Cyc. 835; Grand Rapids, etc., Ry. Co. v. Chesebro, 74 Mich. 466, 42 N. W. 66; Cory v. Chicago, etc.. Ry. Co., 100 Mo. 282, 13 S. W. 346; Ellinghouse v Taylor, 19 Mont. 462, 48 Pac. 757; Jones v. New Orleans, etc., Ry. Co., 70 Ala. 227; Newgass v. St. Louis, etc., Ry. Co.. 54 Ark. 140, 15 S. W. 188; San Francisco, etc., Ry. Co. v. Taylor, 86 Cal. 246, 24 Pac. 1027; Florida Central Co v. Bell, 43 Fla. 359, 31 South. 259; Chicago, etc., Ry. Co. v. Goodwin, 111 Ill. 273, 53 Am. Rep. 622; Daniels v. Chicago, etc., Ry., 41 Iowa, 52; Oregon Ry. v. Mosier, 14 Or. 519, 13 Pac. 300, 58 Am. Rep. 321: Justice v. Nequehoning Valley Co., 87 Pa. 28; Searl v. Lake Co. School Dist., 133 U. S. 553, 10 Sup. Ct. 374, 33 L. Ed. 740; Albion Ry. Co. v. Hesser, 84 Cal. 435, 24 Pac. 288; Railroad Co. v. Armstrong, 46 Cal. 85; Dunlap v. Ry. Co., 50 Mich. 470, 15 N. W. 555; Secombe v. Milwaukee & St. P. Ry. Co., 23 Wall. (U. S.) 108, 23 L. Ed. 67; In re Metropolitan Elv. Ry. (Sup.) 12 N. Y. Supp. 506; Mead v. Elev. Ry. Co. (Super. Ct.) 24 N. Y. Supp. 908; Jacksonville, etc., Ry. Co. v. Adams, 28 Fla. 631, 10 South. 465, 14 L. R. A. 533. Upon the other hand, there are many cases asserting the doctrine that where there is nothing in the statute to indicate an intention on the part of the Legislature that the remedy by condemnation should be exclusive, it is merely a cumulative remedy, and the landowner has his election as to which remedy he will avail himself of. 15 Cyc. 982; Smith v. Chicago & W. Co., 67 Ill. 191; Strickler v. Midland R. R. Co., 125 Ind. 412, 25 N. E. 455; Chicago, etc., R. R. Co. v. Patterson, 26 Ind. App. 295, 59 N. E. 688; Atchison, etc., Ry. Co. v. Weaver, 10 Kan. 344; Cohen v. St. L., Ft. Scott & Wichita R. R. Co., 34 Kan. 158, 8 Pac. 138, 55 Am. Rep. 242; Parsons Water Co. v. Knapp, 33 Kan. 752, 7 Pac. 568; Lee v. Pembroke Iron Co., 57 Me. 481, 2 Am. Rep. 59; Harrington v. St. Paul, etc., Ry. Co., 17 Minn. 215 (Gil. 188); Hickman v. Kansas City, 120 Mo. 110, 25 S. W. 225, 23 L. R. A. 658, 41 Am. St. Rep. 684; Ash v. Cummings, 50 N. H. 591; White v. N. W. N. C. R. R. Co., 113 N. C. 610, 18 S. E. 330, 32 L. R. A. 627, 37 Am. St. Rep. 639; Fries v. Wheeling, etc., R. R. Co., 56 Ohio St. 135, 46 N. E. 516; Schuylkill Nav. Co. v. McDonough, 33 Pa. 73; Parker v. East Tenn. Ry. Co., 13 Lea (Tenn.) 669; Younkin v. Milwaukee Light, etc., Co., 112 Wis. 15, 87, N. W. 861. While the former rule seems to be supported by the greater weight of authority, we think the rule giving to the landowner, when his land has been invaded and taken without his consent for railway purposes, the election to proceed under the statute for ascertaining damages in condemnation proceedings, or to maintain an independent suit for his damages, is more in consonance with our embryonic condition and more certainly insures the adjustment of all adverse rights and interests in such cases, and we adopt such rule as the law of this jurisdiction. However, under this rule, it is 91 P.-56

not permissible for a landowner to wage a suit for damages for the same injuries which may be adjudicated in condemnation proceedings when such condemnation proceedings are pending, or to commence such suit after the initiation of such proceedings. To proceed in the one case excludes the right to proceed in another. 15 Cyc. 983.

