company, or any one else he saw fit. He in fact applied $200 of it towards the payment of his indebtedness to the hardware company. It is well settled that, where the debtor fails to direct the appropriation of a payment, the creditor has the right to make it. King v. Sutton, 42 Kan. 600, 22 Pac. 695.

This disposes of all questions affecting the claim.of the hardware company. With reference to the claim of Santy & Co., the only question other than that as to the time of filing the statement is as to the amount allowed them. It appears that Santy & Co. furnished Thompson, Hanna & Co. stone for the building, amounting to $1,096.81, and received in payments thereon $832.08. It appears from the evidence that some of the stone so furnished was diverted from its intended use, and sold to other parties, or used in the erection of other buildings. The court found the value of the stone so diverted to be not more than $130, and allowed Santy & Co. a lien for the balance only. The evidence amply sustains the finding of the court upholding Santy & Co.'s lien for the sum of $134. It is at least very questionable whether, under the evidence, the court would not have been warranted in sustaining their claim for the whole amount, but, as Santy & Co. make no complaint, we are not required to examine that question.

As to the claim of Swift, Mankoff & Congdon, the sole question raised is as to whether the statement was filed in time. That branch of the case therefore needs no further comment. It is not necessary for us to consider the effect of work done by a contractor or subcontractor after the completion of the building, merely for the purpose of extending the time for filing his lien, on which counsel for plaintiff in error cite authorities. We think no such question is presented by the record; that the court fairly considered the evidence offered, and that its finding is supported by competent testimony.

The comments of counsel on the probability of the statements of a witness, and their suggestions of untruthfulness, might be considered by the trial court, but are altogether out of place here. We perceive no error in the record, and the judgment is affirmed. All the justices concurring.

and the train approaching, until it was too late The door of the house was for her to rescue it. open, and there was no fence sufficient to prevent the child from going on the track. Held, that it was for the jury, rather than the court, to determine from these facts and circumstances whether the mother was guilty of negligence.

2. The want of orderly and logical arrangement of the propositions of law involved in the charge of the court to the jury will not entitle the defeated party to a reversal of the judgment, where all of the propositions of law fairly applicable to the case are given by the court, in such manner as to fairly inform the jury of the rules and principles by which they are to be guided in forming their verdict.

Horton, C. J., dissenting upon the findings of the jury.

(Syllabus by the Court.)

Error from court of common pleas, Sedgwick county; Jacob M. Balderston, Judge. Action by A. B. Calvert against the Atchison, Topeka & Santa Fe Railroad Company. Plaintiff had judgment, and defendant brings error. Affirmed.

The other facts fully appear in the following statement by ALLEN, J.:

Suit was brought in the district court of Sedgwick county by A. B. Calvert, as plaintiff, to recover for loss of services and expenses incurred on account of an injury received by his little daughter. The accident happened on the railroad track in Orme street, Wichita. Plaintiff resided with his family in a house about 40 feet distant from the track. At the time of the accident the plaintiff was away from his home. His wife was at home with their children, attending to her household duties. Just before the accident happened, she was busy ironing. A neighbor, Mrs. Le Port, was visiting her. The little child went out of the house with Mrs. Le Port's little girl a very short time before the accident,-the jury say from three to five minutes. The child was on the track, nearly in front of the plaintiff's house, when the train of cars belonging to the defendant ran over it, cutting off one of its legs. The jury rendered a general verdict in favor of plaintiff for $800, and answered special questions, as follows: "(1) How far west of the west line of Emporia avenue was the child when the accident happened? A. About seventy feet. (2) How far from the plaintiff's house was the railroad track on which the accident happened? A. About forty feet. (3) Is it not a fact that just east of Emporia avenue the south arm of the Y in question curved to the south, and extended south of Orme street? A. Yes. (4) About how many minutes before the accident did the child leave the house? A. Three to five minutes. (5) Where was the child's mother when it left the house? A. In middle room of house. (6) State fully what there was, if anything, to prevent the child from escaping from the house and going upon the railroad track if not watched by its mother. A. Nothing. (7) Was any bell rung or whistle sounded as the engine and car approached the child? A. No. (8) Is it not a fact that the acci

