contemplated at the time of the condemnation proceedings, and all damage that is apparent which will result to the injury of the farm, such as stopping the flow of surface water, forming stagnant pools along the side of or along the right of way, and the like, are elements of damage proper to go to the jury." In Springfield & Memphis Ry. Co. v. Rhea, 44 Ark. 258, the court say: "Where an assessment of damages for right of way precedes the building of a railroad, the presumption is that it will be built with skill and proper precautions; but, if the road has been completed through the land at the date of the trial, the jury may consider the state of facts that existed, and from the light of the actual construction determine what the damage has been, embracing all past, present, and future damages which the location of the road may reasonably produce." Walker v. Old Colony & Newport R. R., 103 Mass. 10, 4 Am. Rep. 509, the court say: "The cuts and embankments and necessary gutters of the railroad through a tract will unavoidably modify the flow of surface water, and sometimes cause damage by keeping it back or projecting it in large quantities upon lands adjoining the road. Injury to land from such causes would seem clearly to fall within the class of effects which have been held to afford ground for the assessment of damages under the statute." The Supreme Court of Minnesota, in Pfleager v. Hastings R. R. Co., 28 Minn. 510, 11 N. W. 72, say: "If the construction of a railroad across a farm lessens its value by preventing the flow of surface water from one part of the farm to another, this is a proper element to be taken into consideration in fixing the amount of compensation to which the owner is entitled. The rules of law governing the rights of adjacent owners as to the flow of surface water from the land of one on to the other have no application to such a case." "In determining the damages to a farm caused by the construction of a railroad, it is proper to take into consideration every element of damage that might be reasonably anticipated before the road is built, and what really does exist and is apparent after the road is constructed. This includes the inconvenience of crossing or raising of embankments or digging of ditches, pools of stagnant and the obstruction of surface water by throwing it into channels or damming it up." Wichita & W. R. Co. v. Kuhn, 38 Kan. 104, 16 Pac. 75: Weyer v. Chicago W. & N. R. Co., 68 Wis. 180. 31 N. W. 710; John J. Kersey v. Schuylkill River, East Side R. Co., 133 Pa. 234, 19 Atl. 553, 7 L. R. A. 409, 19 Am. St. Rep. 632.

Under our statute, it was proper to consider the injury which the owner sustained by reason of such railroad, and where the embankments and excavations were caused by reason of the construction of the road, as in this case, there certainly was no error committed by the trial court in admitting

the testimony in relation thereto for the purpose of showing in what way and to what extent it affected the usable or salable value of the remaining portion of defendant's farm. The above authorities, which might be multiplied many times based upon different statutes, it is true, show the growing tendency of the law to settle and adjust in one action all the rights of the parties thereto.

The fourth assignment of error challenges the ruling of the court in refusing to submit to the jury a number of special interrogatories upon the request of the plaintiff. The only statement in the record showing an exception to the ruling of the trial court in refusing to submit the interrogatories requested appears to be an indorsement upon the back of a paper containing the request, which reads as follows: "Refused and exception allowed. Bayard T. Hainer." This general exception only raises the question of whether or not all of the interrogatories were proper and should have been given. If any one of the requested interrogatories should be improper, error committed in refusing to submit the others is not properly presented by a general exception. A request for the submission of a number of questions is analogous to a request for the giving of several instructions. Each interrogatory must contain a separate and distinct inquiry of fact capable of a direct answer, and a general exception to a refusal to give a number of them is unavailable, unless all of them be proper. The Supreme Court of Kansas, in passing on a like exception taken to a numher of interrogatories, in Coffeyville Vitrified Brick & Tile Co. v. Shanks, 69 Kan. 306, 76 Pac. 856, say: "The defendant also asked the court to submit to the jury 45 questions. The court struck out 17 of them and submitted the others. It is now insisted that five of the questions stricken out should have been answered. Three of these questions were wholly immaterial under the instructions given to the jury and the foregoing conclusions respecting the law of the case, and the other two violated the rule of Foster v. Turner, 31 Kan. 58, 1 Pac. 145, and Mo. Pac. Ry. Co. v. Reynolds, 31 Kan. 132, 1 Pac. 150, that the jury should only be required to answer particular questions of fact, and need not be required to elaborate details of facts under general questions." But the assignment of error concerning this matter is not founded upon an appropriate exception. It is beyond controversy that many of the rejected questions were impreper. A general exception to the refusal to give the rejected list was taken. This was not sufficient. Each special interrogatory submitted to the jury must be so framed as to present distinctly a single material fact involved in the issues of the case. Railroad Co. v. Aderhold, 58 Kan. 293, 49 Pac. S3. A request for the submission of a number of questions is analogous to a request for the

