gorical question put to it; but all doubt is put at rest by the remaining words of the answer, to wit, 'Send on your paper.' These words invited action on the part of the person to whom they were addressed. They are not merely an expression of an opinion. Read in connection with the message sent by Streeter, and which they were intended to answer, the meaning thereof is, 'Send on your check on Tate, and we will pay it.'" North Atchison Bank v. Garretson, 51 Fed. 168, 2 C. C. A. 145.

There is no occasion to consider what words indorsed upon a check and signed by the drawer will amount to a certification when the check is put into circulation upon the credit of the indorsement. Donald, upon his own request, became a party to the action. The court instructed the jury to find in his favor if it found in favor of the defendant bank, and, under direction of the court, a verdict was returned for Donald upon which judgment was rendered. this judgment cannot now stand. for reversed, and the cause as to Donald remanded for further proceedings.

Manifestly Manifestly It is there

The judgment against the defendant bank is reversed, and the cause remanded, with instruction to sustain its demurrer to the petition. All the Justices concurring.

(74 Kan. 567)

CHICAGO, B. & Q. RY. CO. v. LAUGHLIN. (Supreme Court of Kansas. Nov. 10, 1906.) 1. TRIAL-INCONSISTENT FINDINGS.

When a jury in answer to special questions make certain general findings which are in the

nature of conclusions, and which are contradicted by other special findings of fact in detail the general findings will be controlled by the special findings.

[Ed. Note.-For cases in point, see Cent. Dig. vol. 46. Trial, §§ 857-860.]

2. RAILROADS INJURY TO PERSON ON TRACKCONTRIBUTORY NEGLIGENCE.

The special findings of the jury examined, and held to establish contributory negligence of a boy 13 years of age, of ordinary intelligence, who was injured in attempting to pass in front of a moving freight train which he saw approaching.

[Ed. Note. For cases in point, see Cent. Dig. vol. 41. Railroads, §§ 1029-1036.]

(Syllabus by the Court.)

Error from District Court, Cloud County; Hugh Alexander, Judge.

Action by Ralph Laughlin by Hattie Laughlin, his next friend, against the Chicago, Burlington & Quincy Railway Company. Judgment for plaintiff. Defendant brings error. Reversed with directions.

Ralph Laughlin, an infant, was injured December 6, 1902, by being run over by a freight car, part of a train, consisting of an engine and two box cars, backing east on the tracks of defendant company in its railway yards near the station at Concordia. His left leg was cut off between the knee and ankle. He brought this action by his next

friend, and recovered a judgment of $1,999 from which the railway company appeals. At the time of the accident he was 13 years and 2 months old, and had been working as a messenger boy for the telegraph company for five weeks. His duties required him to cross these tracks frequently. He was a bright boy of ordinary intelligence. The tracks of defendant company lie east and west. The station is on the south side of the tracks, and a half block east of Washington street which runs north and south. The accident occurred at a point on the tracks about midway between the east side of Washington street and the station. The petition alleged that for years there had been a well-defined path across the tracks, leading from the sikewalk, which connected with the station platform, and running northwest to the sidewalk on the east side of Washington street, and that the public was accustomed to use it. Young Laughlin had passed over this path, going north, a few moments before the accident, with a message to deliver, and noticed the engine and cars switching west of Washington street. He saw them run east to near the east side of the street, then stop and run back again to the west. He delivered his message, got a reply requiring his immediate return to the telegraph office which was east and south of the station. On his return, and before he started across this diagonal path, he saw the train backing east, but supposed it would stop near the east side of the street because it had done so before. He was running slowly, and took the path across the tracks, going in a southeasterly direction. The engine and two cars were moving east at the rate of five or six miles an hour. He saw the cars moving east of Washington street and until they were within 10 feet of him, but thought they were slowing up and about to stop. He continued in his course, and was struck by the east end of the rear box car just as he stepped in front of it. He claimed that just as he stepped on the track the cars gave a lunge, and that but for this he would have gotten across ahead of them without injury. The bell of the engine was ringing all the time the cars were running. It was claimed that the railway company was negligent in failing to have a lookout on the rear car to warn persons of the approach of the train.

In answer to special questions submitted by plaintiff, the jury found that there was a well-defined pathway across the tracks of defendant company which the public used as claimed by plaintiff, and also made the following finding:

"Q. 1. Did the plaintiff, Ralph Laughlin, exercise such reasonable care and prudence as might be expected from one of his years. knowledge, and experience, taking into consideration all of the circumstances and conditions in which he was placed immediately prior to, and at the time of, the injury? Ans. Yes."

