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gence for their safe carriage, must provide principle, why should not the law be so in everything necessary for that purpose, and this case? Life and limb are as valuable, must exercise to that end a reasonable de- and there is the same right to safety, in gree of skill.” It is sufficient answer to this the caboose as in the palace car. The same contention to say that this instruction was in formidable power gives the traction in both the language of our statute, which provides cases. The rule is uniformly applied to pasthe degree of care which a common carrier senger trains. The same considerations apply for hire must exercise. Section 410, p. 145, to freight trains. The same dangers are comStatutes of 1893, provides as follows: "A car- mon to both. Such care and diligence are rier of persons for reward must use the ut- as effectual and as important upon the latmost care and diligence for their safe car- ter as upon the former, and not more difriage, must provide everything necessary for ficult to exercise. There is no reason, in the that purpose, and must exercise to that end a nature of things, why the passenger should reasonable decree of skill.” But it is con- not be as safe upon one as the other. With tended by the learned counsel for plaintiff proper vigilance on the part of the carrier, in error that this provision of our statute is he is so. The passenger has no authority not applicable, since the collision of the de- upon either, except as to the personal care fendant's trains occurred in Kansas, and the of himself. The conductor is the animating carriage of the plaintiff was in the nature and controlling spirit of the mechanism emof interstate commerce, and was not under ployed. The public have no choice but to state control. This contention is not well tak- use it. The standard of duty should be ac('n. Independently of any statutory provi- cording to the consequences that may ensue sion, the instruction correctly states the law, from carelessness. The rule of law has its upon principle as well as sound public policy. foundation deep in public policy. It is In Philadephia & Reading Railroad Company approved by experience, but sanctioned by the v. Derby, 14 IIow. 468–183, 14 L. Ed. 502, | plainest principles of reason and justice. It the Supreme Court of the United States, in is of great importance that courts of justice discussing this proposition, uses the follow- should not relax it. The terms in question ing language: "When carriers undertake to do not mean all the care and diligence the (onvey persons by the powerful but danger- | human mind can conceive of, nor such as ous agency of steam, public policy and safe- will render the transportation free from any ty require that they be held to the greatest possible peril, nor such as would drive the possible care and diligence. And, whether carrier from his business. It does not, for the consideration for such transportation be instance, require, with respect to either paspecuniary or otherwise, the personal safety senger or freight trains, steel rails and iron of the passengers should not be left to the or granite cross-ties, because such ties are sport of chance or the negligence of careless less liable to decay, and hence safer than agents. Any negligence, in such cases, may those of wood; nor upon freight trains airwell deserve the epithet of 'gross.'” In this brakes, bell pulls, and a brakeman upon every case the Supreme Court of the United States car, but it does emphatically require everyhad under consideration a free passenger, a thing necessary to the security of the passenstockholder of the company, taken over the ger upon either, and reasonably consistent road by the president to examine its condi- with the business of the carrier, and the tion, and it was contended in the argument means of conveyance employed. The lanthat as to him nothing but gross negligence guage used cannot mislead. It well expresses would make the company liable. In the sub- the rigorous requirement of the law, and sequent case of Steamboat New Word v.

ought not to be departed from. The rule is King, 16 IIow. 469, 14 L. Ed. 1019, which was beneficial to both parties. It tends to give also a case of a free passenger (arried on a protection to the traveler, and warns the carsteamboat and injured by the explosion of a rier against the consequences of delinquency. boiler, Curtis, J., quoting the above paragraph A lower degree of vigilance than that resaid: “We desire to be understood to reaf- quired would have averted the catastrophe firm that doctrine, as resting, not only on pub- from which this litigation has arisen. Dunn lic policy, but on sound principles of law." v. Grand Trunk R. R. Co., 58 Me. 187, 4 In Indianapolis & St. Louis Railroad Com

Am. Rep. 267; Tuller y. Talbot, 23 Ill. 357, pany v. IIorst, 93 U. S. 291, 23 L. Ed. 898, 76 Am. Dec. 695; Pittsburg & C. R. R. Co. v. the Supreme Court of the United States held

