clerk is hereby referred to and made part of this affidavit. Affiant further says that in the afternoon of January 7th, 1901, while in the clerk's office of said court, his attention was called to a memorandum pinned on the minute book of said court and over the judgment on said book, which memorandum is as follows: 'Defendant perpetually enjoined conducting water through the ditch across the Era Claim.' This affiant was then and there informed by Mr. Gaylord, deputy clerk of this court, that said memorandum was received by him by telephone from Colorado Springs, El Paso county, Colorado, from the Honorable E. C. Stimson, and that said order was received the evening of January 5th, 1901. Affiant further sayeth not. J. J. McFeely.

"Subscribed and sworn to before me this 8th day of January, 1901. A. W. Grant, Clerk Dist. Court, by W. E. Foley, Deputy. [Seal.]"

"E. K. Gaylord, of lawful age being first duly sworn, on his oath deposes and says: "That he is and was on the 4th and 5th days of January, A. D. 1901, the duly authorized, appointed and acting deputy clerk of the Fourth judicial district of the state of Colorado, within and for the county of Teller. That on the said 4th day of January, A. D. 1901, in open court, a certain judgment was rendered in cause No. 233, The Era Gold Mining Company, plaintiff, vs. Thomas O'Brophy and The Victor Gold Mining Company, defendants, which is shown in abbreviated minutes as they appear upon page 119 of the minute book used by the clerk in making memoranda of orders and judgments rendered by the court. Affiant further says that the memoranda appearing upon said page in said cause No. 233 is correct memoranda of the order and judgment as then made and ordered to be entered by the court. Affiant further states that on the following day at three or four o'clock in the afternoon of January 5th, A. D. 1901, said affiant received a telephone message from Hon. Edward C. Stimson, who was then at Colorado Springs, Colorado, and in the course of the conversation had between said judge and affiant on said day, said judge ordered said affiant to change and alter the judgment theretofore rendered in open court in said cause No. 233 so that the memorandum thereof read as appears upon the slip pinned to the minute book opposite the memorandum made the previous day in open court in said cause No. 233. E. K. Gaylord.

"Subscribed and sworn to before me this 8th day of January, A. D. 1901. Kate C. Gustin, Notary Public. [Notarial Seal.]"

And thereupon, the plaintiff, on the ruling of the court on the above motion, presented a counter motion, asking that the court make a nunc pro tunc order as of January 4, 1901, which motion is in words and figures as follows, to wit: "Now comes the plaintiff by T. J. O'Donnell and Milton Smith and S. D.

Crump, its attorneys, and moves the court that the record entry of the judgment and decree of this court made and entered in the above-entitled cause on, to wit, the 4th day of January, A. D. 1901, be corrected so that the same will speak the truth and correctly state the judgment and decree made in said cause on said date by said court, and as grounds for said motion says that the entry of judgment is not the judgment ordered to be entered by the judge of said court, but the same as entered was entered through mistake and inadvertence of the clerk and judge of said court. This motion is based upon the records and files of said court and cause and upon the affidavit of Edward C. Stimson filed herewith. Milton Smith, Attorney for Plaintiff."

Thereupon the plaintiff offered in evidence the affidavit of Hon. E. C. Stimson, which is as follows, to wit:

"Edward C. Stimson being duly sworn, deposes and says: That he was one of the duly acting judges of the district court within and for said county of Teller, in the state aforesaid, and that as such judge he presided at the September term of said court held at Cripple Creek, in said county during the month of September, 1900, other months, and January, 1901, which said term of court adjourned sine die on the second (2d) day of February, A. D. 1901. That as the judge of said court on the 4th day of January, 1901, he rendered a judgment in the above-entitled cause in favor of the plaintiff and directed that said judgment be entered by the clerk of said court. That in directing the entry of said judgment deponent did not have in mind the fact that the injunction issued in said cause had been modified so as to permit the defendant to use the ditch across the plaintiff's property during the pendency of the action and through mistake and inadvertence directed the clerk to enter a judgment making perpetual the temporary injunction issued in said cause and thereafter modified. That on the next day, to wit, on the 5th day of January, 1901, this deponent while at Colorado Springs, Colorado, became aware that said judgment as entered upon the clerk's minutes was not the proper judgment in said cause and was not the judgment which he had actually intended to render in said cause, and thereafter on said day telephoned the clerk of said court instructing him to enter the judgment as the same had been rendered, perpetually restraining the defendant from using the ditch across the plaintiff's property, which was the subject-matter of said suit, and deponent says that the record of the judgment in said cause made by the clerk of said court under date of January 5th, 1901, is the judgment which deponent as judge of said court rendered in said cause on January 4, A. D. 1901; and further deponent saith not. Edward C. Stimson.

