"Notice to Passengers.

"Passengers are not allowed to ride in mail, baggage, express or freight cars, nor on the steps or platforms of coaches and cabooses. They must remain seated until train comes to a full stop."

Section 1423, Rev. Laws 1910, reads as follows:

"In case any passenger on any railroad shall be injured while on the platform of a car while in motion, or in any baggage, wood or freight car, in violation of the printed regulations of the corporation posted up at the time in a conspicuous place inside of its passenger cars then in the train, such corporation shall not be liable for the injury, if it had furnished room inside its passenger cars sufficient for the accommodation of its passengers."

Defendant contends that, as plaintiff had voluntarily gone out on the platform and stood there while the train was in motion, under the provisions of the above statute he is precluded from recovery even if he was injured. Ordinarily this contention would be true, but in the case at bar the plaintiff, in our opinion, justifies his conduct for being on the platform at that time. The train had reached his destination, and after going onto the side track in the yards at Shawnee had stopped. We think plaintiff's conclusion that it had stopped for the passengers to get off was reasonable, and so he went out on the platform for the purpose of getting off, but before he could do so the train started up again. The question then arises whether it was his duty to return to his seat in the caboose after the train started, or should he have remained upon the platform and held to the iron guards provided for that purpose? In view of the fact that the train was moving slowly and was approaching the real stopping place where he was to get off, ordinarily there would have been a greater probability of an injury in leaving his position with the protection of his hold on the handrail for the purpose of re-entering the caboose than in remaining on the platform, and under these conditions we do not believe he should forfeit his right to recover because he happened to be upon the platform at the time of the accident. Ordinarily the above statute, as well as the rule of contributory negligence, would preclude a recovery, but we believe the special facts in this case avoid the usual rule.

Defendant's next contention is that under the rule laid down in the case of St. Louis & S. F. Ry. Co. v. Gosnell, 23 Okla. 588, 101 Pac. 1126, 22 L. R. A. (N.S.) 892. it was entitled to an instructed verdict. The question now presented is: When does the plaintiff,

in cases like the one at bar, make out a prima facie case?

In the Gosnell Case, supra, it was held that in order to send the question of negligence in handling the train to the jury it must affirmatively appear that the jar that occasioned the injury was of extraordinary severity and directly attributed to the negligent or careless handling of the engine by the engineer, and that, in the absence of such evidence, it is presumed that the engineer did his duty, and that the sudden stop of the train and the jar which caused the injury arose from the exigencies of the service. While in that case the court held that the trial court erred in not instructing a verdict for the defendant, yet in arriving at the conclusion that the jar caused by the stopping of the train was not ipso facto negligence and proof thereof insufficient to take the question of negligence to the jury, it will be noted that the court rejected in toto the evidence adduced by plaintiff as to the nature and character of the stop, holding the same to have no probative force and to be mere expressions of opinion. No reason is given in the opinion as to why the court rejected plaintiff's evidence, but it is plainly apparent that such a holding is based upon the fact that such evidence called for expert witnesses, and that it was not shown that plaintiff's witnesses showed themselves to have had experience or information sufficient to qualify them to testify when a jar or jolt of a train was unusual and out of the ordinary. Defendant had offered evidence tending to prove that the jar or jolt which occasioned the injury complained of was only the usual jar which ordinarily accompanies the operation of freight trains, and, the plaintiff having no counter evidence at all on that subject, it naturally follows that there should have been an instructed verdict for the defendant, and that is all the Gosnell Case intends to hold.

While the case of St. Louis & S. F. R. Co. v. Fitts, 40 Okla. 685, 140 Pac. 144, L. R. A. 1916C, 348, was a passenger train case, yet we believe the same is more in point, because there plaintiff's evidence was not declared inadmissible, and from this case we take the following:

"The general rule, however, is that, where the thing which causes the accident is exclusively controlled or managed by the carrier, and the accident is such as in the ordinary course of events does not happen if those who have the control or management use proper care, it affords reasonable evidence, in the absence of explanation by the carrier, that the accident arises from want of care. Gilmore v. Brooklyn Heights Ry. Co., 6 App. Div. 117, 39 N. Y. Supp. 417.