giving of several instructions. Each one must contain a separate and independent proposition of law, and a general exception to a refusal to give a number of them is unavailable unless all of them are proper. Sumner v. Blair, 9 Kan. 521; Bailey v. Dodge, 28 Kan. 72; State v. Wilgus, 32 Kan. 126, 4 Pac. 218. All the reasons for this rule apply to the submission of particular questions of fact. A defeated party cannot be permitted to search through an array of proposed questions or instructions discover ed to be in the record until he finds one or two sufficient to pass muster, and then to attach them to a general exception, and thereby secure the reversal of a judgment upon a point which the district court has had no reasonable opportunity to consider and decide.

There being no other assignment of error, the judgment of the district court of Pawnee county will be affirmed.

HAINER. J., who presided in the court below, not sitting. All the other Justices concurring, except IRWIN, J., absent.

(19 Okl. 283)

METROPOLITAN RY. CO. v. FONVILLE. (Supreme Court of Oklahoma. Sept. 5, 1907.) 1. STREET RAILROADS INJURY TO TRAVELERCONTRIBUTORY NEGLIGENCE.

A driver of a vehicle who suddenly turns his team to cross a street railway track without looking and listening for an approaching car, and without taking the ordinary care and precautions imperatively required of all who place themselves in a similar position of danger. is guilty of contributory negligence as a matter of law.

[Ed. Note.-For cases in point, see Cent. Dig. vol. 44, Street Railroads, § 215.] 2. TRIAL-DIRECTING VERDICT.

While questions of negligence and contributory negligence are, ordinarily, questions of fact to be passed upon by the jury, yet, when the undisputed evidence is so conclusive that the court ought to set aside a verdict returned in opposition to it, it is the duty of the court to withdraw the case from the consideration of the jury and direct a verdict.

[Ed. Note. For cases in point, see Cent. Dig. vol. 46, Trial, § 376.]

(Syllabus by the Court.)

Error from District Court, Oklahoma County; before Justice B. F. Burwell.

Action by E. P. Fonville against the Metropolitan Railway Company. Judgment for plaintiff, and defendant brings error. Reversed and remanded.

Shartel, Keaton & Wells, for plaintiff in error. J. O. Davis, for defendant in error.

HAINER, J. This was an action for personal injuries, brought by the defendant in error, plaintiff in the court below, against the Metropolitan Railway Company, to recover damages sustained by her by reason of the alleged negligence of the defendant company. The defenses interposed by the defendant

were: First, a general denial; and, second, that the plaintiff was guilty of contributory negligence. From a verdict and judgment for the plaintiff, the defendant appeals.

