rules and regulations of the society, was satisfactory to it, was a sufficient compliance with its rules, regulations, and restrictions, and was within the scope of its objects, as to assume, without its being so specified in its constitution, by-laws, or the certificate, that in case, before the death of the member, there should be a departure by the designated beneficiary from the privileged classes, and no beneficiary had been substituted, then the same results should follow as upon the death of the beneficiary before the insurance matured, which results were explicitly set forth in the by-laws,-a part of the contract? Might we not with much greater reason assume, if we assume at all, that it was the intention, in such case, the insurance should lapse, and the fund revert to the society?

In some of these voluntary associations, similar in character to this, it is provided that, in case the beneficiary named in the certificate shall die or shall become incapacitated to take, then, in either event, the fund shall go to certain other parties or heirs. There is not claimed to be any such provision in the by-laws of this association. Again, in some it is provided that no benefits shall be paid to any person unless such person comes within one of certain classes. There is no such provision here. In others, the statute laws of the jurisdiction under which they are organized or operate regulate the distribution of the fund, or impose restrictions upon the society in respect thereto. This is not the case here. The only requirement in this case, and that by the laws of the association, is that no certificate shall issue unless the beneficiary be named, and that such beneficiary be within one of certain classes. It will be seen at a glance that there is a wide distinction between a requirement that a certificate shall issue to only one of a certain class of persons, and one that payment can be made only to one of a certain class. We do not know by what authority we could read into this contract matters not expressed in it directly or indirectly. The words "die" and "death" are not words of doubtful signification. They have a fixed and definite meaning, and it would, in our opinion, do violence to all rules of construction to say that the contracting parties in this case contemplated some other meaning at the time when the contract was entered into. According to the terms of the contract, and in this we embrace and consider the language of the certificate, and the laws and rules of the association in force at the time the contract was executed and subsequently enacted, the only contingency, namely, the death of the beneficiary named in the certificate, the happening of which would give the appellants, or any of them. any right to the fund in question, has never happened. We think, therefore, that the trial court did not err in its conclusions and in its judgment in this respect.

Counsel for appellants cite numerous authorities which they claim to support their

position that the fund in this case should be disposed of as provided in the by-laws of the association in case the beneficiary named in the certificate should die before the member, and the latter had made no further direction as to its disposition. We do not think that any of them are applicable, under the facts of this case. Tyler v. Association, 145 Mass. 135, 13 N. E. 360, was upon a certificate issued under a by-law which provided that, after payment of the expenses of the funeral and last sickness, "the balance should be paid to the person or persons designated by the member in his application for membership or last legal assignment, provided such person or persons are heirs or members of decedent's family." Here was a direct prohibition of payment to any person, even though designated, unless such person was at the time of the death of the member an heir or a member of his family,-a case radically dif ferent from the one at bar. Schonfield v. Turner (Tex. Sup.) 12 S. W. 627, 7 L. R. A. 189, was decided upon the ground that the designated beneficiary was not at the time of his designation, and never was, a party capable of taking the insurance fund for his own use. This failing, it was held to be entirely consistent with the purposes of the order to make the same disposition of the money that would have been made if he had been dead. In this case it was held to go to the heirs of the member, as they existed at the time of his death. The divorced wife was, of course, not an heir, and could take nothing. In Keener v. Grand Lodge, 38 Mo. App. 544, the beneficiary named in the certificate was not at the time of its issuance, and never was, within any of the classes prescribed by the constitution or laws of the order as capable of receiving the insurance benefits, and, moreover, was not within a class prescribed by the statute under which the order was organized and acting, as capable of receiving the benefits. In this case, too, it will be observed, the association was not contesting the payment. It acknowledged its liability, and paid the money into court for its distribution to the proper parties. The court held, under these circumstances, that a certificate having issued, and there being only a failure as to the beneficiary, the one named never having been competent to take it, it was in such case within the purpose of the association to give the fund to the heirs of the member. The reasoning was that a certificate naming such a beneficiary was similar in its effects to one in which no beneficiary had been named, or one in which a competent beneficiary had been designated by the deceased member, but who, "with his knowledge, died before him." In such cases the court held that a forfeiture would not be declared, and the heirs would take. Whether the court was right or wrong in its conclusions is immaterial, because they do not apply to this case. Here a competent beneficiary was named, and she is yet living. In