Among the cases governed by the foregoing rule are those where the injury arose from sudden starts, sudden stops, jerks, jolts, etc. The tendency of the decisions seems to be that, if the jerk is of such violence that it would not be one likely to occur, or necessary, in the ordinary operation of transportation, a presumption of negligence will arise. It has been held that a very violent jerk of a car, resulting in injury to a passenger, raises a presumption of negligence against the carrier. Chicago City R. Co. v. Morse, 98 Ill. App. 662; Evansville & T. H. R. Co. v. Mills, 37 Ind. App. 598, 77 N. E. 608; Southern R. Co. v. Cunningham, 123 Ga. 90, 50 S. E. 979. And that a violent jerk, throwing a passenger down and out of a car, raises a presumption of negligence in the carrier. Ill. Cent. R. Co. v. Beebe, 69 Ill. App. 363; Griffin v. Pacific Elec. R. Co., 1 Cal. App. 678, 82 Pac. 1084; Scott v. Bergen County Traction Co., 63 N. J. Law, 407, 43 Atl. 1060; Consolidated Traction Co. v. Thalheimer et al., 59 N. J. Law, 474, 37 Atl. 132; Lomas v. N. Y. City Realty Co., 188 N. Y. 628, 81 N. E. 1169."

The latest expression of our court on this. point is found in the case of Ramsey v. McKay, 44 Okla. 774, 146 Pac. 210, which is a freight train case, which follows the Fitts Case, supra, and, we believe, is decisive of the proposition under consideration, and holds adversely to defendant's condition. It is true that in this case there were some statements made by the conductor in charge of the train in which he complained of the engineer making such sudden stops, and the court held that evidence that the stop which caused the injuries was of such violence that it was not likely to occur or necessary in the ordinary operation of the freight train in question, together with the said statement of the conductor, made out a prima facie case and cast upon the railroad company the burden of relieving itself of responsibility by showing that the sudden stop complained of was the result of an accident which the exercise of skill, foresight, and diligence could not have prevented.

The law as established by the authorities in cases of this character will not permit a recovery until there is evidence to justify a finding by the jury that the jolt complained of was something more than the ordinary jolt necessarily incident to stopping of freight trains under circumstances similar to the occasion at bar. It is a matter of common knowledge that jolts and jerks are common and nearly always incident to the stopping of freight trains, and for that reason an injury resulting from a jolt caused by the sudden stopping of a freight train does not of itself speak negligence, and before a recovery can be sustained there must be produced evidence to support the con

tention that the jolt caused by the sudden stop was of such unusual severity that it was not attributable to the jolting ordinarily incident to the ordinary stopping of freight trains under the same or similar conditions, and in those cases wherein it is proven to the satisfaction of the jury that the injury sustained resulted from a jolt occasioned by a sudden stop of a freight train which was other than a necessary incident to the careful handling of such train, and the facts and circumstances surrounding the injury were such as to speak negligence, a prima facie case is thereby made out. Hawk v. Railroad, 130 Mo. App. 658, 108 S. W. 1119; Todd v. Missouri Pacific Ry. Co., 126 Mo. App. 684, 105 S. W. 671; Foley v. Boston & Maine R., 193 Mass. 332, 79 N. E. 765, 7 L. R. A. (N.S.) 1076; McGinn v. New Orleans Ry. & Light Co., 118 La. 811, 43 South, 450, 13 L. R. A. (N.S.) 601; Brown v. Union P. R. Co., 81 Kan. 701, 106 Pac. 1001, 29 L. R. A. (N. S.) 808.

We find the following in Shearman & Redfield on Negligence, par. 59:

"When a thing which causes injury is shown to be under the management of the defendant, and the accident is such as, in the ordinary course of things, does not happen if those who have the management use proper care, it affords reasonable evidence, in the absence of explanation by the defendant, that the accident arose from a want of care.

This brings us to an examination of the evidence in this case to determine whether or not it comes within the above rule.

