time the contract is made. It is well settled that an agreement to charge, or to assign, or to give security upon, or to have property not yet in existence, or in the ownership of the party making the contract, or property to be acquired by him in the future, entire line of road and its equipment; that the railway company received and retained said sums of money under the terms of said bond contracts, and used the same in building extensions to Kiefer and other points; and that it failed and refused to issue the bonds or execute a mortgage as theretofore | although, with the exception of one particuundertaken. It is a familiar rule, supported by many authorities, that an agreement to give a mortgage or security on certain property, not objectionable for want of consideration, is treated in equity as a mortgage, upon the principle that equity will treat as done that which by agreement is to be done. 1 Jones on Mortgages (6th Ed.) §§ 162, 163. The rule is stated in Pomeroy's Equity Jurisprudence, at section 1235, as follows: "The doctrine may be stated in its most general form that every express executory agreement in writing, whereby the contracting party sufficiently indicates an intention to make some particular property, real or personal, or fund, therein described or identified, a security for a debt or other obligation, or whereby the party promised to convey or assign or transfer the property as security, creates an equitable lien upon the property so indicated, which is enforceable against the property, in the hands not only of the original contractor, but of his heirs and administrators, executors, voluntary assignees, and purchasers or encumbrancers with notice." Among the many authorities sustaining, and some of which cite the text, are the following: White Water Valley Canal Co. v. Vallette, 21 How. (62 U. S.) 414, 16 L. Ed. 154; Ketchum v. City of St. Louis, 101 U. S. 316, 25 L. Ed. 999; Hauselt v. Harrison, 105 U. S. 401, 26 L. Ed. 1075; Walker v. Brown, 165 U. S. 654, 17 Sup. Ct. 453, 41 L. Ed. 865, and note; Edwards v. Scruggs, 155 Ala. 568, 46 South. 850; Perry v. Board of Missions, 102 N. Y. 99, 6 N. E. 116; Hutzler Bros. v. Phillips, 26 S. C. 136, 1 S. E. 502, 4 Am. St. Rep. 687, and note; Richardson v. Hamlett, 33 Ark. 237; Martin v. Nixon, 92 Mo. 26, 4 S. W. 503; Foster Lbr. Co. v. Harlan County Bank, 71 Kan. 158, 80 Pac. 49, 114 Am. St. Rep. 470, 6 Ann. Cas. 44; Racouillat V. Sansevain, 32 Cal. 376, 389; Atkinson et al., v. Miller, 34 W. Va. 115, 11 S. E. 1007, 9 L. R. A. 544. The well-known maxim, that equity looks on that as done which ought to be done, has long since established the principle, that an agreement in writing to give a mortgage, where supported by a sufficient consideration, will create a mortgage in equity, or a specific lien on the property intended to be mortgaged. As said in section 163, Jones on Mortgages: "The meaning of the maxim, that equity looks upon things agreed to be done as actually performed, is that equity will treat the matter, as to collateral consequences and incidents, in the same manner as if the final acts contemplated by the parties had been executed exactly as they ought to have been done." The doctrine is carried still further, and applied to property not yet in being at the lar species of things, it creates no legal estate or interest in the things when they afterwards come into existence, or are acquired by the promisor, does constitute an equitable lien upon the property so existing or acquired at a subsequent time, which is enforced in the same manner and against the same parties as a lien upon specific things existing and owned by the contracting party at the date of the contract. Pomeroy's Equity Jurisprudence, § 1236. Not only does the petition allege facts entitling plaintiff in error to an equitable lien against the property of the railway company, but it further charges that at the time of the execution of said bond contracts, and the advancement of said sums of money by the holders thereof to said railway company, said St. Louis Union Trust Company and said Fidelity Trust Company each had full knowledge of their execution, the fact of the advancement of money thereunder by the holders thereof, the terms and provisions of said contract, and of the facts and circumstances which said money so advanced was to be relating thereto, as well as the purpose for used, and that it counseled and advised said and procure said sums thereunder. For the railway company to execute said contract the petition must, of course, be taken as purposes of the demurrer the allegations of true. [9] No objection being made to the fact that the demurrers were oral and not in Writing, as contemplated by the statute, they The plaintiff in error's intervening petition will be treated as general demurrers only. stating a cause of action entitling it to an equitable lien, it was error for the trial court to sustain the demurrers, whether, in fact, the petitioner was entitled to all of the relief sought; for it has been repeatedly held by this court that a general demurrer addressed to the whole of a pleading should be overruled, if the pleading demurred to states facts entitling the party pleading to any of the relief claimed. Cockrell Schmitt, 20 Okl. 207, 94 Pac. 521, 129 Am. St. Rep. 739; Beaver v. Oklahoma State Loan Co., 30 Okl. 585, 120 Pac. 943; Hailey et al. v. Bowman, 41 Okl. 294, 137 Pac. 722; C. E. Sharp Lbr. Co. v. Kansas Ice Co., 142 Pac. 1016. Whether, under the allegations of the intervening petition, plaintiff in error was entitled to a first and paramount lien on all of the property of the railway company, or on all of the additions or extensions, or equipment thereof, made or acquired subsequent to the execution of the deed of trust to the Fidelity Trust Company, are questions V. the wagon until he struck it was immaterial, Cent. Dig. 88 1124-1137; Dec. Dig. 347; 3. NEGLIGENCE 119-PLEADING-PROOF. Where the petition avers specific acts of negligence, evidence tending to prove other acts of negligence not embraced in the acts charged is not admissible. [Ed. Note.