To questions submitted by defendant company, the jury made the following answers: "18. State whether or not the business in which plaintiff was engaged at the time of his injury required him to cross the tracks of the defendant on Washington street many times daily. Ans. It required the crossing of defendant's tracks several times daily."

"25. How far did the car which struck the plaintiff move after the plaintiff was injured? Ans. About a car length."

"30. Did the plaintiff prior to the accident know that a person crossing in front of a moving freight train might be injured if he did not cross before he was reached by the train? Ans. We are not able to state at his age at time of his injury.

"31. Was the bell upon the engine ringing at the time plaintiff was injured? Ans. Yes." "33. State whether or not the employés of the defendant in charge of its engine at the time of the injury knew that the plaintiff was upon the track. Ans. No.

"34. State whether or not the employés of the defendant in charge of its engine at the time of plaintiff's injury had reason to know that plaintiff was on the track. Ans. No."

"36. Did the plaintiff prior to the accident know that switching freight trains moved irregularly, stopped and started and increased. and diminished speed unexpectedly, and not at regular times and places? Ans. No."

"42. State whether or not the plaintiff saw the cars and engine of the defendant moving eastwardly just prior to his injuries. Ans. Yes."

"44. If you answer that the plaintiff saw the cars moving eastwardly prior to his injury, how far was he from such cars when he first so saw same? Ans. About half a block.

"45. If you answer that the plaintiff saw such cars before his injury, state in what direction if any he went after so seeing such cars. Ans. S. E.

"46. If you answer that the plaintiff saw such cars prior to his injury, and went in any direction thereafter prior to the injury, state whether he walked or ran, and how fast. Ans. Ran on dog trot.

"47. If you answer that the plaintiff saw such cars prior to his injury, state how far he was from the cars when he last saw the one nearest to him before going on the tracks. Ans. About 10 feet.

"48. State whether or not the plaintiff attempted to cross the track in front of the cars of the defendant just prior to his injury. Ans. Yes."

"56. State whether or not the plaintiff before crossing the track of the defendant just prior to the injury stopped and looked for cars passing along the track. Ans. He noticed cars about 10 feet away just before starting to cross track, but did not stop."

"60. Did the plaintiff prior to the accident understand that a person crossing railroad

track yards was liable to injury unless be successfully avoided moving trains? Ans. Yes."

"68. Was the plaintiff at the time of his injury a bright intelligent boy of 13 years of age, and more than ordinary intelligence for that age? Ans. Was of ordinary intelli

gence."

"73. If you find that the defendant was negligent towards the plaintiff, state in what such negligence consisted. State fully. Ans. By not having flagman or brakeman at end of car to warn plaintiff or others from crossing defendant's tracks."

"76. What, if anything, induced the plaintiff to place himself in a position of danger, if he did, just prior to the injury? Ans. He did not realize there was any danger."

"85. State how far, if at all, the car which run over the plaintiff lunged or jerked just prior to the injury; how many inches or feet? Ans. From 2 to 4 feet."

Sturges & Sturges, W. W. & W. F. Guthrie. and Boyle, Guthrie & Smith, for plaintiff in error. Park B. Pulsifer and Dwight M. Smith, for defendant in error.

PORTER, J. (after stating the facts). The only negligence of which the jury found the company guilty was the failure to have a lookout on the rear of the train to warn persons of its approach. It is urged that the findings and evidence conclusively established that this negligence could not have been the proximate cause of the accident because it appears that the boy saw the cars approaching all the time, and had sufficient warning. However, conceding that the railway company was negligent, the findings of fact clearly establish that plaintiff's contributory negligence was such that he cannot recover. Some of the findings of the jury are in a sense contradictory. In the first answer they find that he did exercise such reasonable care and prudence as might be expected from one of his years, knowledge, and experience, and under all the circumstances. This finding. however, is in the nature of a general conclusion. It must give way to the force and effect of certain special facts found, facts in detail, which cannot be said to be arbitrary conclusions, for they are compelled by and rest upon evidence about which there is no conflict. Atchison, T. & S. F. R. Co. v. Plunkett, 25 Kan. 197. They force a conclusion from which, in our opinion, there is no escape. The boy possessed the ordinary intelligence of one of his age, knowledge, and experience. He was past 13 years of age and for five weeks had been about and across these tracks daily. He attempted to run around in front of a moving train of cars which he saw approaching and about to cross his path unless it stopped as he says he thought it was going to do. The train was moving five or six miles an hour. One of

the reasons he gives which caused him to think the train would stop was that he saw it awhile before moving eastward and stopping at a point west of there.