The testimony of the plaintiff disclosed substantially the following facts: That she resided about 14 miles from Oklahoma City. That on the morning of April 28, 1903, she came to the city with her husband, arriving about 6 o'clock in the morning. That they were driving two horses to a hack. That on arriving in the city they first stopped at what is known as "Whetstone's Store," on the corner of First and Broadway streets. That before reaching Whetstone's store the plaintiff had gone down Broadway, on the east side of the double track for several blocks. At Whetstone's store the plaintiff and her husband stopped to deliver some vegetables which they were carrying in the hack. That when Mr. Fonville came out of the store he walked on down to what is known as "Brown's Store," and directed his wife to drive the team on down there. It appears that Brown's store is located on Main street, about the middle of the block west of Broadway; Main street being the next street south of First street, where Whetstone's store is located. It further appears that the plaintiff drove from the Whetstone store one block south along the east side of the street car tracks on Broadway. That at the corner of Main and Broadway she stopped near Laird's store, with her horses facing south. At this point she saw a car approaching from the north, and stopped and waited for this car to pass her, which it did by turning the corner at Main and Broadway, and going directly west on Main street. She testifies that she did not think of another car approaching, and did not look towards the south to see if any other car was approaching, but as soon as the car from the north passed her, or, rather, around the corner of Main and Broadway, she says that she thought she was safe, and "circled the horses around" across the track to go up Main street, and was then run into by a street car coming from the south, which car she says she did not see until it struck her. The petition alleges that the motorman could have seen her at a distance of more than 500 feet, and all the testimony tends to show that at a distance of from 300 to 400 feet she could have seen the car approaching her, had she looked to the south. The petition also alleges that the car was running at a very high rate of speed, to wit, 15 or 20 miles per hour, at the time of the collision, and that the defendant failed to sound any gong or give any other signal to warn the plaintiff of the approach of the car. But it appears that the plaintiff failed to of fer any testimony as to the speed of the car at the time of the collision, or immediately prior thereto. prior thereto. Nor was there any testimony offered by the plaintiff as to the distance the car was away when it first became apparent to the motorman that the plaintiff was about

to turn or "circle" her team, which was facing south on the east side of the track, around to cross the track in a westerly direction. Nor was there any testimony offered that the motorman was not at his proper station at the time of the collision. The plaintiff testifies that she did not hear the gong sounded. The evidence further shows that the plaintiff was a married woman, 40 years of age, in good health, and in full possession of all her faculties. At the conclusion of the plaintiff's evidence, the defendant interposed a demurrer to the evidence on the ground that the plaintiff's testimony showed that she was guilty of contributory negligence, and that she had failed to establish a cause of action. The demurrer was overruled, and an exception noted.

The evidence on behalf of the defendant tended to show that the car that caused the accident was equipped with all the modern appliances, and was in good condition; that it had rained that morning, and the track was in a wet and slippery condition; that the car was 30 feet long, and weighed about 8 tons, and was being run on Grand avenue and Main street at the rate of from 4 to 5 miles per hour at the time the motorman first saw the team; that at this point the track was level, and entirely free from obstructions; and that going at the rate of speed mentioned it would require from 30 to 40 feet at least to stop the car. It further appears from the testimony that the motorman saw the team standing on the east side of the track, about 5 feet west of the curb, when he was about the middle of the block; that. when the motorman first saw the plaintiff with her team, he had no idea that she was going to turn on the track, until he saw her start in that direction, at which time the car was about 15 or 20 feet from the place of the accident; that the motorman did everything in his power to stop the car and avoid the collision. A number of witnesses testified on behalf of the defendant that the gong was sounded as the car was approaching from the south. At the conclusion of all the testimony, the defendant requested the court to submit to the jury a peremptory instruction to find the issues in favor of the defendant and against the plaintiff, which instruction was refused, and an exception saved. After filing a motion for a new trial, which was overruled, and an exception saved, the defendant brings the case here for review.

Three errors are relied upon for a reversal of the judgment. They are: (1) That there was no evidence fairly tending to show negligence on the part of the defendant; (2) that the plaintiff's own testimony shows that she was guilty of contributory negligence; and (3) that the court erred in giving instruction No. 6.