or

dent in question happened on the track of the Wichita & Western Railroad Co.? A. Ownership not disclosed by evidence. (9) If you answer 'No' to the next to the last question, state whether the ringing of the bell or the blowing of the whistle as the engine approached the child would have caused it to appreciate its danger, and get off the track in time to avoid the injury. (10) If you answer 'No' to question No. 7, state if the ringing of the bell or the blowing of the whistle would have given notice to the mother that the child on the track was in danger in time for her to save it from the accident. A. Yes; if rung blown at proper time. (11) State what, if anything, you find from the evidence the engineer and fireman on the engine failed to do, which a man of ordinary skill and prudence would have done, towards saving the child after they discovered the child was on the track. A. No evidence to show they discovered child. (12) What was the greatest rate of speed attained by the switch engine In approaching the point where the child was injured just prior to the injury? A. About five miles per hour. (13) How long had the child been on the track when the injury occurred? A. No evidence to show how long." "(27) Did the mother of the child do anything to prevent the child from going on the track prior to the injury? A. No."

Among others, the court gave to the jury the following instructions: "(1) That before the plaintiff can recover in this case he must show by a preponderance of the evidence that at the time and place charged in his petition the defendant corporation, by its servants and employes, did so negligently and carelessly run and operate its engines and cars as to cause the injury therein charged upon the child Goldie Myrtle Calvert; and they must further find that the parents of said child were not guilty of negligence in permitting said child to escape and go upon the railroad track; and you are further instructed that the said Goldie Myrtle Calvert, on account of her age at the time of said accident, could not be guilty of contributory negligence. (2) You are further instructed that the question of negligence of the parents of Goldie Myrtle Calvert is one entirely for the consideration of the jury; and although you may find from the evidence that at the time of the accident the father, the plaintiff, was from home, attending to his ordinary duties, and that his wife, the mother of said child, was at home in charge of said child, attending to her household duties, and that said child, without her observation, escaped from the house a short time prior to the accident, and wandered upon the railroad track in question, where the accident occurred, yet these facts and circumstances are not conclusive evidence of the negligence of said parents. (3) If you believe from all the evidence in the case that the parents of said child, or either of them, v.34P.no.13-62

immediately prior to said accident, did exercise that degree of caution and watchfulness over said child which was reasonable and proper for one of their circumstances, they were not guilty of contributory negli gence. (4) With reference to the negligence which may or may not be imputed to the defendant under the facts in this case, I instruct you that the degree of care which the defendant would be required to exercise in switching and moving its cars depends largely upon the place where such cars were being moved, and its surroundings. What night be reasonable care in an unfrequented place and sparsely-settled community might be considered negligence in a populous neighborhood or city, where children and other persons often go upon the track. (5) You are further instructed that if you find from the evidence that the defendant corporation, by its servants and employes in charge of and in control of the engine and cars in question, switching and moving the same on said track where the accident occurred, were in a position where by exercising ordinary care they could have seen the child and have avoided the accident, but failed to exercise such care, the defendant is guilty of negligence, and the jury should find for the plaintiff, and assess such damages as under the evidence they may think he is entitled to, not to exceed the amount claimed in plaintiff's petition, and during the minority of said child, viz. eighteen years." "(11) You are instructed that negligence cannot be presumed from the fact that the child was injured, and are further instructed that the plaintiff must show, before he can recover in this action, that the defendant was guilty of some act, or of some omission to perform some act, which men of ordinary skill and prudence, in operating switch engines under like circumstances, would have done, and that such omission to perform such acts directly contributed to or caused the injury to the child. (12) You are instructed that parents of children of tender age are their legal custodians, and the public have a right to presume that they will use ordinary care to prevent injury to such children; and if the parents, or either of them, fail to use the care required of them to prevent injury to such children, neither of the parents can recover by reason of such injury. (13) You are instructed that the defendant has the right to presume that children will not play upon the track or get in front of its trains in a position of danger, and have a right to presume that the parents of children will not permit such children to go upon or about railroad tracks unattended by persons competent to take care of such children. (14) You are instructed that if you find from the evidence that the parents of the child in question, or either of them, was guilty of negligence by reason of which the child got upon the track in a position of danger, then you are instructed that the plaintiff can

not recover in this action." "(17) The jury are instructed that the burden of proof is with the plaintiff to show that the child got upon the railroad track without any fault or negligence on their part, if you find it was on the track unattended by a person competent to take care of it. (18) You are further instructed that parents are bound to take proper care of a child so as to guard it against being run over on railroads or railroad crossings, or from allowing their children to go into dangerous places, and it is gross carelessness on the part of parents to allow their children to stray at large and in dangerous places; and if parents permit their children to go at large, and in or about dangerous places, attended by an attendant, the attendant must be of a suitable age to properly care for the child. (19) You are further instructed that the plaintiff must prove his case by a preponderance of the evidence. If the evidence is equally balanced, you will find for the defendant."