The plaintiff introduced only one witness besides himself. This witness testified that he boarded the train at the same time plaintiff did for the same destination; that after the train got into the yards at Shawnee it stopped all at once and shoved the cars together, tearing things up considerably; "they stopped the train just like that (indicating by slapping his hands together); it did not stop gradual, but just like that (indicating as before)" He was sitting inside the door and it threw him about six feet against the side of the seat; that it knocked the conductor, who was sitting at his desk in a big chair, out of his chair into the aisle about four or five feet from his desk, and also knocked the brakeman down and threw all the water out of the cooler. This witness also testified that he was injured, and at that time had a suit pending against the defendant for the same.

The plaintiff testified the train stopped very suddenly; was an unusual stop; that. he was standing holding to the guard rails,

and all at once the train stopped like that (indicating by slapping his hands together) and threw him against some object.

It is probably true that plaintiff's own testimony fails to prove anything, and does not tend to make out a prima facie case, but the testimony of his witness as above detailed to the effect that he was jolted from his seat into the aisle, that the conductor was knocked out of the big chair in which he was sitting, and that the brakeman also was thrown down, and all the water emptied from the water cooler, presents a condition which no railroad company would care to claim to be an ordinary and usual occurrence on its freight trains. Such a condition would not be very inviting to passengers, and it would be a very strenuous life for the crew to have to endure from day to day. We think such proof establishes a prima facie case, and that such occurrences are out of the ordinary and very unusual.

All of the above evidence was emphatically contradicted by the train crew, and each testified that the stop complained of resulted in no mishaps of any kind, and was only an ordinary stop of the average freight train. Such contradiction in evidence is unexplainable, other than that some one was very careless with the truth. However, the credibility of the witnesses is a matter for the jury to decide, but it is to be deplored that such glaring and emphatic contradictions among witnesses should be so common. Especially so in cases like the one at bar, where there is no room for an honest difference.

Defendant finally contends that the evidence of the plaintiff as set out above consists of mere expressions or conclusions of the witnesses which prove nothing. In the Gosnell Case, supra, such evidence was rejected by the court, but, we believe, on account of the incompetency of the witnesses. In the Fitts and McKay Cases, supra, similar evidence was admitted, and while its probative value is of an uncertain quantity, which is a matter for the jury, we believe, if the witness is otherwise qualified to testify on the point, that the evidence should not be rejected as mere opinion evidence or as a conclusion of the witness. In the case at bar each of the witnesses testified that they were accustomed to riding on freight trains, and had ridden on them often, and it is to be presumed that they were offered as experts, and their qualification as such rested largely within the discretion of the trial judge, and we are not prepared to say that he abused his discretion in admitting the evidence.

We recommend that the judgment be affirmed.

By the Court: It is so ordered.

FARMERS' STATE BANK OF JEFFERSON V. JORDON.

No. 6177-Opinion Filed Sept. 26, 1916. (160 Pac. 53.)

1. Trial-Demurrer to Evidence.

Where the evidence introduced by the plaintiff in a cause when viewed in its strongest aspect, admitting all the facts which the evidence in the lightest degree tends to prove, and all the inferences and conclusions which may reasonably and logically be drawn from it, fails to establish the plaintiff's case, it is the duty of the trial court to sustain a demurrer thereto. 2. Estoppel-Silence-Conduct.

The evidence in this case examined, and held insufficient to establish estoppel either by silence, or by declarations and conduct. (Syllabus by Hayson, C.)

Error from County Court, Grant County; J. W. Bird, Judge.

Action by John Jordon against the Farmers' State Bank of Jefferson, for conversion of personal property. Judgment for plaintiff, and defendant brings error. Reversed, with directions.

Parker & Simons, for plaintiff in error.

Sam P. Ridings for defendant in error.