The jury found, as indeed they were bound to find from his evidence, that he understood he was liable to injury unless he avoided being struck by the train; that he noticed the cars when they were 10 feet away from him, but did not stop. The finding that he did not realize there was any danger is likewise a conclusion which must be controlled by the previous findings to the effect that he saw the train approaching, but did not stop; that he did understand his liability to injury; and that he possessed the ordinary intelligence of one of his years, knowledge, and experience. In Atchison, T. & S. F. R. Co. v. Plunkett, supra, it was said: "The jury's findings are always conclusions. They cannot be otherwise; and the jury cannot in any case, or in any sense, find ultimate facts. They can find the facts in great detail, or they can find them in very general or comprehensive terms. And where they find the facts both in detail and in general terms we may disregard the general findings. If the findings in detail contradict the general findings, we may order the judgment to be rendered in accordance with the findings in detail, and wholly ignore the general findings. For instance, where a question of negligence arises in a case, the jury cannot be allowed to say conclusively, after finding certain special facts, that these facts constitute negligence, when in fact and manifestly they do not constitute negligence." To the same effect see Central Branch U. P. R. Co. v. Henigh, 23 Kan. 347, 359, 33 Am. Rep. 167; A. T. & S. F. Rld. Co. v. Brown, 2 Kan. App. 604, 42 Pac. 588; A. T. & S. F. Rld. Co. v. Plaskett, 47 Kan. 112, 115, 27 Pac. 824. The finding in this case that, under the circumstances, the boy exercised such reasonable care and prudence as might be expected from one of his years, knowledge, and experience is necessarily a general conclusion from the special facts found and is contradicted by the findings in detail. From these it stands out clear that it required the exercise of only a slight degree of care on the part of this boy to have protected himself from injury; that in the face of danger which he sufficiently appreciated he culpably neglected to use the knowledge and capacity which he possessed. "Although a minor, he was bound to use the reason he possessed and to exercise the degree of care of which he was capable." Wilson v. Railway Co., 66 Kan. 183, 186, 71 Pac. 282, 283. See, also, A.. T. & S. F. Rld. Co. v. Todd, 54 Kan. 551, 38 Pac. 804; Bess v. Railway Co., 62 Kan. 299, 62 Pac. 996; Mendenhall v. Railway Co., 66 Kan. 438, 71 Pac. 846, 61 L. R. A. 120, 97 Am. St. Rep. 380. It follows, therefore, that the motion for judgment in favor of plaintiff

in error upon the special findings should have been sustained.

The judgment will be reversed, with directions to enter judgment for defendant below. All the Justices concur.

(74 Kan. 599)

CORNELIUS v. ATCHISON. T. & S. F. RY. CO.

(Supreme Court of Kansas. Nov. 10, 1906.) 1. CARRIERS-LIVE STOCK SHIPMENT-ACTION FOR DAMAGES.

Where the plaintiff asks damages from a railroad company for negligence in carrying and delivering cattle shipped over its line, alleging that it had orally agreed to carry and deliver the cattle upon certain conditions, and the railroad company admits the receipt and shipment of the cattle, but alleges that they were carried under a written contract, the conditions of which had not been complied with by plaintiff, and proof is offered on the one part that the contract of shipment was oral, and upon the other that it was written, and which tended to show actionable negligence under either theory, held, that the plaintiff can recover the damages sustained as measured by the agreement established by the evidence.

2. SAME--DELAY-NOTICE OF CLAIM.

A provision in a live stock shipping contract that notice in writing of the shipper's claim for damages shall be a condition precedent to a recovery for any loss or injury to stock during transportation does not cover damages such as the loss of market or other losses occasioned by the carrier's negligent delay, and which arise after transportation has ended.

[Ed. Note.-For cases in point, see Cent. Dig. vol. 9, Carriers, § 947.]

3. EVIDENCE-COMPETENCY.

In a controversy as to the making of an agreement one of the parties to it may not testify as to what he had in mind in the preliminary negotiations, nor state his unexpressed intent in such negotiations.

[Ed. Note.-For cases in point, see Cent. Dig. vol. 20, Evidence, § 440.]

(Syllabus by the Court.)

Error from District Court, Butler County; G. P. Aikman, Judge.

Action by B. H. Cornelius against the Atchison, Topeka & Santa Fé Railway Company. Judgment for defendant, and plaintiff brings error. Reversed.