While both parties were dilatory in commencing proceedings to determine the damages in this case, it appears that Bebout filed his petition for damages prior to the commencement of the condemnation proceedings by the railway company, but he failed to procure service of summons until after the condemnation proceedings had been perfected. Hence, under the statute fixing the commencement of an action as of the date of the summons which is actually served, it follows that the suit of Bebout for damages was not commenced until after the condemnation proceedings were instituted and perfected by amendments. The trial court erred in consolidating and trying the causes together. Everything that Bebout claimed could be determined in the condemnation proceedings, and, in any event, these proceedings were perfected and at issue before the action for damages was at issue, and when the condemnation cause went to trial the other case should have been dismissed. But the error in the proceeding only goes to a question of costs. Bebout was entitled to a jury trial in the condemnation case. He had not waived this right, and, as all the costs of the trial were made in the consolidated cases, no injury was done. The railway company, under the verdict of the jury, was liable for the costs of trial and final judgment in any event, and it is not to be presumed that any more or greater expense was incurred in trying the consolidated cases than would have been incurred in trying the condemnation case. Nor were any other controverted issues involved. The only question submitted to the jury was the difference in value of Bebout's land before and after the construction of the railway improvements. The conclusions here reached make it apparent that the action for damages brought by Bebout was improperly brought, and must necessarily be at his costs. The condemnation proceedings were proper and involved all the rights of both parties growing out of the appropriation of the land and the right of way by the railway company, and by the terms of the statute (Wilson's Rev. & Ann. St. 1903, § 1041) the Blackwell, Enid & Southwestern Railway Company was liable for all the costs of the assessment of damages up to the time Bebout filed his demand for a jury trial, and, having by the verdict of the jury recovered a verdict more favorable than the award of the commissioners, he was entitled to recover all the costs in the condemnation proceedings. It appears from the record that the total costs accrued in both cases was $276.40.

for

Of this sum $89 accrued in the damage suit prior to the consolidation. In no event is it proper to charge any of said amount against the Blackwell, Enid & Southwestern Railway Company.

The plaintiffs in error contend that the Blackwell, Enid & Southwestern Railway Company offered before trial to confess judgment in the condemnation proceedings for the sum of $550, and that, inasmuch as Bebout only recovered $480 by the verdict of the jury, he should not recover any costs which were incurred after the offer to allow judgment was made. The statute (Wilson's Rev. & Ann. St. 1903, § 4715) provides that: "The defendant in an action for the recovery of money only may, at any time before the trial, serve upon the plaintiff or his attorney an offer in writing to allow judgment to be taken against him for the sum specified therein. * * * If the plaintiff fails to obtain judgment for more than was offered by the defendant, he shall pay the defendant's costs from the time of the offer." If the proceedings brought by the railway company to condemn its right of way and to have the damages done to the landowner assessed by commissioners is "an action for the recovery of money only," then the contention of the plaintiffs in error as to costs is well taken. We do not think it comes within the designation of the statute. The condemnation cause was instituted by the railway company for the purpose of authorizing it to take private property for its use without the consent of the owner. The question of damages and of compensation is an incident to the main cause. It is a special proceeding, initiated in a particular and special manner, different from that in bringing an ordinary action for the recovery of monex. The commissioners are required to determine the quantity, boundaries, and value of the property taken or amount of injury done to the property of the owner, and on demand for jury trial the issues are tried de novo, and the question of the necessity for the taking and the quantity claimed are issues of fact that ordinarily may be inquired into in such proceedings. It must necessarily follow that such a proceeding is not one for the recovery of money only, and the offer of the plaintiff in error to confess judgment before trial for a greater sum than the amount awarded in the verdict of the jury cannot affect the question of taxation of costs.

