(36 Colo. 288) SNYDER V. COLORADO SPRINGS & C. 1. CARRIERS-PASSENGERS - PERSONAL INJURIES-NEGLIGENCE-PROXIMATE CAUSE. A passenger on a crowded car stood near the door with his hand resting on the door jamb. There were people between him and the door and some on the steps. The conductor in pushing his way through the crowd pressed the passenger against a third person sitting in a seat who gave the passenger à push, throwing him from the car. Held, that the proximate cause of the injury was, as a matter of law, the action of the third person, for which the carrier was not liable. [Ed. Note.-For cases in point, see vol. 9, Cent. Dig. Carriers, § 1125.] 2. TRIAL-DIRECTING Verdict. Where, on all the evidence in an action for personal injuries, the court is able to see that the negligence complained of was not the proximate, but the remote, cause of the injury, the court must direct a verdict for defendant. [Ed. Note. For cases in point, see vol.37, Cent. Dig. Negligence, § 292; vol. 46, Cent. Dig. Trial, §§ 381-383.] 3. SAME. The court must direct a verdict for one party where it would be its duty to set aside a verdict for the adverse party. [Ed. Note. For cases in point, see vol. 46, Cent. Dig. Trial, § 383.] Error to District Court, Teller County; Wm. P. Seeds, Judge. Action by William W. Snyder against the Colorado Springs & Cripple Creek District Railway Company. Judgment for defendant, and plaintiff brings error. Affirmed. J. J. McFeeley, for plaintiff in error. E. Whitted, P. H. Holme, and Lunt, Brooks & Wilcox, for defendant in error. E. BAILEY, J. This is an action by plaintiff against defendant to recover for injuries received by plaintiff while traveling on defendant's cars as a regular passenger, going from the city of Cripple Creek to a station known as 'Midway. At the close of plaintiff's testimony the court upon motion of defendant instructed the jury to return a verdict in favor of the defendant, which was done. The case comes here upon error, and the error assigned is this instruction and verdict. There is no dispute as to the facts, which appear to be that on the night of December 20, 1900, plaintiff was a passenger on defendant's car, going from Cripple Creek to Midway. He had paid his fare, the car was crowded and, after leaving Fairview, plaintiff was standing near the door with his hand resting on the door jamb. There were people between plaintiff and the door, some upon the steps. The head of the man upon the lower step reached to about the thigh of the plaintiff. The conductor, in pushing his way through the crowd, pressed plaintiff against a party who was sitting in a seat on the side of the car. This man became angry, said that he was "getting tired of playing cushion for the electric line," and raised up against the plaintiff and gave a "surge" by the force of which plaintiff was thrown from the car, passing over the head of the man who stood upon the lower step. In plaintiff's brief it is said, in effect, that the court below in passing on the motion for nonsuit dwelt at considerable length upon the question as to what was the proximate cause of this accident. The court came to the conclusion that the proximate cause was the action of the passenger, and therefore the company was not liable. So the question for us to determine is as to what was the proximate cause of the accident. Proximate cause is: "That cause which, in natural and continued sequence, unbroken by any efficient intervening cause, produced the result complained of, and without which that result would not have occurred." D. & R. G. R. R. Co. v. Sipes, 26 Colo. 17, 55 Pac. 1093. It was defined by the Court of Appeals as being "that cause which immediately precedes and directly produces an effect as distinguished from a remote, mediate or predisposing cause." Burlington, etc., R. R. Co. v. Budin, 6 Colo. App. 275, 40 Pac. 503. "An act is the proximate cause of an event, when, in the natural order of things, and under the particular circumstances surrounding it, such an act would necessarily produce that event." Id. "The law will not look back from the injurious consequence, beyond the last sufficient cause, and especially that, where an intelligent and responsible human being has intervened be tween the original cause and the resulting damage." Stone v. Boston & A. R. Co. (Mass.) 51 N. E. 1, 41 L. R. A. 794. "The nature of the intervening cause which will render an original cause for which the author is sought to be held liable in damages too remote for recovery, must be simply such as interrupts the usual and ordinary and experienced sequence of events, and produces consequences at variance therewith." Watson on Damages for Personal Injuries, § 7. "If the original wrong only becomes injurious in consequence of the intervention of some distinct wrongful act or omission by another, the injury shall be imputed to the last wrong as the proximate cause, and not to that which was more remote." Cooley on Torts, § 70. "The injury must be the direct result of the misconduct charged; but it will not be considered too remote if, according to the usual experience of mankind, the result ought to have been apprehended. The act of a third person, intervening or contributing a condition necessary to the injurious effect of the original negligence, will not excuse the first wrongdoer, if such act ought to have been foreseen." Lane v. Atlantic Works, 111 Mass. 136. "One is bound to anticipate and provide against what usually happens, and what is likely to happen; but it would