T. A. Kramer and N. A. Yeager, for plaintiff in error. W. R. Smith, O. J. Wood, and A. A. Scott, for defendant in error.

JOHNSTON, C. J. B. H. Cornelius brought an action against the Atchison, Topeka & Santa Fé Railway Company to recover damages alleged to have been sustained by the failure of the company to deliver cattle shipped over its line from Augusta, Kan., to Chicago, Ill., in accordance with the agreement of the parties and its duty in the premises. It was alleged that, on September 5, 1903, 12 carloads of fat export cattle were shipped from Augusta to Chicago over the defendant's line upon an oral contract that they were to be delivered at Chicago on the morning of the 7th of September, 1903, in time

for the market of that day, but that the cattle were negligently and unskillfully handled and delayed at various stations on the line and failed to reach Chicago until the afternoon of September 7th, and after the market of that day had been closed. The loss sustained by reason of the negligent delay was a decline in the market subsequent to the morning of the day when the cattle should have been delivered, shrinkage of the cattle while being kept until they could be marketed on September 9th, and cost of keeping them during that time. It was alleged that some of the cars were negligently billed and delivered to the wrong parties by the company by which an additional loss resulted. The railway company in its answer admitted the receipt and transportation of the cattle over its line, but averred that they were shipped under written contracts which contained a provision "that live stock covered by this contract is not to be transported within any specific time, nor delivered at destination at any particular hour, nor in season for any particular market." In respect to loss or claims for damage by shippers, the contract contained a stipulation that "as a condition precedent to his right to recover any damage for any loss or injury to said stock during the transportation thereof, or at any place or places where the same may be loaded or unloaded for any purpose on the company's road, or previous to loading thereof for shipment, the shipper or his agent in charge of the stock will give notice in writing of his claim thereof to some officer of said company, or to the nearest station agent, or, if delivered to consignee at a point beyond the company's road, to the nearest station agent of the last carrier making such delivery, before such stock shall have been removed from the place of destination above mentioned, or from the place of delivery of the same to the consignee, and before said stock shall have been slaughtered or intermingled with other stock, and will not move such stock from said station or stockyards until the expiration of three hours after giving such notice; and a failure to comply in every respect with the terms of this clause shall be a complete bar to any recovery of any and all such damages." It was alleged by the defendant that no notice of loss was given to the company as required by the quoted provision. Aside from a general denial the answer contained a specific. denial that any oral contract was made, or that its agent had any authority to make one. Plaintiff replied, admitting the signing of the written contracts, but alleged that they were signed after the cattle had been placed in charge of the railway company, when the train was about to start, and there was no opportunity to read the contracts. He also alleged that he was coerced into signing them by the declaration of the agent that the cattle would not be permitted to go on the train unless the papers then presented were signed.

It appears that Cornelius had negotiated with the local agent of the company in regard to obtaining a special train to start from Augusta on Saturday, and which would arrive with the cattle at Chicago early Monday morning, but the agent declined to promise such a train without consulting his superior officers at headquarters. He agreed to write to Topeka and ascertain whether such a train could be had, and in a few days reported to Cornelius that he had heard from Topeka, and that the train requested would be furnished. It appears, too, that the cattle were export cattle for which there was a market on Mondays, but none on the following day, and that cattle not sold on Monday were necessarily kept over until the Wednesday market, and this was the reason given by Cornelius to the company for prompt shipment. There was considerable delay in the transportation of the cattle, and as a result they did not arrive in Chicago for Monday's market. There was a decline in the market and a corresponding loss to the owner of the cattle, and in addition the expense of hoiuing the cattle until the sale could be effected. Testimony was offered in behalf of the defendant, tending to show that no oral contract was made, but that the cattle were shipped under certain written contracts which were produced in evidence. The trial court submitted to the jury the question whether the cattle were shipped under the oral contract alleged by the plaintiff, or under written ones set out by the defendant, and the jury found generally in favor of the railway company.

Complaint is made of the instructions of the court, and of rulings upon testimony. In its charge to the jury the court instructed that, if the plaintiff sustained his averment that the cattle were shipped under the oral contract, he could recover for the loss resulting from the negligence of the company without regard to whether any notice was given to the company by the plaintiff of his claim for damages. The court then said to the jury: "You are instructed that, if the plaintiff in this case fails to prove by the preponderance of the evidence an oral contract between him and the defendant, in substance, such as is alleged in his petition, then, in that case, the plaintiff cannot recover in this action, and your verdict must be for the defendant. * ** You are instructed that, if you find from the evidence that the written contracts in evidence were signed by plaintiff, or his agent, after the oral contract claimed by plaintiff was made, said written contracts became thereby the only contracts between the parties, and said oral contract claimed by plaintiff, if any such existed, became merged in said written contract, and plaintiff cannot recover in this action, unless you also find from the evidence that the signature of plaintiff, and his agents, was obtained to