The next complaint arises upon the action of the court in adding to the amount of the verdict of the jury the sum of $109.20 as and for interest. There is nothing in the record to indicate that the jury did not in the assessment of damages include the total amount that they deemed the defendant in error entitled to, and, in the absence of any indication to the contrary, the presumption is that they included in their award of damages every element that the landowner was

entitled to. This question was before this court in the case of St. Louis, El Reno & Western Railway Company v. Oliver, 18 Okl., 87 Pac. 423, and, after reviewing the Kansas cases upon the subject, the rule was laid down that: "In a case tried by jury, where it is clearly apparent that the prevailing party is entitled to interest upon the amount found in the verdict, and it is unquestionably clear that the jury allowed no interest, or where the court reserved the question of allowance of interest until after verdict, and it is clearly ascertainable from the verdict or uncontroverted facts the dates from which and to which interest should be allowed, and the rate is fixed, the court may make the computation and add the interest so found to the sum found in the verdict, and render judgment for the aggregate amount." This rule goes as far as the law will warrant, and we think it unsafe to extend it. The case at bar does not come within this rule. The court did not reserve the question of interest from the jury. It was the duty of the jury to assess the entire damage, and we must presume that they did so. "In an action for the breach of an obligation not arising from contract, interest may be given in the discretion of the jury." Wilson's Rev. & Ann. St. 1903, § 2727. In the state of the record, we must presume that the jury exercised its discretion. It was error for the court to add any additional sum to the verdict, and the amount so allowed must be deducted from the judg ment. It was the duty of the court to renThere was der judgment upon the verdict. no error in the assessment of damages by the jury, and the judgment must follow the verdict.

We find no error necessitating the granting of a new trial. The trial court should have modified the judgment as to amount and as to costs.

The amounts all appearing approximately certain in the record, this court will set aside and vacate the judgment and make it conform to the judgment that the district court should have rendered. And said judgment for the sum of $589.20 and for costs is set aside and vacated, and judgment is now here rendered upon the verdict of the jury. And it is now hereby ordered and adjudged that the defendant in error, J. J. Bebout, do have and recover of and from the Blackwell, Enid & Southwestern Railway Company the sum of $480, with interest thereon at the rate of 7 per cent. per annum from the 21st day of February, 1905, and the sum of $187.41, costs accrued in said condemnation proceedings; and said cause No. 737. J. J. Bebout v. Blackwell, Enid & Southwestern Railway Company and St. Louis & San Francisco Railroad Company, is dismissed at the costs of the plaintiff, J. J. Bebout. And said condemnation proceedings are in all things confirmed and made effectual. The costs in this court are ordered taxed to the

diseased condition as to require his leg to be amputated; and for his suffering, loss of limb, and expense of sickness and treatment, he brings this action, based upon the alleged negligence of the railway company in operating its train. The amended petition sets out the facts specifically and at length. The company answered by a general denial, coupled with an averment, in general terms, of contributory negligence on the part of the plaintiff. The plaintiff replied by general denial. The case was tried to a jury, and after all the evidence was introduced by both sides the court directed a verdict for the defendant and entered judgment of nonsuit. The plaintiff brings the cause here on petition in error.

Blakeney & Maxey and W. B. Crossan, for plaintiff in error. C. B. Stuart and Thos. R. Beman, for defendant in error.

BURFORD, C. J. (after stating the facts as above). We are advised that the trial court held, as a matter of law, that by going into the baggage compartment and riding there the plaintiff was guilty of such negligence per se as would prevent a recovery of damages. Preliminary to a discussion of this question, there are some questions of practice which arose upon the trial that should be settled.

The plaintiff filed an original, a first, and a second amended petition. In the original petition it is averred that the train upon which plaintiff took passage was a mixed train, composed of one passenger coach, one combination passenger and baggage coach, several box or freight cars, and a locomotive. In the amended petitions the averment is made that the train consisted of one combination passenger and baggage car, certain freight cars, and one locomotive. It is stated in the brief of plaintiff in error that the trial court, in deciding the case, held that the averment in the original petition that there was a passenger coach in the train was an admission by the plaintiff against his interest, and was conclusive against him and not subject to explanation or controversy. The original pleading was not introduced in evidence. The rule stated is one that applies to the pleadings upon which the case is submitted for trial. In the case of Lane Implement Co. v. Lowder & Manning, 11 Okl. 61, 65 Pac. 926, this court, in discussing a similar question, stated the law to be that "where a party to an action makes solemn admissions against his interest in a pleading, in the absence of mistakes on his part or on the part of his counsel who inserted them in such pleading, a court, in passing upon the sufficiency of a subsequent amended pleading filed by him, should take such admissions into consideration and treat them as admitted facts in the case." No authority is cited supporting this rule. It is probably stated too broadly, and is subject to some modification. The rule as stated supra is correct as applied to an amendment to a pleading; but the general

