rected the plaintiff to make an "inventory" of the things destroyed, and hand it to him. Pursuant to that direction, a paper, containing a list of the property, with its estimated value, was handed to him, and he was satisfied with it, as evidenced by his declaration that, "It is all right, but I cannot settle with you until I see the company." "The notice of proof required by the policy, or any part thereof, or any requirement with regard thereto, may be waived by the company, even though there be a provision in the policy that no waiver or modification of any of its terms or conditions shall be made in any event; or it may, by its conduct or declarations, which lead the insured to believe that it will not insist upon the enforcement of such requirements, or which prevents him from complying therewith, be estopped to assert them. Thus, where the proofs of loss are delivered to the agent, who asserts that the company is not liable, all objections to the proofs are thereby waived. Likewise questions as to the sufficiency of the proof are waived by the examination of the premises by the company's authorized agent, who investigates the loss, and refuses to pay it. So the company is precluded from denying the receipt of proper notice of the loss where its agent has adjusted it. So, also, if the insurance company makes no specific objection to the form, sufficiency, or absence of notice of proofs of loss, but declines payment upon other grounds. It may be presumed to have waived defects in or the absence of notice of proof. Again, holding the proofs furnished for an unreasonable length of time without objecting to them may amount to a waiver." Phoenix Ins. Co. v. Taylor, 5 Minn. 492 (Gil. 395). "The applicant, unused to the business, and ignorant of what is necessary to be done, trusts to the skill, knowledge, and judgment of the agent, and puts full confidence in and relies upon him to see that the business is correctly done; and, if he acts honestly and in good faith, the company ought to be charged with a knowledge of all the facts that are known to the agent; that it would be unjust to the insured, after he has made the application and paid the premium demanded and the expenses of the policy, to permit the company, upon destruction of the property, to say that they will not make good the loss, because their agent, whom they have authorized to act for them, has failed in the performance of his duty; and that, as the agent knows the requirements of the company and the insured does not, if the application or policy be defective upon a point well known to the agent, the company, and not the insured, should be the sufferers." Campbell v. The Merchants' & Farmers' M. Fire Ins. Co., 37 N. H. 35, 72 Am. Dec. 324. Numberless authorities might be cited to the same effect. And this question of waiver was properly presented to the jury by the charge of the court in all of its different phases. The court did not err in submitting 83 S.W.-5

this question to the jury, and the proof was amply sufficient to sustain the jury's verdict for the plaintiff on this point.

The next and last proposition is that Mrs. Paul should have been allowed to testify. Mrs. Paul was the divorced wife of plaintiff. The proceedings in relation to the court's action in declaring her disqualified as a witness were as follows: "By Mr. Hutchings: If the court please, we offer in evidence the testimony found in transcript of Julia A. Barbee, the divorced wife of the plaintiff in this case, she having been divorced from him a short time after the fire occurred for which this action is brought. By Mr. Davis: The plaintiff objects to the introduction of this evi dence upon the ground and for the reasons that at the time this fire occurred, as shown by the evidence, this witness was the wife of the plaintiff, and that under our statute, which is in force here, that the wife cannot testify in any case for or against her husband. The testimony is incompetent and inadmissible under the statute and under the law upon the subject of a wife testifying in any action for or against her husband without the consent of the husband, and we object to it upon that ground. By the Court: The objection will be sustained. (To which ruling of the court counsel for the defendant at the time duly excepted and excepts.)" After other proceedings, the offer of this witness was renewed by Mr. Wilson, Mr. Hutching's co-counsel, as follows: "By Mr. Wilson: We desire to introduce the testimony of Julia Paul, née Barbee, divorced wife of the plaintiff, being the testimony given by her heretofore at the trial of this case, she being now out of the jurisdiction of this court, as follows: By Mr. Stanfield: The plaintiff objects to the testimony on the ground that the witness Mrs. Paul, née Barbee, is the divorced wife of the plaintiff, and that the testimony related to and concerns communications made by her to plaintiff during the marriage, and that she is an incompetent witness. By the Court: Objection is sustained for the reason that the testimony-to communications made by Mrs. Paul, née Barbee, to her husband, while they were married, and that she is incompetent to testify concerning any communication made to her husband while the marriage relation subsisted. Mr. Wilson: The defendant excepts to the ruling of the court." This is all that the record discloses as having occurred in court in relation to the matter. What the testimony of Mrs. Paul would have been is only disclosed in so far as stated by plaintiff's counsel Mr. Stanfield that "it related to and concerns communications made by her to plaintiff during the marriage." This was not denied by defendant's counsel. And the court's ruling was solely upon that ground. And it was correct. If the witness would have testified to any relevant fact that, notwithstanding the marriage relation, would have been competent, it was the duty of de

1. While a railroad switchman assumes all risks incident to his employment, he does not assume any risk whatever arising out of the railroad's negligence in not keeping its track in a reasonably safe condition.