It was alleged in the petition that the defendant was guilty of negligence, in this: The car was moving at a high rate of speed at the time of the collision; (2) that no gong

was sounded; and (3) that the motorman saw the plaintiff in a position of danger in time to have avoided the accident, or, by the exercise of reasonable care and caution, should have seen her in such dangerous posi tion in time to have avoided the collision. As heretofore stated, the plaintiff wholly failed to show that the car was traveling at a high rate of speed at the time of the collision or immediately prior thereto. On the other hand, the testimony of the wit nesses for the defendant, as well as the physical facts, shows that the car was moving at a slow rate of speed, not to exceed 5 miles per hour, at the distance of from 300 to 400 feet from the place of collision. And on the question of whether the gong was sounded, there is little or no dispute in the testimony. The plaintiff testifies that she did not hear it, and she thinks that she would have heard it had it been sounded. On the other hand, the defendant's witnesses, who were eyewitnesses to the accident, testify positively that the gong was sounded, and that the motorman did everything in his power to prevent the collision. The above is substantially the testimony of fered on behalf of the plaintiff, as well as the defendant, as we gather it from the record. Upon such a state of facts, then, what is the law?

In Railroad Company v. Houston, 95 U. S. 697, 24 L. Ed. 542, it was held that: "The neglect of the engineer of a locomotive of a railroad train to sound its whistle or ring its bell on nearing a street crossing does not relieve a traveler on the street from the necessity of taking ordinary precautions for his safety. Before attempting to cross the railroad track, he is bound to use his senses to listen and to look-in order to avoid any possible accident from an approaching train. If he omits to use them, and walks thoughtlessly upon the track, or if, using them, he sees the train coming, and, instead of waiting for it to pass, undertakes to cross the track, and in either case receives any injury, he so far contributes to it as to deprive him of any right to complain. If one chooses in such a position to take risks, he must suffer the consequences. They cannot be visited upon the railroad company." And in the course of the opinion, Mr. Justice Field, speaking for the court said: "Negligence of the company's employés in these particulars was no excuse for negligence on her part. She was bound to listen and to look, before attempting to cross the railroad track, in order to avoid an approaching train, and not to walk carelessly into the place of possible danger. Had she used her senses, she could not have failed both to hear and to see the train which was coming. If she omitted to use them, and walked thoughtlessly upon the track, she was guilty of culpable negligence, and so far contributed to her injuries as to deprive her of any right to complain of others. If, using them,

for the train to pass, and was injured, the consequences of her mistake and temerity cannot be cast upon the defendant. No railroad company can be held for a failure of experiments of that kind. If one chooses, in such a position, to take risks, he must bear the possible consequences of failure. Upon the facts disclosed by the undisputed evidence in the case, we cannot see any ground for a recovery by the plaintiff. Not even a plausible pretext for the verdict can be suggested, unless we wander from the evidence into the region of conjecture and speculation. Under these circumstances, the court would not have erred had it instructed the jury, as requested, to render a verdict for the defendant."

In the

In Elliott v. Chicago, Milwaukee & St. Paul Railway Company, 150 U. S. 245. 14 Sup. Ct. 85, 37 L. Ed. 1068, it was held that, though questions of negligence and contributory negligence are, ordinarily, questions of fact to be passed upon by a jury, yet, when the undisputed evidence is so conclusive that the court would be compelled to set aside a verdict returned in opposition to it, it may withdraw the case from the consideration of the jury, and direct a verdict. course of the opinion, Mr. Justice Brewer, speaking for the court, said: "But one explanation of his conduct is possible, and that is that he went upon the track without looking to see whether any train was coming. Such omission has been again and again, both as to travelers on the highway and employés on the road, affirmed to be negligence. The track itself, as it seems necessary to iterate and reiterate, is itself a warning. It is a place of danger. It can never be assumed that cars are not approaching on a track, or that there is no danger therefrom. It may be, as is urged, that his motive was to assist in getting the hand car out of the way of the section moving on the siding. But, whatever his motive, the fact remains that he stepped on the track in front of an approaching train, without looking, or taking any precautions for his own'safety. This is not a case in which one, placed in a position of danger through the negligence of the company, confused by his surroundings, makes perhaps a mistake in choice as to the way of escape, and is caught in an accident. For here the deceased was in no danger. He was standing in a place of safety on the south of the main track. He went into a place of danger from a place of safety, and went in without taking the ordinary precautions imperatively required of all who place themselves in a similar posi tion of danger. The trial court was right in holding that he was guilty of contributory negligence."

