35. In that case it was decided, after full argument, and a careful investigation of the question, that the statute was not in conflict with the fourteenth amendment to the constitution of the United States. Upon a re-examination of the question, we are satisfied that it was correctly decided, but we think it would be profitless to again review the authorities, or enter upon a further discussion of the subject. We must regard this ruling as the settled law of the state, unless it shall be declared to be erroneous by the supreme court of the United States. We might add that in Iowa a similar statute exists. Very recently its validity was challenged upon the same grounds as are urged here. The supreme court of that state upheld the statute, and in deciding the case said:

"The argument, briefly stated, is that, under the statute, railroad corporations are subjected to penalties and liabilities which other persons and corporations engaged in like business are not subjected to. That the business of operating a railway is peculiarly hazardous to employes engaged in the operation of the road, must be admitted. Counsel have not called our attention to any business which is equally hazardous, and as the statute is applicable to all corporations or persons engaged in operating railroads, it seems to us it does not discriminate in favor of or against any one. We think it is a pure question of legislative discretion whether the same penalties and liabilities should be applied to carriers by canal or stage-coach, or to persons and corporations using steain in manufactories, as is prescribed by statute in relation to railroad companies. The provisions of section 30 of article 3 of the constitution of this state, and the fourteenth amendment to the constitution of the United States, are quite similar, if not in spirit identical, in so far as either can be said to prohibit the legislature from conferring exclusive privileges on any person, or imposing penalties upon any corporation, which are not shared by others under like circumstances; and it was held in McAunich v. Mississippi & M. R. Co. 20 Iowa, 338, that the statute under consideration did not conflict with the constitution of this state, and for like reasons we do not think it conflicts with the constitution of the United States." Bucklew v. Central Iowa Ry. Co. 21 N. W. Rep. 107.

2. A witness named John Steele was produced in behalf or plaintiff, who, in response to questions, gave the following testimony: "Question. What business were you engaged in on the eleventh of February, 1882? Answer. Running an engine on the Central branch. Q. How long had you been running an engine there? A. About two years. Q. Had you any experience as a fireman before that time? 4. Between three and four years. Q. Had you any experience as a fireman on a switch-engine at Atchison, Kansas, before that time? A. Yes, sir; fired a switch-engine here in the yard for six months. Q. What was the general duty of a fireman on a switch-engine while the engine is being moved from one point to another in the yard at that time?"

The defendant objected to the question last asked, stating as a ground of his objection that it called for the opinion of the witness, without any proper foundation having been laid to ask the question; and, further, that it was not a proper subject of expert testimony.

While we are inclined to agree with the counsel in their claim that the inquiry did not relate to that which was a subject of expert testimony, we still think that it was unobjectionable, and that the

witness was competent to answer the same. It was not a question involving special skill or scientific knowledge. What the general duties of a fireman in the Atchison yards were, or, what is equivalent thereto, what duties were generally performed by firemen in the yards at that time, was a question of fact within the common observation of a great many people; and, as stated by Chief Justice HORTON in Monroe v. Lattin, 25 Kan. 354, “it is a familiar rule that witnesses must speak to facts, and that they are not allowed to give opinions unless they are experts, and then only upon questions of science and skill."