said written contracts by fraud or coercion." The peremptory direction to find for the defendants, if it was found that the written contracts were the controlling ones, cannot be upheld. Obviously, it was based on the failure of the plaintiff to give written notice of his claim for damages within the time The in the written contracts. specified in the plaintiff could not be denied a recovery because it was found that the damages must be measured by written contracts rather than a prior oral one. While the plaintiff alleged an oral contract, the pleadings of the parties when construed together were sufficient to warrant a recovery under whatever contract was found to have been actually made. The gist of the action was the negligence and wrong doing of the defendant, resulting in injury to the plaintiff. agreements of the parties are important in fixing the duties and liabilities of the railway company, but, as the defendant admitted receiving and shipping the cattle and itself pleaded the terms of the contracts under which the shipments were made, it cannot urge that a recovery cannot be had for its negligence when measured by the agreements actually made, whether they be written or oral. It may, and did, urge that the written contracts are the binding ones, and that under them the plaintiff is barred from recovering damages, because he failed to comply with reasonable requirements included in those contracts.

The

The first stipulation relied on as precluding a recovery is that the cattle were not to be delivered within any specific time, at any particular hour, nor in season for any particular market. While, under this provision, the arrival of the cattle is not required at any fixed time, nor for any particular market, the company has not contracted, and, in fact, could not contract, against its own ordinary negligence. While limitations upon its common-law liability are permitted. it is still required to transport the cattle with due diligence and care, and it must still be liable for losses resulting from its ordinary negligence. There was a limitation in the written contracts which precluded a recovery for loss or injury to the cattle during transportation unless the shipper, or his agent in charge of the cattle, gave notice in writing of the claim to some officer or agent of the company before they were removed from the destination or place of delivery, or have been slaughtered or intermingled with other stock. This limitation has been considered and sustained. Goggins v. K. P. Ry. Co.. 12 Kan. 416; Sprague v. Missouri Pacific Ry. Co., 34 Kan. 347, 8 Pac. 465; W. & W. Railroad Co. v. Koch, 47 Kan. 753, 28 Pac. 1013: Kalina v. Railroad Co., 69 Kan. 172, 76 Pac. 438. The provision, however, only covers loss or injury to the cattle during the transportation, and manifestly would cover any shrinkage of the cattle during transportation. It does 87 P.-48

not cover the loss of market, or injury arising from depreciation in the market. Railway Co. v. Poole (Kan.) 87 Pac. 465, the provision in question was interpreted, and it was held that it did not fairly cover the loss of a market. It was said: "Here the claim specified in the contract, of which notice is to be given, is confined to loss or injury to stock during transportation, and the notice required to be given before the removal of the cattle from the place of the delivery or destination, and before they were slaughtered or intermingled with other stock. A loss of market differs distinctly from a loss or injury to the cattle. Depreciation in the price or the loss of a market is not fairly embraced within the terms of the contract requiring notice of loss or injury to the cattle during transportation." See, also, Kramer & Co. v. Railway Co., 101 Iowa, 178, 70 N. W. 119. The case of Kalina v. Railway Co., supra. is cited as an authority that the lack of notice bars a recovery of damages, but the contract involved in that case made the claiming of damages within a fixed time a condition precedent to a recovery of any and all kinds of damage. Railway Co. v. Means (Kan.) 80 Pac. 604, is also cited for the proposition that the giving of notice is essential to a recovery. That case followed the Kalina Case, in deciding that notice of the claim of damages was a condition precedent to a recovery, but no attention was given to the particular question involved here. It is said that the contract in that case was similar to the one in question here, and that some of the damages claimed belonged in the same class with those involved in this case. However that may have been, it is manifest that the distinction between loss and injury to the cattle during transportation and loss of a market or losses arising after delivery and resulting from the negligence of the railway company was not considered or determined. It cannot, therefore, be regarded as an authority that loss or injury to the cattle during transportation is identical with loss of a market or other losses arising after transportation has ended.

If it turns out that the written contract is binding upon plaintiff, he would still be entitled to recover damages other than for losses or injury during the transportation. and which were the result of the defendant's negligence. The peremptory direction of the court, cutting out any recovery under the written contract, was therefore error. Testimony was offered tending to show losses for which a recovery may be had without giving the notice specified in the contract, and the jury should have been permitted to determine what, if any, damages should have been awarded.

Proof was offered by the plaintiff tending to show that the shipment was made under an oral contract. When Nevins, the station agent of the company, testified, he was asked