loaded condition. He made no inquiry whether the guns were loaded or not, on the twenty-fifth day of September.

Concerning the duties of the Railroad Company, the court charged the jury, among other thing, as follows: "under such circumstances, the court charges you that it was the duty undoubtedly of the defendant company either to provide gunracks for the safe storage and carriage of the guns upon the train, so that they would not have to be taken off and put upon the train each day as the train passed and repassed Golden station, or else to have kept some competent and experienced person or persons to take charge of said guns and see to it that they were taken proper care of to guard against any accident, and that it was undoubtedly negligence to leave the putting of said guns upon the trains, the putting them off again from the train to the station baggage-master and train baggage-master respectively, as common baggage, in addition to their other numerous duties to be by them performed. * * * The court instructs you that the company or persons that employ dangerous weapons or elements in the management of the business engaged in, must use extraordinary care in their management or use, and if you find from the evidence that the defendant at and before the accident referred to in the pleading and evidence, was carrying guns on its trains, then it was required by its duty to its employees to use the most approved means for their transportation, so as to save harmless its servants required to use them; and the court further instructs you that if you find the defendant did carry those guns as it is alleged, then it was required either to carry said guns in a gunrack or by placing said guns in the hands of a special agent charged with their custody, or some other manner eqally safe."

When it is remembered that the Railroad Company did not leave to the respective baggage-masters mentioned, the duty of putting loaded guns on and off its trains, but that the instructions of superintendent Henry were to withdraw the charges on passing Fort Collins on the return trip; and when it is further considered that unloaded guns are just as harmless as any other species of baggage, it becomes evident that the above instructions over-stated the duty and responsibility of the defendant.

Had the instructions of the superintendent been observed, it would have been as impossible for the accident to have happened by putting on board the train this package of guns, as if the package had contained umbrellas or walking sticks instead of guns.

In view of the evidence, it seems clear to our minds that plaintiff, as conductor of the train, was chargeable with the duty of seeing that these or other reasonable precautions were observed by the train baggage master. If the officers of the defendant company had done nothing but provide the guns and ammunition for the defense of its trains, which is conceded to have been proper under the circumstances, it would have been the duty of the conductors, by virtue of their authority, to have made and caused to be observed, such rules for the handling and care of these guns as would have

ensured the safety of both passengers and employees, and the safety from theft of the guns themselves. We cannot endorse the proposition that the failure of the defendant to provide one or more special agents of experience to take charge of these shot guns, or its failure to provide gun racks upon the train for their storage and safety, constitutes negligence, per se.

It is not charged in the complaint, nor does any witness testify that the train baggage master was not a person of experience in the use of fire arms, nor does it appear that the plaintiff ever objected to his acting as custodian of the guns. The complaint and replication charge the negligence resulting in the accident upon the station baggage master at Golden, over whom the plaintiff had no control, and upon the railroad company. The real facts are ignored, to wit: That the negligence which caused the accident occurred on the previous day on board the plaintiff's train; in the failure to withdraw the cartridges before placing the guns in the hands of the station baggage master. The latter testified that he was not aware they were loaded, and the circumstances of the case show he had reason to believe they were not loaded.

Doubtless, it would have been a convenience to have had gun racks upon the train. The object of removing the guns into the company's baggage room every evening at Golden, was to prevent them from being stolen during the night in Denver. A secure closet upon the train in which they could have been safely locked up during nights, would have saved much handling of the guns, and had the same been provided it is probable that the accident complained of would not have occurred. Neither would it have occurred if the superintendent's instructions had been observed on board the plaintiff's train.

Cases frequently arise wherein it becomes the duty of the trial court to determine the question of the negligence of a party as a matter of law as where the facts clearly show an obvious disregard of duty and safety; where a party has failed in a clear legal duty; where the evidence so clearly shows the want of prudence and discretion that there can be nothing for the jury to pass upon: Behrens v. K. P. Ry. Co., 5 Colo., 400; Erst v. Hudson River R. R. Co., 35 N. Y., 41-47; Detroit & Milwaukee R. R. Co. v. Van Steinburg, 17 Mich., 122; Pittsburg & Connelsville R. R. Co. v. McClurg, 56 Pa. St., 297.

We are of opinion that the negligence charged against the defendant does not come within the above principles, or within any well settled rule of law which justifies the determination of the question as matter of law; on the contrary, the matter does seem to come within the opposite rule, that where the conclusion from the evidence is fairly debatable, or rests in doubt, the question of negligence is always for the jury: See authorities, supra; and also Langhoff v. Milwaukee & Prairie du Chien Ry. Co., 19 Wis., 515.

It has been well said that to warrant the court in instructing the jury that a party is guilty of negligence, the case must be such as

to allow no other inference from the evidence, and if the question depends upon a state of facts from which different minds may honestly draw different conclusions, the question must be submitted to the jury: Wells' questions of law and fact, sec. 265, and authorities cited.

In respect to the negligence of the plaintiff, the admitted facts of the case show that while he had full knowledge of the facts that the guns were in charge of the train baggage-master during each day; that if needed for defense at all it was only upon the northerly portion of the road; of the custom of leaving them at Golden during the night, and although invested, by his position as conductor, with authority over the train baggage-master, as well as over all other employees upon the train, and with ample power to make and cause to be observed all rules necessary for the safety of passengers, employees and property, he failed to take any precautions whatever so far as this record shows, to guard against accident from the handling of the guns. He neither gave orders concerning the care of the arms, nor made inquiries how they were being cared for.

Independent of any orders from the superintendent, the conductor could and should have commanded the custodian of the guns to withdraw cartridges upon leaving that portion of the road upon which danger was apprehended; common prudence dictates that this precaution should have been taken, to guard against accident.