Thompson, 56 Ill. 138." If the principle that, in an action against a railroad company announced by these well-considered cases apfor injuries received by a passenger upon plies to a free passenger on a stock train, its road, it is not error for the court to in- it must follow, as an irresistible conclusion, struct the jury "that a person taking a cattle that it applies with much greater force to a train is entitled to demand the highest pos- passenger train and to a passenger who pays sible degree of care and diligence, regardless his fare, and who is free from any fault or of the kind of train he takes." Mr. Justice negligence, as in the case under consideration. Swayne, in the course of the opinion, on page On the other hand, the evidence shows that 296, after reviewing the above authorities, the collision in this case between the defenduses the following language: "But, upon ant's passenger trains was wholly due to the

negligence of its servants and employés. It ; recover damages from the defendant, then follows that there was no error in giving you are instructed that, in estimating the this instruction to the jury.

damages which you will award the plaintiff, The next error complained of is that the you are entitled to take into consideration the court erred in its charge to the jury in ref- extent of plaintiff's injuries, if any were suference to the.measure of damages recoverable fered by him." (The italics are ours.) Then in this case.

Instruction 6, which was given follows a statement of the different elements at the request of the plaintiff, is as follows: of damages that are recoverable in an action "If you find from the evidence, under the of this kind. And it seems to us that it rules laid down in these instructions, that was not necessary to repeat the phrases, the plaintiff is entitled to recover damages “if you find from the evidence," and, "if any from the defendant, then you are instructed were suffered by him,' in stating the subsethat, in estimating the damages which you -quent elements of damages referred to in will award the plaintiff, you are entitled to the same instruction, and that these various take into consideration the extent of plain- elements necessarily related back to, and tiff's injuries, if any were suffered by him, were qualified by, the first part of the instructhe physical and mental pain and suffering tion, which stated under what circumstances which he has endured, and which were the the plaintiff could recover. natural and proximate result of such in- Nor do we think instruction 7, in reference juries, and also that pain and suffering which to the measure of damages recoverable for is reasonably certain that he will suffer in physical and mental pain and suffering, is the future as the natural and proximate re- subject to serious objection or criticism. sult of such injuries. You may also consider While some of the language used in the inhis loss of capacity, physical and mental, struction was perhaps not as felicitous as to attend to his usual business or perform it should have been, yet we are of the opinthe kind of labor for which he is fitted. You ion that the instruction did not confuse or may also consider his loss of time from his mislead the jury, and that this instruction, business or occupation and that which is when considered with the other instructions reasonably certain to result in the future

in reference to the measure of damages, fairas the natural, direct, and proximate result ly stated the law, and that the charge, as a of his injuries. You may also take into con- whole, is in accord with the adjudicated sideration the necessary medical and other ex

cases. In Railroad Company v. Barron, 72 penses incurred by him in endeavoring to

U. S. 105, 18 L. Ed. 591, Mr. Justice Nelson, effect a cure or alleviate his condition. To

speaking for the court, said: “The damages recover for such expenses the plaintiff must

in these cases, whether the suit is in the show either that he had paid for such sery- name of the injured party, or, in case of ices or become liable to pay for the same. his death, under the statute, by the legal He may also recover for such future expenses representative, must depend very much on for medical and other expenses as it is rea- the good sense and sound judgment of the sonably certain that he will be compelled to jury upon all the facts and circumstances of incur for such treatment and care as are re- the particular case. If the suit is brought by garded necessary and imperative in his be

the party, there can be no fixed measure of half as the direct and proximate result of compensation for the pain and anguish of the injuries from which he is suffering.” body and mind, nor for the loss of time It is earnestly contended by counsel for and care in business, or the permanent inplaintiff in error that this instruction is er