Opinion by HAYSON, C. The defendant in error, John Jordon, brought an action in the county court of Grant county against the plaintiff in error, Farmers' State Bank of Jefferson, seeking to recover $243.70 for the conversion of certain wheat grown by one J. S. Streets and upon which the defendant in error had a chattel mortgage. The material facts as shown by the witnesses of defendant in error are as follows: On August 2, 1912, J. S. Streets owed the Farmers' State Bank of Jefferson $1,500. The said J. S. Streets on that date executed a mortgage to said bank covering wheat to be raised on the farm owned by defendant in

said Streets had mortgaged to the plaintiff in error on August 2, 1912. The defendant in error and Streets went to Medford together and went to the Farmers' State Bank, and after they had arrived there Streets and Jordon agreed between themselves that Streets should give Jordon a mortgage on the wheat. They thereupon requested one Ed Quigley, who was cashier of the plaintiff in error bank, to draw up said mortgage. Quigley wrote the mortgage and signed the same as a witness. Quigley said nothing about the mortgage held by the plaintiff in error which was of record. Defendant in error testified that Quigley said he was drawing up the mortgage so Jordon would be sure and get his money. The defendant in error filed this mortgage for record August 21, 1912, and left the state, he having been in the vicinity of Medford for the last two months and found out that the plaintiff in error held a mortgage on the wheat which had been filed for record prior to the mortgage held by him. After discussing the matter with both the plaintiff in error and Streets, but coming to no definite arrangement, Jordon permitted the plaintiff in error to have the wheat harvested and hauled into the elevator, without protest. The wheat was sold and the plaintiff in error collected the proceeds. Thereupon the defendant in error brought this action for conversion of the wheat. Plaintiff in error in its answer filed a general denial, and as a defense set up its mortgage. Defendant in error filed his reply, which contained a general denial, and alleged that the defendant in error took his mortgage "on account of the solicitation. procurement. and consent" of the plaintiff in error, "and on account of the representation of" plaintiff in error "that said property so included in such mortgage was free and unincumbered at the time he took said mortgage," and for such reason, the plaintiff in error was estopped to assert and claim that it held any mortgage upon said property superior to the mortgage of defendant in error.

After the evidence had been introduced by defendant in error, plaintiff in error demurred to the evidence, which demurrer was by the trial court overruled, and an exception was saved by plaintiff in error. The trial proceeded, and the jury rendered a verdict in favor of defendant in error, and judgment was rendered thereon. From this judgment the Farmers' State Bank brings error, setting up six assignments of error.

It is necessary to notice but one assignment as it is decisive in this case. Did the trial court err in overruling the demurrer to the evidence of the plaintiff introduced at the trial? We think the court did so err.

In a long line of cases our court has held that a demurrer to the evidence admits all the facts which the evidence in the slightest degree tends to prove, and all the inferences and conclusions which may logically and reasonably be drawn from the evidence; some of the more recent cases being Marshall Mfg. Co. v. Dickerson et al., 55 Okla, 188, 155 Pac. 224, and Anderson v. Kelley et al., 57 Okla. 109, 156 Pac. 1167.

Taking this line of cases as our guide we are forced to the conclusion that there was no evidence introduced in this case to sustain શ verdict for the plaintiff. The theory upon which a recovery was sought was that the bank by its acts and conduct was estopped to set up its mortgage as a prior lien. In Bragdon v. McShea, 26 Okla. 35, 107 Pac. 916, our court has in paragraph 3 of the syllabus defined what is necessary to constitute "estoppel by silence," in these words:

"In order for the silence of a party to constitute an estoppel against him, it must have occurred under such circumstances as to have made it his imperative duty to speak, and the party in whose favor the estoppel is invoked must have been misled into doing that which he would not have done but for such silence."

In Williams v. Purcell, 45 Okla. 489, 145 Pac. 1151, our court has in the third paragraph of the syllabus laid down this rule:

"Estoppels operate only between parties and privies, and the party who pleads an estoppel must be one who has, in good faith, been misled to his injury."

In Friar v. McGilbray, 45 Okla. 597, 146 Pac. 581, our court in the second paragraph of the syllabus lays down the rule relating to "estoppels by declaration" as follows:

"In order that a person may be estopped by his declarations or conduct, he must have knowledge of the purpose of the injury, in response to which his statement was made, and of the interest of the person claiming the estoppel."

