was of no effect, and that it is entitled to the roadbed and improvements. Appellee has cited no case which runs counter to these rules; and we do not think any can be found. On the other hand, our conclusions find support in the following among other cases: Hunt v. Iron Co., 97 Mass. 279; Meriam v. Brown, 128 Mass. 391.

Suggestion is made by counsel that the Union Pacific Company and its grantees have always claimed to own the embankment in question. This is not verified by the record. On the contrary, it is shown that plaintiffs have always since their purchase claimed to own the same, and have endeavored to get Webster to concede their claims. The reservations contained in the deeds from the ferry company and from Street are of no importance. They neither recognize nor affirm that a right of way exists over the lands in controversy; and defendants are not claiming that they have a right of way. The sole question with them is, shall they be compelled to pay for the embankment, etc., in addition to the land actually taken? We hold that they should pay for it, and, of course, disagree with the learned trial judge in his conclusions.

2. The second point barely needs mention. Having found that plaintiffs were the owners of the roadbed. and that defendant went into possession in March, 1894, the time fixed for the award of damages as found by the trial court is marifest'y correct. Daniels v. Railroad Co., 41 Iowa, 52. Had we found with appellee, on the first point, that the roadbed passed from the Union Pacific Company, through the East Omaha Land Company or the Nebraska Construction Company, to the defendant, the second question would then have become important. It is sufficient to say in this connection that, if we had so fcund, it is clear that compensation should have been made as of the date of the original entry by the Union Pacific Company, in December, 1889, and the result in dollars and cents would be practically the same as under our present holding. If defendant has title to the roadbed in controversy, it is because it acquired the same as personal property mediately from the Union Pacific Company, and its entry must relate back to the time that company took possession of the lands and began its improvements thereon. Daniels v. Railroad Co., 35 Iowa, 129, 14 Am. Rep. 490: Drury v. Railroad Co., 127 Mass. 571; Railway Co. v. Ortiz, 75 Tex. 602, 12 S. W. 1129; Harbach v. Railway Co., 80 Iowa, 593, 44 N. W. 348, 11 L. R. A. 113. We place our decision, however, on the first point, and find that plaintiffs should have been awarded the value of the roadbed, to wit, $4,903.45, in addition to the value of the land; and plaintiffs may have judgment in this court, if they so elect, for the value of the land actually taken, to wit, $5.310, and the value of the roadbed,-in all, $10,213.45,-with 6 per cent. interest thereon from March 23, 1894, down to the time of the entry of the decree, and

2. Whether an instruction, in an action to recover an accident benefit, that if the rupture of the blood vessel was the result of voluntary movements or exertions of deceased, or of conditions voluntarily assumed by him, then the fait was the law of the case for the jury, and a tal result was not accidental, is right or wrong, verdict for plaintiff cannot be sustained in the absence of evidence of involuntary movements.

3. Where one recovering from a sickness was lying down asleep, partly dressed, and being suddenly awakened, with the direction to dress quickly, arose, appearing somewhat dazed and confused, and hurriedly attempted to remove his nightshirt over his head, and, while his arms were raised, became entangled therein, and putting forth exertions broke a blood vessel, his movements cannot be held to have been involuntary, as was necessary to sustain the verdict for plaintiff in an action for an accident benefit.

4. The word "involuntary," in an instruction authorizing recovery of an accident benefit in case only that one, in attempting to remove his nightshirt, involuntarily made such movements and overexertion as to cause the rupture of the blood vessel, is not the equivalent of the word "undesigned" or "unintentional," and could not well have so been understood by the jury.

Appeal from district court, Linn county; W. N. Treichler, Judge.

The plaintiff having recovered judgment in the district court upon a policy or certificate of insurance upon the life of her husband, the defendant appeals. Reversed.

Cummins, Hewitt & Wright, for appellant. C. W. Kepler and H. M. Eicher, for appellee.