jury to health and body." In the case of the roneous, and ground for reversal of the cause, “City of Panama,” 101 U. S. 453, 25 L. Ed. for the reason that, in stating the elements 1061, this doctrine was reiterated and approvof damage, the court assumed the existence ed by the court. In Vicksburg, etc., Railroad of injuries which were not warranted by the Co. v. Putman, 118 U. S. 554, 7 Sup. Ct. 1, evidence. The general doctrine is well set- 30 L. Ed. 257, Mr. Justice Gray, speaking tled that a charge which, in effect, assumes for the court says: “In an action for a perthe existence and proof of disputed facts, sonal injury, the plaintiff is entitled to reor which restricts or interferes with the dis- cover compensation, so far as it is susceptible ('retion of the jury is erroneous, and, if it of an estimate in money, for the loss and is of such a character as to mislead the jury, damage caused to him by the defendant's it is ground for reversal of the cause. But, negligence, including, not only expenses inafter a careful analysis of the instruction, curred for medical attendance, and a reawe do not think that it is subject to these sonable sum for his pain and suffering, but objections. On the contrary, we think when also a fair recompense for the loss of what the instruction is carefully considered, it he could otherwise have earned in his trade fairly and correctly states the various ele

or profession, and has been deprived of the ments of damages recoverable, if the jury capacity of earning, by the wrongful act of find the issues in favor of the plaintiff. It the defendant. Wade v. Leroy, 20 How. 34, will be observed that the instruction stated 15 L. Ed. 813; Nebraska City v. Campbell, at the very outset, "if you find from the 2 Black (U. S.) 590, 17 L. Ed. 271; Ballou evidence under the rules laid down in these v. Farnum, 11 Allen (Mass.) 73; New Jersey instructions that the plaintiff is entitled to Express Co. v. Nichols, 32 X. J. Law, 166, 33

V. J. Law, 434, 97 Am. Dec. 722; Phillips v. London & Southwestern Railway, 4 Q. B. D. 406, 5 Q. B. D. 78, 5 C. P. D. 280; S. C., 19 Law Journal (Q. B.) 233.” In Davidson v. Southern Pac. Co. (C. C.) 44 Fed. 481, the following charge was approved: "In reference to the question of damages, you are instructed that that law furnishes no fixed or defined standard for the guidance of the jury in awarding compensation in cases of this kind for the injuries sustained by the injured party, and the amount of damages to be awarded must be left, in view of the testimony, to the sense of right and justice of the jury. The plaintiff, if your finding be in his favor, should be fairly and justly compensated for the injuries he has sustained. In making your estimate of such damages, you are authorized to consider: (1) Such special expenses as may be shown by the testimony to have been incurred by the plaintiff by reason of his injuries during the period of his disability, while confined; (2) the value of the time lost by him during the period in which he was disabled, from his injuries, to work and labor, taking into consideration the nature of his business, and the value of his services in conducting the same; (33) fair compensation for the mental and physical suffering caused by the injury; and (1) the probable effect of the injury in future upon his health, and the use of his injured hund, and his ability to labor and attend to his affairs, and, generally, any reduction of his power and capacity to labor and earn money, and pursue the course of life which he might otherwise

otherwise have done." Measured by the rule laid down in these authorities, we are of the opinion that there was no material error in the charge to the jury which would justify a reversal of the (ause.

It is next contended that the court erred in admitting the testimony of the plaintiff in regard to the damages that were recoverable for loss of time. It seems that after the plaintiff had testified that his occupation was that of a farmer, a stock raiser, and a well driller, he was permitted to state what his earning capacity was reasonably worth per month prior to the time he sustained the injuries which were the subject of this controversy. To this ruling the defendant excepted. We are of the opinion that the evidence was admissible; and hence that there was no error in this ruling. In Murdock v. New York & B. Despatch Ex. Co. (Mass.) 46 N. E. 57, the Supreme Judicial Court of Massachusetts held that, "in an action for personal injuries which prevented plaintiff from working, his loss of earnings is a proper element of damages, and evidence of his average monthly earnings is admissible." Braithwaite v. Hall, 168 Mass. 39, 46 N. E.