In this case the court quotes with approval the language of the court in Martin v. Zellerbach, 38 Cal. 300, 99 Am. Dec. 365, which defines the essential elements of estoppel as follows:

"When invoked in respect to the title, *** to constitute an estoppel it must appear: First, that the party making the admission, by his declarations or conduct, was apprised of the true state of his own title; second, that he made the admission (by his declaration or conduct) with the express intention to deceive, or with such careless or culpable negligence as to amount to constructive fraud; third, that the other party was not only destitute of all knowledge of

the true state of the title, but of all convenient • ** means of acquiring such knowledge by the use of ordinary diligence ; and, fourth, that he relied directly upon such admissions, and will be injured by allowing its truth to be disproved."

Measured by these authorities the evidence in its strongest aspect, in this case, admitting all the facts which the evidence in the slightest degree tends to prove, together with all the inferences and conclusions that can reasonably or logically be drawn from it, fails to prove a case of estoppel. Quigley, merely because he was the bank cashier, was not under the imperative duty to speak, when asked to fill out a mortgage for another. Jordon was not misled to his injury. He was no better off with the mortgage than he would have been without it. The former mortgage had been on file for 15 days. It was not shown that he was destitute of all convenient means of acquiring such knowledge by the use of ordinary diligence. We therefore conclude that the trial court erred in overruling the demurrer to the plaintiff's evidence at the trial of the

cause.

The judgment of the trial court is reversed and remanded, with directions to the trial court to dismiss the case with prejudice at the cost of the defendant in error. By the Court: It is so ordered.

AMERICAN CENT. INS. CO. OF ST. LOUIS, MO., v. SINCLAIR.

No. 6744-Opinion Filed Sept. 26, 1916 (160 Pac. 60.)

1. Estoppel-"Waiver"-Nature.

A waiver is the voluntary or intentional relinquishment of a known right, or such conduct of a party, or his authorized agent, as warrants an inference of such intent. It is essentially a matter of intention and may arise out of the acts done by a party, or his authorized agent, who has full knowledge of all the material facts out of which the right springs.

2. Same-Question for Jury.

"A waiver involves the notion of an intention. entertained by the holder of some right, to abandon or relinquish instead of insisting on the right." It is a question of fact to be determined by the jury.

3. Insurance - Actions on Policies - Evidence-Sufficiency.

The record in this case examined, and held, there was sufficient evidence, if true,

to warrant an inference that there had been a waiver of the iron-safe, books, and inventory clause in a fire insurance policy, and that the cause was properly submitted to the jury for their determination.

(Syllabus by Hayson, C.)

Error from District Court, McCurtain County; Summers Hardy, Judge.

Action by W. C. Sinclair against the American Central Insurance Company of St. Louis, Mo. Judgment for plaintiff, and defendant brings error. Affirmed.

Scothorn, Caldwell & McRill, for plaintiff in error.

Steel, Lake & Head and Ames, Chambers, Lowe & Richardson, for defendant in error.

Opinion by HAYSON, C. The defendant in error, W. C. Sinclair, filed two separate actions against the plaintiff in error, in the district court of McCurtain county, seeking to recover on two insurance policies for loss by fire sustained to property covered by said insurance policies. The plaintiff in error, defendant in the district court, filed its answer denying that the plaintiff in the case complied with the terms of the policies and alleging that he violated what is known as the iron-safe, books, and inventory clauses and by reason thereof the policies were forfeited. The defendant in error, plaintiff in the district court, filed his reply and denied specifically each of the allegations of the answer, and alleged that the plaintiff in error, defendant in the district court, had by certain acts and conduct waived the right to forfeit the policies on account of any violation of any of those provisions in the policy. The causes were consolidated and tried to a jury. Verdicts were rendered in favor of Sinclair, defendant in error, and judgment rendered thereon. From this judgment the plaintiff in error American Central Insurance company, brings error.

The record discloses the facts to be as follows: On June 24, 1912, the plaintiff in error executed a certain insurance policy. by the terms of which it insured the defendant in error against loss or damage by fire on the stock of merchandise owned by defendant in error, located in his store at Millerton, Okla., in the sum of $2,500 for one year. And that on October 16, 1912. the plaintiff in error executed a certain insurance policy in a like amount and covering the same property for one year The policies contained certain covenants and warranties commonly known as the "ironsafe, inventory, and book warranty" clauses. On January 6, 1913, the defendant in error sustained a total loss by fire to his merchan