Rindge v. Society, 146 Mass. 286, 15 N. E. 628, it was held that the designation of beneficiaries in the certificate when issued was invalid, because in contravention of the statute under which the corporation was organized. The same is true of Shea v. Association, 160 Mass. 289, 35 N. E. 855. Order of Railway Conductors v. Koster, 55 Mo. App. 186, strongly relied upon by appellants, is not in point. The court held, under the circumstances of the case presented, that the divorced wife was not entitled to receive the fund, but did not say who was entitled to it, nor what disposition should be made of it. The only question in the case at bar necessary to be determined is, have the appellants, or any of them, a right, under the facts presented, to the fund? If they have not, then the case is settled, so far as this appeal is concerned. In such case the disposition of the fund is a question solely between appellee and the association, in which appellants cannot be heard, and in which they have no concern. Love v. Clune, 24 Colo. 237, 50 Pac. 34, has no bearing upon the question to be determined in this case. There the chief question was whether a member insured in a mutual benefit association might at his pleasure change the beneficiary designated in the policy, when the laws of the association were silent upon the subject. The court held that in such case the greater number and betterreasoned authorities favored the rule that the beneficiary named could not be displaced without his or her consent. In that case the person who was attempted to be substituted as a beneficiary was neither a member of decedent's family, nor an heir nor a relative, and did not come within any of the classes enumerated in the charter of the association as capable of being beneficiaries of its bounty. For this additional reason the court said that "the designation of her as a beneficiary was nugatory and ineffectual to nullify the former designation of the appellee." Neither in terms nor upon principle does the opinion in this case settle or affect the question here at issue. The designation in the substituted certificate was nugatory at and from the time it was made.

In their reply brief, counsel for appellants urgently insist that the true rule applicable to this case-the one now sustained by the great weight of authority-is that laid down in the concluding clause of section 265 of the latest edition of Bacon on Benefit Societies, and which reads as follows: "It may be taken as a settled rule of law, under recent decisions, that the designation of a person not entitled to take under the laws of the society or its charter does not invalidate the contract, but only the designation, and the benefit will go either as the laws of the society provide in the case of the death of all the beneficiaries, or to the next of kin." This in no sense militates against any position which we have assumed, or any views which we have advanced. In this case the designation

was of a party at such time fully competent, under the laws and charter of the association, to be a beneficiary. In this connection it may be well to remark that in Chartrand v. Brace, supra, where there was, as in this case, a beneficiary certificate issued by the A. O. U. W., the court said, "The association, so far as it is engaged in the business of life insurance, must be treated in law as a mutual life insurance company." The supreme court of the United States, in considering a policy issued by a mutual company, said, "We do not hesitate to say, however, that a policy taken out in good faith, and valid at its inception, is not avoided by the cessation of the insurable interest, unless such be the necessary effect of the provisions of the policy itself." Insurance Co. v. Schaefer, 94 U. S. 461, 24 L. Ed. 251.

The conclusion that none of the appellants are entitled to receive the benefit fund settles this appeal. It is not necessary to discuss or decide what right the appellee has to the fund, if any, nor the question as to whether the insurance lapsed by reason of the beneficiary's departure before its maturity from the privileged classes, and thereupon should revert to the order. The association is not here complaining, and is not before us at all. It admits its liability to pay the money to somebody, has paid it into the trial court, and been dismissed from the suit. The questions suggested, if they are debatable at all, do not concern the appellants. The determination of them either way would not affect their rights, under the conclusions which we have reached. Under the views which we have announced, we can only affirm the judgment, and this is accordingly done. Affirmed.

BISSELL, P. J., not sitting.

(13 Colo. App. 543) OLIVER v. DENVER TRAMWAY CO. (Court of Appeals of Colorado. Nov. 13, 1899.) STREET RAILROADS-ACTION FOR PERSONAL

INJURIES-PLEADING-SUFFICIENCY

OF COMPLAINT.

A complaint, in an action against a streetrailway company, setting out an ordinance requiring it to stop the car furthest from an intersecting street, when two cars are approaching the intersection, so as not to prevent travel thereon, and alleging that conceiving, under such ordinance, that an approaching car would stop, plaintiff assumed it to be safe to cross the track ahead of it, but the car, failing to slacken its speed, collided with him, occasioning his injury; that the gripman saw plaintiff as he was crossing the track, and by ordinary care might have prevented the injury,-is not demurrable, as showing plaintiff to have been so negligent as to preclude his recovery, since, if he was negligent, the company was liable if the gripman could have avoided the injury.

Error to district court, Arapahoe county. Action by Richard P. Oliver against the Denver Tramway Company. From a judgment for defendant, plaintiff brings error. Reversed.