A. A. Hurd and Robert Dunlap, for plaintiff in error. J. R. Shields and Midon & Conly, for defendant in error.

ALLEN, J., (after stating the facts.) It is contended on behalf of the plaintiff in error that the evidence fails to show culpable negligence on the part of the trainmen, and that it does show contributory negligence on the part of the child's mother. It appears from the testimony that the train was moving west; the engine backing, fronting towards the cars it was pulling, and pushing the tender ahead of it. The engineer was in the cab, facing the east. No careful lookout appears to have been kept by the engineer or fireman to see that the track was clear, and neither the bell nor whistle was sounded to give warning of danger. The child's mother did not know that the train was approaching in time to reach the child, though she started towards it just before the accident happened. The jury find that the ringing of the bell or the sounding of the whistle would not have caused the child to have appreciated its danger, but that, if done in time, it would have warned the mother in time for her to have saved it from injury. We think there is evidence in the record to support the finding of the jury of negligence on the part of the trainmen.

Do the facts stated show negligence on the part of the mother? It is insisted that persons having little children, and living in close proximity to a railroad, must at their peril keep them from straying on the track, and that a mother living within 40 feet of the railroad track, who permits a little two-year old child to wander out of the house, as this one did, and stray upon the track, is guilty of such culpable negligence as precludes a recovery in an action brought by the father. It would be exceedingly difficult to lay down a strict rule of law defining the degree of

care which is incumbent on parents living near the line of a railroad in guarding their children from injury. We know it to be a fact that in cities and densely-peopled localities many people do dwell very near to railroad tracks where trains frequently pass, others at a little greater distance, and so on, in numberless gradations of proximity. Can we declare as a matter of law that any person who, either from choice or necessity, lives in a house immediately adjacent to railroad grounds, must at his peril keep his children fenced or guarded from entering on the track? And, if we may, at what distance from the road may the fences or guards be omitted, and children given some measure of freedom of action? May we say that people who, by reason of their poverty, select unfavorable locations, where they are exposed to danger, who are unable to provide themselves with more than a rude shelter, and who are forced to labor for their daily bread, must still, at their peril, build such a fence or such a wall as will effectually confine their children, or else neglect their work to constantly attend them? We do not think any rigid rule of law can be declared applicable to such cases. It is a question of fact, to be determined in each case by the jury, whether or not the parents have been guilty of negligence. Doubtless, cases can be imagined where a court might say as a matter of law that there was negligence on the part of the parents, but we do not think this such a case. In this conclusion we but reaffirm the rule followed by this court in the case of Smith v. Railroad Co., 25 Kan. 738.

More difficult questions arise on the instructions. The criticism on the second instruction is that the court, after stating that the question of negligence of the parents is one entirely for the consideration of the jury, then proceeds to state that certain facts and circumstances are not conclusive evidence of the negligence of the parents, thereby invading the province of the jury, as declared in the first part of the instruction. In the case of Railway Co. v. Pointer, 14 Kan. 37, it was held that, "where the facts are disputed, negligence is a question of fact for the jury; where the facts are undisputed, and but one deduction is to be drawn from them, it presents a question of law for the courts; but where the facts are undisputed, but are of such a nature that different minds will draw different conclusions from them as to the reasonableness and care of a party's conduct, it is a proper question for the determination of a jury." The rule as declared in this case has been adhered to in all subsequent cases. Railroad Co. v. MeCandliss, 33 Kan. 366, 6 Pac. 587; Railway Co. v. Fitzsimmons, 22 Kan. 686; Railroad Co. v. Smith, 28 Kan. 541. It would have been better for the court to have omitted any comment on the facts of the case, but as the court has often declared as a matter of law that a given state of facts, concern