impose too heavy a responsibility to hold him bound in like manner to guard Colo.) LONGMONT FARMERS' MILLING & ELEVATOR CO. v. ALDRIDGE. against what is unusual and unlikely to happen, or what, as it is sometimes said, is only remotely and slightly probable." Stone v. Boston & A. R. Co., supra; Burlington, etc., R. R. Co. v. Budin, supra. Tried by these tests, the defendant is not responsible for the consequences of the passenger's act. There is nothing to show that such a consequence as happened was liable to occur. It was of course possible that some extremely nervous or irritable person would become angry because of his being inconvenienced on account of the crowded condition of the car; but it is not in accordance with the usual and ordinary course of events to anticipate that a seated passenger would so far lose control of himself on account of having a standing passenger crowded against him that he would eject the standing passenger from the car with such force as to throw him over the head of one who was standing upon the step below the party so ejected. It is apparent from the record in this case that the proximate cause of the injury to plaintiff was the action of the irritated passenger, and that this cause could not be anticipated by defendant or its agents. The plaintiff, however, contends that this question should have been submitted to the jury. This course would have been necessary if material facts had been in dispute but where, upon all the evidence, the court is able to see that the resulting injury was not proximate, but remote, the plaintiff fails to make out his case, and the court should so rule. Stone v. Boston & A. R. Co., supra. If the matter had been submitted to the jury and the verdict had been rendered in favor of plaintiff, it would have been the duty of the court to set it aside. Consequently, it was his duty to direct the verdict. Chivington v. Colo. Sprgs. Co., 9 Colo. 597, 14 Pac. 212. The court having committed no error in sustaining the motion and directing the verdict, the judgment of the district court will be affirmed. 687 services for which he was entitled to commissions. Held, that plaintiff having performed the services and defendant received the benefit it could not complain of a judgment against it merely because the trial court based its judgment upon reasoning not in harmony with the complaint. [Ed. Note.-For cases in point, see vol. 3, Cent. Dig. Appeal and Error, § 4234.] Appeal from District Court, City and County of Denver; John I. Mullins, Judge. Action by Washington Aldridge against the Longmont Farmers' Milling & Elevator Company. From a judgment in favor of plaintiff, defendant appeals. Affirmed. Hodges & Wilson, for appellant. John A. Perry and H. E. Kelly, for appellee. BAILEY, J. This action is brought to recover commissions for the sale of flour according to the terms of a written contract set out in the complaint, dated October 31, 1894, signed "Longmont Farmers' M. & E. Co., S. Butler, Mgr.," and by the plaintiff. Among other things, the contract provides that defendant should pay the plaintiff the sum of 32 cents per 98-pound sack, on all orders received direct by the party of the second part, or otherwise received from the territory mentioned therein. Defendant filed a general denial and counterclaim. The proof shows that upon September 1, 1894, the board of directors of defendant company held a meeting, and in the minutes of proceedings the following appears. "W. Aldridge appeared and expressed a desire that the present arrangement of paying him a commission be changed so that he would have a commission of 32 cents on all sales made in what is known as his territory, for the space of one year. The secretary was instructed, to inform him that his proposition would be accepted, except that the time be left open." On May 12, 1894, in the records of the defendant, the following appears: "Mr. Aldridge appeared to apply for agency, but not exclusive, for selling P. of R. [a brand of flour] in state instead of Denver. This was granted on the following conditions." The conditions are not material to this controversy, and this excerpt from the proceedings of May 12th is mentioned for the purpose of determining the meaning of the phrase "his territory," contained in the proceedings of September 1st. It appears from the testimony that plaintiff, among other sales, sold large quantities of flour to the Colorado Trading & Transfer Company, at Cripple Creek, and that said sales commenced shortly after the employment of plaintiff by defendant, and continued until his discharge. The defendant paid the commissions on these sales for a considerable period, and then ceased doing so. The action was tried in the district court of Arapahoe county, and judgment rendered for plaintiff for the amount of commissions said to be due upon the sales made to the Colorado Trading & Transfer Company, less the amount of defendant's counterclaim. The court made special findings, wherein it finds that on the 12th of May a contract was made and entered into by and between the plaintiff and defendant, wherein the plaintiff should have the agency for the sale of defendant's flour; that on the 1st of September a second contract was made between plaintiff and defendant, modifying the one made on the 12th of May; that the board of directors of defendant had no knowledge that the contract pleaded had been made by its general manager; and that the contract of September 1st and the one of October 31st were practically identical. In