Bar

rule is that an original pleading is superseded, and its effect as a pleading destroyed, by filing an amended pleading which is complete in itself and does not adopt any of the former pleading by reference. 1 Enc. Pl. & Pr. 625. In any case a distinction should be made between an admission and an allegation. One is in the nature of a confession of a fact averred by the adverse pleader. The other is an averment against the adverse pleader, which must be supported by proof. The authorities are not at all harmonious as to the effect to be given upon the trial to superseded pleadings. A few courts, and principally California, seem to have adopted the rule that a pleading which has been withdrawn by an amended pleading cannot be considered for any purpose on the trial; it being considered unjust to hold a party bound by statements which may have been inserted by inadvertence or mistake, and which he has voluntarily abandoned by filing a new pleading. ber v. Reynolds, 33 Cal. 497; Kelly v. McKebben, 54 Cal. 192; Mecham v. McKay, 37 Cal. 154; Pence v. McElvy, 51 Cal. 222; Kentfield v. Ilays, 57 Cal. 409; Pfister et al. v. Wade et al., 69 Cal. 133, 10 Pac. 339. But such superseded pleadings may be used for impeachment purposes, when relevant. In re O'Conner's Estate, 118 Cal. 69, 50 Pac. 4. In Smith v. Pelott et al., 63 Hun, 632, 18 N. Y. Supp. 301, it was held that upon the trial the averments of the superseded pleadings could be considered, whether introduced in evidence or not; but this rule has but little support. The weight of authority and betterreasoned cases support the rule that a pleading, or an admission or allegation in a pleading, notwithstanding it may have been withdrawn, stricken out, or superseded by an amended pleading, is competent in evidence, and may be introduced against the party from whom it proceeded, like any other admission or declaration, subject, however, to explanation by the party who made it. This rule rests on the general principle that whatever a party has said about his case may be proved against him, and whatever writing he has signed or authorized may be, if relevant, introduced against him, the weight of such evidence to be left to the court or jury trying the case. Abbott's Trial Brief (2d Ed.) pp. 296, 297; Solomon Ry. Co. v. Jones, 30 Kan. 601, 2 Pac. 657; Reihl v. Likowski, 33 Kan. 515, 6 Pac. 886; Jockers v. Borgman, 29 Kan. 109, 44 Am. Rep. 625; Brown v. Pickard, 4 Utah, 292, 9 Pac. 573, 11 Pac. 512; Kilpatrick D. G. Co. v. Box, 13 Utah, 494, 45 Pac. 629; Barton v. Laws, 4 Colo. App. 212, 35 Pac. 284; Schad v. Sharp, 95 Mo. 573, 8 S. W. 549; Stone v. Cook, 79 Ill. 424; Hall v. Woodward, 30 S. C. 564, 9 S. E. 684; B. & O. & C. R. R. Co. v. Evarts, 112 Ind. 533, 14 N. E. 369; Ludwig v. Blackshere, 102 Iowa, 366, 71 N. W. 356; Jeneau v. Stunkle, 40 Kan. 756, 20 Pac. 473; Walser v. Wear, 141 Mo. 443, 42 S. W. 928; Woodworth v. Thompson, 44 Neb. 311, 62 N. W. 450; Strong v. Dwight,

11 Abb. Prac. N. S. (N. Y.) 319; Willis v. Tozer, 44 S. C. 1, 21 S. E. 617; Goodbar Show Co. v. Sims (Tex. Civ. App.) 43 S. W. 1065; Or. R. R. & Nav. Co. v. Ducres, 1 Wash. St. 195, 23 Pac. 415; Lindner v. St. Paul F. & M. Ins. Co., 93 Wis. 526, 67 N. W. 1125; Daub v. Engleback, 109 Ill. 267; Folger v. Boyington, 67 Wis. 447, 30 N. W. 715; Vogel v. Osborn, 32 Minn. 167, 20 N. W. 129. In this case the superseded petition was not introduced in evidence, and its contents were not proper to be considered, either as admissions of record or as evidence in the case. The rights of the parties should have been determined upon the averments contained in the pleadings upon which the cause proceeded to trial, regardless of any former pleadings, unless properly offered and admitted in evidence.