ing which there was no dispute, did or did not constitute negligence, and as the proposition advanced by the court is correct in and of itself, no substantial error was committed by the court in this particular. The most that can be said against it is that the fact that the child escaped from the house and wandered upon the track while the mother, who was at home in charge of the child, was attending to her household duties, was a cir cumstance which the jury had a right to consider in determining whether she was guilty of negligence. Had these been the only facts showing negligence, the court by this instruction would not have decided the question of contributory negligence for the jury, for the instruction merely declares that these facts and circumstances are not conclusive evidence of negligence, that is, that any presumption of negligence arising therefrom might be rebutted by other evidence in the case. There were various other facts and circumstances shown which it was the duty of the jury to consider in deciding this question, such as the absence of any fences or other barrier to prevent such a little child from wandering on the track, the frequency of passing trains, the age, strength, and intelligence of the injured child, the presence of other children, etc. As other portions of the instructions referred in language very favorable to the defendant to some of these things, it cannot be presumed that the jury was unduly influenced by these remarks from the court.

It

The fourth instruction is criticised as be ing inapplicable to the facts in the case. is contended that the evidence does not show that the place where the accident occurred was a populous locality. We see no valid objection to the language used. It enunciated a sound proposition, and the jury were left entirely free to determine the facts in that particular from the evidence.

The fifth instruction, standing alone, is erroneous, because it fails to state that the plaintiff could not recover if guilty of contributory negligence. In this instruction the rule with reference to the liability of the railroad company for the negligence of its employes is fairly stated, and the jury are then told that, if they find that the injury was caused by such negligence, they should find for the plaintiff, and assess his damages. The court should in the same connection have spoken of the effect of contributory negligence on the part of the child's parents. Its failure to do so was substantial error, unless cured by the instructions that followed.

In the twelfth instruction the court said: "You are instructed that parents of children of tender age are their legal custodians, and the public have a right to presume that they will use ordinary care to prevent injury to such children; and if the parents, or either of them, fail to use the care required of them to prevent injury to such children, nel

ther of the parents can recover by reason of such injury." In the fourteenth instruction: "You are instructed that if you find from the evidence that the parents of the child in question, or either of them, was guilty of negligence, by reason of which the child got upon the track in a position of danger, then you are instructed that the plaintiff cannot recover in this action." These instructions are clear and pointed. They challenged the attention of the jury directly to the question of negligence on the part of the parents of the child, and explicitly told then that, if either one was guilty of negligence, the plaintiff could not recover; and in the eighteenth instruction the court further said: "You are instructed that parents are bound to take proper care of a child, so as to guard it against being run over on railroads or railroad crossings, or from allowing their children to go into dangerous places, and it is gross carelessness on the part of parents to allow their children to stray at large in dangerous places; and if parents permit their children to go at large, and in and about dangerous places, attended by an attendant, the attendant must be of a suitable age to properly care for the child." This last instruction is certainly quite as strong as the defendant was entitled to on the point covered. Can it be said that a jury, acting as reasonable, sensible men, could have been misled by the mere failure of the court to mention contributory negligence in the fifth instruction, when their attention was thereafter repeatedly directed by the court to the rule which precluded recovery by the plaintiff, if guilty of such negligence? To so hold is to hold that the jury were wanting in common understanding, and were liable, merely because of a lack of strictly regular and orderly arrangement of the matters included within the court's charge, to wholly ignore that portion of it favorable to the defendant, and which was so fully and forcibly stated. No rule is better settled than that the whole charge must be construed together. The mere fact that some juror might possibly have misconstrued one portion of the structions ought not of itself to be sufficient ground for a reversal, for that may happen in many cases. Language has its imperfections, and jurors have imperfections of understanding. Errors and imperfections necessarily attend all human operations, in court as well as elsewhere. If the jury cau be said to have been given to fairly understand all of the rules of law applicable to the case, and not to have been given any erroneous rules, the judgment should be affirmed. If a slight error, afterwards fully and fairly corrected, was made, the judg ment should not for that reason be reversed, unless it appears from the whole case that the jury were misled by such error. This, it seems to me, does not appear to have occurred in this case.

No complaint is made of the verdict as

having been excessive, and we think all the findings of fact are fairly sustained by the evidence in the case.