the conclusions of law found by the court it is said: "In view of the contract of September 1st, it is unnecessary for the court to pass on the question raised as to the authority of the manager to make the contract of October 31st, or of its modification subsequently by the board of directors of defendant company." The contention of the defendant is that the findings of the court are not based upon the pleadings, and that, in so far as they are based upon the evidence, there is a variance between the evidence and the pleadings. We do not believe that the findings of the court and the facts in the record warrant this construction. The fair intendment to be drawn from the findings is that the board of directors on the 1st of September made or authorized the making of the contract, which was subsequently reduced to writing, and that it is immaterial as to whether or not this contract, after having been reduced to writing and signed, was formally adopted by the board. The proof shows that from the time of the making of the contract the plaintiff devoted himself to the service of the defendant. The services were accepted and paid for, in accordance with the terms and provisions of the agreement, for about eight years, with the exception of the sales made to the Colorado Trading & Transfer Company. As to that transaction, it is conclusively shown that the sales were made by plaintiff; that defendant's board of directors knew of it; that the orders were filled and the commissions were paid for something more than two years when the defendant ceased giving plaintiff credit on account of such sales. This fact did not come to the knowledge of the plaintiff for some time, and when it did come to his knowledge he, acting under the advice and counsel of the then manager of the defendant, failed to protest. Upon plaintiff's resignation or discharge, a demand was made for these commissions, was refused, and plaintiff brought this action. If there is any variance between the findings of the trial court and the pleadings, they in no wise prejudice the rights of the defendant. Under the testimony, the court might well have found that the pleaded contract was the formal reduction to writing of the memorandum of agreement entered in the company's books upon September 1st, and that the same was ratified and adopted by the board of directors. Plaintiff having in good faith acted under the contract and performed the services, defendant, having received the benefit of the services and having partially paid for the same, cannot be heard to complain of a judgment against it for the value of so much of the services as has not been paid for, because the trial court based its judgment upon reasoning not in harmony with the complaint, but upon evidence which supports the essential allegations of the complaint. The other alleged errors are necessarily disposed of by this ruling. The testimony of the conversations with the manager of the Colorado Trading & Transfer Company was admissible for the purpose of showing that the sales of defendant's flour were made to the company by plaintiff. The substantial rights of the parties not being affected by any error which the trial court may have committed in the phraseology of its findings, the judgment will be affirmed. Affirmed. GABBERT, C. J., and GODDARD, J., concur. (35 Colo. 578) In re SHAPTER'S ESTATE. (Supreme Court of Colorado. Dec. 4, 1905. Rehearing Denied April 2, 1906.) 1. WILLS TESTAMENTARY CAPACITY - EVI DENCE. In determining whether a testator possessed testamentary capacity, it is proper to consider, not only the direct proof, but all collateral and relative facts and surrounding circumstances from which inferences may be drawn, and also whether the disposition made of the property is consistent with testator's situation, in accordance with previously expressed wishes and such as he would naturally make under the circumstances. [Ed. Note. For cases in point, see vol. 49, Cent. Dig. Wills, §§ 112, 129, 133.] 2. SAME READING OF WILL BY TESTATOREVIDENCE-PRESUMPTION. Where a will was prepared at the testator's express request and left with him several hours before it was alleged to have been executed, and he signed it in the presence of attesting witnesses, present at his request for that purpose, it was presumable that he had read it, or that its contents had in some way been made known to him. [Ed. Note. For cases in point, see vol. 49, Cent. Dig. Wills, § 655.] 3. SIGNATURE-ATTESTATION. The fact that a subscribing witness to a will signed it before the testator signed it does not invalidate the will. [Ed. Note. For cases in point, see vol. 49, Cent. Dig. Wills, § 325.] 4. SAME-PROBATE-ADVERSE TESTIMONY BY ATTESTING WITNESS. On application for the probate of a will, testimony by one of the attesting witnesses that he believed testator was not conscious of what he was doing when he made the will did not impair the efficacy of the witness' attestation. [Ed. Note. For cases in point, see vol. 49, Cent. Dig. Wills, §§ 711, 713.] 5. SAME-DUE EXECUTION-PROOF. The proponent of a will is not required to prove all the facts constituting due execution by the concurring testimony of the two subscribing witnesses, but, while both of these witnesses must be examined, the will may be established even in opposition to the testimony of both. [Ed. Note.-For cases in point, see vol. 49, Cent. Dig. Wills, §§ 715-720.] 