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the part of the defendant, or that there was contributory negligence on the part of the plaintiff.

2. It is error to admit the deposition of a witness who resides outside of the county where the trial is had, but who is present at the court, ready and willing to testify in the case; but where such witness is afterwards called by the party against whom the deposition has been used, and testifies to the same facts, without substantial variation, the error is rendered immaterial.

3. In an action to recover damages for injuries resulting in death, where it is claimed on the part of the defendant that the injuries resulted from the negligence of the injured person himself, and where such negligence, if any, is clearly proximate, and directly contributory to the injury, it is error to charge the jury that, if the negligence of the deceased was the remote cause of the injury, the plaintiff might still recover. Railroad Co. v. Plunkett, 25 Kan. 188, followed.

(Syllabus by the Court.)

Error from district court, Ness county; V. H. Grinstead, Judge.

Action by C. T. Prouty, administrator of Frank M. Dole, deceased, against the Chicago, Kansas & Western Railroad Company. Judgment for plaintiff, and defendant brings error. Reversed.

A. A. Hurd and William Osmond, for plaintiff in error. S. I. Hale, for defendant in er

ror.

ALLEN, J. This action was brought by the administrator of the estate of Frank M. Dole, deceased, to recover $10,000 as damages for causing the death of said Dole by the negligence, as it is claimed, of the railroad company. There were but two eyewitnesses who testified with reference to what occurred at the time Dole was killed. It appears that he was riding in a spring wagon, drawn by a team of horses, going from his home to Beeler. The road on which Dole was traveling was on the south side of the railroad, running nearly parallel with it for some distance, then turning and crossing to the other side of the track. An east-bound mixed freight and passenger train approached, running at the rate of about 30 miles an hour, as he neared the crossing. The whistle was sounded at the whistling post, which was distant about a thousand feet from the crossing, but appears not to have attracted Dole's attention. When the engine was in the neighborhood of 700 feet from Dole, the engineer saw him, and sounded the whistle again. The team thereupon became excited, and started to run. The engineer testifies that at the time he first saw Dole he was sitting with his head thrown forward, and he thought the lines must have been resting on his knees. When the horses started he tried to control them, but was unable to do so. The testimony of the engineer was to the effect that he appeared to be holding his lines too slack. It is clear from all the testimony that Dole tried to control his team, but was unable to do so, and it ran forward, turned, and crossed the track. The engine struck between the horses and the wagon, throwing the horses to the north and

the wagon and Dole to the south, causing the death soon afterwards both of Dole and the horses. The only testimony as to what was done by the engineer towards stopping his train prior to the accident is that of the engineer himself. He testified that he shut off the steam, and applied the air brakes, as soon as he determined that the team was going to cross the track; that he came to this conclusion when it turned towards the track, and that he did all he could after that to avoid the injury. The road along which the deceased was traveling was unfenced, and the ground on the south side of the road was smooth, and offered no obstruction to the passage of a team at any point in the opposite direction from the railroad. The jury rendered a verdict in favor of the plaintiff for $10,000. In answer to a special question they find that the negligence of the engineer consisted in not using the appliances for stopping the train in time. The plaintiff in error strenuously insists that under the testimony there is an utter failure of proof of negligence; that the engineer had a right to rely on the ability of Dole to keep his team away from the track. it appearing conclusively that there was no obstacle preventing him from turning his team away from the railroad onto the prairie. and that he had a perfect right to proceed without stopping until something indicated that it was likely to cross the track; that as soon as he had any reason to believe that it would cross the track he in fact did everything he could to prevent the accident, and is, therefore, not chargeable with any negligence whatever. It is also contended that Dole was himself negligent; that he knew the time when the train would be due; was familiar with the road; that he could have seen the train approaching for nearly a mile. yet does not appear to have kept any lookout; and that he did not keep watch of his team. and such hold of the reins, as a prudent man would when about to cross a railroad track at the time a train was due. The defendant in error contends, however, that the evidence fails to show culpable negligence on Dole's part, and that it was the duty of the engineer. as soon as he saw that Dole's team was unmaneageable, to have at once applied the brakes, and slackened, at least, the speed of the train; that, if he had done so, and retarded its progress, even to a very slight degree, the team and man would have passed in safety; that the movements of a frightened team cannot be foretold, and that the engineer could and ought to have applied the brakes, and, if necessary, reversed the engine, before it became certain that the team was about to cross the track. The time intervening between the starting of the team to run and the accident was so very brief that there was no time for deliberation by any one, yet in the management of a train of cars, running at a high rate of speed, promptness of decision and rapidity in using the proper appliances to avoid danger and prevent accident are neces