Complaint is made of the refusal of the court to give the following instruction: "The jury are instructed that if you find from the evidence that the ringing of the bell or the blowing of the whistle while the engine was traveling towards the child, and on Orme street, would not have prevented the injury, then the failure to ring the bell or blow the whistle would not be such negligence on the part of the railroad company as directly contributed to the injury." If it be conceded that this instruction embodies a correct proposition of law, the answer of the jury to the tenth question shows that it would have been unavailing to the defendant in error. They there find that it would have given notice to the mother in time for her to save the child from accident, if rung or blown at the proper time.

The fourteenth instruction is not a correct statement of the law, and was rightly refused. The twenty-fourth instruction asked by the defendant is not so strong on the proposition it covers as the eighteenth given by the court, the twenty-fifth is substantially included in the instructions given, and the twenty-ninth does not correctly state the law. As there is but little conflict in the evidence, and all of the facts disclosed seem to fairly sustain the verdict, we think no such substantial errors are presented as warrant this court in reversing the judgment. It is therefore affirmed.

JOHNSTON, J., concurring.

HORTON, C. J., (dissenting.) In my opinion, the twenty-seventh finding of the jury, that "the mother of the child did not do anything to prevent the child from going on the track prior to the injury," must be limited in its terms as returned; otherwise, it is in conflict with the verdict.

(19 Colo. 242)

DE REMER v. PARKER. (Supreme Court of Colorado. Dec. 4, 1893.) EVIDENCE-REBUTTAL-CONTRADICTING EVIDENCE IN CHIEF.

In an action for the price of lumber delivered after April 1st, plaintiff testified that all delivered before was paid for to his bank, and the cashier testified that he had received two statements in March and April, and collected them from defendant. Defendant pleaded payment of the balance, and produced two checks dated in June, payable to plaintiff or bearer, and indorsed and collected by his partner, and stated that the statements held by the bank were paid to the cashier. Plaintiff, in rebuttal, recalled the cashier, who testified that on examining the books further he found that the March statement had not been paid to him, but that the collection register showed payments on it, and plaintiff's ledger acconut credits corresponding in amount and date with the two checks produced by defenda at. Held,

that to allow the correction of the evidence for plaintiff on the rebuttal was within the court's discretion.

Appeal from district court, Las Animas county.

Action by John L. Parker against James R. De Remer for a balance due for lumber sold and delivered. Judgment for plaintif. Defendant appeals. Reversed.

The other facts fully appear in the following statement by GODDARD, J.:

This action is brought to recover a balance of $1,500 alleged to be due for lumber sold and delivered by appellee to appellant between the 1st day of November, 1887, and the 1st day of September, 1888. The defendant, answering, admits that between the dates mentioned the plaintiff sold and delivered to defendant the lumber mentioned, and pleads payment. The court below found that on September 1, 1888, the appellant was indebted to appellee in the sum of $1,449.74, together with interest from the 1st day of September, 1888, at 10 per cent. per annum, and rendered judgment for the sum of $1,677.74 and costs. To reverse this judgment, the defendant below prosecutes this appeal.

Wells, McNeal & Taylor and M. F. Taylor, for appellant. John & McKeough, for appellee.

GODDARD, J., (after stating the facts.) The evidence was taken before a referee, and appears in full in the bill of exceptions. We are therefore at liberty to determine the weight and effect of the same, unaffected by the finding of the court below. The evidence produced in chief by plaintiff was to the effect that the amount of lumber for which a full settlement had not been made was delivered in April, June, and July, 1888; that all lumber delivered prior to April 1, 1888, was settled and paid for to the Trinidad National Bank. The amount agreed to be paid for the April, June, and July deliveries was $3,524.34. Plaintiff testified that he had received personally on this account cash payments aggregating $1,750, and a commissary bill amounting to about $300; that cash payments were made as follows: $200 in May, and $500 and $1,000 in June; $50 paid to him at some other time by one Stafford. E. D. Wight, a witness in behalf of plaintiff, testifies that he was the cashier of the Trinidad National Bank; that he received statements from John L. Parker in reference to lumber delivered to appellant. He says: "I received two such statements. One was received on the 29th day of March. The amount of that was $2,776.24. Our record says it was due on the 20th day of March. The second one was received on the 21st of April. The amount of that was $2,586.34. Our record does not show when it was due. I collected those from Mr. De Remer." It is unneces sary to notice further the evidence offered by