railroad service or otherwise. This would result from section 1 of article 12 of the State Constitution, which ordains that "corporations may be created under general laws; but all such laws may be amended or repealed." The act in question has been, however, regarded as applying, not only to railroad corporations proper, but to other kinds of corporations, and to individuals engaged in the business of operating railroads. Trust Co. v. Thomason, 25 Kan. 1; Rouse v. Harry, 55 Kan. 589, 40 Pac. Rep. 1007. If it can be thus extended to cover such classes of cases, it cannot be regarded as a mere amendment of the railroad incorporation act, but must be considered as a remedial statute, applying rather to the business of railroad operation than as attaching qualifications and conditions to the exercise of railroad franchises. The questions herein suggested were not discussed before us, and as to what should be the proper view to be taken of them I have no matured judgment. However, I yield formal assent to the decision made, but without feeling myself bound by it as in other and ordinary cases.

ATCHISON v. PLUNKETT.

Court of Appeals, Kansas, Northern Department, E. D., January, 1899.

HIGHWAYS - STRUCTURE OVERHANGING STREETS FALLING UPON PERSON PASSING. — 1. The law casts upon owners of buildings abutting upon the streets, who attach thereto structures overhanging the street, the duty of preventing such overhanging structures becoming in any way dangerous to persons lawfully passing upon the highway; and where the plaintiff shows that while lawfully in the highway he is injured by some part of such a structure falling upon him, the burden rests upon such owner to show that he was blameless in the premises.

2. One in the lawful use of a street has a right to assume it is reasonably safe, and, even if he knew of the existence of an obstruction, he had a right to assume that it was not dangerous unless warned to the contrary, or the danger was obvious upon a casual inspection thereof. (Syllabus by the Court.)

FROM a judgment of District Court, Leavenworth County, in favor of plaintiff, defendant brings error. This action was for damages for personal injuries sustained by plaintiff from the fall of a stone which was suspended upon a beam attached to defendant's ice house, and that extended over a street in the city of Leavenworth. The plaintiff was standing upon the street near the ice house when the stone fell upon him. A verdict was rendered for plaintiff for $800,

of which he voluntarily remitted $400 upon the hearing of a motion for a new trial, and judgment was entered for $400.

J. H. GILLPATRICK and A. E. DEMPSEY, for plaintiff in error. J. C. PETHERBRIDGE and BAKER, HOOK & ATWOOD, for defendant in error.

MAHAN, P. J. It is contended under the first assignment of error that the court erred in sustaining the plaintiff's objection to questions addressed to the witnesses Kirmeyer and Kasper as to what defendant in error had been doing about the ice house on former occasions. Plaintiff in error has no ground for complaint upon this score. The court was exceedingly liberal with him, allowing him great latitude, both in the examination of his own witnesses and in the cross-examination of those of the plaintiff. It was immaterial in what the plaintiff was engaged while at the ice house of the defendant upon former occasions, and the questions, and any possible answers that might have been made thereto, would have thrown no light upon the issues being tried by the court. They were irrelevant, and the objection was properly sustained.

The first contention under the second assignment of error is that the court erroneously gave the first instructions to the jury, to the effect that, if the defendant placed a dangerous obstruction over the highway in violation of law, he was responsible to anyone lawfully upon the street for any damages sustained by reason of such unlawful obstruction on the street. The ground of the contention is that there was no evidence that the obstruction, or the rock which fell therefrom, was over any part of the highway. In this counsel for plaintiff in error are mistaken. Not only was the evidence on the part of the plaintiff sufficient to establish that fact, but the defendant himself admitted upon his cross-examination that such was the fact.

Under this assignment plaintiff in error next contends that it was error for the court to give instruction No. 2, to the effect that the law casts upon owners of buildings abutting upon streets the duty of preventing their becoming in any way dangerous to persons lawfully passing upon, the highway, and, if a failure in this respect results in damages, it is prima facie evidence of negligence. This instruction was applicable to one phase of the case. If, as the defendant contended in his answer and upon the trial, it should have appeared to the jury that the obstruction was not over the highway, but immediately upon the line thereof, this instruction would have been applicable; and there is no question about the correctness of the principle enunciated therein. Plaintiff in error contends that the burden always is upon the plaintiff to show that the defendant

was negligent. This is true. But when the plaintiff has shown that he was injured by some material — timber, stone, or other matter falling from the building upon him while upon the street, there is prima facie negligence. Mullen v. St. John, 57 N. Y. 567.

Plaintiff in error also contends, under this assignment, that the court erred in saying to the jury that the plaintiff had a right to assume that the street was reasonably safe; that the law did not require him to examine beyond a reasonable and ordinary use of his senses; and that, even if he did know of the existence of the alleged obstruction of the defendant, including the projecting timbers and suspended stone, he had a right to assume that they were safe, unless warned to the contrary, and unless it was obvious to him, as a casual observer, that they were not safe. There can be no question of the correctness of this instruction applied to the facts of the It is true that a party may not walk deliberately into danger, but, being upon a highway, he is not required to anticipate that any one will obstruct the street in a dangerous manner, unless it is apparent to him, in the usual course of the use of the street, by casual observation, that such obstruction is dangerous.

case.