WEAVER, J. On May 4, 1892, the defendant, a mutual benefit association, issued to Arnold Smouse a certificate entitling him to all the benefits of membership in such association. Among the benefits thus assured was the right of his wife, the plaintiff herein, to receive certain indemnity in the event of bis death "from an accidental cause." On March 6th the said Smouse, while still a member of the association in good and regular standing, died at Mt. Vernon, Iowa. Thus far the facts are conceded, and the one question presented by the issue submitted to the jury in the court below was whether the death of Smouse occurred "from an accidental cause." The case as made by the plaintiff

is substantially as follows: At the time of his death, Mr. Smouse was 45 years old. He was ordinarily in good health, weighed about 175 pounds, but had suffered from an attack of pneumonia about two weeks prior to his death. He was apparently recovering from this malady, and the physician had ceased professional attendance upon him, but his strength was not fully restored. On the

morning of his death he arose and partially dressed, putting on his trousers and slippers, but did not remove his nightshirt. Later he lay down on a couch, and had fallen asleep, when his wife aroused him suddenly, telling him some of his friends were approaching the house, and told him to hurry and dress. He arose from the couch in a somewhat dazed or confused condition of mind, and hurriedly attempted to remove his nightshirt over his head. While his arms were raised above his head, he became in some manner entangled in the garment, and put forth more or less violent exertion in the apparent effort to extricate himself, which was accomplished with his wife's assistance. In this act, or immediately thereafter, he sustained a rupture of a blood vessel, the hemorrhage from which filled his lungs, and caused his death within a few minutes. It is the theory of the plaintiff that the rupture of the blood vessel was the unforeseen, unexpected, and unusual result of a legitimate act on part of the insured, and that his death was therefore "from an accidental cause," within the meaning of the contract sued upon. The defendant denies that the death of Mr. Smouse was in any proper sense accidental. The appeal is based upon the proposition that there is no evidence upon which a verdict of accldental death can be justified. Errors are also alleged upon certain rulings of the court in the admission of testimony and in the instructions to the jury.

1. Among other things, the court instructed the jury as follows:

"(3) You are instructed that an accidental cause is such as may happen by chance; unexpected taking place; not according to the usual course of things, or not as expected.

"(4) You are further instructed that if you find from the evidence that said Arnold Smouse on or about March 6, 1898, while lying and sleeping, became startled by a call announcing the arrival of relatives, and thereby became confused and momentarily irresponsible in his movements, and, in his attempts to remove his garments, became entangled in his nightshirt, and, in his efforts to remove the same, involuntarily made such movements and overexertion as to cause a rupture of a blood vessel, thereby causing death, then, in that event, you will be warranted in finding that said Arnold Smouse died from an accidental cause.

"(5) But if you find that at the time said Arnold Smouse's acts were voluntary, although the result may not be designed, fore

seen, or expected. if it was the direct effect of acts voluntarily done, or of conditions voluntarily assumed, it cannot be said to be accidental, and you should so find."

Complaint is made that the use of the word "may" in the third paragraph of these instructions serves to weaken the definition given of "accident," and suggests by inference that the element of chance and unexpectedness is not always necessary to an accidental result. This criticism we think is just, and the error should be avoided upon a retrial.

2. In the fourth and fifth paragraphs of the charge the jury were told, in effect, that if the rupture of the blood vessel was the result of voluntary movements or exertions on the part of Mr. Smouse, or of conditions voluntarily assumed by him, then the fatal result cannot be regarded as accidental. There is a difference of opinion among the members of this court as to the correctness and sufficiency of the definition thus given. But whether it be right or wrong as an abstract proposition, it was the law of the case for the jury, and the correctness of the verdict must be tested by it. An examination of the testimony reveals nothing to sustain a finding that the acts or exertions put forth by the assured in removing his nightshirt, or in disentangling himself therefrom, were of an involuntary character. An involuntary movement is one which is made against the will as under compulsion, or independent of the will, as in the process of breathing or in the circulation of the blood, or as seen in a body in convulsions. The most shown in the present case is that Mr. Smouse, on being suddenly awakened from sleep, appeared dazed and confused; but he evidently comprehended the call of his wife to dress quickly, and was endeavoring to do so. His dazed and confused condition may account for his becoming entangled in his garment, and may have made him incapable of exercising ordinary care and prudence in the physical exertions employed by him in escaping therefrom; but those exertions appear to have been none the less voluntary, in the proper sense of the word, and therefore, upon the theory of the instructions given, the verdict should have been set aside. It is to be here remarked that the word "involuntary" is not the equivalent of the word "undesigned" or "unintentional," and could not well have been so understood by the jury, although there are cases which seem to authorize such use of the term, notably, McCarthy v. Insurance Co., 8 Biss. 362, Fed. Cas. No. 8,682; Barry v. Association (C. C.) 23 Fed. 712.

3. Much of the argument of counsel is devoted to the weight of the evidence, but, in view of the fact that our conclusions upon the points already mentioned necessitate a reversal and new. trial, we think it proper to express no opinion upon this proposition.

The judgment of the district court is reversed.

GARRETSON ▾. KINKEAD. (Supreme Court of Iowa. Oct. 29, 1902.)