This action for personal injuries has had somewhat of a peculiar history. As may be gathered from the abstract, issue was taken on the original complaint, the case was partially submitted to a jury, and, on a motion for a nonsuit, plaintiff was given leave to withdraw a juror, making a mistrial, and then took leave to amend his complaint. The complaint was several times amended and demurred to, and several motions filed to strike out sundry sections of the pleading. The motions to strike out were overruled, and the complaint permitted to stand as drafted. As thus amended, the material portions of it are as follows: "Defendant at all times after mentioned was a corporation, doing business in Denver, Colo., as a common carrier of passengers for hire upon the public streets of said city, and was, on December 10, 1892, operating its street railway upon a public street of said city (Broadway), and was running its cars thereon. A long time prior to said 10th December, the city council of Denver had duly passed an ordinance [title set out], which ordinance was signed and approved by the mayor of Denver, September 8, 1890, and was published in a newspaper of said Denver, of general circulation, September 10, 1890, within ten days after its passage. Section 1 of said ordinance is: 'Section 1. Every street car or train of cars, run or operated in the city of Denver, shall be provided with at least one gong or bell to be used as a signal or warning of the approach of such car or train, and it shall be the duty of the driver, gripman, motorneer, or person controlling the motive power on any street car or train, when approaching any street crossing, to ring or sound such gong or bell within a distance not exceeding sixty feet from such crossing, and it shall also be the duty of such driver, gripman, motorneer, or person controlling the motive power of any street car to sound or ring such gong or bell whenever such person shall have reason to believe that there is danger of such car or train colliding with, or running against any person, vehicle, or any animal or obstruction.' Section 3 of said ordinance is: 'Sec. 3. Whenever any street car or trains of cars, running upon any line or lines now established, or that may hereafter be established, shall approach each other from opposite directions, it shall be unlawful for the person controlling said car or trains or either of them, to permit said cars or trains so approaching each other to pass upon any intersecting street, but the car or train furthest from said intersecting street shall come to a full stop at such point and in such manner as not to impede or obstruct travel upon such intersecting street, and so to remain until the approaching car or train shall have entirely passed.' Sections 1 and 3 of said ordinance were each of them in full force and effect on 10th December, 1892. On said 10th December, plaintiff, a pedestrian, attempted to cross the said public street from, at, or

near northwest corner of its intersection with a public street known as Tenth Avenue,' to a point at or near the northeast corner of the intersection of said public streets. Plaintiff so attempted to cross Broadway in order to be carried for hire upon one of the cars of defendant approaching along Broadway from the south, and in so attempting to cross plaintiff was following the route of crossing usual and customary for pedestrians on the line of the north side of Tenth avenue, from west side, to east side of Broadway. While plaintiff was so crossing Broadway, a car of defendant, drawn by a cable, which cable was operated by steam, was from the north approaching Tenth avenue at speed of about twelve miles per hour, upon the track which the plaintiff was crossing. Plaintiff, when near last said track, saw approaching from the north the car of the defendant, which, as after set out, collided with plaintiff. Said car was under the control of conductor and gripman, servants and employés of defendant. It was in the nighttime when plaintiff attempted to cross Broadway. Night was dark. Plaintiff could not and did not estimate the distance at which said car then and there was from plaintiff. Gripman of said car wholly failed, when approaching north side of Tenth avenue, to ring or sound any gong or bell within a distance not exceeding sixty feet from north side of Tenth avenue. At all times while the said car was within a distance not exceeding sixty feet from north side of Tenth avenue, plaintiff was in a position of peril, and said gripman saw, or in the exercise of due care could have seen, that plaintiff was in a perilous position, and said gripman, by the exercise of due care, could have prevented and entirely avoided the collision hereinafter set out. The car, as aforesaid, approaching from the north, and another car of the defendant, were each approaching the other from opposite directions along Broadway. The car approaching from the north was furthest from Tenth avenue, and the plaintiff so knew; and misled by said failure of said gripman to ring or sound any gong or bell, and believing that last said car would be brought to a stop at such point on the north side of Tenth avenue, and in such manner as not to impede or obstruct travel on Tenth avenue, and plaintiff knowing it was the custom of defendant to stop its cars before crossing Tenth avenue, and before the line of Tenth avenue was reached, whenever another car was approaching from an opposite direction, as by the provisions of said section 3 of said ordinance they were required to do, as the plaintiff knew, then upon his knowledge of said custom of defendant to stop its cars at said point, before crossing, and of their duty so to do, and fully believing that they would so stop the said car, plaintiff, without fault on his part, proceeded to go upon, with intent to cross over, the track along which said car from the north was approaching. But said car failed to come