6. STATUTES-ADOPTION FROM ANOTHER STATE -PREVIOUS CONSTRUCTION. Where a statute is adopted from another state, the construction previously given by the courts of that state will be regarded as adopted also. [Ed. Note. For cases in point, see vol. 44, Cent. Dig. Statutes, § 307.] Under 2 Mills' Ann. St. § 4816, declaring that no party to any civil action or person directly interested in the event thereof shall testify when any adverse party sues or defends as executor or administrator, parties to a will contest are not competent witnesses. 8. SAME-PRIVILEGED COMMUNICATIONS ATTORNEYS AND PHYSICIANS-WHO MAY OBJECT. - Under 2 Mills' Ann. St. § 4824, subds. 2, 4, declaring that an attorney shall not, without the consent of his client, be examined as to any communication made by the client, and that a physician shall not, without the consent of his patient, be examined as to information acquired in attending the patient, objections to the competency of an attorney or physician can be raised only by the client or patient. [Ed. _Note.--For cases in point, see vol. 50, Cent. Dig. Witnesses, § 780.] 9. SAME-ACTIONS BY OR AGAINST REPRESENTATIVES OF DECEDENTS-BENEFICIARIES UNDER WILL. Where a legacy was to compensate the legatee for services and reimburse him for expense in administering a trust as executor, he was not a beneficiary under the will so as to render him, in a contest thereof, incompetent as a witness, under 2 Mills' Ann. St. § 4816, declaring that no person interested in an action shall testify when any adverse party sues or defends as executor, administrator, or heir. [Ed. Note. For cases in point, see vol. 50, Cent. Dig. Witnesses, § 603.] 10. SAME-EXECUTORS. Under 2 Mills' Ann. St. § 4816, declaring that no party to any civil action or person directly interested in the event thereof shall testify when any adverse party sues or defends as executor or administrator, the executor of a will is a party to a will contest and not a competent witness. Appeal from District Court, Arapahoe County; John I. Mullins, Judge. Proceedings for the probate of the will of Edward Shapter, deceased. From a judgment denying probate, proponents appeal. Reversed and remanded. On March 1, A. D. 1901, an instrument purporting to be the last will and testament of Edward Shapter, deceased, was presented to the county court of Arapahoe county for probate. A caveat was filed by several of his heirs objecting to its probate. On the 30th of July, A. D. 1901, after hearing the testimony of the attesting witnesses and the family physician, the court admitted the will 85 P.-44 to probate and record. An appeal from this judgment was taken by the contestants to the district court of Arapahoe county. On the 26th day of May, 1902, the cause came on for trial before a jury. After the evidence was introduced, the jury, by direction of the court, rendered a verdict for contestants. On June 6th motion for new trial was overruled and judgment entered upon the verdict denying the probate of the will. Proponents bring the case here on appeal. Thomas, Bryant & Lee and Edwin W. Parks, for appellants. S. E. Robinson and Andrew W. Gillette, for appellees. GODDARD, J. (after stating the facts). The most important objection to the validity of the judgment presented by the assignment of errors is predicated upon the action of the trial court in directing a verdict. From an examination of the testimony introduced, we are of the opinion that there was evidence upon which the jury should have been permitted to pass, and which, if accepted by them as true, was sufficient to sustain the conclusion that the instrument presented was executed in conformity with the requirements of the statute, and with sufficient knowledge and understanding on the part of the testator to constitute a valid testamentary disposition of his property. In the circumstances of this case, it was peculiarly within the province of the jury to determine whether the testator, notwithstanding his enfeebled condition at the time the paper was signed, realized what he was doing. This essential fact could only be ascertained by taking into consideration not only the direct proof, but as well all collateral and relative facts and surrounding circumstances that tended to throw light upon the mental capacity of the testator at that time, and from which inferences might be drawn and presumptions raised as to whether or not he was mentally capable of making a will, and whether the disposition made of his property was consistent with his situation and in accordance with his previously expressed wishes and intentions, and such as he would naturally make under the circumstances, or adopt, or acquiesce in, if not wholly deprived of consciousness. In Brogden v. Brown, 2 Addams, Eccl. Rep. 449, the will under consideration was prepared by Mr. Brogden in pursuance of instructions which, it was pleaded, the testatrix gave him in an interview at which they alone were present, and which, it was claimed, was signed by her while delirious and incapable. Brogden, being a party in the cause, was incompetent to testify as to the instructions; hence they were incapable of direct proof. Sir John Nicholl, in speaking of the presumptions that prevail in such circumstances, used this language: "The rule that, where capacity is at all doubtful. there must be direct proof of instructions, has really no application to a will prepared by an agent, **** and of which at the same time, the dispositive part is so just, and so proper, so consonant to the deceased's natural affections, and moral duties, that it speaks for itself, and carries, upon the face of it, its own recommendation. Such