sarily exacted of an engineer. Whether he ought to have applied the brakes as soon as he saw that the team was unmanageable, or might properly wait until it was evident that it was about to cross the track, is a question as to which differences of opinion may perhaps be entertained. If so, the question should be submitted to the jury. Though the question appears to us not wholly free from doubt, we are unable to say, as a matter of law, that the engineer was free from fault; nor can we say, as a matter of law, that negligence on the part of the deceased is established. That question also was one proper for the consideration of the jury.

Error is alleged in the admission of the deposition of the engineer, George T. Craig, because it appears that Craig was in the county at the time of the trial, and had already been sworn as a witness on behalf of the defendant, and excluded from the courtroom during the examination of the other witnesses by order of the court. These facts were shown before the deposition was read, but the objection was overruled on the ground that the witness was a nonresident of the county. In this the court erred. Fullenwider v. Ewing, 30 Kan. 22, 1 Pac. 300. The cases of Waite v. Teeters, 36 Kan. 604, 14 Pac. 146, and Eby v. Winters, 51 Kan. 777, 33 Pac. 471, differ from this in the important particular that it did not appear in those cases that the attendance of the witnesses could be procured at the time the deposition was offered, while in this he was actually in attendance, had been sworn, and afterwards testified. The witness, however, was called by the defendant, and testified orally, and more at length than by the deposition. There is little, if any, conflict between the deposition and the oral testimony, and on the whole Craig's testimony on the witness stand is rather more favorable to the plaintiff, because more full and explicit than his deposition. This renders the error in the admission of the deposition immaterial, and especially so in view of the fact that the oral testimony was given at the instance of the defendant, and the repetition of his statements resulted from placing him on the witness stand.

The seventeenth instruction given by the court, and excepted to by the defendant, reads as follows: "If the negligence of the deceased, Frank M. Dole, was only slight, or the remote cause of the injury, the plaintiff might still recover, notwithstanding such slight or remote cause; and such slight negligence would not defeat plaintiff's right to recover in this case, although the same contributed to the death of the said Frank Dole." This instruction is erroneous. If Dole was negli-. gent, it is perfectly clear that his negligence contributed directly and proximately to the injury. Under the findings of the jury the -charge of negligence, either on the part of the engineer or of Dole, must be confined to a very brief period of time immediately preceding the accident. On the part of the engineer,

according to his testimony, it was only about 20 seconds from the time he first saw the deceased till the accident happened. On the part of Dole, his negligence, if any, consisted in failing to discover the train earlier than he did, or in failing to have a firm hold of the lines, or take other necessary precautions as he approached the crossing. There is no testimony indicating that he did not do his best to control the team after it became frightened. If there was negligence on his part, it was not quite as near in point of time, but was sufficiently proximate, and as directly contribu tory to the accident, as that of the engineer, if he was negligent. In a case of so much doubt and nicety as this under the testimony, the error in giving this instruction cannot be overlooked nor disregarded. A verdict has been rendered for the full limit of a recovery on account of death caused by the wrongful act of another. The jury ought to have considered the conduct of the deceased with the same degree of care that they did that of the engineer, and, if they determined that he failed to use ordinary care in the particulars mentioned, they should have rendered a verdict for the defendant. The error in giving this instruction is emphasized by the eighth, ninth, tenth, and eleventh special findings, in which the jury say that Dole knew the time of the passage of the train; that it was visible to a man on a wagon near the road crossing for at least a mile west of the crossing; and that, if he had taken the necessary precaution, he could have ascertained that there was a train approaching prior to the time his team took fright. In the case of Railroad Co. v. Plunkett, 25 Kan. 188, it was held that "it is misleading and erroneous for the court to instruct the jury that negligence remotely contributing to the injury is not material, when in fact, if there was any negligence at all, it was clearly direct and proximate, and not remote nor far removed from the injury."