Another question of practice relates to the question of pleading. The defendant, prior to the trial, asked for leave to file an amended answer, in which the company alleged compliance with the statutory regulations requiring rules and regulations to be posted in the passenger cars and the violation of such rules by the plaintiff. This plea was in the nature of confession and avoidance, or by way of justification. The court refused the request to file the amended answer, and the case went to trial upon the issues made by the defendant's general denial and plea of contributory negligence, which was denied by the plaintiff. Upon the trial the court, over the objection of the plaintiff, permitted the defendant to offer evidence tending to show that it had posted on the baggage room door a warning, and that the company had issued to its trainmén printed regulations, relating to the prevention of passengers riding upon the platform and in baggage cars. This evidence was not admissible under the issues formed, and it was error to admit it. It has been held that, in order to entitle the carrier to make the defense that it has adopted and promulgated rules and regulations which the passenger has violated, it must plead its rules and allege the facts which constitute the defense; and we think this a sound rule of practice. Sherman v. Hannibal & St. Joe R. R. Co., 72 Mo. 62, 37 Am. Rep. 423; Weymouth v. Broadway, etc., R. R. Co., 142 N. Y. 681, 37 N. E. 825; Vail v. Broadway, etc., R. R. Co., 147 N. Y. 377, 42 N. E. 4, 30 L. R. A. 626.

The question as to whether the court rightfully took the case from the jury and decided as a matter of law that the plaintiff was guilty of such contributory negligence as would prevent a recovery is the controling one in this case. It is uncontroverted that the plaintiff was a passenger upon the defendant's train. The train was a mixed train, carrying both freight and passenger cars. The plaintiff went into the baggage compartment of the combination coach, and there took a seat upon a box, and there remained until he was hurt, after which he got onto a flat

car and rode. No one in charge of the train either directed him into the baggage car or objected to his occupying the same. There were a number of other passengers occupying the baggage car at the time. It was the custom for passengers to occupy the baggage compartment between the stations of Tecumseh and Shawnee, and the conductor took fare from those in such car and made no objections to their riding there. The plaintiff had a ticket when he went upon the train to take passage to Shawnee, but his ticket was not taken up until after the accident. There was printed upon the door between the passenger and baggage car the words "No admittance." The door was standing open, and, when open, these words were not visible to one in the passenger compartment. The company had printed rules and regulations forbidding employés to allow passengers to ride in the baggage car. There was no proof of any rules or regulations being posted in the passenger coach or compartments for passengers in the train. It was a controverted question of fact as to the number of passengers on the train. It was a controverted question as to whether there was a passenger coach in the train in addition to the combination car. It was a disputed question as to whether the train was crowded, and whether there were any vacant seats in the passenger compartments, at the time of the accident. It was a disputed question as to whether the plaintiff could have found a seat, had he gone through the train. The combination car, in which plaintiff rode and was hurt, was the rear car in the train. There was nothing in the position occupied by plaintiff in the baggage car that could in any manner have contributed to his injury, except the fact that he was not sitting in a seat intended for occupancy by passengers. Upon the foregoing state of facts, what was the duty of the court?

Several of our state courts hold to the doctrine that a passenger is entitled to a seat in a passenger coach, and if he fails to occupy such seat, and occupies a place not intended for passengers, he is guilty of negligence per se, and is precluded from recovery, if injured while occupying such position; that he may demand a seat, and, if the carrier fails to provide him with one, he may retire from the train and maintain an action against the carrier for damages. This may be the safe and conservative rule; but it is not the practical

Passengers arrange for their dates of travel, and arrange for their business at their destination. They arrange for train and business connections, and have a right to rely upon the business of the carrier, when they purchase a ticket or engage passage, to receive them at the proper time and place, to provide them with necessary and usual accommodations, to transport them upon usual and regular trains, and deliver them at the destination their ticket calls for; and if, upon entering the train as a passenger, they find it overcrowded and no seats unoccupied, they