398, this rule is clearly stated by Mr. Justice Holmes, then Associate Justice of the Supreme Judicial Court of Massachusetts, and now one of the Justices of the Supreme Court of the United States, as follows: "The ruling as to damages was correct. It is true that, when a man is allowed to prove his average earnings or the wages actually lost by him, they are proved as a measure of the value of the time and power to labor of which he has been deprived, not as themselves recoverable eo nomine. But the distinction does not appear to be material in this case. There is nothing to show that the wages were not reasonable, and a proper measure of the value of the plaintiff's time. It is argued for the defendant that the true measure is the market value of the averages of a man of the plaintiff's average capacity, working in the same employment. But the cases cited do not sustain the position, and there are many decisions adopting the test of the individual's experience. If any distinctions in the value of men's time are admitted, there is no reason why the whole actual difference should not be recognized." In Wade v. Leroy, 61 U. S. 34, 13 L. Ed. 813, "in an action against the owners of a ferryboat, for personal injuries sustained by the negligence of its officers, it was held that the plaintiff might show that he was engaged in a particular business, and had been incapacitated from attending to it as exhibiting the extent of the injury, and that it had occasioned expense, suffering and loss of time which had value to him, although the nature of his occupation was not set forth in the declaration." And in Nebraska City v. Campbell, 67 U. S. 590, 17 L. Ed. 271, it was held that, in an action for damages sustained by the negligence of a municipal corporation, evidence showing the business in which the plaintiff was engaged, its extent, and the consequent loss arising to him from his inability to prosecute it, is relevant and pertinent, as enabling the jury to fix, with some certainty, the direct and necessary damages resulting from his injuries. So, in the case under consideration, we think it was proper for the plaintiff to state that his time, prior to the accident, was reasonably worth from $100 to $150 a month. And, in the light of all the evidence, we are of the opinion that the amount allowed for loss of time and diminution of earning capacity was not excessive.

Upon a careful examination and consideration of the entire record, we are of the opinion that no error was committed which would require a reversal of this cause, and, believing that the verdict of the jury is fully sustained by the evidence, and that the judgment of the court is in consonance with right and justice, the cause is hereby affirmed. All the Justices concurring.

(17 Okl. 82)

territory, the person charged shall at his own PERKINS 1. TERRITORY.

request, but not otherwise, be a competent (Supreme Court of Oklichoma. Sept. 1, 1906.) witness, and his failure to make such reCRIMINAL CASE--FAILURE OF DEFENDANT TO

quest sha!! not (reate any presumption TESTITY - COMMENT TIEREOX -- REVERSIBLE against him, nor he mentioned on the trial; ERROR.

if commented upon by counsel it shall be Where a defendant is on trial charged with the commission of a crime, and fails to testify

ground for a new trial." This statute is plain in his own behalf, and the prosecutiny oflicer ani unainliiguous, and, where its terms are comments upon such failure to the jury, such violated, the court has no discretion, but comments constitute reversible error.

must grant a new trial. The language used [Ed. Note.-For cases in point, see rol. 14, Cent. Dig. Criminal Law, § 1672.]

was clearly a comment upon the fact that

the defendant had not taken the stand and (Syllabus by the Court.)

explained his possession of the cattle. It is Error froin District Court, Beaver County;

immaterial what words are used in such cirbefore Justice John L. Pancoast.

cumstances, if they are clearly calculated to Bird Perkins was convicted of stealing, direct the attention of the jury to the fact and brings error. Reversed and remanded. that a defendant has not testified in his own J. W. Culwell, Geo. H. Healey, and Law

behalf, that he might have done so, and that rence & Huston, for plaintiff in error.

