H. by shooting him in a vital part with a 
 pistol, with a manifest design to use such pistol upon him, and with 
 sufficient time to deliberate and fully form the conscious purpose to 
 kill, then such killing is murder in the first degree. And while it 
 devolves upon the state to prove the willfulness, deliberation, pre- 
 meditation and malice aforethought, all of which are necessary to 
 constitute murder in the first degree, yet these need not be proven 
 by direct evidence, and may be deduced from all the facts and 
 circumstances attending the killing; and, if you can satisfactorily 
 and reasonably infer their existence from all the evidence, you will 
 Ibe waiTanted in finding the defendant guilty of murder in the first 
 degree. 
 
 (n) The court instructs the juiy that the previous good character 
 of the defendant, if proved to your reasonable satisfaction, is a 
 fact which the jury should consider in determining his guilt or 
 innocence, for the law presumes that a man who«e reputation is good 
 is less likely to commit an offense than one whose reputation is bad; 
 but if all the evidence proves the defendant to he. guilty, to your 
 satisfaction, beyond a reasonable doubt, then his previous reputation 
 cannot palliate, mitigate, justify or excuse his offense- 
 
 (o) The jury are instructed that the law presume? the defendant 
 innocent in this case, and not guilty as charged in the indictment. 
 And you are further instructed that the legal presumption of in- 
 nocence is not a mere form, to be disregarded by the jury at 
 pleasure, but it is an essential, substantial part of the law binding 
 upon the juiy in this ease; and, unless the state satisfies ycu of 
 defendant's guilt beyond a reasonable doubt, it is your duty to 
 act upon this presumption of innocence, and render a verdict ol not 
 guilty. 
 
 (p) The jury are instructed that, in law, a person accused of
 
 §2983.] CRIMINAL— HOMICIDE. 1881 
 
 crime is presumed to be innocent. This presumption entitles him to 
 an acquittal unless it is overcome by evidence which establishes his 
 guilt beyond a reasonable doubt. A juror is understood to entertain 
 a reasonable doubt when he has not an abiding conviction, to a 
 moral certainty, that the party accused is guilty as charged. You 
 should acquit the defendant if you entertain a reasonable doubt 
 as to his guilt, and you should also acquit if it is as reasonable, con- 
 sidering all the facts and circumstances proven, to conclude that he 
 is innocent as to conclude that he is guilty, or if all the facts and 
 circumstances can be reasonably reconciled with any theory other 
 than that of his guilt. 
 
 (q) The juiy are instracted that the indictment in this case is 
 of itself a mere accusation or charge against the defendant, and is 
 not of itself any evidence of the defendant's guilt, and no juror 
 should permit himself to be to any extent influenced against the 
 defendant because or on account of the indictment in this case. And 
 you are further instructed that in this ease the law does not require 
 the defendant to prove his innocence, but the law requires the 
 prosecution to prove that the defendant is guilty in manner and form 
 as charged in the indictment, beyond all reasonable doubt; and, 
 unless the state has done this, the law makes it your duty to find 
 the defendant not guilty. 
 
 (r) The jury are instructed that it is not sufficient in criminal 
 cases, to justify a verdict of guilty, that there may be very strong 
 probabilities or strong suspicions of guilt, nor, as in civil cases, a 
 preponderance of the evidence in favor of the charge; but the jury 
 must be satisfied, from all the evidence and circumstances in the 
 case, beyond a reasonable doubt, before you can convict. If not 
 so satisfied, you must acquit. 
 
 (s) The court instructs the jury that evidence of previous good 
 character is competent evidence in favor of a party accused of crime, 
 as tending to show he would not be likely to commit the offense al- 
 leged against him. And in this case, if the jury believe fi'om the 
 evidence that prior to the commission of the alleged crime the de- 
 fendant had borne a good character for peace and order among his 
 acquaintances, and in the neighborhood where he lived, this is a 
 fact proper to be considered by the jurj', with all the other evidence 
 in the ease; and if, after a careful consideration of all the evidence 
 in the ease, including that bearing upon defendant's character, the 
 jury entertain a reasonable doubt of the defendant's guilt, then it 
 is your sworn duty to acquit him. 
 
 (t) The court instructs the juiy that a man may kill another, 
 and not be guilty of any crime against the law, A killing is justi- 
 fiable when committed in the lawful defense of one's self, or when 
 committed by one who has reasonable cause to apprehend a design 
 on the part of another to commit a felony upon him, or to do him 
 some great personal injury, and there is reasonable cause to appre- 
 hend immediate danger of such design being accomplished. And in
 
 1882 FORMS OF INSTRUCTIONS. [§2983. 
 
 this ease, although you shall believe and find from the evidence that 
 the defendant, and in the manner and by the means named in the 
 indictment, shot and killed H. H., yet if you shall also find and 
 believe that in so doing he, the defendant, was acting in tlie neces- 
 sary self-defense of his person, either from death or from great 
 personal injury, you should find him not guilty of any offense what- 
 ever. You will observe that, to acquit on the ground of self-defense, 
 it must only appear that a party was apprehensive, in consequence 
 of the acts of the deceased, that injury of a bodily nature to himself 
 was impending and about to fall on him, and that the taking of the 
 life of the deceased was, under the eireumstances, apparently or 
 actually necessary to prevent such injury. If, therefore, you shall 
 believe from the evidence that, from the conduct, actions, manner 
 and declarations of the deceased, H. H., at the time he was shot by 
 the defendant, A. A., be, the defendant, had reasonable cause to ap- 
 prehend, and did apprehend, that the deceased, H. H., was about to 
 do him some great bodily harm or to take his life, and that he, 
 the defendant, had reasonable cause to apprehend, and did appre- 
 hend, that there was danger of the deceased executing his purpose 
 and accomplishing his design, and that defendant shot the deceased 
 for the purpose of preventing such execution and such accomplish- 
 ment, the verdict should be that the defendant is not guilty, because 
 such killing, under such circumstances, is justifiable in the law, 
 because done in self-defense. To acquit on the ground of self-de- 
 fense, it is not necessary that the danger of death or injury to which 
 the defendant apprehended himself to be exposed was real or actual, 
 or that it was impending and about to fall on him. It is only neces- 
 sary that it should appear to you that the defendant so apprehended 
 himself to be exposed to such danger, and that his apprehension 
 was reasonable, considering all the circumstances of the ease as 
 proven, and the situation of the parties at the time, and that the 
 defendant acted in good faith upon the situation as it appeared to 
 him, and under a real apprehension of danger to himself. 
 
 (u) The jury are instructed that if you believe from the evidence 
 that the defendant, A. A., at the time he shot H. H., had reasonable 
 cause to apprehend from him, and did apprehend, immediate danger 
 of being killed or receiving some serious injury to his person, and 
 to prevent such danger he shot the said H. H., then you must acquit 
 the defendant on the ground of self-defense. And if the defendant 
 acted in a moment of apparently impending peril from an assault 
 by H. H., it was not for him to nicely gauge the proper quantity of 
 force necessary to repel the assault, but he had the right to act upon 
 appearances, and use such force as he had reasonable cause at the 
 time to believe was necessary. 
 
 (v) The court instructs you that a person about to be attacked, 
 or who believes he is about to be attacked, and has reasonable cause 
 for so believing, is not bound to wait until his adversary gets close 
 enough to him to strike him with some deadly weapon, but may act
 
 § 2984.] CRIMINAL— HOMICIDE. 1883 
 
 on appearances, and take steps to prevent such striking, even unto 
 the taking' of life. 
 
 (w) The court instructs you that, although you may find and 
 believe from the evidence that the defendant went to the house of 
 E. R. and voluntarily entered into a difficulty with the deceased for 
 some unlawful purpose, yet if you find and believe fi'om the evidence 
 that he abandoned the difficulty and left the place in good faith, and 
 started uptown, and the deceased followed him, and acted in such a 
 manner as to give the defendant good cause to believe, and he did 
 'believe, that the deceased was about to do him some great bodily 
 harm, he had the right to shoot and kill the deceased, if necessary 
 to protect his person from such apprehended danger, and you should 
 find the defendant not guilty. 
 
 (x) The court instructs you that although you may find and 
 believe from the evidence that the defendant was in the wrong in 
 the first instance in going to the house of E. R. and quarreling with 
 the deceased, yet if you find and believe from the evidence that he 
 in good faith withdrew from the difficulty, and started uptown, 
 intending to abandon the quarrel, and the said H. H. followed him, 
 then, if the killing of the said H. H. became necessai-y to save him- 
 self from death or great bodily haim, he will be justified, and you 
 should find him not guilty. 
 
 (y) The court instructs you that, to entitle a defendant charged 
 with mui'der to an acquittal on the ground of self-defense, he need 
 not establish his defense by a jDreponderance of evidence. It is 
 sufficient if the evidence is such as to create in the minds of the 
 jury a reasonable doubt of his guilt. 
 
 (z) The jury are instructed th^t the defendant is a competent 
 witness in his own behalf, and they should not disregard his evidence 
 because he is the defendant and stands charged with a crime, but 
 they should fairly and impartially consider and weigh his testimony 
 by the same rule as that of other witnesses in the ease.'** 
 
 § 2984. Homicide — Various Elements — Series, (a) If you believe, 
 from the evidence, beyond a reasonable doubt, that at any time prior 
 to the filing of the indictment herein, which was on the 1st day of 
 March, 1901, the defendant, M., in Clay county, Missouri, willfully, 
 deliberately, premeditatedly and with malice aforethought, shot and 
 wounded C, at the county of Clay aforesaid, who died in consequence 
 of such shooting and wounding, then it will be your duty to find the 
 defendant guilty of murder in the first degree. 
 
 (b) If you believe, from the evidence, beyond a reasonable doubt, 
 that the defendant, in Clay county, Missouri, at any time prior to 
 the filing of the indictment herein, willfully, premeditatedly and of 
 
 44_State v. Ashcraft, 170 Mo. party, they put this case very fair- 
 
 409, 70 S. W. 898 (903). ly to the jury, and if any error was 
 
 Of this series the court said: committed in giving them the error 
 
 "As to the instructions given by was iu defendant's favor." 
 the court at the instance of either
 
 1884 FORMS OF INSTRUCTIONS. [§ 2984. 
 
 his malice aforethought, but not deliberately, shot and wounded C, 
 and that within a year and a day thereafter, and before the filing of 
 the indictment aforesaid, the said C, at the county of Clay aforesaid, 
 died in consequence of such shooting and wounding, then it will be 
 your duty to find the defendant guilty of murder in the second degree. 
 
 (c) As used in these instructions, the term "willfully" means 
 that the act must be done intentionally, and not accidentally. In the 
 absence of qualifying facts or circumstances, the law presumes that 
 a person intends the ordinary and jDrobable results of his act and 
 conduct. "Deliberately" means done in a cool state of the blood. It 
 does not require that the act should be brooded over or reflected 
 upon for a week, a day, or an hour, but it means an intent to kill, 
 executed by defendant in a cold state of blood, in the furtherance of 
 a formed design, to gratify a feeling of revenge, or to accomplish 
 some other unlawful purpose, and not under the influence of a violent 
 passion suddenly aroused by a lawful or some just cause of provoca- 
 tion. "Premeditatedly" means thought of beforehand for any length 
 of time, however short. "Malice" does not mean spite, ill will, or 
 dislike, as it is ordinarily understood, but it means that condition of 
 the mind which prompts one person to take the life of another with- 
 out just cause or provocation, and it signifies a state of disposition 
 which shows a heart regardless of social duty, and fatally bent on 
 mischief. "Malice aforethought" means malice and premeditation. 
 
 (d) The jury are 'instructed that while the law requires that the 
 killing, in order to constitute murder in the first degree, shall be will- 
 ful, premeditated and deliberate, still it does not require that the will- 
 ful intent, pi-emeditation or deliberation shall exist for any prescribed 
 length of time before the crime is committed ; it is sufficient that • 
 there was a determination and design to kill distinctly formed in the 
 mind at any moment before or at the time the shot was fired; and 
 in this case, if the jury believe from the evidence, beyond a reason- 
 able doubt, that the defendant shot and killed the deceased, as charged, 
 and that at the time or before the shot was fired the defendant had 
 foi-med in his mind a willful, premeditated and deliberate design 
 or purpose to take the life of the deceased, and that the shot was 
 fired in furtherance of that design or purpose, and without any 
 justifiable cause or legal excuse therefor, as explained in these in- 
 structions, then the jury should find the defendant guilty of murder 
 in the first degree. 
 
 (e) You are instructed that he who willfully (that is, intention- 
 ally) uses upon another, at some vital part, a deadly weapon, must, 
 in the absence of qualifying facts, be presumed to know that the 
 effect is likely to produce death, and, knowing this, must be presumed 
 to intend death, which is the probable consequence of such an act; 
 and, if such deadly weapon is used without just cause or provocation, 
 he must be presumed to do it wickedly and from a bad heart. 
 
 (f) Upon the question of self-defense, the court instructs you that 
 if, at the time defendant shot C, he (the defendant) had reasonable
 
 § 2984.] CRIMINAL— HOMICIDE. 1885 
 
 cause to apprehend a design on the part of C. to take his life or 
 ■to do him some great personal injury, and that there was reasonable 
 cause for him to apprehend immediate danger of such design being 
 accomplished, and that, to avert such apprehended danger, he shot, 
 and that at the time he shot he had reasonable cause to believe and 
 did believe that it was necessary for him to shoot and kill to protect 
 himself from such apjDrehended danger, you will acquit on the ground 
 of self-defense. It is not necessary that the danger should have 
 been impending and about to fall. All that is necessaiy is that 
 defendant should have so believed. He must have had reasonable 
 cause to so believe. Whether or not he had reasonable cause is for 
 you to determine, under all the facts and circumstances given in 
 evidence. If you shall believe from the evidence that defendant did 
 not have reasonable cause to so believe, you cannot acquit him on 
 the ground of self-defense, although you may believe that the defend- 
 ant really thought he was in danger. 
 
 (g) If the jury find from the evidence that the defendant killed 
 C. without deliberation, as defined in these instructions, but under a 
 violent passion, suddenly aroused by abusive words alone spoken by 
 said C. to him, and not under the circumstances as would make the 
 killing justifiable upon the ground of self-defense, as defined in other 
 instructions, then such killing would not be murder in the first degree, 
 (because done in the heat of passion aroused by just cause or provoca- 
 tion; but in such ease the defendant would, if the killing w^as done 
 intentionally and of malice aforethought, be guilty of murder in the 
 second degree. 
 
 (h) Even though you may believe that said C. was assaulting or 
 in the act of assaulting the defendant, and using offensive words or 
 threats towards him, and that defendant, under the influence of vio- 
 lent passion suddenly aroused by words, acts and conduct of said C, 
 drew his revolver, and without premeditation and malice, as defined 
 in these instructions, shot deceased, from the effects of which he died 
 within a year and a day thereafter, yet if the alleged shooting was 
 not justified upon the ground of self-defense, as explained in other 
 instructions, such fact, if any, Avill not warrant you in acquitting 
 the defendant altogether, but in that event he should be convicted of 
 manslaughter in the fourth degree. 
 
 (i) Even though you may find from the evidence that the de- 
 ceased, prior to the shooting, made threats against the defendant, yet 
 if you believe from the evidence that C, at the time of the shooting, 
 was not attempting to cany the threats into execution, and was 
 making no hostile demonstration towards the defendant, then such 
 prior threats will not justify, excuse or palliate the shooting of de- 
 ceased by defendant. 
 
 (j) Before the defendant can be convicted of any offense under the 
 indictment, the juiy must believe from the evidence that the defend- 
 ant is guilty beyond a reasonable doubt. A reasonable doubt, how- 
 ever, must be a substantial doubt, arising out of a due consideration
 
 1886 FORMS OF INSTRUCTIONS. [§ 2984. 
 
 of all the testimony, and not a mere possibility of defendant's inno- 
 cence. 
 
 (k) The defendant is a competent witness in this case, and you 
 should consider his testimony in arriving at your verdict, but, in 
 determining what weight and credibility you will give to his testimony 
 in making up your verdict, you may take into consideration, as affect- 
 ing his credibility, his interest in the result of the case, and that he is 
 the accused party on trial, testifying in his own behalf. 
 
 (1) The jury are the sole judges of the weight of the evidence and 
 the credibility of the witnesses. If the jury believe that any witness 
 has willfully sworn falsely to any material matter in the case, they 
 are at liberty to disregard all the testimony of such witness. 
 
 (m) The jury are instructed that the indictment in this case is of 
 itself a mere formal accusation or charge against the defendant, and 
 is not of itself any evidence of the guilt of defendant, and no juror 
 should permit himself to be to any extent influenced against the de- 
 fendant because or on account of the indictment in this case. 
 
 (n) The court instructs the jury that the defendant is presumed 
 to be innocent, and this presumption attends and protects him at 
 every stage of the case until it is overcome by testimony which proves 
 his guilt beyond a reasonable doubt; and it is not enough, in a crim- 
 inal case, to justify a verdict of guilty, that there may be strong 
 suspicion or even strong probability of the guilt of defendant, but 
 the law requires proof so clear and satisfactory as to leave no reason- 
 able doubt of defendant's guilt. 
 
 (o) Upon the law of self-defense, the court instructs the jury that 
 when a person has reasonable grounds to apprehend that some one is 
 about to do him a great bodily harm, and there is reasonable ground 
 for believing the danger imminent that such design will be accom- 
 plished, he may safely act upon appearances, and even kill the assail- 
 ant, if that be necessary, to avoid the apprehended danger; and the 
 killing will be justifiable, although it may afterwards turn out that 
 the appearances were false, and that there was in fact neither design 
 to do him serious injury, nor danger that it would be done. 
 
 (p) Upon the law of self-defense, the court further instructs the 
 jury that, in passing upon the question whether the defendant had 
 reasonable grounds for believing that there was imminent danger that 
 the deceased was about to kill him or do him some great bodily harm, 
 the juiy should detennine the question from the standpoint of the 
 defendant at the time he acted, and under his surroundings at the 
 particular instant of time; and the jury may also, in passing upon 
 that question, take into consideration the threats, if any, made by 
 deceased against the defendant. 
 
 (q) The court instructs the jury that, under the law of this state, 
 a person who has not himself wrongfully provoked the assault is 
 under no oblin'ation to retreat, but may, when wrongfully assailed, 
 stand his ground, and if at the lime it reasonably appears to be neces- 
 sary to protect himself from death or great personal injury, may
 
 § 2984.] CRIMINAL—HOMICIDE. 1887 
 
 lawfully kill the assailant. If C. made an assault and attack upon 
 the defendant, and the defendant had reasonable grounds to believe 
 that he was in danger of being killed, or of receiving great bodily 
 harm from said C, he had a right to take such steps as to him, under 
 the circumstances, reasonably seemed necessary, in order to save his 
 own life or to save himself from great bodily harm, even to the taking 
 of the life of the said C. 
 
 (r) Upon the law of self-defense, the jury are instructed that if 
 the defendant, at the time he shot the deceased, had reasonable cause 
 to apprehend, and did apprehend, that the deceased was about either 
 to kill him or to do him some great bodily harm, and that the danger 
 of his doing either was imminent, and that the defendant shot to 
 avert such apprehended danger, then such shooting was justifiable, 
 and you should acquit on the ground of self-defense. And in this 
 connection, the juiy are instructed that it is not necessarj^, in order 
 to acquit on the ground of self-defense, that the danger should, as a 
 matter of fact, have been real or actually impending; all that is 
 necessary is that the defendant had reasonable cause to believe that 
 the danger was real and about to fall upon him; and if the defendant 
 acted in a moment of apparently impending danger from an assault 
 by the deceased, it was not necessary for him to nicely measure the 
 proper quantity of force necessary to repel the assault. And the 
 question for you to detennine is not what you think it was necessary 
 for the defendant to have done or not done at the time he shot de- 
 ceased, but the question is what the defendant might have reasonably 
 believed was necessary for him to do under all the circumstances. 
 
 (s) The court instructs the juiy that if they believe from the evi- 
 dence that the deceased prior to the shooting, made threats against 
 the defendant, they should take such threats into consideration in 
 determining who was the aggressor at the time of the shooting, and 
 whether, in connection with the conduct of the deceased at the time 
 of the shooting, they afforded the defendant a reasonable apprehen- 
 sion of danger. Such prior threats, however, will not justify, palliate 
 or excuse the shooting of the deceased by the defendant unless j-ou 
 believe from the evidence that C, at the time of the shooting, was 
 attempting to carry the threats into execution by assaulting or at- 
 tempting to assault the defendant, or by making some hostile or 
 apparently hostile demonstration towards the defendant. 
 
 (t) The state has introduced in evidence a statement claimed to 
 have been made by C. at a time when he was suffering from the 
 wound inflicted by the defendant, and at a time when the said C. had 
 given up all hope of living, and was then under the belief that death 
 was imminent and near, and if you believe from the evidence that C. 
 made said statement; that at the time of making the same his mind 
 was clear, and that he knew at the time what he was doing, and 
 with such knowledge made it, and that at the time he made it he was 
 suffering from a fatal wound inflicted by defendant upon him, and 
 which wound afterwards caused his death; and that at the time of
 
 1888 FORMS OP INSTRUCTIONS. [§ 2985. 
 
 making such statement he had given up all hopes of life, and then 
 believed that death was impending and near, — then it is your duty 
 to consider it as the dying declaration of said C, and you are to give 
 such dying declaration such weight as you may think it justly en- 
 titled to upon a consideration of it along with all other facts and cir- 
 cumstances disclosed by the evidence in the case. You should consider, 
 however, that such statement was not made in the presense of de- 
 fendant, that the declarant was not subject to the tests of cross- 
 examination, that the jury had no opportunity to observe the manner 
 of the declarant, and that he was not subject to prosecution for 
 perjury if said statement, or any part of it, was untrue. 
 
 (u) The jury are the sole judges of the weight of the evidence 
 and of the credibility of the witnesses; and, if the jury believe that 
 any witness has sworn falsely as to any material fact in the case, 
 the juiy may, in their discretion, reject all or any part of the testi- 
 m.ony of such witness.*^ 
 
 MURDER IN FIRST DEGREE. 
 
 § 2985. Murder in the First Degree — What Constitutes, (a) If 
 
 you shall believe from the evidence, beyond a reasonable doubt, that 
 the defendant, in the month of May, 1904, at V. county, Mo., with a 
 pistol, shot and killed W., and that such shooting and killing were 
 done willfully, deliberately, premeditatedly, and of malice afore- 
 thought, you should find the defendant guilty of murder in the first 
 degree. Unless you do so believe, you should not find him guilty of 
 murder in the first degree.*^ 
 
 (b) The court instructs the juiy that if you believe from the evi- 
 dence in this case that the defendant, at the county of St. F., state 
 of Missouri, at any time prior to the 16th day of November, 1903, 
 willfully, deliberately, premeditatedly, and with malice aforethought, 
 shot with a pistol and by such shooting wounded h., and that within 
 a year and a day thereafter and before the 16th day of November, 
 1903, said L., at the county of St. F. aforesaid, died in consequence 
 of such shooting and wounding, you will find the defendant guilty of 
 murder in the first degree.*'^ 
 
 (c) The court instructs the jury that if they believe from all the 
 evidence, beyond a reasonable doubt, that the accused. A., before the 
 finding of the indictment in this case, did, in Simpson county, Ken- 
 tucky, unlawfully, willfully and maliciously, feloniously and with 
 malice aforethought, kill H. by shooting and wounding the said H. 
 upon his body and person with a gun, a deadly weapon, loaded with 
 a leaden ball or balls, or other hard substance, and of the effect of 
 
 4.5 — Above series of instructions S. W. 674. For an almost similar 
 
 approved in State v. McMullin, 170 instruction see State v. May, 172 
 
 Mo. 608, 71 S. W. 221 (224, 5, 6). Mo. 630, 72 S. W. 918 (920). 
 
 For another series see State v. 47 — State v. McCarver, 194 Mo. 
 
 Bond, 191 Mo. BS.'i, 90 S. W. 830 (831). 717, 92 S. W. 684. 
 
 46— State v. Todd, 194 Mo. 377, 92
 
 § 2985.] MURDER IN FIRST DEGREE. 1889 
 
 which shooting and wounding the said H. did die within one year 
 thereafter, they shall find the accused guilty, and fix his punishment 
 at death, or confinement in the state penitentiary for life, in the dis- 
 cretion of the juiy.''* 
 
 (d) If the jury believe and find from the evidence in this cause 
 that the defendant. P., in the county of S., and state of Mo., on or 
 about the 26th day of November, 1901, did feloniously, willfully, de- 
 liberately, premeditatedly and of his malice aforethought make an 
 assault upon W. with a certain loaded gun, and then and there with 
 said gun feloniously, willfully, deliberately, premeditatedly and of 
 his malice aforethought did kill said W. by shooting him upon the 
 head and body, and thereby inflicting upon him a moi'tal wound, of 
 which said wound he immediately died, at said county of S., during 
 said month of November, 1901, and was thus killed by the shooting 
 aforesaid, as charged in the information, then you will find the 
 defendant guilty of murder in the first degree, and so state in your 
 verdict.*^ 
 
 (e) To justify you in finding a verdict of guilty of murder in the 
 first degree, jhju shall be satisfied from the evidence, beyond a rea^- 
 sonable doubt, of the following material facts, among others: Fii'st, 
 that L. G. is dead; second, that the prisoner at the bar caused the 
 death of said L. G. at the time and place alleged in the indictment, 
 and in some way and manner, and by some means, instruments, and 
 deadly weapons unknown, unlawfully, and fi'om a premeditated de- 
 sign to effect the death of her, the said L. G.^" 
 
 (f ) In order to convict the defendant of murder in the first degree, 
 you must believe and find from the evidence that defendant not only 
 struck the deceased, A. K., with a deadly weapon upon a vital part, 
 intentionally, but that he struck the blow intending to kill him. In 
 this connection, however, you are instructed that, in the absence of 
 qualifying facts and circumstances, a person is presumed to intend 
 the natural, ordinarj^, and probable results of his acts. "Wherefore, 
 if you believe from the evidence that defendant intentionally struck 
 deceased, A. K., on the head, a vital part, with a deadly weapon, 
 from which death resulted, you will find that he intended to kill. 
 And you will, in that event, also find that malice was the concomi- 
 tant of the act.^^ 
 
 (g) In the case at bar, before the prisoner can be convicted of 
 murder in the first degree, the jury must be satisfied beyond a rea- 
 
 48 — Alderson v. Commonwealth, curing an abortion. The word 
 
 25 Ky. Law 32, 74 S. W. 679 (681) "satisfied" might be found fault 
 
 49 — State v. Privitt, 175 Mo. 207, with as imposing too heavy a bur- 
 
 75 S. W. 457 (459). den of proof on the state, and 
 
 50 — Part of a charge which was there is no express statement in 
 
 held "entirely correct" as applied this paragraph that the killing 
 
 to second count of indictment must have been done "with malice 
 
 charging murder by means un- aforethought." 
 
 known. Gantling v. State, 40 Fla. 51 — Approved as one of a series 
 
 237. 23 So. 857 (S59), affirming con- in State v. Kinder, 184 Mo. 276, 83 
 
 viction of murder in first degree for S. W. 964 (966). 
 killing a woman at or after pro- 
 
 119
 
 1890 FORMS OP INSTRUCTIONS. [§ 2986. 
 
 sonable doubt from the evidence that the prisoner killed the de- 
 ceased in pursuance o^ a fixed purpose, with premeditation, formed 
 in a cool state of the blood.^- 
 
 §2986. Murder— First Degree — What Constitutes — Duration of 
 Deliberation, (a) To constitute murder in the first degree, there 
 must have been an unlawful killing done, purposely and with de- 
 liberate and premeditated malice. If the person has actually formed 
 the puipose maliciously to kill, and had deliberated and premedi- 
 tated upon it before he performs the act, and then performs it, he is 
 guilty of murder in the first degree, however short the time may 
 have been between the purpose and its execution. It is not time 
 that constitutes the distinctive difference between murder in the first 
 degree and murder in the second degTee. An unlawful killing with 
 malice, deliberation, and premeditation constitutes the crime of mur- 
 der in the first degree. It matters not how short the time, if the 
 party has turned it over in his mind and weighed and deliberated 
 upon it.^^ 
 
 (b) If you find beyond a reasonable doubt, going outside of the 
 matter of self-defense, that J. premeditatedly, deliberately, and will- 
 fully prepared for the use of the scissors blade, and used it in pur- 
 suance of that design, the degree of his criminality is murder in 
 the first degree.^'* 
 
 (c) The court charges the jury that if they find from the evi- 
 dence in this ease, beyond all reasonable doubt that the defendant 
 in "W. county, Ala., and before the finding of this indictment, pur- 
 posed (purposely) killed the deceased M., after reflection, with a 
 wickedness or depravity of heart towards said deceased, and the 
 killing was determined on beforehand, even a moment before the 
 fatal shooting was done, then the defendant is guilty of murder 
 in the first degree. 
 
 (d) The court charges the juiy that if they believe beyond a 
 
 52— State v. Hunt, 34 N. C. 6S4, 47 ing instructions to select detached 
 
 S. E. 49 (50). portions tiiereof and consider tliem 
 
 53— Reed v. State, — Neb. — , 106 as independent of tlie wliole of the 
 
 N. W. 648. charge to the jury. Tlie correct 
 
 "This instruction is vigorously rule of construction, and the one 
 assailed by counsel for the ac- universally followed by this court, 
 • cused, who claims that it con- is that all that is said in the en- 
 tains an incorrect definition of tire charge upon any one question 
 murder in the first degree. At first shall be construed together; and, 
 blush it would seem that the point if, when so construed, it is not in- 
 w^as well taken; but after a careful consistent as a whole, and states 
 reading of the whole thereof, in the law correctly, no valid assign - 
 connection with the other parts of ment of error can be predicated 
 the court's charge to the jury, we thereon. St. Louis v. State, 8 Neb. 
 are constrained to hold the instruc- 405, 1 N. W. 371; Parrish v. State, 
 tion good. Counsel, in order to es- 14 Neb. 60, 15 N. W. 357; Murphy v. 
 tablish his contention, segregates a State. 15 Neb. 383, 19 N. W. 489; 
 part of the paragraph complained Carleton v. State, 43 Neb. 373, 61 
 of, and, reading it without refer- N. W. 699." 
 
 enre to the rest of the instruction, 54— State v. Jones, 71 N. J. L. 543, 
 
 claims that it is erroneous. It is 60 Atl. 396 (398). 
 
 not the correct method of constru- "The criticism upon this part of
 
 § 2986.] 
 
 MURDER IN FIRST DEGREE. 
 
 1891 
 
 reasonable doubt from the evidence in the case that the defendant 
 in W. county, Ala., and before the finding of this indictment, pur- 
 posely killed M. by shooting him with a pistol, with a wickedness or 
 depravity of heart towards said deceased, and the killing was de- 
 termined on beforehand, and after reflection (for however short a 
 time before the shooting was done, is immaterial) then the defendant 
 is guilty of murder in the first degree.^^ 
 
 (e) The court charges the jury that if the defendant in T. 
 county, and before the finding of this indictment, purposely killed 
 the deceased, W. L., after reflection, with a wickedness or depravity 
 of heart towards said deceased, and the killing was determined on 
 beforehand, even a moment before the fatal blow was struck, tlJfe 
 defendant is guilty of murder in the first degree.^^ 
 
 the charge is that it requires the 
 jury to convict of murder in the 
 first degree, even though the in- 
 tent to take the life was not pres- 
 ent. An examination of this in- 
 struction shows the presence of an 
 ellipsis. 'In pursuance of that de- 
 sign' plainly refers to something 
 antecedent. An examination of the 
 charge shows that "this particular 
 instruction is immediately preceded 
 by a statement that, to constitute 
 murder in the first degree, there 
 must be a settled, deliberate, and 
 premeditated intent to Ivill, fol- 
 lowed by the execution of that in- 
 tent. Reading the criticized ex- 
 cerpt in the light of what im- 
 mediately preceded it, the instruc- 
 tion was that if the defendant pre- 
 meditatedly, deliberately, and will- 
 fully prepared for the use of the 
 scissors blade and used it in pur- 
 suance of that design (i. e. the de- 
 sign to kill the deceased), the de- 
 gree of his criminality was m.urder 
 in the first degree. That such is 
 the legal rule prevailing in this 
 jurisdiction is not controverted by 
 the defense." 
 
 55— Stewart v. State, 137 Ala. 33, 
 34 So. 818 (820). ' 
 
 "Charge 1 requested by the state 
 as it appears in the record, reads 
 'that if the jury find from the evi- 
 dence in this case, beyond all reas- 
 onable doubt, that the defendant in 
 W. county, Ala., and before the 
 finding of this indictment, pur- 
 posed killing the deceased,' etc. 
 The word 'purposed' is plainly a 
 self-corrective, clerical mistake, 
 for the word 'purposely,' and we 
 will so treat it, Lang v. State, 84 
 Ala. 4, 4 So. 193, 5 Am. St. 
 324. Thus construed, the charge, 
 and the one following, numbered 2, 
 were free from error, as we have 
 
 frequently held. Lang v. State, 
 supra; Wilkins v. State, 98 Ala. 1, 
 13 So. 312." 
 
 56— Clark v. State, 105 Ala. 91, 17 
 So. 37 (38). 
 
 "This charge has been several 
 times held by this court to be a 
 proper one. Watkins v. State, 89 
 Ala. 82, 8 So. 134; Hammill v. 
 State, 90 Ala. 577, 8 So. 3S0; Lang v. 
 State, 84 Ala. 1, 4 So. 193, 5 Am. St. 
 324. It asserts a correct legal prop- 
 osition and states facts on which 
 guilt depends, hypothesized as ab- 
 solutely true, and beyond all 
 reasonable doubt. The defendant 
 objected to it on the ground, among 
 others, that it did not contain the 
 instruction, that the jury must be- 
 lieve the facts hypothesized beyond 
 reasonable doubt. But there was 
 no necessity for instructing the 
 jury that they must believe these 
 facts beyond reasonable doubt, for 
 the charge had already hypothesized 
 them as absolute verities. This 
 chai-ge is distinguishable from the 
 one in Pierson's Case, 99 Ala. 148, 
 13 So. 550, and other like charges, 
 where we held that when the 
 court charges 'if the jury believe 
 from the evidence' certain facts 
 hj-pothctically stated omitting the 
 expression 'beyond reasonable 
 doubt' or other equivalent words, 
 it is reversible error. In the lat- 
 ter class of charges on the suffi- 
 ciency of the evidence the trial 
 courts giving them failed to cau- 
 tion the juries, after telling them 
 if they believed certain facts, that 
 they must believe them bej-ond 
 reasonable doubt, whereas, in the 
 charge we now review, the court 
 predicated guilt, as we have before 
 stated, upon the absolute truth of 
 the hypothesized facts in the 
 charge. As stated therein they
 
 i" 
 
 1892 FORMS OF INSTRUCTIONS. [§ 2986. 
 
 (f) "Deliberate" and "premeditated" as those words are used 
 in the statute, mean only this: that slayer must intend before the 
 blow is delivered, though it be only an instant of time before, that 
 he will strike at the time he does strike, and that death will be the 
 result of the blow, or in other words, if the slayer had any time to 
 think, before the act, however short such time may have been, even 
 a single moment, and did think, and he struck the blow as a result 
 of an intention to kill, produced by this even momentary operation 
 of the mind, and death ensued, that would be a deliberate and pre- 
 meditated killing within the meaning of the statute defining murder 
 in the first degree.^'' 
 
 (g) To constitute a murder in the first degree, the killing must 
 have been willfully, deliberately, and with premeditation; that is, 
 intentionally, sanely, and with prior deliberation, and without legal 
 excuse or justification. "Willfully" as used in the information and 
 these instructions, means "intentionally"; that is, not accidentally. 
 "Deliberately" means an intent to kill, executed by the slayer in 
 a cool state of the blood, in furtherance of a former design, to 
 gratify a feeling of revenge or accomplish some other unlawful pur- 
 pose, and not under the influence of a violent passion, aroused by 
 real or supposed grievances, amounting to a temporaiy dethrone- 
 ment of reason. "Premeditated design to kill" means a previously 
 formed intention to kill. But while the law requires, in order to con- 
 stitute murder in the first degree, that the killing should be willful, 
 deliberate and premeditated, still it does not require that the willful 
 intent, premeditation or deliberation shall exist for any particular 
 length of time before the crime is committed. It is not necessary 
 that the killing should have been brooded over or reflected upon for 
 a week, a day or an hour. It is sufficient if there was a design 
 and a determination to kill, distinctly fonned in the slayer's mind 
 at any moment before or at the time the shot was fired which caused 
 the death of the person killed. There may be no appreciable space 
 
 must have been true and believed done, it was willful; and, if done 
 to be true beyond all cavil or by shooting- with a gun, with a 
 doubt, reasonable or otherwise, be- wickedness or depravity of heart 
 fore defendant could have been towards deceased, it was mali- 
 found g-uilty. The charge was not cious; and, if determined on, no 
 therefore amenable to the objec- matter for what space of time, it 
 tion interposed to it, — that it ig- must have been premeditated and 
 nored the question of reasonable deliberate. Premeditation and de- 
 doubt." liberation are necessarily involved 
 
 57 — Kilgore v. State, 124 Ala. 24, where the thing done is predeter- 
 
 27 So. 4 (5). mined." 
 
 The court said that this instruc- See also Robinson v. State, 108 
 tion "given at the request of the Ala. 14, 18 So. 732 (734), citing Rob- 
 state embraces every constituent erts v. State, 68 Ala. 156; Holley v. 
 element of murder iii the first de- State, 75 Ala. 15; Cleveland v, 
 gree as defined by section 4854 of State, 86 Ala. 1, 5 So. 426; Hunt 
 the Code. This charge is substan- v. State, 135 Ala. 1, 33 So. 329 
 tially the same as the charge (330); Stevens v. State. 138 Ala. 
 passed on in the cases of Miller 71, 35 So. 122 (124); Sherrill v. State, 
 V. State, 107 Ala. 40, 19 So. 37, and 138 Ala. 3, 35 So. 129 (131); Jarvis v. 
 Wilkins v. State, 98 Ala. 1, 13 So. State, 138 Ala. 17, 34 So. 1025 (1030). 
 312. If the killing was purposely
 
 § 2986.] 
 
 MURDER IN FIRST DEGREE. 
 
 1893 
 
 of time between the intent to kill and the act of killing, and if suf- 
 ficient deliberation was had to form a design or purpose to take life, 
 and to put that design or purpose into execution by destroying life' 
 then there was, in law, sufficient deliberation to constitute murder 
 in the first degree, no matter whether the design to take life had 
 been for a long time contemplated by the slayer or whether the 
 design to kill was formed by him at the instant of the fatal shot. 
 It is enough that the intent to kill preceded the fatal act, although 
 the act followed instantly.^* 
 
 (h) The court charges the jury that if the defendant, in Faj'ette 
 county, and before the finding of this indictment, purposely killed 
 the deceased, W. F., by shooting him with a gun with a wickedness 
 or depravity of heart towards the deceased, and the killing Avas 
 determined even a moment before the shooting was done, the defend- 
 ant is guilty of murder in the first degree.^a 
 
 58— Perugi v. State, 104 Wis. 230, 
 80 N. W. 593 (595), 76 Am. St. 865. 
 
 The court said: "We cannot re- 
 sist the conclusion that every kill- 
 ing-, not justifiable, done with that 
 degree of deliberation and with an 
 intent or design sufficiently fixed 
 and settled in the mind as to come 
 within the rule of 'premeditated de- 
 sign' laid down in the statute and 
 interpreted by the decisions of this 
 court, is murder in the first de- 
 gree; and any expression in the 
 Terrill case (Terrill v. State, 95 
 Wis. 276, 70 N. W. 356) or the 
 Sullivan case (Sullivan v. State, 
 100 Wis. 283, 75 N. W. 956) to the 
 contrary ought not to be adhered 
 to. The intentional killing that 
 may exist consistent with man- 
 slaughter in the second degree 
 springs from momentary impulse, 
 when the mind is unbalanced, and 
 there is no opportunity for con- 
 sideration or deliberation. Another 
 difficulty with the Terrill case is 
 that this court seems to have 
 failed to appreciate the force, scope 
 and effect of the language used 
 by the trial judge. The instruc- 
 tion was: 'If you are convinced 
 by the evidence, beyond a reason- 
 able doubt, that when he shot and 
 killed A. B. he did so pursuant 
 to an intent, then distinctly formed 
 in his mind, to kill A. B., you can- 
 not lawfully find the defendant 
 guilty of manslaughter in the 
 second degree for the defendant in 
 such case, if he killed A. B. from 
 premeditated design to kill him, 
 is guilty of murder in the first de- 
 gree.' In the Hogan case it was 
 said that. 'P'-eviously formed in- 
 tent to kill' and 'premeditated de- 
 
 sign to effect death' are synony- 
 mous terms'. And again: 'We 
 take the premeditated design of 
 murder in the first degree to be 
 simply an intent to kill. 'Design' 
 means 'intent' and both words 
 essentially imply 'premeditation.' 
 Very similar expressions have been 
 used in other jurisdictions. Intent 
 means 'that which is intended; pur- 
 pose; aim; design; intention.' 
 Cent. Diet. The word 'distinctly' 
 is used as synonymous with 
 'clearly,' 'explicitly,' 'definitely,' 
 'precisely,' 'unmistakably.' So. 
 when the trial judge used the 
 words 'intent then distinctly formed 
 in his mind,' and followed it with 
 the words 'premeditated design', 
 is there any possibility that the 
 jury could have mistaken his 
 meaning? 'Premeditate' is to think 
 of in advance; to determine upon 
 beforehand; to intend; to design. 
 And. Law Diet. The jury are 
 presumed to know the usual and 
 ordinary meaning of words, and, 
 in view of the definitions given, 
 there seems no escape from the 
 conclusion that they understood 
 the words 'intent distinctly 
 formed' to be the equivalent of 
 'premeditated design'. It is but 
 proper to say that Mr. Justice 
 Marshal) filed dissenting opinion in 
 both the Terrill and Sullivan cases, 
 and that the views we have 
 adopted are in harmony with the 
 principles therein advocated by 
 him." 
 
 See also Cook v. State, 46 Fla. 
 20, 35 So. 665 (670). 
 
 59— Ragsdale v. State, 134 Ala. 
 24, 32 So. 674 (675).
 
 1894 FORMS OF INSTRUCTIONS. [§ 2987. 
 
 (i) The court charges the jury that if they find from the evi- 
 dence in this case, beyond all reasonable doubt, that the defendant, 
 in Dallas county, Alabama, and before the finding of this indictment, 
 purposely killed the deceased, B. L., alias W. L., after reflection, with 
 a wickedness or depravity of heart towards deceased, and the kill- 
 ing was determined on beforehand, even a moment before the fatal 
 shooting was done, then the defendant is guilty of murder in the 
 first degree.*'*' 
 
 § 2987. Murder in First and Second Degree Distinguished, (a) 
 So, when you come to measure it up, the question is whether the 
 degree of guilt here rises above second degree, because it is clear 
 that it is at least second degree. There is no presumption at the 
 start that it is higher than that, unless, in this case, from the circum- 
 stances, the use of a deadly weapon at a vital part, with the pre- 
 sumption that the party using it knew the consequences of his act, 
 that he acted willfully, deliberately, and premeditatedly. If the evi- 
 dence all shows willful, deliberate, and premeditated killing under 
 those circumstances, with the intent to take life, then your verdict 
 should be murder of the fii'st degree. Otherwise, if there is a rea- 
 sonable doubt as to that grade, it should be murder in the second 
 degree.*'^ 
 
 (b) The court instructs the jury that murder in the second 
 degree has all the elements of murder in the first degree, except 
 that of deliberation. If you find from the evidence in this case that 
 
 the defendant at the county of C. and state of Mo., on the day 
 
 of , 1905, willfully, premeditatedly, and of his malice afore- 
 thought (but without deliberation, as defined in these instnictions) 
 struck and killed S. J. with a large stone, or a piece of iron, or any 
 instrument or weapon likely to produce death or great bodily harm, 
 as charged in the information, and that such stone, piece of iron, 
 or other instrument or weapon was a dangerous and deadly weapon, 
 then you should find the defendant guilty of murder in the second 
 degree. ^- 
 
 (c) To constitute murder in the first degree there must have been 
 an unlawful killing done, purposely and with deliberate and pre- 
 meditated malice. If a person has actually formed the purpose 
 maliciously to kill, and has deliberated and premeditated upon it 
 before he performs the act, and then performs it, he is guilty of 
 murder in the first degree, however short the time may have been 
 ■between the purpose and its execution. It is not time that consti- 
 tutes the distinctive difference between murder in the first degree 
 and murder in the second degree. An unlawful killing, with malice, 
 
 60— Bondurant v. State, 125 Ala. v. State, 10 Ala. 40, 19 So. 37. Cit-' 
 
 31. 27 So. 775 (777). inff also Martin v. State, 77 Ala. 1. 
 
 The court said that this instruc- 61 — Commonwealth v. Combs, 216 
 
 lion given at the request of the Pa. St. SI, 64 Atl. S73. 
 
 state is a substantial copy of one 62 — State v. Darling, 199 Mo. 168, 
 
 approved in Wilkins v. State, 98 97 S. W. 592. 
 Ala. 1, 13 So. 312, and in Miller
 
 §2987.] 
 
 MURDER IN FIRST DEGREE. 
 
 1895 
 
 deliberation and premeditation, constitutes the crime of murder in 
 the first degree. It matters not how short the time, it' the party has 
 turned it over in his mind, and weighed and deliberated upon it. 
 
 (d) The jury are instructed that while the law requires, in order 
 to constitute murder of the first degree, that the killing shall be 
 willful, deliberate and premeditated, still it does not require that 
 the willful intent, premeditation or deliberation shall exist for any 
 length of time before the crime is committed. It is sufficient if there 
 was a design and determination to kill distinctly formed in the mind 
 at any moment before or at the time the blow was struck, and in this 
 case, if the jury believe, from the evidence, beyond a reasonable 
 doubt that the defendant feloniously stx'uck and killed the deceased 
 as charged in the information, and that before or at the same time 
 the blow was strack the defendant had fonned in his mind a willful, 
 deliberate and premeditated design or purpose to take the life of 
 the deceased, and that the blow was sti-uck in furtherance of that 
 design or purpose, and without any justifiable cause or legal excuse 
 therefor, as explained in these instructions, the jury should find the 
 defendant guilty of murder in the first degree.*^^ 
 
 (e) Malice denotes a state of mind from which acts are done re- 
 gardless of the rights of others. This [the second] degree of mur- 
 der is like murder in the first degree, except that to constitute mur- 
 der in the second degree there must be no deliberation. If there 
 
 63— Savary v. State, 62 Neb. 166, 
 87 N. W. 34 (35). 
 
 Of these two the court said: 
 "The instructions are substantially 
 the same as those given in Carlton 
 V. State, 43 Neb. 373, 61 N. W. 
 699, which were approved in an 
 opinion of the court by Irvine, C. 
 In the first it is said it is true 
 that 'it is not time that consti- 
 tutes the distinction between 
 murder in the first and second de- 
 grees.' It is earnestly insisted that 
 time is required for premedita- 
 tion and deliberation. While this 
 is true, the time required may be 
 of the shortest possible duration. 
 The time may be so short that 
 it is instantaneous, and the design 
 or purpose to kill may be formed 
 upon premeditation and delibera- 
 tion at any moment before the 
 homicide is committed; and this is 
 the substance of the instructions 
 complained of. Whether the de- 
 fendant had sufficient time to pre- 
 meditate and deliberate, and 
 whether in fact he did so, was 
 a question for the jury, as triors 
 of fact, under proper instructions 
 from the court. From an examinr?- 
 tion of both instructions, it cannot 
 be said that the purpose to kill 
 could be formed, reflected upon, 
 
 and turned over in the mind, and 
 the act committted, at one and the 
 same time. To constitute the 
 crime of murder in the first de- 
 gree, there must be a refiection, 
 a turning over in the mind, a 
 weighing and consideration of the 
 act, and the purpose formed to do 
 it before its actual commission. 
 . . . The correctness of the in- 
 struction as a legal proposition 
 cannot be questioned. In the 
 second the jury are told that if 
 before or at the time the blow 
 was struck the defendant had 
 formed in his mind a willful, de- 
 liberate and premeditated design 
 or purpose to take the life of the 
 deceased, and that the blow was 
 struck in furtherance of that de- 
 sign, without any justifiable cause 
 or legal excuse, his guilt of the 
 highest degree of the crime charged 
 would be established. It can 
 hardly be argued by any logical 
 process of reasoning that under 
 this instruction a verdict of guilty 
 of murder in the first degree would 
 be justified upon the theory that 
 the premeditation and deliberation 
 required to be shown and the act 
 of killing may take place simul- 
 taneously."
 
 1896 FORMS OF INSTRUCTIONS. [§ 2987. 
 
 be deliberation, it would be murder in the first degree. If, therefore, 
 you find from the evidence beyond a reasonable doubt that the de- 
 fendant, G. D., killed the deceased, C. S., purposely and maliciously, 
 but without premeditation, and you further find that he killed the 
 deceased without such provocation as was apparently sufficient to 
 create in him an irresistible passion, and such killing was not in 
 lawful self-defense, you will find the defendant guilty of murder in 
 the second degree. If the defendant intentionally killed the de- 
 ceased with a deadly weapon and without such provocation as was 
 apparently sufBeient to excite in him an irresistible passion, and 
 such killing was not in lawful defense, then such killing, if 
 malicious, is murder; and, if such killing was deliberate and pre- 
 meditated, it was murder in the first degree. *** 
 
 (f ) If a person forms in his mind a purpose, design or intention 
 to unlawfully kill a human being with malice but without premedi- 
 tation, and he does so kill a human being, then the offense comes 
 within our statute defining murder in the second degree; but if the 
 element of premeditation is also present before the fatal blow is 
 struck, then it is murder in the first degree.*^^ 
 
 (g) The court instructs the jury that the indictment in this case 
 was filed on the 5th day of March, 1901, and charges the defendant 
 with murder in the first degree. Under the evidence adduced, how- 
 ever, it will be necessary for you to determine, in the event you 
 find the defendant guilty of any offense, whether he should be con- 
 victed of the specific offense charged in the indictment, or for mur- 
 der in the second degree. Murder in the first degree is the killing of 
 a human being willfully, deliberately, premeditatedly, and with 
 malice aforethought. Murder in the second degree has all the ele- 
 ments of murder in the first degree except that of deliberation. 
 ''Willfully," as used in these instructions, means intentionally; that 
 is, not accidentally. Therefore, if the defendant intended to kill, 
 such killing is willful. In the absence of qualifying facts and cir- 
 cumstances, the law presumes that a person intends the ordinary and 
 probable result of his acts. If you believe from the evidence beyond 
 a reasonable doubt that the defendant with a pistol shot J. in a vital 
 part and killed him, you will find that the defendant intended to 
 kill, unless the facts and circumstances given in evidence show to 
 the contrary. '* Deliberately" means in a cool state of the blood; 
 that is, not in a heated state of the blood, caused by a lawful prov- 
 ocation. It does not mean brooded over, considered, or reflected 
 upon for a week, a day or an hour; but it means an intent to kill, 
 
 64 — Downing v. State, 11 Wyo. 86, to the case. . . It is not only 
 
 70 Pac. 833 (835). impossible to rehearse in each in- 
 
 "The objections to this instruc- struction every principle of law 
 
 tion are answered by the language involved, but it would only create 
 
 used by this court in Ross v. confusion and obscurity to attempt 
 
 State, 8 Wyo. 351, 57 Pac. 924. it." 
 
 It is impossible to state in each 65 — Archie v. State, 64 Ind. 56. 
 instruction all the law applicable
 
 §2988.] MURDER IN FIRST DEGREE. 1897 
 
 executed by a party not under the influence of violent passion sud- 
 denly aroused by some lawful provocation, but in the furtherance of 
 a formed design, to gratify a feeling of revenge, or to accomplish 
 some other unlawful purix)se. ''Premeditatedly" means thought of 
 beforehand for any length of time, however short. ''Malice" as 
 used in these instructions, does not mean mere spite, ill will or dis- 
 like, as it is ordinarily understood; but it means that condition of 
 the mind w'hich prompts one person to take the life of another with- 
 out just cause or justification, and it signifies a state of disposi- 
 tion which shows a heart regardless of social duty and fatally bent 
 on mischief. "Malice aforethought" means that the act was done 
 with malice and premeditation.*^^ 
 
 § 2988. Whether Murder or Manslaughter. If the juiy believe 
 from the evidence beyond a reasonable doubt, that the defendant, 
 T. S., in F. county, Ky., and before the 28th day of March, 1905, 
 willfully shot and killed L. with a gun or pistol, or both, loaded with 
 powder and leaden balls, or other hard substances, and that said 
 shooting was not necessarj', and did not, at the time, reasonably 
 appear to the defendant to be necessaiy to save the defendant from 
 death, or from some serious bodily hann at the hands of said L., the 
 jury should find the defendant guiltj- — gniilty of murder if said 
 shooting and killing, if there was such, was done by the defendant 
 with malice aforethought; guilty of voluntary manslaughter if said 
 shooting, if there was such, was done by the defendant in sudden 
 affray, or in sudden heat and passdon, and without previous malice. ^^ 
 
 66 — Introduction to the charge in trial. We are inclined to think 
 
 State v. May, 172 Mo. 630, 72 S. that, owing- to the peculiar nature 
 
 W. 918 (920). of the facts set up by the way of 
 
 67— Stout v. Commonwealth, 29 defense, the failure to use the or- 
 
 Ky. Law R. 627, 94 S. W. 15. dinarily necessary words was not 
 
 "In the case of Kaelin v. Com- prejudicial, but the omission should 
 
 monwealth, 84 Ky. 354, 1 S. W. be supplied in the future.' In 
 
 594, it was held that an indict- Brooks v. Commonwealth, 28 S. W. 
 
 ment for murder was fatally de- 148, 16 Ky. Law R. 356: 'It does 
 
 fective if it omitted the word not follow, necessarily from the 
 
 'feloniously' from the description omission of this word (feloniously) 
 
 of the offense charged, and this in the instruction complained of, 
 
 case has been followed consistently that the error was prejudicial to 
 
 since. But it has never been held the accused. * * * A homicide 
 
 that the word 'feloniously' is cannot legally be called a murder 
 
 necessary in an instruction given unless the act of killing be done 
 
 in a case involving the trial of feloniously and with malice afore- 
 
 a felony charge. It may be con- thought; but if an assasin from 
 
 ceded, however, that after the ambush shoots his victim for pur- 
 
 Kalein case the court proceeded poses of robbery, it would be the 
 
 very cautiously with reference to height of legal folly to say that 
 
 the necessity of the word 'felo- the substantial rights of the mur- 
 
 niously' in instructions in felony derer are prejudiced by a defec- 
 
 cases, as is shown by these utter- tive definition of the words 'malice 
 
 ances: In Omer v. Commonwealth, aforethought,' or the mere omis- 
 
 25 S. W. 594. 15 Ky. Law R. 694: sion from an instruction to the 
 
 'We perceive no other serious ob- jury of the 'words of art' (felo- 
 
 jection to the instructions, al- niously) technically required in law 
 
 though the failure to use the word to designate a murder.' But in 
 
 "feloniously" in the first instruc- Bunnell v. Commonwealth. 30 S. 
 
 tion should be cured upon another W. 604, 17 Ky. Law R. 106, this
 
 1898 FORMS OF INSTRUCTIONS. [§2989. 
 
 § 2989. Murder in First and Second Degree and Manslaughter De- 
 fined and Distinguished — Elements of — Michigan, (a) The couit 
 instructs the jury that murder is defined as where a person of sound 
 memoiy and discretion, willfully and unlawfully and unreasonably, 
 kills any creature in being, against the peace of the state, with 
 malice aforethought, express or implied. Under the statutes of this 
 state, all murders which shall be perpetrated by means of poison or 
 lying in wait, or any other means of unlawful, deliberate and pre- 
 meditated killing, or which shall be committed in the pei-petration 
 of any arson, rape, robbery or burglary, shall be deemed murder in 
 the first degree. All other murders shall be deemed murder in the 
 second degee. If one, without cause, inflicts a wrong upon another, 
 we call him *' wicked and malicious." So, when one, without any 
 legal provocation, justification or excuse, intentionally kills another, 
 he is called a ''murderer." The law implies from such unprovoked, 
 unjustifiable or inexcusable killing the existence of that wicked dis- 
 position which the law terms "malice aforethought." Thus if the 
 respondent intentionally killed D. without provocation, justification 
 or excuse, your verdict should be "Guilty of murder." The inten- 
 tion may be inferred from the use of the deadly weapon in such a 
 manner that the death of the person assaulted would be the in- 
 evitable consequence. If you come to the conclusion that the re- 
 spondent is guilty of murder, it will be your duty to determine 
 whether he is guilty of murder in the first or second degree. Our 
 statute provides, as I have stated, that all murders which shall be 
 perpetrated by means of poison or lying in wait, or any other kind 
 of unlawful or pi^emeditated murder, shall be murder in the first 
 degree. To convict the respondent of murder in the first degree, 
 you must be satisfied that he intended to kill D., and that the killing 
 was willful, deliberate and premeditated. It is not necessary that 
 any particular time should have elapsed between the forming of the 
 purpose and the initention to kill, and the killing. If the respondent 
 had, previous to the shooting of D., detennined to kill him, and, to 
 carry out his intention, willfully and deliberately killed him, he 
 would be guilty of murder in the first degree. If the killing was 
 done under a sudden impulse, then respondent would be guilty of 
 murder in the second degree. If you are not satisfied beyond a rea- 
 sonable doubt that the killing was murder in the first degree, your 
 verdict should be "guilty of murder in the second degree," if you 
 find him guilty of murder at all. If a man kill another suddenly 
 and without provocation, the law implies malice, and it is murder. 
 If the provocation was such as must have greatly provoked him, the 
 killing would be manslaughter only. The instrument with which the 
 
 answer was made to the objection The contrary has been announced 
 
 now under consideration: 'It is in- in the recent case of Broolcs v. 
 
 sisted, however, that the word Commonwealth, 28 S. W. 148, 16 
 
 "ffioniously" should have been used Ky. Law R. 356, and the prin- 
 
 In the instruction on the subject ciples there laid down are coa- 
 
 of murder and manslaughter, elusive of this question'."
 
 § 2989.] MURDER IN FIRST DEGREE. 1899 
 
 killing was done must be taken into consideration. If inflicted with. 
 a deadly weapon, the provocation must be great, to make it man- 
 slaughter. The amount of resentment must bear a reasonable pro- 
 portion to the provocation to reduce the offense to manslaughter. To 
 make it manslaughter, it is also necessary that the killing be done 
 immediately upon the happening of the provocation. If sufficient 
 time elapses for passion to subside and reason to interpose, the kill- 
 ing is deliberate, and the crime murder, no matter how great the 
 provocation. Under the information in this case, the respondent 
 may be convicted of murder in the first degree, of murder in the 
 second degree, or manslaughter, or acquitted upon the grounds that 
 the killing was justifiable, depending upon your view of the testi- 
 piony.^^ 
 
 (b) In order for you to find murder in the first degree, you must 
 find from all the evidence, beyond a reasonable doubt, a deliberate 
 intention to take the life of the deceased, T. While the law re- 
 quires, in order to constitute murder in the first degree, that the kill- 
 ing shall be willful, deliberate and premeditated, still it does not 
 require that the willful intent, premeditation and deliberation shall 
 exist for any particular length of time before the crime is com- 
 mitted. It is sufficient if there was a malicious design and deter- 
 mination to kill, distinctly and delibei-ately fonned in the mind at 
 any time before and continuing at the time the blow was struck. If 
 a person has actually formed a purpose maliciously and willfully to 
 kill, and has deliberated and premeditated upon it before he per- 
 forms the act, and then perfonns it, he is gaiilty of murder in the 
 first degree, however short the time may have been between the pur- 
 pose and its execution. It is not time that constitutes the distinctive 
 difference between murder of the first and second degree. An unlaw- 
 ful killing with malice aforethought, willfully, with premeditation 
 and deliberation, constitute the crime of murder in the first degree; 
 but the term "deliberate" is not applicable to any act done on a 
 sudden impulse. You cannot find the resjwndent guilty of murder in 
 the first degi-ee unless you find from all the evidence beyond a rea- 
 sonable doubt that he did on the 10th day of Augaist, , kill T., 
 
 and that such killing was with malice prepense or a foi'e thought, 
 and also find beyond a reasonable doubt that such killing was will- 
 ful, deliberate and with a design to take the life of said deceased. 
 In order for you to convict the respondent of murder in the first 
 degree, the specific intent, as well as all other elements of the offense 
 which I have enumerated must be afiflnnatively proved beyond a rea- 
 sonable doubt ; that W. did shoot and kill the said T. at the time and 
 place specified, and that such killing was not excusable or justifiable 
 under the instructions which I have already given you, that such 
 killing was with malice prepense or aforethought ; and if you fail 
 to find beyond a reasonable doubt that such crime was perpetrated 
 
 68— Fully approved in People v. Hull, 86 Mich. 449, 49 N. W. 288 
 
 (290).
 
 1900 FORMS OF INSTRUCTIONS. [§ 2990. 
 
 willfully, deliberately and premeditatedly — your verdict will be 
 *' murder in the second degree." If you find from the evidence 
 beyond a reasonable doubt that the respondent did kill the said T. 
 at the time and place specified, and you further find that the act of 
 killing, even if you find that it was intentional, was committed under 
 the influence of passion, or in the heat of blood, produced by ade- 
 quate or reasonable provocation, and before a reasonable time had 
 elapsed for the blood to cool and reason to resume its habitual con- 
 trol, and was "the result of temporaiy excitement, by which the con- 
 trol of the reason was disturbed, rather than any wickedness of 
 heart or ci'uelty or recklessness of disposition, then your verdict 
 will be "guilty of manslaughter.'"'^ 
 
 § 2990. Murder in First Degree — Idaho Statute — Nebraska, (a) 
 In this case it is not claimed by the prosecution that the homicide 
 charge was committed in the perpetration or attempt to perpetrate 
 any other felony, but it is claimed that it is murder in the first 
 degree, as being unlawful, malicious, willful, deliberate and pre- 
 meditated. In thi% etass of cases the Legislature leaves the jury to 
 determine from all the evidence before them the degree of the crime, 
 but prescribes for the government of their deliberations the same test, 
 which is, is the killing willful, deliberate and premeditated?'^^ 
 
 (b) You are instnieted that under our statute, to constitute mur- 
 der in the first degree, the jury must be satisfied beyond a reason- 
 able doubt, from the evidence, that the defendant, without any 
 justifiable cause or excuse, killed the deceased in manner and form 
 as charged in the indictment ; and they must also be satisfied beyond 
 a reasonable doubt, from the evidence, that he killed the deceased 
 purposely, and of deliberate and premeditated malice. And you are 
 instructed that by premeditation and deliberation is meant to think 
 of, to resolve in the mind beforehand, to contrive, to design pre- 
 viously, to weigh in the mind, to consider and examine the reasons 
 for and against, to consider maturely, to reflect upon. The defend- 
 ant, in order to be guilty of this degree of crime, must have first 
 formed the purpose in his mind to kill the deceased, and having that 
 purpose, he must have deliberated upon it. He must have considered 
 the consequences of his act, and then, with full knowledge of the 
 consequences of the act about to be done, he purposely, and mali- 
 ciously executed that purpose by slaying the deceased. By malice 
 is meant [a wicked and mischievous purpose which characterizes the 
 perpetration of a wrongful or injurious act intentionally committed 
 without lawful excuse.]'^ 
 
 69 — People v. Wright, 89 Mich. 70, objectionable sentence has been 
 
 50 N. W. 792 (797). omitted and the definition of malice 
 
 70— State v. Shuff, 9 Idaho 115, inserted as given by the Supreme 
 
 72 Pac. 664 (667), 13 Am. Cr. Rep. Court, as shown in the following 
 
 443. extrnct of the opinion: 
 
 71— Carr v. State, 23 Neb. 749, 37 "The definition of malice con- 
 
 N. W. 630 (632). tained in the latter clause of this 
 
 In the form given above the instruction is, we think, hardly
 
 § 2991.] 
 
 MURDER IN FIRST DEGREE. 
 
 1901 
 
 § 2991. Order in Which Jury May Consider the Issues — New York 
 Code. If the killing is not intentional, but done through careless- 
 ness, or in the heat of passion, or while engaged in the commission 
 of a misdemeanor, when the killing was not intentional, then it is 
 manslaughter. It is murder in the first degree if the killing is done 
 intentionally with deliberation and premeditation. It is murder in 
 the second degree if done intentionally, but without deliberation and 
 premeditation. The charge in this case is that of murder in the 
 first degree. And it becomes the duty of the jurjTnen to first con- 
 sider and determine whether or not the piisoner is guilty of the 
 greater crime; that is, murder in the first degree. For it is only 
 after you become satisfied that he is not guilty of murder in the 
 first degree that you have the right to consider the lesser degi-ees; 
 
 sufficient. It is a copy of the first 
 paragraph of the definition of 
 malice given by Bouvier in his dic- 
 tionary. The paragraph referred 
 to in the definition is as follows: 
 'The doing of a wrongful act in- 
 tentionally, without just cause or 
 excuse. 4 Barn. & C. 255; 9 Mete. 
 104.' 'The wicked, mischievous 
 purpose which characterizes the 
 perpetration of an injurious act 
 without lawful excuse. 4 Barn. 
 & C. 255; 9 Mete. 104.' The first 
 case cited by the author is Brom- 
 age V. Prosser, an action of 
 slander, decided in 1825, and which 
 we need not here notice. The case 
 cited in 9 Mete, is that of Com. 
 V. York. Chief Justice Shaw, in 
 writing the opinion, says: 'Malice 
 in the definition of murder is im- 
 puted to an act done willfully, malo 
 animo; an act wrong in itself and 
 injurious to another, and for which 
 there is no apparent justification 
 or excuse. . . . The natural or 
 necessary conclusion and inference 
 from such an act willfully done 
 wuhout apparent excuse are that 
 it was done vialo animo in furth- 
 erance of the wrongful injurious 
 purpose, previously, though per- 
 haps suddenly formed, and is, 
 therefore, a homicide with malice 
 aforethought, which is the true 
 definition of murder. In Territory 
 v. Egan, 3 Dak. 119, 13 N. W. 568, 
 malice is defined to be 'that state 
 of mind or act where one will- 
 fully does that which he knows 
 will injure another person or prop- 
 erty.' In Whart. Law Diet., malice 
 is defined to be a 'formed design 
 of doing mischief to another; tech- 
 nically, vialitia pracopita. or 
 malice prepense or aforethought.' 
 . . . In Harris v. State, 8 Tex. 
 App. 109, it is defined to be 'a con- 
 
 dition of the mind which shows a 
 heart regardless of social duty, 
 and fatally bent on mischief, the 
 existence of which is inferred from 
 acts committed or words spoken.' 
 By the foregoing and other cita- 
 tions which we might make, it is 
 apparent that malice, as applied to 
 the case at bar, should be defined 
 as a wicked and mischievous pur- 
 pose which characterizes the per- 
 petration of a wrongful or injur- 
 ious act intentionally committed 
 without lawful excuse. It is a 
 mental condition on the part of 
 the actor, supposed to exist at the 
 time of the commission of the of- 
 fense, and is imputed to 'doing of 
 an unlawful act, intentionally, 
 without just cause or excuse.' The 
 district court was perhaps fully 
 justified in adopting the definition 
 given, for the same language is 
 used in defining malice in Milton 
 v. State, 6 Neb. 143, and therefore 
 what is here said can in no sense 
 be said to be a criticism upon the 
 action of the trial court. But, for 
 the reasons given, we believe the 
 rule stated in Milton v. State is 
 imperfect, and should not be fol- 
 lowed. It is not given with the 
 u!5ual care and precision of the 
 writer of that opinion, for the rea- 
 son, doubtless, that it was not an 
 essential element in the case, the 
 testimony failing to show delibera- 
 tion and premeditation, and on ac- 
 count of which a new trial was 
 given. The legal definition of 
 malice given by Webster is 'any 
 wicked or mischievous intention of 
 the mind; a depraved inclination 
 to mischief; intention to do an act 
 which is wrongful, without just 
 cause or excuse; a wanton disre- 
 gard of the rights or safety of 
 others; willfulness.' "
 
 1902 FORMS OF INSTRUCTIONS. [§ 2992. 
 
 or rather, in case you are not satisfied beyond a reasonable doubt 
 of the guilt in the greater degree, then you have the right to con- 
 sider the lesser degrees. So that you are to determine, in the first 
 place, as to whether the killing was intentional, and was it with 
 deliberation and premeditation. In other words, did the accused pre- 
 meditate, think over, resolve in his mind, form a conclusion to do 
 the act, and did he deliberate upon that?^^ 
 
 § 2992. Deceased Assaulting Defendant — Defendant Killing De- 
 ceased After Cooling Time. You are instinicted that, although you 
 may believe from the evidence that some time prior to the killing, 
 the deceased assaulted the defendant, and knocked him down with a 
 rifle and punched him with a rifle and kicked him, yet if you further 
 believe that after said assault the deceased and the defendant 
 walked together for some distance, and sufficient time had elapsed 
 for defendant's passion to subside, and that while they were so walk- 
 ing together the deceased passed the defendant, and the defendant 
 deliberately drew a pistol and shot deceased and killed him, with 
 malice aforethought, and with the intent in his mind, at the time, to 
 take the life of the deceased, while deceased was riding from him 
 and making no demonstrations, this would be murder in the first de- 
 g^ee, and you should so find.''^ 
 
 § 2993. Seeking Quarrel with Deceased with Expectation of Shoot- 
 ing Him. If the juiy believe, from the evidence, that the defendant 
 sought a quarrel with the deceased and first struck him a violent blow 
 with his fist, in the expectation that the deceased would resent the 
 blow, and in his turn attack the defendant, so that he might have a 
 chance to shoot or stab the deceased, and thereby take his life, and 
 further, that in accordance with such expectation the said deceased 
 did thereupon attack the defendant with his fists, and the defendant 
 then shot the deceased, as charged in the indictment, such killing 
 would be murder in the first degree.'^* 
 
 72— People v. Wilson, 109 N. Y. "To convict the defendant of 
 
 540, 16 N. E. 540 (544). murder in the first degree, under 
 
 The court said: "The defendant it, it was necessary for the jury to 
 was charged in the indictment with find that a sufficient length of time 
 murder in the first degree, and to had elapsed for his passion to sub- 
 that charge he pleaded, and for side — cooling time — and that there- 
 that charge he was put on trial, after he deliberately drew a pistol 
 and all the evidence was directed and shot deceased and killed him 
 to the issue joined upon that — deliberation — with malice afore- 
 charge. It was the duty of the thought, and with the intent in his 
 jury first to determine whether mind at the time — at the time of 
 he was guilty of that charge or the deliberate shooting — to take the 
 not. That was the primary sub- life of the deceased — premedita^ 
 ject to be investigated, and it was lion — in other words, must find de- 
 only after they found him not liberation, malice aforethought, 
 guilty upon that charge that they and premeditation. Construed in 
 were authorized, under section 444 connection with the other instruc- 
 of the Code of Criminal Procedure, tions, the instruction objected to is 
 to find him guilty of any inferior substnntially correct." 
 degree of homicide." 74 — State v. Christian, 66 Mo. 
 
 73— Duckworth v. State. 80 Ark. 138. 
 360 (362), 97 S. W. 280 (281).
 
 § 2994.] MURDER IN FIRST DEGREE. 1903 
 
 § 2994. Deceased Making First Hostile Demonstration — Direct 
 Evidence Not Necessary, (a) The court charges the jury that if 
 they believe from the evidence in this case beyond a reasonable doubt, 
 that the defendant lay in wait, with the formed design to take the life 
 of deceased, then notwithstanding they may further believe that the 
 deceased made the first hostile demonstration, defendant would be 
 guilty of murder in the first degree.''^ 
 
 (b) The court instructs you that while it devolves upon the state 
 to prove willfulness, deliberation, premeditation and malice afore- 
 thought, all of which are necessary to constitute murder in the firet 
 degree, yet this need not be proved by direct evidence, but may be de- 
 duced from all the facts and circumstances attending the killing; 
 and if you can satisfactorily and reasonably infer their existence from 
 all the evidence you will be warranted in finding the defendant guilty 
 of murder in the first degree. '^^ 
 
 § 2995. Murder by Poison — Essential Facts to Be Proven, (a) It 
 is essential to the conviction of the defendant that the following facts 
 must be proved beyond a reasonable doubt, to-wit: (1) The death 
 of A. B., named in the indictment; (2) that his death was caused by, 
 or was mediately or immediately accelerated by, poison by arsenic; 
 (3) that the poison thus causing or accelerating the death of A. B. 
 was feloniously administered by the defendant to him, or that the de- 
 fendant feloniously participated in such administration thereof, or 
 feloniously caused the same to be administered to him; (4) that the 
 offense was committed in Huntington county in the state of In- 
 dian a.'^'^ 
 
 (b) When murder — ^that is, killing a human being with malice 
 aforethought is perpetrated by means of poison, the law implies, be- 
 cause of the nature of the act, that it was done intentionally, willful- 
 ly, deliberately, premeditatedly and with malice aforethought, and 
 therefore declares it to be murder in the first degi'ee. Such being the 
 law you are not called upon to consider as to murder in the second 
 degree nor manslaughter. Your verdict must be guilty of murder in 
 the first degree or not guilty.'^^ 
 
 (c) The court instructs the jury that whoever kills a human being 
 with malice aforethought is guilty of murder; that all murder which 
 is perpetrated by poison, lying in wait or any other kind of willful, de- 
 liberate and premeditated killing, is murder in the first degree.^'' 
 
 75 — Gafford v. State, 125 Ala. 1, to go, which could have Injured 
 
 28 So. 406 (407). the appellant. In the next place, 
 
 76 — State v. Privitt, 175 Mo. 207, there is no evidence which required 
 
 75 S. W. 457 (458). the additional definition insisted 
 
 77— Epps v. State, 102 Ind. 539, upon. The last sickness of A. B., 
 
 1 N. E. 491 (499). immediately following- his symp- 
 
 "It is objected that this instruc- toms of arsenical poisoning, was 
 
 tion did not also tell the jury that of less than a week's duration." 
 
 death must have resulted within a 78— State v. Burns, 124 la. 207, 
 
 year and a day after the poison 99 N. W. 721 (722). 
 
 was administered. In the first 79— Longley v. Commowealth, 99 
 
 place, we see nothing in the in- Va. 807, 37 S. E. 339 (340). 
 struction, so far as it purported
 
 1904 FORMS OF INSTRUCTIONS. [§ 2996. 
 
 (d) If you have a reasonable doubt as to whether defendant 
 poisoned his wife with strychnine, with intent to kill her, as charged 
 in the indictment, and if you have such doubt as to whether defend- 
 ant, with intent to kill her, placed strychnine poison where he knew 
 or believed deceased might take it, or if you have such doubt as to 
 whether deceased committed suicide, or died from other causes than 
 poison administered by defendant with intent to kill her, you will 
 acquit defendant.®*' 
 
 § 2996, Deceased Having Had Illicit Intercourse with Defendant's 
 Wife, (a) If the jui-y believe from the evidence beyond all reason- 
 able doubt that the deceased, several months prior to the killing, did 
 have sexual intercourse with the defendant's wife, with or without 
 force, and that the defendant, in B. county, Alabama, and before the 
 finding of this indictment, killed the deceased by decoying him to 
 his (defendant's) house, and by lying in wait for him, on account of 
 such illicit intercourse between deceased and defendant's wife, then 
 defendant is guilty of murder in the first degree, and it is the sworn 
 duty of the jury to so find their verdict.®^ 
 
 (b) The jury will observe, from all the instructions given them, 
 those upon the part of the state as well as defendant, that under the 
 law the defendant had no right to kill W. because of his knowledge 
 or suspicion of deceased and defendant's wife having previously had 
 illicit intercourse. And in this case, if the defendant, after having 
 susjiected or known for daj^, weeks, or even months of the intimacy 
 of his wife and W., by reason thereof, and after having formed a 
 conscious design and purpose to kill said W., did kill said W., the so 
 killing of said W. was and is under the law murder in the first de- 
 gree, and the jury should so find.''- 
 
 § 2997. Murder in the First Degree — Definition of — ^Murder Com- 
 mitted in Perpetration of Robbery, (a) The court instructs you 
 that every person with sound memory and discretion who shall un- 
 lawfully kill any reasonable creature in being in this state, with 
 malice aforethought, either expressed or implied, shall be deemed 
 guilty of murder. All murder committed in the perpetration of rob- 
 bery is murder in the first degree. All murder of the firet degree is of 
 the second degree.®^ 
 
 80 — Morrison v. State, 40 Tex. definition of malice or malice afore- 
 
 Cr. App. 473, 51 S. W. 358 (365). thought. While ordinarily the 
 
 81 — Approved in Williams v. court should define these terms, 
 
 State, 130 Ala. 107, 30 So. 484 (486). and in a case of this gravity the 
 
 82 — State v. Privitt, 175 Mo. 207, judge cannot be too careful, yet 
 
 75 S. W. 457 (460). we believe in the court's charge 
 
 83 — Jones v. State, — Tex. Cr. applying the law to the facts, there 
 
 App. — , 96 S. W. 930 (931). was a sufficient definition of malice 
 
 "This scharge is objected to be- aforethought, which cured this de- 
 cause, in the remainder of the feet. The charge in question re- 
 charge, murder in the first degree quired the homicide to have been 
 is nowhere completely defined, nor committed 'unlawfully, and with a 
 is mnlice or malice aforethought mind which shows a heart regard- 
 anywhere defined. In connection less of social duty and fatally bent 
 with the charge there is no stated on mischief, the existence of which
 
 § 2998.] MURDER IN FIRST DEGREE. 1905 
 
 (b) If the jury believe, from the evidence, beyond a reasonable 
 doubt, that at the time of the alleged killing the defendants had en- 
 tered the house of the deceased, for the jDurpose of stealing and 
 carrying away any article of personal property thei-ein, and that, in 
 the prosecution of that purpose, or in his efforts to escape from the 
 house with such property, the defendant struck the deceased and 
 thereby caused his death, then such killing would be murder and not 
 manslaughter, and it would be wholly immaterial whether such killing 
 was intentional or not.** 
 
 (e) If the jury believe, from the evidence, beyond a reasonable 
 doubt, that the said J. was killed by the defendant, and also, that at 
 the time the defendant was engaged in an attempt to rob the de- 
 ceased, then the defendant is guilty of murder in the first degree, 
 although he may have had no intention to take the life of the said J.*^ 
 
 (d) If you believe, from the evidence, beyond a reasonabe doubt, 
 that at the time of the alleged killing the defendant had entered the 
 saloon of the said X. for the purpose of feloniously and violently 
 taking the money or personal pi'operty of said X. from his person by 
 force, intimidation or by putting said deceased, X., in fear, and thatj 
 in the prosecution of that purpose the defendant shot the deceased^. 
 and thereby caused his death, then such killing under such circumf 
 stances would be murder in the first degree. In other words, if froni' 
 the evidence the juiy believe beyond a reasonable doubt that the 
 defendant killed the said X., and also at the time of the killing that 
 the defendant was engaged in an attempt to pei-petrate a robbei-y 
 upon the person of the said deceased, then the defendant would be 
 guilty of murder in the first degree.*** 
 
 § 2998. Murder — Attempt to Escape. The court instructs the 
 jury that if they believe and find from the evidence, beyond a reason- 
 able doubt, that on the day of November, 1905, the defendants 
 
 and another person named B. were confined as prisoners in the Mis- 
 souri State Penitentiary, in C. county. Mo., and while so confined 
 agreed with each other to make or attempt to make an escape from 
 prison, and in so doing and while acting in concert with each other 
 and in the furtherance of a common design to make such escape, 
 either one of the foiir persons so attempting to escape did, in the 
 presence of the other three, willfully, feloniously, deliberately, pre- 
 meditatedly, and of malice aforethought kill J. in the county afore- 
 
 may be inferred from acts com- State, 42 Tex. Cr. App. 477, 61 S. W. 
 
 mitted or words spoken and in the 929." 
 
 perpetration of robberv, and with 84 — Bissott v. State, 53 Ind. 40S. 
 
 malice aforethought,' etc. This em- 85— Monihan v. State, 7 Ind. 126. 
 
 braces one of the definitions of 86— Rhea v. State, 63 Neb. 461. 
 
 malice aforethought, and under the 88 N. W. 789 (798). 
 
 facts and circumstances of this The court said: "The instruction 
 
 '-ase we believe was sufficient, complained of, we hold, states the 
 
 Martinez v. State, 30 Tex. App. law correctly, and that error can- 
 
 1''9 16 S W. 767, 28 Am. St. not be successfully predicated on 
 
 895- Hedrick v. State, 40 Tex. Cr. its being given to the jury." 
 App. 532, 51 S. W. 252; Rupe v. 
 120
 
 1906 FORMS OF INSTRUCTIONS. [§ 2999. 
 
 said, while he was in the peace of the state and in the discharge of 
 his duties as a guard at such penitentiary, by shooting him upon the 
 neck or head with a pistol, and thereby inflicting upon him a mortal 
 wound of which he then and there instantly died, then they will find 
 all three of the defendants, H. V., G. R., and E. R. guilty of murder 
 in the first degree, and so state in their verdict.^'^ 
 
 § 2999. Killing While Attempting to Commit Rape. The crime 
 charged in the second count is thus defined: ''If any person in the 
 perpetration or attempt to perpetrate any rape, kill another, every 
 person so offending shall be deemed guilty of murder in the first de- 
 gree. " Under the law, to warrant a conviction of defendant of the 
 crime charged in the second count of the information the state is not 
 required to prove that the act of killing was done purposely, and of 
 deliberate and premeditated malice. The facts necessary to be es- 
 tablished by the state by evidence beyond a reasonable doubt, to war- 
 rant a conviction of the crime charged in the second count, are that 
 the defendant, in perpetrating or attempting to perpetrate a rape 
 upon the said G., did choke, suffocate, or strangle her, the said G., 
 and of which choking, suffocation, or strangling by defendant, she, 
 the said G., then and there died. . . .^^ 
 
 § 3000. ratally Wounded by Striking with Billiard Cues. The 
 court instructs the jury, if they shall find and believe from the evi- 
 dence beyond a reasonable doubt that the defendant, R. S., on or 
 about the 24th day of March, 1900, at the county of Lawrence and 
 state of Missouri, did willfully, feloniously, deliberately, premedi- 
 tatedly and with malice aforethought strike and wound W. with bil- 
 liard cues, and if the jury further believe, from the evidence that 
 within a year and a day thereafter, to wit, on or about the 26th day 
 of March, 1900, the said W., at the county of Lawrence and state of 
 Missouri, died in consequence of said wounding and striking with the 
 
 87 — State v. Vaughan, 200 Mo. 1, quences if he goes further than 
 
 98 S. W. 2. intended when he began.' See also 
 
 88— Morgan v. State, 51 Neb. 672, State v. Gray, 19 Nev. 212, 8 Pac. 
 