2. A switchman is not excused from that degree of care and caution which a reasonably prudent person should exercise commensurate to the danger.

3. A railroad switchman, who, instead of getting on a freight car at the end where there was a stirrup and handhold, where he would have been safe, stepped onto the brake beam at the other end of the car, in consequence of which he was thrown to the ground by a jolt, and was injured, was guilty of contributory negligence. Appeal from Circuit Court, Buchanan County; Alonzo D. Burns, Judge.

Action by James R. Montgomery against the Chicago Great Western Railway Company. From a judgment for defendant, plaintiff appeals. Affirmed.

John George Parkinson, for appellant. James C. Davis, for respondent.

BROADDUS, J. Plaintiff sued for damages which he claims he sustained as the result of an injury caused by the negligence of defendant. The evidence disclosed that he was a switchman in defendant's employ at the time of the injury, which occurred in its switchyards at St. Joseph, Mo. On July 21, 1900, at about 10 o'clock at night, an engine to which was attached several freight cars stood on defendant's main track, headed north, ready to be switched south and onto a side track. Plaintiff was stationed at the south end of the train, to which was attached a box car. His duty was to throw the switch so as to enable the train to pass from the main to the side track, and to give the engineer in charge of the engine the signal when the switch was open. He threw the switch, gave the signal, and stepped on the brake beam, and grasped the handhold on the south end of the rear car. After the train had moved backwards some several car lengths, a sudden jar caused plaintiff's foot to slip from the beam to the rail of the track, where it was caught and crushed by the 1. See Master and Servant, vol. 34, Cent. Dig. §

555.

wheels of the car. Amputation became necessary as a result of the injury. Plaintiff was an experienced brakeman. He alone testified as to the facts of the case, stating that at the place where he fell the track had been loose and in bad condition for some time prior to the time in question; that in about eight days thereafter he went to the place where he had fallen, and found that the point of the frog of the rail had broken off; that he had found this point in the dirt and sand, compared it with the end of the rail, and that it fitted to it exactly. He further stated that the blunt point of the rail would jar a car when the wheels passed over it. It was also shown by plaintiff's evidence and a photograph used at the trial that at the north end, but on the side of said car, there was also a handhold and a stirrup for the foot. In answer to a question asked him by defendant's attorney as to why he did not cling to the car at the latter place, he said that he did not have any business there, and that owing to a curve in the track the engineer could not have seen his signals from that point. He finally admitted, however, that the engineer could have seen his signals just as well from one position as from the other. He stated, too, that the positions were equally dangerous, but in the end admitted that had he been on the stirrup at the side at the north end he would not have been injured. And he assigned as an excuse for getting on the rear end of the car the darkness, which would have prevented him from seeing cars on the track behind that he did not want the train to strike. On the day after his injury plaintiff made certain statements in answer to questions put to him, as follows: "Q. Could you, by more care on your part, have prevented the injury? If so, how? A. I don't think I could have avoided the accident only by not getting on the car. Q. Was there any defect in anything belonging to the company? If so, what was it, and how long had the same existed? A. No. Q. Do you attach blame to any one or anything for your injury? If so, to whom or what? Give your reasons. A. I deem the accident unavoidable." Plaintiff introduced one witness besides himself, whose testimony was to the effect that plaintiff was in his proper place when he was injured. The testimony disclosed that the business of a switchman is of a very hazardous nature. The defense was that plaintiff had assumed the risk of his employment, and that negligence on his part had directly contributed to his injury. The court, upon the proof, instructed the jury to find for defendant, and plaintiff appealed.