And the courts uniformly hold that the same doctrine is applicable to electric street cars as to steam railroads. In Everett v.

Supreme Court of California in passing upon this question, said: "Nor is there any distinction, in the application of this doctrine, between an electric or cable line operated upon the public streets of a city, and that of an ordinary steam railway operated upon the right of way of the corporation. While the deceased had the undoubted right to a reasonable use of the public street, notwithstanding its occupancy by defendant's tracks, he could not ignore or disregard the rights of the latter in the premises, nor neglect to take reasonable precautions for his own safety. If he chose to make use of the part of the street occupied by the tracks, it was his duty to look out for and endeavor to avoid the dangers incident to such use"citing numerous authorities to the effect that it is the duty of the traveler to look and listen for approaching cars when about to drive across the tracks of a street railway company, and a failure to do so is such contributory negligence as will preclude a recovery for injuries received, in case of a collision. The same doctrine is announced by the Supreme Court of Colorado in Davidson v. Denver Tramway Co., 4 Colo. App. 283, 35 Pac. 922. In Young v. Citizens' St. R. Co., 148 Ind. 54, 44 N. E. 927, the Supreme Court of Indiana held that: "It is the duty of one walking clore to, or about to cross, a street car track, to look and listen,' as in the case of like situation to a steam railroad." And in Indianapolis St. Ry. Co. v. Marschke (Ind. App.) 70 N. E. 495, it was said that: "It is unnecessary to discuss the relative rights of a street car company and a traveler to the use of the street occupied by street car tracks. The simple question here involved is this: Can a person, traveling upon a street, deliberately drive or walk in front of an approaching car, without looking or taking any precautions to avoid a collision, and recover for resulting injury? This question must be answered in the negative, for the authorities so hold." And in Indianapolis St. Ry. Co. v. Zaring, 33 Ind. App. 297, 71 N. E. 270, it is said: "Where, in an action against a street railway company for the death of one run into by a car, it appears that he could have seen if he had looked, and heard if he had listened, the approaching car in time to have avoided the collision, the facts show contributory negligence per se." In Burns v. Metropolitan St. Ry. Co., 66 Kan. 188, 71 Pac. 244, the Supreme Court of Kansas held: "A traveler on a city street, who is about to cross the tracks of an electric street car company, must exercise his faculties of sight and hearing, and under special circumstances must use other careful and prudent means to ascertain whether a car is approaching. The prevailing rule respecting the care required of a traveler over steam railway tracks applied to one crossing a street rail

way." And in Metropolitan St. Ry. Co. v. Ryan, 69 Kan. 538, 77 Pac. 267, it was held by the Supreme Court of Kansas that: "Where, upon the trial, plaintiff testified she alighted from an east-bound street car, and passed back of it and to the northward upon a parallel track four feet distant, on which cars traveled in an opposite direction, without looking for an approaching car, and sustained injury, and, to have looked eastward along the space between the parallel tracks after passing by the end of the standing car, an approaching car could have been seen a distance of two blocks, held error to overrule a demurrer to plaintiff's evidence." In Hurley v. West End St. Ry. Co., 180 Mass. 370, 62 N. E. 263, the Supreme Court of Massachusetts held that: "Where plaintiff, in the daytime, drove across the tracks of a street railway, on which he knew electric cars were running, without looking to see whether a car was coming or not, and knew nothing of its approach until it hit the hind wheels of his wagon, or until it was a rail off, it was proper, in an action for the injuries, to rule that plaintiff was not in the exercise of due care, and take the case from the jury." To the same effect are the following authorities: McGee v. Consolidated St. Ry. Co., 102 Mich. 107, 60 N. W. 293, 26 L. R. A. 300, 47 Am. St. Rep. 507; Henderson v. Detroit Cit. St. Ry. Co., 116 Mich. 368, 74 N. W. 525; Doherty v. Detroit Cit. St. Ry. Co., 118 Mich. 209, 30 N. W. 36; Deitring v. St. Louis Transit Co., 109 Mo. App. 524, 85 S. W. 140; Riska v. Union Depot R. Co., 180 Mo. 168, 79 S. W. 445; Markowitz v. Metro. St. Ry. Co., 186 Mo. 350, 85 S. W. 351, 69 L. R. A. 389.

