neighborhood of the Tivoli brewery, the train left the track, and I was injured. I figured the speed of the train to exceed somewhere in the neighborhood of forty-two or forty-five miles an hour. There were two mail clerks in the car. Mr. Paul Burt was the regular clerk in charge of the car. The distance from Garrison to Butte is 51 miles according to the Northern Pacific table. No. 6 should leave Garrison at 9:30 P. M. according to the regular time of the Northern Pacific Railway Company, and the regular time for its arrival in Butte was 11:30. I know the customary time for running over the road between Garrison and Butte is two hours." The foregoing is all of the testimony in the case, save that of Dr. Monohan as to the extent of plaintiff's injuries.

Defendants moved for a nonsuit "on the ground that there is nothing in the derailment of a train that creates a presumption of negligence in the case of this plaintiff; that there is no proof that plaintiff was a passenger; that there has been no proof of the allegations of excessive speed or negligence in respect of defective rails, and no proof of any of the particular negligence alleged in the complaint, and no proof that the defendant company had allowed its track to become out of repair or in an unsafe condition, and also upon the ground that the mere running at a speed in excess of the schedule time is not any evidence of negligence." The motion was granted, judg ment entered for the defendants, with costs, and plaintiff appeals.

The status of a postal clerk is thus defined in 6 Cyc. 542: "Postal clerks, carried under an arrangement with the United States government with reference to the transportation and handling of mail, are passengers while thus being transported.” (See, also, Cleveland etc. Ry. Co. v. Ketcham, 133 Ind. 346, 36 Am. St. Rep. 550, 33 N. E. 116, 19 L. R. A. 339; Gulf, C. & S. F. Ry. Co. v. Wilson, 79 Tex. 371, 23 Am. St. Rep. 345, 15 S. W. 280, 11 L. R. A. 486.) The defendants seem not to dispute the foregoing rule, but contend that, conceding that plaintiff was by occupation a postal clerk, there is no testimony to warrant the conclusion that the relation of passenger and carrier

existed between the parties at the time of the accident to the train. We think this point is well taken. As the plaintiff elected to rest his case without offering any testimony as to the cause of the derailment, the burden was upon him to prove that he was a passenger. It was incumbent upon him to show, either that the defendant company was under a specific contractual or statutory obligation to the government of the United States to carry him, or that the company recognized the request embodied in the photograph commission, relating to his transportation when he was off duty. If he had been in charge of the mail at the time of the accident, this obligation would not rest upon him, for the reason that section 4000, Revised Statutes (U. S. Comp. Stats. 1901, p. 2719), imposes upon railway companies carrying the mail the duty to also carry, without extra compensation, the person in charge of the same. Being off duty at the time, and having in his possession simply a request for transportation, he should have supplemented his case by showing that the defendant company was under either express or implied obligation to carry him, and that, too, in the place where he was, to-wit, the mail-car.

Defendants also contend that the motion for a nonsuit was properly granted, for the reason that having alleged specific grounds of negligence in his complaint, the plaintiff could not recover unless he proved one or more of them to have been the proximate cause of the derailment. The case of Pierce v. Great Falls & C. Ry. Co., 22 Mont. 445, 56 Pac. 867, is relied on to sustain this contention. It is suggested by the plaintiff that he has brought himself within the rule seemingly there laid down, by proving the excessive speed of the train. But we cannot sustain him in this contention. A speed of forty-five miles per hour is not per se excessive, and the fact that the schedule time was about twenty-four miles per hour is of no importance. The train was late, and it is matter of common knowledge that the schedule time is not adhered to under such circumstances. This court held in the Pierce Case that proof of the derailment of a car, in consequence of which a passenger therein was injured, being ordinarily prima facie evidence of negligence on

Mont., Vol. 39-26

the part of the common carrier, no necessity exists for the passenger to allege the particular cause of the accident. We adhere to this rule of pleading, and suggest the danger, and the absence of necessity, of departing from it. We suggest, also in this connection, that it is questionable whether this complaint contains any general allegation of negligence. The Pierce Case was undoubtedly decided correctly on the facts, and it was unnecessary to consider any question of practice. We hold that, as no duty rests upon a plaintiff, who is a passenger, to allege or prove in his affirmative case the particular cause of the derailment, allegations of specific causes in the complaint should be treated as surplusage, and he may rely upon his prima facie case without attempting to substantiate them. The sufficiency of a pleading must be determined upon the facts from which the legal duty or liability is deduced. (Marvin Safe Co. v. Ward, 46 N. J. L. 19.) In so far as the case of Pierce v. Great Falls & C. Ry. Co., supra, conflicts with these views, it is overruled. The rule of law therein announced does not apply to a case where there is no necessity for the plaintiff to make proof, in the first instance, of the specific cause of derailment, but only to those cases where such proof is necessary in order to fix a liability upon the defendant. In the latter instance a failure to make prima facie proof of one, at least, of the grounds of negligence specifically alleged in the complaint is fatal, and proof of some other ground will not supply the defect. (See Georgia R. & B. Co. v. Oaks, 52 Ga. 410; Chicago & Alton R. R. Co. v. Rayburn, 153 Ill. 290, 38 N. E. 558; Santa Fe etc. Ry. Co. v. Hurley, 4 Ariz. 258, 36 Pac. 216; Gulf, C. & S. F. Ry. Co. v. Younger, 10 Tex. Civ. App. 141, 29 S. W. 948; Gurley v. Missouri Pac. Ry. Co., 93 Mo. 445, 6 S. W. 218; Chicago B. & Q. R. R. Co. v. Grablin, 38 Neb. 90, 56 N. W. 796, 57 N. W. 522; Buffington v. Atlantic & Pac. R. R. Co., 64 Mo. 246; Carter v. Kansas City etc. Ry. Co., 65 Iowa, 287, 21 N. W. 607; Telle v. Leavenworth etc. Ry. Co., 50 Kan. 455, 31 Pac. 1076; Woodward v. Oregon R. & N. Co., 18 Or. 289, 22 Pac. 1076; McCain v. Louisville & N. R. R. Co., 13 Ky. Law Rep. 809, 18 S. W. 537.)