There is no force in the suggestion, that the baggage master's numerous duties conflicted with the safe handling of the guns. The withdrawal of the charges was the work of a moment, and there was ample opportunity to perform this duty while baggage was not being handled.

The evidence clearly shows the want of prudence and discretion on the part of the plaintiff, and an obvious disregard of duty and safety.

When the facts are clearly settled, and the course which common prudence dictates can be clearly discerned, the question of negligence is to be decided as matter of law: Sherman and Redfield on Negligence, p. 13, sec. 11, and notes.

We must hold, upon the record before us, that it presents the case of an injured party, who, knowing the dangers of his position, failed to exercise that reasonable degree of care to avoid the injury which an ordinarily prudent person would have exercised under like circumstances. We said, in Behrens v. K. P. Ry. Co., supra, that a recovery of damages could not be sustained under such circumstances; that the doctrine of all the cases is, that if a plaintiff so circumstanced might have avoided the injury by the exercise of ordinary care, he cannot recover although the defendant was negligent.

If, therefore, it be conceded that the jury might have found the defendant guilty of negligence, had the question been submitted to the jury, it would have become a case of mutual fault or negligence, in which case the law neither casts all the consequences upon the

defendant, nor attempts any apportionment thereof: Cody on Torts, 674-8; C. C. R. R. Co. v. Holmes, 5 Col., 197.

In this condition or state of the case, it was error for the court to refuse to instruct the jury, as prayed by defendant's counsel, that the plaintiff could not recover: R. R. Co. v. Jones, 5 Otto, 439. But, aside from this error, the verdict of the jury cannot stand because it clearly appears that the plaintiff's negligence contributed to the injury, and because the verdict is against the law and the evidence.

The negligence of the train baggage master in failing to carry out the instruction of the superintendent of the defendant company, was the negligence of a fellow servant, in the course of a common employment; and it not appearing from the testimony that he was an incompetent person to have the care and custody of firearms, or that he was inexperienced in their use, but only that he was guilty of negligence in that behalf, the defendant, for this reason, in addition to those above given, could not be held responsible under the circumstances in this case, for the result of this negligence.

For the errors mentioned, the judgment will be reversed, and the cause remanded.

MACKEY V. FULLERTON ET AL.

Filed November 14, 1884.

APPROPRIATION OF PAYMENTS--DEBTOR AND CREDITOR-GENERAL PAYMENT.-A debtor may direct, on paying money to his creditor, the appropriation of it to a particular account or item of indebtedness; but if he make or indicate no such appropriation, the creditor may apply the money as he pleases. Where money is paid generally on an account without any appropriation it should be applied to the first items in the account. And in an action to recover a balance' due on a running account, the debtor cannot be heard to dispute the validity of the items so paid.

APPEAL from the district court for Galpin county. The opinion states the facts.

J. E. Rockwell, for the appellant.

W. C. Fullerton, for the appellees.

BECK, C. J. This was an action commenced by the appellees against appellant in the county court of Galpin county, for the recovery of a balance of five hundred and ten dollars and six cents, alleged to be due the late firm of Sherrick & Lewis, upon an account for goods, wares and merchandise. There have been two trials of the cause, in each of which the plaintiffs recovered judgment for the full amount of their bill; first, before the county court, and again before the district court of Galpin county, the latter trial being before a jury.

Sherrick & Lewis were partners, doing business as merchants in Nevadaville, in said Galpin county; their stock in trade being groceries and miners' supplies.

The defendant appears to have been a regular customer of said Sherrick & Lewis for a considerable time prior to their assignment to the appellees for the benefit of their creditors, which latter event occurred about the first day of September, 1881. The complaint alleges: "That defendant became indebted to said Sherrick & Lewis in the sum of five hundred and ten dollars and six cents, for the balance of an account for goods, wares and merchandise, sold and delivered to the defendant by said Sherrick & Lewis, between the eleventh day of December, A. D. 1879, and the twenty-fifth day of August, A. D. 1881, at Nevadaville, in said county."

The defendant, answering, admitted that he was indebted in the sum of four hundred and ten dollars and six cents, and denied his indebtedness as to the balance of the account.

After the appeal to the district court he filed a further answer, by leave of the court, averring that the sum of one hundred dollars, in the account sued on, was for the pretended sale of a barn, situate upon ground belonging to the Monier metallurgical works, in Nevada, and that said Sherrick & Lewis had no title to the property sold.

Prior to the commencement of the trial in the district court, the plaintiffs disclaimed, in open court, through their counsel, that any part of the account sued on was for the sale of a barn, and declared that the entire account was for a balance due for groceries, hay, grain and miners' supplies. A record was made of these admissions, and, upon closing their evidence in chief, plaintiffs asked leave of the court to withdraw said admissions, which the court granted against the objections of the defendant, which ruling was excepted to and is assigned for error. It is probable that the admissions were withdrawn for the reason that on the production of the books containing the defendants' entire accounts, a charge for the barn was found to be one of the items.

Upon examination of the testimony we discover no necessity for the withdrawal of the admissions.

The defendant appears to have been a regular customer of Sherrick & Lewis at their store in Nevadaville, and as was their custom, they presented their bills to him monthly, for groceries and miners' supplies. He paid to them sums of money upon account when convenient, which were credited, and the next bill would contain only the new items since purchased, together with the balance due upon the former bill.

The testimony showed that defendant's accounts ran through thirty-eight books, but that the books were balanced monthly, and that while bills were presented to customers every month, the items for one month were not repeated in the bill for the next month.

The books show a charge of one hundred dollars against the defendant for a barn sold him in the month of November, 1880.

It would seem, however, under the general rule of law concerning the application of payments upon a running account, that the