"Subscribed and sworn to before me this

23d day of February, A. D. 1901. My commission expires - A. W. Grant, Clerk, by W. E. Foley, Deputy. [Seal.]"

Thereupon the court made the following order: "At this day in open court come said parties by their attorneys respectively. Thereupon this cause comes on to be heard upon the motion of said defendants herein to prevent the clerk of this court from entering in the records a certain order as modified on January 5, 1901, by a telephone message fom the Honorable Edward C. Stimson, at that time one of the judges of this court. The same is argued by counsel and submitted to the court, and the court being sufficiently advised in the premises doth deny said motion, to which ruling of the court said defendant duly excepts."

On the 1st day of March, 1901, the following proceedings were had: "At this day in open court come said plaintiff by its attorney S. D. Crump, Esq., and said defendants by their attorney, J. J. McFeely, Esq., and thereupon this cause coming on to be heard upon the motion of the plaintiff herein to have judgment entered as modified on January 5th, 1901, nunc pro tunc as of January 4th, 1901, the same is argued by counsel and submitted to the court, and the court being fully advised in the premises doth deny said motion, to which ruling of the court said plaintiff duly excepts. And it is ordered that time and until forty days from and after this day be and the same is hereby allowed said defendant within which to prepare and tender to the Honorable William P. Seeds, judge of said court, his bill of exceptions by him reserved herein, and when signed and sealed by said judge shall be filed herein as of this day."

All the matters aforesaid occurring subsequent to the judgments are preserved by bill of exceptions and made a part of the record. The plaintiffs in error present the following assignment of errors: "(1) The court erred in not restraining the clerk from entering the order received by telephone on January 5th; (2) the court erred in permitting the affidavit of former Judge E. C. Stimson to be read on the hearing of this motion to explain his judgment or the judgment of the court of January 4th; (3) the so-called order of January 5th received by telephone from Colorado Springs is void and of no force, and should be expunged from the records in this case; (4) the court erred in overruling the motion to restrain the clerk from entering the telephone order of January 5th in the records of this case; (5) because said order of January 5th was not rendered in open court; (6) because the Honorable E. C. Stimson had no authority whatever while in El Paso county, Colo., to render a judgment or order in the case that had been tried, and judgment rendered and entered in the district court of Teller county, Colo.; (7) because the telephone order of January 5th, if allowed to remain in the record of this case, is in direct contra

diction to the judgment rendered in open court on January 4th; (8) because the judgment rendered in open court on January 4, A. D. 1901, should stand as the final judgment in this cause, until the same is reversed or modified according to law."

James J. McFeely, for plaintiffs in error. T. J. O'Donnell and Milton Smith, for defendant in error.

GODDARD, J. (after stating the facts). It is insisted by counsel for defendant in error that this record does not present for review any of the rulings complained of by counsel for plaintiff in error for the reason, as it is claimed, that the writ of error does not run to a final judgment; and, assuming this to be true, the decision in Schmidt v. Dreyer, 21 Colo. 100, 39 Pac. 1086, is relied on as conclusive of this proposition. That case was an action in replevin. A final judgment was rendered in favor of Dreyer at the November term, 1891, of the county court of Arapahoe county, which, by mistake of the clerk, was incorrectly entered. On January 12, 1895, upon discovery of this mistake, he applied for an order to amend and correct the entry so as to make the record express the judgment which was, in fact, pronounced by the court. The court heard the testimony and made an order directing such correction to be made. This court held that from the record presented it appeared that the writ of error was taken to review this order, and not to the final judgment theretofore rendered, and, for the reason that this essential statutory requirement had not been complied with, dismissed the writ of error. It will be observed that the record before us is not objectionable for the reasons given in that case, but contains all the proceedings had and all orders made in the case, including the judgments of the 4th and 5th of January, 1901, and all the proceedings had in relation to the latter judgment subsequent thereto, and by the errors assigned the validity of the latter judgment is directly challenged, and the correctness of the ruling of the trial court in denying the motion to restrain the clerk from entering the same of record. We think, therefore, the validity of what purports to be a final judgment, to wit, that of January 5, 1901, is properly presented for our consideration and determination.