 71 N. W. 788 (793). 456; People v. Mooney, 2 Idaho 24, 
 
 "Stephen, J. in Reg. v. Serne, 2 Pac. 876; People v. Greenwall, 
 16 Cox Cr. Cas. 311, after holding 115 N. Y. 520, 22 N. E. 180; Moyni- 
 death resulting from a known dan- han v. State, 70 Ind. 126, 36 Am. 
 gerous act, done in the commission Rep. 178; Robertson v. Com. (Va.), 
 of a felony, to be murder, makes 20 S. E. 362; Reddick v. Com. 
 use of the following illustration: (Ky.), 33 S. W. 416; Graves v. 
 •Suppose that a man, intending to State, 45 N. J. Law 203; People v. 
 commit a rape upon a woman, but Nichol, 34 Cal. 211. The authori- 
 without the least wish to kill her, ties here cited serve to demon- 
 squeezed her by the throat to over- strate the fallacy of the argument 
 power her, and in so doing killed employed in Robbins v. State, 8 
 her; that would be murder. . . Ohio St. 131, as respects the gram- 
 That kind of a crime does not matical construction of the statute. 
 differ in any serious degree from as well as the policy and purpose 
 one committed by using a deadly thereof, and our examination of 
 weapon, such as a bludgeon, a pis- the subject has suggested no suffl- 
 tol or a knife. If a man once begins cient reason for adhering to a con- 
 altacking the human body in such struction alike exceptional and ob- 
 way, he must take the conse- viously unsound."
 
 § 3001.] MURDER IN FIRST DEGREE. 1907 
 
 billiard cues aforesaid, the juiy will find the defendant guilty of 
 murder in the first degree, as charged in the indietment.^'^ 
 
 § 3001. Deadly Weapon — Killing with a Large Stone or Piece of 
 Iron, (a) The court instructs that if the jury find from the evi- 
 dence in this case, beyond a reasonable doubt, that at the county of C. 
 and state of Missouri, at any time prior to the filing of the informa- 
 tion herein, the defendant E. D., with a large stone, or a piece of 
 iron, or any weapon or instrument likely to produce death or great 
 bodily hai-m, as charged in the information, and that such stone, 
 piece of iron, or other instrument or weapon was a dangerous and 
 deadly weapon, did willfully, deliberately, premeditatedly, and of his 
 malice aforethought strike, beat, bruise, and wound S. J., thereby 
 inflicting upon the head of him, the said S. J., one or more mortal 
 
 wounds, from which the said S. J., on the — th day of , 1905, at 
 
 the eountj' of C. and state of Missouri, died, then you will find the 
 defendant guilty of murder in the first degree.^" 
 
 (b) The jury are instructed that he w'ho willfully, that is, in- 
 tentionally, uses upon another at some vital point a deadly weapon, 
 must, in the absence of qualifying facts, be presumed to know that 
 the effect is likely to produce death, and knowing this, must be pre- 
 sumed to intend death, which is the probable consequence of such an 
 act, and if such deadlj' weapon is used without just cause or provo- 
 cation he must be presumed to do it wickedly and from a bad heart, 
 and if the jurj" believe from the evidence that the defendant shot 
 and killed L., as charged, and that at the time or before the shot was 
 fired, the defendant had formed in his mind the willful, premeditated, 
 and deliberate design or purpose to take the life of the deceased, and 
 that the shot was fired in furtherance of that design or pui-pose and 
 without any justifiable cause or legal excuse therefor as explained in 
 these instructions, then the jury should find the defendant guilty of 
 murder in the first degree.^^ 
 
 89 — State v. Smith, 164 Mo. 587, out deliberation, is murder in the 
 
 65 S. W. 270. second degree. The same rule was 
 
 90 — State v. Darling, 199 Mo. 168, announced in the Fairlamb case. 
 
 97 S. VJ. 592. The instruction under considera- 
 
 91 — State V. McCarver, 194 Mo. tion, in defining murder in the first 
 
 217, 92 S. W. 684. degree, tells the jury that in order 
 
 "We are unable to appreciate the to convict defendant of that of- 
 
 criticism upon this instruction, to fcnse, they must first believe that 
 
 the effect that it instructs the jury the killing was with deliberation 
 
 that the intentional killing of a and premeditation. It says 'if the 
 
 human being with a deadly wea- jury believe from the evidence that 
 
 pen, without any lawful provoca- the defendant shot and killed H. 
 
 tion, must be presumed to be L., as charged, and that at the 
 
 murder in the first degree. The time or before the shot was fired, 
 
 instruction does not so state: nor the defendant had formed in his 
 
 does the case of State v. Silk, 145 mind the willful, premeditated, 
 
 Mo. 240, 44 S. W. 764, 46 S. W. and deliberate design or purpose to 
 
 959, or State v. Fairlamb, 121 Mo. take the life of the deceased, and 
 
 137! 25 S. "W. 895, so hold. On the that the shot was fired in furth- 
 
 contrary, it is said in Silk's case erance of that design or purpose, 
 
 that a homicide committed by the and without any justifiable cause 
 
 use of a deadly weapon, and with- or legal excuse therefor, as ex-
 
 1908 F0RM9 OF INSTRUCTIONS. [§ 3002. 
 
 (c) He who willfully — that is, intentionally, uses upon another at 
 some vital part a deadly weapon, as a loaded fireaim, must, in the ab- 
 sence of qualifying facts, be presumed to know that the effect is 
 likely to be death, and knowing this must be presumed to intend 
 death, which is the probable and ordinary consequences of such an 
 act; and if such deadly weapon is used without just cause or provo- 
 cation, he must be presumed to do it wickedly, or from a bad heart. 
 If, therefore, the jury believe that defendant took the life of J. R. M. 
 by shooting him in a vital part, with a revolver loaded with gun- 
 powder and leaden bullets, with a manifest desig-n to use such weapon 
 upon him, and with sufficient time to deliberate and fully form the 
 conscious purjDose to kill, and without sufficient reason or cause or 
 extenuation, then such killing is murder in the first degree; and while 
 it devolves upon the state to prove willfulness, deliberation, premedi- 
 tation and malice aforethought (all of which are necessary to con- 
 stitute murder in the first degree) yet these need not be proved by 
 direct evidence, but may be deduced from all the facts and circum- 
 stances attending the killing; and if the jury can satisfactorily and 
 reasonably infer their existence from all the evidence, they will be 
 warranted in finding the defendant guilty of murder in the first de- 
 gree. ^^ 
 
 § 3002. Murder in First Degree — Metal Knucks or Means Un- 
 known — Stabbing with Knife, (a) If the defendant in this county 
 before the finding of this indictment, purposely killed deceased by 
 striking him with metal knucks, by cutting him wnth a knife, or by 
 throwing him overboard, or by means unknown to the grand jury, 
 after reflection, with a wickedness or depravity of heart towards the 
 deceased, and the killing was detennined on beforehand, even a mo- 
 ment before the fatal blow was struck, the defendant is guilty of 
 murder in the first degree.^^ 
 
 (b) If you believe, beyond a reasonable doubt, from all the evi- 
 dence in this ease, that defendant in this county before the finding of 
 this indictment, purposely killed the deceased, by stabbing or cutting 
 him with a knife, after reflection, with a wickedness or depravity of 
 heart towards said deceased, and the killing was determined on be- 
 forehand, even a moment before the fatal blow was made, the de- 
 fendant is guilty of murder in the first degree.^'' 
 
 plained in these instructions, then Held that this "substantially 
 the jury should find the defendant hypothesizes the characteristics of 
 guilty of murder in the first de- murder in the first degree as de- 
 gree.' The instruction is in line fined by the statute. 2 Code 
 with all the authorities as to what §3725. It requires in order to con- 
 it takes to constitute murder in the stitute that degree of murder, that 
 first degree, and is free from ob- the homicide be purposely com- 
 joction." mitted, after reflection with malice 
 
 92— State v. May, 172 Mo. 630, 72 and that it was determined on be- 
 
 S. W. 918 (920). forehand. These are the equivalent 
 
 93— Hunt V. State, 135 Ala. 1, 33 of the willfulness, deliberation. 
 
 So. 329 (330). malice and premeditation which 
 
 94— Boulden v. State, 102 Ala. 78, the statute requires." 
 15 So. 341 (344).
 
 § 3003.] MURDER IN SECOND DEGREE. 1909 
 
 § 3003. Murder in the First Degree— rorm of Verdict, (a) The 
 
 court instructs the juiy that under the evidence in this case you will 
 find the defendants guilt}^ of murder in the first degree or acquit 
 them; and you are further instructed that, if you find the defendants 
 guilty of murder in the first degree, you will simply say so in your 
 verdict, as you have nothing whatever to do with the punishment. If 
 you find the defendants not guilty, you will return a verdict to that 
 effect.95 
 
 (b) If you find the defendant guilty of murder in the first de- 
 gree, you will simjjly so state in your verdict, as you are charged 
 with no responsibility with respect to the punishment for murder in 
 the first degree. If you find the defendant guilty of murder in the 
 second degi'ee, you will state in your verdict and assess his punish- 
 ment at imprisonment in the state penitentiaiy for any teiTU not less 
 than ten years. ^"^ 
 
 (c) The defendant in this case stands charged by information 
 with murder in the first degree ; that is to say, the defendant, P., 
 stands charged with having feloniously, willfully, premeditatedly, 
 deliberately and of his malice aforethought shot and killed W., at the 
 county of Sullivan, on the 26th day of November, 1901, and under 
 the evidence in this case you will either convict the defendant of 
 murder in the first degree, and so state in your verdict, or you will 
 acquit him.^^ 
 
 (d) A person on trial charged with murder in the first degree, if 
 the evidence justifies it, may be convicted of murder in the first de- 
 gree, or he may be acquitted of murder in the first degree ; and, if the 
 evidence justifies it, such person may be found guilty of murder in 
 the second or third degree, or of manslaughter; or, in the absence of 
 evidence to convict of either of said offenses, such person may be 
 acquitted of all crime whatever by a general verdict of not guilty; 
 and where such trial is had (that is, for murder), as in the case at 
 bar, if the jury find the accused guilty, then, in their verdict, they 
 should state the degree.^^ 
 
 MURDER IN SECOND DEGREE. 
 
 § 3004. Murder in the Second Degree — Elements of. (a) If you 
 believe from the evidence that the defendant in the county of St. F., 
 
 state of Missouri, at any time prior to the — of , 19 — , willfully, 
 
 premeditatedly, and of his malice aforethought, but not deliberately, 
 shot and wounded L., and that within a year and a day thereafter 
 
 and before the — of , 19 — , the said L., at the county of St. F., 
 
 aforesaid, died in consequence of said shooting and wounding, then it 
 
 95— State v. Vaughan, 200 Mo. 1, 97— State v. Privitt, 175 Mo. 207, 
 
 98 S. W. 2; State v. Gatlin, 170 75 S. W. 457 (458). 
 
 Mo. 354, 70 S. W. 885 (888). 9^— McCoy v. State, 40 Fla. 494, 
 
 96— State v. May, 172 Mo. 630, 24 So. 485 (487). 
 77 S. W. 918 (920).
 
 1910 
 
 FORMS OF INSTRUCTIONS. 
 
 [§ 3005. 
 
 \v::i be your duty to find the defendant guilty of murder in the second 
 degree. ^^ 
 
 (b) If you shall believe from the evidence, beyond a reasonable 
 
 doubt, that the defendant, in the month of , 19—, at V. county, 
 
 Missouri, with a pistol, shot and killed W., and that such shooting 
 and killing were done willfully, premeditatedly, and of malice afore- 
 t,hought, but without deliberation, you should find the defendant 
 guilty of murder in the second degree. Unless you do so believe, 
 you should not find him guilty of murder in the second degree-^*^" 
 
 § 3005. Murder in Second Degree Defined — Shooting with Revolv- 
 ing Pistol Loaded with Gunpowder and Leaden Balls, (a) If you 
 
 find from the evidence beyond a reasonable doubt that at the county 
 of Carroll, in the state of Missouri, at any time before the finding 
 of the indictment herein, the defendant did unlawfully, premeditated- 
 ly and of his malice aforethought, but without deliberation, as de- 
 fined in these instructions, kill X., by shooting him with a revolving 
 pistol, then and there loaded with gunpowder and leaden balls, you 
 will find the defendant guilty of murder in the second degree, and 
 assess his punishment at imprisonment in the penitentiary for a term 
 
 99 — State v. McCarver, 194 Mo. 
 717, 92 S. W. 684; Smith v. State, — 
 Tex. Cr. App. — , 89 S. W. 817; State 
 V. Minor. 193 Mo. 597, 92 S. W. 466; 
 State v. Smith, 164 Mo. 567, 65 S. W. 
 270; State v. May, 172 Mo. 630, 72 
 S. W. 918 (920). 
 
 State v. Kinder, 184 Mo. 276, 
 83 S. W. 964 (966). In this case the 
 blow was "with a large club, the 
 same being a dangerous weapon, 
 inflicting upon him a mortal 
 wound," etc. 
 
 100— State V. Todd, 194 Mo. 377, 
 92 S. W. 674. 
 
 "This instruction is claimed to be 
 erroneous upon the ground that 
 there was no testimony upon which 
 to base it. . . . We think it clear 
 from the evidence that the jury 
 might have found the defendant 
 guilty of murder in either degree, 
 and under such circumstances said 
 instruction was proper. State v. 
 McMullin, 170 Mo. 608, 71 S. W. 221; 
 State V. Frazier, 137 Mo. 317, 38 
 S. W. 913. 
 
 "Another objection urged against 
 said instruction is that it does not 
 indicate to the jury what facts 
 were necessary for it to find in 
 order to authorize a conviction of 
 murder in the second degree, they 
 must believe from the evidence be- 
 yond a reasonable doubt, that de- 
 fendant, with a pistol, shot and 
 killed W., and that such shooting 
 find killing were done willfully, pre- 
 meditately, and of malice afore- 
 
 thought, but without deliberation 
 (these terms being defined in an- 
 other instruction) and thus pre- 
 sented to the jury all the questions 
 necessary for them- to pass upon 
 in order to a determination of the 
 guilt or innocence of defendant of 
 murder in the second degree. In 
 speaking of a similar instruction 
 in State v. Bauerle, 145 Mo. 1, 46 
 S. W. 609, Gantt, J., said: 'The 
 court gave the following instruc- 
 tion: "The court instructs the 
 jury that if you believe and find 
 from the evidence in this cause, be- 
 yond a reasonable doubt, that the 
 defendant, at the county of L. and 
 state of Mo., on or about the 26th 
 day of April, 1896, willfully, pre- 
 meditately, and of his malice afore- 
 thought, shot and killed one B., 
 but without delibei-ation, you will 
 find the defendant guilty of mur- 
 der in the second degree, and will 
 assess his punishment at imprison- 
 ment in the penitentiary for a term 
 of not less than 10 years." It had 
 already defined the meaning of de- 
 liberation, premeditation, and mal- 
 ice aforethought. Defendant insists 
 that this instruction is misleading 
 and should not have been given. It 
 is sufTicient to say that this in- 
 struction has been approved a 
 scor-e of times by this court, and is 
 the settled law of this slate.' State 
 V. Moxley, 115 Mo. 644, 22 S. W. 
 575, same as 102 Mo. 374, 14 S. W. 
 969, 15 S. W. 556."
 
 § 3006.] MURDER IN SECOND DEGREE. 1911 
 
 of not less than ten (10) years. Murder in the second degree is the 
 wrongful killing of a human being with malice aforethought, but 
 without deliberation. It is when the intent to kill is, in a heat of 
 passion, executed the instant it is conceived, or before there has been 
 time for the passion to subside. We do not use the phrase ''heat of 
 passion" in its technical sense, but as a condition of mind contra- 
 distinguished from a cool state of the blood. ^ 
 
 (b) The court charges the jury that if the defendant, in Greene 
 county, and before the finding of this indictment, purposely killed 
 the deceased S. W. by shooting him with a gun, with a wickedness or 
 depravity of heart towards the deceased, and the killing was de- 
 termined on beforehand and after reflection (for however short a 
 time before the fatal shooting was done is immaterial), the defend- 
 ant is guilty of murder.^ 
 
 § 3006. Murder — Distinction between First and Second Degree, 
 (a) If the killing was unjustifiable, and with malice aforethought, 
 and was also willful, deliberate and premeditated it would be murder 
 in the first degree; but if it was with malice aforethought, and not 
 willful and deliberate and premeditated, it would be murder in the 
 second degree.^ 
 
 (b) From these definitions the jury will see that any unlawful 
 killing of a human being, with malice aforethought, is murder; but 
 if nothing further characterizes the offense it is murder of the second 
 degree. To constitute the higher offense there must be superadded, to 
 the general definition above given, willfulness, deliberation and pre- 
 meditation. By willfulness is meant that it was of purpose, with the 
 intent that, by the given act, the life of the party should be taken. 
 It must be deliberate and premeditated. By this it is not meant that 
 the killing must have been conceived or intended for any particular 
 length of time. It is sufficient if it was done with reflection and con- 
 ceived beforehand. And in this view, as I have said before, the de- 
 liberate purpose to kill and the killing may follow each other as 
 rapidly as successive impulses or thoughts of the mind. It is enough 
 
 1 — State v. Marsh, 171 Mo. 523, 71 'premeditation'; so that not only 
 
 S. W. 1003 (1004). do the terms used in the challenged 
 
 Quoting from State v. Curtis, 70 instruction bring- it strictly within 
 
 Mo. 594, the court said: " 'Where the foregoing quotation from State 
 
 there is a willful killing with mal- v. Curtis, supra, but the definition 
 
 ice aforethought — that is with of those terms as given by the 
 
 malice and premeditation, but not court does so also." 
 
 with deliberation, or in a cool Citing also State v. "Wieners, 66 
 
 state of the blood,— the offense is Mo. 13. 
 
 murder in the second degree.' Now, 2 — Harkness v. State, 129 Ala. 71, 
 
 in the instruction under comment, 30 So. 73 (74). 
 
 both the terms 'premeditatedly' Held a correct statement of "the 
 
 'and of this malice aforethought* effect of malice in making a homi- 
 
 are used. 'Premeditatedly' was cide at least murder in the second 
 
 defined in instruction No. 1 given degree, in which offense premedi- 
 
 in behalf of the state as 'thought tation is not a necessary ingre- 
 
 of beforehand for any length of dient." 
 
 time, however short." and 'malice 3— State v. Hunter, 118 la. 686, 
 
 aforethought' as meaning that the 92 N. W. 872 (875). 
 killing was done with 'malice' and
 
 1912 FORMS OF INSTRUCTIONS. [§3007. 
 
 that the party deliberate before the act — premeditate — the purpose to 
 slay before he gave the fatal blow. But while the purpose, the intent 
 and its execution may follow thus rapidly upon each other, it is 
 proper for the jury to take into consideration the shortness of such 
 interval in considering whether such sudden and speedy execution 
 may not be attributed to sudden passion and anger, rather than to 
 deliberation and premeditation, which must characterize the higher 
 offense. From what I have said you will see that the distinction be- 
 tween the two grades of offense is that, in murder of the first degree 
 (unless it is committed in the perpetration or attempt to pei-petrate 
 arson, rape, robbery, burglary or mayhem), the killing must be de- 
 liberate and premeditated, whilst in murder of the second degree the 
 killing is not deliberate or premeditated. In the one case there is de- 
 liberate, premeditated, preconceived design, though it may have been 
 formed in the mind immediately before the mortal blow was given, 
 to take life. In the other case there is no deliberation, premeditation 
 or preconceived design to kill. In both, however, the killing must 
 have been unlawful and accompanied with malice.* 
 
 § 3007. Murder in Second Degree — Elements to Consider — Cali- 
 fornia Statute. It will be proper therefore for you in determining 
 the questions as to whether or not the defendant in this case is guilty 
 of murder of the second degree to consider the following proposi- 
 tions: Is L. P., the person refen^ed to by that name in the informa- 
 tion in this case, dead? If she be dead, did she die as the result of 
 an act committed by some other person? If so, did she die within a 
 year and a day from the time of the commission of such act? If 
 she did so die, was such act committed by the defendant in this ease? 
 If said defendant did commit such act, did she commit it willfully? 
 If she did willfully commit such act, and it was unlawful, was it 
 felonious ¥' 
 
 § 3008. Murder in Second Degree — North Carolina. If the jury 
 shall find that it was the intention of the prisoner to do serious bodily 
 harm to the deceased, and death ensued in consequence of injuries 
 inflicted with such intention, then the prisoner would be guilty of 
 murder in the second degree.*^ 
 
 § 3009. Murder in Second Degree— Killing Must Be Malicious- 
 Reasonable Doubt — Alabama, (a) Unless from all the evidence in 
 this case the jury can, each, say as a juror sworn and impaneled to 
 try the case according to the evidence, beyond all reasonable doubt, 
 that the defendant killed P. H. with malice towards him, then the 
 jury cannot and should not find the defendant guilty of murder in 
 the second degree. 
 
 (b) Unless the jury are satisfied from the evidence beyond all 
 reasonable doubt that the defendant fired the fatal shot maliciously, 
 
 4— State V. Shuff, 9 Idaho 115, 72 6— Approved, supplemented with 
 
 Pac. 664 (668). othor instructions. State v. Hunt, 
 
 5— People v. Balkwell, 143 Cal. 34 N. C. 684, 47 S. E. 49 (50). 
 259, 76 Pac. 1017 (1019).
 
 §3010.] MURDER IN SECOND DEGREE. 1913 
 
 the juiy cannot convict the defendant of murder in the second de- 
 gree.' 
 
 (e) The court charges the juiy that before they can convict the 
 defendant of murder in the second degree, they must be satisfied from 
 the evidence be3'ond all reasonable doubt that the defendant unlaw- 
 fully cut or stabbed W. L. E., and that he did the cutting or stabbing 
 willfully or maliciously.^ 
 
 (d) Murder in the second degree is the unlawful and malicious 
 killing of a human being. The distinction between the two degrees 
 of murder is the absence in murder in the second degree of that de- 
 liberation and premeditation required in murder of the first degree.^ 
 
 (e) Murder in the second degree is the unlawful killing of a 
 human being with malice aforethought, but without deliberation and 
 premeditation. 1° 
 
 § 3010. Malice Necessary in Murder in Second Degree, but Will 
 Be Implied — Texas. The next lower gi'ade of culpable homicide than 
 murder in the first degree is murder of the second degree. Malice 
 is also a necessaiy ingredient of the offense of murder in the second 
 degree. The distinguishing feature, however, so far as the element 
 of malice is concerned, is that, in murder in the first degi'ee, malice 
 must be proved to the satisfaction of the jury, beyond a reasonable 
 doubt, as an existing fact, while, in murder in the second degree, 
 malice will be implied from the fact of an unlawful killing.^^ 
 
 § 3011. Need Not Be Previously Planned or Deliberated Upon, but 
 Must Be a Coldblooded and Malicious Act — Wyoming. Murder in the 
 second degree is the committing of the act deliberatelj'^ and in cold 
 blood and not suddenly in the heat of passion, or upon provocation. 
 In the case of murder in the second degi'ee, while it is not necessary 
 that the act should have been previously planned, or deliberated up- 
 on, still it must be a coldblooded and malicious act. If the circum- 
 stances do not show it to be such, or if thei'e exists in the minds of 
 the jury any reasonable doubt that such was the character of the 
 killing, there cannot be any verdict of murder in any degree.^ - 
 
 § 3012. Murder in the Second Degree — Killing Before Cooling 
 Time Had Elapsed, (a) If you believe from the evidence that 
 the mind of the defendant was not cool, calm, and sedate, and while 
 in this condition he formed the determination to kill, and before cool- 
 
 7 — Maugher v. State, 116 Ala. 463, yond that nece.osarily involved in 
 
 23 Sn. 26 (27). the existence of malice. Such is 
 
 8 — Sullivan v. State, 102 Ala. 135, the meaning- of the instruction." 
 
 15 So. 264 (265), 48 Am. St. 22. 11— Smith v. State, 45 Tex. Cr. 
 
 9— Johnson v. State, 133 Ala. 38, App. 552, 78 S. W. 694 (695). 
 
 31 So. 951 (952). "Then follows the definition of 
 
 10 — McQueen v. State, 103 Ala. 12, 'implied malice,' which is correct; 
 
 15 Fo. 824 (826). the court having- previously de- 
 Citing Ala. Code Sec. 3725, Ward fried 'malice' in its general sense. 
 
 v. Ftate, 96 Ala. 100, 11 So. 217. fis well as 'express malice.' We do 
 
 "No deliberation or premedita- not believe there is any error, and 
 
 tion is required to characterize th^ criticism is hypercritical." 
 
 murder in the second degree be- 12— Downing v. State, 11 Wyo. 86, 
 
 70 Pac. 833 (S35).
 
 1914 FORMS OF INSTRUCTIONS. [§ 3013. 
 
 ing time had elapsed carried into execution that design, the offense 
 would not be greater than murder in the second degree.i^^ 
 
 (b) If you believe from the evidence, beyond a reasonable doubt, 
 that the defendant, with a deadly weapon or instrument reasonably 
 calculated and likely to produce death by the mode and manner of 
 its use in a sudden transport of passion, aroused without an adequate 
 cause, or while his mind was not in a cool, deliberate, or sedate con- 
 dition, and not in defense of himself against an unlawful attack, 
 reasonably producing a rational fear or expectation of death or se- 
 rious bodily injury, with intent to kill, did shoot and thereby kill R., 
 as charged in the indictment, you will find him guilty of murder in 
 the second degi'ee, etc. 
 
 (c) If you believe from the evidence, or have a reasonable doubt 
 of the same, that the deceased, R., on the day of the killing and prior 
 thereto, caused and forced the defendant to get down on his bended 
 knees and apologize to him (R.), and that the said R. cursed and 
 abused the defendant and offered insults to defendant's mother, and 
 insults to the negro race, and that this conduct on the part of said 
 R. aroused in the mind of the defendant either anger, rage, or terror, 
 and in that condition of mind the defendant formed the intent to 
 kill deceased, and that sufficient time had not elapsed at the time of 
 the killing (if any) to allow the mind of the defendant to become cool 
 and capable of calm reflection, you cannot find the defendant guilty 
 of any higher grade of homicide than murder in the second degree 
 and you will so find.^* 
 
 § 3013. In Violent Passion from Oflfensive Language Used. If you 
 believe from the evidence that at the time of the striking of J. the 
 defendant was in a violent passion, suddenly aroused in consequence 
 of opprobious epithets applied to him or because of offensive, 
 insulting, or degrading language addressed to him by the 
 
 l^ Manning- v. State, — Tex. Cr. and it could be shown that the 
 
 ^pp 9g s. w. 251. charg-e as between this offense and 
 
 "It is' contended, in connection manslaughter was liable to confuse 
 with this charge, that the defense the jury, appellant might com- 
 of adequate cause should have plain. Another objection urged to 
 been given. Taking into consider- said charge is that the court told 
 ation the ' subsequent charge of the jury that the offense under the 
 the court on manslaughter, the circumstances was murder in the 
 jury were not liable to confuse the second degree in the latter por- 
 defense of murder in the second tion of said charge. We do not 
 degree with manslaughter. More- understand the charge to convey 
 over not having found appellant this idea. The jury were informed 
 guilty of murder in the second that the offense under the circum- 
 degree we fail to see how it could stances stated could not be greater 
 have injuriously affected appel- than murder in the second degree, 
 lant- there being no contention that They would not construe that this 
 the mind of the jury might be con- charge, in connection with the sub- 
 fused between murder in the sec- sequent charges on manslaughter, 
 ond degree and murder in the first which measured appellant's rights 
 degree but merely between mur- as to both of said offenses, relieved 
 der in 'the second degree and man- the case of any possible confusion 
 slaughtor. It might be that if the between the two offenses." 
 jury had found appellant guilty 14— Maunmg v. State, supra. 
 of murder In the second degree,
 
 §3014.] MURDER IN SECOND DEGREE. 1915 
 
 deceased, and that, while under said violent passion, he did strike and 
 kill the said J., then such killing was done without deliberation, and 
 the defendant is guilty of no higher offense than murder in the second 
 degree, and you should so find, unless you further believe from the 
 evidence that the defendant was justified in taking the life of said 
 J. on the grounds of self-defense, as defined in other instructions.^^ 
 
 § 3014. Heat of Passion — Determined with Reference to Ordinary 
 Men. The heat of passion in this definition means something more 
 than mere anger or irritation. It means that at the time of the act 
 the reason is disturbed or obscured by passion to an extent which 
 might render ordinaiy men, of fair average disposition, liable to act 
 rashly, or without due deliberation or reflection, and from passion 
 rather than judgment.^® 
 
 § 3015. Under Such Passion as to Deprive Defendant of the Power 
 to Form Intent to Kill. If you believe from the evidence beyond a 
 reasonable doubt, that defendant did shoot and kill said S. W., not 
 by mistake, but intentionally, but that at the time of doing so he 
 was laboring under such a passion as deprived him of the jwwer, at 
 the time he formed that intent to kill her, to do so with a considerate 
 and deliberate mind, then he would be guilty of murder in the second 
 degree.^''' 
 
 § 3016. Sudden Transport of Passion — ^Without Adequate Cause — 
 Deadly Weapon — Leather Belt Maybe. If the juiy believe beyond a 
 reasonable doubt that defendant A. L., as charged in the indictment, 
 with malice aforethought with a leather belt, being a deadly weapon, 
 or weapon well calculated and likely to produce death by the manner 
 in which it was used, in a sudden transport of passion, aroused with- 
 out adequate eause, with intent to kill, did strike with the leather 
 belt, and thereby kill M. L. as charged in the indictment, you will 
 find him guilty of murder in the second degree.^* 
 
 § 3017. Mutual Combat — Deadly Weapon Suddenly Snatched Up. 
 If it appears from the evidence in this case that the defendant and 
 the deceased entered into a mutual combat, and at the commence- 
 ment of the fight attacked each other on equal tenns, and on a sud- 
 den, without previous intention to kill the deceased, the defendant, in 
 the course of the fight, and in the heat of passion, snatched up a 
 deadly weapon, and killed the deceased, it is only manslaughter; 
 but if you believe from the testimony beyond all reasonable doubt 
 that the defendant, in the course of the fight, snatched up the deadly 
 
 15— State V. Darling, 199 Mo. 168, his own heat of passion, but upon 
 
 97 S. W. 592. the heat of passion of 'ordinary 
 
 16 — Rj-an v. State, 115 Wis. 488, men of fair average disposition.' 
 
 92 N. W. 271 (275). Citing Reg v. * * * We must hold there was 
 
 Welsh, 11 Cox Cr. Cases 336; State no error in giving the instruction 
 
 V. Ellis, 74 IMo. 207, 41 Am. Dec. thus complained of." 
 
 321; 1 McClain Cr. Law, §337. 17— "This charge is correct." 
 
 The court said: "The precise White v. State, 44 Tex. 346, 72 S. 
 
 objection to this portion of the W. 173 (174). 63 L. R. A. 660. 
 
 charge is that it does not make 18 — Lee v. State, 44 Tex. Cr. 
 
 the guilt of the accused turn upon App. 460, 72 S. W. 195 (196), 61 L. 
 
 R. A. 904.
 
 1916 FORMS OF INSTRUCTIONS. [§ 3018. 
 
 weapons, and purposely, and of his deliberate and premeditated 
 malice, killed the deceased, then he would be guilty of murder in the 
 first degree; or if from the evidence you are satisfied beyond a reason- 
 able doubt that in the course of the fight the defendant snatched up 
 the deadly weapon, and purposely and maliciously, but without de- 
 liberation and premeditation, killed the deceased, then he would be 
 guilty of murder in the second degree. ^^ 
 
 § 3018. Criminal Intimacy of Deceased With Defendant's Sister 
 No Defense. Although the jury may believe from the evidence that 
 the deceased and T. H. (defendant's sister) were criminally inti- 
 mate, this would not, in law, justify or excuse the defendant in lying 
 in wait to shoot and kill deceased, if you believe from the evidence 
 that he did so lie in wait. So if the jury believe from the evidence 
 that the defendant followed the deceased, and shot him from am- 
 bush, feloniously, premeditatedly and with malice aforethought, as 
 the terms are in these instructions defined, then the criminal re- 
 lation between said deceased and T. H., if it did exist, and if it 
 were known to defendant, does not reduce the killing below murder in 
 the second degree, and affords no justification or mitigation for the 
 shooting, if done under such circumstances. -° 
 
 § 3019. Killing Child by Beating Its Mother, (a) If a woman 
 be quick with child, and, by a potion or otherwise, killeth it in her 
 womb, or if a man beat her, whereby the child dieth in her body, and 
 she is delivered of a dead child, this is a great misprision, but no 
 murder; but if the child be born alive, and dieth of the potion or 
 battery, this is murder. This is the doctrine of the common law, 
 and would, under our statute, be murder in the second degree. No 
 malice need be shown in a ease of this character, beyond that in- 
 ferred from the act stated; yet it is essential that the defendant 
 should know that the woman was quick with child, and intentionally 
 inflict the battery. 
 
 (b) If, from the evidence, you should believe, beyond a reason- 
 able doubt, that the defendant, G. C, in Geneva county, Alabama, 
 within the time covered by the indictment, intentionally beat his wife, 
 B. C, while she was quick with child, knowing that she was quick 
 with child, and that she afterwards gave birth to the child; that it 
 was born alive, and afterwards died in consequence of the injuries re- 
 ceived while in its mother's womb by the beating intentionally in- 
 flicted upon its mother by the defendant, — he, the defendant, would 
 be guilty of murder in the second degree, and it would be your duty 
 in that event to return a verdict accordingly.-^ 
 
 § 3020. Murder in Second Degree Presumed — Burden of Proof. 
 (a) The court instructs you that where a homicide is proved be- 
 
 19 — State V. Vance, 29 Wash. 435, was given by the court. "It was 
 
 70 Pac. 34 (47). well warrantod by The evidence, 
 
 20— State v. Hicks, 178 Mo. 433, 77 and very favorable to defendant." 
 
 S. W. 539 (540). 21— Clarke v. State, 117 Ala. 1, 23 
 
 The court saw "no substantial So. 671 (672), 67 Am. St. 157. 
 objection" to this instruction, which
 
 § 3021.] MURDER IN SECOND DEGREE. 1917 
 
 yond a reasonable doubt, the iDresumption is that it is murder in the 
 second degree. If the state would elevate it to murder in the first 
 degree, it must establish the characteristics of that crime, and if the 
 prisoner would reduce it to manslaughter the burden is on him.-- 
 
 (b) The court instructs you that all murders are presumed in 
 law to be murder in the second degree, and in order to elevate the 
 offense to murder in the first degree the burden of proof is on the 
 commonwealth, and in order to reduce the offense below murder in 
 the second degree the burden is on the prisoner.^^ 
 
 (c) If the jury believe from the evidence that the defendant, in- 
 tentionally killed J. by shooting him in the head with a pistol, and 
 that such pistol was a deadly weapon, then the law presumes that 
 such killing was murder in the second degree, in the absence of evi- 
 dence to the contrary.^* 
 
 (d) The jury are instructed, that if the killing of the person men- 
 tioned in the indictment is satisfactorily shown by the evidence, be- 
 yond all reasonable doubt, to have been the act of the defendants, or 
 either of them, then the law pronounces such killing murder, un- 
 less it appears, from the evidence, that circumstances existed excus- 
 ing or justifying the act, or mitigating it, so as to make it man- 
 slaughter, as explained in these instinictions.^^ 
 
 (e) The jury are instructed, that the mere fact of an unlawful 
 killing, if proved, raises no presumption that the killing was murder 
 in the first degree, and unless the circumstances show, beyond a 
 reasonable doubt, that some degree of deliberation took place be- 
 fore the killing (or in the attempt, etc), then the conviction can 
 only be for murder in the second degree.-^ 
 
 § 3021. Murder in Second Degree — Presumed From Killing With 
 Billiard Cues. If the jury believe from the evidence that the de- 
 fendant intentionally struck- and mortally wounded W. in a vital 
 
 22— State v. Melvern, 32 Wash. 7, 23— Longley v. Commonwealth, 99 
 
 72 Pac. 489 (496). Va. 807, 37 S. E. 339. 
 
 "A substantially similar instruc- 24 — State v. May, 172 Mo. 630, 
 
 tion was considered and sustained 72 S. W. 918 (920). 
 
 by this court in State v. Payne, 10 25— Brown v. State, 4 Tex. App. 
 
 Wash. 545, 39 Pac. 157, on the au- 275. 
 
 thority of State v. Cain, 20 W. Va. 26— Newton v. State, 6 Neb. 136. 
 679 (709); Hill v. Com., 2 Grat. 595, But see People v. Ochoa, 142 Cal. 
 and other cases cited in the opinion, 268, 75 Pac. 847 (850), where the fol- 
 and 2 Thompson on Trials, par. lowing instruction was approved: 
 2208. This instruction is an exact Presumptively, every killing is 
 copy of the form of an instruc- murder, but so far as the degree 
 tion given by Thompson in the sec- is concerned no presumption arises 
 tion of his work on trials above from the mere fact of killing, con- 
 noted; and the learned author, in sidered separately and apart from 
 a footnote to said section, says the circumstances under which the 
 that 'the principle embodied in the killing occurred. The question is 
 above instruction is believed to be one of fact, to be determined by 
 universally acknowledged.' " the jury from the evidence in the 
 
 See also State v. Staley, 45 W. case, and it is not a matter of legal 
 
 Va. 792, 32 S. E. 198 (199), and State conclusion, as evidence of a want 
 
 V. Cain, 20 W. Va. 679 (709). of premeditation is not within the 
 
 rule which excludes it as an ex- 
 cuse.
 
 1918 FORMS OF INSTRUCTIONS. [§ 3022. 
 
 part with billiard cues, and that said billiard cues were dangerous 
 and deadly weapons, the law presumes that the killing was murder in 
 the second degree, in the absence of proof to the contrary, and it 
 devolves upon the defendant to adduce evidence to meet or repel 
 that presumption, unless the same has been met and overcome by evi- 
 dence introduced by the state. -^ 
 
 § 3022. Murder In Second Degree — Form of Verdict. If you find 
 the defendants guilty, you must state in your verdict the distinct 
 degree of offense, whether of murder in the second degree or of man- 
 slaughter, of which you convict them, or you may convict one of 
 them of one degree and the other of a lower degree, or you may con- 
 vict one and acquit the other. Should you convict both defendants, 
 the form of your verdict should be: "We, the jury, find the de- 
 fendants, L. C. and S. C, guilty of (here state the oifense). So say we 
 all," and let one of your number sign as foreman. If you convict 
 them of different degrees, or if you convict one and acquit the other, 
 your verdict should so state.^* 
 
 MANSLAUGHTER. 
 
 § 3023. Manslaughter Defined, (a) The court charges the jury 
 for the state that manslaughter is the killing of another in the heat 
 of passion, without malice, by the use of a dangerous weapon, with- 
 out authority or law, and not in necessity self-defense; and the court 
 further instructs the jury for the state that if the jury believe from 
 the evidence beyond a reasonable doubt that E. cursed D. for a son of 
 a bitch, and that D., while still under the heat of passion, aroused by 
 such insult, secured a pistol, and shot and killed E., not in malice, 
 but in the heat of passion, and not in his necessaiy self-defense, then 
 he is guilty of manslaughter, and the jury should so find.^^ 
 
 27— State v. Smith, 164 Mo. 567, 29— Moore v. State, 86 Miss. 160, 
 
 65 S. W. 270. 38 So. 504. 
 
 28 — demons v. State, 48 Fla. 9, "It Is contended that this in- 
 
 37 So. 647 (649). struction is erroneous, as being 
 
 "It is contended that the judge upon the weight of the evidence, 
 nowhere charged the jury that they and as assuming that D. was under 
 had the right to acquit both the heat of passion aroused by having 
 defendants, and that the result of been cursed by E. for a son of a 
 these two instructions could not bitch. We thinli the objection not 
 fail to leave the impression on the well taken. The instruction, fairly 
 mind of the jury that it was their construed, imports that the jury 
 duty to convict one of the defend- must believe from the evidence be- 
 ants. It will be noted that these yond a reasonable doubt not only 
 instructions were to guide the jury that E. cursed D. for a son of a 
 in making up their verdict if they bitch, but also that D.'s passion 
 found the defendants or eith^ of was aroused by such insult, and 
 thorn guilty. It does not seem to that while still under the heat of 
 us that they could have been other- that passion he secured the pistol 
 wise understood. Nor is the asser- and shot E. In one of the numer- 
 tion correct that the judge nowhere ous briefs for the appellant it is in- 
 charged the jury that they had the sisted that, save for the objec- 
 right to acquit both the defend- tions noted, the instruction is free 
 ants." from objection, as being an in-
 
 § 3023.; 
 
 CRIMINAL— MANSLAUGHTER. 
 
 1919 
 
 (b) You are instructed that manslaughter is the unlawful killing 
 of a human being without malice either express or implied; that 
 manslaughter must be voluntary upon a sudden heat of passion, 
 caused by a provocation ai^jDarently sufficient to make the passion 
 irresistible; and, if you believe from the evidence in this case that 
 the deceased assaulted him with a rifle, or kicked and cursed him in 
 such a manner as would be apparently sufficient to arouse in the de- 
 fendant such passion in him, and while in this condition and before a 
 sufficient length of time had elapsed for his passion to cool, he shot 
 and killed the deceased unlawfully and without justification, he is 
 not guilty either of murder in the first or second degree, but is 
 guilty of voluntary manslaughter only, and by your verdict you 
 should so find.^*^ 
 
 (c) If the killing be purposely and unlawfully done, without pre- 
 meditation, and without malice, express or implied, but voluntarily, 
 upon a sudden heat and under a sufficient provocation, the crime is 
 manslaughter.^^ 
 
 (d) Manslaughter is taking the life of a fellow being in sudden 
 heat and passion superinduced upon a sufficient legal provocation.^^ 
 
 struction strictly applicable by its 
 terms to the crime of manslaugh- 
 ter. In another brief filed for ap- 
 pellant it is insisted that the in- 
 struction is incorrect, because, if 
 appellant shot E. under circum- 
 stances stated in the instruction, 
 he was guilty of murder. It is not 
 necessary that we should say 
 which of these conflicting views is 
 correct. In either view, appellant 
 was not prejudiced in his defense 
 by this instruction. Self-defense 
 was the sole defense relied upon by 
 appellant. This defense was pre- 
 sented to the jury by numerous in- 
 .structions which most liberally, 
 exhaustively, and persuasively ex- 
 pounded the law applicable to that 
 subject. The jury oould by no 
 possibility have acted in ignorance 
 as to appellant's right to slay his 
 antagonist, if apparently necessary 
 so to do in order to save himself 
 from impending danger to life or 
 limb, actual or apparent. Their 
 verdict of manslaughter can mean 
 nothing less than that they were 
 satisfied beyond a reasonable doubt 
 that appellant did not act in 
 justifiable self-defense. We cannot 
 !say that this finding of fact is not 
 correct, and it shuts us up to the 
 conolusion that appellant was 
 guilty of either murder or man- 
 slaughter. A conviction of the 
 lesser of these two crimes will not 
 be set aside because had upon an 
 Instruction, which, if incorrect at 
 
 all, is incorrect only in this: that it 
 directed a verdict of manslaughter 
 upon facts which would have war- 
 ranted a conviction of murder." 
 
 30— Duckworth v. State, 80 Ark. 
 360, 97 S. W. 280 (281). 
 
 31— Henning v. State, 106 Ind. 386, 
 6 N. E. 803 (812), 55 Am. Rep. 756. 
 
 The court said: "We understand 
 the law to be perfectly well settled 
 that an unlawful taking of human 
 life, when done purposely, is mur- 
 der, unless there is a sufficient pro- 
 vocation. It is the provocation that 
 reduces the crime to the grade of 
 manslaughter. The provocation 
 must be a sufficient one to engen- 
 der passion, for without provoca- 
 tion the crime is murder; and the 
 provocation must be a sufficient 
 one, otherwise the passion will not 
 mitigate the offense. There are 
 many cases declaring that passion 
 alone is not enough, but that there 
 must be an adequate provocation, 
 arousing the passion. Boyle v. 
 State, 105 Ind. 469, 5 N. E. 203, 55 
 Am. Rep. 218; Murphy v. State, 31 
 Ind. 511; People v. Turley, 50 Cal. 
 469; 2 Bish. Crim. Law, pars. 701- 
 704." 
 
 32— State v. Foster, 66 S. C. 469, 
 45 S. E. 1. 
 
 The court said: "The definition 
 of manslaughter given by the court 
 was correct, and in accordance 
 with numerous cases in this state, 
 some of which are: State v. Fer- 
 guson, 2 Hill 619, 27 Am. Dec. 412;
 
 1920 FORMS OF INSTRUCTIONS. [§ 3024. 
 
 (e) If, upon consideration of the law and the evidence before 
 you, you should conclude that the defendant is not guilty of murder, 
 it is your duty next to consider whether or not, under the law and 
 the evidence, he is guilty of the crime of manslaughter. Man- 
 slaughter is the unlawful killing of a human being without malice, 
 express or implied, and without deliberation. The killer of a human 
 being in the heat of passion by or with a dangerous weapon, except 
 where the killing is shown by the evidence to be either justifiable or 
 excusable, is manslaughter. If you believe beyond a reasonable doubt 
 from the evidence that the defendant, within the Southern district of 
 
 the Indian Terintory, on the of , by means of firing a leaden 
 
 (bullet out of a Colt's 45 caliber revolving pistol into the head and 
 brain of W., thereby killing the deceased; that said killing was not 
 justified by law, or in necessary or apparently necessaiy self-defense, 
 but was done in the heat of passion, and that said killing was done 
 without malice on the part of the defendant, — the crime would be 
 manslaughter, and you should so find the defendant guilty.^^ 
 
 § 3024, Manslaughter Defined — U. S. Courts. Manslaughter' is the 
 killing of a man unlawfully and willfully, but without malice afore- 
 thought. Malice aforethought, as I have defined it to you, must be 
 excluded from it; that is, the doing of a wrongful act without just 
 cause or excuse and in the absence of mitigating facts in such a way 
 as to show a heart void of social duty and a mind fatally bent upon 
 mischief must be out of the case. If that is driven out of the case, 
 then if it is a crime at all, it must come under this statute; it must 
 come under this definition of the crime of manslaughter. The com- 
 mon law, which I will read to you, defines it in the same way. It 
 tells you in a little broader terms what kind of conditions it springs 
 out of. Speaking of voluntary manslaughter, it says it is the willful 
 
 State v. Smith, 10 Rich. (S. C.) 341; tentional homicide, and mitigates 
 State V. Davis, 50 S. C. 405, 27 S. E. the crime from murder to man- 
 905, 62 Am. St. 837. There was no slaughter, which latter is distin- 
 dispute in this case that the de- guished from murder by the ab- 
 fendant voluntarily killed the de- sence of malice. The example 
 ceased. His plea was that he killed stated by appellant's counsel in the 
 in self-defense. So the court was exception, by way of illustrating 
 dealing with a case of voluntary his view, viz.: 'Where a man kills 
 homicide. The definition of man- his assailant, honestly thinking 
 slaughter in the statute, as the 'un- his own life to be in danger, but 
 lawful killing of another without the jury find from the evidence 
 malice, express or implied,' covers that the circumstances surround- 
 not only voluntary but involuntary ing the transaction were not suf- 
 homicide, as for example, homi- ficient to justify a man of ordi- 
 cide by negligence. But the case nary prudence, firmness and cour- 
 in hand does not necessarily re- age in coming to that conclusion' — 
 quire the broader definition of the merely states a case in which the 
 statute to be given, and was fully plea of self-defense could not be 
 met by the approved definition of sustained, and in which the jury 
 voluntary manslaughter, as based would still have to decide whether 
 upon the common law. Under the the killing was murder, as done in 
 theory of the law 'sudden heat malice, or manslaughter, as done 
 and passion upon sufficient legal in passion engendered by legal 
 provocation' rebuts the implica- provocation." 
 
 tion of malice arising from an in- 33— Williams v. U. S., 4 Ind. Ter. 
 
 269, 69 S. W. 871.
 
 §3025.] CRIMINAL— MANSLAUGHTER. 1921 
 
 and unlawful killing of another on sudden quarrel or in the heat of 
 passion. Let us see what is meant by this definition. The party 
 who is killed, at the time of the killing, must offer some provocation 
 to produce a certain condition of mind. Now, what is the character 
 of that provocation that can be recognized by the law as being suf- 
 ficient to reduce the grade of the crime from murder to manslaughter? 
 He cannot px-oduce it by mere words, because mere words alone do 
 not excuse even a simple assault. Any words offered at the time 
 do not reduce the grade of the killing from murder to man- 
 slaughter. He must be doing some a«t — that is, the deceased, , 
 
 in this case, the party killed — which at the time is of a character 
 that would so inflame the mind of the party who does the killing as 
 that the law contemplates he does not act deliberately, but his mind 
 is in a state of passion; in a heat of passion where he is incapable 
 of deliberating.^* 
 
 § 3025. Manslaughter Defined — Sudden Conflict Arising From 
 Quarrel. The court instructs the jury that the true nature of man- 
 slaughter is that it is a homicide mitigated out of tenderness to the 
 frailty of human nature. Every man when assailed with violence of 
 great rudeness, is inspired with a sudden impulse of anger, which 
 puts him upon resistance before time for cool reflection. If, during 
 that period, he attacks his assailant with a weapon likely to endanger 
 life, and death ensues, it is regarded as done through heat of blood 
 and violence of anger, and not through malice. The same rule ap- 
 plies to a homicide in mutual combat, which is attributed to sudden 
 and violent anger occasioned by the combat, and not to malice. 
 Where two meet, not intending to quarrel, and angry words sud- 
 denly arise, and a conflict springs up, in which blows are given on 
 both sides, it is a mutual combat, without much regard to who is the 
 assailant; and if no unfair advantage be taken in the outset, and an 
 occasion is not sought for the purpose of gratifying malice, and one 
 seizes a weapon and strikes a deadly blow, it is regarded as homi- 
 cide in the heat of blood, and under our statute is manslaughter in 
 the first degree. ^^ 
 
 34 — Allen v. United States, 164 Counsel for plaintiff in error ad- 
 
 U. S. 492 (496), 17 S. Ct. 154. mits that the above instruction 
 
 "There is no error in this instruc- properly states the law where ap- 
 tion. It is well settled by the au- pllcable to the facts. If counsel 
 thorities that words however ag- desired an instruction describing 
 gravating are not sufficient to re- the character of the violence of 
 duce the crime from murder to the blows, and defining what ad- 
 manslaughter." Affirming convic- vantages would be unfair in the 
 tion of murder in U. S. C. C. W. outset, if nothing but words were 
 Dist. Ark. used, and the other matters of 
 
 35— Robinson v. Territory, 16 which they complain, they should 
 
 Okla. 241, 85 Pac. 451 (456, 45S). have requested instructions cover- 
 
 "An instruction identical with ing those matters. The trial court 
 
 this instruction was given in the could not be expected and is not 
 
 case of Commonwealth v. Web- required to instruct upon every 
 
 ster, 5 Cush. 58 Mass. 295, 52 Am. possible question, and it is not 
 
 Dec. 711, and approved by the error to omit to instruct upon some 
 
 Supreme Court of Massachusetts, particular branch of the case 
 
 121
 
 1922 FORMS OF INSTRUCTIONS. [§ 3026. 
 
 § 3026. Manslaughter — Facts Amounting to. (a) The court in- 
 structs the juiy that if you believe from the evidence, beyond a 
 reasonable doubt that the defendant killed the deceased in the heat 
 of passion, without malice, by the use of a deadly weapon, without 
 authority of law, and not in necessary self-defense such killing was 
 manslaughter and the jury should so iind.^* 
 
 (b) If the defendant killed W. J. as charged in the indictment, 
 but at the time of the killing the defendant was not actuated by 
 express malice, but was under the influence of a rash, sudden, and 
 hasty impulse, or under the influence of sudden anger, rage, resent- 
 ment, or terror, then unless such state of mind was produced by some 
 adequate cause, as hereinbefore defined, the offense was murder of the 
 second degree, unless the killing was done under circumstances which 
 under the law justify or excuse it; but if such adequate cause did 
 exist, and produced such sudden anger, rage, resentment, or terror 
 such as rendered the mind of defendant incapable of cool reflection, 
 then the offense is manslaughter, if not justified or excused by law. 
 
 (c) If you believe from the evidence that defendant, J. S., in T. 
 
 County, Texas, on or about the of , , did unlawfully 
 
 kill W. J., as charged in the indictment, but at the time of the kill- 
 ing he (the said defendant) was by some adequate cause moved 
 to such a degree of anger, rage, sudden resentment, or terror as to 
 render him incapable of cool reflection, and that in such a state of 
 mind, and not in his lawful self-defense, he killed the same W. J., 
 then you will find defendant guilty of manslaughter, etc.^^ 
 
 (d) If you should believe from the evidence that the defendant, 
 H. B., entered into the difficulty with the deceased, W. C, voluntarily, 
 or that he brought it on, but that he entered into the difficulty with 
 no design to kill the deceased, or to do him great bodily injury, and 
 at the time of entering into such difficulty he was under the in- 
 fluence of violent passion aroused by the conduct of the deceased, and 
 that while in such passion he killed the deceased, but without a pre- 
 meditated design, and that such killing was under such circumstances 
 as did not justify him upon the grounds of self-defense, or if you 
 have a reasonable doubt as to whether or not the defendant was act- 
 ing from a premeditated design to effect the death of the de- 
 ceased, or under the heat of violent passion, then, in such event, you 
 should acquit the defendant, H. B., of the offense of murder and will 
 find him guilty of manslaughter.^* 
 
 § 3027. Voluntary Manslaughter — What Constitutes, (a) In 
 
 cases of voluntary manslaughter, there must be a serious and highly 
 provoking injury inflicted upon the person killing, sufficient to ex- 
 deemed advisable by the defendant Tex. Cr. App. 543, 67 S. W. 420 
 upon his theory of the case, when (422). 
 
 the defendant has not asked for 37 — Stell v. State, — Tex. Cr. 
 such instruction." App. — , 58 S. W. 75 (76). 
 
 36— Green v. State. — Miss. — , 37 38— Bassett v. State, 44 Fla. 2, 33 
 So. 646 (647); Morgan v. State, 43 So. 262 (264).
 
 § 3027.] CRIMIxNAL— MANSLAUGHTER. 1923 
 
 cite an irresistible passion in a reasonable person, or an attempt by 
 the person killed to commit a serious personal injury on the person 
 killing. The killing must be the result of the sudden, violent im- 
 pulse of passion, supposed to be irresistible ; for if there should ap- 
 pear to have been an interval between the assault or provocation 
 given, and the killing, sufficient for the voice of reason and humanity 
 to be heard, the killing shall be attributed to deliberate revenge, and 
 punished as murder.^" 
 
 (b) If the jury believe, from the evidence, beyond a reasonable 
 doubt, that the defendant unlawfully and feloniously struck the de- 
 ceased a blow which caused his death, then to reduce the killing from 
 murder to manslaughter, the jury must believe, from the evidence, 
 that the provocation for the blow arose at the time the blow was 
 given, and that the passion was not the result of a fonner provoca- 
 tion; that such passion w'as either anger, rage, sudden resentment or 
 terror, which rendered the defendant incapable of cool reflection up- 
 on the character and results of his acts, and that the act was di- 
 rectly caused by passion arising out of such provocation.*" 
 
 (c) The court further instructs the jury that if you believe from 
 the evidence, to the exclusion of a reasonable doubt, that in the 
 county of Daviess, and before the finding of the indictment here- 
 in, the defendant did unlawfully, willfully and feloniously kill and 
 slay one A. B. by shooting him to death with a pistol loaded with 
 powder and ball, or other hard substance, of which shooting and 
 wounding said A. B. did die within a year and a day thereafter, but 
 you further believe from the evidence, to the exclusion of a reason- 
 able doubt, that said shooting was not done maliciously and with 
 malice aforethought, but do believe beyond a reasonable doubt, that 
 same was not done in his necessary self-defense, or what appeared to 
 him at the time to be his necessary self-defense, but was done in a 
 sudden heat and passion, or sudden affray, and under such provoca- 
 tion as was reasonably calculated to excite an ungovernable passion, 
 then you should acquit him of the charge in the indictment, and find 
 him guilty of voluntary manslaughter.'*^ 
 
 (d) If the jury believe that the evidence established beyond a 
 reasonable doubt that the defendant and the deceased had a quarrel 
 
 with each other about the woman , and that the defendant and 
 
 deceased had pistols in their hands at that time, and that, in conse- 
 quence of the controversy about the woman, there arose at that time 
 great heat of blood between the parties, and the mutual combat with 
 intent to fight, and that both, being in a sudden heat of passion, then 
 and thei'e fought with their pistols, and the defendant, being quicker 
 than the deceased, fired and killed the deceased, the jury would be 
 authorized to find the defendant guilty of voluntary manslaughter. •'^ 
 
 39— Bruner v. State. 58 Ind. 159; 41— Connor v. Commonwealth, 26 
 
 Nye v. People, 35 Mich. 16. Ky. L. 398, 81 S. W. 259 (260). 
 
 40— Bayett v. State, 2 Tex. App. 42— Roark v. State, 105 Ga. 736, 32 
 
 93; Seals v. State, 59 Tenn. 459. S. E. 125 (127).
 
 1924 FORMS OP INSTRUCTIONS. [§ 3028. 
 
 § 3028. Manslaughter in the First Degree — Definition of. Man- 
 slaughter in the first degree is the unlawful and intentional killing 
 of a human being without malice express or implied ; and man- 
 slaughter committed under any other circumstances is manslaughter 
 in the second degree. ■*•* 
 
 § 3029. Manslaughter in Second Degree. Every killing of one 
 human being by the act, procurement or culpable negligence of an- 
 other, which the statutes of this state has not declared to be murder 
 nor manslaughter in the first degree, nor excusable nor justifiable 
 homicide, is manslaughter in the second degree. Manslaughter in the 
 first degree and manslaughter in the second degree are lesser de- 
 grees of the crime charged in the information, and should you find 
 the defendant not guilty of muider, but find from the evidence that 
 he is guilty of such lesser degree of crime as above described, you 
 should determine the lesser degree of crime he has committed.** 
 
 § 3030. Manslaughter in Third Degree — In a Heat of Passion and 
 without a Design to Kill — Missouri, (a) If the jury believe from 
 the evidence that the defendant killed the deceased with a large club 
 about four feet in length, and four inches in breadth, and two inches 
 thick, and that the same was a dangerous weapon, in a heat of pas- 
 sion and without a design to kill him, you will find him guilty of man- 
 slaughter in the third degree, unless you further find from the evi- 
 dence such killing was done in self-defense as explained in the in- 
 structions herein, in which event you will find him not guilty.*^ 
 
 (b) The court further instructs the jury that if they find and be- 
 lieve from the evidence that at D. county, Missoui'i, on November 20, 
 , within three years prior to the filing of this indictment, de- 
 fendant, S. L., intentionally and feloniously struck the deceased, J. 
 M., on the head with a pistol, which said defendant then and there 
 
 held in his hand, and that said M. died on December 3, , and 
 
 prior to the finding of this indictment, from the effect of such blow, 
 and that such blow was struck by said defendant in a heat of pas- 
 
 43 — People v. Morine, 138 Cal. a judgment within the penalty at- 
 
 626, 72 Pae. 166 (167). tachecl to a crime of that degree. 
 
 44 — State v. Hubbard, — S. D. — , From an Iowa case, State v. 
 
 104 N. W. 1120 (1121). Clemens, 51 la. 274, 1 N. W. 550, 
 
 "As the mandate of the statute we quote as follows: 'The court 
 
 is, that the jury must find the de- instructed the jury that under the 
 
 gree and the court must instruct indictment, the defendant may be 
 
 as to all matters of law essential found guilty of murder in the first 
 
 to an intelligent consideration of degree, or murder in the second 
 
 the facts, as they may reasonably degree, or not guilty, as the evi- 
 
 appear to the respective members dence in your judgment demands 
 
 of the jury, they might have been at your hands.' The jury were 
 
 misled to the prejudice of the ac- fully instructed as to the necessary 
 
 cused by refusing to give the re- elements of the crime of murder 
 
 quested instruction. Under our in the first degree, and murder in 
 
 statute it is indispensable to the the second degree, but no instruc- 
 
 proper trial of a homicide case that tion was given as to wliat con- 
 
 Ihe degree of crime be ascertained stituted the crime of manslaughter, 
 
 and designated by the jury. The This we think was erroneous." 
 records must show this essential 45 — Approved as one of a series, 
 
 element of the verdict, in order State v. Kinder, 184 Mo. 276, 83 S. 
 
 to enable the court to pronounce W. 964.
 
 §3031.] CRIMINAL— MANSLAUGHTER. 1925 
 
 sion, without a design to effect the death of said J. M., and that said 
 pistol so used was then and there a dangerous weapon, you will find 
 the defendant guilty of manslaughter in the third degree, unless you 
 find that such killing, if done by defendant, was under such circum- 
 stances as to be justifiable under the law as given by the court. 
 If you find the defendant guilty of manslaughter in the third degree, 
 as above defined, you will assess his punishment at imprisonment in 
 the penitentiary not exceeding three years, or imprisonment in the 
 county jail not less than six months, or by a fine not less than five 
 hundred dollars, or both a fine not less than one hundred dollars and 
 imprisonment in the county jail not less than three months.*'* 
 
 § 3031. Manslaughter in the Fourth Degree. Manslaughter is the 
 intentional killing of a human being in a heat of passion on a reason- 
 able provocation, without malice and without premeditating, as these 
 terms are herein defined, and under circumstances that will not be 
 justifiable or excusable homicide. And if the jury find and believe 
 that the defendant in a sudden passion, on a reasonable provocation, 
 intentionally struck and killed the deceased, without malice or pre- 
 meditation, and not in the necessary defense of his person, then the 
 jury should find him guilty of manslaughter in the fourth degree.*^ 
 
 § 3032. Murder and Voluntary Manslaughter Distinguished, (a) 
 If the jury believe from the evidence beyond a reasonable doubt that 
 the defendant, W., in B. county, Kentucky, and before finding of the 
 indictment, did kill M. by shooting him with a pi-stol loaded with 
 leaden ball, or other hard substances, when it was not necessaiy, and 
 did not reasonably appear to defendant to be necessary to protect 
 himself, C. W., S. W., or E. C. from danger, real or apparent, of 
 death or great bodily harm at the hands of M., or those, if any, act- 
 ing in concert with and aiding him, they should find the defendant 
 guilty — that is, guilty of murder — if they believe from the evidence 
 beyond a reasonable doubt that said killing was done unlawfully, 
 willfully, feloniously, and with malice aforethought; but guilty of 
 voluntary manslaughter if the jury believe from the evidence such 
 killing was without previous malice, and should further believe from 
 the evidence beyond a reasonable doubt that it was unlawfully, will- 
 fully, and feloniously done in a sudden affray, or in sudden heat and 
 passion, upon provocation which was reasonably calculated to excite 
 defendant's passion beyond the power of control. If the jury find the 
 defendant g"uilty of murder they will fix his punishment at deatb 
 or confinement in the penitentiary for life. But if they find hia 
 
 46— state v. Lane, 158 Mo. 572, 59 600; State v. Dunn, 80 Mo. 689; 
 
 S. W. 965 (967). State v. Watson, 95 Mo. 411. 8 S- 
 
 The court said: "That the in- "W. 383. But the court was clearly 
 
 struction correctly defined man- justified in this case in suhmittii"- 
 
 slaughter in the third degree can- to the jury whether the defp'idr^--' 
 
 not be doubted. * * * This court intended to kill deceased whe-i he 
 
 has repeatedly ruled that where struck him." 
 
 the killing is intentional or willful 47 — Approved as one o*' a series 
 
 there can be no manslaughter in in State v. Kinder, 184 Mo. 276 33 
 
 the third degree. State v. Edwards, S. W. 964. 
 70 Mo. 480; State v. Curtis, 70 Mo.
 
 1926 FORMS OF INSTRUCTIONS. [§ 3032. 
 
 guilty of voluntary manslaughter, they should fix his punishment at 
 confinement in the penitentiary not less than two nor more than 
 twenty-one years, in their discretion."'^ 
 
 (b) Felonious homicide, at common law, is of two kinds, namely, 
 murder and manslaughter, the difference between which consists 
 principally in this : That in murder there is the ingredient of malice, 
 whilst in manslaughter there is none, for manslaughter, when volun- 
 tary, arises from the sudden heat of the passions, but murder from 
 the wickedness and malignity of the heart. Therefore manslaughter 
 is defined to be the unlawful killing of another without malice, either 
 express or implied, and without premeditation.'*" 
 
 (c) If the accused unlawfully struck and killed McE. under cir- 
 cumstances that the killing was not justifiable or excusable in law, 
 nor murder in any degree, he was guilty of manslaughter.^'' 
 
 (d) The unlawful taking of human life is either murder or man- 
 slaughter and under an indictment charging a party with murder if 
 the evidence is sufficient to justify either of such verdicts, you can 
 find a verdict of guilty either of murder or manslaughter. ''Murder" 
 is the malicious taking of human life; it is nothing more or less than 
 the evil, wicked intent to take human life. This evil, wicked intent 
 to take human life, which is neeessaiy to constitute the crime of mur- 
 der, can be either expressed or implied. It may be expressed by the 
 evil expression of the human li^DS, indicating this intent on the part of 
 the human heart, or it may be implied where the killing 
 takes place under such circumstances as indicate that it must 
 have been prompted by a wicked, evil, depraved heart, devoid of 
 social duty, and fatally bent on mischief. This evil intent must be a 
 premeditated intent to take human life, but. whilst it is necessary for 
 the state to show that the evil intent controlled the act of killing, it 
 is not necessary for the state to show that that evil, malicious intent 
 existed far any given time before the killing. But it must be there ; it 
 must prompt, actuate it, must spring from this wicked hear-t, and 
 must prompt the action of killing, at the time of the killing. And as 
 malice is a question of intent, it is of the utmost importance that the 
 jurors should calmly and dispassionately consider all the testimony 
 bearing upon the fatal act, in order to discover and determine what 
 motive prompted the act of killing at the time. Was the motive this 
 evil intent to take human life? If so, and you are so satisfied; if you 
 are satisfied that the deceased came to his death at the hands of the 
 prisoner at the bar by shooting with a pistol, a,nd that the prisoner at 
 the bar was at the time of the shooting actuated and prompted by 
 this evil, malicious intent to take human life, — he is in law guilty of 
 murder, and your verdict should so find. But if you conclude that the 
 state has failed to establish his guilt of murder beyond a reasonable 
 
 48_Watkins v. Commonwealth, 50— Gray v. State, 42 Fla. 174, 28 
 
 29 Ky. Law 1273, 97 S. W. 740. So. 53 (55). 
 
 49— State v. Brinte, — Del. — , 58 See also State v. Hicks, 113 La. 
 
 Atl. 258 (262). 779, 37 So. 753.
 
 § 3033.] CRIMINAL— MANSLAUGHTER. 1927 
 
 doubt, then you are to go a step further and under this indictment 
 you are to consider and detennine whether or not the state has failed 
 to establish his griilt of manslaughter beyond a reasonable doubt. 
 Now, what is manslaughter? Manslaughter is where the act of kill- 
 ing is not prompted by this evil, wicked intent to take human life, as 
 in the case of murder, but it is distinguished from murder by the ab- 
 sence of malice. It is where the killing takes place under the impulse 
 of sudden heat and passion, aroused by a lawful provocation, and un- 
 der circumstances, that the law will not excuse the act of killing.^^ 
 
 (e) The jury are instnacted, that if from motives of hatred, re- 
 venge, jealousy, or for any wrong or injui-y, real or imaginary, a sane 
 person kills another, the killing will be referred to malice, and must 
 be regarded as murder. If, however, the killing is the result of a sud- 
 den, violent impulse of passion, caused by a serious or highly pro- 
 voking injui-y inflicted upon the person killing, and which is sufficient, 
 in the minds of the jury, to excite an irresistible passion in a reason- 
 able person, and the interval of time between the provocation and the 
 killing is not sufficient for the passions to cool and the voice of reason 
 and humanity to be heard, then the killing is manslaughter, and not 
 murder. ^2 
 
 (f) If a homicide is committed under the influence of passion, 
 or in the heat of the blood, produced by an adequate or reasonable 
 provocation, and before a reasonable time has elapsed for the blood 
 to cool, and reason to resume its habitual control, and is the result of 
 the temporary excitement by which the control of reason was dis- 
 turbed, the offense is manslaughter and not murder.^^ 
 
 (g) If you shall believe from the evidence, beyond a reasonable 
 doubt, that defendant, A. W., in this county, and before the finding of 
 the indictment herein, feloniously shot with a pistol, and killed, 
 L. M., not in the necessary or apparently neeessaiy self-defense of 
 himself of A. M., you will find the defendant A. W. guilty, guilty 
 of willful murder if same was done with malice aforethought; guilty 
 of voluntary manslaughter if same was done in sudden heat and 
 pas'sion, and without previous malice.^* 
 
 § 3033. Manslaughter Distinguished From Self-Defense. Now, 
 gentlemen, these are the three conditions which I give you in the 
 case. I have told you that if it is true that this defendant went 
 up on one side of the fence and when there struck H. in the mouth 
 and then shot him, that is murder. On the other hand, if it is 
 true that H. and the other boys attacked him with sticks, and while 
 that attack was going on and in the heat of that affray, and the 
 sticks were not of a dangerous or deadly character, and under such 
 circumstances he shot and killed H., that would be manslaughter; 
 
 51— State v. Petsch, 43 S. C. 132, 54— Of a series that included the 
 
 20 S. E. 993 (994). above, the court said: This was a 
 
 52— Schnier v. People, 23 111. 1; correct statement of the law. Wil- 
 
 Fisher v. People, 23 111. 283. son v. Commonwealth, 24 Ky. Law 
 
 53_People v. Borgetto, 99 Mich. 185, 68 S. W. 121 (122). 
 336, 58 N. W. 328 (329).
 
 1928 FORMS OF INSTRUCTIONS. [§ 3034. 
 
 but if there was an absence of that condition, then there is no man- 
 slaughter in it, nor could there be any self-defense in it. There could 
 be nothing else but this distinct grade of crime known as murder; 
 because self-defense, as I have before defined to j^ou, contemplates 
 the doing of something upon the part of the one slain, or the ones 
 acting with him, that was either actually and really so apparently 
 of a deadly character, or which threatened great violence to the 
 person, or that which seemed to do so. If they assaulted him with 
 these stacks, and they were not deadly weapons, and they were 
 engaged in a conflict, and in that conflict the defendant shot H., 
 without previous preparation, without previous deliberation, without 
 previous selection of a deadly weapon, without a contemplated pur- 
 pose to use that deadly weapon in a dangerous way, then that would 
 be manslaughter, and it could not be self-defense, because the in- 
 jury received would not be of that deadly character or that dangerous 
 nature that could give a man the I'ight to slay another because of 
 threatened deadly injury or actual great bodily injury received. ^^ 
 
 § 3034. Under Indictment For Murder Verdict May Be For Man- 
 slaughter, (a) The jury are instructed, that under an indictment 
 for murder, a party accused may be found guilty of manslaughter. 
 And in this ease, if after a careful and dispassionate consideration 
 of all the proof and circumstances in evidence before you, you have 
 any reasonable doubt as to whether the defendant is guilty of 
 murder, then you should consider whether he is guilty of man- 
 slaughter; and if from a full and careful consideration of all the 
 evidence before you, you believe, beyond a reasonable doubt, that 
 the defendant is guilty of manslaughter, you should so find by 
 your verdict and in that event it will be your duty to fix, by your 
 verdict, the term for which he shall be confined in the penitentiary, 
 which may be for any length of time, not less than one year, and it 
 may be for the term of his natural life.^*^ 
 
 (b) Under any indictment for murder of the first degree, the jury 
 may find the accused guilty of either murder of the first or second 
 degree, or of manslaughter, according as the law and the evidence 
 may warrant; but, unless they shall find the accused guilty of one 
 of these three grades of homicide, they must acquit and render a 
 general verdict of not guilty.^'' 
 
 (c) The charge of murder embraces or includes the charge of 
 manslaughter; and if the jury believe from the evidence, beyond a 
 reasonable doubt, that the defendant killed the deceased without 
 malice and in the heat of passion, and not in necessary or apparently 
 necessary self-defense the jury should find the defendant guilty of 
 manslaughter.^^ 
 
 55— Allen v. United States, 157 57— State v. Brinte, — Del. — , 58 
 U. S. 675,(677), 15 S. Ct. 720. Atl. 258 (262). 
 
 56— SchQier v. People, 23 111. 1. 58— Green v. State, — Miss. — , 37 
 
 So. 646 (647).
 
 §3035.] CRIMINAL— MANSLAUGHTER. 1929 
 
 (d) The indictment in this ease charges the highest degree of 
 felonious homicide known to the law, that is, murder in the first 
 degree, and under this indictment, if the evidence requires it, as 
 explained in these instructions, the juiy may find the defendant 
 guilty of either murder in the first or second degree, or of volun- 
 tary or involuntary manslaughter, or the jury may find the defendant 
 not guilty.^^ 
 
 (e) If the evidence, under the instruction of the court as to the 
 law of the case, require it, you may find the defendant guilty of 
 murder in the first or in the second degree, or you may find him guilty 
 of manslaughter, or you may find him not guilty. If all the alle- 
 gations in the indictment have been proved to your satisfaction, 
 beyond a reasonable doubt, you should find the defendant guilty of 
 murder in the first degree. If all the allegations of the indictment 
 have been proved beyond a reasonable doubt, except the allegation 
 of deliberate or permeditated killing, you should find the defendant 
 guilty of murder in the second degree; and if you find, from the 
 evidence, beyond a reasonable doubt, that the defendant did un- 
 lawfully kill the deceased, upon a sudden quarrel, and without malice, 
 or unintentionally, while the defendant was attempting to commit 
 any unlawful act not amounting to felony, then the offense would be 
 manslaughter; or if the jury have any reasonable doubt, arising upon 
 all the evidence in the case, as to the defendant being guilty of one 
 of these crimes, they should simply find the defendant not guilty.'^'' 
 
 (f ) Under the laws of this state unlawful homicide may be either 
 murder in the first, second or third degree, or manslaughter; and 
 under an indictment of murder in the first degree, as in this case, 
 the defendant may be convicted of any one of the offenses of which 
 the evidence establishes his guilt beyond any reasonable doubt. ^'^ 
 
 § 3035. Murder or Voluntary Manslaughter — Reasonable Doubt 
 As to Which, to Be Resolved In Favor of Manslaughter — Where there 
 Are Two Motives Ascribed, Any Doubt Should Be Resolved In Favor 
 of Defendant, (a) If the jurj- believe from the evidence beyond a 
 reasonable doubt that the defendant, G. W., has been proved guilty 
 of murder or voluntary manslaughter, but have from the evidence 
 a reasonable doubt as to which of said crimes, if either, he is guilty 
 of, they should, in that event, find him gniilty of voluntai-y man- 
 slaughter.®- 
 
 (b) I charge you that the burden is on the state to establish the 
 guilt of the defendant bej-ond a reasonable doubt, and if you have 
 a reasonable doubt as to what motive prompted the defendant to kill 
 the deceased, that is, whether in so killing him, the mind of the 
 defendant was aroused to such a degree of anger, rage, sudden re- 
 sentment or teiTor sufficient to render it incapable of cool reflection 
 
 59_Archey v. St.ate, 60 Ind. 56. 61— Graj' v. State, 42 Fla. 174. 28 
 
 60— Binns v. State. 66 Ind. 428; So. 53 (55). 
 Adams v State, 29 Ohio St. 462. 62— Watkins v. Commonwealth, 29 
 
 Kv. Law 1273. 97 S. W. 740.
 
 1930 FORMS OF INSTRUCTIONS. [§ 3036. 
 
 by reason of having been informed of insults to his wife, or that he 
 so killed the deceased from some other motive or cause, then you will 
 resolve this doubt in favor of this defendant, and find him guilty of 
 manslaughter.**^ 
 
 § 3036. Homicide — Degree of — Several Defendants. If the jury 
 believe from the evidence beyond a reasonable doubt that M. was 
 unlawfully, willfully, feloniously, and with malice aforethought, or 
 in sudden affray, or sudden heat and passion, shot and killed by 
 C. W., S. W., or E. C, when it was not necessary, and did not 
 reasonably appear to the one doing the killing to be necessary, to 
 protect himself, G. W., or the other persons associated with him at 
 the time, from danger, real or apparent, of death or great bodily 
 harm at the hands of M., or those acting in concert with him, and 
 shall further believe from the evidence beyond a reasonable doubt 
 that the defendant, G. W., was present at the time, and did unlaw- 
 fully, willfully and feloniously aid, abet, advise, counsel, or en- 
 courage the said C. W., S. W., or E. C, or the one of them who did 
 the said killing, they should find the defendant, G. W., guilty, that is, 
 guilty of murder, if they believe from the evidence beyond a reason- 
 able doubt that said aiding, abetting, advising, consulting, or encour- 
 aging, if he did same, was done with malice aforethought, but guilty 
 of voluntary manslaughter if they believe from the evidence such 
 aiding, abetting, advising, consulting, or encouraging, if any was 
 done, without previous malice, and shall further believe from the 
 evidence beyond a reasonable doubt that it was done in sudden affray, 
 or in sudden heat and passion, upon provocation which was reason- 
 ably calculated to excite his passion beyond the power of con- 
 trol.o* 
 
 § 3037. Under the Immediate Influence of Sudden Passion — ^Provo- 
 cation Must Arise At the Time of the Killing — Passion and Adequate 
 Cause Defined, (a) Manslaughter is voluntary homicide committed 
 under the immediate influence of sudden passion, arising from 
 an adequate cause, but neither justified nor excused by law. 
 By the expression, "under the immediate influence of sudden pas- 
 sion," is meant that the provocation must arise at the time of the 
 killing, and that the passion is not the result of former provocation, 
 and the act must be directly caused by the passion arising out of the 
 provocation, if any, at the time of the killing. It is not enough that 
 the mind is merely agitated by passion arising from other provoca- 
 
 63 — Ray v. State, — Tex. Cr. as the record Is concerned; and we 
 
 A pp. — , 85 S. W. 1151 (1152). are of the opinion that these 
 
 "We believe these charges suf- charges sufficiently informed the 
 flciently presented this issue to jury that, where there are two 
 the jury. There were two motives causes or reasons for the killing, 
 ascribed to appellant — one by the the jury should give the benefit of 
 state, on account of the former the doubt to the accused, and con- 
 grudges and trouble; and the sec- vict of the lesser offense. We be- 
 ond claimed by himself, by reason lieve there is no such error in this 
 of the Insulting conduct toward his record as requires a reversal." 
 wife. There were no other motives 64 — Watkins v. Commonwealth, 
 or reasons for the killing, so far 29 Ky. L. 1273, 97 S. W. 740.
 
 §3038.] CRIMINAL— MANSLAUGHTER. 1931 
 
 tion, or a provocation given by some person other than the party 
 killed. 
 
 (b) The passion intended is any of the emotions of the mind 
 known as anger, rage, sudden resentment, or terror, rendering the 
 mind incapable of cool reflection. 
 
 (c) By the expression "adequate cause" is meant such as com- 
 monly produces a degree of anger, rage, sudden resentment, or terror 
 in a person of ordinary temper sufficient to render the mind incapable 
 of cool reflection. Any condition or circumstance which is capable 
 of creating, and does create, sudden passion, as anger, rage, re- 
 sentment, or terror, rendering the mind incapable of cool reflection, 
 whether accompanied by bodily pain or not, is adequate cause. 
 
 (d) In order to reduce a voluntary homicide to the grade of man- 
 slaughter, it is necessary not only that adequate cause existed to 
 produce the condition of mind known as aiiger, rage, sudden resent- 
 ment, or terror, such as to render it incapable of cool reflection, but 
 also that such state of mind did actually exist at the time of the com- 
 mission of the offense, and that it was produced by such adequate 
 cause. "^^ 
 
 § 3038. In the Heat of Overwhelming Passion, Superinduced By 
 Sudden and Sufficient Provocation — Sudden and Uncontrollable Pas- 
 sion, (a) But should 3'ou not so find, and from the evidence, be- 
 yond a reasonable doubt, that the defendant, at the time and place 
 and by the means and in the manner set forth in the indictment, 
 slew the deceased unlawfully in the heat of overwhelming passion, 
 superinduced by sudden and sufficient provocation on the part of the 
 deceased, to throw a reasonable and cautious man into a sudden and 
 unconti'ollable passion, and that the defendant then and there in- 
 stantly fired upon and slew the deceased, then you may find the de- 
 fendant not guilty of manslaughter.^® 
 
 (b) If you believe from the evidence bej'ond a reasonable doubt 
 
 that in the county of , with the weapon and before the date 
 
 aforesaid, the defendant, in sudden heat and passiion, created by such 
 provocation as is ordinarily calculated to excite the passions beyond 
 control, and which did then and there excite the passions of defendant 
 beyond control, and without previous malice, willfully shot B. M., 
 from which shooting said B. M. then and there presently died, you 
 should find defendant guilty of voluntary manslaughter, and fix his 
 punishment at confinement in the penitentiary for not less than two 
 (2) nor more than twenty-one (21) years.'^^ 
 
 65 — Stell V. State, — Tex. Cr. sion 'in sudden heat and passion,' 
 
 App. — . 58 S. W. 75 (76). and therefore the use of the former 
 
 66— Kirby v. State, 44 Fla. 81, 32 was supererogatory and prejudi- 
 
 So. S37. cial. Admitting-, for the purposes 
 
 67_Metcalfe v. Commonwealth, of this case, that the two expres- 
 
 27 Ky. L. 704, 86 S. W. 534 (535). sions 'in sudden heat and passion' 
 
 "This instruction is criticised be- and 'without previous malice' are 
 cau.=e it contains the expression so antag-onistic that the existence 
 'without previous malice,' it being of one excludes the other as mo- 
 said that the absence of malice is tive for crime, the use of the one 
 necessarily included in the expres- after the other was only surplus-
 
 1932 FORMS OF INSTRUCTIONS. [§ 3039. 
 
 § 3039. Provocation and Passion Must Concur. To extenuate an 
 unlawful killing, and reduce it to nianslaug'bter, two facts must 
 concur: There must be at the time of the killing both passion and 
 provocation. Pi'ovocation without passion will not extenuate, nor 
 will passion merely without provocation reduce the unlawful kill- 
 ing from murder to manslaughter.*'^ 
 
 § 3040. Slight or Trivial Provocation Not Sufficient — Provocation 
 Defined. The court instructs the jury that the law does not per- 
 mit the taking of human life in rage or passion occasioned by in- 
 adequate provocation — that is, by slight or trivial provocation — but 
 it must be such as would, in the mind of an average man, be calcu- 
 lated naturally to arouse such rage and passion as would render the 
 mind uncontrollable in its impulses to take life.*'^ 
 
 § 3041. Manslaughter — Malice and Intent Not Essential. In de- 
 termining whether a person is guilty of manslaughter, it is not neces- 
 sary to show that he intended to kill the person or that he had any 
 malice; it is sufficient if it is shown that he did some unlawful act to 
 the person, such as striking him a blow, and death resulted from 
 that blow, without regard to malice, and without regard to in- 
 tent."^" 
 
 § 3042. Manslaughter— Sheriff Killing One Who Attempts to Re- 
 lease Prisoner. If the jury believe from the evidence that defendant 
 was a deputy sheriff, and while engaged in the lawful discharge of 
 his duties, had arrested one J. W. for a violation of the law, and the 
 said J. W. was resisting said arrest, and that thereupon deceased 
 eame up in a hostile manner and made an assault upon defendant, 
 and struck him several blows on the head with a stick, not a deadly 
 weapon, and defendant became excited and aroused by passion to 
 such an extent that he was incapable of cool reflection, and under 
 such state of mind he shot and killed deceased, he would be guilty 
 of manslaughter.'^^ 
 
 § 3043. Manslaughter — Killing In Attempt to Procure Abortion. 
 The killing of another in an act not of itself dangerous to life, but 
 which results in death, contrary to the Avill and design of the doer, 
 
 age, and not prejudicial to the sub- the killing-. Held that, therefore, 
 
 stantial rights of the accused. But an instruction on the theory that 
 
 we think the use of both was prop- he was enraged beyond the control 
 
 er to make clear to the minds of of his reason could not be given, 
 the jury that, to reduce homicide 69 — Hicklin v. Territory, — Ariz, 
 
 from murder to manslaughter, — , 80 Pac. 340 (343). 
 there must not exist 'malice afore- "In the ahstract, that is a cor- 
 
 thought.' Frequently tautology is rect declaration of the law, and, 
 
 useful when clearness of meaning while its incorporation in the 
 
 rather than logical refinement is definition of the provocation neces- 
 
 desired." sary to reduce homicide from mur- 
 
 6g — Williams v. U. S., 4 Ind. Ter. der to manslaughter might be crit- 
 
 269, 69 S. W. 871. An instruction icised, the court did not stop here, 
 
 as to sudden passion must rest but went further, and charged the 
 
 upon evidence. jury fnllv on this subject." 
 