P.

by such failure some inference might be inC. Simons, Atty. Gen., for the Territory.

dulgeil against him. The language used could scarcely fail to have this effect, and

the statement of counsel was not in any BURWELL, J. The defendant was indicted jointly with his wife for the crime of steal

Way corrected by the inquiry of the court

in which it said: "Of course, you will not reing domestic animals. A severance was had,

fer to the fact that the defendant did not and the defendant placed on trial first. On this trial his wife was the only witness in

testify.” Where a defendant fails to offer

any evidence, the prosecution is not prehis behalf. The defendant did not testify.

vented frou: discussing the evidence against It was contended by the prosecution that the cattle alleged to have been stolen were found him, and to insist that such evidence is unin the defendant's possession. The county

disputed; but a prosecuting officer under the

statute must refrain from calling attention of attorney, in his closing argument to the jury,

the jury to the fact that a defendant has used tlie following language: "Why don't

failed to testify in his own behalf. Wilson he explain? Why don't they attempt to ex

v. Territory, 9 Okl. 331, 60 Pac. 112. plain away these circumstances? Why don't

For the reason stated, the case is hereby they show you how it was he came into pos

reversed, and a new trial granted, at the cost session of that property, or that he was in

of the territory. All of the Justices concursome other country? That it was impossible for him to have done it? There isn't a word

ring, except PANCOAST, J., who presided at

the trial below, not sitting, and GARBER, of evidence in explanation. You have just

J., absent. simply the testimony of the state's witnesses, and it is absolutely uncontradicted, in every particular. It shows that this property was

(17 Okl. 410) stolen, and under these circumstances, this

KEE Y. EWING et al. man watching the cattle from where he was

(Supreme Court of Oklahoma. Sept. 6. 1906.) plowing, as he told you had been his custom of watching them. keeping them hack

ACKNOWLEDGMENT – MORTGAGES – RECORD

NOTICC. Here the court interrupted, using these words:

A note and mortgage executed and deliver"Mr. Loufbourrow, of course, you will not ed to A.. which mortgage is acknowledged by refer to the fact that the defendant did not the parties executing the same before B., a testify." To which Mr. Loufbourrow replied:

notary public, and there is nothing upon the

face of the instrument which discloses any in"No! No! I didn't desire it to be considered

terest therein by any third person. II cli, that in that way. It is not likely that a bunch of such mortgage is entitled to record by the milk cows would stray away a distance of

register of deeds, notwithstanding the fact that 40 miles. Another thing, the identity of these

1. is president, and B. cashier and stockholder,

of the same bank at that time; and held furcattle is not disputed. They were seen 10 ther that such record operates as notice. miles from where they were taken."

[Ed. Note.-For cases in point. See vol. 1, It is insisted that the language on the part

Cert. Dig. Acknowledgment, SS 101-111.] of the prosecuting officer was in violation (Syllabus by the Court.) of the provisions of the statutes which pro hibit comment upon the failure of a defend

Error from District Court, Custer County; ant to testify in his own behalf.

before Justice C. F. Irwin.

Section 5206 of the Statutes of Oklahoma of 1893, pro

Action by O. B. Kee against C. J. Ewing vides: "In the trial of all indictments, in

and others. Judgment for defendants, and formations, complaints and other proceedings

plaintiff brings error. Reversed and reagainst persons charged with the commission

manded. of a crime, offenses and inisdemeanors before On July 5, 1901, C. J. Ewing and Hattie any court or committing magistrate in this Ewing, his wife, executed and delivered to

the Union Trust Company, one of the defend- by the court overruled, judgment was entered ants in error, a real estate mortgage covering for the respective parties, as above indicated, certain property in block 34 in the city of and from such judgment the cause comes to Weatherford, Custer county, 0. T., which this court by case-made. mortgage was filed for record in the office of

George T. Webster and Ione Webster, for the register of deeds of said county on the