Again, under this assignment the plaintiff in error contends that the court erred in instructing the jury that in a criminal proceeding a discharge of the accused is conclusive of his innocence of such charge. As applied to the facts in this case, the giving of this instruction was not error. The defendant had offered evidence to the effect that he, as one of the police commissioners, had procured the arrest of the plaintiff some years before that on a charge of being a trespasser upon his premises in violation of the city ordinance; that he was discharged therefrom, it not appearing clearly whether he was tried or not. It was a matter wholly foreign to the issues in the case, could only have tended to prejudice the plaintiff in the minds of the jury, and the court might have gone much further in its instruction to the jury in regard to that evidence than it did.

The third contention is that the court refused to grant the defendant a new trial on account of misconduct of counsel for the plaintiff and misconduct of the jury. There is nothing in the record whatever disclosing that either counsel for the plaintiff or the jury were guilty of any misconduct whatever. The contention is wholly unsupported by the record.

The fourth contention is that the trial court failed to grant the plaintiff a new trial by reason of the several alleged errors herein before noticed, and because it appeared that there were excessive damages given by the jury under the influence of passion and prejudice, and that a remittitur of a part of such damage could not and did not

cure the injury or wrong done to the defendant by reason of such passion and prejudice. It does not appear, either from the record or by a careful consideration of the evidence, that the jury were actuated by any passion or prejudice. There is no expression of the trial court that would tend to show that it was of the opinion that there was any such passion or prejudice, or even that the verdict of the jury was excessive. The record does not even disclose that the motion for a new trial was denied because of the remittitur. There was an effort upon the part of the defendant to have the court say in the record that passion and prejudice did appear, but the court declined so to do, and struck from the record everything indicating such an opinion or belief. Eight hundred dollars would not be an unreasonable verdict under the testimony and findings of fact made by the jury. At least it cannot be said that the mere fact that $800 was awarded by the jury in its verdict was evidence of the existence of passion and prejudice in their minds, under the evidence disclosed by the record.

The judgment is affirmed.

MATHEWS v. ATCHISON, TOPEKA AND SANTA FE RAILWAY COMPANY.

Supreme Court, Kansas, December, 1898.

PASSENGER INJURED ON CONNECTING LINE OF ROAD FROM WHICH HE BOUGHT TICKET AND BRINGING ACTION AGAINST LATTER. - Where one railroad company, owning most of the stock of another railroad company, and being desirous of utilizing it as a connecting line for through business, enters into a through-traffic agreement with it, by the terms of which a division of earnings on such traffic is stipulated for, and matters pertaining to through rates and other like business are intrusted in great part to the management of the first-mentioned company, which upon its part undertakes to guaranty the bonds, and generally to finance the affairs of the last-mentioned company, but the last-mentioned company retains the entire management of its own train service and operating department, employs, controls, and discharges its own employees, and pays the expenses of such department, held, that as to a passenger riding over the line of the last-mentioned company, upon a through ticket sold by the firstmentioned company, containing a clause limiting responsibility for injuries en route to those occurring on the line of such company, damages cannot be recovered from the selling company for injuries received upon the line of the other one, through the negligence of its employees.

(Syllabus by the Court.)

FROM a judgment of Court of Common Pleas, Wyandotte County, in favor of defendant, plaintiff brings error.

T. P. ANDERSON, BEN S. HENDERSON and GEO. W. LITTICK, for plaintiff in error.

A. A. HURD and MILLS, SMITH & HOBBS, for defendant in error. The facts and points decided are stated in the syllabus by the court.

Judgment affirmed.

Opinion by DOSTER, Ch. J.

ATCHISON, TOPEKA AND SANTA FE RAILWAY COMPANY v. CARTER.

Supreme Court, Kansas, December, 1898.

BRAKEMAN THROWN FROM TOP OF FREIGHT CAR BY SUDDEN STOP OF TRAIN. - I. In an action against a railway company to recover damages for wrongfully causing the death of a brakeman by a sudden application of air brakes, causing him to be thrown from the top of a car and killed, it is not reversible error to admit the printed rules of the railway company governing the management of its trains by its employees, even though not strictly applicable to the circumstances of the case, where the measure of care imposed by the rule read in evidence is not greater than that the law imposes under the facts of the case.

2. An engineer in charge of an engine hauling a freight train, when approaching a work train in plain view ahead of him, who approaches so near to the work train, and at such a rate of speed, that it is necessary to make a sudden and violent application of the air brakes with which his train is equipped in order to prevent a collision with it, and who, under the circumstances, so applies the air brakes as to cause his engine to break loose from the train, and the cars to become suddenly stopped, is guilty of negligence, and the company is liable for the death of a brakeman thrown from the top of a freight car by the sudden stoppage of it in such manner. (Syllabus by the Court.)

FROM a judgment of District Court, Lyon County, in favor of plaintiff, defendant brings error.

A. A. HURD, O. J. WOOD, and W. LITTLEFIELD, for plaintiff in

error.

BUCK & SPENCER, L. M. CARTER, and GRAVES & DICKSON, for defendant in error.

The facts and points decided are stated in the syllabus by the

court.

Judgment affirmed.

Opinion by ALLEN, J.