to a full stop on the north side of Tenth avenue, and failed to abate its speed in any degree until after the collision with plaintiff, hereinafter set out. Defendant and its employés aforesaid so negligently managed and operated said car so approaching from the north that plaintiff, without fault of his own, was violently struck thereby, while attempting to cross the track upon which said car was approaching, and was thrown to the ground and under said car, and was rolled upon the ground and under said car; whereby plaintiff was greatly injured. Right ankle of plaintiff was broken and fractured, ligaments of plaintiff's right foot were broken, three of plaintiff's ribs were broken and fractured, and plaintiff was otherwise injured, wounded, and cut, insomuch that he then became sick, lame, and sore, and so continues to present time, and to present time has been prevented from attending to his busiress, and was forced to expend, for medical attendance, medicine, and nursing, a large sum of money, to wit, five hundred dollars." The demurrer to this complaint, as thus amended, was sustained; the plaintiff elected to stand by his pleading; judgment was entered accordingly; and to reverse this judgment thus entered the plaintiff prosecutes er

ror.

John G. Sears, William B. Tebbetts, and Ellery Stowell, for plaintiff in error. A. M. Stevenson, for defendant in error.

BISSELL, P. J. (after stating the facts). The questions presented by the demurrer are not easy of solution. The legal rules which must be followed by the pleader in stating his cause of action, and those which must be observed in the trial of this class of cases, may possibly be deemed fairly well settled; yet, after all, no case in its facts is so entirely plain that the court can be absolutely certain about the application of those general principles by which such pleadings and such trials are governed. There is probably less difficulty in reaching a conclusion where the cause has been tried, and the facts and circumstances of the case are before the court, than when, as in the present, it is simply a matter of pleading. It is generally true a pleader ought to be able, if he has a case at all, to state it so that his complaint shall not be open to objections presented by a general demurrer. Doubtless it was the object of counsel in the present controversy to state the case in such fashion that his right to maintain the action could be definitely settled. We must be permitted to doubt the expediency of the procedure, and we do not intend, except in so far as we may be compelled in the determination of the error, to decide whether the plaintiff has or has not a case, or may or may not have a case when his proof shall come in. One of the most general doctrines pertaining to the law of negligence is that the plaintiff may not recover where

59 P.-6

his own negligence contributed to the injury, unless, of course, as will be subsequently seen, the case is brought within the exception to this rule. It seems to be well settled that the defendant may take advantage of this defense, either where he proves it affirmatively, or when it appears from the plaintiff's own proof, or where the plaintiff has so pleaded his cause of action that it may be gathered therefrom his own negligence contributed materially to the injury of which he complains, and his case is not stated within any exception to the doctrine. 1 Thomp. Neg.. p. 449; Railway Co. v. Richards, 59 Tex. 373. As we look at the record, this is probably the proposition on which the whole case turns, and it becomes our duty to ascertain whether, on the record as it stands, the court correctly resolved this question.

Matters of negligence, whether original or contributory, are equally matters of proof. Either must be shown by the preponderance of proof, and the question whether the plaintiff's negligence so far contributed to the injury as to amount to its proximate cause is as much a question for the jury as is the other fundamental inquiry, whether the negligence of the defendant company occasioned the injury. Both must be settled by the evidence. Railroad Co. v. Ryan, 17 Colo. 98, 28 Pac. 79; Railway Co. v. Ives, 144 U. S. 408, 12 Sup. Ct. 679, 36 L. Ed. 485. Accepting the allegations of the complaint, there is scarcely room for debate about the question of the negligence of the defendant company. It failed to observe the requirements of the ordinances concerning the running of the cars on Broadway at the time of the accident. The ordinance is set out, the violations alleged, and, if they are sustained by proof, the negligence of the company would thereby be established, regardless of any other fact which might show negligence. Railway Co. V. Ryan, supra; Milling Co. v. Dowell, 17 Colo. 376, 30 Pac. 68. The same doctrine has been announced by this court in a recent case. Railroad Co. v. Divelbliss (Colo. App.) 57 Pac. 743.