The facts here inquired of are such that any one having personal knowledge thereof is competent to testify to the same, no matter how such intelligence may have been gained; but it will be observed that the witness Steele assumed to speak from personal knowledge. The preliminary testimony given by him shows that his opportunity for learning the facts was ample. He was engaged as an engineer in the service of the defendant at the time Mackey was injured; had been running an engine for two years; had had experience as fireman between three and four years; and had actually served as a fireman on a switch-engine at Atchison, Kansas, and in the yard where the plaintiff was injured. Possibly, the master mechanic, yard-master, or the person who had the direction and control of the firemen on these switch-engines, might, by reason of their position and experience, have had more exact information upon the subject than this witness, yet the testimony of common observers upon such subjects is admissible so far as such observation goes. Com. v. Dorsey, 103 Mass. 420; Funston v. Chicago, R. I. & P. Ry. Co. 61 Iowa, 452; S. C. 16 N. W. Rep. 518. Whether he was acquainted with the facts or whether he stated them correctly, could have been inquired into by defendant, and tested upon cross-examination. The answer he gave was: "The duty of a fireman on an engine is to keep the engine hot, to keep steam on, and to assist the engineer in watching for signals." It is claimed by counsel that this testimony was in effect an opinion of the witness that the plaintiff was in the exercise of ordinary care at the time that the accident occurred. Not so. There was obviously no purpose to get from the witness his judgment or an opinion in regard to the manner in which plaintiff had performed this work or whether he was properly discharging his duty at the time of his injury, nor did the testimony given by him go to that extent. The inquiry went only to the work generally performed by a fireman on an engine in those yards at that time. These facts might be testified to by any one having personal knowledge of the same, and these, together with many others that were shown concerning the action of the plaintiff at the time of the accident, were proper and necessary to enable the jury to reach an opinion upon one of the leading issues in the case, whether there was contributory negligence on the part of the plaintiff.

In Allen v. Burlington, C. R. & N. R. Co. 57 Iowa, 626, S. C. 11

N. W. Rep. 614, which was referred to by counsel in support of their objection, the court decided that while a witness ought not to be permitted to express an opinion that a particular manner of performing the services was required of a brakeman in the discharge of his duty, yet it was competent for the witness to state as a fact what services were performed by the brakeman in the discharge of his duty. It may be added that testimony of a like character was offered on the part of the railway company, and all the testimony given in behalf of either party upon this subject agrees substantially with that given by the witness Steele. We think there was no error in admitting this testimony, and what is said respecting its admissibility is applicable to other testimony of a like character, objected to by defendant.

3. Objection is made by the defendant to the ruling of the court in restricting the cross-examination of the plaintiff. After he had testified in chief in relation to the work performed by him as fireman, the defendant asked him the following question upon cross-examination, which was objected to and excluded: "Did you consider it the proper discharge of your duty at that time for each of you to be looking west, and that train going east as fast as a man could walk?" Under the latitude which is usually allowed in the cross-examination of a plaintiff, we think the question might have been allowed without doing any injustice to the plaintiff. However, it was not strictly pertinent or material to the issue in the case. What he considered to be his duty was unimportant. The question was, what were his duties, and was he in the proper performance of the same at the time and immediately prior to the collision? There was no error in its exclusion.

4. Complaint is made of the refusal of the court to give certain instructions which were requested by the defendant on the trial of the case. A number of them related to the law of contributory negligence, and its application to the facts of this case. Counsel for defendant say that while the court, in its general charge to the jury, instructed them that contributory negligence on the part of the plaintiff would bar a recovery, yet it failed to instruct what degree of neg ligence would defeat the action. If the charge of the court had been given as stated, without explanation or qualification, it would appear that the plaintiff had cause of complaint rather than the defendant. It is only ordinary care that the plaintiff was bound to exercise,—such care as men of ordinary judgment, intelligence, and prudence would exercise under like circumstances. Slight negligence on his part is not enough to defeat a recovery, providing the negligence of his fellow-servant is established, and the term "contributory negligence" is broad and inclusive enough to embrace the slightest negligence. But the court, in the instructions which it gave, did not stop with the mere statement that contributory negligence would bar a recovery. The jury was told that it was not enough that the injuries were received by reason of the negligence of the fellow-servants of plaintiff; that

the plaintiff could not recover unless it also appeared, by a preponderance of the testimony, that the plaintiff was in the exercise of ordinary care, such care and diligence as men in general exercise in respect to their own concerns under like circumstances. The court went further, and, in defining contributory negligence and the duties of the plaintiff, directed the jury as follows:

"The plaintiff, in accepting employment as a fireman upon one of the defendant's yard-engines, assumed the ordinary hazards of that occupation. It was his duty to take ordinary care to avoid danger to himself, and he had a right to assume that his fellow-servants, engaged in the management and operation of said two engines and their respective trains, would exercise ordinary care towards him. But he had no right to assume that they would exercise extraordinary care or the highest degree of diligence to avoid injury to him. And if the jury find from the evidence that, under the circumstances, it was the duty of the plaintiff to look out for obstructions in the direction that his engine was running, and that if he had been in the exercise of ordinary care he would have seen engine No. 154 in time to have avoided the collision, but that he negligently omitted to keep a proper lookout, and his injury was the result of said negligence on his part, or the result of said negligence on his part together with the negligence of his fellow-servants, then the plaintiff is not entitled to recover, and your verdict should be in favor of the defendant."