The defendant contends that the case is within the rule of law that "one fully capable of selecting and contracting for himself, who voluntarily enters into an employment with full notice of its dangers, will be held to have assumed the risks of injury incident to such employment." Holloran v. Iron

Foundry Co., 133 Mo. 470, 35 S. W. 260; Fugler v. Bothe, 117 Mo. 475, 22 S. W. 1113; Marshall v. Hay Press Co., 69 Mo. App. 256; Steinhauser v. Spraul, 127 Mo. 541, 28 S. W. 620, 30 S. W. 102, 27 L. R. A. 441. But the rule is not applicable to the facts of this case, as there was some evidence to the effect that defendant company was guilty of negligence in not keeping its track at the place where plaintiff was injured in a reasonably safe condition, and, notwithstanding the plaintiff assumed all the risk incident to his employment, he did not assume any risk whatever arising out of defendant's negligence. This is so well settled there is no necessity for comment.

Notwithstanding the evidence of negligence on the part of defendant, the question arises whether or not plaintiff was also guilty of negligence that contributed to his injury. While it is true that the risks incident to the duties of a switchman are very great, they do not excuse him from that degree of care and caution which a reasonably prudent person should exercise commensurate to the danger. The evidence shows that switchmen as a rule frequently incur risks which seem almost incredible, but may be accounted for from the well-known fact that constant exposure to danger dulls the sense of caution and engenders recklessness. It seems to have been a theory of plaintiff that this recklessness upon the part of switchmen would relieve him from the imputation of negligence. But the courts cannot approve a custom so fraught with peril as an excuse for want of proper care. Such a rule would impose upon the master, practically, insurance and indemnity of his servant against his own wrongs.

We think plaintiff made out a case against himself. In other words, he proved that his own negligence directly contributed to his injury. He took a position upon the car by placing one foot on the brake beam and with one hand grasping the handhold on the end of the car, from which he was thrown while the car was passing over a frog of the track, the fall resulting in his injury. He placed himself in the most dangerous position on the car that he could have selected as the train was moving backwards, and where he would almost certainly be injured should he happen to fall from his place, as the result demonstrated; and also where he was liable to be injured should the train back upon other cars that were on the track. The physical fact was shown by the photograph, and by plaintiff's testimony, that at the other end of the car, but on its side, there was not only a handhold, but also a stirrup for the foot, which was a safe position, and which, bad be occupied, would have prevented the injury. It was further shown that plaintiff could have signaled the engineer as well from the north end of the car as from the south end. But plaintiff stated that he was at his proper place, from which he could

guard the train from backing upon other cars on the track. This appears to have been a makeshift excuse for his being there, and it must have been so considered by the trial court. Such a pretense ought not to excuse his negligence, because it is a matter of common observation that trains are daily and habitually shoved back against cars standing on switch tracks.

That his injury was the result of his own negligence was conclusively shown. And further, the case seems to be within the following rule: "It is a familiar principle, which common sense as well as the rules of law ought to teach one, that where an employé of a railroad knowingly selects a dangerous way when a safer one is apparent to him, and is thereby injured, he is guilty of contributory negligence." Bailey on Personal Injuries Relating to Master and Servant, vol. 1, § 1121. This rule was approved by the Supreme Court of Missouri in Moore v. Ry. Co., 146 Mo. 572, 48 S. W. 487, where, applying the rule to the facts of the case, it said: "An employé who has a choice of two ways of performing his labor for his master, one of which is perfectly safe, the other subject to risks and dangers, and voluntarily chooses the latter, is guilty of contributory negligence, and cannot recover for the injuries resulting from such choice."

The cause is affirmed. All concur.

RESENTATIONS-MATERIALITY.

1. Under an accident policy making statements in the application a part of the policy and the only basis thereof, and stipulating that such statements are true and strict warranties, but containing an agreement by assured that in the event of his having concealed or misrepresented any facts "found to be essential in considering the risk" the policy shall be void, a misrepresentation does not avoid the policy unless it is essential to the risk.

Appeal from Circuit Court, Morgan County; James E. Hazell, Judge.

Action by Abner W. Offiner against the Brotherhood of American Yeomen. From a judgment for plaintiff, defendant appeals. Affirmed.

D. E. Wray and Wm. Forman, for appellant. John F. Gibbs and Joel D. Hubbard, for respondent.

ELLISON, J. This action is based on an accident benefit insurance policy. The plaintiff prevailed in the trial court.

Plaintiff claimed the loss of one of his eyes by an accident. The sole defense is misrepresentation of matters connected with the condition of his eyes when insured and prior

to that time, which misrepresentations, defendant contends, were warranted to be true. The certificate contained the following provisions in reference to warranties and representations:

"First. That the statements in the application of said member and his answers in the medical examination, a copy of which appears upon the back hereof and which is hereby made a part of this agreement, are true in every particular, and shall be held to be strict warranties, and shall, with the by-laws of this association, form the only basis of this contract and for the liability of the order under this certificate, the same as if fully set forth herein."