In Hannon v. No. Jersey St. Ry. Co. (N. J. Sup.) 47 Atl. 803, the Supreme Court of New Jersey held that: "A driver of a vehicle is guilty of contributory negligence in suddenly, and without warning, turning his horses across a street railway track, directly in front of an approaching car." The Supreme Court of Oregon has held to the same rule in the following cases: Smith v. City & Sub. Ry. Co., 29 Or. 539, 46 Pac. 136; Wolf v. City & Sub. Ry. Co., 45 Or. 446, 72 Pac. 329. The same doctrine is announced by the Supreme Court of Wisconsin in the case of Cawley v. La Crosse City Ry. Co., 101 Wis. 152, 77 N. W. 180, where Mr. Justice Marshall, speaking for the court, said: "The theory upon which the court sent this case to the jury on the subject of contributory negligence manifestly was that, conceding the rule of law requiring plaintiff to look and listen, her testimony that she did so was sufficient to require the jury to find where the trouble lay, as if it were permitted to them to say on such evidence that she did in fact look and listen, and yet did not see or hear the car that was unquestionably in plain sight and hearing. In that there was a failure to observe the limits beyond which a jury cannot go. They cannot go beyond

the boundary of reasonable probabilities in determining facts from evidence without going into the realms of conjecture or perversity. This court has often held that the rule of law that requires a person to look and listen before going upon a railway track requires him to see and hear an approaching car if it is so located as to be plainly within view and hearing; that evidence of a person so circumstanced that he looked, but did not see, or listened. yet did not hear, the car, if believed at all, is only to establish contributory negligence by showing that he knowingly placed himself in a place of danger. Groesbeck v. Railway Co., 93 Wis. 505, 67 N. W. 1120; Schneider v. Railway Co., 99 Wis. 378, 75 N. W. 169; Steinhofel v. Railway Co., 92 Wis. 123, 65 N. W. 852; Haetsch v. Railway Co., 87 Wis. 304, 58 N. W. 393."

The doctrine is well settled by the authorities that, when the evidence given at the trial, with all the inferences which the jury could justifiably draw therefrom, is insufficient to support a verdict, and that such verdict, if returned, ought to be set aside, the court should not submit the case to the jury, but ought to direct a verdict for the defendant. In Pawling v. U. S., 4 Cranch (U. S.) 222, 2 L. Ed. 601, Chief Justice Marshall stated this rule as follows: "The general doctrine on a demurrer to evidence has been correctly stated at the bar. The party demurring admits the truth of the testimony to which he demurs, and also those conclusions of fact which a jury may fairly draw from that testimony. Forced and violent inferences he does not admit; but the testimony is to be taken most strongly against him, and such conclusions as a jury might justifiably draw the court ought to draw." In Pleasants v Fant, 22 Wall. (U. S.) 121, 22 L. Ed. 780, Mr. Justice Miller, speaking for the court, clearly and forcibly states the true doctrine as follows: "It is the duty of a court, in its relation to the jury, to protect parties from unjust verdicts arising from ignorance of the rules of law and of evidence, from impulse of passion or prejudice, or from any other violation of his lawful rights in the conduct of a trial. This is done by making plain to them the issues they are to try; by admitting only such evidence as is proper in these issues, and rejecting all else; by instructing them in the rules of law by which that evidence is to be examined and applied; and, finally, when necessary, by setting aside a verdict which is unsupported by evidence or contrary to law. In the discharge of this duty, it is the province of the court, either before or after the verdict, to decide whether the plaintiff has given evidence sufficient to support or justify a verdict in his favor, not whether on all the evidence the preponderating weight is in his favor. That is the business of the jury. But, conceding to all the evidence offered the greatest probative force which according to the law of evidence it is fairly entitled to, is it sufficient to justify a