Other of the instructions asked were to the effect that any negligence on the part of the plaintiff would prevent a recovery. These would imply and hold the plaintiff to a higher degree of care than is by the law required of him. He was not bound to exercise extraordinary care and prudence, and the instructions were properly refused.

Some other exceptions are taken by the defendant to the ruling of the court, both upon the instructions refused and given, but in view of the decisions heretofore made by this court we think it is needless to discuss them. It is enough to say that we have examined them carefully, and that every rule of law proper and necessary to be stated to the jury, embraced in those that were requested, was included in the instructions given to the jury, and that the charge of the court, in its entirety, stated the law applicable to the case fully and clearly. 5. The defendant assigns as error the refusal of the court to submit a few special questions of fact. We have examined them, and find no error in the refusal. There were 139 special questions submitted to the jury, embracing almost every material fact in the case. Some of those that were requested were modified so as to make them harmonize with others allowed. A part of them had been submitted in different form, and the remainder of the questions refused do not appear to have been material.

6. It is next urged that the court erred in overruling the motion for a new trial; that the testimony is not sufficient to show that the co-employes of the defendant were culpably negligent; and that it does show that the plaintiff was at fault, and that his negligence contributed to the injury. The findings of fact returned by the jury all consistently show that the co-employes of plaintiff could, by the ex

ercise of ordinary care, have avoided the collision, and the further finding is made that the plaintiff was performing his duty and in the use of ordinary care when the accident occurred. We have read the testimony and have reached the conclusion that it abundantly sustains the finding that the engineer in charge of engine No. 154 was culpably negligent in the management of his engine. He saw the other engine at work in the upper yard long before reaching it, but he came on at a speed of from four to six miles an hour, the other engine being all the time in plain view, and yet he never gave any signal or warning of his approach, nor did he make any effort to stop his engine until he was within a few feet of the other engine, and only two or three seconds of time elapsed between the sounding of the danger signal and the collision. There is no doubt from the evidence that he could have stopped his engine after the danger of collision became apparent to him. Whether the engineer in charge of engine No. 166 noticed the approach from the east of engine No. 154 does not appear. His engine had been running backward and forward in the upper yard switching cars, and shortly before 154 came into the yard, it had been pushing cars in the opposite direction from which engine No. 154 was coming. He then backed his engine east at the rate of from four to six miles an hour, a distance of about 500 feet, to the point of collision. Some reason may be found for his failure to observe the approach of engine No. 154, though in backing that distance and at that rate in a track-yard where other engines were employed, ordinary care and prudence would seem to require that he should have looked for obstructions in the direction in which he was moving. It is strongly urged that it was equally the duty of plaintiff to keep a lookout for obstructions, and if he had done so the accident might have been avoided.

The evidence in the record tends to show that the engineer has direct control of the engine, and that the fireman is under his direction as well; that the primary duty of plaintiff as fireman on a switchengine in that yard, as indicated by the name of the employment, was to fire the engine and to keep steam on, and when not thus engaged to assist the engineer to keep a lookout for signals from the crew and for obstructions on the track. It also tends to show that just before the accident occurred, and when engine No. 166 started to back east, the plaintiff was looking west, from which point he had been receiving signals from one of the crew, and, after tapping the bell a few times, stepped down from his seat and began to break and shovel coal into the engine, and that while he was thus engaged he was stooped over and facing west, and could not have seen the approach of engine No. 154, except by straightening up and turning around. It is said that if he had looked in the direction they were moving before he began to fire the engine he would have observed No. 154 coming, and failing to do so he was at fault. This is not necessarily so. Engine No. 154 was then about 800 feet away, and