ren with a strict enforcement of the general rule, that a pleading must be taken most strongly against the pleader, there can be no doubt the negligence of the company was sufficiently charged. The difficult question still remains whether the plaintiff pleaded himself out of court by alleging facts tending to show that his own negligence contributed to the injury. As a general proposition, when there is any uncertainty either as to the existence of negligence on the part of the defendant or contributory negligence on the part of the plaintiff, either question is one of fact, to be determined by the jury, and not one of law, for the decision of the court. This is true whether the difficulty springs from the conflict in the testimony, or whether the whole thing rests upon undisputed facts, when in this latter case reasonable men might differ in the inferences which they

would draw from the facts as stated. This is the general conclusion of all the cases, and, though put differently in the various decisions, the rule is so clear in that particular there is no dispute about it. As some put it, there must not be room for debate respecting the inference which must be drawn from the testimony; others, that the inferences must be indisputable, and there must be no escape from the conclusion which reasonable men would draw from a consideration of the circumstances. However it is put, and in whatever form, the result is the same. Railroad Co. v. Powers, 149 U. S. 43, 13 Sup. Ct. 748, 37 L. Ed. 642; Hall v. Railway Co., 13 Utah, 243, 44 Pac. 1046; Railway Co. v. Martin, 48 Neb. 65, 66 N. W. 1007; Brotherton v. Improvement Co., 48 Neb. 563, 67 N. W. 479; Traction Co. v. Scott, 58 N. J. Law, 682, 34 Atl. 1094; Garrity v. Railway Co., 112 Mich. 369, 70 N. W. 1018.

As the pleader states his case, the plaintiff, coming eastward on Tenth avenue on the north side of the street, attempted to cross Broadway to reach one of the cars belonging to the defendant company, and going northward along Broadway. To reach the car, he was compelled to cross the west track of the company, along which there was coming from the north another car, bound southward, which had not yet reached or crossed Tenth avenue. The plaintiff alleges that, under the ordinances and according to the universal practice and custom of the company, to his knowledge, which matters were then in his consideration, the tramway company were bound to sound a gong to warn people of their intention to cross the street, and were likewise bound to stop the south-bound car when it reached Tenth avenue, that there might not be two cars crossing Tenth avenue, while passing along Broadway, at the same time. This averment is further sustained by an allegation to the effect that the north-bound car was nearer the crossing than the south-bound one, and therefore had the right of way across Tenth avenue, and the plaintiff, relying on those facts, attempted to cross the west track to take the car bound north. The exact distance of the southbound car from the crossing the plaintiff could not estimate, but conceiving, under the ordinances, that the car would stop, he assumed it to be safe to cross it, and took the chances, but the car, failing to slacken its speed, collided with him, and occasioned the injury. There is in this allegation a suggestion of negligence which, if developed by proof, might warrant the jury to conclude the plaintiff's own act so materially contributed to the injury that he could not recover. are not in a situation to either decide this question or strongly intimate our opinion about it. It is still true that whatever suggestion of contributory negligence is thus expressed in the plea is wholly obviated, as a matter of pleading, by what follows.

We

gence as well established as that to which we have already referred. This is the exception before adverted to. The plaintiff is not necessarily debarred recovery because he has been guilty of a negligence which contributed to the injury. He may have been negligent and careless, and put himself in a place of danger; yet, if the defendant, by the exercise of reasonable care, could have still avoided the injury, he was bound to avert the disaster. No principle of the law of negligence is better established than this, and the declarations of the supreme court of the United States on this subject have been followed by both of the appellate courts of the state. Coasting Co. v. Tolson, 139 U. S. 551, 11 Sup. Ct. 653, 35 L. Ed. 270; Transit Co. v. Dwyer, 3 Colo. App. 408, 33 Pac. 815; Id., 20 Colo. 132, 36 Pac. 1106.

It remains, then, to be determined whether the pleader has so far stated the exception as to entitle him to offer proof. He avers the gripman saw him as he was crossing the track, or by the exercise of due care might have seen him and his peril, and by the exercise of care could have prevented the injury. This is the excuse presented by the pleader for the contributory negligence which was apparently pleaded, and, if established by sufficient and competent proof, would bring the case within the exception. If it be conceded the plaintiff was negligent in attempting to cross the track, yet it must likewise be admitted, if the gripman saw him, and by the exercise of care could have prevented the accident, he was bound to apply the brakes, and save the plaintiff, even though he had negligently put himself in this place of danWhat the fact may be, what the proof may show, it is impossible to state, nor do we desire to go so far as to conclude the defendant from reraising the question when the proof is offered, nor do we intend to authoritatively declare that the plaintiff has a right of action which can be maintained. We can only say, if his proof corresponds with his complaint, it is possible for him to bring his case within the exception which the decisions establish.

ger.