ADMINISTRATORS - CONVERSION OF DECEDENT'S PROPERTY - ACTION -WITNESSESTRANSACTION WITH DECEASED-HARMLESS ERROR.

1. In an action by a special administrator against the administrator for conversion of property of the decedent, no recovery can be had for any conversion after the death of decedent, but any such conversion must be reached by proceedings under Code, § 3393 et seq., relative to accounts of administrators.

2. In an action by an administrator against a son of decedent, plaintiff claimed that defendant owed the estate money advanced by decedent. Held, that defendant could not be asked whether he had ever given his father any written obligation, as it called for a transaction with one deceased, within Code, § 4604.

3. An overruling of the objection was harmless error, the plaintiff not claiming that any written obligation was given.

4. Where the court made no ruling on an objection to a question to a witness, the matter will not be considered on appeal.

5. An appellant cannot complain of rulings in his favor on his objections to questions to a witness.

6. In an action by an administrator against a son of decedent, plaintiff claimed that money borrowed by decedent and secured by a mortgage which had been foreclosed was borrowed for defendant, and that he had agreed to repay it. Defendant denied any indebtedness, and claimed he had paid debts of his father amounting to more than the loan. Held that, though there was no issue of payment, a question to defendant as to whether he had paid off obligations against his father was proper on the issue of no indebtedness.

Appeal from district court, Linn county; W. G. Thompson, Judge.

Action to recover for wood and potatoes said to have been converted by the defendant, and for money loaned him by James Kinkead, plaintiff's intestate. Trial to a jury. Verdict and judgment for defendant, and plaintiff appeals. Affirmed.

Fitzgerald & Varner, for appellant. Voris & Haas, for appellee.

DEEMER, J. James Kinkead, defendant's father, died in the year 1890, and defendant was appointed administrator of his estate. It is claimed that at the time of his appointment defendant was indebted to his father for money borrowed, and for other items of account, and plaintiff was appointed special administrator for the purpose of collecting these claims, and as such brought this action. The only items presented for our consideration relate to wood and potatoes and to money borrowed. As to the wood, plaintiff claims that defendant converted a large amount belonging to his father, and that he (plaintiff) should have judgment for the value thereof. It is apparent that, if the alleged conversion occurred after the death of James Kinkead, and after defendant's appointment, this is not the proper form of action in which to reach the matter. Such a claim would not be one owing to the special administrator, and for which de

fendant should account to him. ter should be reached by another tion.

That matform of ac

See Code, § 3393 et seq. This is not a case where defendant is alleged to have acted as an intermeddler, but one where it is claimed that he was indebted to his father at the time of the father's death. Defendant was regularly appointed administrator, and this is not a proceeding for an ac counting. The only question here is, what, if anything, did he owe his father for wood or potatoes at the time of the father's death? On this point there is no evidence which would justify a verdict for any amount on either of the items named. But, treating the alleged conversions occurring after the appointment as in issue, the same result must follow, as there was not only uncertainty in plaintiff's evidence, but a conflict in the whole, which it was the province of the jury to settle; and we cannot interfere.

2. As to the loan of money, it appears that defendant's father borrowed some money from one Michel, and executed a mortgage on his homestead to secure the same, which mortgage was afterward foreclosed, and the premises sold. It is contended that this money was procured for defendant; that he promised to repay the amount thereof, and to satisfy the mortgage; and that, having neglected to do so, he is indebted to the estate in the amount of the loan. This defendant denies, and he also claims that he paid debts of his father amounting to much mor● than the loan. It will thus be seen that there is a conflict in the evidence on this point, which it was the province of the jury to settle. But plaintiff contends that much of the evidence adduced was incompetent, and was given by witnesses who were incompetent to testify under section 4604 of the Code. Had proper exceptions and objections been saved to some of this evidence, there would be no doubt that a reversal should follow, but, save in a single instance, the record is such that we may not consider the point. After defendant had been permitted to state without objection that he did not borrow any money from his father for which he (the father) had given the mortgage to Michel, he was asked as to whether or not he had ever given his father any written obligation, or was asked by him to give any written obligation, for any sum of money. This was objected to, as a personal transaction with the deceased. The objection was overruled, and defendant answered, "No, sir." The objection should have been sustained, but it is manifest, we think, that there was no prejudice in the ruling. It was not claimed by plaintiff that any notes or other writings were given, or that there had been any request for written obligations; and as the witness had already stated, without objection, that he had never borrowed any money from his father, the fact that he also stated he had given no notes to him therefor, and had never been asked to do so, added nothing