Complaint is also made of the repetition at three different places in the charge of the court of the statement that "it is negligence in itself for a railroad company to fall to sound the whistle of its engine three times, at least eighty rods before crossing the public highway." By this repetition undue prominence was given to this matter, but it does not seem to have influenced the jury, as they based their verdict on other grounds. We deem it unnecessary to discuss the question as to the measure of damages, as the matter must again be submitted to another jury because of the erroneous instruction. The judgment is reversed, and a new trial ordered. All the justices concur.

(55 Kan. 559)

NORTON v. WOOD. (Supreme Court of Kansas. July 6, 1895.) APPEAL FROM JOINT JUDGMENT-PARTIES. The absence of a party to a joint judg ment who will necessarily be affected by a rever

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MARTIN, C. J. The original suit was brought July 7, 1890, by said James B. Wood against said John Norton and William Muff and Henry Muff, to recover judgment upon a promissory note executed by said William Muff in favor of said Wood, and to foreclose a mortgage on real estate given to secure the same. It was alleged in the petition that, after the execution of the note and mortgage, William Muff conveyed the land to Norton and Henry Muff, "who, as a part of the consideration thereof, agreed to pay the amount due" Wood. Personal service was made on Norton and William Muff, but Henry Muff was not served. Norton and William Muff made default. On October 1, 1890, at September term, Wood obtained a personal judgment by default against William Muff and Norton for $2,398.95, bearing interest at 12 per cent. per annum, and costs of suit; and a decree of foreclosure of said mortgage was entered, it being found by the court that the land was then owned by Norton, "who, as part of the purchase price thereof, assumed and agreed to pay the said sum found due to the plaintiff.” In March, 1891, Norton ap'peared in court by counsel, and filed his motion for the vacation of said personal judgment as to him, on the ground that, although he had taken the title to the land subject to the mortgage, he had never assumed or agreed to pay the indebtedness, and that the allegation to that effect in the petition was untrue, but he knew nothing of the same, not suspecting that any false averment would be made for the purpose of fastening a personal liability upon him. The motion was overruled by the court, Norton excepting; and he has presented his petition in error to this court for review against Wood alone. A motion is now interposed by Wood to dismiss the case, because William Muff is not made a party.

The judgment against Norton and William Muff is joint. If, after the sale of the mortgaged property, a balance should remain unpaid, a general execution might be taken out against both for the collection of the residue. If collected from William Muff, he would have a valid claim against Norton for contribution. If we were to reverse the personal judgment, and Norton should be relieved from it, the whole weight of the residue would be cast upon William Muff. We cannot so shift the burden upon the latter in

his absence. a change of responsibility by order of this court is that he be brought into it as a party in due time. This is familiar law here. Paving Co. v. Botsford, 50 Kan. 331, 332, 31 Pac. 1106, and cases cited; Steele v. Baum, 51 Kan. 165, 32 Pac. 918; Central Kansas Loan & Investment Co. v. Chicago Lumber Co., 53 Kan. 677, 37 Pac. 132. If the case were here on its merits, the result might not be more favorable to Norton. He was guilty of gross negligence in permitting judgment to be taken by default, without even knowing the nature of the claim made by Wood. He employed a lawyer at the second term after his case had been disposed of. This was very late. But the petition in error must be dismissed for want of a necessary party. the justices concurring.

A condition precedent to such

All

(55 Kan. 545)

BURNHAM et al. v. CITIZENS' BANK OF EMPORIA.