 Tn Commonwealth v. Mr>r}owan, 7<^ — T^ponle t McArron, 121 Mich 
 
 189 Pa. 641, 42 Atl. 365, 69 Am. St. 1, 79 N. 'W. 944 (958). 
 836. the defendant testified that he 71— Williams v. State, 41 Tex. Cr 
 
 was perfectly cool at the time of App. 365, 54 S. W. 759 (760).
 
 §3044.] CRIMINALr— MANSLAUGHTER. 1933 
 
 when eommitted in procuring or attempting to procure an abortion, 
 is voluntary' manslaughter.'^ 
 
 § 3044. Manslaughter — Knowledge of Intimacy of Deceased With 
 Defendant's Wife, (a) By the expression "adequate cause" is 
 meant such as would commonly produce a degree of anger, rage, 
 sudden resentment or terror in a person of ordinary temper suffi- 
 cient to render it incapable of cool reflection. The following are 
 deemed adequate causes: (1) Adultery of the person killed with the 
 wife of the person guilty of the homicide, provided the killing oc- 
 curred as soon as the facts of an illicit connection is discovered; 
 (2) insulting words or conduct of the person killed towards the 
 wife of the party gTiilty of the homicide, provided the killing takes 
 place immediately upon the happening of the insulting conduct; (3) 
 any condition or circumstance which is capable of creating, and 
 which does create, in the mind of the person guilty of the homicide 
 such a degree of anger, rage, sudden resentment or terror as to render 
 it incapable of cool reflection, is adequate cause. 
 
 (b) Now, if 5'ou believe from the evidence in this case that de- 
 fendant had heard of the adulteiy of A. B. with his wife, and that 
 as soon as the fact of the illicit connection was discovered he shot 
 and killed the said A. B., in etc., about etc., and you further find 
 that at the time of the killing there was aroused in the mind of 
 defendant such a de'gree of anger, rage, sudden resentment or terror 
 which rendered it incapable of cool reflection, then you will find 
 defendant guilty of manslaughter. Or if you find from the evidence 
 that defendant saw deceased use insulting conduct towards his wife, 
 and that he immediately upon the happening of the insulting con- 
 duct shot with a gun and killed deceased at time and place men- 
 tioned in the indictment. Or if he had been infonned of insulting 
 conduct of deceased towards his (defendant's) wife, and that as 
 soon thereafter as defendant met deceased he shot with a gun and 
 killed said deceased at time and place in indictment charged; and 
 if you further find that at the time of the killing his mind was 
 aroused to such a degree of anger, rage, sudden resentment or terror 
 as to render it incapable of cool reflection — then you will find de- 
 fendant guilty of manslaughter. Or, if you believe from the evi- 
 dence that from any condition or circumstance which Avas capable 
 of creating in the mind of a pei-son of ordinary temper such a degree 
 of anger, rage, sudden resentment or terror as to render it incapable 
 of cool reflection, and if you further believe that such condition or 
 circumstance, whatever it may have been, did arouse in the mind of 
 the defendant such a degree of anger, rage, sudden resentment or 
 terror as to render it incapable of cool reflection, and that while 
 in such state of mind he shot and killed A. B., at time and place 
 
 79_riark V Commonwealth, 23 such killingr was held murder in 
 
 Kv L 10''9 ill Ky. 443, 63 S. W. the first decree, and conviction and 
 
 740 (746) But see Gantlins v. State, death sentence affirmed. 
 40 Fla. 237, 23 So. 857 (859), where
 
 1934 FORMS OF INSTRUCTIONS. [§ 3045. 
 
 in indictment alleged, then you will find him guilty of manslaughter. 
 By the term *'meet," as used in the foregoing charge, signifies that 
 the parties were brought into such proximity as would enable de- 
 fendant to act in the premises, whether armed or unarmed.''^ 
 
 § 3045. Manslaughter — Negligence Causing Boiler Explosion. The 
 fact of the explosion, and even the possibility of guarding against 
 it, do not necessarily make out a case of culpable negligence. Very 
 few acts in life are done with such care to prevent accidents, as 
 would have been possible. The law only requires of any one that 
 degree of care and prudence which persons who are reasonably care- 
 ful ordinarily observe. To require more would be to put every one 
 under restraints in the management of his business and in his deal- 
 ings with others, which would be more hurtful in the embarrass- 
 ments they would cause than beneficial in the protection they would 
 give against injuries. Whether the absence of the defendant from 
 the boiler room at the time of the explosion was negligence depends 
 upon circumstances. If we find that the defendant, from his past 
 experience, from his knowledge of the boiler, and the flow of oil, 
 and of the burner, had reason to believe, and in fact did believe, 
 that it was consistent with safety to be absent from the boiler, as 
 he was at the time of the explosion, then he was not, in law, guilty 
 of criminal negligence by reason of such absence.''* 
 
 § 3046. Form of Verdict. If you find the. defendant guilty of 
 willful murder, you will fix his punishment at death or confinement 
 in the state penitentiary for life, in your discretion. If you find him 
 guilty of voluntary manslaughter, you will fix his punishment at con- 
 finement in the state penitentiaiy for not less than two and not more 
 than twenty-one years, in your discretion. If you find him not guilty, 
 you will say so, and no more.'^^ 
 
 73_Brown v. State, 45 Tex. Cr. the particular questions raised in 
 
 App. 139, 75 S. W. 33. these requests. Tiie requests should 
 
 "We think, when these para- have been given. It cannot be 
 
 graphs are considered together, that an act done in good faith, 
 
 there is no such error apparent as based upon what experience has 
 
 would be calculated to injure the shown to be safe, is criminally neg- 
 
 rights of appellant." ligent. Schroeder v. Car Co., 56 
 
 74_People v. Thompson, 122 Mich. Mich. 132, 22 N. W. 220; Cheboygan 
 
 411 81 N. W. 344 (352). Lumber Co. v. Delta Transp. Co., 
 
 "The judge did not give these re- 100 Mich. 16, 58 N. W. 661; Whalen 
 
 quests but gave a general charge v. Railroad Co., 114 Mich. 512, 72 
 
 as to what would be culpable neg- N. W. 232." 
 
 ligence which, in the main, was a 75— Wilson v. Commonwealth, 24 
 
 correct statement of the law, but Ky. L. 185, 68 S. W. 121 (122). 
 it did not instruct the jury upon
 
 CHAPTER xcvrn. 
 
 CRIMINAL— HOMICIDE— ELEMENTS OF. 
 
 See Erroneous Instructions, same chapter head. Vol. III. 
 
 INTENT. 
 
 § 3047. Presumption that one in- 
 tends the natural, ordi- 
 nary and usual conse- 
 quences of his voluntary 
 acts. 
 
 § 3048. Unlawful act— P resumed 
 that the act was done ad- 
 visedly — Deliberate intent 
 to kill — Malice afore- 
 thought. 
 
 § 3049. The question of intent is for 
 the jury — Weapons used. 
 
 § 3050. Right of jury to infer intent 
 from the defendant's acts. 
 
 § 3051. Facts showing killing to 
 have been willful and mali- 
 cious. 
 
 § 3052. Instrument used to be taken 
 into consideration in judg- 
 ing the intent. 
 
 § 3053. Blow with the fist— Pre- 
 sumption as to intent. 
 
 § 3054. Time when the intent to 
 take life was formed is 
 not material. 
 
 § 3055. Concealment of the body not 
 conclusive proof of intent. 
 
 § 3056. Distinction between intent 
 and premeditated design. 
 
 5 3057. Administering poison — Ne- 
 cessary intent to constitute 
 murder. 
 
 5 3058. "Willfully," "deliberately," 
 "premeditatedly," and 
 
 "malice aforethought" de- 
 fined. 
 
 MALICE. 
 
 § 3059. Malice defined. 
 
 § 3060. Malice presumed from fact 
 of killing— Death by vio- 
 lence. 
 
 § 3061. May be implied from the 
 facts — Express malice em- 
 braces implied malice and 
 may be proved even if not 
 charged. 
 
 § 3062. Malice — Includes every un- 
 lawful and unjustifiable 
 motive. 
 
 § 3063. Malice— Without justification 
 or excuse. 
 
 1935 
 
 § 3064. Malice — An essential ingre- 
 dient of murder — Absence 
 of, reduces crime to man- 
 slaughter. 
 
 § 3065. Malice — How proven. 
 
 § 3066. Malice may be proved by 
 prior threats or seeking an 
 opportunity to perpetrate 
 the act. 
 
 DEADLY WEAPON. 
 
 § 3067. Deadly weapon defined. 
 
 § 3068. Whether certain instruments 
 are deadly weapons, ques- 
 tion of fact — Metallic 
 knucks — Gas pipe. 
 
 § 3069. Deadly weapon — Presump- 
 tion from killing with — 
 Provocation. 
 
 § 3070. Using deadly weapon — Pre- 
 sumed to intend death. 
 
 § 3071. Previously formed design to 
 use deadly weapon. 
 
 § 3072. Deadly weapon — Malice pre- 
 sumed from use of — May 
 be rebutted. 
 
 § 3073. Malice not a necessary in- 
 ference from killing with 
 deadly weapon. 
 
 § 3074. Circumstances from which 
 to determine whether or 
 not blow caused the death. 
 
 § 3075. Mere possession of deadly 
 weapon by deceased no de- 
 fense. 
 
 MOTIVE. 
 
 § 3076. Failure to prove motive. 
 
 § 3077. Motive to defendant— How 
 determined by jury. 
 
 5 3078. Motive — State not required 
 to prove, to convict. 
 
 § 3079. Reconciliation in good faith 
 lived up to — Previous trou- 
 bles not considered as af- 
 fording a motive. 
 
 PKEMEDITATION. 
 
 Meaning of "Premeditate." 
 Same subject — Need not take 
 any particular time. 
 
 3082. Premeditated design— Mutu- 
 
 al combat. 
 
 3083. Premeditation distinguishing 
 
 § 3080. 
 § 3081.
 
 1936 
 
 FORMS OF INSTRUCTIONS. 
 
 [§ 3047. 
 
 characteristic of murder in 
 the first degree. 
 
 § 3084. Meaning- of "Sedate and de- 
 liberate mind" — Texas 
 statute. 
 
 § 3085. No presumption of premedi- 
 tated design. 
 
 TKOVOCATION. 
 
 § 3086. Provocation — Mere words not 
 sufficient. 
 
 § 30S7. Provocation — Insulting words 
 to defendant's wife — Other 
 relatives. 
 
 § 3088. Provocation — Mere threats 
 not sufficient. 
 
 § 3089. Violent passion caused by 
 insulting language may re- 
 duce grade of homicide. 
 
 § 3090. Provocation — If sufficient. 
 Manslaughter. 
 
 § 3091. Slap with hand not sufficient 
 provocation, when. 
 
 § 3092. 
 § 3093, 
 § 3094. 
 § 3095. 
 § 3096. 
 
 § 3097. 
 
 § 3098. 
 
 § 3099. 
 § 3100, 
 
 Provocation— Past conduct 
 of deceased as evidence of. 
 
 Provocation — Jury to deter- 
 mine adequacy. 
 
 Provocation — Standard for 
 determining sufficiency. 
 
 Provocation — Heat of blood 
 — Cooling time. 
 
 Cooling time — Facts held to 
 constitute — Question of 
 law. 
 
 DYING DECLARATIONS. 
 
 Dying declaration — Why it is 
 admissible — Weight of for 
 jury. 
 
 Dying declarations — Weight 
 of for jury— What may be 
 taken into consideration. 
 
 Dying declarations, founda- 
 tion for. 
 
 Dying declaration to be re- 
 ceived with caution. 
 
 INTENT. 
 
 § 3047. Presumption that One Intends the Natural, Ordinary and 
 Usual Consequences of His Voluntary Acts, (a) The law presumes 
 that every sane person contemphTtes and intends the natural, ox'di- 
 nary and usual consequences of his own voluntary acts, unless the 
 contrary appears, from the evidence; and if a man is shown by the 
 evidence, beyond a reasonable doubt, to have killed another by any 
 act, the natural and ordinary consequences of which would be to pro- 
 duce death, then it will be presumed that the death of the deceased 
 was designed by the slayer, unless the facts and circumstances of the 
 killing or the evidence creates a reasonable doubt whether the killing 
 was done purposely.^ 
 
 (b) The court instructs the jury that it is a well-settled rule of 
 law that a sane man, a voluntary agent, acting upon motives, must be 
 presumed to contemplate and intend the necessary, natural, and 
 probable consequences of his own act. If, therefore, one voluntarily 
 or willfully and deliberately does an act which has a direct tendency 
 to destroy another's life or destroy and injure his property, the nat- 
 ural and necessary conclusion from the act is that he intends so to 
 destroy such life or destroy or injure such property.- 
 
 § 3048. Unlawful Act — Presumed that the Act Was Done Advised- 
 ly — Deliberate Intent to Kill — Malice Aforethought, (a) When a 
 man commits an unlawful act, unaccompanied by circumstances justi- 
 fying its commission, it is a presumption of law that he is acting ad- 
 visedly, and with the intention to produce the consequences which 
 have ensued.^ 
 
 (b) How can you find a deliberate intent to kill? Do you have 
 to see whether or not the man had that intent or not in his mind a 
 
 l_Archer v. State. 64 Ind. 56. 3— Hayne v. State, 99 Ga. 212, 25 
 
 2_Approved as one of a series in S. E. 307 (311). 
 Keady v. People, 32 Colo. 57, 74 
 Pac. 892 (894).
 
 § 3049.] CRIMINAL— HOMICIDE— INTENT. 1937 
 
 year or month or day or an hour? Not at all, for in this age of im- 
 proved weapons, when a man can discharge a gun in the twinkling 
 of an eye, if you see a man draw one of these weapons, and fire it, 
 and the man toward whom he presents it falls dead, you have a 
 deliberate intent to kill, as manifested by the way he did that act. 
 You have the existence of a deliberate intent, though it may spring 
 up on the spur of the moment, as it were, spring up contemporaneous 
 with the doing of it — evidence by shooting of the man, if the act was 
 one he could not do under the law and then claim it was man- 
 slaughter, or an act that he could not do in self-defense from the 
 fact that it was done without just cause or excuse, or in the absence 
 of mitigating facts, and that is precisely this characteristic of mui*- 
 der, known as malice aforethought. It does not, as I have already 
 told you, neeessarilj' import any special malevolence towards the 
 individual slain, but also includes the ease of a generally depraved, 
 wicked and malicious spirit, a heart regardless of social duty, and a 
 mind deliberately bent on mischief. It imports premeditation. Malice, 
 says the law, is an intent of the mind and heart.'* 
 
 § 3049. The Question of Intent Is for the Jury — Weapons Used./ 
 In all cases of homicide, the law requires as an element of guilt aa 
 intent to kill; and if, in this case you find that defendant did noti 
 when he struck H. (if you find he did strike him) intend to kill him, 
 then you should acquit him of all grades of homicide, and inquire 
 only as to whether he is guilty of an aggravated assault.^ 
 
 § 3050. Right of Jury to Infer Intent from the Defendant's Acts. 
 
 4_Anen v. United States, 164 U. the evidence that the manner in 
 
 S. 492 (495), 17 S. Ct. 154. which it was used made it 
 
 5 — In Danforth v. State, 44 Tex. evident that defendant intended to 
 Cr. App. 105, 69 S. W. 159 (162), kill, before the jury would be war- 
 it was held error to refuse this in- ranted in finding defendant guilty 
 struction. The court said: "The of homicide. In passing upon a 
 question here presented was before similar question. Judge Hurt, in 
 us in Honeywell v. State, 40 Texas Fitch v. State, 37 Tex. Cr. App. 
 Cr. App. 199, 49 S. W. 586. We 500, 36 S. W. 584, said: 'Where 
 there held that under article 717, the homicide was not com- 
 Pen. Code, which provides: 'The mitted in the perpetration of a fel- 
 instrument or means by which a ony, and the circumstances do not 
 homicide is committed are to be show a cruel or evil disposition on 
 taken into consideration in judging the part of defendant, the intent 
 of the intent of the party offend- to kill cannot, as a matter of law, 
 Ing; if the instrument be one not be inferred from a killing with a 
 likely to produce death, it is not stick four feet long and two inches 
 to be presumed that death was de- in diameter.' And for other au- 
 signed, unless from the manner in thorities on the same question see 
 which it was used such intention Shaw v. State, 34 Tex. Cr. App. 
 evidently appears,' it becomes a 435, 31 S. W. 361; Griffin v. Slate, 
 question of fact for the jury to 40 Tex. Cr. App. 312, 50 S. W. 366. 
 determine as to whether or not 76 Am. St. 718; Johnson v. State, 
 snid intent exists. In other words, 42 Tex. Cr. App. 377, 60 S. W. 48; 
 where the instrument is one not Martinez v. State, 35 Tex. Cr. App. 
 likely to produce death, then it 386, 33 S. W. 970; Bell v. State. 17 
 becomes a controverted question of Tex. App. 552; Dones v. Stnte. 8 
 criminal intent that should be sub- Tex. App. 112; Nichols v. State, 
 mitted by a proper charge to the 24 Tex. App. 137, 5 S. W. 661; Boyd 
 jury; and it must appear from v. State, 28 Tex. App. 137, 12 S. W. 
 
 737. 
 
 122
 
 1938 FORMS OF INSTRUCTIONS. [§ 3051. 
 
 The law says we have no power to ascertain the certain condition of 
 a man's mind. The best we can do is to infer it more or less satis- 
 factorily from his acts. A person is presumed to intend what he 
 does. A man who performs an act which it is known will produce 
 a particular result is, from our common exj^erience, presumed to have 
 anticipated that result and to have intended it. Therefore we have 
 a right to say, and the law says, that when a homicide is committed 
 by weapons indicating design that it is not necessai-y to prove that 
 such design existed for any definite period before the fatal blow was 
 struck. From the very fact of a blow being struck, from the very fact 
 that a fatal bullet was fired, we have the right to infer as a presump- 
 tion of fact that the blow was intended prior to the striking, although 
 at a period of time appreciably distant.*^ 
 
 § 3051. Facts Showing Killing to Have Been Willful and Malicious. 
 
 (a) If you believe the story as narrated by the two Erne boys, who 
 testified as witnesses, is true — that is, that the defendant went up to 
 the fence with his pistol; that he went through the wire fence, and 
 went into the wheat field where H. was, and met him, first halloed 
 at him, placed his pistol upon the fence, and stopped the boys, and 
 then went through the wire fence and went out to where he was, 
 and struck him first in the mouth with his left fist, and at the same 
 time undertook to fire upon him, and that that firing was prevented 
 by the action of H. in taking hold of the pistol, and it went off into 
 the ground, and then he fired at him and struck him in the side, and 
 then he fired at him and struck him in the back, you have a state of 
 facts which would authorize you to say that the killing was done 
 willfully; and, not only that, because that state of case, if that be 
 true, would show the doing of a wrongful act, an illegal act, without 
 just cause or excuse, and in the absence of mitigating facts to reduce 
 the grade of the crime. '^ 
 
 (b) If you find from the evidence beyond a reasonable doubt that 
 the defendant, H., had inflicted upon X., the deceased, a mortal 
 wound by shooting said X. with a pistol, and the said X., iromediate- 
 ly after the infliction of the injury, staggered, retreated, or traveled 
 away from the defendant, and ceased to make any demonstration 
 towards defendant, or to make any effort to inflict injuiy upon the 
 defendant, and immediately thereafter, but after defendant had 
 become separated from said X. a distance of from twenty to forty 
 feet, the said defendant arose in his buggy, and deliberately dis- 
 charged a second shot at or in the direction of said X., whether the 
 second shot did or did not strike the person of said X., you may 
 consider the circumstances of the firing of said second shot, along 
 Avith all the other circumstances of the case so proven, as tending 
 to show malice in the mind of the defendant.^ 
 
 6— Allen v. United States, 164 U. 8— Harris v. State, 155 Ind. 265. 
 
 S. 492 (496), 17 S. Ct. 154. 58 N. E. 75 (77). 
 
 7— Allen v. United States, 164 U. The court said: "The evidence, 
 
 S. 492 (494), 17 S. Ct. 154. it is true, discloses that the first
 
 §3052.] CRIMINAL— HOMICIDE— INTENT. 1939 
 
 § 3052. Instrument Used to Be Taken into Consideration in Judg- 
 ing the Intent, (a) The instruments or means by which the homicide 
 is committed are to be taken into consideration in judging the intent 
 of the party offending. If the instrument be one not likely to pro- 
 duce death it is not to be presumed that death was designed, unless 
 from the manner it was used such intention evidently appears.^ 
 
 (b) You are charged that, unless you believe beyond a reasonable 
 doubt that the instrument used in inflicting wounds upon deceased 
 was a deadly weapon, you cannot convict defendant of any degree of 
 homicide, unless you further believe from the evidence beyond a rea- 
 sonable doubt that, from the manner and mode of its use, if any, an 
 intention to kill evidently ajDpears; and, unless you so believe beyond 
 a reasonable doubt, you will acquit the defendant of any grade of 
 homicide. ^° 
 
 § 3053. Blow with the Fist — Presumption as to Intent. A mere 
 blow with the fist may produce death, but very rarely, and would 
 scarcely fix the intent of such consequence. It may however be given 
 with such violence, and under such circumstances that the necessary 
 intent may be inferred. ^^ 
 
 § 3054. Time When the Intent to Take Life Was Formed Is Not 
 Material. The court instructs the juiy that if you believe from the 
 evidence beyond a reasonable doubt that the defendant, in connec- 
 tion with W. T., and A. T., willfully, deliberately, and maliciously, 
 and after premeditation and deliberation, killed J. F., the defendant 
 would be guilty of murder, and the time when the intent to take life 
 was formed was not material. All that is necessary in order to sus- 
 tain a conviction of murder in the first degree is that it be shown 
 from the facts and circumstances, beyond a reasonable doubt, the 
 design and intent to take the life of the deceased was formed in their 
 minds as the result of premeditation by defendant before the act of 
 killing.i2 
 
 shot was the fatal one. It is also State, 45 Tex. Cr. App. 560, 78 S. 
 
 shown that after appellant had W. 930 (932); Spivey v. State, 45 
 
 fired it, and after the deceased, in Tex. Cr. App. 496, 77 S. W. 444 
 
 the very agony of death, had stag- (445). 
 
 gered away from appellant to a 10— Early v. State, — Tex. Cr. 
 
 distance of some 20 or 40 feet, and App. — , 97 S. W. 82. 
 
 was apparently in the act of fall- In comment the court said: "As 
 
 ing- appellant stood up in his bug- we view the evidence, it shows 
 
 gy and deliberately fired the second that the knife was a very large 
 
 shot at him. The charge present- spring-baclc affair, the blade of 
 
 ed against appellant, and which which was something over three 
 
 was in issue upon the trial, was inches long. If this be true, then 
 
 that of malicious murder. The bur- the charge was highly beneficial to 
 
 den of proving malice was upon appellant. But if the knife was 
 
 the state, and it had the right to smaller than the one suggested, 
 
 have the jury consider all of the then the issue w^ould be in the case, 
 
 circumstances bearing unon this and the charge would be highly 
 
 feature of the case, regardless of proper. In no event could it have 
 
 the fact as to whether such cir- injured appellant." 
 
 oumstances happened before or 11— Winter v. State, 123 Ala. 1, 26 
 
 after the homicide." So. 949 (9.i0). 
 
 9— Barbee v. State, — Tex. Cr. 12— Vasser v. State. 75 Ark. 373- 
 
 App — 97 S. W. 1058; Perrin v. 87 S. W. 635 (636).
 
 1940 
 
 FORMS OP INSTRUCTIONS. 
 
 [§ 3055. 
 
 § 3055. Concealment of the Body Not Conclusive Proof of Intent. 
 The court instructs you that concealment of the body after the act, 
 where there was no previous preparation, is not conclusive proof of 
 intent. ^^ 
 
 § 3056. Distinction Between Intent and Premeditated Design. 
 There may, in contemplation of law, be an intention to kill a human 
 being which may not amount to a premeditated design to kill. Shoot- 
 ing a man intentionally and killing him is not necessarily the same 
 as doing so with a premeditated design to kill him. There may be 
 an intention to kill without its having been premeditated. In order 
 to convict the defendant, M. C. C, of murder in the first degree, you 
 must be satisfied from the evidence beyond a reasonable doubt, that 
 the defendant M. C. C. not only had an intention to kill the de^ 
 ceased, but that he actually had a premeditated design to kill him.^* 
 
 § 3057. Administering Poison — Necessary Intent to Constitute 
 Murder. But if you find that the defendant, unlawfully with bad 
 intention, caused poison to be taken by M., you should find the de- 
 fendant guilty of murder in the first degree; but, if you fail to so 
 find, your verdict should be not guilty.^^ 
 
 13— State V. Thomas, 50 La. Ann. 
 148, 23 So. 250 (251). 
 
 The instruction requested by the 
 defendant was as follows: 
 
 Concealment after the act, where 
 there was no previous preparation, 
 is not necessary evidence of intent. 
 
 Held error to refuse this or an 
 equivalent instruction. The court 
 said that the word evidence is 
 often used as equivalent to proof. 
 "Evidence of concealment is ad- 
 missible, as it goes to show crimi- 
 nal intent, and as such it should 
 be weighed, but it is proper on re- 
 quest, to instruct the jury that it 
 does not nece.ssarily constitute 
 proof. It admits of no question 
 that concealment after the fact is 
 not proof conclusive of intent to 
 commit murder. For instance, in 
 a case of manslaughter, the slayer 
 may seek to conceal the body of 
 his victim without its being an evi- 
 dence of the previous intent to 
 murder. We are of the opinion, 
 under the circumstances, the jury 
 should have been instructed, in 
 view of the terms of the original 
 charge, that concealment after the 
 deed was not conclusive proof of 
 intent." 
 
 14_Cook v. State, 46 Fla. 20, 35 
 So. 665 (669). 
 
 This- instruction is "sub.stantially 
 the law as laid down in Garner v. 
 State. 28 Fla. 113, 9 So. 835, 29 Am. 
 St. 2.32, and should have been 
 given." 
 
 15— State V. Thomas, — la. — , 109 
 N. W. 900 (902). 
 
 "An objection made to this 
 charge is that a homicide commit- 
 ted by the unlawful administration 
 of poison with bad intention is not 
 necessarily murder, but that it 
 may be manslaughter, depending 
 upon the nature of the intent with 
 which the poison was administered. 
 The question is not as to the de- 
 gree of murder, for it is provided 
 in Code 4728, that: 'All murder 
 which is perpetrated by means of 
 poison * * * is murder in the 
 first degree.' But the question is 
 whether the crime might not be 
 manslaughter. The abstract in- 
 quiry to which our attention is 
 thus directed is this: May there 
 be a homicide committed by the 
 unlawful administration of poison 
 under such circuiustances as to 
 render the perpetrator thereof 
 guilty of a crime which does not 
 constitute the crime of murder? 
 Or, in other words, does the fact 
 of the unlawful and wrongful ad- 
 ministration of poison, causing 
 death, in itself show that malice 
 aforethought which characterizes 
 murder as distinct from man- 
 slaughter? There can be but one 
 an!--wer to this question under the 
 decisrons of this court, and it is 
 not necessary to go further in dis- 
 cussing the question for the present 
 case. In State v. Robinson, 126 Ta. 
 70, 101 N. W, 634, it was held that
 
 §3058.] 
 
 CRIMINAI^HOMICIDE— MALICE. 
 
 1941 
 
 §3058. "WiUfuUy," "Deliberately," "Premeditatedly" and 
 "Malice Aforethought" Defined. The court instructs the jury that 
 the term "willfully," as used in the instructions, means intention- 
 ally; that is, not accidentally. "Deliberately" means in a cool state 
 of the blood, not in a sudden passion engendered by a lawful or some 
 just cause or provocation. "Premeditatedly" means thought of 
 beforehand for any length of time, however short. "Malice," in 
 common acceptation, means ill will against a person; but in its legal 
 sense it means a wrongful act done intentionally, without just cause 
 or excuse. "Malice aforethought" means that the act was done with 
 malice and premeditation.^^ 
 
 MALICE. 
 
 § 3059. Malice Defined, (a) By malice is meant not only anger, 
 hate and revenge, but any other unlawful and unjustifiable motive. ^^ 
 
 an indictment for murder by means 
 of a felonious administration of 
 poison need uot specifically allege 
 an intent to kill. In State v. Wells, 
 61 la. 629, 17 N. W. 90, 47 Am. Rep. 
 822, it was held that it was suf- 
 ficient to charge that the poison 
 was unlawfully administered, and 
 not given with a good intention, 
 and the court says: 'The adminis- 
 tration of the poison unlawfully 
 with a bad motive or intent, un- 
 der the statute constitutes murder, 
 if death ensues. * * * It is im- 
 material whether or not there is a 
 specific intent to kill. It is funda- 
 mental that every one is presumed 
 to intend the necessary conse- 
 quences of an act deliberately done 
 by him.' The result of our cases 
 as we understand them, is to hold 
 that the administration of poison 
 unlawfully and with bad intent 
 constitutes malice aforethought 
 without specific intent to kill, just 
 as a felonious act of inflicting a 
 grievous bodily injury supplies tlio 
 malice aforethought necessary to 
 constitute murder, although there 
 is no specific intent to kill proven 
 in connection with the infliction cf 
 such injury. Malice aforethought 
 does not necessarily reauire for its 
 existence an intent to take life. 
 Death resulting from the attempt 
 to commit any felony, even though 
 its tendency in itself is not to 
 cause death, will supply the mal- 
 ice aforethought necessary to con- 
 stitute murder. 1 Mcl.ain's Crimi- 
 nal Law^ 322, 325, 326. Thus, in 
 Ptate V. Moore, 25 la. 128, 95 Am. 
 Deo. 776, it was hold that death 
 caused in the unlawful attempt to 
 procure an abortion necessarily 
 constituted murder irrespective of 
 
 whether there was any intent to 
 take life, or whether the crime of 
 abortion was a felony. And it is 
 said 'that malice may be implied 
 from unlawful acts dangerous to 
 life committed without lawful 
 justification.' Certainly the un- 
 lawful administration of poison is 
 an act also dangerous to life, and 
 we do not see why it does not 
 necessarily amount in law to the 
 malice aforethought which will 
 characterize death resulting there- 
 from as murder. The general con- 
 clusion that any criminal homi- 
 cide caused by the wrongful ad- 
 ministration of poison is murder in 
 the first degree is supported by 
 numerous cases decided by this 
 court. See State v. Bertoch, 112 
 Iowa 195, 83 N. W. 967; State v. 
 Burns, 124 la. 207, 99 N. W. 721; 
 State V. Van Tassel, 103 la. 6, 72 
 N. W. 497. There was no error in 
 the instruction given." 
 
 16 — Appro\-ed as one of a series in 
 State V. Kinder, 184 Mo. 276, 83 S. 
 W. 964. 
 
 Nearly similar instructions were 
 approved in State v. Gatlin, 170 
 Mo. 354, 70 S. W. 885 (888) and 
 State V. Privitt, 175 Mo. 207, 75 S. 
 W. 457 (458). 
 
 17— State v. Hunter, 118 la. 686, 
 92 N. W. 872 (874). 
 
 "The use of the word 'anger' is 
 criticised. Such use was approved 
 in the famous case of Com. v. 
 Webster, 5 Cush. (Mass.) 304, 52 
 Am. Dec. 711, and we are not dis- 
 posed to quarrel with the definition 
 there given, although there may be 
 cases where it would be improper 
 to use the word. Not so here, how- 
 ever."
 
 1942 FORMS OF INSTRUCTIONS. [§ 3059. 
 
 (b) Malice, in its legal sense, differs from the meaning which it 
 bears in common speech. In common acceptation it signifies ill will, 
 hatred or revenge towards a particular individual. Such a condition 
 of mind would, of course, constitute malice in the eye of the law, but 
 such is not necessarily its legal sense. Malice, in its legal sense, 
 denotes that condition of mind which is manifested by the intention- 
 ally doing of a wrongful act without just cause or excuse. It means 
 any willful or corrupt intention of the mind.^^ 
 
 (c) ''Malice" in the law and as used in the statutes defining mur- 
 der has a technical meaning, including not only anger, hatred and 
 revenge, but every other unlawful and unjustifiable motive. It is not 
 confined to ill will towards one or more individual persons, but is 
 used and intended to denote an action growing from any wicked or 
 corrupt motive, — a thing done with bad or malicious intent; where 
 the fact has been attended by such circumstances as carry in them 
 the plain indication of a heart regardless of social duty, and fatally 
 bent on mischief; and therefore malice is implied from any deliber- 
 ate and cruel act against another, however sudden.^^* 
 
 (d) Malice, within the meaning of the law, includes not only 
 anger, hatred, and revenge, but every other unlawful and unjustifi- 
 able motive; that the tenn ** malice" has in law a twofold significa- 
 tion. There is what is known as ''malice in fact" and "malice in 
 law," or "implied malice," in the legal sense. Malice sigTiifies a 
 wrongful act intentionally done without justification or legal excuse. 
 
 18 — Housh v. State, 43 Neb. 163, law correctly. The part more es- 
 
 61 N. W. 571 (572). pecially criticised by counsel for 
 
 "The above definition of malice, appellant is the latter part, where- 
 
 it is argued, is incomplete, but we in it is stated that 'malice is im- 
 
 regard it as substantially within plied from the deliberate and cruel 
 
 the definition in Harris v. State, 8 act against another, however sud- 
 
 Tex. App. 90, and which was ap- den.' It is contended that this part 
 
 proved in Carr v. State, 23 Neb. 749, of the charge invades the province 
 
 37 N. W. 630. It is certainly not in of the jury. This error, in our 
 
 conflict with the authorities cited judgment, cannot be successfully 
 
 by Reese, J., in the last named imputed to the instruction. The 
 
 case, and possesses merits which court thereby merely advises the 
 
 cannot, unfortunately, be claimed jury that malice, as a legal infer- 
 
 for every instruction which we ence, may be deduced from the per- 
 
 have had occasion to examine, viz., petration of any deliberate and 
 
 brevity and perspicuity." cruel act by one person against an- 
 
 19 — Harris v. State, 155 Tnd. 265, other. It is certainly evident that 
 
 58 N. E. 75 (77). such an inference may be drawn 
 
 "Substantially the same as an in- from an act or deed so committed, 
 
 struction given upon that question and this statement to the jury by 
 
 in the celebrated trial of John W. the court, in regard to such a legal 
 
 Webster upon the charge of the mur- proposition, cannot be said to be 
 
 der of Dr. Parkman. See Com. v. an invasion upon any of their 
 
 Webster, 5 Cush. 295, 52 Am. Dec. rights. Of course, the inference 
 
 711. The definition of 'malice' as arising from such an established 
 
 therein given was referred to with fact or facts is not conclusive, but 
 
 approval and adopted by this court may be rebutted by countervailing 
 
 in Coghill v. State, 37 Ind. Ill; and evidence, and in this light, in the 
 
 was again approved in McDermott absience of anything to the con- 
 
 V. State, 89 Ind. 187. The instruc- trary, we must presume the charge 
 
 tion in question, considered as an was understood by the jury." 
 entirety, in our opinion states the
 
 §3060.] CRIMINAI^— HOMICIDE— MALICE. 1943 
 
 Express malice is that deliberate intention of taking away unlawfully 
 the life of a fellow creature which is manifested by external eir- 
 eumstances capable of proof. Malice may be found when no con- 
 siderable provocation appears, and when all the circumstances of the 
 assault show an abandoned and malignant heai't. Malice is not con- 
 fined to ill will toward an individual, but it is intended to denote an 
 action flowing from any wicked and coiTupt motive. A thing done 
 with a wicked mind, and attended with such circumstances as plainly 
 indicate a heart regardless of social duty, and fully bent on mischief, 
 indicates malice within the meaning of the law; hence malice may 
 be found from any deliberate and cool act against another, however 
 sudden, which shows an abandoned and malignant heart. ^^^ 
 
 § 3060. Malice Presumed from Fact of Killing— Death by Vio- 
 lence, (a) In evei-y charge of murder, the fact of killing being first 
 proven, all the circumstances of action, necessity, or infirmity, are to 
 be satisfactorily proven by the prisoner, unless they arise out of 
 the evidence produced against him; for the law presumeth the fact 
 to have been founded in malice, until the contraiy appear. The mat- 
 ters tending to justifj', excuse, or alleviate must appear in evidence 
 "i before he can avail himself of them,-^ 
 
 1 (b) "When the state proves a homicide by violence, and nothing 
 more appears, the law calls that murder. It fixes the crime as mur- 
 der, with malice attached to it, and it then becomes incumbent upon 
 the person killing to show that the homicide is either manslaughter 
 or justifiable. 2- 
 
 § 3061. May be Implied from the Facts — Express Malice Em- 
 braces Implied Malice and May be Proved even if not Charged, (a) 
 Implied malice is constructive malice, and not a fact to be proved 
 specifically. It is inference or conclusion founded up>on the facts 
 and circumstances of the case as they are ascertained to exist, thus: 
 When the pi'oof shows an unlawful killing, and no evidence has been 
 adduced establishing the existence of express malice on the one hand, 
 or which tends to establish any justification, excuse, or mitigation on 
 the other, the law implies malice, and the murder is of the second 
 degree. But in this connection you are charged that where an indict- 
 ment charges murder or implied malice alone, and the evidence estab- 
 lishes or tends to establish express malice as a fact, it is not to be 
 understood that such proof would, on the one hand, be incompetent, 
 nor, on the other, that it would create a variance from the allegation 
 in the indictment; but such evidence, notwithstanding it shows ex- 
 press malice, would in such case be sufficient to warrant a conviction 
 for murder in the second degree, since express malice comprises and 
 embraces implied malice, just as murder of the first degree embraces 
 murder of the second degree.-' 
 
 20— Downing v. State, 11 Wyo. 86, 22— Hinkle v. State, 94 Ga. 595, 21 
 
 70 Pac. 833 (834); Blume v. State, S .E. 595 (601). 
 
 154 Ind 343, 56 N. E. 771 (774). 23— Wilson v. State, — Tex. Cr. 
 
 21— Brown v. State, 62 N. J. L. App. — , 90 S. W. 312 (315). 
 «66, 42 Atl. 811 (823).
 
 1944 FORMS OF INSTRUCTIONS. [§ 3061. 
 
 (b) Murder is defined by tlie law to be ttie unlawful killing of 
 a human being then and there in the peace of the United States, 
 with malice aforethought either express or implied. Express malice 
 is that deliberate intention of the mind unlawfully to take away the 
 life of a human being, which is manifested by external circumstances 
 capable of proof. Malice, in general terms, may be defined to be the 
 doing of a wrongful act intentionally, without just cause or excuse. As 
 employed in the foregoing definition of murder, the term *' malice'* 
 includes in its meaning all those states of the mind under which the 
 killing of a human being takes place without any cause which will in 
 law justify, excuse or extenuate the homicide. ''Malice," as used in 
 this incident, does not mean mere spite, ill will, or dislike, as it is 
 ordinarily understood, but it means that condition of the mind which 
 prompts one person to take the life of another without just cause or 
 legal justification. There need be no appreciable space of time be- 
 tween the formation of the intention to kill and the killing. They 
 may be as instantaneous as successive thoughts. It is only necessary 
 that the act of killing be preceded by the concurrence of the will, 
 deliberation and premeditation on the part of the slayer. Malice in- 
 cludes not only anger, hatred and revenge but every other unlawful 
 and unjustifiable motive. It is not confined to ill will towards an 
 individual, but is intended to denote an action ai'ising fi-om any 
 wicked and corrupt motive. Malice may be inferred when any un- 
 lawful act is done with a wicked mind, when the fact is attended by 
 such circumstances as evince a plain indication of a heart, regardless 
 of social duty and fatally bent on mischief. Hence malice maj' be 
 imiolied from any deliberate and unlawful act of one person against 
 another, however sudden, if the unlawful act be of such a character 
 as to show an abandoned and malignant disposition. Malice, in con- 
 nection with the crime of killing, is but another name for a condition 
 of a man's heart and mind; and, as no one can look into the heart of 
 another, and thus learn its condition, the only way to decide upon 
 this condition at the time of the killing is to infer it from the sur- 
 rounding facts. The presence or absence of this mental condition 
 marks a boundary which separates the two crimes of murder and 
 manslaughter. Malice shall be implied when no considerable provoca- 
 tion appears, and where all the circumstances manifest an abandoned 
 and wicked disposition. 2* 
 
 (c) Every person, with a sound memory and discretion, who shall 
 unlawfully kill any reasonable creature in being within this state, 
 with malice aforethought, either expressed or implied, shall be deemed 
 guilty of murder. All murder committed with express malice is 
 murder of the first degree. ''Malice aforethought" is a term used 
 in law to designate the wicked and mischievous intent with which a 
 man willfully does a wrongful act, and it is to be inferred from acts 
 committed or words spoken. Express malice exists where a murder 
 
 24^Williams v. U. S., 4 Ind. Ter. 269, 69 S. W. 871.
 
 3062. 
 
 CRIMINALf— HOMICIDE— MALICE. 
 
 1945 
 
 is committed with sedate, deliberate mind on the part of the mur- 
 derer, and in pursuance of a formed design to kill the person killed. 
 The mind of the murderer need not be entirely free from excitement 
 in order to bring it within the meaning of the term "sedate and 
 deliberate"; for, if it be in such condition as to admit of reflection 
 upon the character of the act, then it is sedate and deliberate, within 
 the meaning of the law.-^ 
 
 § 3062. Malice — Includes Every Unlawful and Unjustifiable Mo- 
 tive. The court instructs the jury that malice includes not only 
 anger, hatred and revenge, but every other unlawful and unjustifiable 
 motive. Malice is not confined to ill will towards an individual, but 
 is intended to denote an action flowing from any wicked and corrupt 
 motive — a thing done with a wicked mind — where the fact has been 
 attended with such circumstances as evince plain indications of a 
 heart regardless of social duty and fatally bent on mischief; hence 
 malice is implied from any deliberate or cruel act against another, 
 which shows an abandoned or malignant heart.-*^ 
 
 § 3063. Malice — Without Justification or Excuse, (a) In this 
 case, if defendant intentionally and vvrongfuUy killed the deceased, 
 without any justification or excuse, then he killed him with malice, 
 and that would constitute murder.-'^ 
 
 25— Cain v. State, 42 Tex. Cr. 
 App. 210, 59 S. W. 275 (276). 
 
 Approving- this and quoting- from 
 Harris v. State, 8 Tex. App. 90, 
 109, the court said: 
 
 "About as clear, comprehensive 
 and correct definition as the au- 
 thorities afford is that 'malice is 
 the condition of the miud which 
 shows a heart regardless of social 
 duty and fatally bent on mischief, 
 the existence of which is inferred 
 from acts committed or words 
 spoken.' " This has been recog- 
 nized as a correct definition by 
 courts of last resort, and one which 
 announces a true rule by which to 
 measure malice under our statute 
 of murder. Another equally cor- 
 rect rule is thus stated: 'Malice, in 
 its legal sense, means the inten- 
 tional doing of a wrongful act 
 towards another without legal 
 .iustification or excuse.' Each form 
 has been employed in charges, and 
 sometimes both have been em- 
 bodied. It is wholly immaterial 
 which is used, as they have been 
 held to con•^?ey substantially the 
 p^me idea. For a discussion of 
 this matter see M-^'-t'nA/. v. State, 
 30 Tex. Anp. 129. 16 S. W. 767, 28 
 at". St. 895, and authorities there 
 coT'q'pd." 
 
 ?6_McCoy V. People, 175 111. 224 
 (229>. 51 N. E. 777. 
 
 "The objection is made that the 
 
 words 'every other unlawful and 
 unjustifiable motive' broadened the 
 instruction to include every motive, 
 whether growing out of the evi- 
 dence of the case on trial or not. 
 We do not think the instruction is 
 subject to the criticism. It is a 
 literal copy of one given in Jack- 
 son V. People, 18 111. 269." 
 
 27— State v. McDaniel, 68 S. C. 
 304, 47 S. E. (387), 102 Am. St. 661. 
 
 The court said: "In the sentence 
 just preceding the one excepted to, 
 the court said: 'In its general 
 signification, 'malice' means the 
 doing of a wrongful act intention- 
 ally, without justification or ex- 
 cuse.' This is substantially the 
 famous definition of 'malice' by 
 Bayley, J., in Bromage v. Proser, 
 10 E. C. L. 321: 'Malice,' in com- 
 mon acceptation, means ill will 
 against a person, but in its legal 
 sense it means a wrongful act done 
 intentionally without just cause or 
 excuse.' In State v. Doig, 2 Rich. 
 Law. 182. our court said: 'In law 
 'malice' is a term of art. import- 
 ing wickedness, and excluding- a 
 just cause or excuse." There can 
 be no doubt, under the decisions 
 in tMs state, that malice is pre- 
 .^umed from an intentioml killing, 
 in the absence of facts and circum- 
 stances in evidence tending to show- 
 want of malice. State v. Hopkins, 
 15 S. C. 153; State v. Ariel, 38 S. C.
 
 1946 FORMS OF INSTRUCTIONS. [3 8064. 
 
 (b) The phrase '^ malice aforethought" means a predetermination 
 to do the act of killing without legal excuse, and it is immaterial how 
 suddenly or recently before the killing such determination was 
 formed.-* 
 
 (c) ''Malice/' as the word is used in courts of law, signifies a 
 wrongful act done intentionally, without legal justification or excuse. 
 The word, as commonly used in everyday affairs of life, has, I be- 
 lieve, the meaning of personal hatred or ill will. This is something 
 more than its meaning here. In this case it signifies the formed de- 
 sign on the part of the defendant to take the life of the deceased 
 unlawfully, not in self-defense, and without such provocation allowed 
 by the law to be such as would repel the imputation of malice. In 
 other words, malice is criminal intention.-'' 
 
 § 3064. Malice — An Essential Ingredient of Murder — Absence of, 
 Reduces Crime to Manslaughter, (a) The distinguishing feature 
 between murder and manslaughter is the ingredient of malice. Malice 
 aforethought is as essential an ingredient of murder as the act of 
 killing. In the absence of malice, such killing is manslaughter, unless 
 you should find from the evidence that such killing was done in neces- 
 sary self-defense.^*^ 
 
 (b) Malice, as the word is used in defining criminal offenses, de- 
 notes a criminal act done intentionally and without just cause or 
 excuse. The intention is an inference of law resulting from the 
 
 221 16 S B. 779; State v. Jones, 29 whatever attaching-. It would 
 S C 20l' 7 S E 296; State v. Alex- therefore be wrong to hold that the 
 ander 3o' S C 7-i, 8 S. E. 440, 14 Am. word 'excuse' was Intended by the 
 St 879 But the' court in this case court or understood by the jury 
 left it to the jury to decide whether to be used in the absence of some- 
 the killing was intentional, and thing which renders one wholly 
 whether malice was any justifica- excusable or justifiable, but, on the 
 tion or excuse, and in that event contrary, it should be held to in- 
 malice existed and the killing elude also any legal extenuation of 
 would be murder An intentional the offense charged. The diction- 
 homicide without any excuse, is aries gives as one definition of 'ex- 
 certainly' murder. The language cuse,' 'a plea offered in extenua- 
 'without any justification or ex- tion of a fault or neglect.' Bou- 
 cuse' not only excludes justifiable vier's Law Dictionary says: Thi3 
 and excusable homicide,' but homi- word presents two ideas, differing 
 cide extenuated to manslaughter essentially from each other. In one 
 because done in sudden heat and case an excuse may be made m or- 
 passion upon sufficient legal prove- der to show that the party accused 
 cation It must not be supposed is not guilty; in another, by show- 
 that the word 'excuse' is only ap- ing that, though guilty, he is less 
 Dlicable to excusable homicide, as so than he appears to be. In the 
 homicide in self-defense. In the case of State v. Mason, 54 S. C. 
 earlv stages of the common law 240, 32 S. E. 357, the court sustained 
 there was ground for distinction a charge to the effect that malice 
 between justifiable and excusable is implicated from an intentional 
 homicide, when the accused was killing, without justification or ex- 
 not entitled to an acquittal in case cuse." 
 
 of excusable homicide, but upon 2S-Clark v Commonwealth. 23 
 
 special verdict was entitled to par- Ky L \029, 111 Ky. 443, 63 S. W. 
 
 don; but now the distinction is of ^^^J^i-/: ,, „ ^f^f^ iift aip i'^i 
 no practical importance, as in both 29— btoball v. State, 116 Ala. 454, 
 
 cases the accused is entitled to an 23 So. lb... 
 
 acduittal, and there is no penalty ^i^Vs pIc 427' (429)!^ '
 
 § 3065.1 CRIMINAI^— HOMICIDE— MALICE. 1947 
 
 doing of the act, except in rare instances, where the intention is ex- 
 pressly declared by the wrongdoer, and except where the circum- 
 stances rebut the presumption of its existence. Malice is presumed 
 where one person deliberately injures another. It is the deliberation 
 with which the act is performed that gives it a malicious character. 
 It is the opposite of an act performed under sudden or uncontrollable 
 passion, which prevents the deliberation of cool reflection in fonning 
 a purpose. Hence, if in this case you should find that the act charged 
 is not, when committed, accompanied by wa-ong intent and cool reflec- 
 tion, but was, on the contrary, the result of sudden and uncontrollable 
 passion, produced by adequate cause or provocation, then the defend- 
 ant would be guilty of no higher degree than manslaughter.^^ 
 
 § 3065. Malice — How Proven. Malice may be established by 
 proof of cool, calm, and circumsi>ect deportment and bearing of the 
 party when the act of killing is done, immediately preceding and 
 subsequent thereto; his apparent freedom from passion or excite- 
 ment; the absence of any obvious or known cause to disturb his mind 
 or arouse his passion.^^ 
 
 § 3066. Malice May be Proved by Prior Threats or Seeking an 
 Opportunity to Perpetrate the Act. (a) Malice may be proved by 
 direct evidence, such as prior threats, or seeking an opportunity to 
 perpetrate the act. This is called express malice, and proof of such 
 malice in this case would be^ evidence of premeditation, and would 
 make the case murder in the first degree, if otherwise made out 
 beyond a reasonable doubt. Malice may also be implied from the act 
 of killing; as if the killing is done purposely, and without justifica- 
 tion, legal excuse, or reasonable provocation. And if the act is per- 
 petrated with a deadly weapon so used as to be likely to produce 
 death, the purpose to kill may be inferred from the act.^^ 
 
 (b) Express malice is that deliberate intention unlawfully to 
 take away the life of a fellow creature which is manifested by ex- 
 ternal circumstances capable of proof, such as previous difficulties, 
 
 31 state V. Vance, 29 "Wash. 435, wise made out beyond a reasonable 
 
 70 Pac 34 (45) doubt;' but, considered in connec- 
 
 32— Howard v State, — Tex. Or. tion with the other parts of the in- 
 
 _A.pp _ 58 S W 77 (78). struction, it is clear that the state- 
 
 33— Boyle v State, 105 Ind. 469, ment quoted could not have misled 
 
 5 N E 203 (207), 55 Am. Rep. 218. the jury. The meaning conveyed is 
 
 "The 'express malice of which the that, if all the other elements of 
 
 Instruction speaks is that evi- murder in the first degree were 
 
 denced by threats, and the efforts proved beyond a reasonable doubt, 
 
 to secure opportunities to slay the then proof of previous threats, and 
 
 deceased, and it is certainly not er- efforts to kill, would make out a 
 
 ror to charge the jury that the ut- case of murder m the first degree 
 
 tering of threats, and the effort to This is correct as an abstract 
 
 secure an opportunity to kill the proposition of law; for, if all the 
 
 deceased mav be regarded as evi- other ingredients of the crime were 
 
 dence of' premeditation. The only proved, as purpose, malice, and the 
 
 noint wherein the instruction is like, then premeditation would be 
 
 justlv subject to criticism is in that established by such express malice 
 
 It tells the jury that such express as the court referred to; namely 
 
 malice 'would make the case mur- previous threats and effort.s to se- 
 
 der in the first degree, if other- cure an OEPortunity to kill.
 
 1948 FORMS OF INSTRUCTIONS. [§3067. 
 
 preparation to commit the offense, threats. Such things as these 
 indicate what the law calls ''express malice."^* 
 
 (c) Express malice exists when a mui'der is committed with 
 sedate, deliberate mind, and in pursuance of a previously foi"med de- 
 sign to kill the person killed.^'^ 
 
 DEADLY WEAPON. 
 
 § 3067. Deadly Weapon Defined, (a) A weapon with which death 
 may be easily and readily produced; anything, no matter what it is, 
 whether it is made for the purpose of destroying animal life, or 
 whether it was not made by man at all, or whether it was made by 
 him for some other purpose, if it is a weapon, or if it is a thing with 
 which death can be easily and readily produced, the law recognizes it 
 as a deadly weapon.^^ 
 
 (b) The jury are informed that a deadly weapon is one likely 
 to produce death or great bodily injury, as a knife, an ax, or a club.^^ 
 
 § 3068. Whether Certain Instruments Are Deadly Weapons, Ques- 
 tion of Fact — Metallic Knucks — Gas Pipe, (a) The court instructs 
 the jury that metallic knucks are not deadly weapons as a matter 
 of law, but whether they are deadly weapons or not must be deter- 
 mined by the jury from all the facts in the case. The mere fact that 
 death in a particular ease has resulted from the use of a certain 
 weapon does not in itself prove that the weapon was deadly, and 
 only such weapons are deadly as are likely to produce death, or 
 great bodily harm.^^ 
 
 (b) Whether or not the piece of gas pipe was a deadly weapon, 
 within the meaning of the law, is a question of fact for the jury to 
 decide, in determining which they will take into consideration the 
 character and nature of the instrument, the manner in which it was 
 used, if they believe it was used, and the probable effect of such use.^^ 
 
 § 3069. Deadly Weapon — Presumption from Killing With — Provo- 
 cation, (a) The court further instructs the jury that a mortal 
 
 34_Heniderson v. State, 120 Ga. 36— Acers v. United States, 164 
 
 504, 48 S. E. 167 (168), citing U. S. 3S8 (391), 17 S. Ct. 91. 
 
 Mitchum v. State, 11 Ga. 628; Wil- 37— Clarey v. State, 61 Neb. 688, 
 
 son V. State, 33 Ga. 217; Brown v. 85 N. W. 897 (898). 
 
 State, 51 Ga. 502. The court said: 
 
 The court said: "It is urg-ed that this instruction 
 
 "The previous difficulty between was prejudicial, in that by naming 
 
 the defendant and the deceased, a knife it emphasized that instru- 
 
 and the threat against the deceased ment as a deadly weapon. It did 
 
 inspired thereby, were indicia of no such thing. The court designat- 
 
 express malice; and the court did ed a knife, an ax, and a club as 
 
 not err in illustrating what is deadly weapons, and emphasized 
 
 meant by the term 'express malice' one of them no more than the 
 
 by stating that it might be shown others." 
 
 by proof of previous difficulties, 38— demons v. State, 48 Fla. 9, 
 
 threats, and things of that char- 37 So. 647 (650), citing Young v. 
 
 acter." State, 24 Fla. 147, 3 So. 881; Bacon 
 
 35— Stevens v. State, 42 Tex. Cr. v. Green, 36 Fla. 325, 18 So. 870. 
 
 App. 154, 59 S. W. 545 (549). 39— State v. Drumm, 156 Mo. 216, 
 
 56 S. W. 1086 (1087).
 
 §3069.] CRIMINAL— HOMICIDE— DEADLY WEAPON. 
 
 1949 
 
 wound given with a deadly weapon in the previous possession of the 
 slayer, without any provocation, or even with slight provocation is 
 prima facie willful, deliberate and premeditated killing and throws 
 upon the prisoner the necessity of showing extenuating circum- 
 stances.^" 
 
 (b) The court instructs the jury that a man is presumed to intend 
 that which he does, or which is the immediate or necessary conse- 
 quence of his act. And if the prisoner, with a deadly weapon in his 
 possession, without any or upon very slight provocation, gives to 
 another a mortal wound, the prisoner is prima facie guilty of willful, 
 deliberate, and premeditated killing, and the necessity rests upon him 
 of showing extenuating circumstances; and unless he proves such 
 extenuating circumstances, or the circumstances appear from the case 
 made by the state, he is guilty of murder in the first degree.'*^ 
 
 (c) "When a man assaults another with, or uses upon another, a 
 deadly weapon, in such a manner that the natural, ordinaiy and prob- 
 able result of the use of such deadly weapon in such manner would 
 be to take life, the law presumes that such person so assaulting in- 
 tended to take life.*^ 
 
 (d) When the killing is done with a deadly weapon, or a weapon 
 calculated to produce death, malice may be legitimately inferred, in 
 the absence of proof that the act was done in necessary self-defense 
 or upon sufficient provocation or cause ; and the presumption in such 
 case will be that the act was voluntarily committed with malice 
 aforethought.*^ 
 
 40 — Langley v. Commonwealth, 99 
 Va. 807. 37 S. E. 339 (340). 
 
 41— State V. Staley, 45 W. Va. 792, 
 32 S. E. 198 (199). 
 
 42— State v. Sullivan, — la. — , 50 
 N. W. 572. 
 
 "Counsel thinks the instruction 
 is not applicable to the case for 
 the reason that defendant used the 
 deadly weapon. This is the very 
 reason the instruction is appli- 
 cable. It was important for the 
 jury to determine the intent with 
 which defendant used the weapon 
 to aid them in this inquiry. The 
 instruction was properly g-iven. 
 The facts are unlike those in State 
 V. Benham, 23 la. 154 (163), 92 Am. 
 Dec. 416, cited by counsel." 
 
 43— State v. Dull, 67 Kas. 793, 74 
 Pac. 235 (236). 
 
 "Was the leriving- of this instruc- 
 tion error? Mr. Bishop, in his work 
 on Criminal Law, vol. 2, par. 680, 
 says: 'As a general doctrine, sub- 
 ject, we shall see, to some quali- 
 fications, the malice of murder is 
 conclusively inferred from the un- 
 lawful use of a deadly weapon, 
 resulting' in death.' In the case of 
 Commonwealth V. York, 9 Mete. 
 
 (Mass.) 93, 43 Am. Dec. 373, it is 
 held: 'The rule of law is, when the 
 fact of killing is proved tq have 
 been committed by the accused, 
 and nothing further is shown, the 
 presumption of law is that it is 
 malicious, and an act of murder. 
 It follows, therefore, that in such 
 cases the proof of matter of excuse 
 or extenuation lies on the accused; 
 and this may appear either from 
 evidence adduced by the prosecu- 
 tion or evidence offered by the de- 
 fendant.' In the case of State v. 
 Earnest, 56 Kan. 31. 42 Pac. 359, 
 this court held: 'On the trial of a 
 person charged with murder the 
 jury ought not to be instructed 
 that, the killing with a deadly 
 weapon being admitted, the pre- 
 sumption, therefore is that such 
 killing was with malice, and that 
 this presumption stands until it is 
 rebutted by evidence. It would be 
 better to instruct them that malice 
 may be inferred from the fact of 
 killing by a deadly weapon, and 
 that they should consider this cir- 
 cumstance, in connection with all 
 the other evidence in the case, for 
 the purpose of determining wheth-
 
 1950 FORMS OF INSTRUCTIONS. [§ 3070. 
 
 § 3070. Using Deadly Weapon — Presumed to Intend Death, (a) 
 
 He who willfully — that is, intentionally — uses upon another at some 
 vital part a deadly weapon, such as a loaded gun, must, in the ab- 
 sence of qualifying facts, be presumed to know that the effect is 
 likely to be death, and, knowing this, must be presumed to intend 
 death, which is the probable consequence of such an act. He who so 
 uses such deadly weapon without just cause or provocation must be 
 presumed to do it wickedly and from a bad heart. If, therefore, you 
 find and believe from the evidence in this cause that the defendant 
 took the life of W. by shooting him in a vital part with a gun, with 
 the manifest design to use such weapon upon him, and with sufficient 
 time to deliberate and fully form the conscious purpose to kill him, 
 and without sufficient or just cause or provocation, then such killing 
 is murder in the first degree.** 
 
 (b) If an act be perpetrated with a deadly weapon so used as to 
 be likely to produce death, the purpose to kill may be inferred from 
 the act.*^ 
 
 (c) The court charges you that it is a presumption of law that 
 every sane person intends the natural and reasonable consequences 
 of his own free voluntaiy acts, and if a sane person unlawfully, will- 
 fully and intentionally strikes another person with a deadly weapon 
 it is an inference of law that he intends to cause great bodily harai 
 or death.*** 
 
 § 3071. Previously Formed Design to Use Deadly Weapon. If a 
 party enters into a contest dangerously armed and fights under an 
 undue advantage, even though mutual blows pass, if he slays his ad- 
 versary pursuant to a previously formed design, either special or 
 general, to use such weapon in ease of an emergency in which his 
 life would not be endangered, or he would not be in danger of suffer- 
 ing great bodily harm, it is not manslaughter, but it is murder.*'^ 
 
 § 3072. Deadly Weapon — Malice Presumed from Use of — May Be 
 Rebutted, (a) The court charges the juiy that in a case of homicide 
 the law presumes malice from the use of a deadly weapon, and casts 
 on the defendant the onus of repelling the presumption of malice, 
 
 er the act was malicious or not.' 45 — "There was no error in giv- 
 
 Prom the whole charge the jury are ing this instruction." Deilkes v. 
 
 advised if the one disputed fact. State, 141 Ind. 23, 40 N. E. 120, cit- 
 
 the act of killing, is first found ing Newport v. State, 140 Ind. 299, 
 
 against the accused beyond a rea- 39 N. E. 926; Boyle v. State, 105 Ind. 
 
 sonable doubt, the proof of motive 476, 5 N. E. 203, 55 Am. Rep. 218; 
 
 for the commission of the deed Murphy v. State, 31 Ind. 511. 
 
 may be dispensed with, and the es- 46 — Clemons v. State, 48 Fla. 9, 37 
 
 sential ingredient in the crime of So. 647 (649). 
 
 murder, malice, may be inferred "As this charge is taken from 
 
 from the use of a deadly weapon Adams v. State, 28 Fla. 511, 552, 
 
 as the instrument employed to ac- 553, 10 So. 106, where it is anproved 
 
 complish the deed. This we think and is applicable to the evidence, 
 
 proper, and the claim of error is we cannot perceive that it was er- 
 
 disallowcd." roneous." 
 
 44_State v. Privitt, 175 Mo. 207, 47— .larvis v. State, 138 Ala. 17, 34 
 
 75 S. W. 457 (459); State v. Darling, So. 1025 (1030); State v. Mills, 116 
 
 199 Mo. 168, 97 S. W. 592. N. C. 992, 21 S. E. 106 (107).
 
 § 3072.] CRIMINAL-HOMICIDE-DEADLY WEAPON. 1951 
 
 unless the evidence which proves the killing shows also that it was 
 perpetrated without malice ; and whenever malice is shown and is 
 unrebutted by circumstances of the killing, or by other facts and evi- 
 dence, there can be no conviction for any degree of homicide less than 
 murder.*^ 
 
 (b) The jury are further instructed that when the killing is done 
 with a deadly weapon, or a weapon calculated to produce, and 
 actually producing, death, malice may legitimately be inferred, in the 
 absence of proof that the act was done in necessary self-defense, or 
 upon sufficient provocation and cause; and the presumption in such 
 case will be that the act was voluntary, and committed with malice 
 aforethought.*'* 
 
 (c) The court charges the jury that the law implies malice from 
 the use of a deadly weapon. 
 
 (d) The court charges the jury that the law presumes that a man 
 intends the natural or probable results of his act.^" 
 
 (e) Whenever one man intentionally kills another with a deadly 
 weai^on, the law presumes that it was maliciously done, — that it was 
 done with formed design to take life, — unless the evidence which 
 proves the killing shows the excuse or extenuation.^^ 
 
 (f) In a case of homicide arising fi'om the intentional use of a 
 deadly weapon, the law presumes malice from the use of such weapon, 
 unless the evidence in the case rebuts such presumption; and, if such 
 
 48 — Stevens v. State, 138 Ala. 71, assaulted him with a piece of 
 35 So. 122 (124); Jarvis v. State, 138 plank. As soon as assaulted, de- 
 Ala. 17, 34 So. 1025 (1030); Kilgore fendant picked up an iron poker 
 V. State, 124 Ala. 24, 27 So. 4 (5); with which to return the blow, but 
 Bondurant v. State, 125 Ala. 31, 27 he was arrested in that intention, 
 So. 775 (777); Wilkins v. State, 98 by a bystander, and made to put 
 Ala. 1, 13 So. 312; Miller v. State, the weapon down. After this, de- 
 107 Ala. 40, 19 So. 37; Martin v. ceased started away and got to the 
 State, 77 Ala. 1; State v. Petsch, 43 front door, when defendant picked 
 S. C. 132, 20 S. E. 993 (994); Hark- up the poker and following, struck 
 ness V. State, 129 Ala. 71, 30 So. 73 deceased over the head with it, 
 (74); Clark v. State, 105 Ala. 91, 17 causing his death. We must hold, 
 So. 37 (3S); Robinson v. State, 108 that the use of the deadly weapon 
 Ala. 14, 18 So. 732 (734); Cleveland under these circumstances was not 
 V. State, 86 Ala. 1, 5 So. 426; Holley simply the result of passion but 
 V. State, 75 Ala. 15; Roberts v. also revenge or malice. It was 
 State, 68 Ala. 156. therefore unnecessary for the court 
 
 49 — Harris v. People, 32 Colo. 211, in giving charge 1, to add, the 
 
 75 Pac. 427 (429). qualifying words, 'unless the evi- 
 
 50 — Stillwell v. State, 107 Ala. 16, dence which proves the killing re- 
 
 19 So. 322 (323), citing Hornsby v. buts the presumption of malice,' as 
 
 State, 94 Ala. 66, 10 So. 552; Hadley defendant's counsel insists ought 
 
 V. State, 55 Ala. 37, as to malice; to have been done." 
 
 and a3 to cooling time, Felix v. 51 — The court said: 
 
 State, 18 Ala. 724; Keiser v. Smith, "There was no error in the oral 
 
 71 Ala. 482, 46 Am. Rep. 342; Mc- charge of the court of which the 
 
 Nelll v. State, 102 Ala. 121, 15 So. defendant can complain." 
 
 3:2, 48 Am. St. 17; 2 Bish. Cr. Law, Bankhead v. State, 124 Ala. 14, 26 
 
 § 713. So. 979 (981), citing Miller v. State. 
 
 The court in comment said: "The 107 Ala. 45, 19 So. 37; Sylvester v. 
 
 facts of this case show that de- State. 72 Ala. 201; Gibson v. State, 
 
 fendant struck deceased the blow 89 Ala. 121, 8 So. 9S, 18 Am. St. 96. 
 that killed him, after deceased had
 
 1952 FORMS OF INSTRUCTIONS. [§ 3073. 
 
 presumption is not rebutted by the evidence in the case, then you are 
 authorized to find that the killing was with malice. ^^ 
 
 (g) If you should find from all the evidence in the ease beyond a 
 reasonable doubt that the defendant did shoot and kill H., using a 
 deadly weapon in such manner as was likely to and did produce 
 death, the purpose on the part of the defendant to kill may be in- 
 ferred from the act itself. And if you further find from all the 
 evidence, beyond a reasonable doubt, that the killing was done pur- 
 posely, without sufficient justification, legal excuse or reasonable 
 provocation, then malice may also be inferred from such act.^^ 
 
 (h) Malice may be presumed when life is taken with a deadly 
 weapon, unless the proof or the circumstances of the killing rebuts 
 the idea of malice.^* 
 
 § 3073. Malice not a Necessary Inference from Killing with Deadly 
 Weapon. The court instructs you that unless you find that the 
 weapon had been prepared for the purpose, its use was not neces- 
 sarily evidence of malice. ^° 
 
 § 3074. Circumstances from Which to Determine Whether or Not 
 Blow Caused the Death. And if the jury further believe, from the evi- 
 dence, beyond a reasonable doubt, that the defendant struck the 
 deceased on the head with such a stick, that the violence of the blow 
 knocked him down 'and produced insensibility, speechlessness and 
 other s3rmptoms of a fatal character, and that, suffering great agony, 
 
 he died within the space of or thereabouts, after the blow was 
 
 given, then these are circumstances which the jury should take into 
 consideration, together with all the other evidence in the ease, in 
 determining whether or not the blow was what occasioned the death 
 of the deceased. ^^ 
 
 § 3075. Mere Possession of Deadly Weapon by Deceased no De- 
 fense. Although you may believe from the evidence that at the time 
 of the killing deceased had a loaded pistol in his pocket, still, unless 
 he made an assault upon defendant by either drawing or attempting 
 to draw said pistol with the manifest or apparent intention of shoot- 
 ing him, such fact did not justify or excuse the shooting and killing 
 of L. by defendant, and such fact cannot avail defendant by way of 
 self-defense.^'^ 
 
 MOTIVE. 
 
 § 3076. Failure to Prove Motive, (a) You are further instructed 
 that it is not indispensable that a motive be shown for the commis- 
 
 52— Mitchell v. State, 129 Ala. 23, 53— Coolman v. State, 163 Ind. 503, 
 30 So. 348 (353), citing G-ibson v. 72 N. E. 568 (570). 
 State, 89 Ala. 121, 8 So. 98, 18 Am. 54— Winter v. State, 123 Ala. 1, 26 
 St. 96; Miller v. State, 107 Ala. 40, So. 949 (950). 
 19 So. 37. 55— State v. McCourry, 128 N. C. 
 
 The court sairl this "was correct, 594, 38 S. E. 883 (885). 
 as applied to the evidence in the 56 — Davis v. People, 19 111. 74; 
 case." Keenaii v. Com. 44 Penn. St. 55. 
 
 57— William.^ v. U. S., 4 Ind. Ter. 
 269, 69 S. W. 871.
 
 §3076.] CRIMINAL— HOMICIDE— MOTIVE. 1953 
 
 sion of a crime, but the existence or nonexistence of such motive is a 
 question of fact, which must be determined by the jury from a con- 
 sideration of all the evidence in the case, and as a circumstance tend- 
 ing to show the guilt or innocence of the aceused.^^ 
 
 (b) The court instructs the jury that, when the evidence fails to 
 show any motive to make t^n assault or commit a crime, this is a 
 circumstance in favor of the innocence of the party accused. And in 
 this case, if the jury find, upon a careful examination of all the evi- 
 dence, that it fails to show any motive, cause, or reason on the part 
 of S. to assault and murder the defendant, then you should consider 
 this fact in determining the truth or falsity of the claim made by the 
 defendant that his wife first shot him and then killed herself.^'' 
 
 (c) The court instructs the jury that, when evidence fails to show 
 any motive to commit the crime charged on the part of the defend- 
 ant, this is a circumstance in favor of his innocence; and in this case, 
 if the jury finds, upon a careful examination of all the evidence, that 
 it fails to show any motive on the part of the defendants to commit 
 the crime charged against them, then this is a circumstance which 
 the jury ought to consider, in connection with all the evidence in the 
 case, in making up their verdict. And, in order to ascertain a motive, 
 the jury will take into consideration all the evidence in relation with 
 the association, relations and deportment toward each other and the 
 deceased, together with all the other evidence in the case."" 
 
 (d) The court insti'ucts the jury that the absence of all evidence 
 of an inducing cause or motive to commit the offense charged, when 
 the fact is in reasonable doubt as to who committed it, affords a 
 strong presumption of innocence.''^ 
 
 (e) In case of homicide, motive may be important, and the ab- 
 sence of motive is a fact and circumstance that the jury may con- 
 
 58— Lillie v. State, 72 Neb. 228, is a correct expression of the law 
 
 100 N. W. 316 (322). when applied to the case at bar, 
 
 59— Smith v. State, 61 Neb. 296, either as an abstract or concrete 
 
 85 N. W. 49 (51). proposition, and is as favorable to 
 
 "It is admitted by counsel for the defendant as to the state. The 
 defendant that, as an abstract principle contained in the instruc- 
 proposition of law, the instruction tion is approved in Clough v. 
 is without error, and that the sub- State, 7 Neb. 320. Under the cir- 
 ject dealt with therein may be cumstances of the case at bar the 
 properly argued bv counsel, and defendant was accused of the 
 has probative force worthy of con- crime of killing the deceased, his 
 sideration by the jury; but it is wife. His defense was that the de- 
 contended that it is an ai'gument ceased first shot him, and then 
 from the bench, giving a negative took her own life. That the shoot- 
 phase undue prominence by sing- ing was done by the one or the 
 ling out the one feature of the case, other with felonious mtent is es- 
 and imputing to it special signi- tablished by the evidence, not only 
 ficance and force, and that the in- to a moral certainty, but to a de- 
 struction practically casts upon gree amounting almost to the cer- 
 the defendant the burden of prov- tainty of a mathematical demon- 
 ing a motive in his wife to commit stration." 
 
 the crime. That part of the in- 60— State v. Hendricks, 172 Mo. 
 
 struction relative to the want of 654, 73 S. W^. 194 (197). 
 
 motive being favorable to the in- 61— Longley v. Commonwealth, 
 
 nocence of a party accused of crime 99 Va. 807, 37 S. E. 339 (341). 
 
 123
 
 1954 FORMS OK INSTRUCTIONS. [§ 3077. 
 
 sider in determining the guilt or innocence of the accused. It is a 
 circumstance that you may consider; and if you believe in the case 
 that any motive has been shown, you may consider that fact and cir- 
 cumstance in determining the guilt or innocence of the accused. "^^ 
 
 (f ) The court charges the jury that if the state has failed to show 
 any motive for the defendant to have murdered J. E., and if the 
 state has failed to so convince each and every juror by the evidence 
 that defendant was present at the scene of the homicide and not at 
 his home, and to do this to that degree of certainty, that they would, 
 each of them, venture to act upon that conviction in matters of the 
 highest concern and importance to his own interest, then the jury 
 must find the defendant not guilty. 
 
 (g) If the state has failed to show any motive for defendant to 
 have murdered deceased, and if the defendant has shown that he was 
 at home when the deceased was shot, then the jury must find the de- 
 fendant not guilty.®^ 
 
 § 3077. Motive of Defendant — How Determined by Jury. In judg- 
 ing as to what motive prompted or actuated the prisoner at the bar, 
 the law says you must go in the light of the testimony as best you 
 can back to the scene where this thing occurred, and you are to judge 
 of the motive which prompted him, and his conduct on that occasion, 
 and in that light it is for you to say whether or not he fired and took 
 the life of the deceased in the exercise of the right of self-'defen&e. 
 If he did, and you are satisfied that he has made out his plea, then it 
 is a good plea, and should avail him ; if he has failed to make it out, 
 then it would not avail him.*^* 
 
 § 3078. Motive — State Not Required to Prove, to Convict. Proof 
 of a motive to commit the crime is not indispensable nor essential to 
 conviction. While a motive may be shown as a circumstance to aid 
 in fixing the crime on the defendant, yet the state is not required to 
 prove a motive on the part of the defendant in order to convict; and 
 the jury would be justified in inferring a motive from the commission 
 of the crime itself, if the commission of the crime by the defendant 
 is proved beyond every reasonable doubt, as required by law, and you 
 find that the defendant at the time of the commission of said act was 
 sane, and there were no extenuating circumstances.^^ 
 
 § 3079. Reconciliation in Good Faith Lived up to — Previous 
 Troubles Not Considered as Affording a Motive. If you find from the 
 evidence that on the day after Thanksgiving, 1899, a reconciliation 
 and adjustment of all matters of differences and trouble was ef- 
 fected between the defendant and her husband, X.; and you further 
 find from the evidence that such reconciliation was in good faith en- 
 
 62— Smith v. State, 94 Ga. 591, 22 tioned by the decisions of the court 
 
 S. E. 214 (216). and in no way invaded the province 
 
 63— Burton v. State, 107 Ala. 108, of the jury." Wheeler v. State, 
 
 18 So. 284 (286). 1.58 Ind. 687. 63 N. E. 975 (980). citing 
 
 64— State v. Petsch, 43 S. C. 132, Hinshaw v. State. 147 Ind. 334-364, 
 
 20 S. E. 993 (997). 47 N. E. 57; Blume v. State, 154 
 
 65— "The instruction was sane- Ind. 343, 56 N. E. 771.
 
 § 3080.] CRIMINAL— HOMICIDE— PREMEDITATION. 1955 
 
 tered into on behalf of the parties thereto, and was thereafter, in- 
 cluding the night on which X. was assaulted, if he was assaulted, in 
 like good faith lived up to and observed by the parties, and that after 
 such reconciliation and adjustment there was no further trouble or 
 quarrels between them, including the night on which X. is alleged to 
 have been assaulted, then whatever trouble, differences or quarrels 
 you may find from the evidence, if any, had existed or occurred prior 
 to such good-faith reconciliation and adjustment, if any, would not, 
 alone, be sufficient to show malice. ^^ 
 
 PREMEDITATION. 
 
 §3080. Meaning of "Premeditate." (a) If an intention to kill 
 exists, it is willful. If this intention be accomplished by such cir- 
 cumstances as evidence a mind fully conscious of its purpose and de- 
 sign, it is deliberate. "Premeditate" means "to think of in advance, 
 to determine upon beforehand." It means that there was a design to 
 kill before the act of killing took place."' 
 
 (b) An act is done willfully when done intentionally and on pur- 
 pose. By premeditation is meant thinking out beforehand ; and when 
 one thinks over doing an act, and then determines or concludes to do 
 it, he has premeditated the act. Malice, in the ordinary sense, means 
 ill will or hatred toward another; but in its legal sense it signifies a 
 wrong act done without just cause or excuse. Before you can convict 
 the prisoner of murder in the first degree, it is necessary for the state 
 to show fi'om the evidence beyond a reasonable doubt, that the 
 prisoner, prior to the time of the killing, formed the purpose or 
 
 66— State v. Hossack, 116 la. 194, "This was a clear and explicit 
 
 89 N. W. 1077 (1080). statement that, in order to consti- 
 
 Held error to refuse this instruc- tute the act one of premeditated 
 
 tion. The court said: and deliberate malice, the intent to 
 
 "It is said in the way of criti- perform it must have preceded the 
 
 cism of this instruction that if performance, and that the mind 
 
 there was in fact a good-faith rec- must have beforehand considered 
 
 onciliation, lived up to by the it and determined upon it. The 
 
 parties thereafter, then previous language complained of, therefore, 
 
 troubles could not be considered as could only mean that there had 
 
 affording a motive. This seems been formed in the mind an intent 
 
 true. It was not a reconciliation in to kill, and that that intent existed, 
 
 good faith, lived up to in sincerity, so formed, at the time the blow 
 
 if old animosities were still har- was struck. It is no doubt true 
 
 bored. If in November, 1S99, all that the terms 'deliberation' and 
 
 previous differences had in fact 'premeditation' require some time 
 
 been forgiven and' forgotten, and for reflection, and that it is not 
 
 this state of affairs continued down sufficient that the intent to kill be 
 
 to X.'s death, it is difficult to see formed simultaneously with the 
 
 why the law should resurrect striking of the blow. Simmerman 
 
 troubles the parties had buried, v. State, 14 Neb. 568. 17 N. W. 115; 
 
 and allow them any weight what- ?Tilton v. State, 6 Neb. 136. * • • 
 
 ever. McClain Cr. Law, par. 419; The instruction of the court was. 
 
 People V. Hyndman, 99 Cal. 1, 33 therefore, correct." The court cited 
 
 Pac. 782; Com. v. Holmes, 127 Mass. State v. Turner. Wright (Ohio) 30. 
 
 424, 34 Am. Rep. 391." from which state the Nebraska 
 
 67— Carleton v. State, 43 Nf^b. :^T3. statute was taken. 
 61 N. W. 699 (712). The court said:
 
 1956 FORMS OF INSTRUCTIONS. [§3081. 
 
 design to kill the deceased, and that this design to kill was formed 
 with deliberation and premeditation, and that in pursuance of said 
 design the prisoner killed the deceased. It would not be necessai-y 
 for such fixed design to be formed any definite time before the killing. 
 If it was formed but a moment before the killing, it would be suf- 
 ficient; but, if formed at the time of the killing, it would not be suf- 
 ficient to make murder in the first degree, for it is essential, to con- 
 stitute murder in the first degree, that the fixed purpose or design 
 to kill should have been formed at some time before the killing. ''^ 
 
 (c) The word ** purposely" defines itself. It simply means an act 
 done with the purpose or intent of doing that act. The word ''delib- 
 erate" means the mental state or condition of the mind in consider- 
 ing, weighing and deliberating upon the motive which prompts or in- 
 duces a certain act or line of action. ''Premeditation" is the mental 
 operation of thinking over an act or line of action already decided 
 in the mind, before carrying the act or line of action into execution. 
 "Malice" is not confined to ill-will towards an individual, but it is 
 also intended to denote an action flowing from any wicked and cor- 
 rupt motive. A thing done with a wicked mind, and attended with 
 such circumstances as plainly indicate a heart regardless of social 
 duties and fully bent on mischief, indicates malice, within the mean- 
 ing of the law. Malice may be either expressed or implied. Express 
 malice may appear from all the evidence and circumstances of the 
 alleged killing. Implied malice may appear where there is no just 
 cause or excuse of the alleged killing.^^ 
 
 § 3081. Same Subject — Need Not Take Any Particular Time, (a) 
 "Deliberate" and "premeditated" as those words are used in the 
 statute, mean only this : that the slayer must intend, before the blow 
 is delivered, though it be only for an instant of time before, that he 
 will strike at the time he does strike, and death will be the result of 
 the blow; or, in other words, if the slayer had any time to think 
 before the act — however short such time must have been — even a 
 single moment — and did think, and he struck the blow as the result 
 of the intention to kill produced by this even momentary operation of 
 the mind, and death ensued, it would be a deliberate and premeditated 
 killing within the meaning of the statute defining murder in the first 
 degree.''" 
 