to his evidence regarding the loan, and prejudice is clearly negatived. At another time plaintiff objected to a question put to the defendant, but, as the court made no ruling thereon, there is nothing to consider. Other objections were made, which were sustained, and, of course, appellant cannot complain of these rulings. Defendant was also asked as to whether or not he had paid off obligations against his father. This was objected to as immaterial, but this was also overruled. The objection was not bottomed on section 4604, but on the theory, as we understand it, that no issue of payment was tendered. True, there was no such issue, but under the claims made by the respective parties the evidence was competent and material, as it tended to establish the issue of no indebtedness. Other points are argued by counsel with reference to rulings on evidence, but none except those which we have considered are properly presented by the record or by a sufficient assignment of errors.

3. No complaint is made of the instruc tions, and, as the verdict has support in the evidence, the trial court was right in refusing to disturb it.

4. Many of the assignments of error are faulty, but we have given plaintiff the benefit of every doubt, and considered most of them.

No prejudicial error appears, and the judgment is affirmed.

SMITH v. PIPER et al. (Supreme Court of Iowa. Oct. 29, 1902.)

PARTITION-PARTIES-LIENHOLDER-SERVICE.

1. Code, 4250, provides that where, on partition, there is a lien on an undivided interest, the holder thereof shall be made a party. In partition several judgment liens were found on one of the interests. The proceeds of sale of the interest, after deducting a homestead exemption, were ordered to be applied to the judgment liens in order of priority, but the owner of the last lien was not served with any notice of the partition. The proceeds of the sale were not sufficient to satisfy the first judg ment. Held that, though the sale was fair, and the purchaser was a prior lienholder to the extent that the purchase money had been applied to the first judgment, and the last judgment was subject to the homestead exemption, the lien of the last judgment was not removed.

Appeal from district court, Adair county; A. W. Wilkinson, Judge.

Action in equity to enjoin sheriff's sale of real estate. Decree for plaintiff, and defendants appeal. Reversed.

Frank B. Wilson, for appellants. F. O. Hinkson and Guiher & Tedrick, for appellee.

WEAVER, J. In the year 1890 one James Roberts died intestate, leaving certain real estate, situated in Adair county. In 1892 an action was begun in the district court of said county for a partition of said property. In

the pleadings in sald proceedings O. J. Piper, the principal defendant herein, was named as a party defendant on account of his claim of a judgment lien upon the share or interest of Thomas Roberts in said property. In the course of said proceedings an investigation was made of all liens appearing upon said lands, and four judgment liens were found to exist upon the interest owned therein by the said Thomas Roberts, of which the judgment in favor of Piper stood last in order of priority. The said Thomas Roberts was found to be the owner of a one-tenth part c the land, and it was ordered and adjudged that the proceeds of the sale of such share, after deducting a certain sum on account of homestead exemptions, should be applied to the payment of said judgment liens in the order of their priority. The decree confirming the shares of the parties, ordering sale, and distribution of the proceeds, and fixing the priority of liens, recites that Mr. Piper was duly served with original notice in said action. Upon the sale under said order the plaintiff herein became purchaser of the land at a price which appears to have been reasonable and adequate, and the share of Thomas Roberts applicable to the payment of his debts was found insufficient to discharge the judgment first in priority. In 1899, Mr. Piper, claiming never to have been served with original notice in the partition proceedings, caused execution to be issued upon his judgment, and levied upon the land, whereupon this suit was instituted to enjoin the sale.

1. Upon the face of the record we should have some doubt whether the denial by Piper of service of notice upon him is sufficiently established, but that fact being, in effect, conceded in argument, we are compelled to hold that the sale of the land in partition did not have the effect to remove the judgment lien. We should be glad to reach another conclusion, for, so far as can be now seen, the sale was fairly made for a good price, and by the terms of the decree the defendant's rights were guarded and provided for precisely as they would have been had the court acquired actual jurisdiction of his person. But the statute (Code, § 4250) made him a necessary party to a valid adjudication of his rights, and we are constrained to hold that he may still be heard to insist upon his lien, and the decree of the court below must be reversed.

2. Appellee urges that, in any event, by the application of the purchase money paid by her to the judgments prior in right to the defendant's judgment, she is entitled to be considered to that extent a prior lienholder, and that the enforcement of defendant's claim must be subject to the homestead exemption made in favor of Thomas Roberts. If we assume that the facts are as they were determined to be in the partition proceedings, we think this contention is correct; but, the defendant not having been made a party to

said proceedings, he is entitled to be heard, if he so desire, upon the correctness of that finding.