Counsel for defendant in error devote considerable space to the discussion of the power of a court to amend or correct a judgment during the term at which it was rendered. We concede the rule to be well settled that a court has power to not only correct, but also to change, its judgment during the term, and has power at any time to correct the record to make it speak the truth. Suffice it to say that the exercise of such a power is not involved in this case; but the question presented is whether a judge is vested with authority, acting outside the court, to change or alter a judgment theretofore duly rendered in open

court. In other words, has he authority, by telephone or otherwise, to render a judgment when not present in court? As was said in Cooper v. Amer. Central Ins. Co., 3 Colo. 318: “A judgment is the sentence of the law pronounced by a court of competent jurisdiction, as the result of proceedings instituted. It is a judicial act, and to be valid must be pronounced by the court, at a time and place appointed by law, and in the form it requires." It is clearly shown by the affidavits of Mr. McFeely and Mr. Gaylord, and also Judge Stimson admits in his affidavit, that, as a matter of fact, the judgment was pronounced in open court on the 4th day of January, A. D. 1901, as shown in the minutes of the clerk, to wit, "That the injunction as modified heretofore be made perpetual." Judge Stimson further states that he did not at the time he rendered the judgment have in mind the fact that the injunction, as originally issued, had been modified, and through an inadvertence he directed the clerk to enter the judgment making the temporary injunction as modified perpetual. That on the next day, to wit, the 5th day of January, 1901, while at Colorado Springs, he became aware that said judgment as entered upon the clerk's minutes was not the proper judgment in said cause, and was not the judgment which he had actually intended to render in said cause. But nevertheless he did pronounce the judgment so entered, and it became then and there the judgment of the court. As was said in Schuster v. Rader, 13 Colo. 329, 334, 22 Pac. 505, 506: "The judgment having been so pronounced in open court, the act of entering the same in the record by the clerk was purely ministerial, and was not essential to the existence of the judgment so rendered, though the entry was necessary to preserve it, and, as a matter of proof, was the best evidence of its existence. The judgment derived its force and effect from the fact that it had been so considered, adjudged, and decreed by the court, and it became effective from the time of such adjudication and promulgation in open court, though the ministerial act of entering the same in the records of the court might be delayed." The judge was therefore without authority, while the court was not in session, to direct the clerk to enter another or different judgment in conformity with an unexpressed intention he may have had in mind at the time the former judgment was rendered. The judgment, therefore, as entered on the 5th of January, 1901, is void, and may be vacated at the same or subsequent term. 1 Black on Judgments, §§ 318, 326; Current Law, vol. 4, p. 300, and cases cited in notes 96 and 97. "The court will always, upon motion, strike from its record a judgment void for irregularity." Williamson v. Hartinan, 92 N. C. 236. And in this state such a judgment may be reviewed on error. Hoehne v. Trugillo, 1 Colo. 161, 91 Am. Dec. 703; Skinner v. Beshoar, 2 Colo. 383; Cooper et al. v. Am. Cent. Ins. Co., 3 Colo. 318; Bean v. People, 6 Colo. 98.

The plaintiffs in error were entitled to the relief sought, and the court below erred in denying their motion to restrain the clerk from entering the judgment of January 5, 1901, and its ruling thereon is reversed, and it is ordered that the court below sustain said motion, and, in case said order shall have been entered, that the same be declared void, and expunged from the records. Reversed.

GABBERT, C. J., and BAILEY, J., concur.

(36 Colo. 224)

COLORADO & S. RY. CO. v. WEBB. (Supreme Court of Colorado. Feb. 5, 1906.) 1. APPEAL-HARMLESS ERROR-ADMISSION OF

EVIDENCE.

In an action against a railroad for the killing of a horse there was no prejudicial error in permitting a witness, without qualifying himself as an expert concerning the market value of horses in that vicinity, to testify as to the quality of plaintiff's horse where other competent witnesses on the subject of value showed the horse to be worth as much or more than the amount of the verdict for plaintiff. [Ed. Note. For cases in point, see vol. 3, Cent. Dig. Appeal and Error, §§ 4162-4165.] 2. RAILROADS-INJURIES TO ANIMALS-ACTION

In an action against a railroad for the kiling of a horse, at plaintiff's request the jury were instructed that if defendant through its negligence killed the horse they should find for plaintiff, and by an instruction given at defendant's request the jury were told what duty the law imposed upon defendant under the circumstances. Held that, in view of the latter instruction and in view of the fact that defendant made no request for an instruction defining negligence, the former instruction was not erroneous for failing to give such definition. [Ed. Note. For cases in point, see vol. 46, Cent. Dig. Trial, §§ 627, 628.]

6. SAME ERROR CURED BY OTHER INSTRUCTIONS.

In an action against a railroad for the killing of a horse, any error in an instruction for failing to require defendant's negligence to

have been the proximate cause of the injury was cured by such a requirement in a subsequent instruction.