 (b) To constitute murder in the first degree there must have been 
 an unlawful killing done, purposely and with premeditated malice. 
 If a person has actually formed the purpose maliciously to kill, and 
 has deliberated and premeditated upon it before he performs the 
 act, and then perfonns it, he is guilty of murder in the first degree, 
 however short the time may have been between the purpose and its 
 execution. It is not time that constitutes the distinctive difference 
 between murder in the fii"st and in the second degree ; an unlawful 
 
 68— State v. Spivey, 132 N. C. 989, 70— Stevens v. State, 138 Ala. 71, 
 4.'] S. K. 476. 35 So. 122 (124). 
 
 69— .State v. Lindgrind, 33 Wash. 
 440, 74 Pac. 565 (566).
 
 § 3081.] CRIMINAL— HOMICIDE— PREMEDITATION. 1957 
 
 killing, with malice, deliberation and premeditation constitutes the 
 crime of murder in the first degree. It matters not how short the 
 time, if the party has turned it over in his mind, and weighed and 
 deliberated upon it.'^ 
 
 (c) The law does not and cannot define any precise time for the 
 formation of any such design. It may take place in the shortest 
 interval,— even the moment before the act, as well as the month 
 before. The difference in the degrees of murder does not result from 
 the length of time taken to form the design or the speed with which 
 it was executed. '^^ 
 
 (d) It is not essential that the willful intent, premeditation and 
 deliberation shall exist in the mind of the slayer for any considerable 
 length of time before the actual perpetration of the crime. It is 
 sufficient if there was a fixed design or detei-mination to maliciously 
 kill distinctly framed in the mind of such slayer, at any time before 
 the fatal injuiy inflicted. And in this ease, if the jury believe from 
 the evidence, beyond a reasonable doubt, that the defendant assaulted 
 and shot the deceased at the time and place and in the manner 
 charged in the indictment, and that either at some time before, or 
 in the moment or instant of time immediately before, the fatal shot 
 was fired, the defendant had framed in his mind a willful, deliberate, 
 and premeditated design or purpose, of his malice aforethought, to 
 take the life of the said deceased, and that the said fatal shot was 
 fired by the said defendant in furtherance of that design or purpose, 
 without any justifiable cause or lawful excuse therefor, then it may 
 be said that the defendant acted with deliberation and premeditation, 
 and you should find him guilty of murder in the first degree. But if 
 you fail to find from the evidence, beyond a reasonable doubt, that the 
 said fatal act of the defendant was accompanied with some degi-ee 
 of deliberation and premeditation, or that it was the result of a fixed 
 determination on the part of the defendant to kill the deceased, you 
 must then acquit the defendant of the crime of murder in the first 
 degree.'^^ 
 
 (e) The court instructs the juiy that the law does not require 
 that the premeditation and deliberation, or the willful intent and 
 purpose shall exist for any length of time before the crime is com- 
 mitted.'^* 
 
 71— Fahnestock v. State, 23 Ind. an instant, the crime may be mur- 
 
 231; Miller v. State, 54 Ala. 155; der in tlie first degree." State v. 
 
 State v. Weiners, 66 Mo. 13; State Johnson, 8 la. 525, 530, 74 Am. D(?c 
 
 V. Ahmoolc, 12 Nev. 369. 321; State v. Brown, 41 Minn. 319, 
 
 72— "This is the generally ac- 43 N. W. 69; Donnelly v. State, 26 
 
 cepted doctrine on the subject." N. J. L. 463, 509; Koerner v. State, 
 
 Howard v. State. — Tex. Cr. App. 98 Ind. 7; State v. Dunn, 18 Mo 
 
 — , 58 S. W. 77 (78). 419. 424; State v. Jennings, Id. i^5, 
 
 73— State v. McPhersion, 114 la. 443; Herrin v. State, 33 Tex. 6^9 
 
 492, 87 N. W. 421 (422). "It is well 645." 
 
 settled." said the rnurt. "that, if 74— Robinson v. State, 71 Neb. 
 
 the intent to take life is exeruted 142, 98 N. W. 694. 
 
 after delihera-ion and premedita- "If the words above quoted were 
 
 tion, though but for a moment or to be considered alone, it would
 
 1958 FORMS OF INSTRUCTIONS. [§3082, 
 
 § 3082. Premeditated Design — Mutual Comljat. (a) If the jury 
 believe, from the evidence, that at the time of the alleged killing the 
 defendant and the deceased met together, and mutually agreed to 
 engage in a personal combat, and did engage in such combat, then, 
 if the jury further believe, from the evidence, beyond a reasonable 
 doubt, that the deceased was unarmed, and that the defendant, in 
 anticipation of having a difficulty with deceased, had armed himself 
 with a deadly weapon without the knowledge of the deceased, with 
 the intention of using the same some time during the contest, and 
 did so use it, and thereby killed the deceased, then such killing would 
 be murder in the first degree. 
 
 (b) If the jury believe, from the evidence, that at the time of the 
 alleged killing, the defendant and the deceased met, and upon a sud- 
 den cause of quarrel arising between them, mutually agreed to engage 
 in a personal combat, and did so engage in such combat, and if the 
 jury further believe, from the evidence, beyond a reasonable doubt, 
 that during such quarrel the defendant, without the knowledge of the 
 deceased, made use of a deadly weapon, in such a manner as would 
 be likely to cause the death of the deceased, and did so cause it, then 
 the defendant was guilty of murder; and if the jury further believe, 
 from the evidence, that the defendant so used the said deadly 
 weapon, deliberately, and with malice aforethought, and with intent 
 to take the life of deceased, or to do him great bodily harm, then 
 such killing would be murder in the first degree. '^^ 
 
 (e) If the intention upon committing a homicide was to take life, 
 the killing was done purposely. If the killing was accompanied by 
 circumstances showing a mind fully conscious of its purposes, and if 
 before the killing sufficient time had elapsed to enable the mind to 
 have considered the matter, and to have formed a design to kill, and 
 said design had been formed, the killing was designed and premedi- 
 tated.'^" 
 
 § 3083. Premeditation Distinguishing Characteristic of Murder in 
 the First Degree, (a) The killing in this case was neither justifiable 
 nor excusable within the meaning of our law. To warrant a verdict 
 of "Guilty as charged in the indictment," you must, therefore, be 
 satisfied by the evidence beyond a reasonable doubt that the defend- 
 
 seem that the exception thereto this is a correct statement of the 
 
 was well taken, but when they are law there can be no doubt. The 
 
 considered in connection with the principle contained therein is also 
 
 other parts of the paragraph com- approved in the case of Clough v. 
 
 plained of, it appears they are not State, 7 Neb. 320. We therefore 
 
 at all misleading. The substance hold that the court did not err in 
 
 of the instruction is that it is not giving the instruction complained 
 
 necessary for the state to prove of." 
 
 tha/t the premeditation and delib- The same instructions had prev- 
 
 eration or the willful intent and iously been given in Carleton v. 
 
 purpose to kill existed for any par- State, 43 Neb. 373, 61 N. W. 699. and 
 
 ticular length of time before the in Savary v. State, 62 Neb. 171, 87 
 
 homicide, and the language of the N. W. 34. 
 
 instruction is so plain that there 75 — Stato v. Christian. 66 Mo. 13S. 
 
 can be no doubt about this. That 76— State v. Vance, 29 Wash. 435, 
 
 70 Pac. 34 (45).
 
 §3084.] CRIMINAI^HOMICIDE— PREMEDITATION. 1959 
 
 ant killed J. A., and that such act was perpetrated with a premedi- 
 tated design to effect the death of the deceased. It is the premedi- 
 tated design which is the distinguishing characteristic of murder in 
 the first degree.''^ 
 
 (b) The court instructs the jury, that under our statute, to con- 
 stitute murder in the first degree, the jury must be satisfied, beyond 
 a reasonable doubt, from the evidence, not only that the defendant, 
 without any justifiable cause or legal excuse, as explained in these 
 instructions, killed the deceased in manner and form as charged in 
 the indictment, but they must further believe, from the evidence, 
 beyond any reasonable doubt, that at the time the defendant struck 
 the fatal blow he had formed in his mind a deliberate, willful and 
 premeditated purpose to kill the deceased, and that he struck the 
 blow with the intention of effecting that purpose (or that he killed 
 the deceased while attempting to perpetrate the crime, etc.).'^^ 
 
 (c) If the jury believe, from the evidence, beyond a reasonable 
 doubt, that the defendant shot the deceased, and thereby caused his 
 death, in manner and fonn as charged in the indictment, then no 
 matter what the provocation, and no matter what the other surround- 
 ing circumstances may have been, unless the act of shooting Avas 
 justifiable, as explained in these instructions, then the defendant 
 is guilty of murder in the first degi'ee ; provided, you further believe, 
 from the evidence, beyond a reasonable doubt, that the defendant did 
 the shooting with a premeditated design to kill the deceased.''^ 
 
 §3084. Meaning of "Sedate and Deliberate Mind" — Texas Stat- 
 ute, (a) If you believe defendant, S. P., did, with express malice 
 aforethought, with a sedate and deliberate mind, and formed design 
 to kill, and as these expressions have been explained to you, did, with 
 a razor, cut the throat of E. S., not in defense of himself, and 
 thereby killed her, . . . you will find him guilty of murder in 
 the first degree. The expression "sedate and deliberate mind" 
 means simply that the mind is sufficiently composed to admit of 
 reflection and consideration upon the design, and in a condition to 
 comprehend the nature of the act designed and its probable eon- 
 sequences. It does not mean that the mind must be absolutely un- 
 ruffled. It means that the killing must not result from a mere sud- 
 den, rash, and immediate design, springing from an inconsiderate 
 impulse, passion, or excitement however unjustified or unwarranted 
 it may be.**' 
 
 77— State V, Corrivau, 93 Minn, for the court to give this charge. 
 
 38, 100 N. W. 638 (639). I do not believe in this respect the 
 
 78 — Prinues v. State, 2 Tex. App Gaines Case is correct. The law 
 
 369; State v. Melton, 67 Mo. 594; has been held otherwise in Texas 
 
 Cox v. State, 5 Tex. App. 493. (see Farrer's Case. 42 Tex. 271; and 
 
 79— State v. Christian, 66 Mo. 138. see also. Hall v. State, 33 Tex. Cr. 
 
 80— Spears v. State, 41 Tex. Cr. R. 191, 26 S. W. 72, and Duebbe v. 
 
 App. 527, 56 S. W. 347 (350). State. 1 Tex. App. 159), and, under 
 
 "And it was held in the Gaines my view, is unquesrtionably the 
 
 Case (Gaines v. State, — Tex. Cr. law. But, if it be conceded that 
 
 App. — , 53 S. W. 623) it was error the question is not sufficiently
 
 1960 FORMS OP INSTRUCTIONS. [§ 3085. 
 
 (b) But if the design is formed with a sedate, deliberate mind, 
 the fact of the design being executed while the slayer is under the 
 influence of rage, passion, or other character of excitement will not 
 prevent the killing being attributable to the preconceived, express 
 malice of the slayer.^^ 
 
 § 3085. No Presumption of Premeditated Design. The law pre- 
 sumes a sober man to intend what he does, but the law does not 
 presume a killing Avith a premeditated design. This, like every 
 other element of mui'der in the first degree, is to be inferred, by the 
 jury from the facts proved beyond a reasonable doubt.®- 
 
 PROVOCATION. 
 
 § 3086. Provocation — Mere Words Not SufiBcient. (a) The jury 
 are instructed that no provocation, by words only, addressed to the 
 person killing, or to another in his presence, however opprobrious, 
 will mitigate an intentional killing so as to reduce the killing to 
 manslaughter; and although the jury may believe, from the evi- 
 dence, that opprobrious epithets were used by the deceased to the 
 defendant, W. M., in defendant B. M. 's presence, yet, if the jury 
 further believe, from the evidence, beyond a reasonable doubt, that 
 the defendants immediately or soon thereafter revenged themselves 
 by the use of a dangerous and deadly weapon in a manner likely to 
 cause the death of the deceased, and did thereby cause his death as 
 charged, then the defendants are guilty of murder, and the jury 
 ought to so find, unless they shall further believe, from the evi- 
 dence, that said killing was reduced to manslaughter, or was justi- 
 fiable, upon other grounds, or by other than the use by deceased of 
 such opprobrious language. ^^ 
 
 (b) You are instructed that mere words, however iriitating, are 
 no excuse for a felonious assault; and although you may believe 
 from the evidence that insulting and opprobrious epithets were used 
 by the deceased, B., to the defendant, W., yet, if said defendant, W., 
 immediately revenged himself by using a revolver and shooting and 
 
 raised by the motion for new 82— Cook v. State, 46 Pla. 20, 35 
 
 trial, tlien I desire to say, in any So. 665 (669). 
 
 event, that the charge is correct, "We think this is a correct prop- 
 
 and to leave the Gaines Case in osition of law and should have 
 
 the condition it is, without cor- been given. Garner v. State, 28 
 
 recting the error, would lead to un- Fla. 113, text 157, 9 So. 835, 29 Am. 
 
 necessary complications hereafter St. 232." 
 
 in the trial courts. The Gaines 83— McCoy v. People, 175 111. 224 
 Case on this question should be (231). 51 N. E. 777, affirming con- 
 overruled, and the law made to vlction of murder, 
 harmonize with that line of de- "The instruction is almost a lit- 
 cisions above cited, which has al- eral copy of the instruction given 
 ways been considered the law in in the series in the case of Jack- 
 this state." son v. Peonle, 18 111. 269, which was 
 81 — Howard v. State, — Tex. Cr. approved by this court without the 
 App. — , 58 S. W. 77 (78). "This qualifier tinn contained in the forC' 
 doctrine is announced in Farrer's igoing instruction." 
 Case, 42 Tex. 265."
 
 §3087.] CRIMINAL— HOMICIDE— PROVOCATION. 1961 
 
 killing the said B., then the defendant is guilty, and j^ou should so 
 find from your verdict.^* 
 
 (e) The court charges the jury that in a ease of homicide no 
 mere words used by the deceased towards the defendant, however 
 abusing or insulting, will reduce the degree of homicide to less than 
 murder.^^ 
 
 (d) Mere words, no matter how insulting or abusive, would not 
 be sufficient provocation, unconnected with any acts or other circum- 
 stances, calculated to excite anger or passion of a reasonable man.*^ 
 
 (e) The court further instructs the jury, that where a person 
 strikes another with a deadly weapon, in a manner calculated or 
 likely to produce death, no words of reproach, or abuse, or gestures, 
 however irritating or provoking, amount to considerable provocation 
 in law, so as to reduce the crime of killing from murder to man- 
 slaughter, in ease such blow results in death. ^'^ 
 
 (f) The court instructs the jury that words spoken, no matter 
 how vile or opprobrious, unaccompanied by other demonstrations 
 which would cause a reasonable belief in the mind of the defendant 
 that the deceased was about to do him some great personal injury, 
 would not jus<tify the defendant in shooting the deceased, or in in- 
 flicting on the deceased any personal injury.^** 
 
 § 3087. Provocation — Insulting Words to Defendant's Wife — 
 Other Relatives, (a) If you believe from the evidence before you 
 that defendant shot and killed M. at the time and place alleged in 
 the indictment, yet if you should further believe that prior to the 
 time of the killing, the said M. had used insulting words or conduct 
 towards defendant's daughter or wife, or either of them, and that 
 defendant had been informed or knew of such insulting words or 
 conduct, and that such insulting words or conduct created in the 
 mind of defendant such a degree of anger, rage, sudden resentment, 
 or terror as to render his mind incapable of cool reflection, and 
 that defendant immediately, or upon the first meeting between him 
 and said M., after learning or being informed of such insulting 
 words or conduct, shot and killed the said M., then, if you do not 
 find defendant justified under the evidence before you and instruc- 
 
 84— Willis v. State, 43 Neb. 102, 494; State v. Starr, 38 Mo. 270; 
 
 61 N. "W. 254 (259). Martin v. People, 30 Wis. 216. 
 
 85— Wilson v. State, 140 Ala. 43, 86— Olds v. State, 44 Fla. 452, 33 
 
 37 So. 93 (94). So. 296 (298). 
 
 "The court committed no error 87 — People v. Turley, 50 Cal. 469; 
 
 in giving the charge requested by Bird v. State, 50 Ga. 585. 
 
 the state. Compton v. State. 110 88 — Robinson v. Territory, 16 
 
 Ala. 24, 37, 20 So. 119." A similar Okla. 241, 85 Pac. 451 (456, 458). 
 
 instruction was approved in Bon- "Exception was taken to the 
 
 durant v. State, 125 Ala. 31, 27 So. above instruction; but counsel for 
 
 775 (777), citing Ex. parte Sloane, 95 plaintiff in error assign no reason 
 
 Ala. 22, 11 So. 14; Jones v. State, 96 why such Instruction should be 
 
 Ala. 102, 11 So. 399; Reese v. State, held to be erroneous, and we know 
 
 90 Ala. 624, 8 So. 818. of no reason that could be suc- 
 
 See also Ray v. State, 15 Ga. cessfully urged to that end." 
 223; Rapp v. State, 14 B. Mon. (Ky.)
 
 1962 FORMS OF INSTRUCTIONS. [§3088. 
 
 tions given, he would not be guilty of any higher grade of offense 
 than manslaughter.^^ 
 
 (b) If you believe from the evidence that the defendant had 
 heard that deceased had used insulting words toward or concerning 
 defendant's female relations, and that upon meeting deceased de- 
 fendant asked him about it, and he replied as above mentioned, but 
 believe that neither such information as to insulting words, nor the 
 reply of the deceased, nor any other fact or circumstance, produced 
 at that time the degree of passion herein defined as being necessary 
 to reduce a homicide to the degree of manslaughter, but that in 
 the absence of and without any such passions, and not in his self- 
 defense, defendant kicked the deceased, with the intention of bring- 
 ing on a difficulty, for the purpose of killing the deceased in such 
 a difficulty, or inflicting serious bodily harm upon him, and 
 that during such difficulty defendant, in pursuance of such inten- 
 tion, if any, did shoot and kill deceased, then the homicide would 
 not be manslaughter, but would be murder; and, if you find such 
 was the case, — ^that is, that such was the state of facts, and such 
 was the state or condition of defendant's mind, and such was the 
 intention of defendant at the time he kicked deceased, — then the 
 killing would not be manslaughter, but would be murder, no odds 
 to what extremity defendant may have been reduced during the 
 progress of the difficulty, and no odds what passion may have been 
 aroused during the difficulty.^" 
 
 § 3088. Provocation — Mere Threats Not SuflBlcient. (a) The court 
 instructs the jury that the fact of one person having threatened 
 to take the life of another or to inflict upon him a great bodily 
 injury will not excuse the person threatened in becoming the ag- 
 gressor, and with deadly weapon assaulting the person making such 
 threats, and that although the jury may believe from the evidence 
 that A., in his lifetime, had made threats to take the life of the 
 prisoner or to so inflict upon him great bodily harm, the fact of 
 making such threats towards the prisoner will not justify a verdict 
 of acquittal, unless the jury further find that, at the time the said 
 A. was shot, he was making overt acts towards the prisoner, in- 
 dicative of an intention to carry such threats into immediate execu- 
 tion, and that by reason of such threats and overt acts, he (the 
 prisoner) believed that it was necessary then and there to shoot with 
 a deadly weapon the said A., in order to save his (the prisoner's) 
 life, or to protect him from great bodily harm.^^ 
 
 (b) A person charged with murder, who seeks to justify himself 
 on the ground of threats against his own life, is permitted to intro- 
 duce evidence of such threats so made, but the same should not be 
 ' garded as affording a justification for the killing or offense, unless 
 
 89— McComas v. State, — Tex. Cr. 90— Fossett v. State. 41 Tex. Cr. 
 
 App. — , 81 S. W. 1212, affirming App. 400, 55 S. W. 497 (500). 
 
 conviction of murder in second de- 91— State v. Staley, 45 "W. Va. 792, 
 
 gree. 32 S. E. 198 (199).
 
 § 3089.] CRIMINAL—HOMICIDE— PROVOCATION. 1963 
 
 it is shown that at the time of the killing, the person killed by some 
 act then done manifested an intention to execute the threats so 
 made or reasonably appeared to defendant to be doing so.^- 
 
 (c) Mere words or menaces, no matter how aggravating or abu- 
 sive, or profane or insulting, do not of themselves constitute a prov- 
 ocation for the commission of the crime of murder in any degree. ^^ 
 
 § 3089. Violent Passion Caused by Insulting Language May Re- 
 duce Grade of Homicide, (a) The court instructs the juiy that if 
 you believe and find from the evidence that in the county of Cape 
 Girardeau and state of Missouri, at any time before the filing of 
 the indictment herein, defendant struck A. K. with a large club, 
 the same being a dangerous weapon, inflicting upon him a mortal 
 wound, from which said mortal wound the said A. K. within a year 
 thereafter, at the county of Cape Girardeau and state of Missouri, 
 died, and that the defendant inflicted said blow while he was in a 
 violent passion suddenly aroused by insulting or by abusive lan- 
 guage spoken by deceased to him, then such killing was not done 
 with deliberation; but although the defendant may have struck the 
 blow while in a violent passion suddenly aroused by insulting or 
 abusive words spoken to him by the deceased, yet if such killing 
 was done willfully, premeditatedly, and of his malice aforethought, 
 as explained in these instructions, defendant is guilty of murder in 
 the second degree.^* 
 
 (b) The court instructs the jury that if they believe from the 
 evidence that the defendant struck and killed A. while he (the de- 
 fendant) was in a violent passion, suddenly aroused by opprobrious 
 epithets or abusive words spoken by A, to defendant, then such 
 striking and killing was not done with deliberation, and was not 
 murder in the first degree; but, if not done in self-defense, such a 
 killing of A. by defendant in a passion aroused by such opprobrious 
 epithets, willfully, premeditatedly and of his malice aforethought, 
 was murder in the second degree.^^ 
 
 92— Karr v. State, 106 Ala. 1, 7 They more naturally and properly 
 
 So. 328 (329). refer to words and verbal threats." 
 
 93— Lynch v. People, 33 Colo. 12S, But menaces along with threats 
 
 79 Pac. 1015. have often justified killingr as in 
 
 "The lexicographers and law- self-defense, 
 
 writers regard 'menace' as synony- 94— Approved as one of a series, 
 
 mous with 'threat'. Webster; Bou- State v. Kinder, 184 Mo 276 83 S 
 
 vier p. 397; Black, 767, 1 McClain W. 964. 
 
 on Criminal Law §730; Kerr on 95 — State v. Gartrell, 171 Mo. 489, 
 
 Homicide § 171. It doubtless has 71 S. W. 1045 (1052). 
 
 other meanings. We are of opinion "In a word, the circuit court held 
 
 that it was used in this instruc- that mere words, however opprob- 
 
 tion as synonymous with 'threat by rious and insulting, would not be 
 
 word of mouth.' This is apparent such a lawful or reasonable provo- 
 
 from the use of the preceding word cation as would reduce the homi- 
 
 'mere' and the immediately follow- cide to manslaughter in the fourth 
 
 in? Tihrase 'no matter how aggra- degree, but only reduces the grade 
 
 vating or abusive or profane or in- of the offense to murder in th« 
 
 suiting.' 'Aggravating' might char- second degree. Unquestionablv this 
 
 acterize an overt act, but it is not has been the general rule in this 
 
 so upual to speak of an overt act state for many years." 
 as 'aibusive, profane or insulting.'
 
 1964 FORMS OF INSTRUCTIONS. [§3090. 
 
 § 3090. Provocation — If Insufficient, Manslaughter. If a man 
 takes the life of his fellow man under sudden heat and passion, upon 
 insufficient legal provocation, no matter how terrible the provocation, 
 a juiy is not acting within the law, but is acting in defiance of and 
 against the law if it acquits that man. It must convict such a man 
 at least of manslaughter and not of murder.^'' 
 
 § 3091. Slap with Hand Not Sufficient Provocation, When. If 
 you believe from the evidence that the defendant used opprobrious 
 words to the deceased, and that the deceased resented them by slap- 
 ping or striking the defendant with his hand, I charge you that such 
 blow would not be considered as such considerable provocation as 
 would rebut the presumption of malice on the part of the defendant 
 in killing the deceased, provided you shall believe that the striking 
 was not disiDroportioned to the insult offered, if any. As to whether 
 the words were opprobrious as used, if used, and as to whether, 
 under the circumstances as testified to by the witnesses, the striking, 
 if any, was dispropoi'tioned to the insult offered, if any, are ques- 
 tions for your consideration solely. If without adequate provoca- 
 tion a person strikes another with a deadly weapon, — one likely to 
 produce death, — and kills, although he has no previous malice 
 against the party, he is to be presumed to have had such malice at the 
 moment, from the circumstances, and is guilty of murder."'^ 
 
 § 3092. Provocation — Past Conduct of Deceased as Evidence of. 
 While it is true, the provocation must arise at the time of the com- 
 mission of the offense, and the passion must not be the result of a 
 former provocation, yet in passing upon the sufficiency of a provo- 
 cation, and on the effect of the passion upon the mind of the de- 
 fendant, the past conduct of the deceased towards the defendant, 
 his threats, if any, and bearing, — in fact, all the facts and circum- 
 stances of the case — should be considered by the jury. An act 
 standing alone may not be sufficient provocation, but may be ample 
 when it is one of a series of similar acts.^^ 
 
 § 3093. Provocation — Jury to Determine Adequacy of. It is your 
 duty, in determining the adequacy of the provocation, if any, to 
 consider in connection therewith all the facts and circumstances in 
 evidence in this ease; and if you find that by reason thereof the de- 
 fendant's mind at the time of the killing was incapable of cool re- 
 flection, and that said facts and circumstances were sufficient to 
 produce such state of mind in a person of ordinaiy temper, then the 
 proof as to the sufficiency of the provocation satisfies the require- 
 ments of the law. And so, in this case, you will consider all the 
 facts and circumstances in evidence, in deteiTuining the condition of 
 the defendant's mind at the time of the alleged killing, and the 
 adequacy of the cause, if any, producing such condition."'' 
 
 96— State v. Byrd, 52 S. C. 480, 30 99— Swanner v. State, — Tex. Cr. 
 
 S. K. 482 (483V '^m, r,S S. W. 72 (74); Chism v. 
 
 97— Hayne v. State, 99 Ga. 212, Stute. — Tex. Cr. App. — , 78 S. W. 
 
 25 R. E. 307 (308). 949 (950). 
 
 98— State v. Scossoni, 48 La. 1464, 
 21 So. 32 (34).
 
 §3094.] CRIMINAL— HOMICIDE— PROVOCATION. 1965 
 
 § 3094. Provocation — Standard for Determining Sufficiency. In 
 
 determining whether the provocation is suthcient to reduce homicide 
 to manslaughter, ordinary human nature, or the average of men 
 recognized as men of fair average mind and disposition should be 
 taken as the standard, unless the person whose guilt is in question 
 be shown to have some particular weakness of mind or infirmity of 
 temper, not arising from wickedness of heart or cnielty of disposi- 
 tion.ioo 
 
 § 3095. Provocation— Heat of Blood— Cooling Time, (a) The 
 
 object of the law is to have passion controlled and subdued, and not 
 permit it to become the excuse or palliation of crime. To mitigate 
 the offense to manslaughter, the facts must show that the act was 
 done in the excitement of passion; it must appear that the killing 
 resulted from passion or heat of blood produced by a reasonable 
 provocation. It is not every provocation that will reduce a killing 
 from murder to manslaughter. The provocation must be of such a 
 character, and so close upon the act of killing, that for the moment 
 the prisoner could be considered as not master of his own under- 
 standing. If such an interval of time elapsed between the provoca- 
 tion and the act of killing as is reasonably sufficient for reason to 
 resume its sway, the offense is not mitigated to manslaughter. I 
 have said the provocation must be reasonable, and must be recent, 
 and the act of killing must be done in a sudden transport of passion. 
 Whether the provocation was reasonable, and whether sufficient time 
 elapsed between the provocation given and the act of killing for the 
 accused to subdue or control his passion, are questions of fact, to be 
 determined by the juiy on a consideration of the circumstances of 
 the particular case before them.^ 
 
 (b) The provocation sufficient to reduce an intentional killing 
 from murder to that of manslaughter must arise at the time of the 
 commission of the offense, or before the passion of the slayer had 
 time to cool. The provocation by deceased must be the direct and 
 controlling cause of the passion, and it must be such as naturally 
 and instantly to produce in the minds of persons ordinarily con- 
 stituted the highest degree of exasperation, rage, sudden resent- 
 ment, or terror, rendering the mind incapable of cool reflection. 
 The law requires two things: First, there should be provocation; 
 and, second, the blow must be clearly traced to the passion arising 
 therefrom, — and that the provocation must be such as would stir 
 the resentment of a reasonable man [ordinaiy man].- 
 
 100— People v. Borgetto, 99 Mich, being in the substitution of the 
 
 336, 58 N. W. 328 (329). words an 'ordinary man' for the 
 
 1 — Brown v. State, 62 N. J. Law words a 'reasonable man.' Here. 
 
 666, 42 Atl. 811 (827). again, we think that the departui-e 
 
 2 — State v. Walker, 50 La. 420, was not prejudicial to the accused. 
 
 23 So. 967 (969). If there be any substantial differ- 
 
 The court said: ence between a 'reasonable man' 
 
 "These two propositions were and an 'ordinary man,' or a man 
 
 given by the district court to the of ordinary reason, influenced and 
 
 jury, the only deviation therefrom governed in his conduct by such
 
 1966 
 
 FORMS OF INSTRUCTIONS. 
 
 [§ 3096. 
 
 § 3096. Cooling Time — Facts Held to Constitute — Question of Law. 
 
 (a) The court charges you that the act must be the result of pas- 
 sion, and if you believe from the evidence that the deceased had con- 
 nection with (I might say as near as I can express it, the relation- 
 ship) the niece-in-law of the defendant, and he was informed of that 
 fact, and he had time to think, and did think, and that his mind 
 was in a cool state, then, gentlemen of the jury, the court will charge 
 you as a matter of law that there would be cooling time absolutely, 
 and it would constitute murder, and not manslaughter.^ 
 
 (b) Applying these principles to the ease at bar, the court 
 charges you as a matter of law, as applied to the facts of this case, 
 that the defendant did have cooling time, and that if he was sane 
 at the time of the homicide, the offense, if any was committed, would 
 not be manslaughter but murder.* 
 
 DYING DECLARATIONS. 
 
 § 3097. Dying Declaration — Why it is Admissible — Weight of, for 
 Jury, (a) You are instructed that in prosecutions for murder or 
 homicide the dying statements or declarations of the person with 
 whose murder the accused stands charged, when material, and made 
 
 passions and resentments as are 
 found in the 'average' man, we 
 think the standard adopted more 
 liberal than the one contended for. 
 The term used conveys to the 
 everyday juror a much clearer and 
 better idea of the standard of man 
 called for by law than the one 
 which it is desired to replace it 
 by." 
 
 3— Jarvis v. State, 138 Ala. 17, 34 
 So. 1025 (1030), citing Stillwell v. 
 State, 107 Ala. 21, 19 So. 322; Mc- 
 Neill v. State, 102 Ala. 121, 15 So. 
 352, 48 Am. St. 312; Felix v. State, 
 18 Ala. 720, and declining to follow 
 dictum that cooling time is a ques- 
 tion of fact for the jury in Hooks 
 v. State, 99 Ala. 166, 13 So. 767. 
 
 4— Ragland v. State, 125 Ala. 12, 
 27 So. 983 (987). 
 
 "What constitutes a sufficiency 
 of cooling time, or of provocation, 
 is necessarily a question of law, 
 and not of fact, the court being re- 
 quired to decide it prelim'inarily to 
 the admission or exclusion of evi- 
 dence offered in mitigation, anal- 
 ogous to the rule governing in 
 cases of homicide. 2 Bish. Cr. 
 Law, pars. 712, 713, and authorities 
 cited; Felix v. State, 18 Ala. 720; 
 Stillwell V. State, 107 Ala. 16, 19 So. 
 322. If the defendant had shot the 
 deceased immediately upon hear- 
 ing of the wrong to his daughter, 
 and in the heat of passion en- 
 
 gendered by the fact coming to his 
 knowledge, all the facts would 
 have been admissible to eliminate 
 the element of malice from the act, 
 by referring it to passion which 
 had not had time to cool, thus re- 
 ducing the homicide (under the 
 plea of not guilty) to manslaught- 
 er. Rogers v. State, 117 Ala. 14, 
 22 So. 666; Robinson v. State, 108 
 Ala. 16, 18 So. 732; McNeill v. State, 
 102 Ala. 126, 15 So. 352, 48 Am. St. 
 Rep. 17; Hooks v. State, 99 Ala. 166, 
 13 So. 767. In the last cited case, 
 appears the expression to the ef- 
 fect, that cooling time is a ques- 
 tion of fact for the determination 
 of the jury. This is contrary to 
 the generally received doctrine on 
 the subject, and to that extent that 
 decision must be disapproved." 
 
 In Olds V. State, 44 Fla. 452, 33 
 So. 296 (298-300), the supreme court 
 said that the giving of the follow- 
 ing charge was not error, in fact, 
 that it was too favorable to de- 
 fendant: 
 
 The fact that the defendant may 
 have been at the time of the kill- 
 ing under the influence of anger or 
 resentment would not of itself be 
 sufficient to preclude the idea of 
 premeditation unless the degree of 
 feeling was such as to cloud his 
 senses or to impair his reason. 
 And not even then would it be suf- 
 ficient if, subsequently to forming
 
 § 3097. 
 
 HOMICIDE— DYING DECLARATIONS. 
 
 1967 
 
 under the sense of impending death, are admissible in evidence. 
 Such declarations are made when the party making them is at the 
 point of death, and when every hope of the world is gone, and when 
 eveiy motive for falsehood is silenced, and the mind is induced by 
 •the most powerful considerations to speak the truth. The situation, 
 in law, is considered as creating an obligation equal to that which is 
 imposed by an oath administered in a court of justice. 
 
 (b) You are instructed that the declarations of X. offered in 
 evidence in this case through certain witnesses were admitted under 
 such rule of law. But the truth or falsity of such declarations of 
 X., and the degree of accuracy or inaccuracy in the recital thereof 
 by the witnesses, are matters for you to weigh under the same tests 
 as apply to other witnesses, considering all of the circumstances in 
 evidence surrounding each case and each witness.^ 
 
 the design, and before executing it, 
 sufficient time elapsed for an or- 
 dinarily reasonable man to have 
 regained his self possession. Nor 
 would such anger be sufficient to 
 exclude the idea of premeditation 
 if there was not such provocation 
 for it as would be calculated to ex- 
 cite such anger or passion as 
 might obscure the reason of an or- 
 dinarily reasonable man in the 
 same situation and under the same 
 circumstances. 
 
 The court said: 
 
 "What design is meant? If it be 
 the premeditated design to kill, re- 
 ferred to in the first part of the 
 charge, then time to regain self- 
 possession would play no part. A 
 killing from a premeditated design 
 — that is with the formed intention 
 to kill — with full consciousness of 
 the mind's purpose — would be 
 murder in the first degree without 
 reference to time to regain self- 
 possession, for the reason that the 
 party would be already sufficiently 
 self-possessed to form the inten- 
 tion to kill. If the jury took this 
 view of the charge, it could not 
 have been detrimental to the ac- 
 cused, because it gave him the 
 benefit of the additional fact to be 
 found against him, entirely imma- 
 terial, that sufficient time had to 
 elapse after forming the premedi- 
 tated design for an ordinarily rea- 
 son ble man to have regained self- 
 possession. If the design mentioned 
 ha'^' reference to a purpose to kill 
 under the impulse of anger or pas- 
 sion produced by a sufficient provo- 
 cation, then the rule as stated as 
 to cooling time would apply." 
 
 The following Instruction is an 
 extract from the charge in State 
 
 v. Timberlake, 50 La. An. 308, 23 
 So. 276 (278): 
 
 It is essential that the excited 
 and angry condition of the party 
 committing the act, entitling him 
 to a milder consideration of the 
 law, should be superinduced by 
 some insult, provocation or injury 
 which would instantly produce in 
 the minds of ordinary men, situat- 
 ed as the prisoner was, the highest 
 degree of exasperation. • * • The 
 law assigns no limits within which 
 cooling time may be said to take 
 place; every case must depend up- 
 on its circumstances; but a time 
 within which an ordinary man in 
 like circumstances would have 
 cooled may be said to be a reason- 
 able time. 
 
 The court in comment said: 
 
 "Considering the charge as to 
 manslaughter as a whole, it must 
 be held a correct exposition of the 
 law. The selection of passages here 
 and there for criticism and animad- 
 version is not favored, and a ver- 
 dict will not be disturbed on a 
 merely inaccurate or incomplete 
 instruction, as embodied in the 
 sentences excepted to, when, from 
 the entire charge on that branch 
 of the law, a correct view and ex- 
 planation of the subject is given. 
 To justify relief, the isolated pas- 
 sages brought to our attention 
 must amount to a positive mis- 
 statement of the law. State v. Ar- 
 dion, 49 La. An. 1145. 22 So. 620, 62 
 Am. St. Rep. 678; State v. Fergu- 
 son, 37 La. An. 51; State v. Porter, 
 35 La. An. 1159." 
 
 5— Kastner v. State, 58 Neb. 767, 
 79 N. W. 713, (715). 
 
 "It is admitted, in the brief of 
 counsel for defendant, that the first
 
 1968 FORMS OP INSTRUCTIONS. [§ 3097. 
 
 (c) The court instructs the juiy that the statement read to you 
 as a dying declaration of E. should be received by you as such dec- 
 claration; but because it is a dying declaration you are not neces- 
 sarily bound to believe it, but you will give it that weight which you 
 think it ought to have, when considered in connection with all the 
 other facts and circumstances in evidence.^ 
 
 (d) A statement by one who has been shot, respecting who it 
 was that inflicted the wound, is admissible as a dying declaration if 
 made at a time w^hen he did not expect to survive the injuiy, but is 
 of no more weight than if the deceased was present and testified. 
 
 (e) If you believe from the evidence that the deceased, after he 
 was shot, made a statement as to who shot him, and under what cir- 
 cumstances the shot was fired, and that at the time he made such 
 statement he believed he would die from the effects of said shot, and 
 entertained no hope of recovery, then you will give such statements, 
 if proven, as much weight as if he were duly sworn, present and 
 testifying in the case.'^ 
 
 (f) Whenever a party has been injured, — shot, for instance, — 
 and he is in extremis, if he manifests an apprehension of impending 
 death, if he expresses a consciousness that he will soon appear at 
 the bar of his Maker, that he will soon die, then the law allows that 
 person to make a statement of the circumstances under which he 
 received his wound, and that is known in law as a ''d3dng declara- 
 tion." Why is that allowed? It is upon the presumption in law 
 that a man who is conscious that he is soon to face his God is under 
 the same sanction and obligation to speak the truth that a witness 
 would be upon the stand under oath; and hence, under those circum- 
 stances, that dying declaration is competent and admissible as evi- 
 dence, although it is an ex parte expression on the part of the dying 
 man. As to the effect of it, that is a question entirely for you. I 
 have held that a portion of this paper purporting to be the dying 
 declaration of the deceased is admissible; it is for you to say what 
 weight you will attach to it.^ 
 
 part or paragraph of this instruc- "It will be noted that the court 
 
 tion correctly enunciates the law was careful to avoid the error of 
 
 relative to dying declarations, but instructing the jury that such 
 
 it is strenuously urged that the dying declarations should have the 
 
 last portion of the instruction is er- same degree of credit as the testi- 
 
 roneous, because it singled out the mony of the deceased would have 
 
 testimony concerning the subject if he had testified under oath as a 
 
 covered by this part of the charge, witness. This court in State v. 
 
 The language of the court below is Vansant, 80 Mo. 67, repudiated the 
 
 not susceptible of such interpreta- instruction given in Green v. State, 
 
 tion placed thereon by counsel. The 13 Mo. 382; and in giving its in- 
 
 testimony of no witness is singled struction the trial court followed 
 
 out or given undue prominence in State v. McCanon, 51 Mo. 160; and 
 
 the instruction, but the jury were State v. Vansant, supra." But see 
 
 properly advised that the testi- Allen v. State, infra, 
 
 mony relative to dying declarations 7— Allen v. State, 70 Ark. 337. 68 
 
 was to be weighed under the same S. W. 28. But see State v. Parker, 
 
 rules or tests applicable to other supra, 
 
 testimony " 8— State v. Petsch, 43 S. C. 132, 
 
 6— State 'v. Parker, 172 Mo. 191, 20 S. E. 993 (996). 
 72 S. W. 650 (654).
 
 §3098.] HOMICIDE— DYING DECLARATIONS. 1969 
 
 § 3098. Dying Declarations— Weight of for Jury— What May Be 
 Taken into Consideration. The court instructs the jury that to them 
 alone belong"s the function of determining what weight shall be given 
 to the dying declarations of the deceased, if any wei'e made by him. 
 In weighing the declarations, the jury should take into consideration 
 the facts that the defendants in this case were not present in person 
 or by attorney when the statements were made, and that there was 
 no opportunity for cross-examination of the deceased, and that there 
 was no opportunity for the jury to observe the manner of the de- 
 ceased at the time he made the statement, so as to detect malice or 
 feeling or revenge or other improper motive that may have influenced 
 him, and that the deceased "was not subject to prosecution for perjury 
 if he made false statements. And if the jury find from the evidence 
 that the deceased had at other times made statements inconsistent 
 with his dying declarations, these contradictory statements should 
 be considered by the jury in weighing the djnng- declarations, and 
 especially if such contradictoiy statements were made at a time when 
 his blood was cool or his mind unaffected by passion or feelings of 
 revenge.^ ^ 
 
 § 3039. Dying Declarations, Foundation for. (a) Dying dee- 1. 
 larations, made by any person in the article of death, who is con-f 
 scious of his condition, as to the cause of his death and the person ; 
 who killed him, are admissible in evidence in a prosecution for the 
 homicide. 
 
 (b) It is now for you to determine, first, whether the evidence 
 sufficiently showed that he was conscious of his approaching death, 
 and that his death was really approaching, to authorize the admis- 
 sion of said declaration, and, if not, you should disregard the dying 
 declaration altogether; but, if you think such evidence was sufficient 
 for the introduction of such declaration under the rules as I have 
 given you, you should then consider such declaration as evidence in 
 the ease, together with the other evidence.^" 
 
 § 3100. Dying Declaration to Be Received with Caution. Dying 
 declarations are admissible from the necessities of the ease, but 
 they should be received with caution, for the reason that the declar- 
 ant has not been administered an oath, and an opportunity for cross- 
 examination has not been afforded the defendant, and that the de- 
 clarant might be influenced against the defendant. And for the 
 further reason that the physical condition of the declarant might ren- 
 der the statement more or less reliable. Circumstances surrounding 
 the declaration should be weighed same as those surrounding other 
 evidence.^^ 
 
 9— State V. Hendricks, 172 Mo. 654. 11— State v. Mayo, 42 Wash, 540, 
 73 S. W. 194 (198). 85 Pac. 251 (255). 
 
 10 — Anderson v. State, 117 Ga. "This, or an. instruction of sim- 
 255 43 S. E. 835 (836), 12 Am. Cr. ilar import should have been 
 Rep 241. given State v. Eddon, 8 Wash. 292, 
 
 36 Pac. 139." 
 
 124
 
 CHAPTER XCIX. 
 
 CRIMINAL— HOMICIDE— SELF-DEFENSE. 
 
 See Erroneous Instructions, same chapter head. Vol. III. 
 
 ele- 
 
 of. 
 
 § 3101. Self-defense— Essential 
 ments. 
 
 § 3102. Self-defense — Doctrine 
 stated. 
 
 § 3103, Self-defense— Law of, stated. 
 
 § 3104. Law of necessity — Reason- 
 able cause to apprehend 
 immediate personal injury. 
 
 § 3105. What is sufflcient and what 
 is insufficient to show self- 
 defense. 
 
 § 3106. Belief of danger must be 
 reasonable. 
 
 § 3107. Acting on reasonable belief 
 of great bodily harm. 
 
 § 3108. If circumstances are insuf- 
 ficient to induce a reason- 
 able and well grounded be- 
 lief of danger, defendant is 
 guilty of murder. 
 
 § 3109. Real or apparent danger. 
 
 S 3110. Danger may not be real- 
 May act upon appearances. 
 
 § 3111. Defendant may safely act 
 on appearances, even 
 where they turn out to be 
 false. 
 
 § 3112. Self-defense— Danger must 
 seem actual, present and 
 urgent. 
 
 § 3113. Apprehension of danger — 
 Pei-son must act upon hon- 
 est belief. 
 
 § 3114. Defendant need not believe 
 death of assailant neces- 
 sary. 
 
 § 3115. Deceased, acting together 
 with other persons, as- 
 saulting defendant. 
 
 § 3116. Deceased assaulting defend- 
 ant with deadly weapon. 
 
 § 3117. Deceased attempting or pur- 
 porting to draw weapon. 
 
 § 3118. Apparent danger — Deceased 
 shooting first. 
 
 S 3119. Must employ all reasonable 
 means to avert the neces- 
 sity of killing. 
 
 § 3120. Resistance must be in pro- 
 portion to the danger 
 which is apprehended — 
 Honestly believed he was 
 in danger of life or great 
 
 harm — Reasonable 
 
 bodily 
 doubt. 
 
 § 3121. No more force to be used 
 than the circumstances 
 reasonably indicate to be 
 necessary. 
 
 § 3122. Judging defendant from his 
 standpoint. 
 
 § 3123. Possession by deceased of 
 deadly weapon. 
 
 S 3124. Self-defense — Blow need not 
 actually have been struck 
 — Attack with knife. 
 
 § 3125. Killing in revenge after re- 
 pelling assault. 
 
 § 3126. Defendant provoking affray. 
 
 § 3127. Commencing the difflculty — 
 Several persons on each 
 side. 
 
 § 3128. Defendant seeking interview 
 with deceased with malice 
 and hatred in his heart and 
 inducing deceased to as- 
 sault him. 
 
 § 3129. Defendant seeking the meet- 
 ing to provoke difflculty — 
 Circumstances must be 
 such as to render killing 
 unavoidable. 
 
 § 3130. Defendant attacking brother 
 
 § 3131. Self-defense— Defendant, if 
 at fault, cannot plead. 
 
 5 3132. Plea of self-defense barred 
 by defendant's agreeing to 
 fight. 
 
 § 3133. Aggressor cannot plead self- 
 defense. 
 
 § 3134. When aggressor, abandon- 
 ing conflict, may avail of 
 plea of self-defense. 
 
 5 3135. Aggressor is not necessarily 
 the person who strikes the 
 first blow or makes the 
 first demonstration to 
 strike — Question of fact. 
 
 § 3136. State must prove its con- 
 tention that defendant be- 
 gan the fight beyond a 
 reasonable doubt. 
 
 § 3137, Self-defense— Not available 
 to one who kills through 
 mere cowardice. 
 
 1970
 
 § 3101.] CRIMINAI^-HOMICIDE— SELF-DEFENSE. 
 
 1971 
 
 § 3138. Self-defense— Not available 
 to one who kills from 
 previously formed design. 
 5 3139. Insulting- words by defendant 
 would not deprive him of 
 self-defense. 
 § 3140. Justification— That defend- 
 ant and deceased were en- 
 gaged in unlawful occupa- 
 tion immaterial. 
 § 3141. Malice in the slayer imma- 
 terial — When. 
 § 3142. What the jury may consider 
 in determining whether the 
 blows or shots were given 
 or fired in self-defense. 
 § 3143. Quarrelsome disposition of 
 
 deceased. 
 § 3144. Physical power of deceased 
 
 may be considered. 
 § 3145. Ill will— Abuse- Threats. 
 § 3146. Threats, without effort to 
 carry them out, will not 
 justify killing — Overt act 
 necessary. 
 § 3147. Mere fear not sufficient — 
 Some overt act required — 
 W^hat constitutes. 
 S 3148. Threats with acts indicating 
 an intention to carry them 
 out. 
 § 3149. Previous threats may be con- 
 sidered in determining who 
 was aggressor — Mutual 
 threats. 
 § 3150. Threatening language used 
 may be considered as evi- 
 dence of state of feeling or 
 who was the aggressor. 
 § 3151. Prior threats — Purporting to 
 draw weapon — Reputation 
 as dangerous and violent 
 man. 
 § 3152. Uncommunicated threats, 
 
 admissible when. 
 § 3153. Previous n.alice or threats 
 by defendant do not bar 
 plea of self-defense — 
 Threats a question of fact. 
 § 3154. Mere threat of arrest not 
 
 sufficient provocation. 
 § 3155. Threats— Defendant entitled 
 to a separate instruction 
 as to. 
 § 3156. Prisoner shooting officer 
 
 making arrest. 
 § 3157. Self-defense, available where 
 defendant kills an officer 
 
 in ignorance of his char- 
 acter. 
 § 3158. Self-defense against rape. 
 § 3159. Resisting lawful expulsion 
 
 from another's house. 
 § 3160. No duty of retreat, when. 
 § 3161. Duty of retreat, when there 
 is any reasonable safe way 
 of escape. 
 § 3162. Duty of retreat— Without in- 
 creasing danger to life, etc. 
 § 3163. Attack with a pistol, no duty 
 
 of retreat. 
 § 3164. Drawing of a gun, by de- 
 ceased, defendant not 
 bound to flee. 
 § 3165. One attacked in his own 
 
 dwelling need not retreat. 
 § 3166. Burden of proof as to re- 
 treat. 
 § 3167. Aiming at aggressor, acci- 
 dentally killing another. 
 I 3168. Trespass by deceased. 
 § 3169. The right to continue firing 
 
 until safe. 
 § 3170. Defendant not obliged to 
 
 wait — May act promptly. 
 § 3171. Self-defense — Defendant 
 must warn before killing if 
 practicable. 
 § 3172. Excusable homicide Defined — 
 State must prove homicide 
 a crime. 
 § 3173. The assault on defendant 
 need not have been felo- 
 nious — Interfering in com- 
 bat. 
 § 3174. Whether the court may dis- 
 parage plea of self-de- 
 fense. 
 § 3175. Self-defense — Burden of 
 
 proof. 
 § 3176. Self-defense — Evidence 
 
 equally balanced acquits. 
 § 3177. Self-defense— Series of in- 
 structions approved in 
 Missouri. 
 § 3178. Self-defense — Includes saving 
 
 the life of another. 
 § 3179. Right to protect and defend 
 another — Defense of parent. 
 § 3180. Killing in defense of defend- 
 ant's son. 
 § 3181. Defendant may kill in de- 
 fense of person or property. 
 § 3182. When killing justifiable in 
 
 defense of property. 
 § 3183. Defense of habitation. 
 
 § 3101. Self-Defense — Essential Elements. (a) The essential 
 
 elements of self-defense are these : First^ tlie defendant must be free 
 from fault; that is, he must not say or do anything for the purpose 
 of provoking- a difficulty, nor must he be disregardful of the conse- 
 quences in this respect of any wrongful word or act. Second there
 
 1972 FORMS OF INSTRUCTIONS. [§ 3101. 
 
 must be a present impending peril to life, or of great bodily harm, 
 either real or apparent, as to create the bona fide belief of an exist- 
 ing necessity. Third, there must be no convenient or reasonable 
 mode of escape by retreat or declining the combat.^ 
 
 (b) Before the jury can acquit the defendant on the ground of 
 self-defense, three essential elements must concur: First, the de- 
 fendant must be without fault in bringing on the difficulty, and must 
 not be disregardful of the consequences, in this respect or any other 
 wrongful word or act. Second, there must have existed at the time, 
 either really or so apparently as to lead a reasonable mind to the 
 belief that it actually existed, a present, imperious, impending neces- 
 sity to shoot, in order to save himself from great bodily harm. 
 Third, and there must have been no other reasonable mode of escape 
 by retreat, or by avoiding the combat with safety.^ 
 
 (c) Self-defense, in proper cases, is the right of every person. It 
 may be resorted to by anyone who is violently assaulted by another 
 in such a manner as to cause the person so assaulting in good faith 
 to believe that he is in immediate danger of either being killed or of 
 receiving great bodily harm from the assailant, and that the killing 
 of the assailant appears to be the only means of escaping death or 
 great bodily harm. In ordinary cases of one person killing another 
 in self-defense, it must appear that the danger was so urgent and 
 threatening that, in order to preserve his own life, or to prevent his 
 receiving great bodily injury, the killing of the other was necessary, 
 or apparently necessary; and it must also appear that the person 
 killed was the assailant, or that the slayer in good faith endeavored 
 to decline further combat before the mortal blow or injury was given. 
 A. bare fear of being killed or of receiving great bodily harm is not 
 uifficient to justify a killing. It must appear that the circumstance*? 
 were sufficient to excite the fear of a reasonable person similarly 
 lituated, and the defendant acting in good faith, and viewing the 
 ituation and circumstances from his standpoint, and that the party 
 ailing really acted under the influence of such fear, and not in a 
 ^pirit of revenge. The law of self-defense is a law of necessity, pure 
 and simple. It is not an offensive law, but defensive law. Before 
 ihe defendant would be justified in killing the deceased, he must be 
 in danger, or apparently in danger, as viewed from his standpoint, 
 of either losing his life or of receiving great bodily harm at the 
 hands of the deceased at the place and at the instant when the fatal 
 shot which took the life of deceased was fired. ^ 
 
 l_Stevens v. State, 138 Ala. 71, 35 Millor v. State, 107 Ala. 40, 19 So. 
 
 So. 122 (124). 37 (38). See also Sherrill v. State, 
 
 2— Kilgore v. State, 124 Ala. 24, 27 138 Ala. 3, 35 So. 129 (131); Jackson 
 
 So. 4 (5). v. State, 94 Ala. 86, 10 So. 509; 
 
 The same instruction with the Hornsby v. State, 94 Ala. 55. 10 So. 
 
 additional word "reasonably" pre- 522; Wilkins v. State, 98 Ala. 1, 13 
 
 ceding- "without fault in brinp:ing So. 312. 
 
 on the difficulty," was approved in .3— Williams v. U. S., 4 Ind. Ter. 
 
 269, 69 S. W. 871
 
 § 3102.] CRIMINAL— HOMICIDE— SELF-DEFENSE. 1973 
 
 (d) Homicide is permitted by law and is justifiable -when in- 
 flicted for the purpose of preventing the offense of murder, maiming, 
 disfiguring, or other serious bodily injury*, when the killing takes 
 place under the following circumstances : (1) It must reasonably 
 appear by the acts, of the person killed, that it was the purpose and 
 intent of such person to commit one of the offenses above named; 
 (2) the killing must take place while the person killed was in the act 
 of committing the offense, or after some act done by him showing 
 evidently an intent to commit such offense. So, upon this issue, you 
 are charged that the defendant would be justifiable in killing de- 
 ceased, if it is shown to have been done to prevent the deceased from 
 murdering, maiming, or disfiguring him, or if it is shown that at the 
 veiy time of the killing, the deceased, J. S., had made, or was in the 
 act of making, some hostile demonstration towards defendant, such 
 as produced in his mind a reasonable fear or expectation of death or 
 of some serious bodily injury; but in that case, to justify the killing, 
 it must reasonably appear from the acts, or words coupled with the 
 acts, of the deceased, that he intended to murder, maim, disfigure, or 
 inflict some serious bodily injury upon defendant, and the killing 
 must have taken place while deceased was in the act of committing 
 such offense, or after some act done by him showing evidently an in- 
 tention to commit such offense. Therefore, if you believe from the 
 evidence that defendant at the time of the homicide believed that 
 his life was in danger, such fear being produced by hostile acts on 
 the pai-t of deceased, and that at the time he fired the fatal shot (if 
 he did so) it reasonably appeared to defendant, from all the circum- 
 stances of the case, viewed from defendant's standpoint alone, that 
 deceased was about to shoot him with a pistol, then defendant would 
 be justifiable in killing deceased; and, if you so believe, j-ou will 
 acquit defendant, though it may appear as a fact that defendant was 
 in no danger at the time of the homicide.* 
 
 § 3102. Self-Defense — Doctrine of, Stated, (a) If a person as- 
 saulted, being himself without fault, reasonably apprehends death 
 or great bodih' harm unless he kills his assailant, the killing is ex- 
 cusable; and if you believo that defendant was assaulted by de- 
 ceased in such a manner as to cause him to believe, and he did be- 
 lieve, that he was in imminent danger of losing his life or suffering 
 great bodily harm at the hand of the deceased unless he killed him, 
 and, while so believing, he killed deceased, he is entitled to an ac- 
 quittal.^ 
 
 4— Matthews v. State, 42 Tex. Cr. 77 Ind. 274; 1 Bish. Cr. Law, §865; 
 
 App. 31, 58 S. W. 86 (88). Runyan v. State. 57 Ind. 80, 26 Am. 
 
 A long instruction on self-defense Rep. 52, 2 Am. Cr. Rep. 318. 
 was approved in Bush v. State, 40 "The objection urged to this in- 
 
 Tex. Cr. App. 539, 51 S. "W. 238. See struction is that it was not required 
 
 also Barkman v. State, 41 Tex. Cr. that appellant should have believed 
 
 App. 105, 52 S. W. 73. it necessary to kill the deceased in 
 
 5— Deilkes v. State, 141 Ind. 23, 40 order to excuse him from so doing. 
 
 N. E. 120. citing McDermott v. This objection to the instruction is 
 
 State, 89 Ind. 187; Presser v. State, not well taken. * * * The instruc-
 
 1974 FORMS OF INSTRUCTIONS. [§ 3102. 
 
 (b) The jury are instructed that the right of self-defense is only 
 given in emergencies to enable persons who are attacked, and to 
 whom it may reasonably appear that their lives or bodies are in 
 danger of great bodily injury, to defend themselves; that this right 
 is based upon what reasonable persons, having due regard for hu- 
 man life, would do under similar circumstances, and the actions of 
 the defendant in this case must be measured by this rule.** 
 
 (c) If a person kill another in self-defense, it must appear that 
 the danger was so urgent and pressent that, in order to save his own 
 life or prevent his receiving great bodily harm, the killing of the 
 other was absolutely necessary; and it must appear also that the per- 
 son killed was the assailant, or that the slayer had really and in 
 good faith endeavored to decline any further struggle before the 
 mortal blow was given.''^ 
 
 (d) It is a settled principle of law that when a man is assailed 
 by another, and from the nature of the attack and the surrounding 
 circumstances as they appear to the accused at the time, he has 
 reasonable ground to believe and does believe that the assailant in- 
 tends presently to take his life, or to do some great bodily injury, 
 he will be justified in killing his assailant, provided he has not pre- 
 viously brought on the assault, and provided that the circumstances 
 are such that the extreme measure would seem to the comprehension 
 of a reasonable man necessary in the situation to prevent the threat- 
 ened injury.* 
 
 (e) If you believe from the evidence that, at the time A. W. shot 
 and killed L. M. (if you believe from the evidence, beyond a reason- 
 able doubt, he did do so), he believed, and had reasonable grounds 
 to believe, that he or A. M. were then and there in danger of death 
 or the infliction of great bodily harm at the hands of L. M., or those 
 acting in concert with him, and that it was necessary, or seemed to 
 the defendant, W., in the exercise of a reasonable judgment, to be 
 necessary, to shoot and kill L. M. in order to protect himself or A. 
 M. from death or the infliction of gTeat bodily harm at the hands of 
 said L. M., or those acting with him, then you will find the defendant 
 not guilty, on the grounds of self-defense and apparent necessity.'-* 
 
 (f) The jury ax-e instructed, as a matter of law, that if a person 
 believes, and has reasonable cause to believe, that another has sought 
 him out for the purpose of killing him, or of doing him great bodily 
 
 tion states that If he did so believe, making- it incum'bent on him to 
 etc., the killing was excusable. This show that he had in g-Qod faith de- 
 instruction has often been approved clined further combat. Because of 
 by this court." error in that instruction judg-ment 
 
 6 — Harris v. People, 32 Colo. 211, of conviction of inanslaughter was 
 
 75 Pac. 427 (429). reversed. 
 
 7— Ritter v. People, 130 111. 255 8— From the oral charge in State 
 
 (258), 22 N. E. 605. v. Guidor, 113 La. 727, 37 So. 622 
 
 In connection with the above in- (623), see also Kirby v. State, 41 
 
 struction another was given ampli- Fla. 81, 32 So. 836 (837). 
 
 fying it and putting the defendant 9 — Wilson v. Commonwealth, 24 
 
 In the attitude of an assailant and Ky. L. 185, 68 S. W. 121 (122).
 
 § 3103.] CRIMINAI^— HOMICIDE— SELF-DEFENSE. 1975 
 
 harm, and that he is prepared therefor with deadly weapons, and 
 the latter makes demonstrations manifesting an intention to com- 
 mence an attack, then the person so threatened is not required to 
 retreat, but he has the right to stand and defend himself, and pursue 
 his adversary until he has secured himself from danger; and if, in so 
 doing, it is necessary, or upon reasonable grounds it appears to be 
 necessary, to kill his antagonist, the killing is excusable upon the 
 grounds of self-defense.^*^ 
 
 (g) The court instructs the jury that the right of self-defense is 
 a right which the law not only concedes, but guaranties, to all men. 
 The defendant may therefore have killed deceased and still be inno- 
 cent of any offense against the law. If at the time he struck de- 
 ceased he had reasonable cause to apprehend on the part of de- 
 ceased a design to do him great personal injury, and there was 
 reasonable cause for him to apprehend immediate danger of such 
 design being accomplished, and to avert such apprehended danger he 
 struck deceased, and at the time he did so he had reasonable cause 
 to believe, and did believe, it necessary for him to use the piece of 
 rail in the way he did to protect himself from such apjDrehended 
 danger, then and in that case the striking was not felonious, but 
 was justifiable, and you ought to acquit him upon the ground of 
 necessaiy self-defense. It is not necessary to this defense that the 
 danger should have been impending and immediately about to fall ; 
 all that is necessaiy is that defendant had reasonable cause to be- 
 lieve, and did believe, these facts. But before you acquit on the 
 ground of self-defense, you ought to believe that defendant's cause 
 of apprehension was reasonable. Whether the facts constituting 
 such reasonable cause have been established by the evidence, you are 
 to determine, and, unless the facts constituting such reasonable cause 
 have been established by the evidence in the cause, you cannot acquit 
 in such case on the ground of self-defense, even though you may be- 
 lieve that the defendant really thought he was in danger.^^ 
 
 § 3103. Self-Defense — Law of, Stated, (a) If you believe from 
 all the circumstances of the case that the situation was such as to 
 excite the fears of a reasonable man, in the situation of the defend- 
 ant, that a felony was about ito be committed upon him, or that his 
 life was in danger, from the act of the decedent, and if he acted 
 under the influence of those fears, and not in a spirit of revenge, 
 and took the life of the decedent, then you should acquit him, gentle- 
 men, notwithstanding you may believe that he was not in danger and 
 that, if he had not acted, the decedent would not have committed a 
 felony upon him.^^ 
 
 (b) If the jury believe from the evidence the defendant, S. I., at 
 the time he struck the deceased, G. C. (if he did strike him), had 
 
 10— State V. Alley, 68 Mo. 124; For- 11— State v. Kinder, 184 Mo. 276, 83 
 tenberry v. State, 55 Miss. 403; Er- S. W. 964. 
 
 win V. State, 29 Ohio St. 186. 12— Williams v. State, 120 Ga. 870, 
 
 48 S. E. 368 (370).
 
 1976 FORMS OP INSTRUCTIONS. [§3103. 
 
 reasonable grounds to believe, and that he in good faith believed, 
 he was then in danger of losing his life, or of suffering great bodily 
 harm, at the hands of the defendant, G. C, then he had the right to 
 use such force as appeared to him, in the exercise of a reasonable 
 discretion, to be necessary to protect himself from such danger; and 
 if the juiy believe from the evidence the defendant used no more 
 force than was necessaiy, or no more force than appeared to him, in 
 the exercise of a reasonable discretion, to be necessary, to pi'otect 
 himself from the danger, then the law is for the defendant, and the 
 jury should acquit him on the ground of self-defense.^^ 
 
 (c) If from the evidence you believe that defendant killed the 
 said B., and further believe that, at the time of so doing, deceased 
 made an attack on him which, from the manner and character of it, 
 and the relative strength of the parties, and defendant's knowledge 
 of the character and disposition of the deceased, caused him to have 
 reasonable expectation or fear of death, . . . then you will 
 acquit.^* 
 
 (d) The court instructs the jury that the right to defend one's 
 self against danger is a right which the law concedes and guaranties 
 to all men. Therefore the defendant may have killed deceased, and 
 be innocent of any offense against the law. If at the time he shot 
 and killed deceased he had reasonable cause to apprehend on the 
 part of deceased a design to do him (the defendant) some great 
 personal injury, and there was reasonable cause for the defendamt 
 to apprehend immediate danger of such design being accomplished, 
 and, to avert such apprehended danger to himself, defendant shot 
 deceased, at the time he did so he had reasonable cause to believe, 
 and did believe, it necessary for him to shoot deceased to protect 
 himself from sucli apprehended dangei', then the shooting was not 
 felonious, but was justifiable, and you should acquit him. It is not 
 necessaiy to this defense that the danger should have been actual 
 or real, or that danger should have been impending and immediately 
 about to fall on the defendant. All that is necessary is that de- 
 fendamt had reasonable cause to believe, and did believe, these facts. 
 But before you acquit on the ground of self-defense, as outlined 
 above, you ought to believe defendant's cause of apprehension was 
 reasonable. Whether the facts constituting such reasonable cause 
 of apprehension have been established by the evidence, you are to 
 determine; and, unless the facts constituting such reasonable cause 
 have been established by the evidence in the cause, you cannot acquit 
 him on the ground of self-defense, even though you may believe that 
 defendant really thought he was in danger of great bodily harm or 
 of losing his life.^'^ 
 
 13— Ireland v. Commonwealth, 22 14— "This charge is correct." Mes- 
 
 Ky. L. 478, 57 S. W. 616 (617); Utter- ser v. State, 43 Tex. Cr. App. 97, 
 
 back V. Commonwealth, 22 Ky. L. 63 S. W. 643 (645). 
 
 1011. 59 S. W. 515 (516), 88 Am. St. 15— State v. Moore, 156 Mo. 204, 56 
 
 328. S. W. 883 (886).
 
 §3104.] CRIMINAL— HOMICIDE— SELF-DEFENSE. 1977 
 
 (e) The court instructs the juiy that the law is, if a person is 
 assaulted in such a way as to induce in him a reasonable belief that 
 he is in actual danger of losing his life, or of suffering great bodily 
 harm, he will be justified in defending himself, although the danger 
 be not real, but only apparent. Such a person will not be held re- 
 sponsible criminally if he acts in self-defense, from real and honest 
 convictions as to the chai'acter of the danger, induced by reasonable 
 evidence, although he may be mistaken as to the extent of the actual 
 danger. A person need not be in actual imminent peril of his life or 
 of great bodily harm before he may slay his assailant. It is sufficient 
 if, in good faith, he has a reasonable belief, from the facts as they 
 appear to him at the time, that he is in such imminent peril. ^"^ 
 
 S 3104. Law of Necessity — Reasonable Cause to Apprehend Imme- 
 diate Personal Injury, (a) The court instructs the jury that the 
 law of self-defense is emphatically the law of necessity, to which the 
 party may have recourse under certain cii'cumstances to prevent any 
 reasonably apprehended great injury which he may have reasonable 
 grounds to believe is about to fall upon him. If you believe that 
 defendant had reasonable cause to apprehend a design on part of 
 deceased to commit a felony upon defendant or to do him some great 
 personal injuiy, and that there was reasonable cause to apprehend 
 immediate danger of such design being canied out, and he cut de- 
 ceased and killed him to prevent the aceomiDlishment of such appre- 
 hended design, then the killing is justifiable, upon the ground of self- 
 defense, and you should acquit him.^^ 
 
 (b) If the defendant did shoot and kill S. L., but, at the time 
 the defendant shot said L. the defendant believed, and had reasonable 
 grounds to believe, that he was then and there in danger of death, or 
 of suffering some serious bodily harm at the hands of said L., and it 
 was necessary, or to the defendant reasonably appeared to be neces- 
 sary, to shoot said L. to avert the danger, or what appeared to 
 defendant to be such danger, this was a shooting and killing in self- 
 defense. And if the defendant did shoot and kill S. L., j^et the jury- 
 should find the defendant not guilty unless the juiy believe from the 
 evidence, beyond a reasonable doubt, that said shooting was not done 
 in self-defense.^* 
 
 16 — State V. Tokum, 11 S. D. 544, struction is a correct statement of 
 
 ,79 N. W. 835 (837). the law and contains no error 
 
 "This instruction is as favorable which would justify the reversal of 
 
 to the accused as the law author- the judgment." 
 
 izes, and covers every possible IS — Stout v. Commonwealth, 29 
 
 phase of the defense of justifiable Ky. L. 627, 94 S. W. 15. 
 
 homicide." In comment the court said: "This 
 
 17 — State V. Maupin, 196 Mo. 164, does not make his rig-ht of self-de- 
 
 93 S. W. 379 (383). fense to rest alone upon the appear- 
 
 "The objection to this instruction ance of danger, thereby excluding 
 
 is based sole'y upon the fact that the right of self-defense for real, 
 
 the court used the phrase 'that the although not apparent, danger. At 
 
 law of self-defense is emphatically best, this is a most unusual crit- 
 
 the law of necessity.' Read to- icism. Generally, the defendant 
 
 gether, it is apparent that the in- complains that the instruction of
 
 1978 FORMS OF INSTRUCTIONS. [§ 3104. 
 
 (e) If you shall believe from the evidence that, at the time of the 
 shooting the defendant had reasonable cause to apprehend, and did 
 apprehend, a design on the part of W. to take his life or do him 
 some great personal injury, and that there was reasonable cause for 
 him to apprehend, and he did api^rehend, immediate danger of such 
 design being accomplished, and that he shot to avert such appre- 
 hended danger, and that, at the time of the shooting, he had reason- 
 able cause to believe, and did believe, it was necessary for him to do 
 so to protect himself from such apprehended danger, then he had a 
 right to do such shooting; and you should acquit him on the 
 ground of self-defense. It is not necessary that the defendant should 
 have been in actual or real danger, nor that the danger, if any, should 
 have been impending and about to fall. If he had reasonable cause 
 to believe, and did believe, he was in immediate danger of being 
 killed or receiving some great personal injury, he had a right to act 
 upon such belief. Whether or not he did have reasonable cause to 
 so believe, and whether or not he did so believe, are for you to 
 determine from all the facts and circumstances appearing in 
 evidence. ^^ 
 
 (d) If the defendant had any reasonable cause to believe, from 
 the words, acts, and conduct of the deceased, that he had a design to 
 do him some great personal injui^y, and that such design was about to 
 be accomplished, then defendant had a right to act on appearances, 
 and to cut or stab deceased (if necessary) to prevent the accom- 
 plishment of such design; and in this connection the jury are further 
 
 the court excludes the rigrht of self- he did it, he believed and had rea- 
 
 defense for apparent danger, and it sonable grounds to believe that he 
 
 is not usually thought that juries was in immediate danger of death 
 
 need any special accentuation of or great bodily harm then about to 
 
 real, as against apparent, danger, be inflicted on him, or which rea- 
 
 But, undoubtedly, it is true, that sonably appeared to the defendant 
 
 there may be actual danger without about to be inflicted on him by S., 
 
 its being apparent, although this they will flnd the defendant not 
 
 seldom occurs. An examination of guilty, upon the grounds of self- 
 
 the instruction complained of, how- defense and apparent necessity.' 
 
 ever, shows that it recognizes both The self-defense instruction in the 
 
 real and apparent danger, and in case at bar is less amenable to crit- 
 
 every way protects and safeguards icism for the reasons urged by ap- 
 
 the interests of the accused with pellant than is the one in the case 
 
 reference to his right of self-de- cited." 
 
 fense. In the case of Howard v. 19— State v. Todd, 194 Mo. 377, 92 
 
 Commonwealth, 24 Ky. L. 612, 69 S. W. 674. 
 
 S. W. 721, the following instruction In State v. McCarver, 194 Mo. 717, 
 
 was approved: 'Although the jury 92 S. W. 684, the same instruction, 
 
 may believe from the evidence, be- with the following sentence added, 
 
 yond a reasonable doubt, that the was approved: 
 
 defendant, H., in M. County, before "If you shall believe from the 
 
 the finding of the indictment herein, evidence that the defendant did not 
 
 shot and killed S. with a pistol have reasonable cause to so believe, 
 
 loaded with powder and leaden ball, you cannot acquit him on the 
 
 or other hard and explosive sub- ground of self-defense, although 
 
 stance, still if tney further believe you may believe from the evidence 
 
 from the evidence that at the time that the defendant really thought 
 
 the defendant did the shooting, if he was iu danger."
 
 § 3105.] CRIMINAL— HOMICIDE— SELF-DEFENSE. 1979 
 
 instructed that defendant was not required to nicely gauge the force 
 used, but that he oould see any means that appeared reasonably 
 necessary under the circumstances. Neither is it necessary to this 
 defense that his danger should have been real or actual, or that it 
 should have been impending and about to fall ; but if he had reason- 
 able cause to believe, and did believe, these facts, and cut the deceased 
 to prevent such expected harm, then you must acquit on the grounds 
 of self-defense.^'* 
 
 (e) If the jury believe from the evidence that at the time the 
 
 defendant struck and killed S , if he did so, he had reasonable 
 
 grounds to believe, and did in good faith believe, that he was then 
 in danger of losing his life or suffering great bodily harm at the hands 
 of S., and there appeared to the accused, exercising a reasonable judg- 
 ment at the time and under the circumstances, no other safe means 
 of avoiding the impending real, or apparent dangei', then in such 
 case the accused had the right to strike in his necessary self-defense ; 
 and, if the killing of S. occurred under such circumstances, then the 
 jury should acquit the defendant. ^^ 
 
 (f) The court instnicts the juiy that the defendant in this case 
 has taken the witness stand in his own behalf, and has admitted that 
 he shot the deceased, J., but claims that such shooting was done in 
 self-defense. And the court instructs the jury that the law on the 
 subject of self-defense is that if a person is assaulted in such a way 
 as to induce in him a reasonable belief that he is in actual danger of 
 losing his life, or of suffering great bodily harm, he will be justified 
 in defending himself, although the danger be not real, but only ap- 
 parent. And in this case, if the jury believe from the evidence that 
 the defendant, W., was assaulted by the deceased in such a way as 
 to induce in the defendant a reasonable and well-grounded belief that 
 he was in actual danger of losing his life or of suffering great bodily 
 harm, then he was justified in defending himself, even to the extent 
 in taking the life of his assailant, although the danger was not real, 
 but only apparent. -^ 
 
 § 3105. What is Sufficient and What is Insufficient to Show Self- 
 Defense. (a) The law guaranties to eveiy man the right of self- 
 defense, and, if defendant killed J. in necessary defense of his person, 
 he is not guilty. If, therefore, you find from the evidence that the 
 defendant struck J. with some instrument which resulted in the 
 death of said J., and at the time defendant struck deceased he had 
 good reason to believe, and did believe, from the conduct, manner, or 
 appearance of deceased, that the deceased was about to inflict upon 
 him some great personal injury, and defendant struck him for the pur- 
 pose of averting such apprehended injury, then you must acquit the 
 defendant on the gTound of self-defense. In such case it is not neces- 
 
 20— State v. Gordon, 191 Mo. 114, 89 22— State v. Dotson, 26 Mont 305 
 
 S. W. 1025. 67 Pac. 938 (940). 
 
 21 — Austin V. Commonwealth, 28 
 Ky. L 1087. 91 S. W. 267.
 
 1980 FORMS OF INSTRUCTIONS. [§3105. 
 
 sary that the danger should have been real and about to fall. All 
 that is necessary is that the defendant believed, and had good reason 
 to believe, that such danger existed. On the other hand, it is not 
 enough that the defendant believed in the existence of such danger, 
 but he must have had good cause for so believing before he can be 
 acquitted on the ground of self-defense. If, however, you find from 
 the evidence, beyond a reasonable doubt, that defendant, prior to the 
 killing of J., had formed a design to kill said J. or do him some 
 great personal injury, and to carry out such design the defendant 
 armed himself with a deadly weapon and sought said J., and pro- 
 voked, brought on, or entered into a difficulty with said J., which 
 resulted in his death, for the puipose of wreaking his vengeance or 
 malice upon said J., or for the purpose of taking the life of said J, 
 or doing him some great bodily harm, then there is no self-defense 
 in the case, howevpr, imminent the peril of defendant may have 
 become in consequence of an attack made upon him by the deceased; 
 and if, in such circumstances, you believe defendant killed said J., 
 then he is guilty of murder in the first degree.'^ 
 
 (b) The court charges the jury that if they believe from the evi- 
 dence beyond a reasonable doubt, that John G. lay in wait for Bartow 
 L. for the purpose of killing him, and did kill him, then the defendant 
 cannot be excused or justified under his plea of self-defense, and you 
 must convict him.-'* 
 
 (e) If you find from the evidence that the defendant could have 
 retired to a place of safety before S. reached his gun, then it was his 
 dutj' to have done so, and he was not justified in shooting S. because 
 he may have believed that S. was going after his gun. To justify the 
 use of a deadly weapon by the defendant when an assault has been 
 made upon him, the circumstances must appear to be such that thei-e 
 is no other reasonable means of escape from death or great bodily 
 harm.-^ 
 
 23— State v. Darling, 199 Mo. 168, that the defendant did, after firing 
 97 S, W. '592. the first shot, retire to a less ex- 
 24— Gafford v. State, 125 Ala. 1, 28 posed place, we do not think this 
 So. 406 (407). instruction misleading- or prejudic- 
 25 — Delaney v. State, 14 Wyo. 1, ial, especially when considered in 
 XI Pac. 792. connection with, and that its mean- 
 In comment the court said that in ing- was restricted to, a voluntary 
 this "instruction the word 'retired' withdrawal from the assault by the 
 is used, and defendant claims that instruction which was given at the 
 this is equivalent to the word 're- request of the defendant that where 
 treated,' and that he was thereby one is assaulted in his own house 
 prejudiced. We think, as applied to under such circumstances as to in- 
 the law of self-defense, there is a duce the belief that he is in danger 
 difference in meaning of the two of losing his life or suffering great 
 words. The latter always implies bodily harm, he is not obliged to 
 an act under pressure or force, a retreat, but may pursue his ad- 
 drivin-g back; while the former may, versary until he has freed himself 
 and usually does, rest solely in from danger — an instruction which, 
 volition. The use of the word in connection with the other in- 
 'escape' in the second part of the structions as a whole, embodied the 
 instruction was not proper; but in law of the case." 
 view of the evidence in this case
 
 § 3105.] CRIMINAI^HOMICIDE— SELF-DEFENSE. 1981 
 
 (d) The court instructs the jury, that although they should find, 
 from the evidence, that the said A. B. and the defendants got into a 
 quarrel at the time in question, and that the said A. B. followed the 
 defendant up in a threatening manner, still, the defendant would 
 have no right to assault the said A. B. with a deadly weapon in a 
 manner calculated to take life, or do great bodily injury, unless the 
 cireumstanees were such as to lead a reasonable person to believe 
 that such an assault was necessary-, on the part of the said defendant, 
 in self-defense, to prevent receiving a great bodily injury himself.^^ 
 
 (e) If you believe from the evidence in this ease that B., on the 
 simple request of K. for an explanation of the trouble he (B.) had 
 had with K. 's little brother, became angered, and assaulted K. with 
 a stick, capable in his (B. 's) hand of inflicting great bodily haim 
 upon K., and that the manner of such assault caused K. reasonably 
 to believe that such injuiy was then about to be, or in progress of 
 being, inflicted on him, and to prevent it he reasonably believed it 
 was necessary to shoot him, then he had a right to draw his pistol 
 in his own defense, and shoot B., even if it killed him; and, if the 
 killing oecuiTed under such circumstances, then the jury should 
 acquit K.'" 
 
 (f) Although you may believe from the evidence that the de- 
 fendant, C, assaulted and killed J., yet, if you shall further believe 
 from the evidence that such killing was done in self-defense, as here- 
 inafter defined, then you will acquit the defendant. On the question 
 of self-defense you are instructed that if at the time the defendant, C, 
 assaulted and killed J., he, the defendant, C, had reasonable cause 
 to apprehend a design on the part of J. or his brother, B., to take his 
 life, or to do him some great personal injury and that there was 
 reasonable cause for him to apprehend immediate danger of such 
 design being accomplished, and that to avert such apprehended danger, 
 he shot J., and that at the time of shooting, he had reasonable cause 
 to believe and did believe that it was necessary for him to shoot to 
 protect himself from such aj^prehended danger, you will acquit the 
 defendant on the ground of self-defense. It is not necessary that 
 the danger should have been actual or real, or 'that the danger should 
 have been impending and about to fall. All that is necessary is that 
 the defendant, C, had cause to believe and disbelieve these facts. On 
 the other hand it is not enough that the defendant C. should have 
 so believed. He must have had reasonable cause for so believino-. 
 Whether or not he had reasonable cause for so believing is for you 
 to detennine, under all 'the facts and circumstances given in evidence. 
 If you shall believe from the evidence that the defendant C. did not 
 have reasonable cause to so believe jou cannot acquit him on the 
 
 26— Judge V. State, 58 Ala. 406; 27— King v. State, — Miss. — '>3 
 Jackson v. State, 6 Bax. (Tenn.) So. 766. 
 452; Davis V. People, 88 111, 350,
 
 1982 FORMS OF INSTRUCTIONS. [§3106 
 
 ground of self-defense, although you may believe that the defendant 
 really thought he was in danger.-** 
 
 § 3106. Belief of Danger Must Be Reasonable, (a) Unless such 
 belief of danger is reasonable — that is, unless a reasonably cautious 
 and prudent man would entertain the same belief from the same 
 appearances — it would be no defense, even though it was an honest 
 belief of danger,^^ 
 
 (b) But unless such belief of danger is reasonable — that is, unless 
 a reasonably pi-udent and cautious man would entertain the same 
 belief from the same appearances — it will be no defense, even though 
 it was an honest belief of danger. Men do not hold their lives at 
 the mercy of the unreasoning fears of excessive caution of others; 
 and if from such motives the defendant killed B. without real or 
 apparent good reason for so doing, he cannot justify his act as being 
 in self-defense.^** 
 
 (e) The important questions for the jury 'to determine are: (1) 
 Was the defendant, at the time he fired the fatal shot, in present 
 danger of death or serious bodily harm, or were the eircuinstances 
 such as to afford him just and reasonable grounds for believing him- 
 self to be in such danger? (2) Was the shooting done in good faith 
 to protect himself from such danger or threatened danger? If both 
 these questions can be answered in the affirmative, the shooting would 
 be justifiable. The defendant, under the law, would have the right 
 to defend himself from the appearances of danger, the same and to 
 the same extent as he would were the danger real. That the danger 
 aiDpeared real to the defendant is all the law requires, to justify him 
 in acting; and, in passing upon the question as to the defendant's 
 right to act, the matter must be viewed from the standiDoint of the 
 defendant.^^ 
 
 (d) The court charges the juiy the apparent necessity which will 
 excuse the taking of human life under the doctrine of self-defense in 
 eases of homicide involves two considerations: First, the defendant 
 himself must have entertained an honest belief in the existence of 
 such necessity; and, second, 'the circumstances surrounding him must 
 
 28— State v. May, 172 Mo. 630, 72 can excuse the mortal blow. This 
 
 S. W. 918 (920). contention is untenable and the 
 
 29— Olds v. State, 44 Fla. 452, 33 propriety of the charge is fully 
 
 So. 296 (300), citing Lane v. State, sustained by the cases of Smith v. 
 