plaintiff in error. Flynn & Ames, for de24th day of March, 1902. On November 27,

fendants in error. 1901, defendants Ewing and wife executed and delivered to the plaintiff, 0. B. Kee, their note, secured by a mortgage upon the same GILLETTE, J. (after stating the facts). premises covered by the mortgage to the Un- The only question presented by the brief of ion Trust Company, and this mortgage was plaintiff in error is a question arising under filed and recorded in the register of deeds the following assignment of error: "The office in said county on November 28, 1901. court erred in finding that the mortgage of And on the same day they executed and de- the Union Trust Company was a first lien, livered to one Sam Wells their note for $460. and that Kee had a second and third lien on This note was thereafter, and before ma- said property.” The facts were found by a turity, assigned to plaintiff ; and, on the 10th referee, from whose finding of facts it apday of March, 1902, Ewing and wife executed pears that the Union Trust Company had a and delivered a deed to the premises covered mortgage upon the lands involved, given June by the two mortgages above mentioned, which 5, 1901, and recorded March 24, 1902, executdeed was filed for record on the 8th day of ed by one Ewing and wife. On November 27, April, 1902. Both of these instruments run- 1901, Ewing and wife executed a mortgage ning to Kee, to wit: The mortgage recorded to the plaintiff in error, O. B. Kee, which was November 28, 1901, and the deed recorded recorded the following day, November 28, April 8, 1902, were acknowledged before one 1901. On March 10, 1902, the plaintiff in er0. H. Cafky, a notary public, who, it is ad- ror purchased another note of Ewing, which mitted, was at the time the cashier of the was secured by a deed of Ewing and wife, National Exchange Bank, and a shareholder on the same property and recorded April 8, therein. The acknowledgments to both the 1902. At the time of the execution and acmortgage and deed running to Kee were taken knowledgment of the two last-named instruby one 0. H. Cafky, a notary public, who, at ments, the plaintiff in error was president of the time of taking such acknowledgments, the National Exchange Bank of Weatherford, was the cashier of, and a stockholder in, said 0. T., and the notary taking the acknowledgbank. Neither Kee nor the National Ex- ment of Ewing and wife to each of said inchange Bank had any notice or knowledge of struments was 0. H. Cafky, who was at that the mortgage to the Union Trust Company un- time cashier of, and a stockholder in, said til the same was placed on record. This ac- bank. The National Exchange Bank

Bank of tion was commenced by 0. B. Kee, on the Weatherford is shown by the record and find26th of June, 1902, to foreclose the mortgage ings to be interested in the mortgage and and deed treated as a mortgage given by deed taken in the name of the plaintiff in erTwing and wife to him, and making the Un- ror. The findings of the trial court that the ion Trust Company a party defendant. Nei- mortgage of the Union Trust Company was ther Ewing nor his wife appeared in the case, a first lien, although recorded subsequent to but the Union Trust Company answered, and the recording of the mortgage taken in the filed a cross-petition, setting up their mort- name of the plaintiff in error, was based upon gage, and asking to have it declared a first the fact that such mortgage and deed was lien on the premises. It is admitted that, at acknowledged before 0. H. Cafky, an interestthe time of executing these various mortgages,

ed person. Ewing and wife were the owners of the It is argued by the plaintiff in error that, premises described therein. The cause was under the provisions of section 888, Wilson's tried before a referee, who, after making sub- Rev. & Ann. St. 1903, which provides: "Exstantially the foregoing finding of facts, as a cept as herein provided, no acknowledgment conclusion of law, held that the plaintiff, or recording shall be necessary to the validity Kee, had a first and second lien upon the of any deed, mortgage, or contract relating premises, by virtue of his mortgage and deed, to real estate as between the parties thereto; and the defendant Union Trust Company, a but no deed, mortgage, contract, bond, lease, third lien by virtue of its mortgage.

or other instrument relating to real estate, ceptions and objection to the referee's report, other than a lease for a period not exceeding and confirmation of the same, the court be- one year and accompanied by actual posseslow held the mortgage and deed of Kee to be sion, shall be valid as against third persons improperly of record, because of the finan- unless acknowledged and recorded as herein cial interest of the notary public who took provided; except, actual notice to such third the acknowledgments to the same, and there- persons shall be equivalent to due acknowlfore held the Union Trust Company entitled edgment and recording”--the laches of the to the first lien, and Kee a second and third Union Trust Company, in not recording its lien, on the premises involved. Plaintiff, Kee, mortgage, left the record free and clear when filed his motion for a new trial, which being Kee took his mortgage, and, in so doing relied

On ex

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