7. APPEAL-FAILURE TO PRESENT QUESTION ON TRIAL-INSTRUCTION.

In an action against a railroad for the killing of a horse, the fact that an instruction that the verdict should be for plaintiff if the horse was killed through defendant's negligence did not require the negligence to have been the proximate cause was not reversible error, when objected to for the first time on appeal, as it was mere nondirection.

[Ed. Note.-For cases in point, see vol. 2, Cent. Dig. Appeal and Error, §§ 1309-1314.] 8. TRIAL-INSTRUCTIONS APPLICABILITY TO

EVIDENCE.

In an action against a railroad for the killing of a horse, it was proper not to charge on contributory negligence where there was no evidence thereon.

[Ed. Note. For cases in point, see vol. 46, Cent. Dig. Trial, §§ 601-603.]

9. NEGLIGENCE-DEGREES OF NEGLIGENCE. Degrees of negligence, such as slight and gross, are not recognized.

was late, or that it was at the time running at the rate of 25 miles an our, or both together, are not proof of negligence, and the jury were so instructed at defendant's request; yet this testimony was admissible as throwing light, in connection with other evidence in the case, upon the particular acts of negligence on which, it seems, plaintiff relied. This was the failure by defendant's servants to make any effort to stop the train before colliding with the horse, which might have been avoided had reasonable care been used. This we gather from an examination of the proceedings of the trial, for there were no written pleadings, the action having originated in the court of a justice of the peace. Neither did the court err in permitting a witness, who was not an expert, to testify as to the speed of the train. That he was not an expert goes to the weight of his testimony. But one of ordinary experience, familiar with trains, and possessed

10. RAILROADS INJURIES TO ANIMALS-ACTION-INSTRUCTIONS.

Where, in an action against a railroad for the killing of a horse, it appeared that the horse, when it started to run toward the tracks, was upon a lot belonging to one other than the owner of the animal, but it did not appear that it was running at large, either with or without the owner's permission, or that it had become a public nuisance, the fact that there was an ordinance making it a public nuisance to permit a horse to run at large did not warrant an instruction applying the rule that where animals are by ordinance prohibited from running at large, a railroad company is not liable for an injury thereto in the absence of a showing of willful negligence or indifference.

Appeal from Summit County Court; William Thomas, Judge.

Action by George D. Webb against the Colorado & Southern Railway Company. From a judgment in favor of plaintiff, defendant appeals. Affirmed.

Diues & Whitted and J. G. McMurry, for appellant. James T. Hogan, for appellee.

CAMPBELL, J. Action for damages to recover the value of plaintiff's horse which was run over and killed by defendant's railway train, as he says, through negligent operation thereof by its servants. From a judgment for plaintiff, defendant appeals.

1. There is no merit in the assignments of error based upon the rulings on evidence. That plaintiff's witness, without qualifying himself as an expert concerning the market value of horses in that vicinity, testified as to the quality, and not the money value, of plaintiff's horse, was not prejudicial error. Other competent witnesses on the subject of value showed the horse to be worth as much as, or more than, that returned by the jury. Plaintiff's testimony as to the lateness, and rate of speed, of the train at the time of the accident was properly admitted. It is true that the mere fact that the train

The

being skilled in handling trains, is a competent witness as to the velocity of their movement. D. & M. R. R. Co. v. Van Steinburg, 17 Mich. 99; Chipman v. U. P. R. R. Co., 12 Utah, 68, 41 Pac. 562; C., B. & Q. R. R. Co. v. Gunderson, 174 Ill. 495, 51 N. E. 708. 2. The most serious question in the case concerns the legal sufficiency of the evidence to establish negligence. Briefly, the facts are that plaintiff's horse was standing in a lot, in the town of Breckenridge, belonging to Mrs. Louage, which was adjoining, or close to, defendant's railroad track, when one of its passenger trains was approaching. Shortly before reaching this lot, and before the train began to round a curve, the whistle of the engine, according to the usual custom, was blown, which frightened the horse. animal at once started toward the track, and, while attempting to cross it, or to run down the track, was struck by the engine, thrown upon the cow catcher, and carried for several hundred feet before the train was stopped. There was testimony by plaintiff's witnesses that after the whistle was sounded as the train began to round the curve, and after the engineer saw, or by the exercise of ordinary diligence might have seen, the horse running towards or down the track, no effort whatever was made by the trainmen to stop the train before the horse was struck, which might have been accomplished had the usual and ordinary means been resorted to. It is true that the fireman and engineer say that as soon as the horse was visible from the engine, the engineer, though he did not have time to blow the whistle, reversed the engine and applied the air brakes, and thus sought by every means within his power to avoid striking the horse, which he could not prevent. The question with us, however, is not as to the weight of the evidence, or whether the facts are detailed correctly by the trainmen or by plaintiff's witnesses. The credibility of the witnesses and

weight of evidence were for the jury. It is sufficient to say that there was evidence tending to show that the trainmen made no effort to stop the train, and because of such neglect the injury occurred. In other words, the evidence before the jury was legally sufficient to sustain the verdict, though were we the triers of fact, we might not agree with their decision. If, therefore, there was no error of the court in its instructions, or in the admission of testimony, this verdict must stand. As already stated, we find no prejudicial error in the ruling of the court upon the evidence.