(Supreme Court of Kansas. July 6, 1895.) CHATTEL MORTGAGES PRIORITIES RECITALS IN MORTGAGE-CONSTRUCTION.

1. The recording of a chattel mortgage does not impart constructive notice to prior mortgagees.

2. Where personal property which has been mortgaged by the owner to a creditor by an instrument valid as between the parties, but which, if properly attacked, might be avoided by other creditors or bona fide purchasers, is subsequently mortgaged to another creditor by an instrument in which the validity of the first mortgage is recognized, and such second mortgage is, in terms, subject thereto, the second mortgagee is estopped from questioning the validity of the prior mortgage.

3. The general rule in equity is that a creditor who is secured by a mortgage or mortgages on several pieces of property, who has actual notice of a junior mortgage on only a portion of the property, is bound to exhaust all his security for the satisfaction of his debt; and, if he releases any part of his security, or pays to the mortgagor the proceeds derived from a sale of any portion thereof after actual notice of the rights of the junior lienholder, he does so at his peril, and must account to the junior lienholder for any surplus realized, or which ought to have been realized, from all of his securities. This rule is subject to qualifications and exceptions, and is not to be applied in such manner as to impose risks or burdens on the senior lienholder which he has not assumed.

4. C., the owner of a stock of merchandise, mortgaged it to a bank to secure his indebtedness to it, with power to sell, and delivered possession of the property to the bank, reserving in the mortgage one-half the proceeds of sales to be made during the month of December. Afterwards he executed a second mortgage to the plaintiffs, with the following provision: "It is hereby represented, and this mortgage accepted on faith of said representation, that there are no claims or liens of any kind on the above property, but this mortgage is a first lien, except a claim in the nature of a chattel mortgage held by the Citizens' Bank of Emporia, Kansas, and subject thereto." Held: (1) That such recital recognizes the validity of the mortgage to the bank, and estops the plaintiffs from attacking it; (2) that the plaintiffs, by virtue of the second mortgage, acquired the right reserved by C. to one-half the proceeds of the December sales.

Martin, C. J., dissenting from the last clause of the fourth point of syllabus. (Syllabus by the Court.)

Error from district court, Lyon county; C. B. Graves, Judge.

Action by Burnham, Hanna, Munger & Co. against the Citizens' Bank of Emporia and others. From a judgment for defendant bank, plaintiffs and the other defendants bring error. Reversed in part.

(2)

Burnham, Hanna, Munger & Co. brought suit against the Citizens' Bank of Emporia, Thomas Campbell, and others, to obtain an accounting for the proceeds of certain property which had been disposed of by the bank under chattel mortgages from Thomas Campbell, the plaintiffs claiming a lien under a mortgage executed by Campbell to them. Kellogg & Sedgwick, Cohn, Wampold & Co., and Bohn Bros. & Co. were also made defendants. The case was sent to a referee to take the testimony, and report on certain questions of fact. On the coming in of the report of the referee the court made findings of fact, as follows: "(1) Prior to November 29, 1887, the defendant Thomas Campbell was the owner of a stock of goods and fixtures worth several thousand dollars. At that date he was insolvent. On November 29, 1887, he was indebted to the defendant the Citizens' Bank in the sum of $5,698.18. To secure the payment of this debt he gave a chattel mortgage to said bank on his entire stock of goods and fixtures, and delivered the same to said bank. The bank immediately placed its agent, G. L. Brooks, who was a witness before the referee herein, in the actual possession of said stock of goods and fixtures, who remained in possession thereof from the said 29th day of November, 1887, until Decembe 18, 1888, engaged in selling the same at retail. By the conditions of said mortgage the bank was authorized to sell said goods either at public or private sale, as by it might be deemed most advantageous, and, if sold at retail, it was authorized to use the proceeds, from time to time, as might be necessary to purchase staples with which to replenish the stock so as to facilitate the sale of the other goods. It was also stipulated in said mortgage that said Campbell should receive one-half of the proceeds of the first months' sales, to be used in the payment of other of his debts. A copy of said mortgage is attached to the petition herein as Exhibit B, and is made a part hereof. Said mortgage was filed for record on December 2, 1887. (3) On December 1, 1887, and while the defendant's said agent was in the possession of said store, the said Campbell gave a mortgage on the same stock of goods, not including the fixtures, to the plaintiffs to secure the sum of $888.93, which mortgage was filed for record December 3, 1887. A copy of said mortgage is attached to the petition herein as Exhibit A, and is made a part hereof. (4) On January 9, 1888, said v.40P.no.13-58