It is ordered, therefore, that this cause be remanded to the trial court, with leave to the parties, if they shall be so advised, to file amended pleadings for the determination of the amount and priority of their several claims and liens, and that for such purpose further proceedings under defendant's execution be stayed, subject to the order of the district court. Reversed.

HAYNES v. FT. DODGE & O. R. CO. (Supreme Court of Iowa. Oct. 29, 1902.) MASTER AND

SERVANT-INJURIES-CONTRIB

UTORY NEGLIGENCE EVIDENCE.

1. An engine was pushing a train of flat cars, and a servant was sitting on the front end of the flat car most remote from the engine, when the train was stopped without warning, and the jerk occasioned by the taking up of the "slack" threw the servant from the car, killing him. Held, that the servant was guilty of contributory negligence precluding a recovery.

Appeal from district court, Pottawattamie county; N. W. Macy, Judge.

Action for damages. From judgment dismissing his petition, the plaintiff appeals. Affirmed.

A. D. Early and S. B. Wadsworth, for appellant. John F. Duncombe and Harl & McCabe (J. M. Dickinson, of counsel), for appellee.

LADD, C. J. The defendant had laid the ties and rails on its road to the south of Logan, but this had not been leveled or ballasted. Its construction train consisted of thirteen flat cars, used for hauling dirt, and two box cars,-one for tools, and the other for the crew. One box car was immediately in front of the engine, and in front of that the flat cars. The other box car was behind it. The men had been picked up, as usual, at several points along the track, and were being taken to Logan for dinner. They were scattered along the flat cars in various positions, while the deceased, with one Bowe, sat at the front end of the front flat car, with his feet hanging over. When about three miles out of Logan, the engineer stopped the train to take on the surveyors. In doing so, the jerk occasioned by the sudden taking up of the slack between the pushed cars threw the deceased forward to the ground, and he was run over and killed. No signal of an intention to stop the train was given. Its speed is variously estimated at from 8 to 35 miles an hour. The only ground of negligence charged was: "That while the train was being run over the rough road at a high rate of speed, the brakes were suddenly put on said train, giving the train such a sudden check in speed that the said Her

703.

1. See Master and Servant, vol. 34, Cent. Dig. §

mon Smith was thrown from the flat car without any fault or negligence of his." The district court reached the conclusion that the deceased was negligent in sitting where he did, and directed a verdict for the defendant. In this we concur. The danger of such a situation was perfectly obvious. Every one who has given the matter the slightest attention knows that in starting and stopping freight trains jerking and jarring is inevitable, and especially so in the absence of air brakes, as in this case. Couplings of the flat cars were loose when being pushed; but, the moment the engine was checked or stopped, the momentum of the cars carried them forward, so as to take up the slack. It would not require a very sudden stop to occasion a considerable jerk at the end of the thirteenth car, and this was precisely what might reasonably be apprehended every time the train was brought to a standstill. How much of a jerk or how sudden a stop would be required to throw one sitting as deceased did off his balance would depend largely upon the attention given by himself for his own preservation. But one stake was at the end of the car, and by seizing that Bowe avoided falling. No one observed deceased holding to the stake, though several saw him go over. It cannot be said that he was doing anything to protect himself from the jerking of the cars, inevitable in stopping the train, which he knew was likely to occur several times on the way in order to take aboard laborers. And yet he was where every attempt of the engine to bring the train to a standstill tended to throw him from his balance and hurl him to the ground in front of the moving cars. He voluntarily exposed himself to the very accident which happened. But it is said that the selection of a seat or standing place on the train was purely a matter of judg ment. In the sense that each chose where he would ride, this is true. The trouble is, the judgment exercised was not that of an ordinarily prudent man. Taking so perilous a position was rather the result of lack of judgment. It was in utter disregard of his personal safety. Those sitting along the sides or in the center of the cars were not exposed to the same danger, as, when losing their balance, the floor or side stakes, if any, would afford protection. A fall for them was not likely to result in serious injury. Even those standing, if not too near the edge, would have the chance of regaining their equilibrium. But for one in the situation deceased had placed himself, loss of balance meant death. The evidence shows conclusively that he needlessly put himself in a perilous situation, and that to this the accident was largely due. Appellant suggests the engineer must have known of his situation, but, as between them was a box car and 13 flat cars, on which 170 men were riding, this cannot be inferred. Many au thorities are cited by the parties, none of