 44 Fla. 105, 32 So. 896; Howard v. State, 25 Fla. 517, 6 So. 482; Finder 
 
 Commonwealth, 24 Ky. L. 612, 69 S. v. State, 27 Fla. 370, 8 So. 837, 26 
 
 W. 721 (722); Thompson v. St^te, Am. St. 75, and Padgett V. State, 
 
 55 Ga. 47; Wall v. State, 51 Ind. 40 Fla. 451, 24 So. 145." 
 
 453; State v. Stockton, 61 Mo. 382. 31— Francis v. State, 44 Tex. Cr. 
 
 30— Morrison v. State, 42 Fla. 149, App. 246, 70 S. W. 751 (752). 
 28 So. 97 (99). "The latter clause, taken in con- 
 "The contention is that the nection with the first clause, pre- 
 charge erroneously requires the ap- sents the law of reasonable ap- 
 pearance of impending imminent pearances of danger, as we under- 
 danger to life or limb to be such as stand the authorities hold it should 
 would actuate a reasonable cau- be done." 
 tious and prudent man, before they
 
 §3106.] CRIMINAL— HOMICIDE— SELF-DEFENSE. 1983 
 
 have been such as to impress a reasonable man, under the same state 
 of facts, with the belief of his imminent peril, and of the existence 
 of an urgent necessity to take the life of his assailant, as the only- 
 apparent alternative of saving his own life, or else of preventing 
 the infliction on him (the defendant) of grievous bodily harm.^^ 
 
 (e) There can be no successful setting up of self-defense by a 
 defendant, unless the taking of his adversary's life is the only reason- 
 able resort of the party to save his own life or his person from 
 [dreadful] harm or severe calamity, felonious in its eharacter.^^ 
 
 (f) You are instructed as a matter of law that when a person is 
 assaulted by another, and from the nature of the attack, viewed in 
 the light of any previous threat or hostile declax'ation made by the 
 assailant, and of his known character for violence, the party assaulted 
 has reasonable grounds to believe and does believe that the assailant 
 intends presently to take his life or do him some bodily injury, he 
 will be justified in killing his assailant, providing the circumstances 
 are such that such extreme measm'e would seem, to the comprehension 
 of a reasonable man, necessaiy, in such situaition, to prevent the 
 threatened injuiy. Whether the appearances of danger are sufficient 
 to convince a reasonable man in the situation of the accused that 
 death or the infliction of great bodily hann upon the person of the 
 accused, was intended by the deceased, is a question of fact for 
 the jury.^* 
 
 (g) The court charges the jury that the apparent necessity which 
 will excuse the taking of human life under the doctrine of self-de- 
 fense, in cases of homicide, involves two considerations : First, the 
 defendant himself must have entertained an honest belief in the 
 existence of such necessity; and, second, the circumstances surround- 
 ing him must have been such as to impress a reasonable man, under 
 the same state of facts, with the belief of his imminent peril, and of 
 the existence of an urgent necessity to take the life of his assailant, 
 as the only apparent alternative of saving his own life, or else of 
 preventing the infliction on him (the defendant) of grievous bodily 
 harm.^^ 
 
 32— Miller v. State, 107 Ala. 40, 19 34— Housh v. State, 43 Neb. 163, 
 
 So. 37 (38). Following Wilkius v. 61 N. W. 571 (572). Citing- State v. 
 
 State, 98 Ala. 1, 13 So. 312. Harris, 1 Jones (N. C.) 190— "a well- 
 
 33— State v. Carter, 15 Wash. 121, considered case;" People v. Cough- 
 
 45 Pac. 745 (746). lin, 67 Mich. 466, 35 N. W. 72; State 
 
 "It would have been better had v. Sterrett, 68 Iowa 76, 25 N. W. 936; 
 the court not used the word 'dread- State v. Archer, 69 Io-v\-a 420, 29 N. 
 ful,' but we do not think that its W. 333; State v. Bohan, 19 Kan. 28; 
 use -was prejudicial to the defend- Davis v. People, 88 111. 350; Watson 
 ant. The court had already twice v. State, 82 Ala. 10, 2 So. 455; Pen- 
 told the jury that the defendant land's Case, 19 Tex. App. 365; Clif- 
 might invoke the law of self-de- ford v. State, 58 Wis. 477, 17 N. W. 
 fense to protect his life or person 304; Parrish v. State, 14 Neb. 67, 15 
 from great 'bodily harm,' and this N. W. 357, and Vollmer v. State, 24 
 was emphatically stated to the jury Neb. 838, 40 N. W. 420. 
 at several subsequent points in the 35— Bondurant v. State, 125 Afo, 
 instructions." 3, 27 So, 775 (777), citing Wilkins v.
 
 1984 FORMS OF INSTRUCTIONS. [§ 3107. 
 
 (h) If you find that at the time the defendant shot and killed J. 
 he had reasonable cause to believe and did believe that said J. was 
 about to kill or inflict great personal injury upon him, and that he 
 shot him to avert such death or injury, then he must be acquitted on 
 the ground of self-defense. In such a case it is not necessary that 
 the danger should have been real and impending, but it is sufficient 
 if the defendant so believed, and had reasonable cause for so believing; 
 but the fact that he believed himself to be in danger would not be 
 sufficient unless he had reasonable cause for so believing.^*^ 
 
 § 3107, Acting on Reasonable Belief of Great Bodily Harm, (a) 
 If the juiy find from the evidence 'that the conduct of N. H. was such 
 as to reasonably lead the defendant to believe that N. H. was about to 
 inflict some great bodily hai-m on his person and the juiy further 
 find that defendant was not at fault in bringing on the difficulty, and 
 that the defendant could not have retreated without increasing his 
 danger, and that defendant acting on such reasonable belief of great 
 bodily harm fired a pistol at said N. H. and wounded him, then the 
 juiy should acquit the defendant.^'^ 
 
 (b) If you believe from the evidence that C, a short time before 
 the shooting, had threatened violence to the defendant, of which the 
 defendant was infonned, and that he struck defendant a blow with 
 his fist, and threw his hand behind him as if to draw a pistol, then 
 the defendant had a perfect light to interpret this act of C. 's in the 
 light of such threats; and if you believe, under these circumstances, 
 that the defendant reasonably believed his life in peril, then he was 
 perfectly justifiable in shooting C, even though you may believe that 
 C. w'as wholly unarmed, and defendant was in no real danger at his 
 hands.^^ 
 
 (c) If you believe the prosecuting witness, B., knocked the defend- 
 ant down with his fist or a quirt or a pistol, and then commenced to 
 beat the defendant on the head or face with a pistol, or to cut him 
 in the face with a knife, and the defendant had no other means of 
 defending himself than to use his knife, and that he believed and had 
 reason to believe that the prosecuting witness was about to kill him 
 or do him some great bodily hann and he used his knife to protect 
 himself, then you will find him not guilty.^^ 
 
 (d) If the jury believe and find from the evidence before them 
 that the defendant, C, shot the deceased with a pistol, and thereby 
 killed him, as alleged in the indictment, and further believe from the 
 
 State, 98 Ala, 1, 13 So. 312; Miller v mislead the jury. Holmes v. State, 
 
 State, 107 Ala. 40, 19 So. 37; Martiin 100 Ala. 80, 14 So. 864; Keith v. 
 
 V. State, 77 Ala. 1. State, 97 Ala. 32, 11 So. 914; Gibson 
 
 36— State v. Goddard, 162 Mo. 198, v. State, 89 Ala. 121, 8 So. 98, 18 Am. 
 
 62 S. W. 697 (707). St. 96." 
 
 37_Winiams v. State, 102 Ala. 33, 38— Godwin v. State, 73 Miss. 873, 
 
 15 So. 662 (663). 19 So. 712, 55 Am. St. 573, approves 
 
 "The charge itself, as we con- the above as one of a series, 
 
 strue it, asserts the law properly. 39 — Territory v. Baca, 11 N. M. 
 
 It might have been better ex- 559, 71 Pac. 460 (463). 
 pressed, but as framed, it could not
 
 §3107.] CRIMINAI^HOMICIDE— SELF-DEFENSE. 1985 
 
 evidence that at the time he did so, if he did, deceased, L., was then 
 about to assault defendant with a knife, and if the jury further 
 believe from the evidence that defendant believed, and had the right 
 reasonably to believe, from the acts of deceased, if any, and from all 
 other circumstances, viewed from defendant's standpoint at the 
 time, that deceased w^as about to take his life or to inflict upon him 
 some serious bodily injury, and so believing, if he did, he shot de- 
 ceased one or more times with a pistol, and thereby killed deceased, 
 believing, if he did, that it was a necessary act to prevent deceased 
 from taking his life or from inflicting upon him some serious bodily 
 injury, then it would be the duty of the jury to find defendant not 
 guilty, upon the ground of self-defense.*'^ 
 
 (e) If the juiy believe from the evidence in this case that at the 
 time of the shooting defendant had a reasonable ground to believe, 
 and did believe, that he was in danger of his life or great bodily 
 harm at the hands of M., then he was justified in shooting him, and 
 this is true even if defendant was in no danger.'*^ 
 
 (f) Where one person assaults another, such person so assaulted 
 has a lawful right to use a sufficient amount of force to resist such 
 assault, and compel the person so assaulting to desist therefrom. But 
 where one person is assaulted by another, it is not lawful for the 
 person so assaulted to use a deadly weapon in his defense, unless such 
 an assault was made with such a weapon, or in such a manner, as 
 would cause a person of ordinary courage and prudence to believe 
 that he was in imminent peril of losing his life, or of receiving 
 great bodily injury.*^ 
 
 (g) But to justify the taking of Y. 's life in self-defense, it must 
 appear from the evidence that the defendant not only really and in 
 good faith endeavored to decline any further combat, and to escape 
 from Y., before the fatal blow was given, but it must also appear that 
 the circumstances were such as to excite the fears of a reasonable 
 person that Y. intended to take his life, or to inflict on him a great 
 bodily hann; and, further, that the defendant really acted under the 
 influence of these fears, and not in a spirit of revenge.*^ 
 
 40 — Crockett v. State, — Tex. Cr. toward defendant with his open 
 
 App. — , 77 S. W. 4 (6). Contrasting knife; and the court properly predi- 
 
 Phipps V. State, 34 Tex. Cr. R. 560, cated the charge in this regard ou 
 
 31 S. W. 397; Graham v. State, 61 the testimony of defendant's wit- 
 
 S. W. 714, 2 Tex. Ct. Rep. 236. Held nesses." 
 
 that this "properly presented the 41 — Johnson v. State, — Miss. — , 
 
 case on the issue made by appellant. 27 So. 880 (881). 
 
 All of the state's witnesses either 42 — State v. Sullivan, 51 la. 142, 
 prove that there was no demon- 50 N. W. 572 (573). 
 stration made by deceased at the The court said that such an in- 
 time of the homicide, or, if any was struction need not call attention to 
 made, they did not see it. Those former quarrels between the 
 w'itnesses who testified on behalf parties. 
 
 of appellant as to the difficulty. 43 — State v. Bone, 114 lov.'a 537, 87 
 
 with one accord, state that deceased N. W. 507 (510), 89 Am. St. 382; 
 
 drew his knife and opened it, and State v. Warner, 100 Iowa 200, 69 
 
 made a demonstration as if to get N. "W. 546; State v. Jones, 89 Iowa 
 
 up from his seat, and advanced 183, 56 N. W. 427. 
 
 125
 
 1986 FORMS OF INSTRUCTIONS. [§ 3108. 
 
 (h) In determining wliether or not the defendant took the life of 
 the deceased under circumstances to render the aet justifiable, as 
 hereinbefore explained, you will determine whether or not the cir- 
 cumstances as they appeared to him were such as to lead a reasonable 
 man to believe that there was a design to kill him or do immediate 
 bodily harm, coupled with immediate danger of such design being ac- 
 complished.** 
 
 § 3108. If Circumstances are Insufficient to Induce a Reasonable 
 and Weil-Grounded Belief of Danger, Defendant is Guilty of Murder. 
 (a) The court instructs the jury that if a person kills another through 
 mere cowardice, or under circumstances which are not, in the opinion 
 of the jury, sufficient to induce a reasonable and well-grounded belief 
 of danger to life or of great bodily hai-m in the mind of an ordinary 
 courageous man, the law will justify the killing on the ground of self- 
 defense. 
 
 (b) In this case the court instructs the jury that if you believe 
 from the evidence, beyond a reasonable doubt, that the defendant, W.. 
 on the night of , 19 — , in the County of N.j territory of Okla- 
 homa, left the residence of one L., with a loadetl rifle, and went to 
 the place or near 'the place where J. then resided, and laid in waiting 
 around said premises for the purpose of taking the life of the de- 
 ceased, J., and that th^ said defendant shot the deceased while return- 
 ing to his home, and while riding in the highway in a buggy, and 
 that at the time he shot the deceased he had no reasonable and well- 
 founded belief that his life was in danger, or that he would suffer 
 some great bodily injury at the hands of the deceased, then, in that 
 event, the defendant is guilty of murder as charged in the indict- 
 ment, and the jury should so iind.*^ 
 
 § 3109. Real or Apparent Danger, (a) If you find and believe 
 from the evidence that defendant did shoot and kill B., and if you 
 believe that at the time he so shot B., that B. had made, or was in 
 the act of making, an attack upon the person of defendant, of such a 
 character as to put defendant in danger of death or bodily injury, 
 or if you believe it reasonably appeared to defendant that B. was 
 about to, or had made an attack upon him, the defendant, of such a 
 character as caused it reasonably to appear to defendant, viewed from 
 his stamlpoint, that he was in danger of death or serious bodily injury, 
 and that, to protect himself from such actual danger, defendant shot 
 and killed B., you will find defendant not guilty. '"' 
 
 (b) Although the jury may believe from the evidence, beyond a 
 reasonable doubt, that the defendant, G. W., shot and killed M., if 
 they believe from the evidence that, when he did so, he had reason- 
 able grounds to believe, and did believe, that deceased, or othei's in 
 his party acting in concert with him, was then about to inflict upon 
 
 44— Stnte v. Appleton, 70 Kan. 217, 4G— Ham v. State, — Tex. Cr. 
 
 78 Pac. 445. App. — , 98 S. W. 875. 
 
 45— State v. Dotson, 26 Mont. 305, 
 67 Pac. 938 (940).
 
 §3110.] CRIMINAI^— HOMICIDE— SELF-DEFENSE. 1987 
 
 defendant, C. W., S. W., E. C, or any of them, death or great bodily 
 harm, or it reasonably appeared to him that such was the case, and 
 it further reasonably appeared to him that the only reasonably safe 
 means of protecting himself, or them, against such danger, real or 
 apparent, was to shoot the said M., or others in his part}' acting in 
 concert with him, and the shooting and killing of the foimer was 
 done under these circumstances, the same was excusable on the ground 
 of apparent necessity in the defense of himself or associates named, 
 and the jury should acquit the defendant.*^ 
 
 (c) A person need not be in actual imminent peril of his life, 
 or of great bodily harm, before he may slay his assailant; it is suffi- 
 cient if, in good faith, he has a reasonable belief, from the facts as 
 they appear to him at the time, that he is in such imminent peril.** 
 
 (d) If the jury believe, from the evidence, that the defendant 
 was assaulted by the deceased in such a way as to induce in the 
 defendant a reasonable and well-grounded belief that he was actually 
 in danger of losing his life or of suffering great bodily harm, then 
 he was justified in defending himself, whether the danger was real 
 or only apparent. Actual or positive danger is not indispensable to 
 justify self-defense. The law considers that men, when threatened 
 with danger, are obliged to judge from appearances and determine 
 therefrom as to the actual state of things sun-ounding them; and, in 
 such cases, if persons act from honest convictions, induced bj^ reason- 
 able evidence, they will not be held responsible, criminally, for a 
 mis'take as to the extent of the actual danger.*^ 
 
 § 3110. Danger Need Not Be Real — May Act upon Appearances, 
 (a) The court further instructs the jury that a person need not be in 
 actual imminent peril of his life or of great bodily harm before he 
 may slay his assailant ; it is sufficient if, in good faith, he has a 
 reasonable belief from the facts as they appeared at the time that 
 he is in such imminent peril. The rule of law on the subject of self- 
 defense is this : where a man in the lawful pursuit of his business 
 is attacked, and when, from the nature of the attack, there is reason- 
 able ground to believe that there is a design to take his life or to do 
 him great bodily harm, and the party attacked does so believe, then 
 the killing of the assailant under such circumstances will be excus- 
 able or justifiable homicide, although it should aften\-ards appear that 
 no injuiy was intended and no real danger existed.^'' 
 
 (b) The court instructs j'ou that the defendant was justified in 
 acting upon the circumstances as they appeared to him at the time. 
 And in determining whether or not the defendant took the life of 
 deceased under circumstances to render the act justifiable, as herein- 
 before explained, you will determine whether or not the circumstances 
 
 47— Watkins v. Commonwealth, 29 Bode v. State, 6 Tex. App. 424; Ken- 
 
 Ky. 1273, 97 S. W. 740. nedy v. Com., 14 Bush. (Ky.) 340; 
 
 4S— Murray v. Com.. 79 Pa. St. West v. State, 59 Ind. 113. 
 
 311; Roach v. People. 71 111. 25. 50— Carle v. People, 200 111. 494,66 
 
 49— Parker v. State, 55 Miss. 414; N. E. 32, 93 Am. St. 208.
 
 1988 FORMS OF INSTRUCTIONS. [§ 3110. 
 
 as they appeared to him were such as to lead a reasonable man to 
 believe that there was a design to kill him or to do immediate bodily 
 harm, coupled with immediate danger of such design being accom- 
 plished.^^ 
 
 (c) If the defendant shot under a bona fide belief that his life 
 was in danger, and had had, under all the circumstances, reasonable 
 cause to believe he was in imminent danger at the moment the shot 
 was fired, it would be immaterial whether there was such actual dan- 
 ger or not.^- 
 
 (d) The defendant was entitled to act upon appearances, and if 
 the language and conduct of the deceased was such as to induce 
 in the mind of a reasonable man, under all the circumstances then 
 existing, and viewed from the standpoint of the defendant a fear 
 that death or gi'eat bodily harm was about to be inflicted by deceased 
 upon the defendant, it does not matter if such danger was real or only 
 apparent; and if defendant acted in self-defense from real and honest 
 convictions as to the character of the danger, induced by the exist- 
 ence of reasonable circumstances, he should be acquitted, even though 
 he was mistaken as to the extent of the danger.^^ 
 
 (e) It is not necessary to the right of self-defense that the danger 
 should in fact exist. It may be only apparent, and not real. If it 
 reasonably appears from the circumstances of the case that the danger 
 existed, the person threatened with such apparent danger has the 
 same, right to defend against it, and to the same extent, that he 
 would have were the danger real. And, in determining whether there 
 was reason to believe that danger did exist, the apijearances must be 
 
 51 — State v. Appleton, 70 Kan. 217, conclusion that if he was, or rea- 
 
 78 Pac. 445; State v. Foster, 66 S. C. sonably appeared to be, presently 
 
 469, 45 S. E. 2. in danger of life or grievous bodily 
 
 52 — Kennedy v. State, 140 Ala. 1, harm, and believed he was in such 
 
 37 So. 90 (91). danger, he had the right to shoot, 
 
 "The above charge requested by whether he was the aggressor or 
 defendant is not abstract. There not. The charge does not deal with 
 was evidence tending to show that the subject of aggression, nor pur- 
 defendant was in imminent peril, to port to state the law in that con- 
 all appearances, and that he be- nection. It deals only with the 
 lieved he was about to be shot by character of danger as being real, 
 y. when he shot Y. The charge Is or apparent only, which is one of 
 a correct statement of the law — the three elements of self-defense 
 that it is immaterial in such case in ordinary cases, the other two 
 whether the apparent danger was being freedom from fault and in- 
 in fact real danger. It deals only ability to retreat, and one of the 
 with this question. It does not af- two in this case, as the defendant 
 firm that on the facts postulated, was within the curtilage of his 
 viz., the apparent danger, and de- castle, and hence under no duty to 
 fendant's belief in its reality, the retreat. It has no bearing upon the 
 defendant had a right to shoot, nor inquiry of the aggression vol non, 
 that he should be acquitted. It and we cannot believe it would have 
 does not profess to deal with the misled the jury to a, nroteriTiission 
 other condition to defendant's right of that innuiry. The court erred in 
 to kill, namely, his freedom from refusing it." 
 
 fault in bringing on the difRcultv; R,'? — People v. Thompson, 145 Cal. 
 
 nor, in our opinion, has it any 717, 79 Pac. 435 (436). 
 tendency to mislead the jury to the
 
 § 3111.] CRIMINAL— HOMICIDE— SELF-DEFENSE. 1989 
 
 viewed from the standpoint of the j^erson who acted upon them, and 
 from no other standpoint.^* 
 
 (f) In order to justify the defendant in taking the life of W. L., 
 it is not neeessaiy for the jury to find 'that said W. L. did have a 
 pistol in his pocket at the time of said killing, or that the defendant 
 was then and there in actual danger of losing his life or of receiving 
 serious l)odily injury at the hands of said L. ; but it is sufficient in law 
 to justify the defendant in taking the life of the said L. if, from 
 the words and acts of the said L. at the time, the defendant had 
 reasonable grounds to believe, and in good faith did believe, that the 
 said L, was then and there about to make an unlawful, deadly assault 
 upon him, the said defendant ; and in determining how this may be 
 you must view the facts and circumstances of this case as they then 
 reasonably appeared to the defendant.^^ 
 
 (g) The law does not require that a party must establish as a 
 fact that the danger he apprehended was actual, and in fact existed; 
 but, if the accused had reasonable grounds to apprehend a design 
 that his life was in danger, or that there was reasonable ground to 
 apprehend that great personal injury was to be done him, then he 
 had a right to act upon such apprehension, though it may turn out 
 that he was not in actual danger of life or great personal injuiy.^^ 
 
 (h) In order to justify self-defense, it is not indispensable that 
 there should exist actual and positive danger. A party who is as- 
 saulted in such a way as to infuse in him a well-grounded and reason- 
 able belief that he is in danger of suffering great bodily harm will be 
 justified in defending himself, although the danger be not real, but 
 only apparent. In other words, he is justified in acting upon the 
 facts as they appear to him at that time, and is not to be judged by 
 the facts as they actually are.^'' 
 
 § 3111. Defendant May Safely Act on Appearances, Even Where 
 They Turn Out to be False, (a) The court further instructs the 
 jury that when a person has reasonable grounds to appi'ehend that 
 some one is about to do him great bodily harm, and there are reason- 
 able grounds for believing the danger imminent that such design 
 will be accomplished, he may safely act upon appearances, and kill 
 the assailant if that be necessary to avoid the apiDrehended danger, 
 and the killing will be justifiable, although it may afterwards turn 
 out that the appearances were false, and that there was in fact no 
 design to do him serious injui-y nor danger that it would be done.^^ 
 
 (b) The court instructs the juiy that if you find from the evidence 
 that at the time the defendant first fired the shot that killed the 
 deceased that it appeared to him acting as a reasonable person, with- 
 
 54— Swanner v. State, — Tex. Cr. 57— Argabright v. State, 62 Neh 
 
 App. — 58 S. W. 72 (74). 402. 87 N. W. 146 (147). 
 
 55— Williams v. U. S., 4 Ind. Ter. 58— State v. McCarver, 194 Mo. 
 
 269. 69 S. W. 871. 717, 92 S. W. 684. 
 
 56_Frank v. State, 94 Wis. 211, 
 68 N. W. 657 (659).
 
 1990 FORMS OF INSTRUCTIONS. [§ 3112 
 
 out fault or carelessness on his part, that the dang-er at that time was 
 so urgent and pressing that it was necessary to kill the deceased to 
 save his own life or prevent his receiving great bodily injury, and 
 that he acted in good faith, then you must acquit the defendant, 
 though the jury may believe that it was not necessary for the de- 
 fendant to have fired the shot.^^ 
 
 (c) The court instructs the jury, that the law is: If a person is 
 assaulted in such a way as to induce in him a reasonable belief that 
 he is in actual danger of losing his life, or of suffering great bodily 
 harm, he will be justified in defending himself, although the danger 
 be not real, but only apparent. Such a person will not be held 
 responsible, criminally, if he acts in self-defense, from real and honest 
 convictions as to the character of the danger, induced by reasonable 
 evidence, although he may be mistaken as to the extent of the actual 
 danger.®" 
 
 (d) It is enough that there be an apparent danger — such an ap- 
 pearance as would induce a reasonable person in defendant 's position 
 to believe that he was in immediate danger of great bodily injury. 
 Upon such appearances a party may act with safety. Nor will he be 
 held accountable though it should afterwards appear that the indi- 
 cations were wholly fallacious, and that he was in no actual peril. 
 The rule in such cases is this: What would a reasonable person — a 
 person of ordinary caution, judgment and observation — in the posi- 
 tion of the defendant, seeing what he saw, and knowing what he 
 knew, suppose from this situation and these surroundings'? If such 
 reasonable person, so placed, would have been justified in believing 
 himself in imminent danger, then the defendant would be justified in 
 believing himself in such peril, and in acting upon such appearance.*^! 
 
 § 3112. Self -Defense — Danger Must Seem Actual, Present and 
 Urgent, (a) The taking of human life is a matter of such serious 
 import that it cannot be justified by only slight danger. The danger 
 which will justify the killing of a human being must be actual, 
 present and urgent to the apprehension of the defendant. Anything 
 less than this will not suffice to justify one human being in taking 
 the life of another.®- 
 
 (b) The danger apprehended must be urgent and pressing, or ap- 
 parently so, at the time of the killing. ^^^ 
 
 59_Velvin v. State, 77 Ark. 97, 63— Williams v. State, 120 Ga. 870, 
 
 90 S. W. 851. 48 S. E. 368 (369). 
 
 60 — Steinmeyer v. People, 95 111. The court said: "The doctrine of 
 
 383; Roach v. People, 77 111. 25; reasonable fear as a defense does 
 
 State v. Fraunburg, 40 la. 555; State not apply to any case of homicide 
 
 V. Bohan, 19 Kan. 28; Crews v. Peo- where the dahjErer apprehended is 
 
 pie, 120 111. 317. not urgrent and pressing, or appar- 
 
 ei—^Carleton v. State, 43 Neb. 373, ently so, at the time of the killing'," 
 
 61 N. W. 699 (710); State v. Bural- citing- Jackson v. State, 91 Ga. 271, 
 
 li 27 Nev. 41, 71 Pac. 532 (535). 18 S. E. 298, 44 Am. St. 22. 
 
 '62— Ryan v. State, 115 Wis. 488, 
 92 N. W. 271 (276).
 
 §3113.] CRIMINAL— HOMICIDE— SELF-DEFENSE. 1991 
 
 (e) The court further tells you that it must appear to the defend- 
 ant, without fault or carelessness on his part, that the danger was 
 not only impending, but so pressing and urgent as to render the 
 killing necessary to save his own life, or to prevent his receiving great 
 bodily harm, and that the defendant really acted under 'this influence, 
 and not in a spirit of revenge.®* 
 
 § 3113. Apprehension of Danger — Person Must Act Upon Honest 
 Belief, (a) A bare fear or a mere apprehension of a shooting to 
 prevent which a killing was done will not justify. The circumstances 
 must be such as to excite the reasonable fears in a rational mind, and 
 the person shooting must act under the influence of such fears, and 
 not in a spirit of revenge. Not only must the shooting be in defense, 
 but it must be absolutely necessary to prevent the attack and injury 
 on the person shooting, or the person shooting must really and hon- 
 estly believe at the time, and in good faith act upon such belief, and 
 not in a spirit of revenge.®^ 
 
 (b) No man can take another man's life, and justify it before a 
 jury on the ground of self-defense, unless he is prepai-ed to show that 
 there was a necessity to take that man's life; and, in order to show 
 that, it must appear that the danger to his own life or of receiving 
 great bodily harm from the hands of the deceased was then and there 
 hanging over him and about to fall upon him, and that he could not 
 prevent it except by slaying his adversary. 
 
 (e) In ordinary cases of one person killing another in self-defense, 
 it must appear that the danger was so urgent and pressing that, in 
 order to save his own life or to prevent his receiving great bodily 
 harm, the killing of the other person was necessary.®*' 
 
 (d) The court instmcts the jury that by the language, 'Mawful 
 defense of the person" is meant what we sometimes term "self- 
 defense." The right of self-defense is founded upon the natural 
 right of a man to protect himself against the unlawful assault upon 
 him by another. This defense having been made in this case, the jury 
 should weigh each fact and circumstance that is offered as justifiable 
 grounds in connection with all the other testimony in the case. Mere 
 apprehension that a pei'son designs to kill another or to commit some 
 great bodily harm upon him is not sufficient to justify such other 
 in first making an attack and committing the act complained of in 
 the indictment herein; and to perform such act, when the excuse 
 therefor is mere apprehension, would not be sufficient to justify the 
 act as one having been committed in the lawful defense of the per- 
 son. In a case where a person attacks another, or attempts to execute 
 a design upon the life of such other, and is in an apparent situation 
 to do so, thereby creating a reasonable belief that such design is 
 about to be accomplished, then the person so threatened may resist 
 
 64— Lee v. State, 72 Ark. 436, 81 65— Frazier v. State, 112 Ga 868 
 S. W. 385 (386); Henry v. People, 38 S. E. 349. 
 
 198 111. 162 (198), 65 N. E. 120. 66— Williams v. U. S., — Ind. Ter. 
 
 — , 88 S. W. 334 (346).
 
 1992 FORMS OF INSTRUCTIONS. [§ 3113. 
 
 and use all necessary force to prevent the accomplishment of su.'!i 
 design even to the extent of taking life, and it is justifiable. Actuj,! 
 or positive danger is not indispensable to justify self-defense. The 
 law considers that men, when threatened with danger, are obliged to 
 judge from appearances and to determine therefrom the exact state 
 of things surrounding them, and in such case, if a person acts from 
 an honest conviction, induced by reasonable evidence he will not be 
 held criminally liable for a mistake as to the extent of actual danger. 
 If the jury believe from the evidence that at the time the defendant 
 is alleged to have shot the deceased the circumstances surrounding 
 him were such as in sound reason would justify or induce in his mind 
 an honest belief that he was in danger of receiving from the deceased 
 some great bodily harm, and that the defendant in doing what he 
 did, was acting solely from the instincts of self-preservation, then he 
 is not guilty, and you should so find.®" 
 
 (e) If the jury believe from the evidence that at the time of 
 the shooting in question the said 0. M. made an attack upon the 
 defendant with a chair under such circumstances as to create in the 
 mind of a reasonably and ordinarily prudent man a belief that he 
 was in danger of being killed or of receiving great bodily harm 
 immediately, and if the jury further believe from the evidence that 
 the defendant at the time did honestly believe that he was in imminent 
 danger of receiving great bodily harm, and in good faith shot to 
 protect himself therefrom, and if you further believe that the defend- 
 ant, acting in good faith, did not fire any more shots than he had a 
 reasonable right to believe, under the circumstances in which he was 
 placed, was necessary to protect himself or his wife from death or 
 great bodily hann, then you should find the defendant not guilty.^^ 
 
 (f) If the jury find from the evidence that at the time the de- 
 fendant is alleged to have shot said A. B. the circumstances sur- 
 rounding the defendant were such as, in sound reason, would justify 
 or induce in his mind an honest belief that he was in danger of re- 
 ceiving from the said A. B. great bodily harm, and that the defend- 
 ant, in doing what he then did, was acting from the instinct of self- 
 preservation, then he is not guilty, although there may in fact have 
 been no real or actual danger.®^ 
 
 (g) You are instructed that before the defendant can avail him- 
 self of the plea of self-defense and justify himself of the killing 
 charged against him, it must appear from all the evidence that there 
 
 67— Robinson v. Territory, 16 Okla. faith, leading' to a conviction of 
 
 241, 85 Pac. 451 (455, 456). tlie tlireatened dang-er, whicli is ac- 
 
 68 — State v. Bufflngton, 71 Kan. tual and substantial, before a per- 
 
 P04. 81 Pac. 465 (466). son will be excused or justified for 
 
 69_Coil V. State, 62 Neb. 15, 86 a homicide on the ground of s'^i*'- 
 
 N. W. 925 (928). defr^nse," citing Vollmer v. State, 
 
 The court said th^t "the phrase 24 Neb. 838. 40 N. W. 420; Darling v. 
 
 'sound reason' is equivalent to say- Williams, ^5 Ohio St. 59; Johnson v. 
 
 ing that the reasoning powers must State, 79 Miss. 42, 30 So. 39 (40). 
 be exercised honestly and in good
 
 §3114.] CRIMINAI^-HOMICIDE— SELF-DEFENSE. 1993 
 
 was a reasonable ground on the part of the defendant to apprehend 
 a design on the part of the deceased, M. C, or those who defendant 
 claims were with him to do him, the defendant, great personal injury, 
 and that at the time there was imminent danger of such design being 
 accomplished, and that the said defendant then and there honestly 
 believed that he was in imminent danger of then and there receiving 
 from the deceased and those who defendant claims were with said 
 deceased some great personal injury; and that the said deceased, M. 
 C, and those who defendant claims were with him were in a position 
 and had the ability then and there to do the defendant great personal 
 injury, and that the facts and circumstances were at the time sufficient 
 to convince the defendant of an honest belief that he was then in 
 imminent danger of receiving some great personal injury from the 
 deceased, C, or those who defendant claims were with C."'^ 
 
 § 3114. Defendant Need Not Believe Death of Assailant Necessary. 
 The court instructs the jury that the law of self-defense gives the 
 party assailed the right to repel force by force, and he need not be- 
 lieve that his safety requires him to kill his adversaiy, in order to 
 give him the right to make use of force for that purpose. When his 
 life is in danger, or he is in danger of great bodily hann, or when, 
 from the acts of the assailant, he believes and has reasonable ground 
 to believe, that 'he is in danger of losing life or receiving great 
 bodily harm from his adversary, the right to defend himself from 
 such danger or apprehended danger may be exercised by him, and he 
 may use it to any extent which is reasonably necessary. He need not 
 believe that he can only defend himself by taking the life of his 
 assailant. If the death of his assailant results from the reasonable 
 defense of himself, he is excusable whether he intended that conse- 
 quence or not, or whether he believed such result was necessary or 
 not.'^i 
 
 § 3115. Deceased, Acting Together with Other Persons, Assaulting 
 Defendant, (a) If you believe from the evidence that at the time 
 the wound was inflicted from which the deceased subsequently died, 
 the deceased, whether alone or acting together with other persons, as- 
 saiilted the defendant, and that it then and there reasonably appeared 
 to the defendant that he was in imminent danger of being wounded 
 or receiving great personal injury at the hands of the deceased, M. C, 
 and other persons acting in concert with him, and that the defendant 
 fired the fatal shot in the protection of his person, while he was under 
 the impression that he was in imminent danger of being murdered 
 or of receiving some serious personal injury to himself, then if you 
 so believe, you will find the defendant not guilty. ''^- 
 
 70— Territory v. Gonzales, 11 N. M. case of Territory v. Baker 1 Ohio 
 301. 68 Pac. 925 (930). St. 66." 
 
 "This instruction is very full and 71 — Lyons v. People, 137 111. 602 
 presents the law substantially (620), 27 N. E. 677. 
 within the doctrine laid down in the 72 — Territory v. Gonzales, 11 N 
 
 M. 301, 68 Pac. 925 (931).
 
 1994 FORMS OF INSTRUCTIONS. [§ 3116. 
 
 (b) If you believe from the evidence that at the time of the 
 stabbing of the deceased the defendant had good cause to believe and 
 did believe, under all the facts and circumstances in evidence, that 
 deceased, alone or along with others, was about to kill defendant, 
 or do him great bodily harm, and that defendant had good cause to 
 believe and did believe that it was necessary to stab the deceased 
 in order to prevenit such apprehended danger, then the jury should 
 acquit the defendant on the ground of self-defense.'^^ 
 
 § 3116. Deceased Assaulting Defendant with Deadly Weapon, (a) 
 The court instructs the juiy that if they believe from the evidence that 
 M. assaulted the defendant with a deadly weapon, to-wit, a stick, 
 the defendant had the right, under the law of the land, to repel sueh 
 an assault by the use of a deadly weapon; and if, in repelling such 
 assault, the defendant wounded the deceased by cutting him with a 
 knife, from which deceased died, then such killing was justifiable, and 
 the jury should find the defendant not guilty. 
 
 (b) The court instructs the jury that they are not called upon to 
 deteiTnine in this case which of the parties was the aggressor in the 
 fight between J. L. and the defendant. But the jury is to determine 
 whether or not at the time the defendant cut M. the said M. was in 
 the act of committing an assault upon the defendant with a 
 deadly weapon; and if the jury believe that, at the time B. cut 
 deceased, the deceased was in the act of so assaulting the defendant, 
 then such cutting was justifiable, and the jury should find the de- 
 fendant not guilty, or, if the jury entertain a reasonable doubt as 
 to whether the cutting was justifiable or not, they should resolve 
 such doubt in favor of the defendant, and acquit him. 
 
 (c) The court instructs the jury that if they believe from the 
 evidence that L. began the assault upon the defendant with his fist, 
 and if they further believe from the evidence that L. was thus assault- 
 ing defendant, M. began beating defendant with a deadly weapon, 
 then defendant had a right to defend himself against such attacks, 
 even to the point of taking the life of either or both of the said M. 
 or L., if actually or apparently necessary to save his own life or 
 limb; and, if the jury entertain a reasonable doubt as to this, they 
 should resolve sueh doubt in favor of the defendant, and acquit him. 
 
 (d) Even though the jury should believe from the evidence be- 
 yond a reasonable doubt that the defendant was the aggressor in the 
 difficulty between himself and L., and even though the jury should 
 further believe from the evidence beyond a reasonable doubt that 
 M. began beating the defendant with a deadly weapon to prevent 
 the defendant from committing a felony upon L., still the said M. 
 had no right to continue beating defendant after said defendant had 
 ceased sueh attack upon said L. ; and, if the jury believe from the 
 
 73— State v. Price, 186 Mo. 140, 8? the case of State v. Adler, 146 Mo 
 S. W. 920 (921). 19. 47 S. W. 794, and the criticism 
 
 "This Instruction is in line with of it without merit."
 
 § 3117.] CRIMINAI^-HOMICIDE— SELF-DEFENSE. 1995 
 
 evidence that M. did so continue to beat the defendant with a deadly 
 weapon, then the defendant had a light to defend himself against such 
 continued attack, even to the point of taking the life of said M., if 
 actually or apparently necessaiy to save himself from great bodily 
 harm, or, if the juiy are in doubt as to this, they should acquit.'^* 
 
 § 3117. Deceased Attempting or Purporting to Draw Weapon, (a) 
 If you believe from the evidence that the defendant did not start or 
 provoke the quaiTel with the deceased, but that the deceased began 
 quarreling with the defendant without just cause; that deceased cursed 
 defendant, applying to him a foul epithet, and threatened to kill 
 defendant; that the deceased had a revolver in his pocket; that he 
 arose from his seat and put his right hand to his right pants pocket 
 in a threatening manner, and attempted to draw his pistol for the 
 purpose of shooting defendant — then and in that case the defendant 
 had a lawful right to defend himself, even to the extent of taking the 
 life of the deceased.'^ 
 
 (b) The court instructs the jury that if they believe from the evi- 
 dence that F. and M. Avere enemies, and that when they met at the 
 time of the homicide, M., in a loud and angi-y tone of voice called the 
 defendant a "damned liar," or a "God damned liar," and immedi- 
 ately threw his hand behind him in a threatening and menacing man- 
 ner, as though he intended to draw a pistol, and that his acts and con- 
 duct were such as to engender in the mind of F., and did engender in 
 the mind of F., a reasonable belief that he (M.) was armed with a 
 pistol, and was attempting to draw it to shoot F., when F. was making 
 no assault on him, and that F. shot him under such circumstances, 
 then F. is justifiable, even if you should believe M. was unarmed at the 
 time.'® 
 
 § 3118. Apparent Danger — Deceased Shooting First. If you be- 
 
 74— Boykin v. State, 86 Miss. 481, v. State, 64 Miss. 428, 1 So. 354, and 
 
 38 So. 725. other cases, this was a right which 
 
 The trial court modified the first the law guaranteed him, and the 
 
 instruction by adding after the modifying, restrictive clauses in- 
 
 word "stick" the following: "And serted by the court, by injecting 
 
 not in necessary self-defense." other propositions into them, might 
 
 The trial court modified the sec- and probably did serve to confuse 
 
 end instruction by adding after the and mislead the minds of the jury, 
 
 word "weapon" the words "and not and to deprive the defendant of a 
 
 in his necessary self-defense." clean, clear-cut enunciation of the 
 
 The trial court modified the third law as applicable to his theory of 
 
 instruction by adding after the self-defense. As this case might be 
 
 word "weapon" the following: "At reversed, we will only add this ob- 
 
 a time when defendant was not servation to ithis branch of it: That, 
 
 cutting Jackson with his knife." where the prosecution desires a 
 
 The supreme court said: modification of the principles of 
 
 "We deem the modifications made law as set forth in defendant's in- 
 
 by the court of instructions Nos. 1, structions. the better practice is for 
 
 3. 19 and 20 for appellant erroneous, it to ask the court for separate in- 
 
 We think the charsres as framed s+ructions. INTask v. State. 36 Miss, 
 
 and asked by appellant's counsel 77: Arr-hf>r v. Sinclair. 49 Miss. 343." 
 
 correctlv announced the principles 75— Williams v. V. S., 4 Ind. Ter. 
 
 of l^w as apnlied to the compotcnt. 269. 69 S. W. 871. 
 
 pertinent evidence, and his theory 76— Fore v. State, 75 Miss. 727, 23 
 
 of the case; and, as held in Lamar So. 710 (711).
 
 1996 FORMS OF INSTRUCTIONS. [§ 3119. 
 
 lieve from the evidence that the deceased shot at the defendant 
 first with a pistol; and if you further believe from the evidence that 
 this caused the defendant to have a reasonable expectation or fear 
 of death or serious bodily injury, and that, acting under such reason- 
 able expectation or fear, the defendant shot the deceased, then I 
 charge you, that the defendant had the right to continue to shoot 
 him, viewed from his standpoint, at the time, that danger existed to 
 his life or to his person; that is, that there was danger of either 
 losing his life or to his person — that is, that there was danger 
 of either losing his life or suffering serious bodily injury — at the hands 
 of the deceased. It was not necessai-y that danger did in fact exist 
 to the life or person of defendant, provided you believe from all the 
 evidence that it reasonably appeared to defendant, viewed fi'om his 
 standpoint, at the time, that such danger existed to his life or person, 
 if you find the above facts are true, then you will find the defendant 
 not guilty, on 'the ground of self-defense.'^'^ 
 
 § 3119. Must Employ All Reasonable Means to Avert the Necessity 
 of Killing, (a) As a matter of law, no one has a right to kill an- 
 other, even in self-defense, unless such killing is apparently necessary 
 for such defense. Before a person can justify taking the life of a 
 human being on the ground of self-defense, he must, when attacked, 
 employ all reasonable means within his power, consistent with his 
 safety, to avoid the danger and avert the necessity for the killing. '^^ 
 
 (b) The law enjoins upon a defendant who pleads self-defense to 
 show that he had no other jDrobable means of avoiding the danger to 
 
 77_Wallace v. State, — Tex. Cr. 30 So. 73 (74), the court held it prop- 
 
 App. — , 97 S. W. 471. er to instruct the jury that for the 
 
 "The objection is to that portion defendant "to be in position to in- 
 of the charge which reads: 'If you volte the doctrine of self-defense, 
 find the above facts are true.' The the defendant mu.st have been with^ 
 insistence is that, to entitle the de- out fault in bringing- on the fatal 
 fendant to a verdict of not guilty encounter. McLeroy v. State, 120 
 upon the ground of self-defense, it Ala. 274, 25 So. 247. Besides being 
 was not necessary that the jury himself free from fault, as above 
 should find the facts enumerated in stated, the defendant to be entitled 
 said charge to be true. We do not to acquittal on the ground of self- 
 believe that said charge, when con- defense, must have found a neces- 
 sidered in connection with the en- sity, real or apparent, for firing the 
 tire charge of the court, injured or fatal shot, as a means of averting 
 was calculated to injure the riThts grievous bodily harm to himself; 
 of appellaat. On the other hand, and also he must have retreated, if 
 the court lells the jury that if they by retreat he could have avoided 
 believe that defendant thought his killing the deceased without mate- 
 life was in danger, or his person in rially increasing his own danger, 
 danger of serious bodily injury, Evans v. State, 120 Ala. 268, 25 So. 
 and he acted under such appear- 175; Henson v. State, 120 Ala. 316, 
 ances, then they should find him 25 So. 23; Teague v. State, 120 Ala. 
 not guilty, regardless of whether 309, 25 So. 209; Hendricks v. State, 
 he was injured or not. The court 122 Ala. 42, 26 So. 242; Naugher v. 
 prope'-ly gave a charge of reason- FtPte, 105 Ala. 29, 17 So. 24; Howard 
 able doubt to the jury on all phases v. State, HO Ala. 92. 20 So. 365." 
 of the rase." 78— Smith v. Territory, 11 Okla. 
 
 In Harkness v. State, 129 Ala. 71. 669, 69 Pac. 805 (808).
 
 § 3120.] CRIMINAL— HOMICIDE— SELF-DEFENSE. 1997 
 
 himself, of losing bis own life, or of sustaining serious bodily bann 
 than to act as he did in this instance. Because the defendant who in- 
 vokes that plea must not only have believed that his life was in dan- 
 ger, or that he was in danger of sustaining some serious bodily harm, 
 but the facts and circumstances under which he formed that belief, 
 or under which he came to that conclusion, must have been such as to 
 cause you to believe that a man of ordinai-y firmness and courage, 
 situated as he was at that time, would be justified in so believing.'^^ 
 
 (c) You are insti-ucted that, in order to justify the defendant 
 taking the life of deceased in self-defense, he must have employed 
 all the means in his power consistent with his safety to have averted 
 his danger and avoided the necessity of the killing; and if you find 
 that he could, by retreating, have averted the danger and avoided 
 the necessity of the killing, it was his duty to do so.^" 
 
 (d) The taking of human life is a matter of such deep significance 
 that it cannot be justified by some slight appearance of danger, and, 
 if the defendant was in fault in creating the situation of danger, his 
 right of self-defense does not arise until he shall have done all that 
 reasonably could be done by him to avoid the necessity of killing his 
 assailant in oi'der to protect himself.**^ 
 
 § 3120. Resistance Must Be in Proportion to the Danger Which Is 
 Apprehended — Honestly Believed He Was in Danger of Life or Great 
 Bodily Harm — Reasonable Doubt, (a) Now, gentlemen of the jury, 
 it is for you to say whether this respondent was assaulted in the man- 
 ner claimed. The law gives to eveiy person the right to protect him- 
 
 79— State v. Hutto, 66 S. C. 449, 45 taken to the last sentence on the 
 
 S. E. 13 (14); State v. Fontenot, 50 ground that F. was not bound to 
 
 La. Ann. 537, 23 So. 634 (635), 69 retreat at all, nor to endeavor to 
 
 Am. St. 455. escape, but was excusable in doing 
 
 80— Bishop V. State, 73 Ark. 568, as he did. This court has, perhaps, 
 
 84 S. W. 707. g-one as far as any court in excus- 
 
 The court said that the rule that ing a person from fleeing from his 
 
 defendant when attacked "need not assailant. Bird v. State, 77 Wis. 
 
 retreat, but may. stand his ground, 281-283, 45 N. W. 1126; Perkins v. 
 
 and if need be, kill his adversary. State, 78 Wis. 555-557, 47 N. W. 827. 
 
 and the reasons given therefor are The difficulty with the contention 
 
 limited to cases where a murderous of counsel on this point is that it 
 
 assault is made by deceased upon has no application to the evidence 
 
 the defendant, and where the de- in the case. P. had no weapon, 
 
 fendant is free from fault in bring- There is no evidence that he en- 
 
 ing on the difficulty and does not tered the house with any intent to 
 
 apply in cases where the defendant injure F. or any one; nor that he 
 
 was the aggressor or provoked the knew F. was in the house when he 
 
 difficulty, nor in cases where the entered. The moment he entered, 
 
 assault was the result of a sudden F. was in the act of raising his 
 
 quarrel in the heat of passion. Car- gun toward him, and cocking it. 
 
 penter v. State, 62 Ark. 309, 36 S. W. He at once disclaimed all intent to 
 
 906; McPherson v. State, 29 Ark, injure, but F. did not desist. There- 
 
 225; Palmore v. State, 29 Ark. 248; by F. became the assailant, and 
 
 Fitzpatrick v. State, 37 Ark. 238; what P. said and did was in self- 
 
 Dolan V. State, 40 Ark. 454; Duncan defense. A similar contention was 
 
 v. State. 49 Ark. 543, 6 S. W. 164." expressly overruled in Clifford v. 
 
 81— Frank v. State, 94 Wis. 211, State. 58 Wis. 491, 17 N. W. 304. See 
 
 68 N. "W. 6.57 (659). also Housk v. State, 43 Neb. 163, 61 
 
 The court said: "Exception is N. W. 573."
 
 1998 FORMS OP INSTRUCTIONS. [§ 3121. 
 
 self from unlawful assault. Where an assault is made, ihe right to 
 resist exists; but the resistance must be in proportion to the danger 
 which is apprehended, it is not every assault that would justify a 
 person in using a deadly weapon. If, however, the person assailed 
 honestly believes his life in danger or that he may suffer serious 
 bodily harm, he has the right to resist, even to taking the life of his 
 assailant. The person assailed is to be judged by the circumstances 
 and conditions as they honestly appeared to him at the time. The 
 defense of self-defense necessarily assumes an assault. There can 
 be no self-defense by a i>erson until he is assaulted by another. It is 
 for you to say, from all the evidence in this cause, whether the re- 
 spondent honestly believed he was in danger of losing his life, or in 
 danger of great bodily harm, and that it was necessary for him to 
 fire this fatal shot in order to save himself from such apparent and 
 threatened danger. Although you may not be satisfied that the re- 
 spondent in committing the act, acted in self-defense, still, if the testi- 
 mony in this case creates in your mind a reasonable doubt as to 
 whether or not the act was done in self-defense, the respondent is 
 entitled to the benefit of the doubt, and it will be your duty to acquit 
 him.^^ 
 
 (b) A party in the exercise of self-defense cannot use more force 
 than appears to be necessary for his own protection, and if he ex- 
 ceeds the force apparently ne sary to his own defense or safety he 
 is guilty of either murder or manslaughter, as defined by these in- 
 structions, if the homicide results from his acts.^^ 
 
 § 3121. No More Force to Be Used Than the Circumstances Rea- 
 sonably Indicate to be Necossary. (a) Eveiy person is permitted by 
 law to defend himself against cny unlawful attack reasonably threat- 
 ening injury to his person, and is justified in using all the necessary 
 and reasonable force to defend himself, but no more than the circum- 
 stances reasonably indicate to be necessaiy.*" 
 
 (b) If you find from the evidence in this ease that P. killed the 
 deceased in self-defense, honestly believing his own life to be in 
 jeopardy, or that he was in imminent danger of receiving serious bod- 
 ily injury at the hands of the deceased, and 'that he used no more 
 force than was necessary to protect himself, then it would be 
 justifiable homicide; and under such circumstances, of course, the 
 defendant would not be guilty.^^ 
 
 (e) If the jury believe, from the evidence, that the defendant 
 procured the stick with which the blow in question was struck, only 
 for the purpose of self-defense, and did not intend to use it for any 
 
 82 — "This was a correct Ktatement the law. People v. Piper, 112 Mich, 
 
 of the law." People v. Hull, 86 644, 71 N. W. 174 (175). Compare 
 
 Mich. 449, 49 N. W. 288 (291). Housh v. State, 43 Neb. 163, 61 N. 
 
 83— Williams v. U. S., 4 Ind. Ter. W. 571 (572); State v. Harper, 143 
 
 269, 69 S. W. 871. Mo. 514, 51 S. W. 89 (91), as to the 
 
 84 — Swanner v. State, — Tex. Cr. propriety of using- the word neces- 
 
 App. — , 58 S. W. 72 (74). sary without qualification. Also 
 
 85— This is a correct statement of Rrandon v. State, 75 Miss. 904, 23 
 
 So. 517.
 
 § 3122.] CRIMINAI^HOMICIDE— SELF-DEFENSE. 1999 
 
 other purpose, and that the deceased was armed with a deadly 
 weapon, and was turning to attack the defendant, and that the defen- 
 dant was aware of these facts and knew or had good ground to believe 
 and did believe when he struck, etc., that that was the only mode 
 by which he could avoid great bodily harm to himself, and that he 
 used no more force than was reasonably necessary for his own 
 defense, then his act was not unlawful, and the jui-y should find the 
 defendant not guilty.**^ 
 
 § 3122. Judging Defendant from His Standpoint, (a) You are 
 ms'trueted that, in judging the defendant, it must be from his stand- 
 point, and as it reasonably appeared to him, judged by all the facts 
 and circumstances in evidence, and it would make no difference if the 
 danger was real or only ajDparent, if danger reasonably appeared to 
 defendant; and, if assaulted, the defendant would not be bound 
 to retreat to avoid shooting said J., and he would have the right to act 
 no long as the danger was apparent to him.*' 
 
 (b) In detei-mining whether the circumstances existed that would 
 justify the defendant in inflicting the wound upon M. C. which sub- 
 sequently resulted in his death, you are instinicted that you must 
 determine that fact from the condition and circumstances that sur- 
 rounded the defendant at the time and place of the atfray, as they 
 reasonably appeared to him at the time ; that is by jDlacing yourself in 
 your own minds, as far as may be possible from the evidence, under 
 the same circumstances in which the defendant Avas placed at the time 
 
 86 — Marts v. State, 26 Ohio St. 162. other way at common law. There 
 
 87 — Cooper v. State, — Tex. Cr. the man in the right was bound to 
 
 App. — , 89 S. W. 1068. retreat to the wall. That is not 
 
 "This charge in regard to self-de- so with us. The man whose rights 
 
 fense is criticised because it con- are attacked can stand his ground, 
 
 fines the jury to the consideration has the legal right to do so; and 
 
 of an actual assault and one of real the attacking party, or the one in 
 
 danger, instead of a threatened as- the wrong, must do the retreating, 
 
 sault and apparent danger. Upon if any is required. Ours is the cor- 
 
 another trial, the court should bear rect rule; the English is the incor- 
 
 this in mind, and charge the jury rect rule, when applied to our 
 
 in accordance with the testimony laws." 
 
 relied upon to prove that theory of In State v. McCarver, 194 Mo. 717, 
 
 the case. Suffice it to say that a 92 S. W. 684, the court instructed 
 
 party who has the right of self-de- the jury that in passing upon the 
 
 fense from the standpoint of ap- question whether the defendant had 
 
 parent danger, or any other danger reasonable grounds for believing 
 
 that threatens his life or serious that there was imminent danger 
 
 bodily injury to his person, is not that the deceased was about to kill 
 
 bound to retreat, and he can stand him or do him some great bodily 
 
 his ground, even though an assaulf harm, the jury should determine 
 
 has not been made upon him. the question from the standpoint of 
 
 Under our law, if anybody is re- the defendant at the time he acted, 
 
 quired to retreat, it is not the man and under his surroundings at that 
 
 acting in self-defense. It is the particular instant of time, and the 
 
 attacking party, it is the man jury must also, in passing upon 
 
 bringing on the difficulty that is that question, take into conslder- 
 
 responsible. As between the at- ation the threats, if any, made by 
 
 tacking party and the attacked, it the deceased against the defend- 
 
 is the duty of the party attacking ant. 
 to desist and retreat. It was the
 
 2000 FORMS OF INSTRUCTIONS. [§ 3122 
 
 of the shooting, taking into consideration as far as the evidence may 
 enable you to do so, the temperament of the defendant and his moral 
 and physical courage, or the lack thereof.^^ 
 
 (c) The accused could not make his judgment of the necessity of 
 slaying the deceased in order to defend himself a justification of his 
 act. Whether the necessity for taking life existed must be deter- 
 mined from the situation of the accused at the time, and it is the pro- 
 vince and duty of the jury to determine that question. ^^ 
 
 (d) As to the imminency of the danger which threatened the 
 prisoner, and the necessity of the killing in the first instance, the 
 prisoner, C, was the judge; but he acted at his peril, as the jury 
 must pass upon his action in the premises, viewing said action from 
 the prisoner's standpoint at the time of the killing; and if the jury 
 believe from all the facts and circumstances in the eaise that the 
 prisoner, C, had reasonable grounds to believe, and did believe, the 
 danger imminent, and that the killing was necessary to preserve his 
 own life or to protect him from great bodily harm, he was excusable 
 for using a deadly weapon in his defense ; otherwise he was no't.^° 
 
 (e) If you believe that the said A. B., by his acts and conduct, or 
 by his words coupled with his acts, reasonably induced defendant 
 that he intended and was about to attack defendant with a deadly 
 weapon, or did any act which reasonably indicated to defendant that 
 he, said A. B., intended and was about to attack defendant with a 
 deadly weapon, which would probably cause the death or serious 
 bodily injury of defendant ; and if the acts of said A.B., or his words 
 coupled with his acts, if any, reasonably created in the mind of de- 
 fendant at the time, viewed from the defendant's standpoint, a rea- 
 sonable expectation or fear of death or some serious bodily injury; 
 and you further believe that defendant, then and there moved and 
 actuated by such reasonable expectation or fear of death or serious 
 bodily injury, if any, shot the said A.B., — then, under such circum- 
 stances, it would be in his lawful self-defense, and if you so believe 
 you will acquit defendant."^ 
 
 88 — Territory v. Gonzales, 11 New to be that, if the danger is immi- 
 
 Mex. 301, 68 Pac. 925 (931). neiit and pressing, defendant had 
 
 89 — Brown v. State, 62 N. J. L. the right of self-defense from such 
 
 666, 42 Atl. 811 (823). danger; but if it is a future con- 
 
 90^ — State v. Cottrill, 52 W. Va. templated danger and contingency, 
 
 363, 43 S. E. 244 (245). a remote possibility or probability. 
 
 The same instruction was ap- defendant has no right, under 
 
 proved in State v. Clark, 51 W. Va. such circumstances, to shoot in 
 
 457, 41 S. E. 204 (209). his supposed self-defense. Ac- 
 
 91 — Ditmer v. State, 45 Tex. Cr. cording to appellant's evidence, the 
 
 App. 103, 74 S. W. 34 (35). injured party said to defendant, 
 
 "The charge of the court in ques- 'You G — d d d son of a b , 
 
 tion is not restrictive, as in the I'll kill you,' and immediately start- 
 cases of Lynch v. State, 24 Tex. ed to the house, about 60 feet 
 App. 350 (364), 6 S. "W. 190, 5 Am. away, to get a gun, and defend- 
 St. 888; Bush v. State, 40 Tex. Cr. ant then shot the injured party. 
 App. 540, 51 S. W. 238. And see Now, it will be seen that the 
 Harrington v. State, 2 Tex. Ct. above quoted charge tells the jury 
 Pep. 809, 63 S. W. 562. Under these that, if defendant believed at the 
 authorities we understand the law time he shot the injured party he
 
 § 3123.] CRIMINALr—HOMICIDE— SELF-DEFENSE. 2001 
 
 (f) That, in deciding upon tlie guilt or innocence of defeindant 
 H., they should determine what an ordinaiy and reasonable man 
 might have fairly inferred from all the facts and circumstances by 
 which the evidence shows that the defendant Avas at the time sur- 
 rounded (and, in so doing must not try him in the light of subse- 
 quent developments, nor must they require of him the same cool 
 judgement that the jury can now bring to bear upon the occurrence. 
 The jury must put themselves, as far as possible, in the defendant 
 H.'s place, and then judge whether the danger was apparent, or 
 should have been considered apparent by a man of ordinary caution 
 and prudence in like condition). The danger to life, or great bodily 
 harm, need not have been real, present, or urgent at the very moment 
 of the killing, but only apparently so. The question is, was the danger 
 apparently so imminent and present at the time of the killing that a 
 reasonable man and prudent man, situated as H. was, would believe 
 it was necessary to kill in order to avoid loss of life, or to prevent 
 great bodily harm ; and if, from all the evidence in the ease, the jury 
 have a reasonable doubt w-hether such w-as the case when the de- 
 fendant H. killed the deceased, then they must find the defendant not 
 guilty.92 
 
 § 3123. Possession hy Deceased of a Deadly Weapon— Presumption. 
 
 (a) If the deceased was armed at the time he was killed, and that 
 he made an attack upon defendant with a weapon, and if the weapon 
 used or attempted to be used by deceased in making said attack, if 
 any, and the manner of its use or attempted use were such as were 
 reasonably calculated to produce death or serious bodily injuiy, then 
 and in that event the law presumes it was the intention of the de- 
 ceased to kill defendant or inflict serious bodily injury upon him.^^ 
 
 (b) If the jury find and believe from the evidence that, at the 
 time defendant fired the shot, that the prosecuting witness, S. H., was 
 making a violent attack upon him under circumstances which reason- 
 ably indicated her intention to murder him or inflict serious bodily 
 injury upon him, and the weapon used by her, and the manner of its 
 use, w^ere such as was reasonably calculated to produce either of those 
 results, then the law would presume that the said S. H. intended to 
 kill him or inflict serious bodily injury upon him; and in such ease, 
 if defendant so acted, he would be justifiable.^* 
 
 was in danger of losing his life or State, — Tex. Cr. App. — , 59 S. "W. 
 
 of serious bodily injury at the 263 (264). 
 
 hands of the injured party, to ac- 94— Hall v. State. 43 Tex. Cr. 
 
 quit defendant, unless you further App. 479, 66 S. W. 783 (784), citing 
 
 believe from the evidence that de- Kendall v. State, 8 Tex. App. 5G9; 
 
 fendant provoked the difficulty. Jones v. State, 17 Tex. App. 6:2; 
 
 This charge certainly is as liberal Cochran v. State, 28 Tex. App. 422, 
 
 as the facts of the case author- 13 S. W. 651, 8 Am. Cr. Rep. 496. 
 ize." The court said: "This charge 
 
 92 — Hood V. State, — Miss. — , should have been given. Article 
 
 27 So. 643 (644), €76, Pen. Code, provides: 'When 
 
 93 — Teel v. State, — Tex. Cr. the homicide takes place to pre- 
 
 App. — , 73 S. W. 11 (12); Curtis v. vent murder, maiming, disfiguring 
 
 126
 
 2002 
 
 FORMS OF INSTRUCTIONS. 
 
 [§ 3124. 
 
 § 3124. Self -Defense — Blow Need Not Actually Have Been Struck 
 — Attack with Knife, (a) The court further instructs you that a 
 man need not wait until the blow is actually struck before he has a 
 right to act upon appearances and defend himself. It is enough if he 
 honestly believes, and has reason to believe, from the attitude, conduct 
 and manner of the deceased, that he was in danger of his life, or of 
 great bodily harm.^^ 
 
 (b) If J. W. first attacked defendant with an open knife as if to 
 cut defendant, and if thereupon defendant cut said W. he would be 
 guilty of no offense.^^ 
 
 § 3125. Killing in Revenge After Repelling Assault. The juiy are 
 instructed that while a person has the right, when assaulted by an- 
 other in siich a manner as to excite in him a reasonable belief that 
 he is in danger of losing his life or receiving great bodily injury, to 
 resist the attack by using such force as is apparently necessary to de- 
 fend himself, yet if, after he has secured himself from danger, he 
 takes the life of his assailant in a spirit of revenge, or for some un- 
 lawful purpose, he cannot claim exemption from punishment on the 
 ground of self-defense.^'' 
 
 § 3126. Defendant Provoking Affray, (a) Therefore, gentlemen, 
 as a summing up of this topic of self-defense, I charge you that if you 
 find beyond a reasonable doubt that J. prepared for, or provoked, the 
 affray, he cannot successfully set up the plea of self-defense.^* 
 
 (b) The law of self-defense is emphatically the law of necessity, 
 
 or castration, if the weapons or 
 means used by the party attempt- 
 ing' or committing such murder, 
 maim, disfiguring or castration, 
 are such as would have been cal- 
 culated to produce that result, it 
 is to be presumed the person using 
 them designed to inflict the injury.' 
 It will be seen from this article 
 that when the homicide is com- 
 mitted to prevent murder, and the 
 w^eapon or means used by the ag- 
 gressor was calculated to effect 
 that purpose, the Code makes it an 
 absolute presumption of law that 
 his design was to inflict the injury 
 indicated. This legal presumption 
 is imperative with the jury as woU 
 as with the court, and, when ap- 
 plicable, must be given in charge 
 to the jury." 
 
 95 — State v. Stockhammer, 34 
 Wash. 262, 75 Pac. 810 (811). 
 
 96 — Approved as supplemented 
 with other instructions in Moody 
 V. State, — Tex. Cr. App. — , 59 
 S. W. 894. 
 
 97— Carleton v. State, 43 Neb. 
 373, 61 N. W. 699 (710). 
 
 98 — State v. Jones, — N. J. L. — , 
 60 Atl. 396 (398). 
 
 "It is contended that by this 
 
 instruction the jury were told, in 
 effect, that jf they should conclude 
 from the evidence that the defend- 
 ant had prepared for the affray, 
 but had subsequently abandoned 
 his intention, and was in nowise 
 responsible for D.*s attack upon 
 him, they must nevertheless find 
 that he was not justified in pro- 
 tecting himself. It may be that, 
 standing alone, the instruction is 
 susceptible to this criticism; but 
 when the portion of the charge 
 from which it is taken is exam- 
 ined, this criticism falls. The in- 
 struction was rested upon a sup- 
 posed finding by the jury 'that 
 after the quarrel which had taken 
 place between J. and D. in the 
 morning' (it appeared in the case 
 that there had been a quarrel be- 
 tween these two some hours before 
 the homicide) 'each armed himself, 
 one with the scissors blade and the 
 other with a razor, and, after they 
 got in the cell, hot words led to a 
 mutual fight — a fight for which 
 both were ready, and into which 
 both entered.' On such a finding 
 of fact the legal rule charged by 
 the court was entirely accurate,"
 
 § 3126.] CRIMINAI^-HOMICIDE— SELF-DEFENSE. 2003 
 
 to which a party may have recourse under certain circumstances to 
 prevent any reasonably apprehended great personal injury which he 
 may have reasonable ground to believe is about to fall upon him. If 
 you believe that the defendant had reasonable cause to apprehend 
 a desig-n on the part of F. to commit a felony upon defendant, or to 
 do him some great personal injury, and that there was a reasonable 
 cause to apprehend immediate danger of such design being carried out, 
 and he struck F. as charged to prevent the accomplishment of such 
 apprehended design, you should acquit him on the ground of self- 
 defense. It is not necessary to this defense that the danger should 
 have been real or actual, or that the danger should have been im- 
 pending and immediately about to fall. If you believe that the 
 defendant, at the time he struck F., had reasonable cause and did be- 
 lieve these facts, and he struck said F. under such circumstances, as 
 he believed, to prevent such expected hami, then you should acquit 
 him; but befoi-e you can acquit him on the ground of self-defense you 
 ought to believe that defendant's cause of apprehension was reason- 
 able. You are to determine whether the facts constituting such 
 reasonable cause have been established before you by evidence, and, 
 if such facts have not been established, you cannot acquit the de- 
 fendant on the ground of self-defense, even though you may believe 
 defendant really thought his cause of apprehension reasonable. Words 
 and epi.thets, however vile or grievous, will not justify an assault ; 
 and if you believe from the evidence that the defendant sought or 
 brought on a difficulty with F., or voluntarily entered into a difticulty 
 with said F., v\-ith the intent to kill him or do him some great bodily 
 harm, then he could not excuse himself on the plea of self-defense.^^ 
 
 (c) You are instructed that no man by his own lawless act can 
 create a necessitj" for acting in self-defense, and thereupon assault and 
 injure or kill the person with whom he seeks the difficulty, and then 
 inteipose as a defense the plea of self-defense. The plea of necessity 
 is a shield only for those who are without fault in occasioning it and 
 acting under it.^°° ' 
 
 (d) You are instructed if you believe from the evidence in this 
 case beyond a reasonable doubt that the defendant, on the evening of 
 the killing, went to where the deceased was at work in his pea patch, 
 and without provocation at the time on the part of the deceased with a 
 shotgun in a violent and threatening manner, such as would put a rea- 
 sonable man in the situation of the deceased in fear of losing his life 
 or of receiving great bodily injury, and that the deceased was aroused 
 to such sense of fear by said assault, then the deceased had a right 
 
 99— State v. Tooker, 188 Mo. 438, a long- line of subsequent cases. 
 
 87 S. W. 487 (490). This instruction fully and fairly 
 
 The court said in comment that covers the law of self-defense as 
 
 "this instruction, substantially applicable to the facts developed 
 
 covering' the same subject, was ap- at the trial of this cause." 
 
 proved in State v. Shoultz, 25 Mo. 100 — Robinson v. Territory, 16 
 
 128, and is cited with approval in Okla. 241, 85 Pac. 451 (455).
 
 2004 FORMS OF INSTRUCTIONS. [§ 3127. 
 
 to seek assistance of weapons with which to defend himself, and the 
 fact that he called to some one to bring him a gun, or attempted to 
 run to his house for the purpose of procuring a gun with which to 
 shoot the defendant, would not justify the defendant in taking the 
 life of the deceased, unless the defendant had abandoned in good faith 
 the difficulty, and had done all within his power, and consistent with 
 his safety, acting as a reasonable person, to avert danger to himself 
 and avoid the necessity of killing the deceased.^ 
 
 (e) The court further instructs the jury that the law of self-de- 
 fense does not mean or imply the i-ight of attack, nor will it permit of 
 acts done in retaliation or for revenge. And in this case, if you be- 
 lieve from the evidence that the defendant sought out or brought on 
 the difficulty at the time the fatal shot was fired, and for the purpose 
 of wreaking vengeance upon the deceased, J., on account of the acts 
 of the deceased in reference to the sale of a farm in controversy and 
 to deliver the possession thereto, and that at the time the defendant 
 shot the deceased there was no reasonable apprehension or immediate 
 and pending injury to the defendant, and that the defendant shot 
 the deceased from a spirit of retaliation or revenge, and for the 
 purpose of punishing the deceased for past injuries, then you are 
 charged that the defendant cannot avail himself of the law of self- 
 defense, and that the shooting and killing of the deceased affords no 
 justification or excuse.^ 
 
 (f ) If you find from the evidence in this case that the defendant 
 was the aggressor in the j^ersonal difficulty that resulted in the death 
 of the deceased, and that the killing was unlawful, and not justifiable 
 or excusable homicide, nor murder in any degree, then self-defense 
 could not avail, and the defendant would be guilty of manslaughter.^ 
 
 (g) The court instructs the juiy that a party charged with an 
 unlawful or deadly assault upon another, cannot avail himself of 
 the claim of necessary self-defense if the necessity for such defense 
 was brought on by his own deliberate, wrongful act.* 
 
 (h) If the defendant provoked, or brought on the difficulty, or en- 
 tered willingly into the fight with deceased, then he cannot set up 
 self-defense in this case.'^ 
 
 § 3127. Commencing the Difliculty — Several Persons on Each Side. 
 But if the juiy believe from the evidence, beyond a reasonable doubt, 
 that the defendant, G. W., C. W., S. W., or E. C. or any of them, 
 when they met M. and his party, commenced the difficulty with them 
 by first shooting at them, or any of them, or making the first demon- 
 
 1 — Velim v. State, 77 Ark. 97, 90 this charge, particularly as a 
 
 S. W. 851. charge of who is considered an ag- 
 
 2— State V. Dotson, 26 Mont. 305, gressor had been given by tha 
 
 67 Pac. 938 (940). court. Bassett v. State, 44 Fla. 12, 
 
 3— Marlow v. State, 49 Fla. 7, 38 33 So. 262. The verdict is fully sus- 
 
 So. 653. tained by the evidence." 
 
 "It was not necessary as con- 4 — Adams v. People, 47 111. 376. 
 
 tended, that the intention of the 5 — Boulden v. State, 102 Ala. 78, 
 
 aggressor should be referred to in 15 So. 341 (344).
 
 § 3128.] CRIMINAL— HOMICIDE— SELF-DEFENSE. 2005 
 
 stration to shoot at any of them, or that defendants, C. W., S. W., and 
 E. C. met the parties named, and both parties were armed and deter- 
 mined on a conflict, and did engage in such eonfiict by mutual consent, 
 then in either event the defendant, G. W., cannot rely on the right of 
 self-defense, or that he acted in defense of his associates named. « 
 
 § 3128. Defendant Seeking Interview with Deceased with Malice 
 and Hatred in His Heart and Inducing Deceased to Assault Him. 
 If you find from the evidence in this ease, beyond a reasonable doubt, 
 that the defendant. A., with malice and hatred in his heart towards 
 B., sought an interview with B., and accused him of writing the dam- 
 aging article about A., and used offensive and opprobrious language 
 toward B., or did any act or thing for the purpose and with intent" 
 of provoking a difficulty with B., so as to induce B. to assault him, 
 with the premeditated design that, if the said B. did assault him, 
 to shoot and kill the said B., then A. cannot avail himself of the 
 plea of self-defense, and you will find him guilty as charged.^ 
 
 § 3129. Defendant Seeking the Meeting to Provoke Difficulty- 
 Circumstances Must Be Such as to Render Killing Unavoidable, (a) 
 I further instruct you, in relation to the law of self-defense, that 
 one cannot claim its benefits after he has intentionally put himself 
 where he knows or believes he will have to invoke its aid. Circum- 
 stances justifj-ing assault, in the law of self-defense, must be such 
 as to render it unavoidable. If you believe from the evidence, and be- 
 yond a reasonable doubt, that the defendant could have avoided any 
 conflict between himself and X. without increasing the danger to him- 
 self, it was his duty to avoid such conflict and so render a resort to 
 the law of self-defense unneeessaiy.^ 
 
 (b) If you believe that defendant committed the assault as a 
 
 6— Watkins v. Commonwealth, 29 In the case at bar, however, though 
 
 Ky. L. 1273, 97 S. W. 740. it is conceded that the defendant 
 
 7— Marlow v. State, 49 Fla. 7, 38 had a right to enter the hotel, yet 
 
 So. 653. in passing- out of it he purposely 
 
 "This charge is not amenable to turned aside to assault X. No ap- 
 
 the criticism that it invades the parent necessity existed for the 
 
 province of the jury by stating course which he adopted, and he 
 
 what constitutes the bringing on could evidently have avoided any 
 
 of the difficulty. Taken in connec- eonfiict without increasing the dan- 
 
 tion with other charges given, it is ger to himself. If the defendant, 
 
 not reversible error. Bassett v. after precipitating the attack, with- 
 
 State, 44 Fla. 12, 33 So. 262." drew from the conflict, thereby 
 
 8— State V. McCann, 43 Ore. 155, 72 evincing a determination to avoid 
 
 Pac. 137 (139). further difficulty, the testimony 
 
 The court said: "It is possible fails to disclose such fact, and it 
 that under some circumstances the was unnecessary to instruct the 
 charge might be subject to objec- jury upon a theory that had no 
 tion, for in a free country it is not facts to support it. * * * The in- 
 expected that one person shall flee struction, in our opinion, correctly 
 from another, and it may be that states the law applicable to the 
 the demands of business might re- facts involved, and no error was 
 quire one intentionally to go where committed in giving it. State v. 
 he knows or has reason to believe Morey, 25 Ore. 241, 35 Pac. 655, 36 
 he may be in imminent danger, and Pac. 573; State v. Smith, 43 Ore. 
 possibly compelled to resort to 109, 71 Pac. 973; State v. Hawkinsj 
 force as a matter of self-defense. IS Ore. 476, 23 Pac. 475."
 
 2006 FORMS OF INSTRUCTIONS. [§3130. 
 
 n eans of defense, believing at the time he did so, if he did so, that 
 he was in danger of losing his life oi' of serious bodily injury at the 
 hands of said A. B., then you will acquit defendant, unless you further 
 believe from the evidence beyond a reasonable doubt that defendant 
 sought the meeting with said A. B. for the i^urpose of provoking a 
 difficulty with said A. B., with intent to take the life of said A. B., 
 or to do him such serious bodily injury as might probably end in the 
 death of A. B. ; and if you so believe from the evidence beyond a 
 reasonable doubt, then you are instructed that, if defendant sought 
 such meeting for the said purpose and with such intent, defendant 
 would not be permitted to justify on the gi'ound of self-defense, even 
 though he should thereafter have been compelled to act in his own 
 self-defense; but if he had no such purpose and intention in seek- 
 ing to meet the said A. B., then his right of self-defense would not 
 be forfeited, and he could stand his ground and defend himself by the 
 use of such means of defense as the facts and circumstances indicated 
 to be necessary to protect himself from danger or what reasonably 
 appeared to him at the time to be danger.^ 
 
 (c) The law says that, if you invoke the plea of self-defense, you 
 must show that you were without fault in bringing about the neces- 
 sity for the killing.^" 
 
 (d) If A. B. said to defendant's hired man that defendant was 
 indebted to him^ or that he would not sell to defendant, on credit, until 
 such debt was paid, it was projoer and lawful for the defendant, when 
 inf onned of such claims, to go to A. B. 's shop, for the purpose of 
 learning what amount, if any, was owing by him to A.B., or to pay 
 it; and, if defendant went to A. B. 's shop for such purpose or pur- 
 poses, and not to provoke a difficulty or quarrel with A. B., he was in 
 the proper exercise of his lawful rig'hts. But if you find from the 
 evidence that the defendant went to A. B. 's shop with a view to pro- 
 voke or bring on a difficulty with A. B., he was not acting lawfully in 
 doing so, and, in that case, he cannot avail himself of the plea of self- 
 defense in killing A. B., if he killed him in the difficulty so sought by 
 defendant, though such killing may have been necessary to preserve 
 the defendant's life, or his person, from an imminent and enormous 
 injury; but he would be guilty of murder or manslaughter as you 
 find the facts to be, under the rules given you elsewhere in these 
 instructions.^'^ 
 
 § 3130. Defendant Attacking Brother of Deceased, You are in- 
 structed that, if you find and believe from the evidence beyond a 
 reasonable doubt that defendant provoked and made an unlawful as- 
 sault upon S. G., the brother of deceased, with a knife, the deceased 
 had the right to go to his brother's assistance to protect his brother 
 
 9— Ditmer v. State, 45 Tex. Cr. 11— State v. Murdy, 81 la. 603, 47 
 App. 103, 74 S. W. 34 (35). N. W. 867 (871). 
 
 10 — State V. Hutto, 66 S. C. 449, 45 "This instruction expressed the 
 S. E. 13 (14). Ifiw as announced in State v. 
 
 Neeley, 29 Iowa 115."
 
 §3131.] CRIMINAL— HOMICIDE— SELF-DEFENSE. 2007 
 
 from death or serious bodily injury at the hands of defendant, if he 
 believed his brother was in such danger; and if you find that he 
 did so go to the assistance of his brother, and while attempting to 
 protect him from the assault (if any) of the defendant, the defendant 
 stabbed and killed deceased, — the killing would not be justifiable or in 
 self-defense, notwithstanding the fact that it may have been necessary 
 for the defendant to kill deceased in order to save his own life; and 
 the homicide would be murder in the first degree, murder in the second 
 degree, or manslaughter, as the jury may find and detennine from all 
 the facts and circumstances of the case, bearing in mind the instruc- 
 tions herein given you fully explaining the necessary elements to con- 
 stitute the different degrees of homicide. The offense, if any, under 
 such circumstances and conditions, would be the same in law as it 
 would have been had the defendant killed S. G., instead of R. G.^^ 
 
 §3131. Self-Defense— Defendant if at Fault Cannot Plead, (a) 
 If the jury believe from the evidence that the defendant provoked the 
 difficulty or began the quarrel with the purpose of taking advantage 
 of W., and of taking his life, or of doing him some gi"eat bodily harm, 
 then there is no self-defense in the case, however imminent the 
 peril of defendant may have become in consequence of an attack made 
 upon him by W. ; and if, in such circumstances, the juiy believe that 
 the defendant struck and killed W., then the defendant is guilty of 
 murder in the first degree, and the jury should so find.^^ 
 
 (b) The court charges the jury that to make the plea of self- 
 defense available, the defendant must be without fault. If he was 
 himself the aggressor, he cannot invoke the doctrine of self-defense, 
 even if the deceased struck him, and whether the necessity to take the 
 life of the deceased was real or only apparent, if brought about by de- 
 sign, contrivance or fault of the defendant, he cannot be excused on 
 the plea of self-defense.^* 
 
 i § 3132. Plea of Self-Defense Barred by Defendant's Agreeing to 
 Fight, (a) If you believe from the evidence, beyond a reasonable 
 doubt, that defendant and H. met together and quaiTeled, bandying 
 opprobrious or insulting words, and fought willingly or by mutual 
 consent, it is immaterial which of them commenced the quarrel; and 
 
 12 — Thornton v. State, — Tex. Or. homicide should be assessed 
 
 App. — , 65 S. W. 1105 (1107). against him if he had killed S. G." 
 