Campbell gave a mortgage on said stock of goods, not including the fixtures, to the defendants Kellogg & Sedgwick, in trust to secure the debts due from the said Campbell to the defendants Cohn, Wampold & Co. and Bohn Bros. & Co., aggregating the sum of $1,933.46. Said mortgage was filed for record on the same day it was given. A copy of said mortgage is attached to the said defendants' answer herein as Exhibit A, and is made a part hereof. (5) On January 20, 1888, said Campbell gave another mortgage to the defendant the Citizens' Bank on all of the notes and accounts then owned by him which were due and uncollected. Said mortgage was by its terms given to secure the sum of $1,700, and any and all indebtedness then existing between said Campbell and said bank, or that might thereafter arise between them. Said mort. gage was filed for record on the same day it was given. A copy thereof is attached to the petition herein as Exhibit D, and is made a part hereof. (6) The bank received as the proceeds of the property covered by its two mortgages aforesaid the aggregate sum of $9,373.13. It received as the proceeds of the property covered by its first mortgage the aggregate sum of $6,332.26. Of this amount it paid for staple goods put in the stock and for expenses in running the business the aggregate sum of $3,357.43. It received from all other sources the total sum of $3,040.87. in which amount is included cash which had been collected by it on notes and accounts after the date of the first mortgage; and before the date of the last one, which aggregates the sum of $1,092.39, which amount is included in the total of $9,373.13, set out in finding 6. The bank also paid out the following additional amounts for goods purchased by Campbell before November 29, 1887: $850.94 for taxes and interest; for Campbell the sum of $159.24; cash paid to Campbell, the sum of $989.57; total, $1,999.75. The total amount of sales made during the month of December, 1887, was $1,448.06. (7) The bank had no actual knowledge of the mortgage given to the plaintiffs until after the cash payments of $989.57 to Campbell had been made. But the agent of the bank, Brooks, was present when the mortgage was executed, and was a witness thereto, and knew the contents thereof. (8) When this case was ready for trial, the parties, by consent, had six specific questions of fact sent to a referee, who heard the evidence, and found conclusions thereon, which evidence and conclusions of fact were returned into court, and, no objections or exceptions being made to either, the case was submitted to the court upon said findings and evidence, all of which are referred to and made a part hereof. (9) The plaintiffs and the defendants are each entitled to a personal judgment against the defendant Campbell as prayed for." As a conclusion of law the court found that the bank was

entitled to judgment for costs against the plaintiffs and their codefendants.

L. B. Kellogg and T. N. Sedgwick, for plaintiffs in error. E. W. Cunningham, for defendants in error.

ALLEN, J. (after stating the facts). It is contended that the provision in the mortgage from Campbell to the bank, allowing him to check out half the proceeds of the December sales, renders the whole mortgage void. We shall assume that, if attacked by a creditor who had done nothing to estop him, it would be void. The plaintiffs, however, claim under a mortgage which contains the following provision: "It is hereby represented, and this mortgage accepted on faith of said representation, that there are no claims or liens of any kind on the above property, but this mortgage is a first lien, except a claim in the nature of a chattel mortgage, held by the Citizens' Bank of Emporia, Kansas, and subject thereto." The plaintiffs, by accepting a mortgage containing this clause, recognized the validity of the mortgage to the bank, and are estopped from now questioning it. Jones, Mortg. § 744.