3. Defendant, however, insists that there was prejudicial error of the trial court in the giving of certain instructions for plaintiff, and in refusing to give others requested by it. In the first instruction, given at plaintiff's instance, the jury were told that if the defendant, through its negligence or that of its servants, killed plaintiff's horse, they should find for plaintiff. The defendant's sole objection to this instruction at the time was that the meaning of "negligence" was not stated. That objection is now. renewed. There was no definition of negligence in this, or any other, instruction. Although defendant made request for other instructions, it tendered none on this point. In view of its own failure in this respect, and the additional fact that in an instruction, given by the court at its request, the jury were told that the burden was on the plaintiff to establish by a preponderance of evidence that the death of plaintiff's horse resulted from the failure of defendant's employés after they saw, or by the exercise of reasonable care might have seen, that the horse was in danger, to exercise ordinary care to stop the train and to take all other proper means to prevent injuring or killing the horse, certainly defendant was not prejudiced by the omission noted. While negligence was not defined, the jury were instructed what duty the law imposed upon a defendant in the circumstances of the case. The antithesis of negligence, which is care, the jury were thus told the defendant was bound to exercise, and that such care was ordinary care.

4. An additional ground now urged against this instruction is that it did not tell the jury that, if the negligence was established, it must have been the proximate cause of the injury. The omission of this necessary element, which the court might well have supplied in the instruction which it tendered at plaintiff's request, was nevertheless inserted in the instruction which was given on defendant's motion which we have above summarized; hence the alleged error, for the first time here assigned, was cured. At most, the alleged error consisted of nondirection, not misdirection. 11 Am. & Eng. Enc. Law (1st Ed.) 258 et seq., and cases cited; Mut. Life Ins. Co. v. Snyder, 93 U. S. 393, 23 L. Ed. 887; Denver Tramway Co. v. Lassasso, 22 Colo. 444, 45 Pac. 409; Ruby Chief M. &

M. Co. v. Prentice, 25 Colo. 4, 52 Pac 210; City of Denver v. Moewes, 15 Colo. App. 28, 60 Pac. 986.

5. There was no error in failing to charge the jury that, if plaintiff's negligence contributed to the injury, it defeated his recovery. There was no evidence of his contributory negligence, and an instruction thereupon would have been inapplicable.

6. A number of instructions, varying in form, were tendered by defendant in which the jury were told to find in its favor because no case had been made out. These were properly refused. In other instructions tendered by defendant, and refused by the court, an effort was made to have the jury instructed that unless the evidence showed that defendant had been guilty of gross negligence, in no event could plaintiff recover. Such instructions were based upon an ordinance of the town of Breckenridge, introduced in evidence, one section of which provided that whoever shall permit any horse owned by him to run at large and become a nuisance within the limits of the town shall, upon conviction, be fined in a sum not exceeding $100. In the first place, this court, by repeated decisions, has held that the doctrine of degrees of negligence, such as slight and gross, does not prevail in this jurisdiction; hence the instruction with respect to gross negligence was for this reason alone properly denied. If, however, the defendant had sought to have applied the rule that where animals are, by statute or ordinance, prohibited from running at large within a municipality, a railway company cannot be held liable for injury thereto in the operation of its trains within such limits, except under a state of facts which show that its servants are guilty of willful negligence, or are unmindful of, or utterly indifferent to, the consequences of their acts, the instruction should have been refused, because there is no evidence that the horse was allowed or permitted by its owner to run at large, or that it was, in fact, at the time running at large, or had become a public nuisance within the meaning of the ordinance. The horse, it is true, was upon a lot, whether inclosed or not the record fails to show, belonging to one other than the owner of the animal, but there is not a particle of evidence that the horse was running at large either with, or without, the owner's permission, or that it had become a public nuisance. For aught the evidence discloses to the contrary, it was lawfully on the premises of Mrs. Louage, and was not running at large.

Considering the entire record, we cannot, under the doctrine prevailing in this jurisdiction, reverse this judgment on any of the grounds urged upon us. The judgment is affirmed.

Affirmed.

GABBERT, C. J., and STEELE, J., concur.