 The court said: "We think the 13— State v. Smith, 164 Mo. 567, 65 
 
 charg-e is correct. Clearly, the law S. W. 270. 
 
 is, if appellant provoked a dif- The plea of self-defense is also 
 ficulty with S. G., and made an un- unavailing: to the helper of the 
 lawful assault upon him with a transgressor. See Sherrill v. State, 
 knife, deceased would have the 138 Ala. 3, 35 So. 129, and the in- 
 right to interfere in the necessary structions in the case, 
 and proper defense of his brother 14 — Rag-sdale v. State, 134 Ala. 24, 
 against the unlawful assault of ap- 32 Sn. 674 (675): Whitney v. State, 
 pellant. And if appellant, while en- 154 Ind. 573. 57 N. E. 398 (400); 
 gaged in said unlawful assault, Stevens v. State, 133 Ala. 28, 32 So. 
 killed deceased, he certainly would 270 (271). 
 be guilty of whatever degree of
 
 2008 FORMS OF INSTRUCTIONS. [§ 3133. 
 
 the defendant cannot, under this state of facts, if you believe such 
 beyond a reasonable doubt, set up the plea of self-defense.^^ 
 
 (b) If the defendant provoked or brought on the difficulty, or en- 
 tered willingly into the fight with deceased, then he cannot set up self- 
 defense in this case.^^ 
 
 (e) If you believe from the evidence that the defendant willingly 
 and voluntarily and without provocation on the part of the deceased 
 entered into the difficulty at a time when he was not endangered 
 by any acts of the deceased, he is cut off from the law of self-defense ; 
 for it is the law, where parties voluntarily enter into a mutual combat, 
 in which one of the parties is slain, such slaying is murder.^^ 
 
 § 3133. Aggressor Cannot Plead Self -Defense, (a) To make the 
 plea of self-defense available, the defendant must be without fault. 
 If he was himself the aggressor, he cannot invoke the doctrine of self- 
 defense, even if the deceased was approaching him in a hostile man- 
 ner; and whether the necessity to take the life of the deceased was 
 real or only apparent, if brought about by the design, contrivance or 
 fault of the defendant, he cannot be excused on the plea of self-de- 
 fense.^* 
 
 (b) The court charges the jury that if they believe beyond a 
 reasonable doubt, from the evidence, that the defendant R., and the 
 deceased H. had had some trouble a few days before the homicide, and 
 that when he R., on the day of the homicide came to where the de- 
 ceased H. was standing at the ''new home base" he stepped up in 
 front of the deceased, and in an angry manner said to him "You 
 said you wanted to see me," and the jury should further find, 
 from the evidence beyond a reasonable doubt that the deceased left 
 the i3lace and went to the pitcher's stand, some GO or 65 feet away, 
 and the defendant followed the deceased to that place, and they 
 there became involved in a difficulty, and the defendant killed de- 
 ceased, then he cannot set up self-defense in this case.^^ 
 
 (e) A necessity brought about by parties who act under its com- 
 pulsion cannot be relied upon to justify their conduct. The aggres- 
 sors in a personal difficulty, and not reasonably free from fault can- 
 not acquit themselves of liability for its consequences on the ground 
 of self-defense, unless, after having begun the difficulty, they in 
 good faith decline the combat, and their adversary had become 
 the aggressor.^" 
 
 15— Johnson v. State, 136 Ala. 76, IS— Jarvis v. State. 138 Ala. 17, 34 
 
 34 So. 209. So. 1025 (1030), 
 
 "This charg-e given at the request 19— Rag-sdale v. State, 134 Ala. 24, 
 
 of the solicitor asserted a correct 32 So. 674 (575). 
 
 proposition of law, and was prop- 20— Mercer v. State, 41 Fla. 279, 
 
 erly given. Howell v. State. 79 Ala. 26 So. 317 (318). 
 
 283." "Counsel for the accused admit 
 
 16_jarvis v. State, 138 Ala. 17, that the statement of the charge 
 
 34 So. 1025 (1030). contains a correct abstract proposi- 
 
 17_Winiams v. State, 4 Ind. Ter. tion of law. Lovett v. State, 30 
 
 269, 69 S. W. 871. I'la. 142, 11 So. 550."
 
 § 3133.] CRIMINAI^-HOMICIDE— SELF-DEFENSE. 2009 
 
 (d) The law of self-defense does not imply the right to retaliate 
 upon another for real or supposed injuries, nor for revenge, and I 
 therefore charge you that if you find from the evidence that the 
 accused at the bar sought, brought on or voluntarily entered into a 
 difficulty with the deceased for the purpose of wreaking vengeance 
 upon him for some supposed or real injury, then the accused cannot 
 avail himself of the law of self-defense. I further instruct you that 
 in case you find that the defendant sought, brought on or voluntarily 
 entered into a difficulty with the deceased, it does not matter, in 
 the application of the law of self-defense, how gi-eat the danger or 
 imminent the peril which confronted him at the time he shot the 
 deceased.-^ 
 
 (e) The jury are further instructed that, if they believe from the 
 evidence beyond a reasonable doubt that the defendant, W. H., 
 brought on the difficulty between the deceased, C. J., and him- 
 self at the time of the killing, and that the defendant was the first 
 assailant, he cannot avail himself of the right of self-defense in 
 order to shield himself from the consequences of the killing of C. J., 
 if such is the proof, however imminent the danger in which he may 
 have found himself in the progress of the affray which he so brought 
 on himself, unless you further believe that the defendant in good 
 faith endeavored to decline any further struggle before the mortal 
 shot was fired.^2 
 
 (f) If you believe from the evidence that the accused provoked 
 the difficulty, and slew the deceased, he would not be entitled to use 
 the plea of self-defense to obtain an acquittal; but as to whether he 
 did provoke the difficulty or not the juiy must deteiTaine from the 
 evidence.-^ 
 
 (g) If the jury believe from the evidence, beyond a reasonable 
 doubt, that, shortly before the difficulty, S. hired a gun, loaded it, 
 and went about town making threats against the life of J., and that 
 he went to where J. was standing, called him aside, and provoked 
 the difficulty, by cursing J., and by attempting to draw his gun on 
 J., and that such conduct on the part of S. compelled J. to draw his 
 pistol, and shoot, to protect his life or person from great bodily harm 
 at the hands of S., and thereupon S. shot and killed J., then S. is 
 guilty as charged, if the jury further believe the shooting on the part 
 of S. was done with a deliberate design to eifect the death. 
 
 (h) If the juiy believe from the evidence that the defendant hired 
 the gun, and bought the cartridges, intending to seek and find de- 
 ceased, and provoke a difficulty with him, and in said difficulty to use 
 said gun to slay and overcome him, and that, pursuant to such in- 
 tent, did seek and find him, and did by word or act provoke a 
 
 21— State V. Guidor, 113 La. 727, v. People, 97 III. 270, 37 Am Rep 
 
 37 So. 622. 109. 
 
 22— Henry v. People, 198 HI. 162 23— State v. Owen, 50 La. An. 1181 
 
 (195), 65 N. E. 120. following Gainey 24 So. 187 (189).
 
 2010 FORMS OF INSTRUCTIONS. [§ 3134. 
 
 difficulty with deceased, in which difficulty he (defendant) did kill 
 deceased, then he is guilty as charged, though deceased fired the 
 first shot, and the jury should so find him.-'* 
 
 (i) The law of self-defense does not imply the right to attack. 
 If you believe from the evidence that the defendant armed himself 
 with a deadly weapon, and sought the deceased with the formed 
 felonious intent of killing deceased, or sought or brought on or volun- 
 tarily entered into a difficulty with deceased with the felonious inten- 
 tion to kill deceased, then the defendant cannot invoke the law of self- 
 defense, no matter how imminent the peril in which he found him- 
 self.25 
 
 (j) The court instimcts the jui-y that a person charged with the 
 murder of another cannot avail himself of the claim of necessary self- 
 defense, if the necessity for such defense was brought on by his 
 own deliberate wrongful act.-® 
 
 (k) Unless you should further believe from the evidence, beyond 
 a reasonable doubt, that the defendant sought and brought on the 
 difficulty with the deceased in which the shooting occurred in the use 
 or the threatened use of a deadly we^apon, or that the defendant 
 and the deceased mutually and willingly entered into a combat with 
 each other with deadly weapons, in either of which later state of case, 
 the defendant cannot be excused on the grounds of self-defense, unless 
 you believe from the evidence that he in good faith abandoned the 
 difficulty or mutual combat before he shot D.-^ 
 
 § 3134. When Aggressor, Abandoning Conflict, May Avail of Plea 
 of Self-Defense. (a) On the other hand if you believe from the evi- 
 dence that the defendant commenced the affray by assaulting K., or 
 by so menacing him as to induce in K, a reasonable belief that he 
 
 24 — Smith v. State, 75 Miss. 542, ant cannot avail himself of neces- 
 
 23 So. 260 (262). sary self-defense, if the necessity 
 
 25— State v. Hicks, 178 Mo. 433, of that defense was brought on by 
 
 77 S. W. 539 (540). the deliberate and lawless act of 
 
 "The first instruction above quot- the defendant, or his bantering 
 ed is challenged upon the ground Bostic to a fight for the purpose 
 that it does not go far enough, in of taking his life, or committing a 
 that it does not tell the jury that, bodily harm upon him in which he 
 if defendant entered into the dif- killed Bostic by the use of a deadly 
 ficulty without the intent to kill the weapon.' Horr & T. Cas., p. 208; 
 deceased, then he would only be Stewart v. State, 1 Ohio St. 66. Of 
 guilty of manslaughter in the course the instructions of the court 
 fourth degree. We are unable to must be interpreted in the light or 
 agree to this contention, and are the evidence in the case showing 
 clearly of opinion that, under the the circums'tances under which the 
 facts disclosed by the record, the killing was done, and this para- 
 instruction is a correct presenta- graph of the court's instructions 
 tion of the law of the case. was a proper instruction in the 
 
 26 — Territory v. Gonzales, 11 N. event of the jury believing the tes- 
 
 M. 301, 68 Pac. 925 (930). timony for the prosecution and dis- 
 
 "This instruction is in almost the believing the testimony given in be- 
 
 identical language used by the half of the defense." 
 
 court and approved in the case of 27— Hellard v. Commonwealth, 26 
 
 Adams v. People, 47 111. 376. The Ky. L. 38, 80 S. W. 482 (483), citing 
 
 language used bv the court in that Logsdon v. Commonwealth, 19 Ky. 
 
 case was as follows: 'The defend- L. 413, 40 S. W. 775.
 
 §3135.] CRIMINAL— HOMICIDE— SELF-DEFENSE. 2011 
 
 was in immediate danger of physical violence at the hands of the de- 
 fendant, then the defendant is not entitled to a verdict of acquittal 
 upon the ground that he killed K. in self-defense, unless the defendant, 
 really and in good faith endeavored to decline any further strug- 
 gle, and in some way by words or conduct notified K. thei-eof, and 
 thereafter acted only upon a well grounded fear in him as a 
 reasonable man, that he was in imminent danger of being killed by, 
 or of receiving gi'eat bodily harm from K. The words used by de- 
 fendant did not constitute an assault nor were they sufficient to excite 
 in K. a reasonable fear that he was about to be assailed by the de- 
 fendant. 
 
 (b) If you find from the evidence that at the time he stabbed K. 
 the defendant did not, as a reasonable man, believe he was in im- 
 minent danger of losing his life, or suffering great bodily injury at 
 the hands of K. then the killing was not done in self-defense, but was 
 either murder or manslaughter, no matter who began the affray, and 
 even though the defendant had really and in good faith endeavored 
 to decline further struggle and had so informed K.-^ 
 
 (c) The jury are instructed, that although you may believe, from 
 the evidence, that the defendant commenced the fight in question, 
 and made the first attack upon the deceased, still, if the jury further 
 believe, from the evidence, that the defendant afterwards, and be- 
 fore the fatal blow was struck, ceased to fight, and in good faith 
 withdrew from the conflict by retreating, or otherwise, then the 
 right of deceased to employ force against the defendant ceased; and 
 if the deceased did not then desist from attempting to use violence 
 towards the defendant, then the defendant's right to defend himself 
 revived ; and if he then found himself in apparent danger of losing his 
 life, or of sustaining great bodily injury at the hands of the de- 
 ceased, he had the same right to defend himself that he would 
 have had if he had not originally commenced the conflict.-^ 
 
 (d) To justify the taking of life, in self-defense, it must appear, 
 from the evidence, that the defendant not only reall}-, and in good 
 faith, endeavored to decline any further struggle, and to escape from 
 his assailant before the fatal blow was given, but it must also ap- 
 pear that the circumstances were such as to excite the fears of a rea- 
 sonable person that the deceased intended to take his life, or to in- 
 flict on him great bodily hann, and that the defendant really acted 
 under the influence of these fears and not in a spirit of revenge. ^° 
 
 § 3135. Aggressor Is Not Necessarily the Person Who Strikes the 
 First Blow or Makes the First Demonstration to Strike — Question of 
 Fact. The question as to who was the aggressor is one of fact, to be 
 determined by the jury from the evidence in the case, .in the same 
 
 28— State v. Tighe, 27 Mont. 327, 30— Parish v. State, 14 Neb. 60, 15 
 
 71 Pac. 3 (8). N. W. 357; State v. Sorenson, 32 
 
 29— Terrell v. Commonwealth, 13 Minn. 118, 19 N. W. 738. 
 Bush. (Ky.) 246.
 
 2012 FORMS OP INSTRUCTIONS. [§ 3136. 
 
 manner as they determine in other eases of fact. An aggressor is not 
 necessarily a person who may strike the first blow in a personal en- 
 counter, or make the first demonstration indicating an intent to strike ; 
 'but if a person, with malice and hatred in his heart towards another, 
 purposely acts towards such other person as to provoke a difficulty, 
 either by acts or words, with the intent to induce such other per- 
 son to strike the first blow or make the demonstration, in order to 
 form a pretext to take his life, then the defendant could not avail 
 himself of the right to self-defense.^^ 
 
 § 3136. State Must Prove Its Contention that Defendant Began 
 the Fight Beyond a Reasonable Doubt. You are further instructed 
 that under the facts and circumstances of this cause the determination 
 of the question as to who provoked the affray and made the first as- 
 sault materially affects the logical conclusions and the responsibility 
 of the defendant, inasmuch as under the law it becomes the duty of 
 the prosecution to prove every material ingredient of this crime be- 
 yond any reasonable doubt, and to the satisfaction of the jury. Be- 
 fore you can be authorized in convicting the defendant you must be 
 satisfied in your own minds beyond all reasonable doubt that the de- 
 fendant jarovoked the fight, — made the first assault on the deceased; 
 therefore if you are in doubt on this point ; that is if your minds are 
 not satisfied whether the defendant provoked the fight and made the 
 first assault, or whether the deceased did so then it becomes your 
 duty under the law, to give the defendant the benefit of the doubt 
 and acquit the defendant.^- 
 
 § 3137. Self -Defense— Not Available to One Who Kills Through 
 Mere Cowardice, (a) The court further instructs the jury that if a 
 person shoots another through mere cowardice, or under circum- 
 stances which are not, in the opinion of the jury, sufficient to induce 
 a reasonable and well-grounded belief of danger to life or of great 
 bodily harm in the mind of an ordinarily courageous person, the law 
 will not justify the shooting on the ground of self-defense.^^ 
 
 31 — Marlow v. State, 49 Fla. 7, 38 is not a practical one, in consider- 
 So. 653. ingr the matter of self-defense. Bas- 
 
 "It is contended that this charge sett v. State, 44 Fla. 12, 33 So. 262; 
 
 is erroneous because it does not Sylvester v. State, 46 Fla. 166, 35 
 
 state that the act done or words So. 142." 
 
 spoken by the defendant should 32 — Territory v. Gonzales, 11 N. 
 
 have been reasonably calculated to M. 301, 68 Pac. 925 (931). 
 
 produce a difliculty with the de- The term satisfied might be ob- 
 
 ceased. The objection is not well jected to in other jurisdictions, 
 
 taken. The charge is that 'if a per- 33 — ^Coil v. State, 62 Neb. 15, 86 
 
 son, with malice and hatred in his N. W. 925 (928). 
 
 heart towards another, purposely The court said: "The instruction 
 acts towards such other person as correctly states the law. 'Coward- 
 to provoke a difficulty, etc,, then ice' is the antonym of 'courage.' 
 the right of self-defense is not The rule is that a defendant is ex- 
 available. Where conduct is in- cusable if he does nothing more 
 tended to provoke and does provoke than a reasonably prudent and 
 a difficulty, the question whether or courageous man would have done 
 not the conduct was I'easonably under like circumstances. State v. 
 calculated to provoke the difficulty Crawford, 66 la. 231, 23 N. W. 684."
 
 § 3138.] CRIMINAI^-HOMICIDE— SELF-DEFENSE. 2013 
 
 (b) If, without excuse or justification in law, or a iDremeditated 
 design to effect the death, defendant should, from excessive fear or 
 cowardice, have taken the life of H. when the circumstances were 
 not such as to justify him in so acting in self-defense, he would be 
 guilty of manslaughter.^* 
 
 (c) The law does not allow any man who interposes a plea of 
 self-defense here to say under what eii'cumstances he will fire his 
 pistol and take human life. He must be without fault in bringing 
 about the difficulty. Then, again, the assault made upon him by the 
 deceased must be of such a character as to lead him honestly to 
 believe that he was in imminent peril of his life or of great bodily 
 harm. He must not only honestly believe this, but you are to deter- 
 mine whether a man of ordinary reason and firmness, situated as the 
 defendant was situated, would have been led to the same conclusion 
 under the same circumstances. If he would have been, then the plea 
 has been made out, and should avail the defendant. If not, then the 
 plea has not been made out.^^ 
 
 § 3138. Self- Defense— Not Available to One Who Kills from Pre- 
 viously Formed Design. A defendant may, as a reasonable man, 
 have believed that he was in danger of losing his life or of incurring 
 great bodily harm, and yet the killing may not, under some cir- 
 cumstances, be justifiable or excusable. One instance is where he has 
 brought about the necessity without being reasonably free from fault. 
 Again, the circumstances of the case may at least make it a question 
 for the jury whether a killing was not in pursuance of a previously 
 formed design to kill, instead of having been the result of a mere 
 purpose of self-defense, although at the time of the altercation the 
 first overt act may have come from the person slain.^^ 
 
 34 — Padgett v. State, 40 Fla. 451, statute does not exclude this prin- 
 
 24 So. 145 (147). ciple of the common law, but rec- 
 
 35 — State v. Petsch, 43 S. C. 132, ognizes it, in limiting- the right to 
 
 20 S. E. 993 (997); State v. Whittle, take life to a lawful defense, and 
 
 59 S. C. 297, 37 S. E. 923 (925). this court has approved the state- 
 
 36 — Kennard v. State, 42 Fla. 581, ment of the principle in the follow- 
 
 28 So. 858. ing formula: That a necessity 
 
 "At common law a man assailed brought about by the party who 
 under certain circumstances could, acts under its compulsion cannot 
 in order to protect himself, take the be relied upon to justify his con- 
 life of his assailant, and excuse duct. The aggressor in a personal 
 himself on the ground of self-de- difficulty — one not reasonably free 
 fense. It was essential, however, from fault — can never be heard to 
 that it be shown that the killing acquit himself of liability for its 
 was necessary to save his life or consequences on the 'ground of 
 protect him from grievous bodily self-defense. Lovett v. State, 30 
 harm, and that he did not wrong- Fla. 142, 11 So. 550, 17 L. R. A. 705. 
 fully bring about the necessity to "The abstract statement of the 
 kill. No man was permitted to law by the court, that a defendant, 
 take life under a pretense of neces- as a reasonable man may believe he 
 sity that he occasioned by his own is in danger of losing his life, or of 
 wrongful act. and this was in har- incurring great bodily harm, and 
 mony with the principle pervading yet under some circumstances the 
 all branches of the law, that no killing will not be justifiable or ex- 
 man should be permitted to take cusable, was correct. If a reason- 
 advantage of his own wrong. Our ably prudent man has reasonable
 
 2014 FORMS OF INSTRUCTIONS. [§ 3139. 
 
 § 3139. Insulting Words by Defendant Would Not Deprive Him of 
 the Right of Self -Defense, (a) The court charges the jury that 
 even though the defendant called J. * ' a son of a bitch, ' ' or used any 
 other insulting words, yet those words would not, nor would any other 
 wiords, amount to such provocation as to deprive defendant of the 
 right of self-defense.^^ 
 
 (b) If you find from the evidence that the defendant invited or 
 provoked an assault to be inade upon himself by G., then the de- 
 fendant's plea of self-defense will be of no avail. No mere words 
 however insulting will justify an assault.^® 
 
 § 3140. Justification — That Defendant and Deceased Were En- 
 gaged in Unlawful Occupation Immaterial. Although you may be- 
 lieve from the evidence that at the time of the killing of L. by the 
 defendant, both the defendant and L. were engaged in the unlaw- 
 ful business of running a gaming house, and that each of them was 
 violating the law by carrying concealed deadly weapons, these un- 
 lawful acts alone would not justify the defendant in taking the life of 
 his partner in crime, since it is as much a violation of the law to kill 
 a bad man as a good man.^'' 
 
 § 3141. Malice in the Slayer Immaterial — When. If you find that 
 the assault by A. B. upon the defendant was fierce, violent and 
 sudden, and was not cau.sed by anything that the defendant had done, 
 and the defendant was justified in repelling it, even to taking the life 
 of A. B., it will be unnecessary to inquire what ill feeling or malice 
 was entertained by the defendant towards A. B. for if a person is 
 assailed in a violent, fierce and sudden manner, so that the only way 
 left is for him to slay his antagonist, then it is wholly immaiterial what 
 ill will or malice he may entertain towards him, if he contributed 
 nothing to the attack, or in any manner caused it, for the malice and 
 ill will, if any existed, are wholly swallowed np in the defense of life 
 and limb.*** 
 
 § 3142. What the Jury May Consider in Determining Whether the 
 Blows or Shots Were Given or Fired in Self-Defense. (a) In consid^ 
 ering whether the killing was justifiable on the ground that the 
 killing was in self-defense, the juiy should consider all the circum- 
 stances attending the killing, the conduct of the parties at the time 
 and immediately prior thereto, and the degree of force used by the 
 prisoner in making what is claimed to be this self-defense, as bear- 
 ground to apprehend danger of los- 1, 17 So. 328 (332); De Arman v. 
 ing his life, or of suffering great State, 71 Ala. 351; Hornsby v. State, 
 bodily harm, yet, if he wrongfully 94 Ala. 55, 10 So. 522, contra, 
 occasions or brings about the ne- 37— Smith v. State, 75 Miss. 542, 
 cessity for his action, he cannot 23 So. 260 (262). 
 
 justify his conduct on the plea of 3S — State v. Jones, 125 Iowa 508, 
 self-defonse. This disposes of the 99 N. W. 179 (181). 
 only objection made to the charge, 39 — Williams v. U. S., 4 Ind. Ter. 
 that it contains an incorrect prop- 269, 69 S. W. 871. 
 osition of law." 40— People v. Macard, 73 Mich. 15, 
 
 Compare Karr v. State, 106 Ala. 40 N. W. 784 (788).
 
 § 3143.] CRIMINAL— HOMICIDE— SELF-DEFENSE. 2015 
 
 ing upon the question whether the blows, if given, were actually 
 given in self-defense, or whether they were given in carrying out 
 an unlawful pui'pose; and if the juiy believe, from, the evidence, that 
 the force used was unreasonable, in amount and character, and such 
 as a reasonable mind would have so considered, under the circum- 
 stances, it is proper for the jury to consider that fact in determin- 
 ing whether the killing was in self-defense.*^ 
 
 (b) In considering whether the killing of A. B. Avas justifiable, 
 on the grounds of self-defense, you should consider all the circum- 
 stances attending the killing, the conduct of the parties at the time 
 and immediately prior thereto, and the degree of force used by the 
 prisoner in making what he claimed to be this self-defense, as bearing 
 upon the question whether the shot or shots were actually fired in 
 self-defense, or whether fired in canying out an unlawful pui-pose.*^ 
 
 (c) If the jury shall further believe, from all the evidence herein, 
 that the accused, at the time he shot and killed said P., had reasonable 
 grounds to believe, and did believe, from all the circumstances as 
 they appeared to him, that the said P. was then and there about to 
 take his life, or inflict upon his person some great bodily harm, he had 
 a right to use any means at his command that were to him apparently 
 necessary. * * **^ 
 
 (d) The jury are instructed that in considering whether the 
 killing was justifiable on the ground that the killing was in self-de- 
 fense, you should consider all the circumstances attending the kill- 
 ing, the character, number and place of the wounds, the conduct of 
 the parties at the time and immediately prior thereto, and the degree 
 and nature of the force used by the defendant in making what is 
 claimed to be his self-defense, as bearing upon the question whether 
 the shots, if fired, were actually shot in self-defense, or whether 
 they were shot in cariying out an unlaAvful purpose ; and if the jury 
 believe from the evidence beyond a reasonable doubt that the force 
 used was unreasonable in amount and character, and such as a rea- 
 sonable mind would have so considered, under the circumstances, it is 
 proper for the jury to consider that fact, if it is proven, in deter- 
 mining whether the killing was in self-defense.** 
 
 § 3143. Quarrelsome Disposition of Deceased, (a) You are in- 
 
 41— Close v. Cooper, 34 Ohio St. eration. The court said: "We do 
 
 98- not so regard it. The phrase com- 
 
 42— Willis V. State, 43 Neb. 102, 61 plained of is an extremely broad 
 
 N. W. 254 (257). one, and, while not customarily 
 
 43 — V.'ade v. Commonwealth, 106 used in such instructions in this 
 
 Ky. 321, 50 S. W. 271. commonwealth, is frequently used 
 
 It was contended that this re- in the self-defense instructions in 
 stricted the jury to the circum- other states, and seems to us,— if 
 Ftances immediately attending- the it can be assumed to make any 
 homicide in their consideration of change in the meaning of the in- 
 the evidence as to whether his life struction— to tend rather to the ad- 
 was in danger, or whether he had vantage of the accused," citing 
 reasonable grounds to so believe, Sackett Inst. Jur. 2d ed.. p. 528. 
 and that threats previously made 44— Carleton v. State, 43 Neb. 373, 
 were withdrawn from their consid- 61 N. W. 699 (710).
 
 2016 FORMS OF INSTRUCTIONS. [§ 3144 
 
 structed that the fact that the deceased, B., may or may not have 
 been of a quarrelsome disposition, or that he may have made as- 
 saults upon other parties, does not affect the nature of the act of 
 killing him. Such testimony is admissible only as it may tend to 
 throw light upon the question as to whether or not the defendant 
 acted in self-defense, and can only be considered by you for this pur- 
 pose. If you find, beyond a reasonable doubt, that the killing was not 
 done in self-defense, then the act was murder or manslaughter and 
 the character of the deceased is immaterial, and it matters not 
 whether he was a good or a bad man.*^ 
 
 (b) You are to determine from the evidence the state of mind 
 of the defendant when he shot and killed the deceased (if he did 
 so) and in that connection you may consider threats (if any) made 
 by the deceased regarding the defendant, the reputation of the de- 
 ceased (if such it was) as a violent and dangerous man, the defen- 
 dant's personal knowledge (if such he had) that the deceased was 
 a violent and dangerous man, the relative strength of deceased and 
 the defendant, and all other facts in the case that may shed any 
 light ujDon such state of mind.**^ 
 
 § 3144. Physical Power of Deceased May Be Considered. I charge 
 you that the relative size and strength of the deceased and the ac- 
 cused should be considered by you in determining the question 
 whether or not the defendant had reasonable grounds to apprehend 
 death or great bodily hann at the hands of the deceased. ^'^ 
 
 § 3145. Jll-Will — Abuse — Threats. The court further instnicts the 
 juiy that, although you may believe from the evidence that defendant 
 entertained ill will towards the deceased and had abused and threat- 
 ened him, still the defendant was not thereby deprived of the right to 
 defend himself against any attack upon him by the deceased. And if 
 you shall find from the evidence that defendant shot and killed the 
 deceased in self-defense, as defined in other instructions, then you 
 must acquit him, notwithstanding such ill-will, abuse, and threats.*^ 
 
 § 3146. Threats, Without Effort to Carry Them Out, Will Not Jus- 
 tify Killing — Overt Act Necessary, (a) All threats which you be- 
 lieve fi-om the evidence wei'e made by either the deceased, H. L., or 
 by L. L. against the defendant should be considered by you in 
 arriving at a verdict. Any threats which were communicated to defen- 
 dant should be considered as explaining the conduct and apprehen- 
 sions of defendant at the time of the shooting, and all threats 
 whether communicated to the defendant or not, should be considered 
 in passing upon the evidence as to the conduct and demeanor of de- 
 ceased and L. L. at the time of the shooting. Although you may be- 
 lieve from the evidence that prior to the shooting deceased, H. L. and 
 
 45 — "The instruction was correct." 47 — State v. Petsch, 43 S. C. 132, 
 
 Willis v. State, 43 Neb. 102, 61 N. 20 S. E. 993 (995). 
 W. 254 (259). 4S— State v. Todd, 194 Mo. 377, 92 
 
 46— Clark v. State, 45 Tex. Cr. S. W. 674. 
 App. 479, 76 S. W. 573 (574).
 
 § 3146.] CRIMINAI^HOMICIDE— SELF-DEFENSE. 2017 
 
 L. L. made threats against the defendant, yet such threats alone did 
 not justify defendant for shooting H. L., and although such 
 threats were communicated to defendant before the shooting, yet, if, 
 at the time defendant fired the fatal shot, neither H. L. nor L. L. made 
 any threat or threats ag-ainst defendant, and made no assault upon 
 defendant, and were making no effort to carry out such threats, 
 then the same did not justify defendant in shooting H. h.*^ 
 
 (b) Previous thi-eats or even acts of hostility, how violent so- 
 ever, nor the violent and dangerous character of the deceased, if you 
 should so find, will not of themselves excuse the slayer; but there 
 must be some overt act (that is, an open manifest act) on the part 
 of the deceased at the time, clearly indicative of a present pur- 
 pose to do injury. To constitute the defense the belief or apprehen- 
 sion of danger must be founded on sufficient circumstances to author- 
 ize the opinion that the deadly purpose then exists, and the fear 
 that it will at that time be executed. If any animosity existed on 
 the part of the deceased to the defendant as indicated by words and 
 actions, then and before, it is proper matter for the consideration of 
 the jury on the question of reasonable apprehension. The jury is the 
 judge, under all the facts and circumstances whether or not there 
 was reasonable ground to justify the defendant in believing that he 
 was in danger of death or great bodily harm at the time he fix'ed the 
 fatal shot.50 
 
 (c) If you believe from the evidence that the deceased, R., had 
 made threats to kill the defendant, or to do him great bodily harm, 
 and that these threats were communicated to the defendant, such 
 threats entitled the accused to be more watchful, and to interpret 
 the acts of the deceased more harshly, than he otherwise would 
 have interpreted them, and these are facts for youi consideration, 
 independent of who brought on the difficulty, and whether or not 
 the defendant had reason to apprehend danger to his life or great 
 bodily harm. 
 
 (d) While it is well calculated to make the party against whom 
 the threats are made more vigilant for his own safety, and security on 
 meeting the party who made the threats, the party against whom 
 the threats are made more vigilant for his own safety and security on 
 demonstration on the part of the party making the threats before 
 he can resort to a deadly weapon. There must be some act or 
 demonstration on the part of the deceased manifesting an intention 
 to carry out the threats befoi-e the prisoner at the bar would be justi- 
 fied in law in resorting to a deadly weapon. It is not for me to 
 say what is to be the character of this demonstration ; you are to 
 judge of that, in connection with the threats and the conduct of 
 the deceased at the time of the conflict between the parties.''^ 
 
 49— State v. McCarver, 194 Mo. 51— State v. Petsch, 43 S. C. 132, 
 717, 92 S. W. 684. 20 S. E. 993 (995). 
 
 50— Ray v. State, 108 Tenn. 282, 
 67 S. W. 553 (556). 
 127
 
 2018 FORMS OF INSTRUCTIONS. [§ 3147. 
 
 § 3147. Mere Fear Not Sufficient — Some Overt Act Required— 
 What Constitutes, (a) The court instructs the jury that mere fear, 
 however well grounded, that another intends to kill the defendant, 
 or to do him some great bodily harm, will not justify a killing, vui- 
 less there is some overt act indicating a purpose to immediately carry 
 out such an intention; and you are instructed that it is not enough 
 that the defendant should show that he believed himself in danger, 
 unless the facts were such that in the light of all the facts and 
 circumstances known to the defendant at the time, or by him believed 
 to be true, you can see that as a reasonable man he had grounds for 
 such belief. 
 
 (b) The jury are instructed that if you find from the evi- 
 dence that the deceased, X., made threats against the defendant 
 which, if carried into execution, would endanger his life or subject 
 him to great bodily harm, and the defendant feared or had reason to 
 fear that such threats were liable to be carried into execution, then 
 the defendant might lawfully arm himself for the purpose of self- 
 defense in anticipation of such threats being carried into execution; 
 but you are instructed that the defendant could not lawfully assault 
 the deceased on account of such threats, or because of fear induced 
 thereby, unless the deceased at the time made some demonstration 
 or performed some overt act that caused reasonable apprehension that 
 such threats were about to be put into execution, and in case of such 
 demonstratioh or overt act the defendant might lawfully become the 
 aggressor only to the extent of putting himself in a position of safety 
 as against the unlawful threatened acts of the deceased. If, under 
 the circumstances, and facts in this case, you find the defendant 
 intentionally carried his act of aggression further than was rea- 
 sonably necessary to place himself in a situation of apparent safety, 
 his acts would be such as to render his act of aggression unlawful, and 
 you should under such circumstances consider the evidence as a 
 whole together with such act of aggression in determining his guilt 
 or innocence under the charge laid in the indictment. ^^ 
 
 (c) The design, real or apparent, to kill the defendant or to do 
 him some great personal injui-y, and the danger, i^eal or apparent, 
 of the execution of such design by the deceased, to cause the killing, 
 must be manifested by some overt act, conduct, or behavior of the 
 deceased at the time of the killing, indicating to the defendant H., 
 situated as he was, such design and danger; but what shows such 
 design, real or apparent, or such danger, real or apparent, are not 
 matters of law for the court to decide, but are matters of fact, deter- 
 mined by the jury according to all the evidence in the ease. No 
 exact definition of an "overt act" can be given. It may be a 
 motion, a gesture, conduct, or demonstration, or anything else which 
 evidences reasonably a present design to take the life of the defen- 
 dant or to do him great bodily harm. Trifles light as air when 
 
 52— Robinson v. Territory, 16 Okla. 241, 85 Pac. 451 (455).
 
 § 3148.] CRIMINAI^— HOMICIDE— SELF-DEFENSE. 2019 
 
 viewed alone, may become fraught with deadly meaning when viewed 
 in connection with all the preceding facts disclosed, and with all 'the 
 evidence in the case.^^ 
 
 (d) You are instructed that what is or is not an overt act of 
 violence, — that is, what acts on the part of a person slain would jus- 
 tify the taking of his life, — varies with the circumstances of each 
 particular case. Under some circumstances a slight movement may 
 justify instant action because of reasonable apprehension of dan- 
 ger; under other cii'cumstances this would not be so; and it is for the 
 jury passing upon the weight and effect of the evidence to determine 
 how this may be.^* 
 
 § 3148. Threats with Acts Indicating an Intention to Carry Them 
 Out. Threats made against the life of a defendant when the evidence 
 shows an act done by deceased at the time of the killing manifesting 
 an intention to execute the threats so made will justify homicide in the 
 defense and protection of himself, but mere threats, unaccompanied 
 by any act manifesting an intention to put such threat into execution, 
 will not justify the homicide. If you believe from the evidence that 
 deceased, J. W., had threatened to take the life of defendant, and 
 that while the deceased was doing some act which manifested an in- 
 tention on his part of executing his threats to take the life of de- 
 fendant, or which was reasonably calculated to and caused defendant 
 to believe from his standpoint that he was about to execute said 
 threats, defendant shot deceased with ^a gun, and thereby killed him, 
 you should acquit him.^"* 
 
 § 3149. Previous Threats May Be Considered in Determining Who 
 Was Aggressor — ^Mutual Threats, (a) If you shall believe from the 
 evidence that, prior to the time of ithe shooting, the deceased had 
 made threats against the defendant, or that defendant had made 
 threats against the deceased, or thait each had made threats against 
 the other, you should take such threats into consideration, together 
 with all the other facts and circumstances appearing in evidence, in 
 determining who was the aggressor in this case.^*^ 
 
 (b) If the jury believe from the evideiTce that W. made any 
 threats against the life of defendant, and that snch threats w^ere 
 communicated to defendant before the killing, the jury may take into 
 consideration such threats in determining whe(ther defendant was 
 justified in acting upon appearances when he struck W. with the bil- 
 liard cues, i^rovided the jury believe from the evidence that W. pro- 
 voked and entered into the difficulty with the defendant. ^^ 
 
 (c) If, from the evidence in this case, the jury have a doubt 
 
 53 — Held error to refuse the above 55 — Curtis v. State, — Tex. Cr. 
 
 and conviction therefore reversed. App. — , 59 S. W. 263 (264). 
 
 Hood v. State, — Miss. — , 27 So. 56— State v. Todd, 194 Mo. 377, 92 
 
 643 (644). See also Johnson v. State, S. W. 674. 
 
 79 Miss. 42, 30 So. 39 (40). 57— State v. Smith, 164 Mo. 567, 65 
 
 54_Wllllams v. U. S., 4 Ind. Ter. S. W. 270. 
 269, 69 S. W. 871.
 
 2020 FORMS OF INSTRUCTIONS. [§ 3150. 
 
 as to whether defendant, E. D., or S. J. was the aggressor in the 
 difficulty in which S. J. lost his life, then, in determining who was the 
 aggressor, you may take into consideration any threat or threats you 
 may find were made by said S. J. against defendant, and which 
 threats were communicated to said defendant, for the pui-pose of ex- 
 plaining the conduct and demeanor of said S. J. at the time of said 
 difficulty. If you find from the evidence that S. J., prior to the trag- 
 edy, made any threats against the defendant, E. D., and that such 
 threats were communicated to said defendant, or that he made any 
 threats to defendant himself, then such threat or threats, if any, so 
 made and communicated to said defendant, should be considered by 
 you as exiDlaining the conduct or apprehension of said defendant, if 
 any, at the time of such killing. On the other hand, if you find 
 from the evidence that said defendant, E. D., was the aggressor, 
 and at the time he struck said S. J., if he did strike him, said S. J. 
 was not assaulting or attempting to assault said defendant, was not 
 making any hostile or apparently hostile demonstrations toward de- 
 fendant, and was making no effort to cany out such threat or ithreats, 
 then such threat or threats would not excuse or justify defendant in 
 killing deceased, if he did kill him, and, so finding, you will disre- 
 gard and not in any manner consider the evidence of such threats 
 made by the deceased against said defendant in arriving at your 
 verdict.^^ 
 
 § 3150. Threatening Language Used May Be Considered as Evi- 
 dence of State of Feeling or Who Was the Aggressor. Evidence has 
 been offered tending to prove that at Fremont, a few hours before 
 the homicide, the defendant and X. had a difficulty, disagreement 
 or quarrel, and that at that time certain threatening language was 
 used by the said X. towards the defendant, both there and on his 
 way homeward. These statements, both in whole or in part, have 
 been contradicted by other evidence. It is for you to detennine fi'om 
 the evidence in this case whether or not such threatening lan- 
 guage was used; and, if you find it established by the evidence that 
 such threats or threatening language were used on the part of X. at 
 the time in question, this may be considered by you as tending to 
 prove the state of feeling of said X. at the time of ithe conflict which 
 resulted in his death; and, if established, it would be competent evi- 
 dence bearing upon the question as to whether or not the said X. 
 began 'the conflict or was the assaulting party.^^ 
 
 § 3151. Prior Threats — Purporting to Draw Weapon — Reputation 
 as Dangerous and Violent Man. If a person has been threatened by 
 another, such threatened person has the right to go about his ordin- 
 ary business, and is under no legal obligation to avoid the person who 
 threatened him, but upon meeting such person, has the right, under 
 the law, to protect himself, if assailed, and in thus protecting 
 
 58— State v. Darling, 199 Mo. 168, 59— State v. Helm, 92 Iowa 540, 61 
 97 S. W. 592. N. W. 246 (248).
 
 § 3152.] CRIMINAL— HOMICIDE— SELF-DEFENSE. 2021 
 
 himself has the right to act upon circumstances as they appear to 
 him, and if he believes, and as a prudent and cautious man has a 
 right to believe, from the attitude of the person who threatened 
 him, that his life is in imminent danger, or that he is in imminent 
 danger of great bodily harm, to defend himself, even to the extent of 
 taking human life. If, therefore, the jury believe from the evi- 
 dence in this ease that the deceased, M., threatened the life of the 
 defendant; and if the jury further believe from the evidence that 
 the said M. was a man who bore reputation of being a violent and 
 dangerous character; that these threats had been communicated to the 
 defendant, and that the defendant knew that the deceased bore such 
 reputation as a dangerous and violent man; and if the juiy believe 
 further from the evidence that on the day of the fatal encounter the 
 deceased and the defendant met, and that after exchanging a few 
 words the deceased threw his right hand behind him as if to 
 draw a weapon, and the defendant believed at the time, and as a 
 prudent and cautious man had a I'ight to believe, that his life was in 
 imminent danger, or that he was in imminent danger of sutfering 
 great bodily hann — then the court charges j'ou that the defendant 
 had the right to tire the fatal shot, although in point of fact there 
 may have been no actual or real danger, and it will be your duty, 
 under the circumstances to acquit the defendant.^*' 
 
 § 3152. Uncommunicated Threats, Admissible When, (a) Un- 
 communicated threats are only valuable, in a case of this kind, as 
 tending to show the feelings and interest of the deceased towards the 
 defendant at the time of their encounter, and whether or not the de- 
 ceased was the first assailant, and whether or not the deceased so 
 acted at the time of the shooting as to induce in the mind of the 
 defendant an honest belief that the deceased intended to kill him or 
 do him great bodily harm. Communicated threats, and threats made 
 to defendant are valuable for the same purpose, and as also tending 
 to throw light on the state of mind of the defendant at and just be- 
 fore the shooting, and as tending to show that his acts in shooting 
 were not malicious.®^ 
 
 (b) The court instniets the jury that the evidence of threats 
 made by deceased against defendant was admitted in the case solely 
 because there was evidence showing or tending to show that just 
 before the deceased met his death he was making or attempting to 
 make an assault on the defendant, and if, from all the facts and cir- 
 cumstances in evidence the jury believe that at the time or just be- 
 fore defendant shot deceased, the deceased was not assaulting or 
 
 60— Kennard v. State, 42 Fla. 581, tained by Brown v. State, 55 Ark. 
 
 28 So. 858 (860). 593, 18 S. W. 1051; Wiggins v. Peo- 
 
 61— State v. Gushing, 14 Wash, pie, 93 U. S. 465, 4 Am. Cr. Rep. 
 
 527. 45 Pac. 145 (146). 53 Am. St. 883. 494. We think it correctly states 
 
 "This instruction was approved the law upon the subject of non- 
 
 by the territorial supreme court in communicated threats and threats 
 
 White V. Washington Territory, 3 made directly to a defendant." 
 Wash. T. 397, 19 Pac. 37; and is sus-
 
 2022 FORMS OF INSTRUCTIONS. [§ 3153. 
 
 attempting to assault the defendant, or making any hostile or ap- 
 parently hostile demonstration towards defendant, then you are in- 
 structed to disregard and not in any way consider, the evidence of 
 threats made by deceased against defendant in arriving at your ver- 
 dict.«2 
 
 § 3153. Previous Malice or Threats by Defendant Do Not Bar 
 Plea of Self-Defense — Threats a Question of Fact, (a) If the defen- 
 dant was assaulted and placed under such circumstances that he had 
 good reason to believe that it was necessary to defend himself 
 from such attack to prevent the infliction of great bodily injury, the 
 fact of any previous threat, or even the existence of any previous 
 malice, if any is shown, toward the deceased, could not take away 
 from the defendant the right of self-defense. 
 
 (b) It is solely the province of the jury to determine whether 
 the defendant in fact did make threats against the deceased, and 
 the weight to be given to evidence of alleged previous threats de- 
 pends upon their character, the manner and occasion of their ut- 
 terance, nearness of time, and the particular circumstances surround- 
 ing their alleged making.^^ 
 
 § 3154. Mere Threat of Arrest Not Suflftcient Provocation. If one 
 merely announces his intentions of arresting a person, such person is 
 not justified in shooting him, although the foniier's official character 
 is not known to the latter, and although in fact the an-est would be 
 unwarrantable.^* 
 
 § 3155. Threats — Defendant Entitled to a Separate Instruction as 
 to. The jury are instructed that you may consider, in determining 
 as to whether the defendant had reasonable grounds for believing 
 that he was in imminent danger of death or great personal injury 
 from the deceased, that the deceased, prior to the shooting, had 
 made threats to the defendant that he would kill or injure him.^^ 
 
 62 — State v. Spencer, 160 Mo. 118, dence presents a crime of naked 
 60 S. W. 1048 (1049), 83 Am. St. 463, and motiveless enormity. The de- 
 following State v. Rider, 95 Mo. fendant's previous good character 
 482, 8 S. W. 723. is so attested that we naturally 
 
 That evidence of uncommunicated look for some justification or ex- 
 threats is admissible where there cuse. The defendant proffered the 
 is doubt who was the aggressor, justification or excuse of threaten- 
 See State v. Bailey, 94 Mo. 316, 7 Ing acts of violence, made more 
 S. W. 43; State v. Sloan, 47 Mo. 610; alarming by the threatening words 
 State v.Herrod, 102 Mo. 609, 15 S. accompanying them, and he prop- 
 W. 373; State v. Elkins, 63 Mo. 165. erly asked for an explicit instruc- 
 
 63 People v. Fitzgerald, 138 Cal. tion as to his right to act accord- 
 
 39, 70 Pac. 1014 (1017). ing to the import of the threaten- 
 
 64 Ready v. People, 32 Col. 57, 74 ing words. It may be that other 
 
 Pac. 892 (895). parts of the charge can be con- 
 
 65 People v. Zigouras, 163 N. Y. strued as covering and compljnng 
 
 250, 57 N. E. 465 (467), new trial with this request; but the differ- 
 
 granted. ence between a direct charge upon 
 
 Held error to refuse the above this point, and a general charge, in 
 
 instruction. There was evidence of which the point needs to be discov- 
 
 hreats by the deceased. The court ercd and identifi-^ '-- " "'-- 
 
 ai(j. processes, may 
 
 "This Is a capital case. The evi- the defendant."
 
 §3156.] CRIMINAI^HOMICIDE— SEI.F-DEFENSE. 2023 
 
 § 3156. Prisoner Shooting Officer Making Arrest. Although you 
 may believe from the evidence beyond a reasonable doubt that 
 the defendant sold beer within the corporate limits of the city of 
 Danville in the presence of C, and that defendant shot and killed 
 C. while C. had him under arrest, or was endeavoring to aiTest him, 
 for that offense, yet, if you further believe from the evidence that, 
 while C. had him under arrest, or was endeavoring to arrest him, 
 the defendant neither forcibly resisted the attempt to arrest, nor 
 forcibly endeavored to break the arrest, and that C. began an 
 attack on defendant with a knife, from which defendant believed, 
 and had reasonable grounds to believe that he was in imminent dan- 
 ger of suffering loss of life or great bodily harm at the hands 
 of C, and that he could not, by the use of any available means, 
 avert the danger, except by shooting and killing C, and that defen- 
 dant did shoot and kill C. for that purpose — then you will acquit 
 defendant on the ground of self-defense.^^ 
 
 § 3157. Self-Defense— Available Where Defendant Kills An Offi- 
 cer in Ignorance of His Character. If the jury, from the evidence, 
 believe that the defendant was placed in the position, at the time of 
 the killing, in which his life was imperiled by the deceased, and he 
 slew him without having any notice of his official character, and 
 the killing was apparently necessary to save his own life, or to 
 prevent his receiving a great bodily injury, then the killing of de- 
 ceased was homicide in self-defense; nor does it matter that de- 
 ceased was legally seeking to arrest the defendant, if the de- 
 fendant had no notice of the fact, or reasonable grounds to know 
 that he was an ofificer.^^ 
 
 § 3158. Self-Defense Against Rape. If, at the time the fatal shot 
 was fired, defendant was in her house, and the deceased was at- 
 tempting to enter her house, against her objection, for the purpose 
 of forcibly having sexual intercourse with her, 'and against her will, 
 and defendant fired the fatal shot to prevent this, you should acquit 
 the defendant.^* 
 
 § 3159. Resisting Lawful Expulsion From Another's House. If 
 the defendant and said G. L. were in the house of one L. K. and she 
 wanted the defendant to leave her house, she had the right to order 
 him out of the house, and if he failed to go she would have the 
 right to use sufficient force to put him out of her house, and in case 
 of such refusal she would have the right to ask the said G. L. to put 
 him out, and he would have the right without unnecessary injur\' to 
 the defendant to put him out of said house, and in such case defendant 
 would not have the right to resist any proper force applied to him for 
 
 66— The instructions fairly state 67— Bruce v. State, 68 Ark. 310, 
 
 the law. Quinn v. Commonwealth, 57 S. "W. 1103 (1104). 
 23 Ky. L. 1302, 63 S. W. 792 (793-4). 68— "The above charge should 
 
 See Brown v. State, 62 N. J. L. 666, have been g-iven." Osborne v. 
 
 42 Atl. 811 (823). for another ap- State, 140 Ala. 84, 37 So. 105 (106). 
 proved instruction on this subject.
 
 2024 FORMS OP INSTRUCTIONS. [§ 3160. 
 
 that purpose ; and if the conflict was brought about by the attempt to 
 expel defendant from the house of said L. K. at her request, the de- 
 fendant would not have the right to resort to the use of a dangerous 
 weapon, or the right to use it in a dangerous manner, unless it reason- 
 ably appeared to the defendant to be necessary to protect him from 
 receiving great bodily harm, and unless it further appeared to be the 
 only means at hand to save his life or prevent great bodily injury 
 at the hands of the said G. L."^ 
 
 § 3160. No Duty of Retreat— When, (a) If the defendant was 
 free from fault in bringing on the difficulty, then he was under no 
 duty to retreat, unless you believe he could have retreated without 
 increasing his danger, or with reasonable safety.'^" 
 
 (b) If you should believe from the evidence that the defendant 
 was free from fault in bringing on the ditHculty, and was not the ag- 
 gressor therein, and that he was assaulted by the deceased, or by the 
 deceased and another, who were armed with deadly weapons, and that 
 such assault was made under such circumstances that it reasonably 
 appeared to the defendant, as an ordinarily cautious and prudent man, 
 that he was in danger of death or great bodily harm at the hands of 
 the deceased, or of the deceased and another, as aforesaid, then you 
 are instructed that, under such circumstances, it would not be in- 
 cumbent upon the defendant to flee in order to avoid the difficulty 
 or avert the necessity of taking the life of his assailant ; but, on the 
 other hand, under such circumstances, he might lawfully stand his 
 ground, and, if assaulted by the deceased, or the deceased and an- 
 othei', under the circumstances aforesaid, then, in such event, he 
 would be justified in his acts, and you would find him not guilty.'^^ 
 
 (c) The question then is simply this: ''Does the law hold a man 
 who is violently and feloniously assaulted responsible for having 
 brought such necessity upon himself, on the sole ground that he 
 failed to fly from his assailant when he might have safely done so? 
 The law, out of tenderness for human life and the frailties of human 
 nature, will not permit the taking of it to repel a mere trespass, or 
 even to save life where the assault is provoked; but a true man 
 who is without fault is not obliged to fly from an assailant, Avho 
 by violence or surprise maliciously seeks to take his life or do him 
 enormous bodily harm.'^^ 
 
 69— State v. Roan, 122 la. 136, 97 the defendant would be required to 
 
 N. W. 997 (998). retreat if it could safely be done. 
 
 7(>_Deal v. State, 136 Ala. 52, 34 The charge was too favorable to 
 
 So. 23 (24); State v. Fontenot, 50 La. him and he could not complain. If 
 
 537, 23 So. 634 (636), 69 Am. St. 455. not so required, the charge fully 
 
 See also State v. Carter, 15 Wash, preserves the right to act without 
 
 121, 45 Pac. 745 (746), and Territory retreating. 
 
 v. Gonzales, 11 New Mex. 301, 68 72— State v. Gardner, — Minn. — , 
 
 Pac. 925 (931). 104 N. W. 971 (974). 
 
 71— Snelling v. State, 49 Fla. 34, "The Supreme Court of the 
 
 37 So. 917 (918). United States approved of this 
 
 The court said that if, under the rule and of Runyan v. State, 57 
 
 circumstances stated in the charge, Ind. 80, 26 Am. Rep. 52, in 1894; and
 
 S 3161.] CRIMINAI^HOMICIDE— SELF-DEFENSE. 2025 
 
 (d) In cases of personal peril, such as this defendant claimed he 
 was placed under, the defendant had not only the legal right to de- 
 fend himself, but the law supposes it to be his duty to defend himself 
 so far as he has personal capacity, and any serious bodily harm 
 apprehended from a felonious attack would not merely excuse but 
 justify extreme resistance; and this defendant should not be re- 
 quired, if hard pressed by A. B., to draw veiy fine distinctions con- 
 cerning the extent of the injuries the man A. B. might inflict. 
 
 (e) The defendant claims that the attack upon him was so sudden, 
 fierce and violent that a retreat would not diminish, but increase, his 
 danger. You will therefore ascertain from the proofs of the condi- 
 tion of the defendant and his surroundings, his means of getting out 
 of the way of the defendant, so that the man A. B. could no further 
 assault or shoot him, whether he would have been able to secure 
 shelter in buildings or woods or other obstructions to be out of 
 range of A. B. 's gun ; always bearing in mind that he was under 
 no obligation, nor was it his dutj', to protect himself from the as- 
 sault by shielding himself with M. or his house, for the law does 
 not warrant a pei-son, when hotly assailed, under circumstances indi- 
 cating intent to take human life or do grievous bodily harm, to with- 
 hold measures proper in self-defense, and expose others to the same 
 danger; and if you find, as claimed by defendant, he had no means 
 of escai>e except to enter his own house, and in doing so it would 
 expose him to the range of A. B. 's gun, and the circumstances ap- 
 peared to him that in so doing he would be shot, it was his right to 
 defend himself; and if, in doing so, A. B. was killed, the homicide 
 is excusable, and the defendant should be acquitted.'^^ 
 
 § 3161. Duty of Retreat, When There is Any Reasonable Safe Way 
 of Escape, (a) The right of self-defense is recognized bj^ the law. 
 A man's duty is to defend himself, and he is not bound to endanger 
 himself by retreating; but if there is any reasonable safe way of es- 
 cape, the law says he ought to do that, and not take the life of his 
 fellow man. I don't mean that he has got to go away from the place 
 because his adversary is there. He is not bound to turn out of his 
 way. But, after the immediate conflict is commenced, it is his duty 
 to retreat from it; avoid taking a man's life; to retire, if he can do so 
 safely, but [he is] not bound to do otherwise, because he has the 
 right to defend himself.'^* 
 
 (b) To entitle the defendant to the benefit of this law of lawful 
 self-defense, the defendant must either be without fault himself, or 
 must have attempted to withdraw from the contest, if such withdrawal 
 could have safely been done before firing the fatal shot.'^^ 
 
 in Beard v. United States, 158 U. S. 74— State v. Sumner. 55 S. C. 32, 
 
 550, 15 Sup. Ct. 962, 39 L. Ed. 1086. 32 S. E. 771 (772), 74 Am. St. 767; 
 
 This accords with the general law State v. Foster, 66 S. C. 469, 45 
 
 on the subject." S. E. 2. 
 
 73 — "These requests should have 75 — Kirbv v. State, 44 Fla. 81, 22 
 
 been given." People v. Macard, 73 So. 82C (837). 
 Mich. 15, 40 N. W. 784 (787).
 
 2026 FORMS OF INSTRUCTIONS. [§ 3162. 
 
 (e) Where a party is assaulted, and the party upon whom the 
 assault is committed is without fault in bringing on the difficulty, he 
 is not compelled to run, but he must avoid the necessity of the killing, 
 if he can reasonably and safely do so, because the law is jealous of 
 human life. But if the appearances to him at the time were such 
 that he could not reasonably and safely avoid taking human life, and 
 a man of ordinary reason and firmness would have arrived at the same 
 conclusion, then it was not necessaiy for him to go any further; and I 
 wish you to understand me on that point, that it is only incumbent 
 on the defendant to avoid the necessity of taking human life when 
 he can do so wi'th safety to himself. '^^ 
 
 (d) If the jury believe from the evidence that, at the time the 
 defendant shot and killed deceased, he was being assaulted or menaced 
 by the deceased, and he (defendant) believed, and had reasonable 
 grounds to believe, from the character of the deceased, his previous 
 threats, if any proven, and from the circumstances of the meeting, and 
 the nature of the assault or menace, that he (defendant) was then 
 and there in danger of loss of life or suffering great bodily harm, 
 and he believed, and had reasonable grounds to believe, that he had 
 no safe, or to him apparently safe, means of avoiding said danger, 
 then the defendant had the right to use such force as was necessary, 
 or to him apparently necessary, to repel such assault, and protect 
 himself from such danger; and, if he shot deceased under such cir- 
 cumstances, the jury should acquit defendant on the grounds of self- 
 defense.'"^ 
 
 § 3162. Duty of Retreat — Without Increasing Danger to Life, etc. 
 Before a person can take the life of an assailant, he must be in a 
 jx)sition where he cannot retreat without increasing danger to his 
 life, or subjecting himself to great bodily harm. And if he can retreat 
 without so increasing his danger to life or great bodily harm, he 
 cannot successfully invoke the doctrine of self-defense.'^^ 
 
 § 3163. Attack with a Pistol, No Duty of Retreat. If you believe 
 from the evidence that defendant L. did with a knife cut M., and you 
 further believe from the evidence that at the time said M. did with a 
 pistol make a demonstration that induced defendant to believe, viewed 
 bj' you from the defendant's standpoint at the time, that he was in 
 danger of death or serious bodily injury at the hands of said M., then 
 
 76 — From oral charge in State v. he should stand his ground or give 
 
 Petsch, 43 S. C. 132, 20 S. E. 993 back is a question for the jury, and 
 
 (997). that he may properly follow that 
 
 77 — Connor v. Commonwealth, — course which is apparently neces- 
 
 Ky. — , 81 S. W. 259 (260-261). sary to save himself from death or 
 
 The court said: "It used to be great bodily harm. The case of 
 
 laid dov/n as the rule that, before Oder v. Commonwealth, 80 Ky. 32, 
 
 killing his assailant, the assailed, was overruled in Reynolds v. Com- 
 
 to be justified on the ground of self- monwealth, 72 S. W. 277, 24 Ky. L. 
 
 dofense, must retreat to the wall, R. 1743. * * * •• 
 
 and only slay him as a last resort, 78 — Washington v. State, 125 Ala. 
 
 when he could retreat no further. 40, 28 So. 78. 
 But the rule now is that whether
 
 vj 3164. j CRIMINAI^— HOMICIDE— SELF-DEFENSE. 2027 
 
 you are charged that defendant had the right to act and cut said M., 
 and he would not be required to retreat in order to avoid the necessity 
 or apparent necessity of killing M. ; and if you so find, you will 
 acquit.'" 
 
 § 3164. Drawing of a Gun by Deceased, Defendant not Bound to 
 Flee, (a) The court instructs the jury that if they find from the 
 evidence that the defendant had reasonable cause to believe, and diJ 
 believe, that the deceased was about to draw a pistol at the time and 
 place of the shooting, to shoot him, then he was not bound to flee, 
 but had the right to defend himself from such threatened attack. 
 
 (b) The court instructs the juiy that if you shall believe from 
 the evidence that at the time defendant shot and killed W. he (the 
 defendant) had reasonable cause to believe, and did believe, from the 
 acts and conduct of W., that W. was attempting to draw a pistol and 
 shoot defendant, and that defendant had reasonable cause to believe, 
 and did believe, that there was imminent danger of W. so doing, then 
 you must acquit the defendant on the ground of self-defense, even 
 though the jury may further believe that W. was unarmed, and that 
 there was no real danger.^** 
 
 (c) When a person is attacked by his adversary, and his adversary 
 makes a demonstration as if to draw a weapon and his adversaiy re- 
 treats, and it reasonably appears to the person so attacked, or against 
 whom the demonstration is made, that his adversary is only retreating 
 for the purpose of getting into a better attitude or condition to carry 
 on or renew such attack, then the person so attacked or the person 
 against whom the demonstration has been made has the right to 
 inflict violence upon his adversary so long as such reasonable appear- 
 ances of danger continue. '^^ 
 
 § 3165. One Attacked in His Own Dwelling Need Not Retreat, (a) 
 The defendant, while on his own premises, outside of his dwellinf- 
 
 79— Lewis v. State, — Tex. Cr. defense, independent of threats; 
 
 App. — , 65 S. W. 1S5. and then, in addition, gives the 
 
 Held that this, and an instruc- same charges in connection with 
 
 tion that defendant would have had threats. Swain's Case. 12 Tex Ct 
 
 the right to arm himself and go Rep. 812, 86 S. W. 335; Phipps v. 
 
 back to M.'s place of business and State, 34 Tex. Cr. R. 560, 608, 31 S 
 
 ask him for his money, if any was W. 397, are not in point. In' those 
 
 due him covered the theory of self- cases the charge of self-defense 
 
 defense presented by the testimony, confined appellant's right to an 
 
 80— State v. Todd, 194 Mo. 377, 92 attack, omitting the question of 
 
 S. W. 674. appearances of danger from any 
 
 81— Moore v. State, — Tex. Cr. other view than from such attack 
 
 App. — , 96 S. W. 321 (323). In this case, however, he is given 
 
 "This charge is given in connec- the benefit of both theories, and in- 
 
 tion with threats. It is true that stead of it being injuriou.s, in our 
 
 he charges with reference to an at- judgment, it was favorable to ap- 
 
 tack, but the charge goes further pellant." 
 
 and gives the appearance of danger In Delaney v. State, 14 Wyo. 1. 
 
 independent of the attack, and in 81 Pac. 792, the court instructed 
 
 the alternative. So it places before that defendant was not justified in 
 
 the jury two avenues of escape for shooting because he may have be- 
 
 appellant along the theory of self- lieved deceased was going after his 
 
 gun.
 
 2028 FORMS OP INSTRUCTIONS. [§ 3165, 
 
 house, was where he had a right to be, and, if you find that the 
 deceased advanced upon him in a threatening manner, and the de- 
 fendant at the time had reasonable grounds to believe, and in good 
 faith did believe^ that the deceased intended to take his life, or do 
 him great bodily harm, the defendant was not obliged to retreat, nor 
 to consider whether he could safely retreat, but was entitled to stand 
 his ground, and meet any attack made upon him, in such a way and 
 with such force as, under all the circumstances, he at 'the moment 
 honestly believed, and had reasonable grounds to believe, was neces- 
 sary to save his own life or pi'oteet himself from great bodily injuiy.^- 
 
 (b) The court charges the jui-y that the law does not require one 
 who is assailed in his own dwelling to retreat from it, but the law per- 
 mits him, and says that it is his right, to stand his ground, and kill 
 his assailant, if it is necessary to do so to save his life, or to protect 
 himself from great bodily harm, pi'ovided he is without fault in bring- 
 ing on the difficulty. And in this case the court charges the jury that 
 if they believe from the evidence that the defendant, on coming to 
 his yard, found the deceased in his dwelling house, or in the act of 
 entering his dwelling house, and that the deceased so acted as to 
 create in the mind of defendant reasonable belief that himself, or any 
 member of his family was in danger of his life, or sustaining great 
 bodily harm at the hands of deceased, then the defendant, under the 
 law, had a right to shoot deceased, and take his life, if such shooting 
 was necessary to protect his own life, or that of any member of his 
 family, from sustaining great bodily harm at the hands of deceased.^' 
 
 (c) If you believe from the evidence that defendant had the prem- 
 ises rented, on which the homicide occurred, and that deceased went 
 into the inclosure on said premises without the consent of defendant, 
 and after defendant had requested him not to come into said in- 
 closure, and that he (deceased) continued to go into said inclosure 
 and onto said premises after defendant had remonstrated with 
 deceased against coming into said field and inclosure, and if you 
 further believe from the evidence that such verbal remonstrances, if 
 any, were of no avail, and that deceased on the occasion of the 
 homicide went into said inclosure, and was approaching djfendant in 
 said inclosure, and from the acts of deceased, or from his words 
 coupled with his acts, it reasonably appeared to defendant that his 
 life was in danger or that he was in danger of serious bodily injuiy 
 at the hands of deceased, and that while such danger, if any, was 
 imminent and pending, defendant shot and killed deceased, then you 
 will acquit defendant. So, also, if deceased was in the act of 
 forcibly ejecting defendant from said premises, and defendant to 
 
 82— State v. Gushing, 14 Wash, outbuildhig-s. See instruction and 
 
 527, 45 Pac. 145, 53 Am. St. 883. comment in State v. Bartmess, 33 
 
 Note. — The immunity pertaining Ore. 110, 54 Pac. 167 (173). 
 
 to the defense of a habitation does 83 — Naugher v. State (Sup. Ct.), 
 
 not extend beyond the limits of the 105 Ala. 26, 17 So. 24 (26). 
 dwellinghouse and the customary
 
 § 3166.] CRIMINAI^— HOMICIDE— SELF-DEFENSE. 2029 
 
 avoid being driven off of said premises by force, shot and killed 
 deceased, he was justified in so doing, provided he resorted to all 
 other means to prevent being driven from said premises before killing, 
 except that he was not bound to retreat in any event. ^* 
 
 § 3166. Burden of Proof as to Retreat, (a) To sustain the plea 
 of self-defense set up in this ease the burden is on the defendant to 
 prove to your satisfaction that he had no reasonable and safe avenue 
 of escape from the danger which threatened him, and not on the state 
 to prove it.^^ 
 
 (b) The burden of the proof is also on the defendant to show 
 that he could not retreat without danger or apparent danger of losing 
 his life, or of suffering great bodily hann, and when the court says 
 that the burden of proof is on the defendant it means that the evi- 
 dence must be sufficient to raise a reasonable doubt. -° 
 
 § 3167. Aiming at Aggressor, Accidentally Killing Another, (a) 
 The court instructs the jury that if they believe from the evidence 
 that at the time the defendant shot and killed A., if he did shoot and 
 kill him, that defendant was in immediate danger of death or great 
 bodily harm then about to be inflicted on him, or which reasonably 
 appeared to defendant about to be inflicted on him, by S., then the 
 defendant had a right to use such force as reasonably appeared to 
 him to be necessaiy to protect himself from death or great bodily 
 harm at the hands of said S., and if the juiy believe from the evi- 
 dence that at a time when defendant was in immediate danger of 
 death or great bodily harm then about to be inflicted on him, or 
 which reasonably appeared to defendant about to be inflicted on him, 
 by S., he (defendant) shot at said S. and missed him, and accidentall}^ 
 and unintentionally shot and killed A., then the juiy will find the 
 defendant not guilty, upon the grounds of self-defense and apparent 
 necessity ; but this instruction is subject to this modification : that 
 if the jurj' believe from the evidence beyond a reasonable doubt that 
 the defendant began the difficulty, in which said A. was killed, by 
 assaulting S. with a deadly weapon, when it did not reasonably apy- 
 pear to him to be necessary to protect himself from immediate danger 
 of death or great bodily harm then about to be inflicted on him, 
 or which reasonably appeared to defendant about to be inflicted on 
 him, by said S., then and in that event the jirrj- cannot acquit the 
 defendant upon the grounds of self-defense and apparent necessity.^" 
 
 84 — "This charge is the law ap- vorable to defendant." Jarvis v. 
 
 plicable to the facts of this case." State, 138 Ala. 17, 34 So. 1025 (1030). 
 
 Bearden v. State. 44 Tex. Cr. Rep. 87— Turner v. Commonwealth, 28 
 
 578, 73 S. W. 17 (19). Ky. Law Rep. 487, 89 S. W. 482. 
 
 85 — Held that this instruction "The instruction gaye the correct 
 
 "g-iven for the state correctly Jaw of self-defense as applicable 
 
 placed the burden of proof touch- to the facts proven. Appellant's 
 
 ing- the duty of retreat, and was only claim was that he was de- 
 
 properly given." Boulden v. State, fending himself from assaults made 
 
 102 Ala. 78, 15 So. 341 (344). upon him by S." 
 
 86 — This, "if faulty, was too fa-
 
 2030 FORMS OF INSTRUCTIONS. [§ 3168. 
 
 (b) If the defendant, L., was holding and cocking his gun im- 
 mediately before it fired the shots which killed R. (if he was so 
 killed) for the purpose and sole purpose of protecting himself against 
 an actual or anticipated attack or assault with a pistol by the wit- 
 ness, S., which might have resulted in death or serious bodily harm 
 to said L. (if it did so appear to him), then if under these circum- 
 stances the gun was fired off by accident, the defendant should be 
 acquitted; and if you so believe, or if you have a reasonable doubt 
 on this issue, you will acquit the defendant. 
 
 (c) If you believe that defendant committed the assault (if any) 
 as a means of defense, believing at the time he did so (if he did so) 
 that he was in danger of losing his life or of serious bodily injury at 
 the hands of one S., and that the shots were intended as a means of 
 defense against an assault by said S., the defendant would be excused 
 in law, if thereby he accidentally killed said R., and in such event, 
 or if you have a reasonable doubt upon the issue, you will find the 
 defendant not guilty.^^ 
 
 § 3168. Trespass bv Deceased. The court instructs the jury that 
 if you believe from the evidence the sugar cane testified about was 
 cane which had been banked on B. 's land by L. as the tenant of B. 
 and that B. forbade the said L. from removing said cane from the 
 premises until such time as a settlement between the parties should 
 be had, and that said L. together with the deceased, attempted to 
 remove said cane from said premises without the consent of B., then 
 such attempted removal amounted to a trespass, and B. had the 
 right to employ such reasonable force as might be necessaiy to pre- 
 vent the trespass, and that in such case neither L. nor the deceased 
 had the lawful right to resist such force. And if the jury believe 
 that either L. or the deceased, or both, employed any means in 
 resisting such force as was likely to produce death or to inflict great 
 bodily harm on the defendant, then the defendant had the lawful 
 right to meet such resistance; and if, in so doing, the defendant 
 wounded the deceased by cutting him with a knife, from which wound 
 the deceased died, such killing was justifiable and the jury should 
 find the defendant not guilty.®^ 
 
 § 3169. The Right to Continue Firing Until Safe, (a) If the 
 jury find from the evidence that after defendant first shot deceased, 
 if you so find, he (defendant) was in a room, and his gun was 
 caught, and failed to fire again, and the house he was in had been 
 fired into by other parties, there in company with deceased, and the 
 defendant, under the facts, picked up the pistol of deceased, and, 
 
 88— Lankster v. State, —Tex. Cr. the law as applied to this compet- 
 
 App. — , 72 S. W. 388 (390). cut and material evidence which 
 
 89 — Boykin v. State, 38 So. 725, 86 has been adduced and that its re- 
 Miss. 481. fusal was error under the prin- 
 
 "We think the instruction an- ciples enunciated in Ayers v. State, 
 
 nounced, in well guarded language, 60 Miss. 709, and, other cases." 
 the rights of the defeodant under
 
 § 3170.] CRIMINAL— HOMICIDE. 2031 
 
 hearing a noise, and believing he was in danger, fired another shot 
 into deceased after he was down, in a room that was dark to such 
 an extent that defendant could not know fully his danger from 
 attack by the companions of deceased, then such shooting would not 
 be murder, and you should acquit defendant of murder under such 
 facts.90 
 
 (b) If the jury further believe that at the time of the difficulty 
 H. N. and L. B. or either of them, acting together, was making or 
 attempting to make, an unlawful attack upon defendant, which rea- 
 sonably appeared to defendant therefrom that their purpose was 
 either to kill or do him serious bodily injury, then, if you so believe, 
 defendant would have the lawful right to defend himself from such 
 attack; and, if he commenced to shoot under such circumstances, you 
 are instructed that he would have the right to continue shooting at 
 them, or either of them, until it reasonably appeared to him, from 
 his standpoint, that he was out of danger from such unlawful 
 attaek.91 
 
 § 3170. Defendant not Obliged to Wait — ^May Act Promptly, (a) 
 The law does not require, gentlemen, that a defendant should wait 
 until an actual assault upon him has reached a stage where resist- 
 ance would be useless. If the situation is such that a reasonable man, 
 in the situation of the defendant, would be justified in believing that 
 his life was in danger, or that a felony was about to be committed 
 upon him, he could act; and what is the apparent danger should be 
 considered by you as the real danger.®^ 
 
 (b) If the jury believe that the evidence established, beyond a 
 reasonable doubt, that the defendant shot and killed the deceased, 
 and that the reason for that killing on the part of the defendant was 
 because the deceased was seeking to commit a serious personal injuiy 
 upon the defendant with a pistol, and that the deceased was the 
 assailant, or if the jury believe that the defendant was the assailant, 
 
 90 — Jones v. State, 44 Tex. Cr. might have been to the prosecutor, 
 
 App. 405, 71 S. W. 962 (963). would not. per se, authorize the 
 
 "The court instructed the jury, prosecutor to assault defendant; 
 if, when he fired the first shot he and if he, acting with his brother, 
 knew that he was in no danger, to made or was attempting to make 
 convict him of either murder or an unlawful attack upon appellant, 
 manslaughter. This was a proper and it reasonably appeared to de- 
 charge on the part of the state, but fendant that their purpose was 
 then the converse of the proposi- either to kill him or do him serious 
 tion should have been given; that bodily injury, then certainly ap- 
 is, if appellant did not know that pellant would have the right to 
 his danger had ceased, but rea- defend himself against such attack, 
 sonably believed that it was con- and to follow up such attack until 
 tinning, under such circumstances all appearances of danger had 
 he would have the right to continue ceased; and all this, of course, 
 to shoot." must be viewed from appellant's 
 
 91— Kelly v. State, 43 Tex. Cr. standpoint." 
 
 App. 40, 62 S. W. 915 (917). 92— "An instruction more favor- 
 
 "This charge should have been able to the accused would have 
 
 given. Certainly the mere fact been wholly unwarranted." "Wil- 
 
 that appellant may have written liams v. State, 120 Ga. 870, 48 S. E. 
 
 a valentine, however obnoxious it 368 (369).
 
 2032 FORMS OP INSTRUCTIONS. [§ 3171. 
 
 and that the defendant had really and in good faith endeavored to 
 decline any further struggle before the fatal shot was fired, and that 
 the circumstances were sufficient to excite the fears of the defendant, 
 as a reasonable man, that his life was in danger, or that some great 
 bodily harm would come to him, from the assault of the deceased, 
 and under the influence of these fears, and not in a spirit of revenge, 
 he shot and killed the deceased, that would be a killing in self- 
 defense, and the defendant w^ould be justifiable, and it would be the 
 duty of the jury to acquit the defendant."^ 
 
 § 3171. Defendant Must Warn Before Killing, if Practicable. The 
 court informs you that in law the defendant, if he was where he 
 had a right to be, if the deceased advanced upon him in a threatening 
 manner, or induced defendant to believe that he was in danger of 
 life or limb, the defendant need not retreat, but had a right to stand 
 his ground and defend himself. When a man is where he has a 
 perfect right to be, and deceased so acts under such circumstances as 
 to induce in him a reasonable and honest ground of apprehension 
 that he is in danger of life or limb, he may at once use necessary 
 foi'ce to prevent the threatened blow^ even to the extent of taking his 
 life; still he would have no right to take the life of deceased without 
 first warning him to desist from his attack, unless you find from the 
 evidence that defendant was justified in believing that he had not 
 time to give such warning.^* 
 
 § 3172. Excusable Homicide Defined — State Must Prove Homicide 
 a Crime, (a) The law of the state defines excusable homicide to be a 
 homicide committed by accident and misfortune in lawfully correcting 
 a child or servant, or in doing any other lawful act by lawful means, 
 with usual and ordinary caution, and without any unlawful intent; 
 or by accident and misfortune in the heat of passion upon any sud- 
 den and sufficient provocation, or upon a sudden combat without any 
 undue advantage being taken, and without any dangerous weapons 
 being used, and not done in a cruel and unusual manner.^^ 
 
 (b) In order to convict, the jury must believe from the evidence 
 beyond a reasonable doubt, not only that the defendant killed R. 
 M., but that the killing was done in such a manner and under such 
 circumstances as would make the homicide a crime. If the proof 
 shows that the killing was done in self-defense or under such cir- 
 cumstances as would make the killing excusable homicide, or justi- 
 fiable homicide, you must find the defendant not guilty.^® 
 
 93— Roark v. State, 105 Ga. 736, 32 4367 Rev. St., and the balance of 
 
 S. E. 125 (126). the instruction consists of the bal- 
 
 94 — State v. Stockhammer, 34 ance of that section, and is mani- 
 
 Wash. 262, 75 Pac. 810 (811). festly more applicable to the case 
 
 95 — Prank v. State, 94 Wis. 211, than the part requested." 
 
 68 N. W. 657 (660). 96— Gray v. State, 42 Fla. 174, 28 
 
 "The first part of this instruction So. 53 (55). This instruction must, 
 
 was requested by counsel for the of course, be supplemented with 
 
 accused, and is substantially in the others, defining- self-defense and 
 
 language of the first half of Section excusable and justifiable homicide.
 
 § 3173.] CRIMINAL— HOMICIDE. 2033 
 
 § 3173. The Assault on Defendant Need not Have Been Felonious 
 — Interfering in Com'bat. If the jui-y believe from the evidence that 
 the deceased was engaged in a difdculty with A. Miller with a knife 
 in the presence of the defendant, it was his duty to endeavor to sup- 
 press and prevent the same; and if, in attempting to do so, the de- 
 ceased left off his difficulty with Miller, and made upon the defendant 
 with a drawn knife in such a manner as to cause the defendant to 
 apprehend, and he did apprehend, that he was about to be slain or 
 to receive enormous bodily harm, then the defendant had a right to 
 stand his gi-ound, and, if necessary, to take the life of the deceased, 
 without retreating.^'' 
 
 § 3174. Whether the Court May Disparage Plea of Self -Defense. 
 The defense of self-defense is one frequently made in cases of this 
 kind, and it is one which, I may say to you, should be veiy carefully 
 scrutinized by the juiy. The evidence to this point should be care- 
 fully considered 'and weighed by the jurj^, for the reason that, if 
 the accused in fact acted in self-defense at the time of the alleged 
 killing, then he ought not to be punished for such act. The evidence 
 on this question of self-defense ought to be carefully considered by 
 the jury for another reason, and that is because a due regard for 
 the ends of justice and the peace and welfare of society demands it 
 to the end that parties charged with crime may not make use of the 
 plea of self-defense as a means to defeat the ends of justice, and a 
 shield to protect them from criminal responsibility in case of viola- 
 tion of the law.^^ 
 
 Gilmore v. State, 126 Ala. 20, 28 to the charge of murder, was ap- 
 
 So. 595 (602); Harbour v. State, 140 proved by this court in Sawyer v. 
 
 Ala. 103, 37 So. 330. State, 35 Ind. 80, and a like cau- 
 
 97— State v. Clark, 134 N. C. 698, tion given by the trial court to the 
 
 47 S. E. 36 (38). jury was also approved in Sanders 
 
 The trial judge added at the end v. State, 94 Ind. 147, while in tha 
 of this instruction the words "pro- appeal of Aszman v. State, 123 
 vided the assault made upon the Ind. 347, 24 N. E. 123, the same in- 
 defendant was felonious or with struction was by a divided court 
 felonious intent." Held that such criticised, upon the ground that it 
 added words made this instruction could not be said to embrace a 
 erroneous. Under the instruction statement of any legal proposition, 
 as modified, "the jury could not but this was rather in the nature 
 have acquitted the defendant if of a general disparagement of the 
 they had found that he had a well- defense of insanity, pleaded by the 
 grounded apprehension that the de- accused in that case. It was as- 
 ceased was about to assault him serted, however, that a case might 
 with the intent to kill him or to possibly arise in which such a 
 do him great bodily harm, unless statement by the court could be 
 they further found that an assault properly made; but the court 
 had been actually committed with passed the question without decid- 
 a felonious intent." ing whether the charge in contro- 
 
 Compare Freeman v. State, 112 versy constituted reversible error." 
 
 Ga. 48, 37 S. E. 172 (173). It was held that in the absence of 
 
 98 — Mcintosh v. State, 151 Ind. the evidence it could not be said 
 
 251, 51 N. E. 354 (357). that the instruction was prejudicial. 
 
 The court said: "An instruction The court had the right to caution 
 
 similar to the one in question rel- the jury, but not to cast suspicion 
 
 ative to the insanity as interposed on any legitimate defense. Convic- 
 tion affirmed. 
 128
 
 2034 FORMS OF INSTRUdTlONS. [§ 3175. 
 
 § 3175. Self-Defense— Burden of Proof. When the defendant sets 
 Up self-defense in justification or excuse of a killing, the burden of 
 proof is upon him to reasonably show to the jury by the evidence 
 that there was a present, impending danger, real or apparent, to life 
 t>r limb, or of grievous bodily harm, from which there was no other 
 probable means of escape unless the evidence which proves the homi- 
 cide proves also its excuse or justification.^^ 
 
 § 3176. Self -Defense— Evidence Equally Balanced Acquits. The 
 jury are further instructed that if there be, in the opinion of the 
 jury, a substantial conflict in the evidence or circumstances as to 
 whether the killing was done in self-defense, and the circumstances 
 or other evidence preponderate in favor of self-defense, or if it be 
 equally balanced as to the killing being done in self-defense, the jury 
 ought not to convict either of murder or manslaughter.^''** 
 
 § 3177. Self -Defense — Series of Instructions Approved in Missouri. 
 (a) The court instructs the jury that they cannot acquit the de- 
 fendant on the ground of self-defense unless they believe from the 
 evidence in the case on both sides, that defendant, J., had reasonable 
 ground to believe, and did believe, that deceased, H., was about, then 
 and there, to take his (defendant's) life or to do him some great 
 bodily harm, and that the danger of his doing so was then and there 
 imminent and impending; and in this connection the oourt further 
 instructs the jury that if the defendant did not have reasonable cause 
 to believe and did not believe, at the time and place of the shooting 
 and killing, as set forth in the indictment, that such danger was 
 imminent and impending, and if they believe from the evidence that 
 defendant could with safety to himself have avoided thus shooting 
 and killing H. at the time and by the means mentioned in the indict- 
 ment, he did such shooting and killing, but notwithstanding he could 
 with safety to himself, have avoided such shooting and killing, he 
 then and there, willfully, feloniously, on purpose, and of his malice 
 aforethought, as heretofore defined in these instructions, with a 
 pistol, as set forth in the indictment, shot and killed H., you will 
 find him guilty of murder in the second degree, and assess his punish- 
 ment as hereinbefore provided. 
 