an alleged will, if suggested, the court may readily presume that the alleged testator would acquiesce in, and adopt, if not wholly deprived of consciousness; and mere acquiescence and adoption, in such a case, would so compensate for any want of direct evidence of instructions given, a priori, that proof of these alone, in conjunction with proof of almost any, whatever, glimmering of capacity at the time of the execution, would be good to support the will, and would sufficiently indicate mind and volition to justify a court of probate in pronouncing for it as a genuine and valid will." As said by Senator Verplanck in Stewart's Executor v. Lispenard, 26 Wend. (N. Y.) 313: "If the testamentary disposition be in itself consistent with the situation of the testator, and in congruity with his affections and previous declarations; if it be such as might have been naturally expected from one so situated, this is itself rational and legal evidence of no small weight to testamentary capacity. * ** The rationality of the act goes to show the reason of the person. This rule has been repeately applied in English courts in cases of doubtful capacity, from age or deathbed disease." The instrument under consideration possesses all these characteristics. The disposition of the property therein provided is consistent with, and such as would naturally be expected from, a man in the situation of the testator. He had lived in this country for many years, was unmarried, and it in no way appears that the contestants, although his relatives and heirs, ever concerned themselves about his welfare and condition. On the other hand, some of those remembered in the will had shown him kindness and attention when sorely needed. And others are of a class whose care and comfort would naturally appeal to the sympathy of an old man who was desirous of devoting his property to a worthy charity. From the fact that the will was prepared at the testator's express request, that the instrument so prepared was left with him and was in his possession several hours before it was alleged to have been executed, and that he signed it in the presence of attesting witnesses who were present at his request for that purpose, in the absence of any showing to the contrary, it will be presumed that he had read it, or that its contents had, in some way, been made known to him. "The onus of proving the contrary is thrown upon him who alleges it." Hemphill v. Hemphill, 2 Dev. (N. C.) 291, 21 Am. Dec. 331. "Generally speaking, the law presumes testamentary capacity, due execution, and that the will contains the unre strained wishes of the testator. Hence it is usually held that the burden upon the whole evidence is on the party attacking it on the ground of improper execution, lack of capacity, or undue influence, to prove the facts which he alleges." Current Law, vol. 4, p. 1892, and cases cited in note. But it is insisted that, if the instrument was, in fact, written at the direction of Shapter and embodied his instructions, it should be refused probate for the reason that it was not executed or attested in the manner required by our statute. In support of this contention, counsel for contestants cite excerpts from the testimony of the attesting witnesses, which they claim show that Shapter was not conscious of what he was doing at the time his name was affixed to the instrument, and that the signatures of attesting witnesses were subscribed to the will before the signature of Mr. Shapter was made. We think, from the entire testimony introduced upon the trial, the jury might have found that the deceased was aware of what he was doing, and assented to the manner in which his signature was made, and that the question as to whether he was conscious and possessed of testamentary capacity should have been left to them to determine from the facts and circumstances surrounding the transaction. The fact-if it be a fact -that the subscribing witnesses signed the will before the testator signed it, does not invalidate the will. Gibson v. Nelson, 181 Ill. 122, 54 N. E. 901, 72 Am. St. Rep. 254; O'Brien v. Galagher, 25 Conn. 229. They did attest the will in the presence of the testator, and thereby impliedly stated that the testator was of sound mind and competent to make a will. Stevens v. Leonard,. 154 Ind. 67, 56 N. E. 27, 77 Am. St. Rep. 446. And the statement of Mr. Young in the latter trial to the effect that he was of the opinion that Shapter was not in a condition to make a will, and was too far gone to be conscious of what he was doing, did not impair the efficacy of his attestation, and should be taken only for what it is worth as an attempt tending to weaken the force of such attestation as evidence of the mental soundness of the testator, and the weight to be given to it for that purpose was entirely within the province of the jury. In Stevens v. Leonard, supra, Dowling, J., speaking on the subject, said: "It cannot be thought possible that an honest man, of ordinary intelligence, would subscribe his name as a witness to an instrument executed by a person whom he believed to be of unsound mind, or under coercion or constraint. The fact that such a man voluntarily identifies himself with the transaction as a witness is an indication that in his opinion the person executing the instrument is competent to do so. The witness must be understood to attest not merely the act of signing, but also the mental capacity of the testator to sign. A subscribing witness may, it is true, be heard to impeach |