"I further agree that in the event of my having concealed, misrepresented or suppressed any facts as to my personal or family history, as to disease or habits or physical condition or my own condition now or in the past, which shall be found to be essential in considering my risk, the certificate to be issued hereon shall be null and void, at the election of the society issuing the same, and in such event I agree to forfeit both such certificate and all payments I shall have made thereon."

Interpreting the entire provision, we conclude, notwithstanding the positive language in the fore part of the foregoing quotation, that a misrepresentation, to be an effectual bar to plaintiff, must be one that was "essential" or material to the risk. We must allow some material and substantial force to the words "which shall be found essential in considering my risk." The plaintiff's case showed that he was a carpenter, and while engaged in his work some foreign substance struck him in the eye, in consequence of which it became necessary to take out his eye. The question of whether the representation made by plaintiff to defendant when he took out his insurance was properly and clearly submitted to the jury, and we will not disturb the finding. In Moulor v. Ins. Co., 111 U. S. 335, 4 Sup. Ct. 466, 28 L. Ed. 447, it was held that when a policy of insurance contains contradictory provisions, or has been so framed as to leave room for construction, rendering it doubtful whether the parties intended the exact truth of the applicant's statements to be a condition precedent to any binding contract, the court should avoid a construction which would put upon the assured the obligation of a warranty.

The judgment should be affirmed. All

concur.

WHITLEY v. CHICAGO, B. & Q. RY. CO. (Kansas City Court of Appeals. Missouri. Nov. 7, 1904.)

MASTER AND SERVANT-INJURY TO SERVANTPROXIMATE CAUSE-EVIDENCE-SUFFICIENCY. 1. In an action against a railroad by one of its car inspectors for personal injuries result

ing from the shunting of a car in on a side track and striking one of two cars between which plaintiff was working, plaintiff testified that the head brakeman of the switching crew, in answer to plaintiff's question, "Are you done switching?" answered, "Yes," but he also testified that he did not know whether the brakeman understood his question, and plaintiff made no pretense that in his query to the brakeman he embraced the information that he desired to go between the cars then standing on the side track to make repairs, or that the brakeman's answer was made with any such knowledge. It also appeared that the visible facts confronting the plaintiff at the time were sufficient to warn him that either the brakeman had misunderstood him or vice versa, and that the switching was not then completed. Held insufficient to show that the switching crew knew or ought to have known when they shunted the car in on the side track that plaintiff was then between the cars, and hence the proximate cause of plaintiff's injuries was his own negligence.

Appeal from Circuit Court, Linn County; John P. Butler, Judge.

Action by R. C. Whitley against the Chicago, Burlington & Quincy Railway Company. From a judgment for plaintiff, defendant appeals. Reversed.

O. M. Spencer, Palmer Trimble, and A. W. Mullins, for appellant. A. A. Bailey and O. F. Libbey, for respondent.

SMITH, P. J. The petition, amongst other things, alleged that on September 26, 1902, while the plaintiff was in the employ of the defendant in the capacity of car inspector and repairer at Laclede Station, on its line in this state, a freight train, consisting of a locomotive and a number of cars, arrived at said station, and then proceeded south to the long west side track south of said station, where it stopped for the purpose of setting out cars; that, after plaintiff had been informed by the brakeman in charge of such train engaged in conducting such work of setting out cars that the train was through setting out cars from his train and placing them on the side track where plaintiff had work to do, plaintiff, believing and relying on such statement of the brakeman on such train that the work of the train crew was through on the track where he was engaged in repairing cars, and that the locomotive and cars attached thereto would not thereafter be backed in on such long side track where he had work to do, after waiting until he (plaintiff) could see the defendant's locomotive and cars attached thereto had passed clear out from the long side track where he had work to do and was on the main track, then proceeded to make necessary repairs upon a connecting link between the lock pin and the lifting bar on drawhead attached to one of the cars stored on the long side track aforesaid, and to make such necessary and needed repairs it became and was necessary for plaintiff to do such work between two cars; that while plaintiff was so engaged in repairing such car on the long side track aforesaid, and while plaintiff was repairing the connecting