 (b) The court instructs the jury that to justify the killing of J. 
 H. by the defendant, it is not sufficient that defendant may have acted 
 upon an honest belief that danger was impending to his life, or that 
 (loceased was about to inflict great injury to defendant, but it must 
 appear from the evidence that he had reasonable cause to apprehend 
 danger, real and imminent, at the time of the killing, and the jurors, 
 herein are final judges of the reasonableness of his apprehensions. 
 
 (c) The court instructs the jury that when danger is threatened 
 and impending, a person is not compelled to stand with arms folded 
 until it is too late to strike or shoot, but the law permits him to. 
 
 99— Robinson v. State, 108 Ala. 14, 100— State v. Cottrill, 52 W. Vau 
 18 So. 732 (734). 363, 43 S, E. 45, 59 L. R. A. 513..
 
 § 3178.] CRIMINAL— HOMICIDE. 2035 
 
 act on reasonable fear; and in this ease, if the defendant had reason- 
 able cause to apprehend that H. had a design to do him some great 
 personal injuiy, and that there was reasonable cause to apprehend 
 immediate danger of such design being accomplished, then J. had a 
 right to act on appearances, and kill H. to prevent such design being 
 accomplished, and such killing would be justifiable, although it should 
 aftenvards turn out that the ap^Dearances of danger were false and 
 unfounded, and the finding in that case should be for the defendant, 
 
 (d) The court instructs the juiy that if the juiy believe and find 
 from the evidence that the deceased, H., sought and brought on the 
 difficulty, and then and there assaulted the defendant with a danger- 
 ous and deadly weapon, to wit, a knife, giving him reasonable cause 
 to believe that H. was about to kill or do him great bodily hann, 
 and that said assault was without just provocation, then defendant 
 had a right to shoot and kill the deceased, in the necessary defense 
 of his life, or to prevent any great bodily harm or injury, and their 
 verdict should be for the defendant. ^ 
 
 § 3178. Self-Defense— Includes Saving the Life of Another. Self- 
 defense means, gentlemen, just what these words imply. It means 
 that when one man kills another of necessity. It exists when one 
 man finds himself in a position of peril — imminent peril either to 
 himself or to another — in peril of his life or in peril of serious bodily 
 harm ; and where he finds himself in that position, and strikes to save 
 his life, or strikes to save his body from serious harm, or to save the 
 life of another person, or to save another person from serious bodily 
 harm, the law constitutes that self-defense ; and, if you believe the 
 defendant in this case did that, then you should render a verdict of 
 not guilty.^ 
 
 § 3179. Right to Protect and Defend Another — Defense of Parent, 
 (a) The jury are instructed that the defendant, R. P., had as much 
 right, under the law, to protect the life and body of his father, as 
 be had to protect his own ; and if you find from the evidence that the 
 deceased, B., was making an effort to either take the life of L. P., 
 the father of the defendant, or to do him some great bodily harm, and 
 the defendant struck, honestly believing, and without fault or care- 
 lessness, to prevent it, then he would not be guilty and you say so 
 by your verdict.^ 
 
 1— State v. McKenzie. 177 Mo. 699, S. C. 466. See also State v. Clark, 
 
 76 S. W. 1015 (1019), citing State v. 134 N. C. 698, 47 S. E. 36 (38). 
 
 Kloss, 117 Mo. 592, 23 S. W. 780; 3— Pratt v. State, 75 Ark. 350, 87 
 
 State v. Lewis, 118 Mo. 79, 23 S. W. S. W. 651 (652). 
 
 1082; State v. Johnson, 76 Mo. 121; The court said: "The appellant 
 
 State v. Brown, 63 Mo. 439. complains of the modification but 
 
 The court said: "They simply de- the doctrine inserted is sustained 
 
 Clare the law as applicable to self- expressly by Smith v. State, 59 
 
 defense, and are in harmony with Ark. 132, 26 S. W. 712, 43 Am. St. 
 
 the repeated declarations of this Rep. 20; Masrness v. State, 67 Ark. 
 
 court." 594, 50 S. W. 554, 59 S. W. 529; Elder 
 
 2— State v. Bowers, 65 S. C. 207, v. State, 69 Ark, 649, 65 S. W. 938, 
 
 43 S. E. 656 (658), 95 Am. St. 795, re- 86 Am. St 220." 
 ferring to State v. McGregor, 13
 
 2036 FORMS OF INSTRUCTIONS. {§ 3179. 
 
 (b) You are charged that even though you may find from the 
 evidence that there had been a conspiracy between the defendants 
 and others to resist the officers, and you further find from the evi- 
 dence that the killing was not done in furtherance of such con- 
 spiracy, but was done by defendant in the necessary defense of his 
 mother, under the law as given you in charge, then you will acquit 
 the defendant.* 
 
 (c) If the jury believe from the evidence that the defendant 
 honestly believed, without fault or carelessness on his part, that at 
 the time he struck the blow that killed the deceased, that the de- 
 ceased was in the act of killing the father of defendant or of inflict- 
 ing upon him great bodily injury, and that the danger appeared to 
 defendant to be urgent and pressing, then the defendant was justified 
 in assaulting and striking the deceased to prevent his father from 
 being killed or from receiving great bodily injury, 
 
 (d) But the defendant would not be justified in assaulting and 
 striking the deceased, unless it appeared that the deceased was in 
 the act of killing defendant's father or inflicting upon him great 
 bodily injury. If deceased was in the act of assaulting and beating 
 defendant's father, with no manifest intention of killing him or 
 inflicting upon him great bodily injury, the defendant would be 
 guilty of some degree of unlawful homicide; and this would be true, 
 although deceased was in the wrong in his assault upon defendant's 
 father.^ 
 
 (e) The court instructs the jury that the right to defend one's 
 self or his parents against danger is a right which the law concedes 
 and guaranties to all men. Therefore the defendant may have killed 
 deceased, 0., and be innocent of any offense against the law. 
 
 (f) If, at the time he shot the deceased, he had reasonable cause 
 to apprehend, on ithe part of deceased, a design to do S. H., defend- 
 ant 's father, some great personal injury, and there was reasonable 
 cause for defendant to apprehend immediate danger of such design 
 being accomplished, and to avert such apprehended danger to his 
 father he shot deceased, and, at the time he did so, he had reasonable 
 cause to believe, and did believe, it necessary for him to shoot de- 
 ceased to protect his father from such apprehended danger, then, 
 and in that ease, the shooting was not felonious, but was justifiable, 
 and you will acquit him. 
 
 (g) It is not necessary to this defense that the danger should 
 have been actual or real, or that danger should have been impending, 
 and immediately about to fall on the father of defendant. All that 
 is necessary is that defendant had reasonable cause to believe, and did 
 believe, these facts. But, before you acquit on the ground of de- 
 fending his father against threatened danger, you ought to believe 
 defendant's cause of apprehension was reasonable.*' 
 
 4— Smith V. State, — Tex. Cr. 6— State v. Harper, 149 Mo. 514, 51 
 A pp. — , 89 S. W. 817. S. W. 89 (92). 
 
 5— Mabry v. State, 80 Ark. 345, 
 97 S. W. 285.
 
 § 3180.] CRIMINAL— HOMICIDE. 2037 
 
 § 3180. Killing in Defense of Defendant's Son. (a) If the jury- 
 believe from the evidence that when the defendant shot and killed 
 G., if he did so, he had reasonable grounds to believe, either real or 
 ajjparent, and did in good faith believe, that his son R. was then in 
 imminent danger of losing his life or suffering great bodily harm at 
 the hands of the deceased, G., and there were no other apparently- 
 safe means of escape by R. from the impending danger, then the 
 defendant had the right, and it was lawful for him, in the exercise 
 of a reasonable judgment, to use such force as was reasonably neces- 
 sary, or apparently necessary, to save and protect his son R. 's life, 
 or his person from great bodily harm, even to the taking of the life 
 of said G. On such grounds, and under such circumstances, the 
 defendant is excusable under the law of defense of another. The 
 danger to one's life, or great bodily harm to his person, which 
 authorized defendant to act in his defense, or in the defense of his 
 son, as herein indicated, may be real danger or apparent danger. 
 
 (b) The court further instnicts the jury that if they believe from 
 the evidence, beyond a reasonable doubt, that defendant's son R. 
 made a demonstration to assault G. with a knife, for the pui-pose of 
 killing the said G., or inflicting upon him great bodily harm, then the 
 jury cannot acquit the defendant upon the ground that he acted in 
 the defense of his son R. But if the jury believe from the evidence 
 that R. approached G., if he did so, not for the purpose of assaulting 
 him and killing him, or inflicting upon him great bodily harm, and 
 that G. first made a demonstration to strike R. with a deadly weapon, 
 if he did so, and then the defendant believed, and had reasonable 
 grounds to believe, that G. was then and there about to kill his son 
 R., or inflict great bodily harm upon him, then the defendant had 
 the right to use such means in defense of his son, as, in the exercise 
 of a reasonable judgment, were apparently necessary for his safety, 
 as set out in the instruction on defense of his son."' 
 
 (c) If the killing was willful and intentional, yet, if it was with- 
 out malice, then the defendant could be guilty of no higher grade of 
 offense than manslaughter; and, if the killing was the result of sud- 
 den passion aroused in the breast of the defendant by an attempt by 
 T. to assault defendant or either of his sons with a gun, then the 
 killing, if not justifiable on the grounds of self-defense, would be only 
 manslaughter.^ 
 
 (d) If the jui-y believe from the evidence that at the time de- 
 fendant shot and killed the said C., if he did shoot him, he believed, 
 and had reasonable grounds to believe, that the said C. was then and 
 
 7 — Thacker v. Commonwealth, 24 as would have been necessary to 
 
 Ky. Law R. 1584, 71 S. W. 931 (932). excuse the son if he had killed the 
 
 8— Mitchell v. State, 129 Ala. 23, deceased. If the son was at fault 
 
 30 So. 348 (352). in commencing- the difficulty, that 
 
 The court said: "Defendant's fact precluded any right of the de- 
 right to kill in defense of his son fendant to kill in order to extricate 
 depended on the same conditions or protect him."
 
 2038 FORMS OF INSTRUCTIONS. [§ 3181. 
 
 there about to take the life of his son, W. U., or inflict on his said 
 son great bodily harm, and there appeared to him, the said H. U., 
 in the exercise of a reasonable judgment, no other means to avert 
 the then real, or, to him, apparent, danger, if any, to his said son, 
 W. U., but to shoot said C, then he had the right to do so, and they 
 ought to acquit him on the grounds of defending his said son, W. U., 
 from death or the infliction of great bodily harm, at the hands of 
 the said C.® 
 
 § 3181. Defendant May Kill in Defense of Person or Property. 
 A person may repel force by force in defense of person, property or 
 life against one who manifestly intends or endeavors by violence or 
 surprise to commit a known misdemeanor or felony or either or to do 
 great bodily injury to his person ; and the danger which would justify 
 the defendant in the act charged against him may be either real or 
 apparent; and the jury are not to consider whether the defendant 
 was in actual peril of his life or propertj' but only whether the indi- 
 cations were such as to induce a reasonable man to believe that he 
 was in such peril of person or property. And if he so believed rea- 
 sonably (and had sufficient cause so to believe), and committed the 
 act complained of under such belief, even though it should appear 
 that the deceased was not armed, you should acquit the defendant.^" 
 
 § 3182. When Killing Justifiable in Defense of Property — ^Land- 
 lord and Tenant. Every pei'son has the right to oppose force in the 
 protection of property lawfully in his possession. And where one 
 has property in his possession which he has raised as tenant on the 
 land of another, under agreement to give to his landlord a portion 
 thereof as rent, his possession thereof is lawful, and he has the right 
 to defend his possession thereof against the landlord, opposing force 
 to force for that purpose, unless such landlord be assisting a peace 
 officer in taking the same, under authority of a writ of legal process. 
 And a want of knowledge that the landlord is acting with the author- 
 ity of such writ or process would, if the landlord attempted to take 
 by force or violence the property from the possession of the tenant, 
 excuse the tenant in opposing force to force to prevent the taking 
 from his possession, and in slaying the landlord, if necessary, or if 
 reasonably appearing necessary, in order to prevent the taking, or in 
 protecting his own person from injury or death which reasonably 
 appears to menace him as an accompaniment of the taking. But in 
 every case where one acts in defending his possession of property, 
 as distinguished from his protection of his life or of his person from 
 great bodily injui-y, before the person in possession would be justified 
 in killing the other or excused therefor, every other effort in his 
 power must have been used to repel the aggression. However, one 
 may, in the defense of his property, be placed in such position as to 
 
 9— Utterback v. Commonwealth, 10 — People v. Glover, 141 Cal. 233, 
 22 Ky. Law R. 1011, 59 S. W. 515. 74 Pac. 745 (747). 
 88 Am. St. 328.
 
 § 3183.] CRIMINAI^HOMICIDE. 2039 
 
 become himself in danger or apparent danger of death or serious 
 bodily injury, in which case the rule stated in the previous section 
 as to defense of person would apply to his case as though the ques- 
 tion had been in the first instance a question of self-defense. So, if 
 you believe from the evidence that defendant killed the said K., but 
 further believe that, from the standpoint of defendant, it appeared 
 necessary at the time to kill the said K. as the only means of pro- 
 tecting the possession of his property from a forcible taking, and 
 that the defendant had no knowledge of the fact, if true, that de- 
 ceased and his companion, or the latter of them, had legal process 
 authorizing them to take forcible possession of said cotton, then you 
 will acquit the defendant. ^^ 
 
 § 3183. Defense of Habitation, (a) The law is that one assailed 
 with a deadly weajpon in his own house is not obliged to flee. If 
 such a person is violently assaulted, without being in fault, he may 
 repel force by force, and if, in the reasonable exercise of his right 
 of self-defense, and using no more force than is apparently necessary 
 in defense of himself and habitation, he kills his assailant, the killing 
 is justifiable homicide. ^^ 
 
 (b) The jury, in considering whether the killing was in defense of 
 habitation, should consider all the circumstances attending the killing, 
 and the conduct of the parties at the time, and immediately previous 
 thereto, and the means and force used as bearing upon the question 
 of whether the killing was in defense of habitation, in good faith, or 
 whether it was done maliciously and in a spirit of hatred or revenge. ^^ 
 
 11— Howell v. State, — Tex. Cr. 12— Runyan v. State, 57 Ind. 80, 
 
 App. — , 60 S. W. 44. 2 Am. Cr. Rep. 318; State v. Har- 
 
 See Wells v. Territory, 14 Okla. man, 78 N. C. 515; State v. Middle- 
 
 436, for instructions relating to tak- ham, 62 la. 150, 17 N. W. 446. 
 
 ing forcible possession of land. 13 — Greschia v. People, 53 111. 295.
 
 CHAPTER C. 
 
 CRIMINAL— INTOXICATING LIQUOR. 
 
 See Erroneous Instructious, same chapter head. Vol. III. 
 
 § 3184. Definition of intoxicating 
 liquor. 
 
 § 3185. When a liquor is considered 
 as intoxicating within the 
 meaning of the law. 
 
 § 3186. What constitutes a sale 
 within the state. 
 
 § 3187. Burden of proof as to li- 
 cense. 
 
 § 3188. Keeping of liquors is pre- 
 sumptive evidence of il- 
 legal sale, when. 
 
 § 3189. Sale of liquor by druggist. 
 
 § 3190. Authority of bar tender in 
 making sales — No presump- 
 tion of law either way. 
 
 § 3191. Presumption of law that the 
 bar tender has authority to 
 make only lawful sale. 
 
 § 3192. When and when not liable 
 for act of servant. 
 
 § 3193. Keeping a place for the sale 
 of intoxicating liquors as 
 agent, clerk, servant or 
 principal. 
 
 § 3194. One sale delivered at differ- 
 ent times. 
 
 § 3195. Selling liquor to minor — 
 Knowledge and intent ma- 
 terial. 
 
 § 3196. Knowledge of minority im- 
 material. 
 
 § 3197. Burden of proof as to writ- 
 ten order. 
 
 § 3198. Drunkenness defined. 
 
 § 3199. Habit must exist at the time, 
 etc. 
 
 § 3200. Selling to a person in the 
 habit. 
 
 § 3201. Knowledge of criminal in- 
 tent necessary. 
 
 § 3202. Sale in prohibition limits^ 
 No words necessary to con- 
 stitute a sale — Leaving' 
 money where vender may 
 get it and taking of prop- 
 erty is sufficient. 
 
 § 3203. Keeping or using a place for 
 the illegal sale of intoxi- 
 cants. 
 
 § 3204. Making a public resort of a 
 dwelling house and the find- 
 ing of liquor there is pre- 
 sumptive evidence of keep- 
 ing for illegal sale. 
 
 § 3205. Keeping for sale of liquors 
 in club house without li- 
 cense. 
 
 S 3206. Opening on prohibited days 
 — Sales in side or rear 
 rooms unlawful. 
 
 § 3207. Order of liquor by an agent 
 is not a sale. 
 
 § 3208. What constitutes residence 
 district. 
 
 § 3209. Illegal sale— Local option. 
 
 § 3184. Definition of Intoxicating Liquor. You are instructed that 
 intoxicating liquor is such as is intended for use as a beverage, or is 
 capable of being so used, which contains alcohol, either obtained by 
 fermentation, or by the additional process of distillation, in such 
 proportion that it would produce intoxication when taken in such 
 quantities as may practically be drunk ; and unless you believe from 
 the evidence beyond a reasonable doubt that the liquor sold by the 
 defendant comes within the above definition, you will find defendant 
 not guilty.^ 
 
 § 3185. When a Liquor is Considered as Intoxicating Within the 
 Meaning of the Law. A liquor is intoxicating, within the meaning of 
 
 1— Sebastion v. State, 44 Tex. Cr. App. 508, 72 S. W. 849 (850). 
 
 2040
 
 § 3186.] CRIMINAL— INTOXICATING LIQUOR. 2041 
 
 the law, when it is intended for use as a beverage, or is capable of 
 being so used, which contains alcohol, either obtained by fermenta- 
 tion or by the additional process of distillation, in such a proportion 
 that it would produce intoxication when taken in such quantities as 
 may practically be drunk; and, unless you believe from the evidence 
 beyond a reasonable doubt that the liquor sold by defendant comes 
 within the above definition, you will find the defendant not guilty.- 
 
 § 3186. What Constitutes a Sale Within the State. The jury are 
 instructed that if you find the defendant received a written order 
 for beer at the village of Lyle accompanied with a money order for 
 the price thereof, and sent the beer pursuant to the order to the 
 party in Iowa sending the order, this would constitute a sale at Lyle, 
 this State, in violation of the statute, and the defendant would be 
 guilty of the charge contained in the indictment.^ 
 
 § 3187. Burden of Proof as to License. If the jury believe, from 
 the evidence, beyond a reasonable doubt, that the defendant by him- 
 self, agent or servant, made the sales, as charged in the indictment, 
 then it is not necessary for the people to show, by proof in the fii*st 
 instance, that he had no license to sell intoxicating liquors. That is 
 a matter of defense, and should be proved by the defendant if he 
 had such license.* 
 
 § 3188. Keeping of Liquors is Presumptive Evidence of Illegal 
 Sale, When. It is also provided that in all actions, prosecutions 
 and proceedings under the law of this state prohibiting the illegal 
 manufacture and sale of intoxicating liquors, the finding of such 
 liquors, except in the possession of one legally authorized to sell the 
 same, or except in a private dwelling-house which does not include, 
 or is not used in connection with, a tavern, public eating-house, 
 restaurant, groceiy or other places of public resort, shall be pre- 
 sumptive evidence that such liquors were kept for illegal sale, and 
 proof of actual sale shall be presumptive evidence of illegal sale.^ 
 
 § 3189. Sale of Lictuor by Druggist. The law allows druggists to 
 sell liquor, as you have already been instructed, for medicinal, me- 
 chanical, scientific and sacramental purposes, and for that alone. The 
 law absolutely prohibits the sale of liquor by druggists to be used 
 as a beverage or to be drank on the premises. There are other re- 
 strictions and prohibitions which it is not necessaiy to name, as they 
 ■are not involved in this case. So long as a druggist complies with 
 the law in these regards, he is justified in making sales.^ 
 
 The juiy is instructed that a druggist and apothecaiy has a 
 right to have in his possession intoxicating liquors in any quantity to 
 
 2— Malone v. State, — Tex. Cr. State, 1 McCord, 573; Contra: Me- 
 
 App. — . 51 S. W. 381. han v. State, 7 Wis. 670. 
 
 3— State V. Johnson, 81 Minn. 121, 5— State v. Illsley, 81 la. 49, 46 N. 
 
 90 N. W. 161 (162). W. 977 (978). 
 
 4— Potter v. Deyo, 19 Wend. 361; 6— People v. Hilliard, 119 Mich. 
 
 Smith V. Joice, 12 Barb. 21; Pender- 24, 77 N. W. 306. 
 grast V. Peru, 20 111. 51; Gerring- v.
 
 2042 FORMS OF INSTRUCTIONS. [§ 3195. 
 
 be used solely for the purpose of mixing and combining with other 
 ingredients as a medicine, and that the only question for the jury is 
 to decide whether the liquors found in defendant's possession were 
 so kept by him solely for the purpose of combining with other in- 
 gredients as a medicine, or were kept to be sold in violation of law; 
 if you should find that they were so kept solely for combining with 
 other ingredients as a medicine, you should return a verdict of not 
 guilty, but if you find that they were kept for sale, you should bring 
 in a verdict of guilty. '^ 
 
 § 3190. Authority of Bar Tender in Making Sales — ^No Presump- 
 tion of Law Either Way. The jury are further instructed that, noth- 
 ing to the contrary appearing, evidence of a sale by a servant in his 
 master's shop of his master's goods there kept for sale, would, if 
 believed, warrant the jury in finding the sale was authorized by the 
 master, and that this would be so although the defendant was not 
 on the premises at the time the sale was made.* 
 
 § 3191. Presumption of Law that the Bar Tender has Authority 
 to Make Only Lawful Sales. Although the jury may believe, from 
 the evidence, that the bar tender of the defendant sold intoxicating 
 liquor to the said A. B., as charged in the indictment, and that the 
 said A. B. was at the time a person in the habit of getting intoxicated, 
 still, if the jury further believe, from the evidence, that such sale 
 was without the knowledge or consent of the defendant, and against 
 his wishes, then the defendant would not be liable therefor, and the 
 jury have no right to presume that the defendant authorized his bar 
 tender to make such sale simply because he was employed as bar 
 tender at defendant's saloon; if the jury find there is no evidence to 
 the contrary, the presumption of law is, that the bar tender only had 
 authority from the defendant to make such sales as were lawful.^ 
 
 7 — Commonwealth v. Boutwell, to the jury, under all the circum- 
 
 162 Mass. 230, 38 N. E. 441. stances of the case, stating that 
 
 The court said that under these there was no presumption of law 
 
 Instructions "the jury could not either way. This left the weight 
 
 find the defendant guilty unless of the evidence offered by the com- 
 
 they were satisfied beyond a rea- monwealth and the inferences to be 
 
 sonable doubt that the liquors were drawn from it entirely to the jury, 
 
 kept for sale. So far as appears, and is in accordance with the view 
 
 there was no evidence which called expressed in Commonwealth v. 
 
 for any other instructions. The de- Briant, 142 Mass. 463, 8 N. E. 338, 
 
 fendant did not testify, and there 56 Am. Rep. 707. It was as a ques- 
 
 was nothing to show that any part tion of faet solely that the jury 
 
 of the liquors was on hand pre- were to determine whether an au- 
 
 vious to May 1st as a part of his thorized sale by the bar-keeper had 
 
 stock, when he held the license to been proved, and the jury were 
 
 sell for medicinal, mechanical and permitted to make this inference 
 
 chemical purposes. His statement if, under all the circumstances, 
 
 to that effect at the time of the they should see fit to do so. In 
 
 seizure was not evidence in his fa- Commonwealth v. Hayes, 145 Mass. 
 
 vor." 289, 14 N. E. 151, it is also inti- 
 
 8— Commonwealth v. Houle, 147 mated that instructions precisely 
 
 Mass. 380, 17 N. E. 896 (897). similar to those given in the case 
 
 The court said that this "instruc- at bar would be unobjectionable." 
 
 tion submitted the whole question 9— State v. Mahoney, 23 Minn, 
 
 of the authority of the bar-keeper 181, 2 Am. Cr. Rep. 408.
 
 § 3192.] CRIMINAI^INTOXICATING LIQUOR. 2043 
 
 § 3192. When and When not Liable for Act of Servant, (a) If 
 a clerk or bai- keeper in a saloon sell intoxicating liquor, without the 
 knowledge and against the instructions of his employer, the latter is 
 not criminally responsible for the act.^*^ 
 
 (b) A sale by an agent, against the known will and instructions 
 of his principal, will not render the principal liable. ^^ 
 
 (c) If the jury believe from the evidence beyond a reasonable 
 
 doubt that defendant, , did at the time and place alleged 
 
 unlawfully and willfully sell, or assist in the sale of, a pint of whis- 
 key, to F., then you will find defendant guilty, ete.^^ 
 
 (d) You are instructed that if the defendant had no interest in 
 the whiskey, but if you believe from the evidence beyond all reason- 
 able doubt he was acting as the agent of some one else who owned 
 the whiskey in making a sale to the witness, K., if such a sale was 
 made, he is guilty. That before they (the jui-y) could convict the 
 defendant, they must believe from the evidence beyond all reasonable 
 doubt, that the defendant sold the whiskey to the witness, K., or 
 that if he did not own the whiskey, he aided and assisted in the sale 
 as the agent of the owner, etc.^^ 
 
 § 3193. Keeping a Place for the Sale of Intoxicating Liquors as 
 Agent, Clerk, Servant or Principal, (a) If you believe from the 
 evidence in this case that the defendant is not guilty, that he has 
 not kept this place, that he has not sold this liquor, then it is your 
 duty, under your oaths as jurors, to find this defendant not guilty. 
 It is equally your duty, if you believe this defendant beyond a rea- 
 sonable doubt to be guilty, to say so by your verdict.^* 
 
 (b) If you find from the evidence introduced upon the trial, under 
 these instructions, that the defendant, between the 1st day of Janu- 
 ary, , and the 24th day of May, , on lots 4 and 5 in block 
 
 10 of St. Charles City, in Floyd county, Iowa, did maintain or con- 
 tinue to use a certain building or place wherein he sold, kept for sale 
 or kept with intent to sell, intoxicating liquors of any siort or char- 
 acter, in violation of law, whether as clerk, agent, servant or as 
 principal, then you ought to find the defendant guilty. If you do not 
 
 10 — Lathrop v. State, 51 Ind. 192, porter. Appellant, who testified on 
 
 1 Am. Cr. Rep. 468; Com. v. Put- his own behalf, states that he was 
 
 nam, 4 Gray 16. working in K.'s saloon on the day 
 
 11 — Anderson v. State, 22 Ohio St. of the alleged sale of the whisky 
 
 305. to F. ; that he was helping to clean 
 
 12 — Burnett v. State, 42 Tex. Cr. up that day, and moving the bar 
 
 App. 600, 62 S. W. 1063 (1064). fixtures; that he did not work for 
 
 The court said in comment that said K. before that day, and had 
 
 "the complaint here is that it as- no contract for employment for any 
 
 sumed appellant was the agent or other day. It occurs to us that this 
 
 employe of K., the owner of the is an admission on his part that ho 
 
 saloon. This is certainly the effect w^as in the employ of K. on that 
 
 of the charge, and, if his employ- Sunday." 
 
 ment was controverted or in issue, 13— Winter v. State, 133 Ala. 176, 
 
 the charge would be erroneous. 32 So. 125. 
 
 The state, by its testimony, proved 14 — State v. Currie, 8 N. Dak. 545, 
 
 that he was in the employ of K. as 80 N. W. 475 (476).
 
 2044 FORMS OP INSTRUCTIONS. [§3194. 
 
 so find beyond a reasonable doubt, then you should find the defendant 
 not guilty.^^ 
 
 § 3194. One Sale Delivered at Different Times. If the jui-y be- 
 lieve, from the evidence, that the defendant, on the occasion testified 
 to by the witnesses, sold to the said A. B. (one gallon) and no less, 
 and that the quantity so sold was drawn from the cask and placed 
 in a keg (or bottles) separate by itself and set away for the said 
 A. B. as his property and charged to him (or paid for by him), then 
 in such case the title to the whole quantity so sold and set apart 
 passed to the purchaser, although he may have taken away but a 
 part of it at the time of the sale, and in such case it is a matter 
 of no consequence what may have been the motives of the parties in 
 making such sale, and the jury should find for the defendant. ^^ 
 
 § 3195. Selling Liquor to Minor— Knowledge and Intent Material. 
 The jury are instructed, as a matter of law, that intent is necessaiy to 
 the commission of a crime, and it is a good defense to a charge of 
 selling intoxicating drink to a minor, that the dealer had good 
 reason to believe, and did believe him to be of age. Whether in 
 this case the defendant did sell to a minor, and whether he took 
 reasonable care to find out whether the said A. B. w^as a minor, and 
 whether he, in good faith, believed him to be over the age of twenty- 
 one years, are questions of fact to be determined by the jury, from 
 the evidence in the case.^''^ 
 
 § 3196. Knowledge of Minority Immaterial. The jury are in- 
 structed, that if they believe, from the evidence, that the defendant 
 by himself, his agent or servant, sold or g-ave intoxicating liquor to 
 the said A. B., and that the said A. B. was at that time a minor, 
 under the age of twenty-one years, then it is wholly immaterial 
 whether the defendant knew, or did not know, that the said A. B. 
 was a minor, nor whether the said defendant was himself deceived in 
 regard to the age of the said minor. A person engaged in the business 
 of selling intoxicating liquors sells to a minor at his peril, and is 
 equally guilty whether he knows, or does not know, the age of the 
 person to whom he is selling.^* 
 
 15 — State v. CafCrey, 94 Iowa 65, thority or approval of the accused; 
 
 62 N. W. 664. and upon that fact you must be 
 
 Sale with knowledge, authority satisfied from the evidence in the 
 
 or approval of defendant. case, beyond a reasonable doubt, 
 
 The court instructs the jury that before you can say he was guilty, 
 there does not seem to be very Approved in State v. Lewis, 86 
 much disipute, and I don't think Minn. 174, 90 N. W. 318. 
 you will have any hard work to 16 — Dobson v. State, 57 Ind. 69. 
 ascertain, as to whether this liquor 17 — Faulker v. People, 39 Mich. 
 was sold or not. It was either 200; Robbins v. State, 63 Ind. 235; 
 brandy or whisky. The sale was Anderson v. State, 22 Ohio St. 305; 
 on the 5th day of January this Adler v. State, 55 Ala. 16. 
 year. Upon that there cannot be 18— State v. Hartfield, 24 Wis. 60; 
 much question, because I do not Com. v. Emmons, 98 Mass. 6; State 
 understand that defendant, or his v. Cain, 9 W. Va. 559; Com. v. Fin- 
 counsel, upon his argument to you, negan, 124 Mass. 324; Roborge v. 
 denies this. But the question for Burnham, 124 Mass. 277, MeCutch- 
 your consideration is whether it eon v. People, 69 111. 601, 1 Am. Cr. 
 was sold with the knowledge, au- Rep. 471.
 
 § 3197.] CRIMINAL— INTOXICATING LIQUOR. 2045 
 
 § 3197. Burden of Proof as to Written Order. The fact of the 
 defendant having a written order from parents, guardian or family- 
 physicians authorizing a sale to a minor is a matter of defense, and 
 if the people have proved to the jury by the evidence, beyond a 
 reasonable doubt, the sale or giving of intoxicating liquors to a 
 minor, as charged in the indictment, then the jury should find 
 defendant guilty; unless the jury believe, from the evidence, that at 
 the time of such sale he had such written order.i'* 
 
 § 3198. Drunkenness Defined. The court instructs the jury that 
 a man is drunk in a legal sense when he is so far under the influence 
 of intoxicating liquor that his passions are visibly excited or his 
 judgment impaired by the liquor.-" 
 
 § 3199. Habit Must Exist at the Time, etc. The court further 
 instructs the jury, on the part of the defendants, as a matter of 
 law, that before they can convict the defendants they must believe, 
 from the evidence, beyond a reasonable doubt, that the person named 
 in the indictment had been in the habit of getting intoxicated at the 
 time of the alleged sale, and whether he was or was not in such 
 habit is a question for the jury to determine, from all the evidence in 
 the case.^^ 
 
 § 3200. Selling to a Person in the Habit — Intent Necessary. Al- 
 though the jury may believe, from the evidence, that the defendant 
 sold intoxicating liquors to the said A. B., as charged in the indict- 
 ment, and that, the said A. B. was at the time a person in the habit 
 of getting intoxicated, still if the jury further believe, from the evi- 
 dence, that before making such sale, defendant made inquiiy of per- 
 sons well acquainted with the said A. B., as to whether he was in 
 the habit of getting intoxicat-ed, and was told that he was not, and 
 that the defendant used reasonable care before selling said liquor, 
 in good faith, to ascertain whether the said A. B. was in the habit 
 of getting intoxicated, and that when he sold the said liquor he 
 honestly and in good faith believed that the said A. B. was not in 
 the habit of getting intoxicated, then the jury should find the de- 
 fendant not guilty.22 
 
 § 3201. Knowledge or Criminal Intent Necessary. The jury are 
 instructed, that if they believe, from the evidence, beyond a reason- 
 able doubt, that the defendant sold or gave to the said A. B. intoxi- 
 cating liquor, as charged in the indictment, and that the said A. B. 
 was, at the time, in the habit of getting intoxicated, then it is wholly 
 immaterial whether the defendant knew or did not know that the said 
 A. B. was a person in the habit of getting intoxicated. A person 
 engaged in the business of selling intoxicating drinks, selling to a 
 person who is in the habit of getting intoxicated, sells at his peril 
 
 19— State v. Cornan, 48 la. 567. 21— Gallagher v. The People, 120 
 
 20— State v. Pierce, 65 la. 85. 21 111. 179. 11 N. E. 335. 
 N. W. 195; 1 Bouv. Law Die. 510. 22— Crabtree v. State, 30 Ohio St. 
 
 382.
 
 2046 FORMS OF INSTRUCTIONS. [§ 3202. 
 
 and he is equally guilty whether he does or does not know the habits 
 of the person to whom he is selling.-^ 
 
 § 3202. Sale in Prohibition Limits — No Words Necessary to Con- 
 stitute a Sale — Leaving Money Where Vender May Get it and Taking 
 of Property is Su£S.cient. (a) Before you can convict the defendant 
 you must believe from the evidence beyond a reasonable doubt that 
 within five miles of the Methodist Church house located in Center, in 
 Cherokee county, Alabama, and within twelve months before the 
 finding of this indictment, the defendant sold or gave amay vinous, 
 spirituous or malt liquors. A sale of personal property is a transfer 
 of the same for a price paid or agreed to be paid. Words need not 
 be spoken to constitute a sale ; it may be inferred from the conduct 
 of the parties. If one in possession of personal property permits 
 another to take it, with the mutual understanding it is to be paid 
 for, and the vendee leaves money to pay for it where the vender 
 may get it, and the vender afterwards gets the money, and accepts it 
 in payment of the property, such a transaction would be a sale, 
 though the parties may not have said a word about it. 
 
 (b) That they must ascertain from the evidence whether the wit- 
 ness A. got the whiskey with the intention of paying for it whether 
 he left the money to pay for it, and whether the defendant after- 
 wards got the money and accepted it for the whiskey.^* 
 
 § 3203. Keeping or Using a Place for the Illegal Sale of Intoxi- 
 cants. The state claims that the defendant kept or used the base- 
 ment or cellar under their restaurant, and kept beer therein for un- 
 lawful purposes. On this issue the burden of proof is upon the 
 state, and, in order to convict defendants on account of what was 
 kept or done in said basement or cellar, you must find from the 
 evidence and beyond reasonable doubt that the defendants kept or 
 used the cellar in question, and that intoxicating liquor was kept 
 therein for the purpose of selling unlawfully. If defendants kept 
 or used the cellar in question, and beer was found therein, the law 
 would presume it was kept there unlawfully; but this presumption 
 might be overcome by evidence showing that the defendants did not 
 keep the beer in the cellar unlawfully. If the defendants did not 
 keep or use the cellar in question, and had no control of it, they 
 would not be responsible for what was kept or done in the cellar; 
 but, if they kept or used the cellar, they would have no right to per- 
 mit any other person to keep beer therein for unlawful purposes. ^^^ 
 
 § 3204. Making a Public Resort of a Dwelling House and the 
 Finding of Liquor There is Presumptive Evidence of Keeping for 
 Illegal Sale. If you find from the evidence that the dwelling house 
 
 23— Bame.s v. State. 19 Conn. 397. instructed the jury that if prohibl- 
 24— Winter v. State, 132 Ala. 32, tion existed in the territory de- 
 
 31 So. 717 (719). scribed in the indictment, they will 
 
 In Matkin.s v. State, — Tex. Cr. consider the defendant guilty. 
 
 App. — 62 S. W. 911 (912), the court 2.'^— State v. Stevens, 119 la. 675, 
 
 94 N. W. 241 (242>.
 
 g 8205,] CRIMINAL—INTOXICATING LIQUOR. 2047 
 
 of its depgndeneies, occupied by the defendant at the time in questioa 
 was a place of public resort, or a place which was resorted to by 
 the general public, then the finding of intoxicating liquors there would 
 be presumptive evidence that such liquor was kept or held for sale 
 contrary to law; but this presumption of the law may be overcome 
 by other evidence appearing in the case, and, unless you find that he 
 kept a place of public resort this presumption would not arise from 
 the fact that he kept liquors there. -"^ 
 
 § 3205. Keeping for Sale of Liquors in a Club House Without 
 License, (a) The jury are instructed that if you find from the evi- 
 dence beyond a reasonable doubt that the defendant had in his 
 possession beer, as alleged in the first count, and whiskey as alleged 
 
 in the second count on or about the 17th day of June, , and that 
 
 he then had no license or druggist's permit for the sale thereof, still 
 if you believe from a consideration of all the evidence that the defend- 
 ant is the alleged keeper of liquors for sale, as charged in the first 
 and second counts of the information, was merely acting as a steward 
 or clerk of a private club which had purchased and owned such 
 liquors, the liquors being distributed by said steward or clerk only to 
 other members of the club on checks or coupons, which had been pur- 
 chased by them, and the money so obtained being used for the pur- 
 pose of paying the steward or clerk for his services, the use of the 
 room to which the members of the club and their guests had access 
 and where the liquors were kept, and other expenses of the club; 
 and if you further believe from the evidence that this club was 
 organized and conducted in good faith, with a limited and select 
 membership, as well as owning its property in common, and founded 
 for social, literary, artistic or other purposes, to which the furnish- 
 ment of liquor was merely incidental — this would satisfactorily ac- 
 count for and explain the possession of such liquors, if such posses- 
 sion is proved, and you should find the defendant not guilty on the 
 first and second counts of the information. 
 
 (b) But if you believe from the evidence that the organization of 
 the club was merely to provide its members with a convenient method 
 of obtaining a drink whenever they desired it, or if the form of the 
 organization was no more than a pretense or device to enable the 
 proprietor to conduct an unlawful traffic, then in that ease he could 
 not have satisfactorily accounted for the possession of the liquor if 
 such possession be proved in manner and form as hereinbefore ex- 
 plained to you, and you should find him guilty on the first and second 
 counts of the information.^^ 
 
 2&— State V. Fleming, 86 la. 294, ingr house, and when he does so the 
 
 53 N. W. 234 (236). finding- of intoxicatinp: liquors there 
 
 The court said: "We think this is presumptive evidence that they 
 
 instruction was authorized by sec- were kept for illeg-al sale." 
 tion 8, c. 66, Acts 21st Gen. Assem. 27— Sothman v. State, 66 Neb. 302 
 
 A person may make a place of 92 N. W. 303 (305). ' 
 
 public resort of his private dwell-
 
 2048 
 
 FORMS OF INSTRUCTIONS. 
 
 [§ 3206. 
 
 § 3206. Opening on Prohibited Days— Sales in Side or Rear Rooms 
 Unlawful. If a saloon is kept open on one of the forbidden days, 
 for any purpose, or for any business, or for any length of time, no 
 matter how short, it will be a violation of the statute. If a man, 
 renting an entire building, and occupying it, and having a saloon m 
 one room, opening into another room next back of it, on prohibited 
 days, as Sunday, admits to that room persons who call to get beer 
 and persons who call ostensibly for other purposes, and he deals out 
 beer to them in that room, I care not what he calls it — what name he 
 gives the room^and I care not where he gets his liquor from, that 
 room, to all intents and purposes, is a part of that saloon.^^ 
 
 § 3207. Order of Lictuor by an Agent is not a Sale. The court 
 charges the jui-y for the defendant, that if you believe from the 
 evidence that the witness F, got the defendant to order him the whis- 
 key from a dealer in S., and delivered it to him under such order, then 
 the defendant is not guilty, and the juiy should so find.^^ 
 
 § 3208. What Constitutes Residence District, (a) If a certain 
 part of the city, large or small, is principally and chiefly used for 
 residence purposes, families residing and having their homes therein, 
 such part of the city would not become a business portion of the city 
 merely because a grocery or other business was here and there carried 
 on therein. The decided preponderance of residences and families 
 residing therein determines the character of said portion of the eity.^'o 
 
 2S— People v. Bowkus, 109 Mich. 
 360, 67 N. W. 319. 
 
 "This last portion of the charge 
 ■was called out by a question from 
 the jury 'whether a room connected 
 to a barroom, and used as a private 
 residence room, should be consid- 
 ered as a part of the saloon under 
 the law? The latter instruction was 
 correct. Saloon keepers cannot 
 evade the law by taking liquors 
 from their saloons on a week day to 
 a room adjoining the saloon, and 
 there serve it upon Sunday with or 
 without pay. People v. Whipple, 
 108 Mich. 587, 66 N. W. 490. Under 
 the rule in People v. Minter, 59 
 Mich. 557, 26 N. W. 701, the instruc- 
 tion as to opening on forbidden 
 days may have been too strict, al- 
 though the court used the expres- 
 sion 'kept open,' implying, perhaps, 
 a different condition from that of 
 simply opening the door and enter- 
 ing for a necessary purpose. But 
 this part of the instruction could 
 not have prejudiced the respondent, 
 because he admitted serving liquoi 
 in the room." 
 
 29_waddle v. State, — Miss. — , 
 24 So. 311. 
 
 The court held that "the refusal 
 of this instruction to the de- 
 fendant is fatally erroneous, as 
 
 shown by Johnson v. State, 63 Miss. 
 228." 
 
 30— Shea v. Muncie, 148 Ind. 14, 
 46 N. E. 138 (144). 
 
 "If that is not a correct state- 
 ment of the law upon the subject, 
 then it seems to us that there is no 
 fair way of determining what is 
 meant in the statute, and the ordi- 
 nance authorized thereby in the use 
 of the words, 'residence portion of 
 such city.' Does one family groc- 
 ery in the residence portion of a 
 city convert that portion into what 
 the statute means by the words, 
 'the business portion of such 
 city?' And does one family resi- 
 dence in the business portion of a 
 city convert that part thereof into 
 a residence portion or such city? 
 Most certainly not. Because, if 
 both of these questions may be an- 
 swered in the affirmative, then It 
 will appear that in very rare in- 
 stances will any city have either a 
 business portion or a residence por- 
 tion thereof. In other words, all 
 parts of all cities will be residence 
 portions, and the same parts will 
 be business portions thereof. This 
 makes nonsense out of the lan- 
 guage of the statute and the ordi- 
 nance. The framers of the statute 
 and of the ordinance must havo
 
 § 3209.] CRIMINAIy— INTOXICATING LIQUOR. 2049 
 
 (b) A family residence in a dwelling house as a family residence 
 may furnish board and lodging to boarders who may occupy with the 
 family a part of such residence, and such use for a dwelling he use 
 will no't change the character of such dwelling froi residence t^- a 
 business house. ^^ 
 
 § 3209. Illegal Sale— Local Option, (a) It you shall believe 
 from the evidence, beyond a reasonable doubt, that the defendant, 
 
 , in this county and within one year next before the finding of 
 
 the indictment herein, sold directly or indirectly, to the witness, 
 J. A. v., spirituous, vinous, or malt liquors, in a quantity less than 
 five gallons at the time mentioned by the witness, then you ought to 
 find the defendant guilty as charged in the indictment herein and fix 
 his punishment at a fine of not less than $60 nor more than $100, 
 or at imprisonment in the county jail not less than 10 nor more than 
 40 days, or you may both so fine and imprison the defendant within 
 the above limits, at your discretion, according to the proof. And if 
 you shall believe from the evidence that he will fail to pay or replevy 
 said fine, you may, at your discretion, say that he be placed at hard 
 labor on some public road or street in the county at the rate of one 
 day for each one dollar of the fine and cost and likewise for the 
 imprisonment, if any. 
 
 (b) Or, if you shall believe from the evidence, beyond a reason- 
 able doubt, that the defendant was engaged in the sale of liquor at 
 the place mentioned in evidence, and entered into any scheme, plan, 
 device, arrangement, or subterfuge, in evasion of the local option 
 law, whereby he sold or transferred to the witness liquor mentioned 
 in the evidence for the pay or as agent for another, who received the 
 pay, within 12 months before the date of the indictment, then you 
 ought to find him guilty and fix his punishment as provided in in- 
 struction No. 1 above. ^2 
 
 had in mind the common under- 'business' is 'constant employment, 
 
 standing- of the import of the regular occupation; as the business 
 
 words or phrases used, 'business of life; business before pleasure.' 
 
 iportion,' and 'residence portion,' of In view of the general scope and 
 
 a city. And that idea was correct- intent of the statute and ordinance, 
 
 ly enough expressed in the instruc- we think the court did not err in 
 
 tion so that the jury could appre- telling the jury that keeping board- 
 
 hend it." ers in one's residence or dwelling 
 
 31 — Shea v. Muncie, 148 Ind. 14, 46 house does not convert the same 
 
 N. E. 138 (144). into a business house." 
 
 In comment the court said that 32 — Day v. Commonwealth. 29 Ky. 
 
 "Webster's definition of the word L. 807, 814, 816, 96 S. W. 508. 
 
 129
 
 CHAPTER CI. 
 CRIMINAI^-LARCENY. 
 
 See Erroneous Instructions, same chapter head. Vol. III. 
 
 § 3210. Larceny defined— Felonious 
 intent explained. 
 
 § 3211. Taking must be with felon- 
 ious intent. 
 
 5 3212. Felonious intent — Fraud — 
 Artifice— False pretenses- 
 Threats. 
 
 § 3213. Intent— Horse stealing. 
 
 § 3214. Horse stealing— What neces- 
 sary to convict. 
 
 § 3215. Finding lost property not 
 larceny— Duty to search or 
 advertise for owner. 
 
 § 3216. Finding lost property, intent 
 to convert — Concealng the 
 fact of finding. 
 
 § 3217. Elements of larceny — What 
 is necessary to prove. 
 
 § 3218. Value must be proved. 
 
 § 3219. Rule for determining the 
 value of property. 
 
 § 3220. What constitutes taking and 
 carrying away. 
 
 § 3221. Forcible taking, resistance 
 necessary. 
 
 § 3222. Taking property so suddenly 
 from the person as not to 
 allow time for resistance. 
 
 § 3223. Obtaining property by 
 
 threats to do great bodily 
 harm. 
 
 § 3224. Money must be proved to be 
 genuine. 
 
 § 3225. Ownership in an unknown 
 owner. 
 
 § 3226. Special property sufficient. 
 
 § 3227. Person having possession of 
 property must be produced. 
 
 § 3228. Name of the person injured 
 must be proved. 
 
 § 3229. Taking under a mistaken 
 claim of right. 
 
 § 3230. Larceny of estrays. 
 
 § 3231. Taking up estrays by con- 
 sent in good faith — Subse- 
 quent intent to wrongfully 
 convert. 
 
 § 3232. Larceny of different cattle, 
 belonging to different own- 
 ers, at the same time, is 
 one offense. 
 5 3233. Placing one's brand upon 
 live stock, appropriating 
 same. 
 
 § 3234. 
 
 § 3235. 
 
 § 3236. 
 § 3237. 
 § 3238, 
 § 3239. 
 § 3240. 
 
 § 3241. 
 
 § 3242. 
 § 3243. 
 
 § 3244. 
 
 § 3245. 
 
 § 3246. 
 
 § 3247. 
 § 3248. 
 § 3249. 
 
 § 3250. 
 § 3251. 
 
 Turning the stolen mare 
 loose and returning it to 
 owner would not divest 
 taking of its felonious 
 character. 
 
 Stealing of certain animals 
 is grand larceny and jury 
 cannot find defendant guilty 
 of petit larceny. 
 
 Whether petit or grand lar- 
 ceny. 
 
 When the crime of larceny 
 is completed. 
 
 Time is not of the essence 
 of the crime of larceny. 
 
 Opening a trunk left in de- 
 fendant's custody. 
 
 Appropriation of property 
 under a bill of sale and 
 possession thereunder. 
 
 Obtaining the title as well as 
 the possession by fraud is 
 not larceny. 
 
 Larceny — Fraud defined. 
 
 Inculpating circumstances to 
 show guilt — When. 
 
 Recent possession unex- 
 plained. 
 
 Recent possession of stolen 
 goods — Satisfactory ac- 
 count of possession. 
 
 Possession of stock allowed 
 to run at large — Burden of 
 explaining possession, ex- 
 ception. 
 
 Possession of stolen prop- 
 erty not with the defendant 
 — Property found in barn. 
 
 Possession of stolen prop- 
 erty — Defendant's house 
 used jointly with others. 
 
 On the charge of larceny, 
 proof of defendant having 
 bought the stolen property 
 with such knowledge, he 
 must be acquitted on 
 charge of larceny. 
 
 Possession by one who has 
 no claim — Subsequent con- 
 versation. 
 Action of replevin to recover 
 stolen property does not 
 relieve from the charge of 
 larceny. 
 
 2050
 
 § 3210.] 
 
 CRIMINAL— LARCENY. 
 
 2051 
 
 3252. Larceny — Reasonable doubt 
 
 — Burden of proof. 
 
 BECEIVING STOLEN PROPERTY. 
 
 3253. Receiving stolen property, 
 
 criminal intent must exist 
 
 at the very instant of re- 
 ceiving. 
 
 § 3254. Purchase of stolen property, 
 bona fide or sham. , 
 
 § 3255. Stolen goods left at a man's 
 house without his knowl- 
 edge. 
 
 § 3210. Larceny Defined — Felonious Intent Explained, (a) Lar- 
 ceny is the wrongful and unlawful taking and carrying or leading 
 away of a thing, without claim of right, made in good faith and 
 without the owner's consent, with the intention of permanently con- 
 verting it to a use other than that of the owner.^ 
 
 (b) Larceny is the felonious taking of the property of another 
 without the knowledge or consent of that other, and with the intent 
 of the party taking, at the time of the taking, to permanently 
 deprive the owner thereof, and with the further intent at said times 
 to wholly and permanently appropriate it to the use of the party 
 taking.^ 
 
 (c) Felonious intent means without the color of right in taking, 
 and if the defendant honestly believed at the time of the taking that 
 he had a right to take the cotton, then it is your duty to acquit him.^ 
 
 § 3211. Taking must be with Felonious Intent, (a) The court 
 instructs the juiy, that eveiy unlawful taking of the goods and chat- 
 tels of another, without his knowledge or consent, does not amount to 
 a larceny; to make it such, the taking must be such, and accom- 
 panied by such circumstances, as show a felonious intent, that is, an 
 intent to steal the property.* 
 
 (b) The court instructs the jury that every unlawful taking and 
 carrying away of the personal goods of another will not amount to 
 larceny; to constitute larceny, a felonious intent must be shown to 
 have accompanied the original taking; that is, the goods must have 
 been taken with an intent to steal the same.^ 
 
 (c) You are instructed that it is not every taking and carrying 
 •away of the property of another that will constitute a larceny, but a 
 felonious intent must be shown to have accompanied the taking, and 
 
 1— Philamalee v. State, 58 Neb. 
 320, 78 N. TV. 625 (626). 
 
 "In this instruction the court told 
 the jury that, to constitute larceny, 
 the taking must not only have 
 been wrongful and unlawful, but 
 'without a claim of right, made in 
 good faith, and without the own- 
 er's consent.' This definition is 
 clearly within the rule announced 
 in the following cases. Thompson 
 V. People, 4 Neb. 524; Mead v. 
 State, 25 Neb. 444, 41 N. W. 277; 
 Waidley v. State, 34 Neb. 250, 51 
 N. W. 830; Barnes v. State, 40 Neb. 
 545, 59 N. W. 125; Carrall v. State, 
 53 Neb. 431, 73 N. W. 939." 
 
 2— State v. Minor, 107 la. 656, 77 
 N. W. 330 (331). 
 
 "The virtue of this instruction," 
 said the Sunreme Court, "is in ex- 
 plaining to the jury just what con- 
 stitutes the felonious intent in tak- 
 ing, without employing that word 
 in doing so. See Georgia v. Kep- 
 ford, 45 la. 51." 
 
 3— State V. Sims, 107 La. 188. 31 
 So. 645. 
 
 4 — Mason v. State, 32 Ark. 238; 
 Hart V. State, 57 Ind. 102; Com. v. 
 Hurd, 123 Mass. 438. 
 
 5— State V. Wood, 46 la. 116; 
 Humphrey v. State, 63 Ind. 223.
 
 2052 FORMS OF INSTRUCTIONS. [§ 3212. 
 
 in determining such intent they had a right to take into 'consideration 
 all the testimony and circumstances bearing upon that matter. ** 
 
 § 3212. Felonious Intent — Fraud — Artifice — False Pretenses — 
 Threats. While the felonious intent may be found from a secret 
 taking, it may be found from an open taking, provided, for instance, 
 that it may be by deception, artifice or fraud. If the title to the 
 property as well as the possession of the property be obtained by 
 deception, artifice, or fraud, this will not be larceny, because the 
 owner parted with the title as well as the possession. The crime may 
 be obtaining goods under false pretenses, but it is not larceny. If 
 the possession of property of another to which the taker has no 
 claim be obtained openly, but by deception, artifice, or fraud, designed 
 by the taker to secure the possession of the goods of another to which 
 he has no claim, and no honest belief in such a claim, and they be 
 subsequently converted to the use of the taker, the jury would be 
 justified in finding that the taking was with felonious intent, and the 
 crime of larceny committed. * * * Threats which will be re- 
 garded as effective in the eye of the law to cause a degree of fear 
 depriving the owner of property of his consent to its taking will be 
 threats of personal violence — either danger to life or great bodily 
 harm. * * * The compulsion of the payment of a valid claim, 
 or one believed to be valid, by threat to bring civil suit and attach, 
 thus causing fear, and inducing as a result of the fear the payment 
 of the money, is not larceny. The compulsion of the payment of 
 money not owed, and which the taker knows is not owed, by threats 
 to bring civil suit and attach, causing fear, under the influence of 
 which the money is paid, is not larceny. The threat made which 
 induced the fear which caused the money to be paid must be a-, threat 
 which it was apprehended would speedily be put in execution, and, 
 under the influence of a fear of its speedy execution, the money was 
 paid over. The money must have been paid under the influence of 
 fear of great bodily harm to be speedily caused by the taker.^ 
 
 § 3213. Intent — Horse-Stealing. In order to constitute larceny, 
 the taking must be with the intent, at the time of such taking, to 
 convert permanently to his own use thereof; and if the defendant in 
 this ease took the mare in question for the purpose of riding her 
 home, and without the intention of retaining the said mare, and 
 
 6— State v. Meldrum, 41 Ore. 380, would not be guilty as charged, 
 
 70 Pac. 526. and should be acquitted,' and that 
 
 In State v. Sally, 41 Ore. 366, 70 it was incumbent upon the state to 
 
 Pac. 396, the jury was instructed establish to the satisfaction of the 
 
 that the intent to convert the ani- jury, beyond a reasonable doubt, 
 
 mal to his own use, knowing- that it that the defendant took the same 
 
 was not his, is the gist of this of- with felonious intent, and unless 
 
 fense. such facts are established to your 
 
 The court said that if defendant satisfaction, beyond a reasonable 
 
 took the animal "which he is doubt, you will find the defendant 
 
 charged with stealing, 'honestly be- not guilty." 
 
 lieving.'and had reason to believe, 7 — State v. Kallaher, 70 Conn. 398, 
 
 and did believe it to be the prop- 39 Atl. 606 (608), 66 Am. St. 116. 
 erty of S. then the defendant
 
 § 3214.] CRIMINAL— LARCENY. 2053 
 
 converting her permanently to his own use, then he is not guilty of 
 larceny, and you will acquit him.'* 
 
 § 3214. Horse Stealing — What Necessary to Convict, (a) In or- 
 der to convict in this case, it devolves upon the state to show and 
 prove by the evidence beyond a reasonable doubt that the defendant, 
 at the time and place charged in the indictment, did take, steal, and 
 carry away the mare charged in the indictment, with the intent to 
 convert said mare pennanently to his own use, and to deprive the 
 owner permanently of the use thereof, and that at the time of such 
 taking the mare was the property of L. W. S., and of some value; 
 and, unless the state has so shown, you will find him not guilty.^ 
 
 (b) Gentlemen of the jurj', if you find beyond a reasonable doubt 
 
 from the testimony in this case that the defendant, , at the time 
 
 alleged in the indictment, or about that time within three years next 
 before the finding of the indictment, conspired with others or com- 
 bined with others and got up any kind of a writing, an order or affi- 
 davit, and presented the party who had possession of this horse, 
 claiming that was his horse, and put in this proof that it was his 
 horse and by means of the papers shown by the defendant that T. 
 went to the field and brought the horse up to him and he put a rope 
 around the hoi-se's neck, claiming the horse was his own, and if you 
 find he did this, I instruct that you find him guilty of the larceny of 
 the horse. ^^ 
 
 § 3215. Finding Lost Property Not Larceny — Duty to Search or 
 Advertise for Owner, (a) The jury is instructed that the finder of 
 lost property is not bound to make any search for the owner. He is 
 under no legal obligation to advertise it in a newspaper or to search 
 the papers to see if the loss has been advertised. And, although the 
 jury may believe, from the evidence, that the said A. B. lost the 
 property mentioned in the indictment, and that the defendant found 
 the same, and afterwards converted it to his own use, still, if you 
 further believe from the evidence that at the time he so found it there 
 was nothing in the nature of the property, or in the circumstances 
 under which it was found, to indicate to the defendant who the 
 owner was, or where he could be ascertained, and that the defendant, 
 at the time he found the property did not intend to steal the same, 
 then you should find him not guilty although you may believe that 
 he afterwards purposely concealed the fact that he had found the 
 property and converted it to his own use.^^ 
 
 (b) The law is that if a man finds goods that are actually lost or 
 are reasonably supposed by him to have been lost, and he appropriates 
 them to his own use with intent to take entire dominion over them 
 
 8— State v. Weber, 156 Mo. 249, 56 10— Georgre v. United States, — 
 
 S. W. 729. Ind. Ter.— , 89 S. W. 1122. 
 
 9— State v. Weber, 156 Mo. 249, 56 11— Brooks v. State, 35 Ohio St. 
 
 S. W. 729 (730). 46.
 
 2054 FORMS OF INSTRUCTIONS. [§ 3216. 
 
 as his own, this is not larceny, provided he believes, and has good 
 reason to believe, that the oAvner cannot be found. ^^ 
 
 § 3216. Finding Lost Property, Intent to Convert — Concealing the 
 Fact of Finding, (a) The court instructs the juiy that it is not 
 necessaiy to the conviction of the defendant that he should have 
 known, or have had reason to believe he knew, the particular person 
 who owned the property at the time of the alleged finding; or that 
 he should have had the means of identifying the owner immediately, 
 at that time. If the jury believe from the evidence beyond a reason- 
 able doubt that the prosecuting witness A. B. was the owner of the 
 property described in the indictment, and that the defendant found 
 the same, and that at the time of the finding he had reasonable ground 
 to believe, from the nature of the property, or from the circumstance 
 under which he found it, that if he did not conceal the fact that he 
 had found it, but dealt honestly with it, the owner would appear or 
 be ascertained, then, if he pui'posely concealed the fact that he had 
 found the property, he would be guilty of larceny; provided, the jury 
 further believe from the evidence that at the time the defendant first 
 took the property into his possession he intended to convert it to his 
 own use.i^ 
 
 (b) You are instructed, first, that to render the finder of lost 
 property guilty of larceny in appropriating it to his use, it is 
 necessary that he find it under circumstances which give him knowl- 
 edge or means of inquiry as to the true owner. Second, that there 
 must exist, on the part of the finder, both the belief that the owner 
 can be found and the intent to deprive him of his property at the 
 time of the finding.^* 
 
 § 3217. Elements of Larceny — What is Necessary to Prove. You 
 are further instructed that before you can find the defendants, or 
 either of them, guilty, the Territory must prove to your satisfaction, 
 beyond a reasonable doubt, the following propositions : First, that 
 the property charged in the indictment, or some part of the same, was 
 taken; second, that it was taken either by fraud or stealth, or by 
 both fraud and stealth ; third, that it was the property of C. H. R. 
 and L. W. R. or one of them; fourth, that it was taken with the 
 felonious intent to deprive the owners thereof; fifth, that the de- 
 fendants were the persons who took the property.^^ 
 
 12— Baker v. State, 29 Ohio St. stealth, or by fraud and stealth, 
 
 184, 23 Am. Rep. 731, 2 Am. Cr. was, we think, correct. If it was 
 
 Rep. 337. so taken, the crime as defined by 
 
 13 — Brooks v. State, 35 Ohio St. the statute was committed, and 
 
 46. mig-ht be proved under the indict- 
 
 14 — State V. Hoshaw, 89 Minn, ment charging- that property was 
 
 307, 94 N. W. 873. taken by fraud and stealth. The 
 
 15 — Flohr V. Territory, 14 Okla. indictment could not charge the 
 
 477, 78 Pac. 565 (574). crime in the exact language of the 
 
 The court held in comment that statute, to wit, that it was taken 
 this charge of the court, "that be- by fraud or stealth, as such Ian- 
 fore the jury could find the defend- pruage would not charge that it 
 ants, or either of them, guilty, they was taken in either manner. We 
 must find that the property stolen have heretofore sufficiently noted 
 ■was taken either by fraud or this distinction."
 
 § 3218.] CRIMINAL— LARCENY. 2055 
 
 § 3218. Value Must be Proved. That among the material aver- 
 ments contained in the indictment necessary to be proved in order 
 to wari'ant a conviction, is the one that the property alleged to have 
 been stolen had some value, and if the prosecution have failed to 
 prove, affii-matively, some value to said property, then it is the duty 
 of the jury to acquit the accused. A simple statement of counsel as 
 to the value of the property will not suffice; it must be proved in 
 some of the ways known to the law, or the verdict should be not 
 guilty.i« 
 
 § 3219. Eule for Determining the Value of Property, (a) The 
 court further instructs the jury, as a matter of law, if they find the 
 defendant guilty of the larceny, as charged in the indictment, it will 
 then be their duty to find, from the evidence in the ease, the value 
 of the property stolen, and to state such value, as found in their 
 verdict; and if, after a careful consideration of all the evidence in 
 the case, the jury have a reasonable doubt arising from all the evi- 
 dence as to the value of such property being greater than twenty 
 dollars (Iowa), it will be their duty under the law to find the value 
 to be twenty dollars, or less, as shown by the evidence.^^ 
 
 (b) If you find the defendant guilty, you will determine by your 
 verdict, under the evidence and these instnictions, the value of the 
 property, or what it was worth in the market. ^^ 
 
 § 3220. What Constitutes Taking and Carrying Away. To con- 
 stitute larceny there must be a felonious taking and carrying away 
 of the property mentioned in the indictment or some part of it, but 
 it is not necessary that the property should be carried or removed to 
 any particular distance from the place where it is taken, and in this 
 case, if the jury believe, from the evidence, beyond a reasonable 
 doubt, that the defendant took the property mentioned in the indict- 
 ment or any part of it from the place where it was left by the 
 owner and concealed the same (in the same room or building) with 
 intent to steal the property so taken, this would be a sufficient taking 
 and carrying away of the property to constitute the crime of larceny.^^ 
 
 16 — State v. Krieger, 68 Mo. 98. tablish beyond a reasonable doubt 
 
 17 — state V. Wood, 46 la. 116; each material averment in the in- 
 State V. McCarty, 34 N. W. 606. formation. The jury therefore were 
 
 18_Ford V. State, 46 Neb. 390, 64 fully informed by the court that 
 
 N. W. 1082 (1085). the value of the property must be 
 
 "By this instruction, the jury establshed beyond a reasonable 
 were told to fix the value of the doubt. Instructions must be con- 
 ring in case a verdict of guilty was strued together, and if, when con- 
 returned, at what it would bring, sidered as a whole, they properly 
 or was worth in the market. This state the law, it is sufficient. St. 
 doubtless was the correct rule. It Louis v. State, 8 Neb. 406, 1 N. W. 
 is true the instruction does not 371; Murphy v. State, 15 Neb. 383, 
 state whether the value was to b© 19 N. W. 489." 
 
 determined by a preponderance of 19— Nutzel v. State, 60 Ga. 264; 
 
 the evidence, or beyond a reason- State v. Green, 81 N. C. 560. 
 
 able doubt; but this point was cov- "What Constitutes Asportation of a 
 
 ered by the second instruction, by Horse, 
 
 which the jury were told that the If you find from the testimony, 
 
 burden was upon the state to es- If you believe from the testimony
 
 2056 FORMS OF INSTRUCTIONS. [§3221. 
 
 § 3221. Forcible Taking, Resistance Necessary, (a) Unless you 
 are convinced from the evidence to a moral certainty and beyond any 
 reasonable doubt, that in K. County, State of Washington, during 
 
 the month of January, , and on or about the 10th day of said 
 
 month, defendants forcibly took from the person of the prosecuting 
 witness. A., at least some of the lawful money of the United States 
 mentioned in the information, and that said money, if such there 
 actually was, was the money of said A. and that defendants then and 
 there forcibly took the same with the intent to convert the same to 
 their own use, against the will of said A. then your verdict must be 
 for defendants, that is, not guilty. 
 
 (b) If the jury believe from the evidence that there was no 
 offense in this cause on the part of defendants other than the mere 
 stealing of money or snatching the same from the person of A., with- 
 out resistance on his part, then your verdict will be for defendants. 
 Unless witness A. resisted the efforts of the defendants to get his 
 money, if such effort there was, and such resistance was overcome 
 by force, there must be no conviction in this case.^" 
 
 § 3222. Taking Property so Suddenly From the Person as Not to 
 Allow Time for Resistance. The theft must be committed without 
 the knowledge of the person from whom the property is taken, or so 
 suddenly as not to allow time to make resistance before the property 
 is carried away. Now, if you believe from the evidence in this case, 
 beyond a reasonable doubt, that defendant, B. M., , . . did fx-aud- 
 ulently and privately take from the person and possession of L. R, 
 
 that witness T. voluntarily went horse was moved. If the testimony 
 and got the horse and he was not of the witnesses was that he, the 
 induced to do this by the repre- defendant, led the horse before he 
 sentation of the defendant, then was arrested, if you believe beyond 
 his going and getting it would not a reasonable doubt that this is 
 be the act of the defendant in true, that is a sufficient carrying 
 going and getting it. Under that away of the horse to satisfy the 
 state of facts it would be neces- part of the law that we call aspor- 
 sary for the defendant to take tation, regardless of going after the 
 charge of the horse and move it, horse and bringing it. Larceny, 
 and if you find from the testimony among other things consists of 
 that he put his rope on the horse the unlawful taking without the 
 and led him one step that would consent of the owner, and the wit- 
 satisfy the part of the law called ness T. in this case, knew the horse 
 asportation. If T. was induced to did not belong to the defendant, 
 go and get the horse, if this man and under the law T. was bailee of 
 sent T. after it by showing the the owner of the horse, and if he 
 papers and claiming he was the turned the horse over to the de- 
 owner of it and T. went and got fendant, at the time not believing 
 the horse and brought it to him, the defendant was the owner of the 
 then that is sufficient asportation horse but for the purpose of letting 
 of taking and carrying the horse, the posse man have an opportunity 
 but, if the evidence does not satis- to arrest the defendant, then the 
 fy beyond a reasonable doubt that defendant would not be guilty of 
 T. was so induced to do this by the the crime of larceny, 
 representation of this defendant Approved in George v. T'^nit'^d 
 and the producing this order or af- States, — Ind. Tcr. — , 89 S. W. 
 fidavit, then in order to perfect 1122. 
 
 the larceny it would be necessary 20 — Stnte v. Johnson, 19 Wash, 
 
 that after this he, the defendant, 410, 53 Pac. 667 (668). 
 took charge of the horse and the
 
 § 3223.] CRIMINAL— LARCENY. 2057 
 
 one dollar, described in the indictment, without the consent of the 
 said L. R., and so suddenly as not to allow time 'to make resistance 
 before the property was carried away, with the intent, etc.^^ 
 
 § 3223. Obtaining Property by Threats to do Great Bodily Harm. 
 If the juiy find that K. secured this money by a threat to bring a 
 civil suit, or by representations that the papers had been placed in 
 the hands of the sheriff, and this was the only threat, no matter 
 whether he believed in his claim or not, he should be acquitted.-^ 
 
 § 3224. Money Must be Proved to be Genuine. The jury are in- 
 stmcted, that to warrant a conviction under this indictment, the 
 jury must believe, from the evidence, that one or more of the treasury 
 notes, bank bills or other money, alleged to have been taken by the 
 defendant, was a genuine bill or note ; and if the juiy find that the 
 people have failed to pi-oduce any proof of the genuineness of such 
 treasuiy note, bank bill or other money, and that there is no such 
 evidence before the jury, then the juiy should find the defendant not 
 guilty.-3 
 
 § 3225. Ownership in an Unknown Owner. The court charges 
 you that, in order for the state to convict under the count alleging 
 ownership in an unknown owner, they must establish and prove that 
 some specific cattle was taken from the possession of the said un- 
 known owner. It is not sufficient that the animal found in the 
 possession of the defendant was unknown, but the state must identify 
 it as the one taken out of the possession of such unknown owner, 
 and, unless it does so, you must acquit upon said first count. ^^ 
 
 § 3226. Special Property Sufficient. As to the ownership of the 
 property, the court instructs the jury, that if the said C. D. had the 
 actual care, custody and right to use the said (horse), and was in 
 the actual possession at the time of the alleged taking, not as the 
 agent or servant of the real owner, this would be, for the purposes 
 of this trial, sufficient evidence of ownership to sustain the allegation 
 in the indictment, that he was the owner.^^ 
 
 § 3227. Person Having Possession of Property Must be Produced. 
 It is a rule of law, that when jaroperty is, by the ownei', placed in 
 
 21 — Mathis v. State, — Tex. Cr. sion of an issue not suggested by 
 
 App. — , 65 S. W. 523, citing 40 Tex. tiie evidence. McLin v. State, 29 
 
 316. 50 S. W. 368; State v. Ander- Tex. App. 171, 15 S. W. 600. 
 
 son, 59 S. C. 229, 37 S. E. 820 (821). "But the offense defined by the 
 
 "The charge, properly con- statute of privately stealing is the 
 
 strued," said the court, "simply taking of property so suddenly 
 
 authorized the conviction upon the from the person as not to allow 
 
 last portion of subdivision 2 of ar- time to make resistance before the 
 
 tide 880, Pen. Code, to wit, the same is carried away." 
 
 jury must believe that the private 22 — State v. Kallaher, 70 Conn, 
 
 theft consisted of taking the dollar 398, 39 Atl. 606, 66 Am. St. 116. 
 
 so suddenly as not to allow time to 23 — Collins v. People, 39 111. 233. 
 
 make resistance before it was car- 24 — Melton v. State, — Tex. Cr. 
 
 ried away. Of course, if the prop- App. — , 56 S. W. 67. 
 
 osltion contended for by defendant 25 — Crockett v. State, 5 Tex. App. 
 
 was true, according to the facts in 526. 
 this case, it would be the submis-
 
 2058 FORMS OF INSTRUCTIONS. [§ 3228. 
 
 the care and custody and under the control of another, and such 
 property is alleged to have been stolen from the possession of such 
 other person, then, if it is in the power of the prosecution to produce 
 the person, so having such possession, as a witness, he must be 
 produced, in order to show that the property was not taken with his 
 consent; and, in such ease, the evidence of such person cannot be 
 supplied by other proof, nor can the accused be convicted without it.^' 
 
 § 3228. Name of the Person Injured Must be Proved, (a) The 
 court instructs the jury that it is essential in all criminal prosecu- 
 tions, that the name of the party injured should be proved, as 
 charged in the indictment; and, if the proof shows in this ease, that 
 the property stolen belonged to C. B. and not to A. B., as charged 
 in the indictment, the jury must acquit the defendant. 
 
 (b) It is necessary for the prosecution to prove the ownership 
 of the property, as alleged in the indictment; and, unless the jury 
 believe from the evidence that the said A. B. was the owner of the 
 (horse), mentioned in the indictment, the jury must find the de- 
 fendant not guilty.2'^ 
 
 (e) The court instructs the jury that, before the state can legally 
 secure the conviction of defendant, it must be established by evi- 
 dence satisfactory to the jury, beyond a reasonable doubt, that the 
 one hog alleged to have been stolen was the property of X. at the 
 time it was taken, if it was, and if the evidence or want of evidence 
 raises in your mind a reasonable doubt whether or not said one hog 
 described in the indictment belonged to X. at the time it was taken, 
 if it was, then you should acquit the defendant.^^ 
 
 § 3229. Taking Under a Mistaken Claim of Right, (a) You are 
 instructed that if this defendant took this horse under a claim of 
 right, and you find a fair pretense for so taking said horse, it is your 
 duty to acquit this defendant, though you may find he was mistaken 
 in his claim to said horse.^^ 
 
 (b) The jury are instructed, that although they may believe from 
 the evidence, beyond a reasonable doubt, that the defendant took and 
 carried away the property in question, as charged in the indictment, 
 
 26 — State v. Osborne, 28 la. 9. with sufficient certainty in other 
 
 27 — McBride v. Com., 13 Busli. respects to identify the act of lar- 
 
 (Ky.) 337; Robinson v. State, 5 Tex. ceny, but find that the property 
 
 App. 519. taken all belonged to H. R. indi- 
 
 28— Hull v. State, — Tex. Cr. App. vidually, or that some of the prop- 
 
 — , 80 S. W. 380. erty belonged to W. R. individual- 
 
 In Flohr v. Territory, 14 Okla. ly, or that some of the property 
 
 477. 78 Pac. 565 (573), a variance be- belonged to H. R. individually and 
 
 tween the allegation of ownership some of it to H. R. and W. R. 
 
 set out in the indictment and the jointly, then the variance between 
 
 proof was held immaterial: the allegation in the indictment as 
 
 The court instructs the jury that to the ownership of the property 
 
 the indictments in this case charges alleged to have been stolen and the 
 
 the property which is alleged to ownership as shown by the evi- 
 
 have been stolen as belonging to dence is not material. 
 
 H. R. find W. R. If you find from 29— State v. Eubank, 33 Wash, 
 
 the evidence, beyond a reasonable 293, 74 Pac. 378 (380). 
 doubt, that the offense is described
 
 § 3230.] CRIMINAL— LARCENY. 2059 
 
 still, if they further believe, fi-om the evidence, that the defendant 
 took the property under a claim of title honestly entertained, then he 
 is not guilty of larceny; and, in such case, it makes no difference 
 whether he did, in fact, have any legal right to the possession of the 
 property or not.^'' 
 
 (c) The court institicts the jury that if the evidence fails to show 
 that defendant believed the property at the time of taking was not 
 the property of F. L. D., you will find defendant not guilty.^^ 
 
 (d) You are instructed that if you believe from the evidence that 
 the defendant really and bona fide believed that the property which 
 he is charged of having stolen was his, or that he had a right to 
 remove same at the time of such taking, then your verdict will be for 
 the defendant; and it makes no difference whether or not such right 
 did in fact exist.^^ 
 
 (e) The juiy ai^e instructed that if they believe from all the evi- 
 dence before them, beyond a reasonable doubt, that the one hog 
 
 described in the indictment belonged to at the time defendant 
 
 took it, if he did, and if they further believe from the evidence that 
 at the time defendant took said animal, if he did, he did so under a 
 claim of right, and that he honestly believed said animal belonged to 
 him, and, so believing, if he did, took said animal into his possession 
 in good faith, and afterwards brought said animal to K. and sold it, 
 then, if such are the facts, defendant would not be guilty of theft, 
 and you should acquit the defendant.^^ 
 
 (f) The jury are instructed that no man can commit theft of his 
 own property, and if you should find that T. E. R. owned the animals 
 charged to have been stolen, or if you find that he believed they 
 were his at the time he took them, then it was not theft, although you 
 may believe under the evidence, that they were not his in fact ; and 
 if you have a reasonable doubt of this you will acquit the defendant.^* 
 
 § 3230. Larceny of Estrays. (a) If the jury find, from the evi- 
 dence, bej'ond a reasonable doubt, that the animal mentioned in 
 the indictment was an estray, and that the defendant took it into 
 his possession, or found it running with his stock and took care of 
 and fed it with his own stock, and that when he first got it into 
 has possession he did not intend to steal it or feloniously convert it 
 to his own use, then he would not be guilty of the crime of larceny, 
 although you may find, from the evidence, beyond a reasonable doubt, 
 that he afterwards killed the animal and converted it to his own 
 use, with intent to deprive the owner of it.^^ 
 
 30— State v. Bond, 8 Clarke (la.) whether or not he believed he had 
 
 540. a right to take the cattle, they 
 
 31 — Darnell v. State, 43 Tex. Cr. should acquit. 
 
 App. 86, 631 (632). 33— Hull v. State, — Tex. Cr. 
 
 32— Meerschat v. State, — Tex. Apn. — . 80 S. W. 380. 
 
 Cr. App. — , 57 S. W. 955. 34— Steed v. State, 43 Tex. 567, 67 
 
 In Reese v. State, 44 Tex. Cr. S. W. 328 (331). 
 
 App. 34, 68 S. W. 283 (285), the 35— Starch v. State, 63 Ind. 283; 
 
 court instructed the jury that if Gripgs v. State, 58 Ala. 425, 29 Am. 
 
 they had a reasonable doubt as to Rep. 762 n.
 
 2060 FORMS OF INSTRUCTIONS. [§ 3231. 
 
 (b) If the jury believe, from the evidence, beyond a reasonable 
 doubt, that the defendant took the animal mentioned in the indict- 
 ment into his possession while the same was running in the public 
 highway, and that at the time he so took the animal he knew it 
 was not his own, and that he intended then to steal and convert it 
 to his own use and to deprive the owner of his property, whoever 
 he might be, and that in pursuance of such intention he afterwards 
 killed the animal and converted it to his own use, this would amount 
 to the crime of larceny; provided, you find all the other allegations 
 of the indictment proved, by the evidence, beyond a reasonable 
 doubt.^^ 
 
 § 3231. Taking up Estrays by Consent in Good Faith — Subsequent 
 Intent to Wrongfully Convert, The jury are instructed that if you 
 believe from the evidence that the owners of the mare alleged to 
 have been stolen authorized the defendant to take her up and hold 
 her for them, and the defendant took her up in good faith for that 
 purpose, and held her for the owners, he is not guilty. That if she 
 was taken from the range by agi'eement or consent of the owners, 
 in good faith, with an intent to return her to them, a subsequently 
 conceived intention by defendant to wrongfully convert her to his 
 own use would not constitute larceny, and he should be acquitted ; 
 but, if he took her with a felonious intent to appropriate her to 
 his own use, he would not be guilty, although the owners may have 
 authorized or requested him to take her up for him.^^ 
 
 § 3232. Larceny of Different Cattle, Belonging to Different Own- 
 ers, at the Same Time, is One Offense. You are charged that, in 
 order to sustain said plea, you must be satisfied fi'om the evidence 
 that the offense for which defendant was formerly convicted was 
 one and the same transaction, and occurred at one and the same time 
 and pLace, as the offense for which he is now on trial. The stealing 
 of different cattle, belonging to different persons, at the same time 
 and place, so that the prosecution is the same, is but one offense, 
 etc.^** 
 
 § 3233. Placing One's Brand Upon Live Stock, Appropriating 
 Same, It is claimed on the part of the state that the defendant on 
 or about that date, in this county or state, took this property and 
 appropriated it to his own use by fraud or stealth, with intent to 
 deprive the owner thereof. I will say to you that the placing of 
 one's brand upon property, and taking the property into his posses- 
 sion and putting it into his pasture, is prima facie evidence that he 
 intends to appropriate it and has appropriated it. So the question for 
 this jury, and probably the main question, will be, who was the owner 
 of this colt?39 
 
 36— Ptarr^h v. State. 63 Ind. 283; 38— Stevens v. State, 42 Tex. Cr. 
 
 State V. Martin, 28 Mo. 530; Com. Apr. 151. 58 S. W. 96. 59 S. W. 545. 
 
 V. Mason, 105 Mass. 163, 7 Am. 39 -State v. Bjelkstrom, — S. D. 
 
 Rep. 507. — , 104 N. W. 481. 
 
 37 — State v. Meldrum, 41 Ore. "It is insisted on the part of the 
 
 380, 70 Pac. 526 (528). accused that this instruction in ef-
 
 § 3234.] CRIMINAL—LARCENY. 2061 
 
 § 3234. Turning the Stolen Mare Loose and Returning it to Owner 
 Would Not Divest Taking of its Felonious Character, (a) The court 
 instructs the jury that if you believe and hnd from the evidence that 
 the defendant, at and in the county of Dent, and state of Missouri, 
 
 in the month of , 19—, did willfully and feloniously ^ steal, 
 
 take, and carry away one bay mare, the same charged in the indict- 
 ment, with the intent at the time to convert the said mare perma- 
 nently to his own use, and to deprive the owner permanently of the 
 use thereof; and if you further believe and find from the evidence 
 that at the time of such taking, if you find it was so taken, the said 
 mare was the property of W., and of any value whatever— you will 
 find him gnilty of grand larceny, and assess his punishment at im- 
 prisonment in the state penitentiary for a tenn not less than two nor 
 more than seven years. 
 