It is contended by the plaintiffs, however, that they must recover, even if the validity of the plaintiffs' mortgage is conceded, because it appears from the findings of the court that the bank realized from the securities it held more than enough to pay all of Campbell's indebtedness to it, and actually paid over to him $1.999.75, out of which the plaintiffs' claim should of right have been paid. The mortgage to the bank being a prior lien, it was not bound to account to the plaintiffs for any surplus realized from a sale of the mortgaged property without express notice of the plaintiffs' rights. The recording of plaintiffs' mortgage subsequent to that of the bank did not, under the authorities, impart constructive notice to the prior mortgagee. 1 Jones, Mortg. § 562; McLean v. Bank, 4 McLean, 430, Fed. Cas. No. 8.889; Meacham v. Steele, 93 Ill. 135; Dewey v. Ingersoll, 42 Mich. 17, 4 N. W. 179. The findings of the court as to actual notice we think not in accordance with the evidence. The case comes to us just as it did to the trial court, on written evidence reported by the referee. Brooks, the agent of the bank, in charge of the stock of goods, testified that he knew of the mortgage to Burnham, Hanna, Munger & Co. at the time it was given; that he informed his principal that Campbell had given another mortgage on the stock of goods right away by writing; that he knew of the terms and conditions contained in the mortgage. D. W. Eastman, the cashier of the bank, testified: "Q. When did you first learn of the mortgage to Burnham, Hanna, Munger & Company? A. I do not know. Some time after it was given. Q. How long, would you say, after it was given? A. I don't think we knew of it until

one time Mr. Brooks come up here, some time after it was given." This witness also testified that he had made search, and failed to find any letter informing them of the plaintiffs' mortgage. This testimony, we think, fairly shows that the bank had actual notice of the plaintiffs" mortgage while it still held securities sufficient to satisfy both its own claims mentioned in the findings of the court and that of the plaintiff. The indebtedness due the bank was secured, not only by mortgage on the stock of goods, prior to the plaintiffs' mortgage, but also by a mortgage on the fixtures, notes, and accounts, which were not covered by the plaintiffs' mortgage. The general rule enforced in equity is that, where one creditor is secured by mortgage on several pieces of property, while another creditor is secured by a junior mortgage on only a part of the property, the prior creditor, when chargeable with actual notice of the rights of the junior creditor, is bound to exhaust his security on the property not covered by the junior lien, and that he must account to the junior lienholder if he releases his security on, or pays over to the mortgagor the proceeds of, the property not covered by the lien of the junior mortgagee after actual notice of the junior lien. 2 Jones, Mortg. § 1268 et seq.; 2 Ping. Mortg. § 1929; McLean v. Bank, supra. Judging from the findings of the trial court alone, we should infer that the indebtedness of Campbell to the bank had been satisfied, and that a surplus remained of $1,999.75, which was paid over to Campbell, but in the evidence of Eastman we find a statement that Campbell was still indebted to the bank on account of debts of himself or of the firm of Campbell & Johnson, or Campbell & Bros., between $1,500 and $1,600. Whether these claims were otherwise secured does not appear. It would seem quite remarkable that the bank should pay over a portion of the proceeds of the mortgaged property to Campbell while a portion of its claim still remained unpaid. But if the indebtedness to the bank secured by its mortgages were sufficient to exhaust the entire proceeds of the mortgaged property the plaintiffs could not complain of its doing so. The trial court held, not only that the provision in the mortgage for the payment to Campbell, the mortgagor, of one half of the proceeds of the December sales did not render the mortgage void, but that the acceptance by the plaintiffs of a mortgage recognizing the validity of the mortgage to the bank recognized as well the provision for this payment to the mortgagor. The mortgage to the plaintiffs in terms conveys to them all the interest Campbell had in the goods. It represents "that there are no claims or liens of any kind on the above property, but this mortgage is a first lien, except a claim in the nature of a chattel mortgage, held by the Citizens' Bank of Emporia." Can it be said that Campbell still reserved an interest in the goods, altogether indefinite in

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