coupling between lock pin and the lifting bar on such car, the defendant, by its agents, servants, and employés in charge of the locomotive and cars thereto attached, well knowing that plaintiff was at work between such cars stored on such long track aforesaid, left the main track where they were when plaintiff proceeded to his work, and, after telling plaintiff they were through with their work on such track, carelessly, negligently, and wantonly proceeded to back, or kick, such cars on the main track detached from the locomotive on main track in and through the switch and upon the long side track where they had previously informed plaintiff that they were through working, and carelessly and negligently run such cars back from the 'locomotive, detached, without notifying plaintiff, and without sounding the steam whistle or ringing the bell upon the locomotive, and without giving any signal whatever or warning of any kind of the approach of such cars upon such side track, and carelessly, negligently, and wantonly run such locomotive and cars, detached from said locomotive, backwards at a high rate of speed, without any brakeman, watchman, or other person stationed on the top of such rear car to give signals of the approach of such locomotive and cars, and with great force and violence "kick" the cars being pushed by such locomotive in and upon the side track where plaintiff was repairing defendant's car, and against the car in front of the one plaintiff was repairing, with such force and violence as to run the car that plaintiff was repairing against and upon plaintiff, and, without fault or negligence on plaintiff's part, causing his left hand to be caught, mashed, and the bones broken, his right hip sprained, bruised, lamed, and permanently injured, his ribs broken, back injured, and made sick and sore, from which injuries received as aforesaid it became necessary to amputate the forefinger on plaintiff's left hand, the rest of his fingers on such hand otherwise made stiff and permanently made weak and lame, and plaintiff's spine and ribs so injured that by reason of the wrongful and negligent acts of defendant plaintiff has been injured and damaged, etc. The answer contained a general denial and the plea of contributory negligence. There was a trial resulting in judgment for plaintiff, and defendant appealed.

At the conclusion of all the evidence the defendant interposed a demurrer, which was denied, and this action of the court, it is now insisted, was an error which requires a reversal of the judgment.

Referring to the evidence contained in the record before us, and from that it appears that the plaintiff at the time of the receipt of the injury complained of was a car inspector and repairer in the employ of defendant at Laclede Station, the place of the injury, and that at that station defendant has two side tracks, one on either side of the main line. A freight train numbered 5, in the aft

ernoon of the day of the injury, arrived at said station, where it made a short stop, and then proceeded along the main track to the south end of the side tracks for the purpose of switching and disposing of the cars on it which were 12 in number.

The plaintiff testified that he was dressed in his working clothes, and had in his hands his tools for performing the services required of him at the time of the arrival of the train at the station. When the train stopped he there inspected the east side of the cars, and found several things that needed repairs, amongst them being a lock pin disconnected from the lever. "The chain was a lap ring in place of what we used to call a 'lap pin' that is on a coal car. That was a part of the coupling apparatus by which the back cars were coupled together. It is what they call a janny coupler. When they go together they go like this (indicating). It is to save the brakeman from going in between the cars. There is a sort of bar that runs out to the side of the car. The brakeman can raise that flange and raise the pin without going in between the cars. Yes, it is a part of my duty to do that repairing. The company instructed me to do everything that was possible for me to do in that line. There was other work to be done on those cars before they were set back on the main line and they switched these cars in. I rode down on the train, and the caboose was cut off up at the upper end of the long track, and I inspected the east side of the cars that were brought in on No. 5, and when they got over the crossing I got on the train and rode down to the lower end of the yard, and the trainmen went to switching the cars to get them in place where they should be. The caboose was left at the upper end of the west long track. That was south of the Hannibal & St. Joe crossing. The balance of the train went on south about a quarter of a mile, down to the lower end of the switching yard. I got on the train and rode down to the place where they were proposing to do the switching. The enginemen and the brakemen went down, and myself. I think the conductor was on the caboose. He did not go down to the lower end of the yard where the switching was being done. I think there was 12 cars in the train. In my examination of the flanges and wheels I did not go between the cars. I discovered up at the depot that there was something the matter with the connection between the pin and the link. I had a monkey wrench and hammer with me. I merely know the brakemen when I see them. I do not know their names. There was quite a little switching done there. The cars were on the west end of the long track where I got hurt. I think they set in four. Mr. Summers had charge of the locomotive as engineer, under the direction of the brakeman. The brakeman gave him the signal, and he did whatever the brakeman ordered him to do. They sometimes both give sig