 (b) If you believe and find from the evidence that the defendant 
 took the mare at the time and place charged in the indictment, with 
 the intent at the time of such taking to convert her permanently to 
 his own use, and to deprive the owner pennanently of the use 
 thereof, and that the said mare was the property of W. and of some 
 value, then the fact that the defendant turned the said mare loose 
 would not divest such taking of its felonious character, but in such 
 case he would be guilty of larceny, notwithstanding that he turned 
 the said mare loose, and it was returned to the owner.*" 
 
 § 3235. Stealing of Certain Animals is Grand Larceny and Jury 
 Cannot Find Defendant Guilty of Petit Larceny. It will be 
 noticed from the definition of grand larceny that everj' felonious 
 stealing, taking and driving away of cows, steers, bulls and calves is 
 grand larceny, regardless of the value of the property taken; and 
 in this case as there is no evidence of anything other than calves, 
 cows, steers and bulls having been taken, you would not be at liberty 
 to find the defendant guilty of petit larceny, but your verdict must 
 be guilty of grand larceny, if you should believe from the evidence 
 beyond a reasonable doubt, and to a moral certainty, that the de- 
 fendant, as charged in the infonnation did steal feloniously, a cow, 
 steer bull or calf, or if you should upon this proposition have a 
 reasonable doubt of the guilt of the defendant, your verdict should 
 be not guilty." 
 
 § 3236. Whether Petit or Grand Larceny. Under our statute there 
 are two degrees of larceny, namely, grand larceny and petit larceny, 
 
 f^r,+ tr>r,ir from the 1urv the ques- neous; but, read in connection with 
 
 tfon of Sitent and the question of other portions of the charge siibse- 
 
 StakeJnThe part of the accused, quently given to the jury, it is 
 
 ^nd thereby invaded the province clear that this apparent error could 
 
 of^^thrSry."^ Tne latter part of in- not ha^;e in any manner prejudiced
 
 2062 FORMS OF INSTRUCTIONS. [§ 3237. 
 
 and within the charge contained in the indictment in this case is 
 included the lesser degree of petit larceny. If you find from the evi- 
 dence, beyond a reasonable doubt, that the defendant did take, steal, 
 and carry away the property described in the indictment, with the 
 intent to deprive the owner thereof, and you further find, beyond a 
 reasonable doubt, that the value of the property was more than $20, 
 then you should find the defendant guilty of gi-ahd larceny as charged 
 in the indictment. But, if you should find that the defendant did take, 
 steal, and cany away the property charged in the indictment, with 
 the intent to deprive the owner thereof, and the evidence fails to 
 show beyond a reasonable doubt that the value of the property was 
 more than $20, then you can only find the defendant guilty of petit 
 larceny.^2 
 
 § 3237. When the Crime of Larceny is Completed. If the offense 
 of theft was committed as alleged, the offense was complete at the 
 time the hog was taken in its accustomed range, if it was so taken; 
 and if defendant was guilty as principal, as above defined, in the 
 original taking, under the circumstances making it theft, he would 
 not be relieved from punishment by reason of his failure to aid in 
 bringing the hog to the town of Crockett after such taking, if any.^^ 
 
 § 3238. Time is Not of the Essence of the Crime of Larceny. Time 
 is not what we term of the essence of a crime when a theft or other 
 criminal offense is said to have been committed at a certain time. 
 The gist of the charge does not consist in proving that it was done 
 at the exact time laid in the indictment. The gist is whether or not 
 the crime as alleged was committed, and, if the state proves that it 
 was committed at any time — the particular charge contained in the 
 indictment prior to the finding of the true bill — that would be suffi- 
 cient; but the state must prove the charge as contained in the indict- 
 ment. It is not necessary, and the state is not required, to prove the 
 exact time laid in the indictment ; but, still, it must prove that 
 substantial charge as having been committed at some date, certainly 
 before the finding of the true bill.** 
 
 § 3239. Opening a Trunk Left in Defendants' Custody. You are 
 further instructed that if you find from the evidence that R. went 
 to the house of the defendants dui'ing the month of , 19 — , 
 
 42— Blair v. Territory, 15 Okla. 549, state all of the law of the case in 
 
 82 Pac. 653 (654). one instruction, and where an in- 
 
 "This charge fully covered the struction given simply omits a 
 omission in the otl. 2r, and when proposition Avhich it should contain, 
 taken together are not open to ob- and that proposition is clearly and 
 jection. Counsel cite in support of specifically set out in another in- 
 their objection several cases which struction, and together they em- 
 hold that the giving of an erron- brace the law applicable to the 
 eous instruction is not cured by case and do not conflict, we can see 
 giving another which correctly no cause for complaint." 
 states the law. We concede the 43 — Newberry v. State, — Tex. 
 correctness of that proposition but Cr. App. — , 74 S. W. 774 (776). 
 this case does not fall within that 44— Rtnte v. Reynolds, 48 S. C. 
 rule. A court is not required to 384, 26 S. E. 679.
 
 § 3240.] CRIMINAL— LARCENY. 2063 
 
 taking with them a part of the property described in the iadict- 
 ment, and when they left the premises of the defendants that they 
 left such property in their trunks, and in the care and custody of the 
 defendants, and you further find from the evidence that, after R. and 
 his wife had left the place of the defendants, that the defendants, or 
 either of them, opened the trunk so left in their care and custody, 
 and took the property therefrom with the felonious intent to deprive 
 the owners thereof, then the defendants, or one of them, that took 
 such property under the circumstances above stated, is guilty of 
 larceny, and you should so find.*^ 
 
 § 3240. Appropriation of Property Under a Bill of Sale and Pos- 
 session Thereunder. You are instructed that if you believe that to 
 secure a debt there was made and executed to the defendant a bill 
 of sale of the drug stock and the fixtures, and that the key to the 
 drug store wherein such property was, was turned over to the de- 
 fendants, or either of them, because of their having such bill of sale 
 as security for their claim, and in order to place them in possession 
 of the property upon which they had the bill of sale, and in order 
 to give them possession under their lien, then in such a case the 
 defendants could not be found guilty of larceny for the misappro- 
 priation of property coming into their hands under such circum- 
 stances.''^ 
 
 § 3241. Obtaining the Title as Well as the Possession by Fraud is 
 Not Larceny. The court instructs you that if the title to the prop- 
 erty, as well as the possession of the property, be obtained by decep- 
 tion, artifice, or fraud, this will not be larceny, because the owner 
 parted with the title as well as the possession. The crime may be 
 obtaining goods under false pretenses, but it is not larceny.*'' 
 
 § 3242. Larceny — Fraud Defined. Fraud within the meaning of 
 the statute on larceny, is the getting possession of property by 
 means of falsehood, deception or artifice. The meaning of the word 
 "stealth," as applied to larceny, is the taking of property secretly 
 and without the knowledge or consent of the owner.*** 
 
 § 3243. Inculpating Circumstances to Show Guilt — When. But if 
 you believe from the evidence in this case, and find there was any 
 evidence upon that question, that the defendant, without any infor- 
 mation from any one else, pointed out the places where the tools 
 were found, and they were the tools that were used in wrecking the 
 train, that would be an inculpating circumstance that you might 
 consider in this case with reference to his guilt, in connection with 
 other evidence.*^ 
 
 § 3244. Recent Possession Unexplained, (a) The jury are in- 
 structed that the possession of stolen property recently after the 
 
 45_Flohr v. Territory, 14 Okla, 398. 39 Atl. 606 (610). 66 Am. St. 116. 
 477, 78 Pac. 565 (575). 48— Flohr v. Territory. 14 Okla. 
 
 46_Flohr v. Territory, 14 Okla. 477. 78 Pac. 565 (573). 
 477 78 Pac. 565 (574). 4*— Shaw v. State, 102 Ga, 660, 29 
 
 47— State v. Kallaher, 70 Conn. S. E. 477 (478).
 
 2064 FORMS OF INSTRUCTIONS. [§ 3244. 
 
 larceny thereof, when unexplained, may be sufficient to warrant the 
 jui-y in inferring the guilt of the party in whose possession it is 
 found. Whether such inference should be drawn is a fact exclu- 
 sively for the jury.^** 
 
 (b) It is a rule of law, that recent possession of stolen property 
 unexplained is a circumstance tending to show that the possessor was 
 the thief.^i 
 
 (e) The court instructs the jury, that the possession of stolen 
 property recently after the theft by the person charged, if unex- 
 plained, is a circumstance tending to prove his guilt; and if the jury 
 believe, from the evidence, that the defendant was found with the 
 stolen property in his possession, then, in determining the weight to 
 be attached to that circumstance, as tending to prove guilt, the 
 jury shall consider all the circumstances attending such possession — 
 the proximity of the place where found to the place of the larceny; 
 the lapse of time since the property was taken ; whether the property 
 was concealed; whether the party admitted or denied the possession; 
 the demeanor and character of the accused; whether other persons 
 had access to the place where the property was found. All these 
 circumstances, so far as they have been proved, are proper to be 
 taken into account by the jury in determining how far the possession 
 of the property by the accused, if it has been proved, tends to show 
 his guilt. ^- 
 
 (d) The court instructs the jury, that the possession of recently 
 stolen property is usually regarded, in law, as a criminating circum- 
 stance, strongly tending to show that the possessor stole the property, 
 unless the facts and circumstances surrounding or connected with 
 such possession, or other evidence, explains or shows such possession 
 might have been acquired honestly. Possession of stolen property, 
 immediately after the theft, is sufficient to warrant a conviction, 
 unless attending circumstances, or other evidence, so far overcomes 
 the presumption thus raised as to create a reasonable doubt of the 
 prisoner's guilt, when an acquittal should follow.^^ 
 
 (e) In this case, if the jury believe, from the evidence, beyond 
 a reasonable doubt, that the property described in the indictment 
 was stolen, and that the defendant was found in the possession of 
 the property soon after it was stolen, then such possession is, in law, 
 a strong criminating circumstance, tending to show the guilt of the 
 defendant, unless the evidence, and the facts and circumstances 
 proved, show that he may have come honestly in possession of the 
 same.''* 
 
 50— Palmer v. State, 70 Neb. 136, 53— Sahlinffer v. People, 102 111 
 
 97 N. W. 235. 241; Fowle v. State, 47 Wis. 545; 
 
 51— Smith v. State, 103 Ala. 40, 16 State v. Pennyman, 68 la. 216; 
 
 So. 12 (13). John.son v. Miller. 29 N. W. 743. 
 
 52— Conkwright v. People, 35 III. 54— Smith v. State, 58 Ind. 340; 
 
 204; State v. Hodge, 50 N. H. 510, Watkins v. State, 2 Tex. App. 73. 
 9 Am. Rep. 288.
 
 §3245.] 
 
 CRIMINAL— LARCENY. 
 
 2065 
 
 § 3245. Recent Possession of Stolen Goods— Satisfactory Account 
 of Possession. The court charges you that, while the recent pos- 
 session of stolen property, if unexplained, is a circumstance tending 
 to show the guilt of the prisoner, yet, if the jury believed from the 
 evidence that the defendant came honestly into the possession of the 
 property, or that it is unconnected with any suspicious circumstance 
 of guilt, this would be a satisfactory account of his possession, and 
 would remove every presumption of guilt growing out of the same.^' 
 
 § 3246. Possession of Stock Allowed to Run at Large— Burden of 
 Explaining Possession, Exception. If you find from the evidence that 
 X. was the owner of the gelding described in the information, and 
 that said gelding was permitted to run on the range, proof of the 
 further fact that said gelding was shortly thereafter in 'the possession 
 of the defendant is sufficient to put upon defendant the burden of 
 explaining such possession. The presumption, if any, arising from 
 such fact of possession of range stock, if you find such fact from 
 the evidence, is one of fact only, and is rebuttable, and such presump- 
 tion is overcome whenever a reasonable explanation is made or 
 arises from the evidence; that is, an explanation which you deem 
 reasonable, considering all the facts and circumstances of the case, 
 is given, and is not shown to be untrue.^*^ 
 
 55— State v. Sally. 41 Ore. 366. 70 
 Pac. 396 (397). 
 
 "The presumption arising from 
 the possession of stolen property is 
 one of fact, and not of law. It is a 
 circumstance in the case from 
 which the jury may infer guilt, but 
 no legal presumption of guilt 
 arises therefrom. State v. Hale, 12 
 Ore. 352, 7 Pac. 523. The weight and 
 value of such testimony are ex- 
 clusively for the jury, and it may 
 well be questioned whether the 
 court, in instructing them as to 
 what would overcome the pre- 
 sumption, did not invade their 
 province. State v. Maloney, 27 Ore. 
 53, 39 Pac. 398. But if so, it was an 
 error favorable to the defendant, 
 of which he cannot complain." 
 
 Jones V. People, 12 111. 259, is au- 
 thority for a nearly identical in- 
 struction, given in the second edi- 
 tion: It is as follows: 
 
 The court instructs the jury, that 
 while possession of stolen property 
 recently after the theft, if unex- 
 plained, is a circumstance tendnig 
 to show the guilt of the possessor, 
 still, in this case, if the jury be- 
 lieve, from the evidence, that the 
 defendant bought the property m 
 question at, etc., openly and pub- 
 licly, and unconnected with any 
 suspicious circumstances of guilt, 
 this is a satisfactory account of his 
 130 
 
 possession of the property, and re- 
 moves every presumption of guilt 
 growing out of such possession. 
 
 56— State v. Eubank, 33 Wash. 
 293, 74 Pac. 378. 
 
 "By the instruction in this case 
 the burden of explaining posses- 
 sion is placed upon the defendant. 
 The instruction, upon its face, ap- 
 parently conflicts with the rule an- 
 nounced by this court in State v. 
 Walters, 7 Wash. 246, 34 Pac. 938, 
 1008. 
 
 "An instruction in that case con- 
 tained the following: 'In this case, 
 if the jury believe from the evi- 
 dence beyond a reasonable doubt 
 that the property described in the 
 information was stolen, and that 
 the defendant wr.s found in posses- 
 sion of the property soon after it 
 was stolen, then said possession is 
 in law a criminating circumstance 
 tending to show the guilt of the 
 defendant, unless the evidence and 
 the facts and circumstances proved 
 show that he may have come hon- 
 estly in possession of it. The in- 
 struction was held to be erroneous 
 on the theory that possession of 
 recently stolen property is only a 
 circumstance to be considered by 
 the jury in connection with all 
 other evidence in a given case. In 
 State V. Bliss, 27 Wash. 463. 6S Pac. 
 87, the respondent's counsel urged
 
 2066 
 
 FORMS OF INSTRUCTIONS. 
 
 [§ 3247. 
 
 § 3247. Possession of Stolen Property Not With the Defendant- 
 Property Found in Barn, (a) The court instructs the jui-y that the 
 defendant denies the charge made by the state. He insists, in the 
 first place, that the evidence submitted by the state is not suflficient 
 to authorize a conviction in this case. He insists that if it is true 
 that a burglary was committed, and the harness — the property de- 
 scribed in the bill of indictment — was stolen, and if that property 
 was subsequently found in the barn loft, that this evidence does not 
 show beyond a reasonable doubt that the house was his, or was in 
 his control. He insists that the property was in the custody and 
 control of another; therefore the state has not put the possession 
 on him, and the evidence does not authorize a eonvietion.^'^ 
 
 (b) In this case there is no evidence that the lot on which the 
 bag of money is said to have been found was at any time in the actual 
 or eonstnictive possession of the defendant, and, therefore, if the 
 juiy believe that the money so found was the property of X., no pre- 
 sumption of defendant's guilt is raised thereby, as the defendant had 
 no dominion or control over said premises and the alleged finding of 
 said money on said lot is not a circumstance against the defendant in 
 this case.^^ 
 
 this court to overrule State v. 
 Walters, supra, in the above-men- 
 tioned particular, but we declined 
 to do so, and approved the holding 
 in the former case as the estab- 
 lished doctrine of this court. The 
 instruction in the case at bar, how- 
 ever, given under the authority of 
 section 7114, 2 Ballinger's Ann. 
 Codes & St., which is as follows: 
 'In all prosecutions for larceny un- 
 der the last preceding section, 
 where the animal alleged to have 
 been stolen was permitted by its 
 owner to run on the range, proof 
 of possession of the animal by the 
 person accused of stealing the 
 same shall be prima facie evidence 
 that the accused acquired posses- 
 sion thereof recently, and shall 
 have the effect of throwing on 
 the accused person the burden of 
 explaining such possession.' The 
 previous section referred to in the 
 above quoted one relates to the 
 larceny of animals, and it will be 
 seen that the quoted section ex- 
 pressly provides that, when the 
 animal alleged to have been stolen 
 was permitted by its owner 'to run 
 on the range,' proof of possession 
 by the accused shall be prima facie 
 evidence that it was acquired re- 
 cently, and shall throw the bur- 
 den of explaining it upon the ac- 
 cused. The statute therefore de- 
 clares an exception to the general 
 rule adopted by this court in or- 
 
 dinary larceny cases, the exception 
 being restricted to the larceny of 
 animals permitted to run upon the 
 range. "The statute was passed in 
 1895, and State v. Walters was de- 
 cided prior to this statute. That 
 case involved the larceny of a 
 horse, but the opinion does not dis- 
 close whether it was a range ani- 
 mal or not. State v. Bliss, supra, 
 however, involved another class of 
 property, and we have made the 
 above observations in order to 
 make it clear that while we ad- 
 here to the general rule rean- 
 nounced in that case, we at the 
 same time recognize the exception 
 made by the statute cited. We 
 have already said in State v. Bliss 
 that the general rule adopted is 
 supported by eminent authority, 
 and we now see no reason for 
 changing it, unless it shall be done 
 by the Legislature, as in the case 
 of the exception herein discussed. 
 The instruction in the case at bar 
 came within the exception, and is 
 therefore not erroneous." 
 
 57— Moncrief V. State, 99 Ga. 295, 
 25 S E 735. 
 
 58— State v. Austin, 129 N. C. 534, 
 40 S. E. 4. 
 
 The court said that the instruc- 
 tion as asked was given, except the 
 latter part that is in parentheses. 
 This should have been given, in 
 view of the evidence.
 
 § 3248.] CRIMINAL— LARCENY. 2067 
 
 § 3248. Possession of Stolen Property — Defendant's House Used 
 Jointly with Others. "When the possession sought to be proved on 
 the part of the accused consists of the asserted fact that the stolen 
 property was found in the house of the defendant, it must be shown 
 that the possession and occupation of the house by the defendant was 
 exclusive, and was not enjoyed by other parties jointly with him. If 
 you find the house was used by othei'S, — by othei'S with him, — such 
 evidence would not alone authorize a conviction, but such fact may 
 and should be considered by the jury, together with all the evidence 
 in the case, in passing uiwn the ga;ilt or innocence of the person 
 charged. ^'^ 
 
 § 3249. On the Charge of Larceny, Proof of Defendant Having 
 Bought the Stolen Property with Such Knowledge, He Must Be 
 Acquitted on Charge of Larceny, (a) You are instructed that if 
 you believe from the evidence the steer in question was sold and de- 
 livered to the defendant by one A., or if you entertain a reasonable 
 doubt of such proposition, then you cannot convict the defendant for 
 the larceny of said steer. 
 
 (b) The jury are instructed that the buying or receiving of stolen 
 goods is a substantive crime, but the person who is charged of having 
 stolen the property cannot be convicted by evidence showing that he 
 received or bought the stolen property. So that in this ease, even 
 though j-ou may believe from the evidence and beyond a reasonable 
 doubt that the defendant either bought or received the steer in con- 
 trovei-sy knowing it to have been stolen, this would not authorize his 
 conviction for the crime of which he stands charged, and your ver- 
 dict should be "Not guilty. "^o 
 
 (c) You are instructed that if you belief the four cattle in ques- 
 tion were stolen from the range, and that recently afterward defend- 
 ant had them in his possession, then, to warrant his conviction as the 
 thief, you must be satisfied from the evidence that A. R. is the per- 
 son who took the cattle from their range, so that if you believe he 
 bought them from S. G. and L. G., or from either, then he will not be 
 guilty of theft, even if you believe that he knew they were stolen by 
 persons from whom he bought them.^i 
 
 59_Moncrief v. State, 99 Ga. 295, ficient in the matter criticised. It 
 
 25 S. E. 734 (735). is true, 'reasonable doubt' is not 
 
 60— Roberts v. State, 11 Wyo. 66, mentioned in the excerpt; but the 
 
 70 Pac. 803 (804), 100 Am. St. 925. court after submitting: the charge 
 
 6i_Ramirez v. State, 43 Tex. Cr. to the jury, to the effect that be- 
 
 App. 455, 66 S. W. 1101. fore they could convict they must 
 
 "The objection to this charge," believe beyond a reasonable doubt 
 said the court, "is that it required he fraudulently took from the pos- 
 defendant to prove by a prepon- session of the alleged owner the 
 derance of evidence that he bought cattle described in the indictment 
 the cattle, and thus eliminated without his consent, etc., but other- 
 reasonable' doubt from this phase wise that they should acquit him, 
 of the case. The charge, taken as further gave the reasonable doubt 
 a whole, is not subject to this criti- in this language, 'If you do not so 
 cism; nor do we believe this par- believe beyond a reasonable doubt, 
 ticular portion of the charge is de- you will acquit the defendant,' and
 
 2068 FORMS OF INSTRUCTIONS. [§ 3250. 
 
 § 3250. Possession by One Who Has No Claim — Subsequent Conver- 
 sion. If the possession of j^roperty by another, to which the taker 
 has no claim, be obtained openly, but by deception, artifice, or fraud, 
 designed by the taker to secure the possession of the goods of another 
 to which he has no claim, and no honest belief in such a claim, and 
 they be subsequently converted to the use of the taker, the jury 
 would be justified in finding that the taking was with felonious intent, 
 and the crime of larceny committed.^^ 
 
 § 3251. Action of Replevin to Recover Stolen Property Does Not 
 Relieve from the Charge of Larceny. You are further instiaieted 
 that evidence has been introduced in this ease showing that an action 
 of replevin was commenced by one or both of the R. 's to recover the 
 possession of the property, or a part of the property, alleged in the 
 indictment to have been stolen, and that in that suit some part of the 
 property was taken by the sheriff under the order of delivery issued 
 therein, and that a redelivery bond was given by the defendants, and 
 that the property taken under the writ of replevin was retained by 
 'them. The evidence of this I'eplevin action so introduced was com- 
 petent for the purpose for which it was offered, as circumstance throw- 
 ing light upon the main issue; but the fact tliat this replevin action 
 was commenced, and the fact that the defendants, or one of them, 
 gave a redelivery bond and returned the property, in no wise relieves 
 him or them of the criminal responsibility of the larceny of the 
 property, if you find from the evidence, beyond a reasonable doubt, 
 that the property was in fact stolen by them, or either of them.^^ 
 
 § 3252. Larceny — Reasonable Doubt — Burden of Proof, (a) If 
 you believe from the evidence that said E. P. authorized or gave his 
 pennission or consent to^^ defendant to sell or otherwise dispose of 
 said horse, or if you have a reasonable doubt thereof, j'ou will acquit 
 defendant.*** 
 
 (b) It is not enough to show, even if the evidence should show, 
 that the defendants stole grain, but it should be shown clearly, be- 
 yond a reasonable doubt, that the alleged larceny was committed on 
 
 the day of , 19 — , as charged in the information, or your 
 
 verdict should be not guilty.''^ 
 
 subsequently again gave the pre- gave appellant his authority or 
 sumption of innocence and reason- permission to sell or in any man- 
 able doubt." uer dispose of the horse, this 
 
 62 — State v. Kallaher, 70 Conn, would meet the contention of the 
 
 398, 39 Atl. 606 (609), 66 Am. St. 116. state that the conversion was frau- 
 
 63 — Flohr v. Territory, 14 Okla. dulent. Now, if there was a rea- 
 
 477, 78 Pac. 565. sonable doubt of this, then appcl- 
 
 64 — Smith v. State, 45 Tex. Cr. lant was entitled to an acquittal; 
 
 App. 251, 76 S. W. 434. and as we understand this charge, 
 
 The court said: it gave this phase of the law in ac- 
 
 "It is contended this changes the cordance with our statutory pro- 
 reasonable doubt and places the visions." 
 
 burden upon the ancusod. We do 65 — Baldwin v. State, 46 Fla. 115, 
 
 not so understand it. If the owner 35 So. 220 (222).
 
 § 3253.] CRIMINAL— LARCENY. 2069 
 
 RECEIVING STOLEN PROPERTY. 
 
 § 3253. Receiving Stolen Property, Criminal Intent Must Exist at 
 the Very Instant of Receiving. To constitute the crime of receiving 
 stolen goods as charged, it is essential to show a criminal intent. 
 The receiver must know that the goods were stolen, and this knowl- 
 edge must exist at the veiy instant of the receiving; otherwise the 
 crime does not exist. *^® 
 
 § 3254. Purchase of Stolen Property, Bona Fide or Sham, The 
 court instnicts the jury that they are the judges, from all the facts 
 and circumstances of the case, whether or not a purchase of the 
 alleged stolen property was in fact a bona fide purchase, or whether 
 or not it is a device and sham.*''^ 
 
 § 3255. Stolen G-oods Left at a Man's House Without His Knowl- 
 edge. The juiy are instructed that if goods are left at a man's 
 house without his knowledge or consent, even though they may have 
 been stolen by the person leaving them, this in itself, does not make 
 the person at whose house the goods were left a receiver of stolen 
 goods.^^ 
 
 66— Butler v. State, 35 Fla. 246, 17 68— Butler v. State, 35 Fla. 246 
 
 So. 551 (552). 17 So. 551 (552). 
 
 67— Bowers v. State. — Tex. Or. 
 App. — , 71 S. W. 284 (285).
 
 CHAPTER Cn. 
 CHIMIN AL—Pii R JURY. 
 
 See Erroneous Instructions, same chapter head, Vol. III. 
 
 § 3256. That the accused was sworn 
 must be proved. 
 
 § 3267. Swearing- falsely — No rea- 
 sonable g-rounds of believ- 
 ing- statements to be true. 
 
 § 3258. More than one witness re- 
 quired. 
 
 § 3259. One witness sufficient, when. 
 
 § 3260. Testiinony alleged must be 
 proved. 
 
 § 3261. Every material allegation 
 must be proved. 
 
 § 3262. Materiality must be shown. 
 § 3263. Materiality sufficient, when. 
 § 3264. Test of materiality. 
 § 3265. Authority of the officer must 
 be shown. 
 
 § 3266. Perjured testimony— Absence 
 of motive. 
 
 § 3267. Elements to be considered in. 
 arriving at a verdict- 
 Series. 
 
 § 3256. That the Accused was Sworn Must Be Proved. That to 
 
 authorize a conviction in this case it must appear, among other things, 
 that the defendant was sworn, as a witness, before giving his alleged 
 testimony; and this must be proved, beyond a reasonable doubt; and 
 if the jury entertain any reasonable doubt as to whether the defend- 
 ant was affirmed instead of being sworn, in the usual manner before 
 testifying, the jury should find the defendant not guilty.^ 
 
 § 3257. Swearing Falsely — No Reasonable Grounds of Believing 
 Statements to Be True. The jury are instructed, that while false 
 swearing, under an honest belief that the statements are true, is not 
 perjury, still, the jury are to determine, from all the evidence in the 
 ease, whether such honest belief existed; and if the juiy believe, 
 from the evidence, beyond a reasonable doubt, that the defendant 
 swore falsely, as charged in the indictment, and that he had no rea- 
 sonable grounds for believing his statements to be true, and did not 
 honestly and in good faith believe them to be true, then he is guilty 
 of perjury.- 
 
 § 3258. More Than One Witness Required. If the juiy find that 
 the several witnesses who have testified for the prosecution (or the 
 witnesses, A., B. and C), have each testified to separate and distinct 
 facts or circumstances, then such testimony must be considered by 
 the jury as the testimony of a single witness upon each specific 
 point testified to by them; and if the jury further believe, from the 
 evidence, that only one of said witnesses has testified to facts tending 
 to show the falsity of the testimony, set forth in the indictment, and 
 upon which the perjury is assigned, then the prosecution has failed 
 to prove the falsity of such testimony as required by law, unless the 
 
 1— Hitesman v. State, 48 Ind. 473. 2— Johnson v. People, 94 HI. SOP. 
 
 2070
 
 § 3259.] CRIMINALr— PERJURY. 2071 
 
 jury further find, from the evidence, that the testimony of such wit- 
 ness has been corroborated upon that point by other facts or circum- 
 stances proved on the trial.^ 
 
 § 3259. One Witness Sufficient, When. The court instructs the 
 jury that as to each and all of the material averments in the indict- 
 ments, except the allegation of the falsity of the testimony therein 
 stated and set forth, they may be proved by the testimony of one 
 witness alone ; provided, the juiy are satisfied beyond a reasonable 
 doubt, of the truth thereof by the testimony of such witness; and 
 as regards proving the falsity of such testimony, the court instructs 
 the jury, that while that fact cannot be established by the testimony 
 of one witness alone, it is not absolutely necessary that it be estab- 
 lished by the testimony of two witnesses; it may be proved by the 
 testimony of one witness and other eon-oborating facts or circum- 
 stances corroborating such witness; provided the juiy are satisfied, 
 beyond a reasonable doubt, from the testimony of such witness, and 
 such corroborating facts and circumstances, that such testimony was 
 false in fact.^ 
 
 § 3260. Testimony Alleged Must Be Proved. The jury are further 
 instructed, that while it is incumbent upon the people, in order to 
 warrant a conviction, to prove, as one of the material averments in 
 the indictment, that the defendant did testify to one or more of the 
 statements of testimony contained in the indictment, still, it is not 
 necessary that they should be proved in the precise words alleged; 
 it is sufficient if they are, substantially, proved in language and effect 
 as therein stated.^ 
 
 § 3261. Every Material Allegation Must Be Proved, That before 
 the jury will be warranted in finding the verdict of guilty in this 
 case, they must be satisfied, beyond a reasonable doubt, from the 
 evidence introduced before them, that the defendant was sworn as a 
 witness by R. L., on the trial of an action of (replevin) pending 
 before him, as an acting justice of the peace of this county, wherein 
 A. was plaintiff and B. was defendant ; that the value of the property 
 
 in question, in said suit, did not exceed $ ; that upon such trial 
 
 the defendant testified upon oath that he bought the horse of one 
 A. B., and paid $100 in cash for it at the time; that whether he had 
 so bought the horse was a material question on that trial; that such 
 testimony was false, and that the defendant knew it to be false at 
 the time he so testified; and, unless the prosecution have proved 
 each and all of the matters above enumerated beyond a reasonable ^. 
 doubt, by evidence introduced before the jurj', the jury must find the 
 defendant not guilty.® 
 
 3— State v. Heed, 57 Mo. 252; 5— People v. Warner, 5 Wen. 271; 
 
 State v. Raymond, 20 la. 582; Taylor v. State, 48 Ala. 157. 
 
 Crusen v. State, 10 Ohio St. 258; 6— Pankey v. State, 1 Scam. 80; 
 
 Hendricks v. State, 26 Ind. 493. Montgomery v. State. 10 Ohio 220; 
 
 4— U. S. V. Wood, 14 Peters 430; State v. Fassett, 16 Conn. 457, 
 State v. Raymon, 30 la. 583.
 
 2072 FORMS OF INSTRUCTIONS. [§ 3262. 
 
 § 3262. Mareriality Must Be Shown. The jury are further in- 
 structed- that amoug the material averments in the indictment is the 
 statement, that whether the said defendant had bought t>he horse 
 therein referred to of A. B. and paid $100 for it in cash at the time, 
 became a material question on said trial; and to warrant a conviction 
 in this ease, the fact of such materiality must be established to the 
 satisfaction of the jury, beyond a reasonable doubt; and if, after a 
 careful consideration of all the evidence, and in view of the principles 
 of law given you in these instructions, you entertain any reasonable 
 doubts as to whether the fact above stated did become material on 
 said trial, you should find the defendant not guilty.'^ 
 
 § 3263. Materiality Sufficient, When. The jury are instructed, as 
 a matter of law, that to render testimony material in a case it is not 
 necessaiy that it should bear directly upon the main issue in the 
 ease ; it is sufficient if it is material to any question arising upon the 
 trial, and such as, if it were true, might properly influence the justice 
 or the jury before whom the case is being tried in any matter affecting 
 the rights of the parties.^ 
 
 § 3264. Test of Materiality. That the true test of whether the 
 alleged testimony of the defendant was material on said trial is this: 
 Was it of such a character that, if true, it should properly influence 
 the action of the justice or the jury on the trial in any matter affect- 
 ing the rights of the parties to that suit; and if the jury find, from 
 the evidence, that the alleged testimony could not properly influence 
 the action of the justice, or jury, in any mafcter affecting the rights of 
 the parties to the suit, then it is wholly immaterial whether it was 
 true or false, and the jury should find the defendant not guilty.^ 
 
 § 3265. Authority of the Officer Must Be Shown. The JU17 are 
 further instructed, that, while it is necessary for the prosecution, in 
 order to warrant a conviction for perjury, to show that tUe person 
 administering the oath was authorized, by law, to administer oaths, 
 still, if it be shown, by the evidence beyond a reasonable doubt, that 
 the oath was administered by a person who was then an acting jus- 
 tice of the peace in and for the county where the oath was adminv 
 istered, this is sufficient evidence of his authority to administer the 
 oath.i" 
 
 § 3266. Perjured Testimony — Absence of Motive, (a) If you 
 agree with the defendant that this is a pure fabrication, you ought, 
 at least, to be able to find some motive for such a wicked fabrication. 
 
 (b) If, by your verdict, you say the complaining witness has com- 
 
 7— Bullock v. Koon, 4 ^Wen. 531; 9— State v. Keenan, 8 Rich. 456; 
 
 State v. Thrift. 30 Ind. 211; Wood State v. Shupe, 16 la. 3-6, 85 Am. 
 
 V. People, 59 N. Y. 117; State v. Dec. 485 n; State v. Lavalley, 9 Mo. 
 
 Aikena, 32 la. 40S. 824. 
 
 8—2 McClain Crim. Law, sec. 862; 10— Kerr v. People, 42 111. 307; 
 
 Corn. V. Grant. 116 Mass. 17. State v. Furlong. 26 Me. 69; Weston 
 
 V. Lumley, 33 Ind. 486.
 
 § 3267.] CRIMINAL—PERJURY. 2073 
 
 mitted perjury, you ought to find, if you can, some motive for her 
 perjury.^^ 
 
 § 3267. Elements to Be Considered in Arriving at a Verdict — 
 Series. Gentlemen of the jury: A grand jury of your county charge? 
 S. with the crime of perjury, as set forth and stated in the indictment, 
 which has been read before you. In order to convict him the state 
 must by the evidence, establish all the material allegations of the 
 indictment, and if you have any reasonable doubt as to any of those 
 material allegations you must acquit the defendant. First. The 
 evidence must satisfy you that 'the defendant S. was duly sworn to 
 testify in a cause in this court entitled J. against the R. & D. Rail- 
 road Company. Unless he was put under the sanction of an oath, 
 and unless it was administered by the officer named in the indictment, 
 and was in the cause named, you must acquit. But, if he was duly 
 sworn to testify in the ease named, then inquire further whether or 
 not he testified substantially as alleged in the indictment. Consider 
 fully and carefully what the evidence now before us shows as to his 
 testimony in the former case, and see whether or not the material 
 allegations of the indictment as to his testimony are proven to have 
 been sworn to by him on the trial. (Did he, in the other case, testify 
 substantially as the grand jury say that he did? It is not essential 
 that eveiy part of his testimony, as narrated in the indictment, should 
 be proven. For instance, the indictment says that defendant swore 
 that J. S. went out of the back door of the car. If this is a mistake 
 in the indictment, the mistake should not prevent conviction, if the 
 material and substantial allegations are pi'oven, as I wi.ll advise you 
 hereafter). But the state must show you by satisfactory proof that 
 the defendant did give the evidence substantially as alleged in the 
 indictment; otherwise you cannot convict. (Then carefully consider 
 and compare all the evidence, and say whether the defendant's evi- 
 dence, complained of in the indictment, was false or true. If you 
 find different witnesses contradicting each other, then, as reasonable, 
 intelligent men, Aveigh the testimony of the state going to show the 
 falsity of the defendant's statement against the evidence showing 
 its truth, and try and determine which you must believe.) I cannot 
 instruct you which witness, or which set of witnesses to believe. 
 The responsibility rests on you. I may assist you, however, by 
 some general rules which our experience shows us to be valuable in 
 such cases. For instance, take the state's witnesses and their testi- 
 mony. How was it given before you? What interest or prejudice 
 
 11 — Hannon v. State, 70 Wis. 448, strong- evidence of his innocence, 
 
 36 N. W 1 (4). and, in cases where the evidence is 
 
 "A known motive for a course not positive and direct, is almost 
 
 of action is always a powerful always sufficient to procure an ac- 
 
 argument in favor of such action, quittal. . . . We do not think 
 
 The absence of any motive for its the defendant was prejudiced by 
 
 commission on the part of the per- this in-=-truction, nor tliat it was er- 
 
 son accused of a great crime is ror to give it."
 
 2074 FORMS OP INSTRUCTIONS. [§ 3267. 
 
 are they shown to have in the ease'? What amount of intelligence, 
 capacity or memory do they show to have? Is their testimony rea- 
 sonable or unreasonable? Was it given in with the apparent desire 
 to tell the truth, or was their evidence given with an apparent 
 desire to convict the defendant? Was their sworn testimony, as 
 they gave it, inconsistent, or was it contradictory? Compare the 
 whole testimony of state's witnesses, and see if they corroborate 
 each other or contradict each other. If you find that they corrobo- 
 rate each other literally and minutely, consider whether or not this 
 minute corroboration may not show preconcert and arrangement with 
 a purpose to convict. If on the contraiy, there is a substantial agree- 
 ment and corroboration between the state's witnesses, together with 
 some variety and seeming conflict as to nonessential or immaterial 
 matters, you should note that agreement and corroboration as im- 
 portant to enable you to determine the naturalness and truthfulness 
 of their statements, for experience shows us that witnesses seeing the 
 same occurrence, and detailing the same, are apt to honestly differ 
 in some of the details, and differences as to details are frequently 
 found to be consistent with substantial agreement as to the essential 
 and material facts. Now, use these same rules in weighing the testi- 
 mony offered you by the defendant, and in considering the value of 
 the testimony of the defendant's witnesses. How did they testify, — 
 positively, intelligently, fairly and impartially, or otherwise? Do 
 they corroborate each other in substantial and material points, or do 
 they contradict each other? If they agree in the substantial parts 
 of their testimony, it should go to establish the correctness of their 
 evidence. But if they contradict each other in matters as to which 
 you believe they cannot be mistaken, you should consider that fact, 
 in estimating the reliability and correctness of what they depose to. 
 Taking all the evidence that has been offered you on both sides try 
 and arrive at the truth of the issues here. Was the evidence of S. 
 as charged in the indictment substantially true, or was it substan- 
 tially false? If satisfied that it was tnie, you must acquit. Or if, 
 on considering all the evidence, you are not satisfied beyond a rea- 
 sonable doubt that defendant swore falsely you must acquit. If you 
 are satisfied he swore falsely go a step further. Was that false 
 testimony material in the case of J. v. R. & D. R. R. Co.? * ♦ • 
 Go also a step further. The testimony complained of must not only 
 have been false and material to the issue, but it must have been 
 willfully and corruptly false. It was willfully false if the defendant 
 was not present on the cars, and knew nothing of what he was 
 testifying about, yet testified that he was present, and testified to 
 occurrences in the ear, or if, being on the car, and knowing what 
 actually occurred, he knowingly and intentionally testified to what 
 was untrue. You should ask yourselves, was the testimony false, and 
 did S. S. know it was false. Again, the law says it must have been 
 corruptly false. If a man in order to help a friend or
 
 § 3267.] CRIMINAL— PERJURY. 2075 
 
 harm an enemy, testifies falsely for the purpose of misleading a 
 court or jury you may well believe and find that his pui-pose was a 
 corrupt one. if, however, the false testimony is given in by mistake, 
 or by inadvertence, and with no purpose of wrongly influencing a 
 court or juiy, you cannot convict. (If, however, the state has con- 
 vinced you that, in the matters set forth in the indictment, this de- 
 fendant, being duly sworn in the cause as stated in the indictment, 
 testified willfully and corruptly false as to things material in the 
 cause, as alleged in the indictment, then your verdict should be, 
 ''We, the jury, find the defendant guilty, as charged in the indict- 
 ment.") If the state has not so convinced you, you should say, 
 "We, the jury, find the defendant not guilty, "^^ 
 
 12— Smith v. State. 103 Ala. 57, 15 So. 866 (868).
 
 CHAPTER CnL 
 
 CRIMINAL— ARSON— BRIBERY— CONCEALED WEAPONS- 
 GAME AND GAMBLING— MALICIOUS MISCHIEF- 
 MISCELLANEOUS PROSECUTIONS. 
 See Erroneous Instructions, same chapter head. Vol. III. 
 
 ARSON. 
 
 § 3268. Arson defined. 
 
 § 3269. Arson, elements to be proved 
 beyond a reasonable doubt 
 — Evidence of ownership 
 essential. 
 
 § 3270. Insanity as a defense to ar- 
 son. 
 
 BRIBERY. 
 
 § 3271. Attempt to bribe a juror- 
 Proof required — Other at- 
 tempts to bribe held in- 
 competent. 
 
 § 3272. Collection of bribe money 
 from disreputable women 
 by agent. 
 
 § 3273. Bribing- public officer to do 
 what they are already ob- 
 ligated to do — Intent essen- 
 tial — Series. 
 CONCEALED WEAPONS. 
 
 § 3274. Carrying concealed weapons 
 — Right to arrest without 
 warrant. 
 
 § 3275. Carrying concealed weapons 
 — Apprehension of personal 
 injury. 
 GAME AND GAMBLING. 
 
 § 3276. Game or gambling defined. 
 § 3277. Keeping a gambling house, 
 
 what must be proved. 
 § 3278. Lottery— Aiding and assist- 
 ing. 
 MALICIOUS mischief! 
 
 § 3279. Malice, when implied. 
 
 § 3280. Malice must be proved. 
 
 § 3281. Malicious injury to an ani- 
 mal — Malice against the 
 owner must be shown. 
 
 § 3282. Ownership, how proved. 
 
 § 3283. Injury done wilfully for the 
 purpose of gain — Personal 
 malice need not be shown. 
 
 physicians and. surgeons. 
 
 § 3284. Disinterring dead bodies for 
 surgical experiment — In- 
 tent, proof required. 
 
 § 3285. Practicing medicine with- 
 out a certificate — Reason- 
 able doubt. 
 
 § 3286. Practice of medicine — Diplo- 
 ma from an accredited 
 school required. 
 
 § 3287. Sale of drugs without license 
 — Domestic remedies ex- 
 cepted. 
 
 miscellaneous prosecutions. 
 
 § 3288. Peddling without a license — 
 One sale sufficient if inten- 
 tion to continue exists. 
 
 § 3289. Obstructing highway— Suf- 
 ficient proof of. 
 
 § 3290. Obstruction wilfully placed 
 in navigable stream. 
 
 § 3291. Military expedition — Trans- 
 porting men and arms. 
 
 § 3292. Military expedition — Knowl- 
 edge of accused that it is 
 such. 
 
 § 3293. Concealing inferiority of 
 food — Adulteration. 
 
 § 3294. Breach of peace — Vile epi- 
 thets on public street. 
 
 § 3295. Abusive language in pres- 
 ence of female. 
 
 § 3296. Construction of a vehicle — 
 Oil tank held a part of the 
 wagon. 
 
 § 3297. Instruction as to measure- 
 ment of lobster. 
 
 § 3298. Quiet and peaceable po.sses- 
 sion — Unlawfully break, 
 pull down or injure an- 
 other's fence. 
 
 § 3299. Cutting trees. 
 
 ARSON. 
 
 § 3268. Arson Defined. The court instructs the jury that arson 
 consists in the willful and malicious burning of the dwelling house 
 of another.^ 
 
 1—1 McClain on Cr. Law, § 517. 
 
 2076
 
 § 3269.] CRIMINAI^-BRIBERY. 2077 
 
 § 3269. Arson, Elements to Be Proved Beyond a Reasonable Doubt, 
 (a) If you believe from the evidence beyond a reasonable doubt that 
 defendant X., in the county of B., state of Texas, on or about the 
 1st day of July, 19 — , did willfully set fire to and burn the house of 
 E., mentioned in the indictment; and if you further so believe from 
 the evidence that said house was situated in said state and county, 
 and was then and there in the possession of and occupied by the said 
 E., then you will find the defendant guilty of arson, and assess his 
 punishment, etc.^ 
 
 Arson, Evidence of Ownership Essential. (b) The court 
 charg-es the jury that, if the state failed to prove by evidence of title 
 ownership of the property fired as charged in the indictment, the 
 jury cannot find the defendant guilty.^ 
 
 § 3270. Insanity as a Defense to Arson. You are instructed that 
 the law presumes that every person is sane, and it is not necessaiy 
 for the state to introduce evidence of sanity in the first instance. 
 When, however, any evidence has been introduced tending to prove 
 insanity of an accused, the burden is then upon the state to establish 
 the fact of the accused's sanity, the same as any other matei-ial fact 
 to be established by the state to w^arrant a conviction. If the testi- 
 mony introduced in this ease tending to prove that the defendant 
 was insane at the time of the alleged burning described in the infor- 
 mation raises in your mind a reasonable doubt of his sanity at the 
 time of the alleged burning, then your verdict should be acquittal.* 
 
 BRIBERY. 
 
 § 3271. Attempt to Bribe a Juror — Proof Required — Other At- 
 tempts to Bribe Held Incompetent, (a) The court charges the jury 
 that the promise or offer made to S. by the defendant must have been 
 eorruptly made, and made with the intent to bias the mind or influ- 
 ence the decision of S. as a juror in the case of v. , 
 
 charged with grand larceny. 
 
 (b) The court charges the juiy that, if they are reasonably doubt- 
 ful from the evidence in this cause as to the defendant attempting 
 to bribe S. as a juror in the particular case described in this indict- 
 ment, they must acquit the defendant, and that any belief that the 
 jury might have as to an attempt on the part of defendant to bribe 
 S. as a witness cannot be considered in this ease against the defend- 
 ant.s 
 
 § 3272. Collection of Bribe Money from Disreputable Women by 
 Agent. The court instructs the jury that it is the law generally that 
 
 2— Kelley v. State, 44 Tex. Cr. held in Boles v. State, 46 Ala. 207, 
 
 App. 187, 70 S. W. 20 (21). was good and should have beea 
 
 3— Hanaigan v. State, 131 Ala. 29, given." 
 
 31 So. 89. 4— Knights v. State. 58 Neb. 225, 
 
 "This charge," said the court, "is 78 N. W. 508 (509), 76 Am. St. 78. 
 
 a copy of the one which the court 5— White v. State, 103 Ala. 72, 16 
 
 So. 63 (65).
 
 2078 FORMS OF INSTRUCTIONS. [§ 3273. 
 
 any act of an assumed agent, and a recognition of his authority by 
 the alleged principal, may, in a proper case, prove the agency to do 
 other similar acts. And if you find in this case that C. was authorized 
 or directed by the defendant to collect in his behalf money from one 
 or more of these women, other than A. M., such fact is proper to be 
 considered in determining whether or not defendant authorized C. to 
 collect money from her. Indeed, if you find that C. had general 
 authority to collect protection money from abandoned women, or 
 from a certain class of them, which included A. M., then you would 
 be justified in finding that in receiving money from A. M,, if in faet 
 he received it, he received the same for the defendant, and in that 
 event will find that he himself received the money.® 
 
 § 3273. Bribing Public Officers to do What They Are Already 
 Obligated to Do — Intent Essential — Series, (a) Now it makes no 
 difference whether S. issued any orders or not after the payment 
 of it. The crime was completed, if it was a crime at all, at the time, 
 the money was offered by the respondent. Now, the respondent ad- 
 mits that he did pay money at that time to S., as I said before, and 
 claims that he paid it at X. It makes no difference whether he paid 
 it at X. or sent it through a letter, as far as the substance of the 
 offense is concerned, and it is for you to consider whether or not the 
 people's claim as to how it was paid is correct, and whether that date 
 is correct. 
 
 (b) As a general proposition to direct you in this, I will say that 
 the respondent cannot be convicted unless you find beyond a reason- 
 able doubt that, at the time claimed by the people, the money was 
 given to S., by or through the agency of the respondent, with the 
 corrupt intention and for 'the purpose of corrupting him and influ- 
 encing his official action in issuing fraudulent certificates mentioned 
 in the information. As I said to you before, that must have been 
 the purpose, and whether or not S. ever issued them would make no 
 difference, if he received the money. If he had then said, "I won't 
 issue any certificates," the crime would be just as complete as it 
 would be if he had issued them^ if it was paid to him with the corrupt 
 intention of influencing him in his official action. 
 
 (c) It may have occurred to you that this respondent was com- 
 mitting a wrong from the beginning in paying money to S. That is 
 true. He had no right in the world to pay the first twenty dollars to 
 him for counting span*ows, because the law itself obliged S. to count 
 all span^ows that were brought to him that were caught in the village 
 of X., under the statute. 
 
 (d) It was entirely wrong from the beginning for him to pay any 
 money. It is demoralizing to the officer, and to the respondent him- 
 self, and all the people, that the people shall be placed in position 
 of having its officers receive money from individuals with whom they 
 are doing business for the purpose of paying them for doing things 
 
 &— State v. Ames, 90 Minn. 183, 96 N. W. 330 (334).
 
 § 3273.] CRIMINAL— BRIBERY. 2079 
 
 • 
 that the statute obliges them to do without pay; but, however wrong 
 that may be, it is introduced here simply for the purpose of showing 
 the relation existing between the respondent, S., and G., and has a 
 bearing upon the intention with which the act of December was done. 
 
 (e) Now, don't forget that it will be a great wrong to the re- 
 spondent, and a great wrong to the people, if you should say that 
 this man should be convicted by reason of having paid money in May 
 or June to this officer. However wrong that may have been, this 
 case is not planted upon that occurrence, but you should consider it 
 as bearing upon the occurrence in December. 
 
 (f) It is for you to say whether or not the respondent paid the 
 money in December for a corrupt purpose ; and if for a corrupt pur- 
 pose, then he is guilty. If i't was not for a corrupt purpose, then 
 he is not guilty, if it was paid to him with no intention of influencing 
 his official action as an officer. 
 
 (g) The respondent claims that, while he paid the money to S. 
 to get him to issue orders, that the intention was to detect crime 
 that it was claimed that S. was committing with other persons. The 
 claim of the people is that he did it for the sole purpose of protect- 
 ing himself and getting S. in his power. 
 
 (h) Now, if you find that he did it for a corrupt purpose of pro- 
 tecting himself, or for the corrupt pui-pose of getting the orders for 
 any other purpose except to detect crime of other people, and with- 
 out reference to himself, then he should be convicted under his own 
 testimony, because he admits that he paid the money; but, if you 
 find that it was not paid with the corrupt intention of doing wrong 
 then he must be acquitted. 
 
 (i) As bearing upon that, whether he paid that rightfully or with 
 the intention of doing right, and without intention of doing a wrong, 
 you must take into consideration all the testimony in this case. It 
 is for you to determine whether or not the statement he makes of 
 what happened between him and R. is true; that is for you to de- 
 termine. 
 
 (j) You are to consider the way these sparrows were brought to 
 S., the memoranda that were left with S., if you find that there were 
 memoranda left, and the respondent himself admits some of them. 
 It is stated here, and admitted by the defendant, that he used to 
 leave memoranda with certain figures of the amounts that he placed 
 in there, and asked orders to be drawn for more than the amount of 
 birds delivered; that he intended afterward to furnish the birds to 
 make up the amount of the orders. Now that was absolutely wrong 
 and demoralizing. No man ought to have thought it was right at 
 any time. 
 
 (k) The law is plain, and it seems to me that no one could make 
 a mistake concerning the fact that the sparrows must be counted, 
 must be there, and must be destroyed before the orders are drawn. 
 But that is not what they complain of in this ease. I call your at- 
 tention to that, so that you won't get mixed when you go to your
 
 2080 FORMS OP INSTRUCTIONS. [§ 3274. 
 
 jury room. You may consider that as bearing upon whether or not 
 the transaction of December was corrupt or not.®" 
 
 CONCEALED WEAPONS. 
 
 § 3274. Carrying Concealed Weapons — Right to Arrest Without 
 Warrant. Where any person carried on or about his person in the 
 
 city of a pistol, without lawful authority, in the presence and 
 
 wuthin the knowledge of a police officer of the city of S. while on 
 duty, such officer would have a rig-ht to arrest such person without 
 warrant, and to disarm him.'^ 
 
 § 3275. Carrying Concealed Weapons — Apprehension of Personal 
 Injury, (a) The court instructs the jury that if you believe from 
 the evidence in this ease that the defendant W. had reasonable 
 grounds to apprehend danger of great bodily harm from A. at or 
 before the time at which he is charged with carrying the pistol, con- 
 cealed, then he ,had a right to cany it for his own protection, and 
 the jury will find him not guilty. 
 
 (b) The court instructs the jury that if you believe from the 
 evidence that before the date at which defendant is charged with 
 cari-ying a concealed pistol, A. and he were unfriendly, and that 
 A. had threatened to kill him if he crossed his path, and if you 
 furtlier believe that these threats were communicated to the de- 
 fendant and he apprehended danger from A. and on that account car- 
 ried the pistol, you will find him not guilty.^ 
 
 GAME AND GAMBLING. 
 
 § 3276. Game or Gambling Defined. A game is a trial of skill or of 
 chance, or of skill and chance, between two or more contending 
 
 6a — Above series of instructions ory requirement, and this was 
 
 hold good in People v. Gorsline, 132 palpably wrong. The court by its 
 
 Mich. 549, 94 N. W. 16 (17-18). modification in inserting the word 
 
 7 — Edwards v. State, — Tex. Cr. 'great' before the words 'bodily 
 
 App. — , 69 S. W. 144 (145). harm' in the charge cured its vice. 
 
 8 — Strother v. State, 74 Miss. 247, An apprehension of 'a serious at- 
 
 21 So. 147 (148), 34 L. R. A. 472. tack from an enemy' and an appre- 
 
 "The statute (Code § 1027) author- hension of 'great bodily harm' are 
 izes one indicted for carrying con- synonymous phrases. It was never 
 cealed a deadly weapon to prove the design of the statute to author- 
 by way of defense, that he 'was ize men to carry concealed deadly 
 threatened, and had good and suf- weapons on a mere apprehension 
 ficient reason to apprehend a se- of some bodily harm. It is serious 
 rious attack from an enemy and bodily harm — great bodily harm — 
 that he did so apprehend,' etc., that the threatened man may guard 
 and both modifications were ncces- himself against by carrying con- 
 sary to conform the instructions to cealed a deadly weapon. The stat- 
 the letter and spirit of the statute, ute by its very terms makes the 
 An apprehension of 'a serious at- threatened man not only have good 
 tack' is the language of the stat- and sufficient reason to apprehend 
 ute. The charge as asked made an a serious attack from his enemy, 
 apprehension of 'danger of bodily but also requires him to actually 
 harm' the equivalent of the statut- apprehend such attack."
 
 § 3277.] CRIMINAL— GAMBLING. 2081 
 
 parties, according to some rule, by which each may succeed or fail 
 in the trial." 
 
 § 3277. Keeping a Gambling House, What Must Be Proved, (a) 
 
 The juiy is instructed that the defendant is indicted, under section 
 2644, for keeping and maintaining a gaming room for the pui-pose 
 of gaming and gambling. The jury will note that it is necessary, be- 
 fore conviction can be had, that the state must establish, beyond a 
 reasonable doubt — First, that the defendant was keeping a gaming 
 and gambling room; and second, that it was kept for the purpose 
 of gaming and gambling.^** 
 
 (b) Defendant is charged with committing the offense of keep- 
 ing and exhibiting a gaming table and bank on or about December 
 
 — , . You are instructed in this connection that if you believe 
 
 from the evidence, beyond a reasonable doubt, that defendant did 
 commit such an offense on Dec. — , you are charged that it is your 
 duty to convict him.^^ 
 
 § 3278. Lottery — Aiding and Assisting, (a) If you believe and 
 find from the evidence and under these instructions beyond a reason- 
 able doubt that at the city of St. Louis and state of Missouri, at 
 any time within three years next before the 29th day of May, 1903, 
 the defendant, T. willfully and unlawfully did aid and assist in mak- 
 ing and establishing as a business and avocation in the city of St. 
 Louis and state of Missouri a lottery or scheme of drawing in the 
 nature of a lottery, and that the same was known as the ''Mexican 
 Lottery," and whereby any money of any amount and value what- 
 ever might be acquired of said lottery by lot or chance, you will 
 'find the defendant guilty as charged in the second count of the indict- 
 ment ; and unless you so find tlie facts you will acquit the defendant. 
 If you find the defendant guilty, you will assess his punishment in the 
 penitentiaiy for a term of not less than two years nor more than five 
 years, or at imprisonment in the city jail or workhouse for not less 
 than six months nor more than twelve months.^- 
 
 9— Toler v. State, 41 Tex. Cr. dated March 17, 1899. White's Ann. 
 
 App. 659, 56 S. W. 917. Code Cr. Proc. par. 346." 
 
 The court said that an inspection 12— State v. Miller, 190 Mo. 449, 89 
 
 of Stearnes v. State, 21 Tex. 692, S. W. 377 (380). 
 
 shows that this definition is an ex- "The instruction is attacked 
 
 act copy of the one there laid upon the ground that there was 
 
 down; and held the same to be cor- not sufficient evidence upon which 
 
 rect, citing Bouv. Law Diet. 704; to base it. The statute upon which 
 
 8 Am. & Eng. Enc. Law, p. 1033. this instruction is based was he^ors 
 
 10 — Brown v. Owen, 75 Miss. 319, the court in State V. Pomeroy, 130 
 
 23 So. 35. Mo. 489, 32 S. W. 1002. and it was 
 
 11 — Haynes v. State, — Tex. Cr. there held that in a prosecution for 
 
 App. — , 56 S. W. 923. making or establishing a lottery 
 
 The affidavit and information in as a business or avocation in this 
 
 the foregoing case charged that ap- state it was not necessary to show 
 
 pellant committed the offense on that the drawings were to occur in 
 
 or about December 29th, 1898. "In this state. The evidence in thi.s 
 
 prosecutions under this statute the case is as strong as, if not stronger 
 
 state can prove the commission of than, that offered on Pomeroy's 
 
 the offense at any time within two Case, and we think amply sufficient 
 
 years prior to the date of the in- to show that the defendant was 
 
 formation. The information was aiding and assisting in making and 
 131
 
 2082 FORMS OP INSTRUCTIONS. [§ 3279. 
 
 (b) You are instructed, further, that the mere fact that the de- 
 fendant sold lottery tickets is not of itself sufficient to prove the 
 charge made in the indictment herein, unless you further find from 
 the evidence that within three years next before the filing of the 
 indictment the defendant aided and assisted in making and establish- 
 ing a lottery or scheme of drawing in the nature of a lottery as a 
 business and avocation in the city of St. Louis and state of Mis- 
 souri.^^ 
 
 MALICIOUS MISCHIEF. 
 
 § 3279. Malice, When Implied, (a) If the jury believe, from the 
 evidence, beyond a reasonable doubt, that the defendant inflicted 
 the injuiy upon the property in question, in manner and fonn as 
 charged in the indictment, willfully and wantonly, and without any 
 reasonable excuse being given therefor, then the law will imply 
 malice against the owner of the property.^'' 
 
 (b) If the jury believe, from the evidence, that the defendant 
 shot and injured the animal in question, in manner and form as 
 charged in the indictment, recklessly and wantonly, and without any 
 provocation, then the law will presume malice against the owner, and 
 the jury should find defendant guilty.^^ 
 
 § 3280. Malice Must Be Proved. This being an indictment for 
 malicious mischief, malice is a necessary element to be proved, or 
 made to appear from the facts or circumstances proved. Without 
 this ingredient the crime is not complete, and the act complained of 
 
 establishing the business of a lot- victed; and he testified himself that 
 
 tery in this state in a most im- he did sell tickets, obviously with 
 
 portant particular. He devoted his the view to red'uce his offense from 
 
 time to the business, employed a felony to a mere misdemeanor, 
 
 agents to make a business, distrib- It appears that his counsel on dif- 
 
 uted winning lists, and paid prizes, ferent occasions during the prog- 
 
 and, as said by this court in State ress of the trial stated that the of- 
 
 V. Wilkerson, 170 Mo. 184, 70 S. W. fense of which the defendant was 
 
 478: 'We know of no more effective guilty was selling tickets. An in- 
 
 way to assist in making and estab- struction is not erroneous which 
 
 lishing a business as an avocation assumes as true the fact which is 
 
 than to participate in it and to de- admitted on the trial. State v. 
 
 vote one's time and service in «o Holloway, 156 Mo. 222, 56 S. W. 734; 
 
 doing.' Wiithout repeating the evi- State v. Edwards, 71 Mo. 312. As 
 
 dence which appears in the state- to the criticism of the instructions 
 
 mont, we think there was ample that they do not use the word 'fel- 
 
 evidence to justify the verdict of oniously.' We have answered that 
 
 the jury." contention in State v. Cronin, 189 
 
 13— State V. Miller, supra. Mo. 663, 88 S. W. 604. See also State 
 
 "The objection to the instruction v. Scott, 109 Mo. 232, 19 S. W. 89; 
 
 is that it assumes that the defend- State v. Garth, 164 Mo. 553, 65 S. W. 
 
 ant sold lottery tickets without 275; State v. Tobie, 141 Mo. 547, 42 
 
 submitting that fact to the jury. S. W. 1076." 
 
 We think it is without merit. The 14—2 McClain Crim. Law, sees, 
 
 defendant submitted an instruction 829, 833; 2 Whar. Crim. Law, 7 Ed. 
 
 himself to the effect that, if he only 2008. 
 
 bought tickets and sold them on his 15— Mosby v. State, 28 Ga. 190. 
 own account, he could not be con-
 
 §3281.] CRIMINAL— PHYSICIANS, ETC. 2083 
 
 would be only a trespass, for which the party injured would be com- 
 pelled to resort to a civil action for redress.^^ 
 
 § 3281. Malicious Injury to an Animal — ^Malice Against the Owner 
 Must Be Shown, (a) The malice necessary to constitute this of- 
 fense must exist against the owner of the property, or against 
 some one having a general or special interest therein. Malice against 
 the animal, if proved, will not warrant a conviction. ^^ 
 
 (b) Li order to convict the defendant upon this indictment, the 
 prosecution must prove, to the satisfaction of the jury, that the 
 defendant knew or supposed the animal in question belonged to the 
 said A. B., and so knowing or supposing, willfully and deliberately 
 injured the same, through malice towards the said A. B. ; and unless 
 this has been done it is your duty to acquit the defendant. ^^ 
 
 § 3282. Ownership, How Proved. When personal property left in 
 the care and custody, and under the control of a person not the 
 absolute owner, but having a legal right to such possession, not as 
 agent or seiwant of such owner, is injured, the person having such 
 control and possession has such an interest in the property as will 
 authorize the property to be laid in the indictment, for maliciously 
 injuring the same, as the property of the person so having it in 
 charge. ^^ 
 
 § 3283. Injury Done Willfully for the Purpose of Gain — Personal 
 Malice Need Not be Shown. If the jury believe, from the evidence, 
 beyond a reasonable doubt, that the defendant injured the (property 
 in question) that the injury was a serious one and was done willfully 
 and deliberately for the purpose of gain or benefit to himself, then 
 the juiy may find the defendant guilty, in manner and form as 
 charged in the indictment, although the evidence does not show that 
 the defendant had any personal malice towards the owner of the 
 property. ^° 
 
 PHYSICIANS AND SURGEONS. 
 
 § 3284. Disinterring Dead Bodies for Surgical Experiment — Intent, 
 Proof Required, (a) K the juiy shall find and believe from the 
 evidence, beyond a reasonable doubt, that the defendant, on or about 
 
 the of , , at and in the County of C. and State 
 
 of Missouri, did then and there dig up, disinter, and remove the dead 
 body and remains of L. G., deceased, from the gi-ave in which said 
 dead body and remains had been inten-ed, and then and there was, 
 for the purpose of dissection, and surgical and anatomical experiment 
 
 16— Gaskill v. State, 56 Ind. 550. 18— Newton v. State, 3 Tex. App. 
 17— State V. Enslow, 10 la. 115; 245. 
 74 Am. Dec. 378; U. S. v. Gideon, 1 19—2 Whar. Crim. Law, 2 Ed. 
 Minn. 292. Contra: Mosby v. State, 1818; People v. Horr, 7 Barb. 9; 2 
 28 Ga. 190. McClaln on Crim. Law, sec. 831. 
 
 20— Brown v. State. 26 Ohio St. 
 176.
 
 2084 FORMS OP INSTRUCTIONS. [§ 3285. 
 
 and preparation, of said body and remains, then you should find him 
 gnilty as charged in the indictment. 
 
 (b) The jury are instructed that the intent of the defendant in 
 removing the dead body of L. G. from the grave where it had been 
 interred, if you find that he removed said body, need not be proved 
 by direct and positive testimony, but may be inferred from the facts 
 and circumstances in proof.-^ 
 
 § 3285. Practicing Medicine Without a Certificate — ^Reasonable 
 Doubt, (a) The information in this cause charges the defendant 
 with unlawfully practicing medicine by pi'escribing for, issuing medi- 
 cine to, and treating one A. H. for the cure of a disease and bodily 
 affliction, and that the same was done in the county of S. and the 
 State of Missouri, and unless you so find and believe fi'om the evi- 
 dence, beyond a reasonable doubt, you should acquit the defendant. 
 
 (b) The court declares the law to be that if you find from the 
 evidence that the defendant, at the eoi;nty of S. and State of Missouri, 
 at any time within one year next before the filing of this information, 
 did publicly profess to be a physician, and that by reason of his pub- 
 licly professing to be a physician, one A. H. accepted his services 
 in his professional capacity by calling upon defendant, and defendant 
 prescribed for, treated, and issued medicine to said A. H., who was 
 then and there a sick person; and that the defendant, at the time of 
 so prescribing for, treating, and issuing medicine to said A. H., was 
 not a registered physician of the State of Missouri, and has no certifi- 
 cate issued by the board of health of the State of Missouri, authoriz- 
 ing him to practice medicine in the State of Missouri, you should 
 find the defendant guilty as charged, and assess his punishment at a 
 fine not less than $50 nor more than $500 or at imiDrisonment in the 
 county jail not less than 30 days nor more than one year, or at both 
 such fine and imprisonment. -- 
 
 § 3286. Practice of Medicine — Diploma from an Accredited School 
 Required. In connection with the main charge, the jury are instructed 
 that an accredited medical college is one which is chartered by the 
 legislature of the state, or its authority, in which such college is sit- 
 uated ; and if you find that before Jan. 1, , defendant did file for 
 
 record with the clerk of the district court of Gonzales county a 
 diploma from an accredited medical college, as the term has hereto- 
 fore been defined, then you will acquit him.-^ 
 
 § 3287. Sale of Drugs without License — Domestic Remedies Ex- 
 cepted. Although the jury may believe, from the evidence, that the 
 defendant sold iodine and quinine, yet, if they further believe from 
 the evidence, that they are domestic remedies, then the defendant 
 is not liable for such sales.-* 
 
 21— State v. Fox, 148 Mo. 517, 50 S. 24— People v. Fisher, 83 111. App. 
 
 W. 98 (99). 114 (116). 
 
 22— State v. Davis, 194 Mo. 485, The court held that "the sale of 
 
 92 S. "W. 484. 'domestic remedies' is exempted 
 
 23 — Aldenhoven v. State, 42 Tex. from the statutory provisions under 
 
 Cr. App. 6, 56 S. W. 914 (915). which was being- prosecuted.
 
 §3288.] CRIMINAL— MISCELLANEOUS. 2085 
 
 MISCELLANEOUS PROSECUTIONS. 
 
 § 3288. Peddling Without a License — One Sale Sufficient if Inten- 
 tion to Continue Exists. The jury are instructed that it was not 
 necessary that the defendant should have owned the goods or have 
 had any interest in them, or that he engaged in the business for a 
 livelihood or profit ; that if defendant knew the owner of the goods 
 had no license, and defendant went along with the ownei', and aided 
 and abetted in such sales, Goodman, the owner, being engaged in the 
 business of peddling, and agreeing to pay defendant's expenses for 
 such services, then defendant would be guilty as charged, although 
 he assisted and participated with the owner of said goods in but one 
 sale, provided it was defendant's intention to continue to assist in 
 the business; that one sale by the defendant would have constituted 
 the offense charged, provided he had made proposition and intended to 
 continue in the business employed by Goodman to cany the valise for 
 his expenses, and that it was not necessary that he should have 
 engaged further than this in the business for a livelihood or profit. ^^ 
 
 § 3289. Obstructing Highway — Sufficient Proof of. In prosecu- 
 tions for obstructing a public highway, upon the question of the 
 existence of such highway, it is sufficient to prove that the same 
 was, at the time of the alleged obstruction, used and worked as such. 
 The work here referred to is such as is done by authority of the 
 proper supervisor.-*^ 
 
 * * * It is urged that, as the portion of the oral charge of the 
 
 Supreme Court held inferentially in court excepted to by the defendant 
 
 the case of Cook v. People, 125 111. was in accord with the views above 
 
 278, that quinine is a domestic rem- expressed, and is free from error." 
 
 edy, it was error to submit to the 26 — Johns v. State, 104 Ind. 557, 4 
 
 jury as the instruction did the de- N. E. 153 (155). 
 
 termination of whether that drug "This instruction," said the court, 
 is a domestic remedy. The logic of "was based upon section 1811, Rev. 
 that contention is that quinine as St. 1881, which is as follows: 'In 
 a matter of law is a drug that can any prosecution for obstructing a 
 be legally sold only by a registered highway * * * it shall be suf- 
 pharmacist, and is not a domestic ficient to prove that it is used and 
 remedy. All that was said by the worked as such.' This section 
 Supreme Court in Cook v. People, should not be construed as under- 
 supra, was that the court thought taking to make such proof con- 
 that 'the jury were fully warranted elusive of the fact that the way al- 
 in finding from the evidence that leged to have been obstructed is a 
 quinine was not one of the usual public highway. The legislature 
 domestic remedies referred to in cannot thus make any item of evi- 
 said proviso.' We are clearly of dence conclusive. "Wantlan v. 
 the opinion that in prosecutions White, 19 Ind. 470. The reasonable 
 under this act the determination of interpretation of this section is that 
 whether the drug sold is a domestic such proof, in the absence of coun- 
 remedy is a question of fact for tervailing proof, is sufficient to 
 the jury." susta'n the charge that the way is 
 
 25— Keller v. State, 123 Ala. 94, 26 a public highway. The case thus 
 
 So. .323 (324). made may be overthrown by proof 
 
 "The case," said the court, of such facts as will show that the 
 
 "clearly falls within the influence way is not a public highway, or 
 
 of the decisions in Abel v. State, by proof of such facts as will raise 
 
 90 Ala. 631, 8 So. 760; Segars v. a reasonable doubt as to whether 
 
 State, 88 Ala. 144, 7 So. 46. That or not it is such public highway.
 
 2086 FORMS OF INSTRUCTIONS. [§ 3290. 
 
 § 3290. Obstruction Willfully Placed in Navigable Stream. The 
 jury are instructed that if they believe all of the evidence in this 
 ease, and find from the evidence, beyond a reasonable doubt, that 
 
 the is a navigable stream, and further find that the defendant 
 
 obstructed the same by willfully placing posts in same as testified, 
 then the defendant is guilty, and you should so find.-^ 
 
 § 3291. Military Expedition — Transporting Men and Arms. In 
 passing on the first question, it is necessary to understand what 
 constitutes a military expedition within the meaning of this statute. 
 For the purposes of this ease, it is sufficient to say that any com- 
 bination, of men organized here to go to Cuba to make war upon 
 its government, provided with arms and ammunition, we being at 
 peace with Cuba, constitutes a militaiy expedition. It is not neces- 
 sary that the men shall be drilled, put in uniform, or prepared for 
 efficient service, nor that they shall have been organized as or accord- 
 ing to the tactics or rules which relate to what is known as infantry, 
 artillery, or cavalry. It is sufficient that they shall have combined 
 and organized here to go there and make war on a foreign govern- 
 ment, and to have jDrovided themselves with the means of doing so. 
 I say ''provided themselves with the means of doing so," because 
 the evidence here shows that the men were so provided. Whether 
 such provision, as by amiing, and so forth, is necessary need not be 
 decided in this case. I will say, however, to counsel that were that 
 question required to be decided I should hold that it is not necessary.^^ 
 
 § 3292. Military Expedition — Knowledge of Accused that it is 
 Such. To convict the defendants, it is necessaiy that the govern- 
 ment shall have satisfied your minds beyond a reasonable doubt that 
 this was a militaiy enterprise, and that the defendants when they 
 started knew it. Otherwise they are not guilty.-^ 
 
 § 3293. Concealing Inferiority of Food — Adulteration. Now be- 
 fore the inferiority of an article can be concealed it must be neces- 
 sarily first ascertained as to whether or not there is an inferiority 
 in the article. If it is an inferior article and that inferiority is con- 
 cealed by reason of the addition of foreign substance in this vanilla, 
 and you are satisfied from the proof beyond a reasonable doubt of 
 the fact, then he would be guilty, although he had no knowledge as 
 to the foreign substance being in the bottle. 3° 
 
 The purpose of the statute is to case. Whether or not such an in- 
 
 dispense with the tedious and struction as the above would be a 
 
 sometimes difficult proof that the proper one in a case of conflict in 
 
 way is a public highway, where, in the evidence as to the existence of 
 
 fact, there is or ought to be no real the way as a public highway, is a 
 
 controversy about that fact. In question we need not now decide." 
 
 this case, the evidence is not in the 27— State v. Baum, 128 N. C. 600, 
 
 record, and hence we cannot know 88 S. E. 900. 
 
 that there was any evidence at all 28 — Wiborg v. United States, 163 
 
 as to the highway, except evidence U. S. 632 (653), 16 S. Ct. 1127 (1197). 
 
 of the use and work that the 29 — Wiborg v. United States, 163 
 
 charge implies. That evidence the U. S. 632 (655), 16 S. Ct. 1127 (1197). 
 
 statute makes sufficient in such a 30 — People v. Hinshaw, 135 Mich. 
 
 378, 97 N. W. 758.
 
 § 3294.] CRIMINALr— MISCELLANEOUS. 2087 
 
 § 3294. Breach of the Peace— Vile Epithets on Public Street. I 
 
 instruct you, as a matter of law, that a person who, on the public 
 streets of a city, in the presence of several pei-sons, applies to another 
 vile epithets, with the intention of annoying, offending, and disturb- 
 ing such person, commits a breach of the peace.'^^ 
 
 § 3295. Abusive Language in Presence of Female. If, after con- 
 sidering all the evidence, the jury have a reasonable doubt arising 
 out of any part of the evidence as to whether the language used by 
 the defendant was in the presence or hearing of a female, then the 
 jury must find the defendant not guilty.^^ 
 
 § 3296. Construction of a Vehicle— Oil Tank Held a Part of the 
 Wagon. If you believe from the evidence that the wagon of defend- 
 ant mentioned in the indictment was constructed with four wheels, 
 two front and two rear, or hind wheels, the wheels being joined by 
 axles on which rest bolsters, bars or springs, and if the bolsters, bars 
 or springs are connected from front to rear by side bars or reaches 
 or platform by which, when a team is attached to the tongue of such 
 wagon, the same could be hauled and moved about ; and if you believe 
 that, after such construction of said wagon, a boiler or tank of iron 
 was placed upon said wagon to be used for transporting oil, and so 
 fastened to said wagon, its said side bars, bars, or platforms and 
 bolsters, as to hold and keep the same in place when filled with oil — 
 then said boiler or tank was a part of the load on said wagon equally 
 with the oil contained therein. ^^ 
 
 § 3297. Instruction as to Measurement of Lobster. I instruct you 
 that, in contemplation of that statute, the lobster should be laid upon 
 its back, and extended, upon the measure to the end of the tail, the 
 back all being made of joints so that it can naturally and readily lie 
 down, or be laid down, upon the board; that any other waj', as by 
 lifting the end of the flipper, which I believe it is said has the 
 tendency or effect of lengthening the lobster, is not in contemplation 
 of the law.34 
 
 § 3298. Quiet and Peaceable Possession — Unlawfully Break, Pull 
 Down or Injure Another's Fence — Series, (a) You are charged, as 
 the law of this case, as follows: By ''quiet and peaceable possession" is 
 meant such possession as is acquired peaceably and without force, and 
 as is continuous and uninterrupted from the date of such acquisition 
 to the date of the alleged injuiy ; or such possession as is acquired by 
 dispossessing another, but afterwards ratified or acquired (acquiesced) 
 
 31— State V. Appleton, 70 Kan. that further discussion is unneces- 
 
 217, 78 Pac. 445. sary." 
 
 32— Rollings v. State, 136 Ala. 126. 34— Campbell v. Burns, 94 Me. 
 
 34 So. 349. 127. 46 Atl. 812 (815). 
 
 33— Hamilton v. State. 22 Ind. Action of debt brought under 
 
 App. 479, 52 N. E. 419 (422). chapter 285, statute of 1897. to re- 
 
 "This instruction is a correct ex- cover the penalty of five dollars for 
 
 position of the law, as applied to each and every lobster less thau 
 
 the facts in this case. It is so well ten and one-half inches in length 
 
 settled, so clear and to the point alleged to have been found in- the 
 
 possession of the defendant.
 
 2088 FORMS OF INSTRUCTIONS. [§ 3299. 
 
 in by the person dispossessed, and is continuous and uninterrupted 
 from the date of such ratification or acquiescence to the date of the 
 alleged injury. You are further charged that the title to the land 
 upon which the fence alleged to be injured is situated, or the title 
 to the land inclosed by said fence, or the right of possession based 
 upon such title, is not an issue in this case, and is not to be con- 
 sidered by you. Now, if you believe from the evidence beyond a 
 
 reasonable doubt that defendant M. P., on or about the day 
 
 of , , in the county of W. and State of T., did then and 
 
 there unlawfully break, pull down or injure a fence belonging to 
 Mrs. D., and that said fence was then and there under the control of 
 W. W., and that said W. W. was then and there holding same under 
 a lease contract, and that said breaking, pulling down or injury, if 
 any, was done without the consent of the said Mrs, D. or of the said 
 W. W., or of either of them; and that at the time of said injury, if 
 any, the said W. W. was in actual possession of said fence and the 
 land inclosed by it, and that such possession at said time was quiet 
 and peaceable, as these terms have hereinbefore been explained to 
 you — then you will find defendant guilty, and assess his punishment, 
 etc. 
 
 (b) The defendant in a criminal ease is presumed to be innocent 
 until his guilt is established by legal evidence beyond a reasonable 
 doubt, and in case you have a reasonable doubt as to the defendant's 
 guilt you will acquit him, and say by your verdict, ''Not guilty." 
 
 (e) If you believe from the evidence that on the 28th of October, 
 1903, the defendant was in the actual, quiet and peaceable possession 
 of the land on which the fence is situated that is involved in this suit, 
 then you will acquit the defendant. 
 
 (d) If you believe from the evidence that at the date of the 
 commission of the alleged offense on the 28th of October, 1903, W. W., 
 as the tenant of Mrs. D., was not in the actual, quiet and peaceable 
 possession of the land on which the fence involved in this suit is 
 situated, then you will acquit the defendant, for, unless you so find 
 that said W., as tenant of Mrs. D., was so in the actual, quiet and 
 peaceable possession of said land, you cannot find defendant guilty.^^ 
 § 3299. Cutting Trees. The jury are instructed that if you be- 
 lieve from the evidence and all the circumstances in evidence, that 
 
 35 — Pate v. State, — Tex. Cr. another; and property, within the 
 
 App. — , 81 S. W. 737 (738). contemplation of this statute, is 
 
 "We think that the above the possession. That is. the party 
 charges amply and properly' cov- who has the actual exclusive and 
 ered the facts in this case; the peaceful possession of the property 
 sole question being as to the peace- can maintain a prosecution against 
 able and quiet possession of the one who injures any property of 
 land, the title not being involvea which he has such possession. Car- 
 in this prosecution. In other words, ter v. State, 18 Tex. App. 573; Jen- 
 it is immaterial who actually kins v. State, 7 Tex. App. 146; 
 owned the land. The offense de- Behrens v. State, 14 Tex. App. 121; 
 nounced by the statute under con- Arthbutnot v. State, — Tex. Cr. 
 sideration is against the party who App — , 34 S. W. 269." 
 molests or injures the property of
 
 §3299.] 
 
 CRIMINAL— MISCELLANEOUS. 
 
 2089 
 
 the defendant X., prior to the cutting of the trees, was a member of 
 the board of trustees of the Y. cemetery association, and as such 
 trustee advised with other members of said board of trustees Avith 
 reference to the cutting of the trees, and that such other trustees 
 advised that the trees shoukl be cut, and that the defendant, acting 
 in good faith and upon such advice, and believing it would be of 
 benefit to said cemetery, and without any evil design or intent, did 
 cut the trees, then you should find the defendant not guilty,^® 
 
 36 — Mettler v. People, 135 111. 410 
 (415), 25 N. E. 748. 
 
 The court said: "The general 
 rule requiring the acts of a cor- 
 poration to be evidenced by a reso- 
 lution of its board, has no applica- 
 tion to the question involved in 
 the ruling of the court, and the ad- 
 mission of the evidence, and under 
 the instruction. The defendant 
 was indicted for a criminal offense, 
 — for knowingly and willfully with- 
 out color of title cutting trees be- 
 longing to a corporation without 
 the consent of the corporate au- 
 thorities. Suppose these trustees 
 all agreed that it was for the best 
 interest and welfare of the associa- 
 tion that these trees should be cut 
 and removed from the cemetery 
 grounds and they directed the de- 
 fendant to cut and remove the 
 same, A\-e think it is plain that if 
 the defendant did cut under such 
 direction and authority, it could 
 not in justice be said that his ac- 
 tion was willful or that he was 
 guilty of a crime in carrying out 
 the wishes of the board of trustees. 
 These trustees, including the de- 
 fendant, were in possession of the 
 land belonging to the corporation. 
 They had charge of the grounds 
 and the management and improve- 
 ment thereof, and if they, con- 
 
 stituting a majority of the board, 
 think proper to cut a tree, dig a 
 ditch to drain the ground, remove 
 a fence or make any other slight 
 improvement, we think it might be 
 done ■without subjecting the per- 
 sons engaged in the work to a 
 criminal prosecution, notwith- 
 standing the board was not as- 
 sembled and a resolution adopted 
 directing the work to be done. 
 Moreover, the section of the stat- 
 ute under which the defendant was 
 indicted requires the act to be done 
 knowingly and \%illfully without 
 color of title made in good faith, 
 and without the consent of the 
 proper authorities or persons hav- 
 ing legal charge thereof. In what 
 maimer was consent to be given to 
 remove from the act the criminal 
 intent which lies at the threshold 
 of every crime? This statute does 
 not declare that such consent shall 
 be given by resolution duly passed 
 and recorded, and, in the absence 
 of a provision of that character, 
 we are inclined to hold in a crim- 
 inal proceeding consent may be 
 proven in the manner offered by 
 the defendant. The offered evi- 
 dence should, in our opinion, have 
 been admitted, and the instruction 
 asked should have been given."
 
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