The supreme court of Illinois, in Weber Wagon Co. v. Kehl, 139 Ill. 644, 29 N. E. 714, said: "It was sufficient to prove enough of the negligence charged to make out a case." The supreme court of Michigan, in Thayer v. Flint etc. R. R. Co., 93 Mich. 150, 53 N. W. 216, said: "The allegation not proven must be regarded as immaterial." A demurrer to a complaint for insufficiency can only be sustained when the complaint fails to state any cause of action whatever. (Donovan v. McDevitt, 36 Mont. 61, 92 Pac. 49.) In the case of Raymond v. Blancgrass, 36 Mont. 449, 93 Pac. 648, 15 L. R. A., n. s., 976, this court said: "The form in which an action is brought is of no consequence; nor does it matter that the complaint contains allegations not appropriate to the purpose sought to be attained. In determining the issue of law presented by a general demurrer to a complaint, or by any other appropriate method of raising the question-as here, by an objection to the admission of evidence at the trial, on the ground that the facts stated do not warrant any relief-matters of form will be disregarded, as well as allegations that are irrelevant or redundant; and if, in any view, the plaintiff is entitled to any relief the pleading will be sustained." Section 6714, Revised Codes, provides that a judgment of nonsuit may be entered by the court, upon motion of the defendant, when the plaintiff fails to prove a sufficient case for the jury. The motion for a nonsuit in this case was in the nature of a demurrer to the evidence, the defendants contending that, upon the facts proven, the plaintiff was not entitled to any relief, and the rule laid down in Raymond v. Blancgrass, supra, applies. As the complaint was simply the basis or foundation of plaintiff's proof, if it contained allegations sufficient to enable him to introduce testimony showing a liability on the part of the defendants, and he could, in the absence of the specific allegations, rest his case without proving the particulars in which the latter were negligent, then it seems to follow that, although he had made specific allegations of negligence, such allegations were immaterial, and should be disregarded.

At the date of entering judgment the defendants filed a "memorandum of costs" entitled in the court and cause, includ

ing therein certain items of disbursements for clerk's fees, sheriff's fees, and witness fees and mileage. This memorandum was verified by one of defendants' attorneys as follows: "The foregoing memorandum of costs is true and correct, and the items are reasonable, and have been necessarily incurred in the defense of said cause, to the best of my knowledge and belief.” Plaintiff moved to strike the memorandum from the files for the following reasons: "(1) That the same is not a memoranda of costs against this plaintiff made out and filed as required by law. (2) Because it is provided in Rule XI that: 'In all civil actions not more than five witnesses shall be examined as to any question of fact or issue in the case, nor shall the testimony of witnesses in excess of that number be introduced thereon. Upon application of [to] the court, before the trial is begun, this rule may be relaxed by the court for special reasons.' That said rule was not relaxed by the court, and that under the pleadings in this case there was but one issue upon which witnesses for the defendant could be used, to-wit, whether or not the defendant's train was blown from the track by dynamite or explosives. (3) That said memoranda contains the names of more than five witnesses, and if proper in other respects, the same, and no part of the charges therein, could be allowed by the court." The court overruled the motion. Plaintiff also filed certain objections to the memorandum, and to particular items therein, and requested that the costs be taxed. The court sustained plaintiff's objections to all claims for mileage on the part of defendants' witnesses, and taxed the costs at $350.30. The refusal of the court to sustain his other objections is assigned as error by the plaintiff. We think the memorandum is properly entitled, and that the affidavit attached thereto is in substantial compliance with section 7170, Revised Codes. It was within the province of the district court to construe its own rules, and this court will not interfere with such construction, unless it is clearly unreasonable or erroneous. Undoubtedly the phrase "any question of fact or issue in the cause" refers to any single, substantial allegation of the pleadings upon which an issue is raised, and not to the ultimate fact to be de