-For other cases, see Negligence, Cent. Dig. §§ 200-216; Dec. Dig. 119.] unnecessary to be here considered. Besides, the petition in error of the plaintiff only asks that we order and direct that the demurrers be ordered overruled. Whether in fact the United States Fidelity & Guaranty Company has a first lien upon the property of the railway company, there being other creditors of said railway company asserting like or similar claims, is a question that can only be settled upon a hearing between all of the parties in the trial court. Badgerow v. Manhattan Trust Co. (C. C.) 64 Fed. 931.4. RAILROADS 351-CROSSING ACCIDENTAnd while, from the petition, it appears that plaintiff in error has an equitable lien upon the railway property, yet whether such is the case may, and probably will, involve a trial of the facts, not only as between the plaintiff in error, the trustee, and the holder of the bonds, the St. Louis Union Trust Company, but other lien claimants as well. The question of what creditors have or are entitled to liens, or the extent and nature thereof, and the relative rights of the different lien claimants, is for the trial court to hear and determine upon a remand of the case. DUTY TO GIVE WARNING-INSTRUCTIONS. Where the evidence was that the street crossing at which the accident occurred is 250 to 300 yards from the depot from which the train inflicting the injury started, it is error to instruct that, if the jury find that the defendant failed and neglected to sound the whistle or ring the bell at least 80 rods from such street crossing, and that by reason of such failure and neglect plaintiff was not warned of the approach of such train, and did not know of the approach of such train in time to get out of its way, and the wagon in which she was riding was struck by the locomotive of such train, and she was injured, they must find for plaintiff, unless they find that plaintiff was guilty of contributory negligence. [Ed. Note. For other cases, see Railroads, Cent. Dig. §§ 1193-1211, 1213-1215; Dec. Dig. 5. APPEAL AND ERROR ERROR INSTRUCTIONS AGES. For the reason stated, the judgment should be reversed and remanded, with in-351.] structions to the lower court to vacate and set aside the purported journal entry of October 31, 1913, and to overrule the respective demurrers of the defendants in error, Fidelity Trust Company, General Electric Company, and State of Oklahoma ex rel. J. D. Lankford, Bank Commissioner. All the Justices concur. (52 Okl. 557) MISSOURI, O. & G. RY. CO. v. ADAMS. (No. 4864.) (Supreme Court of Oklahoma. Nov. 23, 1915.) (Syllabus by the Court.) 1. EVIDENCE 123-RES GESTAÆ. In an action for damages arising from a collision between a railway locomotive and a wagon, in which the occupants of the wagon were injured, a statement by the engineer of the train, in response to a question by the conductor, made after the accident had occurred and the train had stopped and the engineer and conductor had alighted therefrom, held not admissible as part of the res gestæ. [Ed. Note. For other cases, see Evidence, Cent. Dig. §§ 351-368; Dec. Dig. 123.] 2. RAILROADS 347-WITNESSES 383IMPEACHMENT MATERIAL TESTIMONY CROSSING ACCIDENT. In an action to recover damages for injuries resulting from a railroad crossing accident, the petition alleged that the railroad company was negligent, in that it ran its locomotive and train up to and across the street crossing at a high and dangerous rate of speed, and in that it failed and neglected to give warning of the approach of such locomotive and train to such street crossing by sounding the whistle or ringing the bell. Held, that evidence of a statement made by the engineer of such train, in response to a question by the conductor after the accident, that he was looking back and did not see 1008- HARMLESS · MEASURE OF DAM considered and held not to be reversible error. Instruction as to the measure of damages Midland Valley Ry. Co. v. Hilliard, 148 Pac. 1001, followed. [Ed. Note.-For other cases, see Appeal and Error, Cent. Dig. §§ 4225–4228, 4230; Dec. Dig. 1068.] Commissioners' Opinion, Division No. 1. Error from District Court, Muskogee County; R. P. De Graffenreid, Judge. Action by Luvate Adams against the Missouri, Oklahoma & Gulf Railway Company. Judgment for plaintiff, and defendant brings error. Reversed and remanded. The defendant in error, hereinafter styled the plaintiff, commenced this action in the district court of Muskogee county against the plaintiff in error, hereinafter styled the defendant, alleging that on June 9, 1912, the plaintiff, while traveling in a wagon along Lake street, in the city of Muskogee, a public highway of said city, crossed the railroad of defendant upon such highway, and as plaintiff had reached said crossing defendant carelessly and negligently ran one of its locomotives, with a train of cars attached, into, up to, and upon said highway at a high and dangerous rate of speed, and negligently and carelessly omitted, while so approaching said crossing, to give any signal by ringing the bell or sounding the steam whistle, or otherwise, by reason whereof plaintiff was unaware of the approach of said locomotive and train; that by reason of defendant's negligence, and without any fault or negligence on the part of plaintiff, the said locomotive struck the wagon in which plaintiff was riding and threw plaintiff out onto the ground and injured her, damaging plaintiff by reason of her pain and suffering and by reason of permanent injuries in the sum of $10,000. The defendant answered the petition of the plaintiff, denying generally the allegations of the plaintiff, and further pleading that, if plaintiff suffered any injury, such injury was due to and caused by the contributory negligence of the plaintiff. The evidence of plaintiff and defendant is in direct conflict upon the question as to whether or not the defendant's employés sounded the whistle or rang the bell or gave any other warning of the approach of defendant's train to the crossing upon which the accident occurred. There is also some conflict in the testimony upon the question of the contributory negligence of plaintiff. Upon these issues and the evidence the jury returned a verdict against the defendant in the sum of $540. The defendant in due time filed its motion for new trial, which being overruled, judgment was entered for plaintiff for the amount found by the jury. To reverse this judgment, defendant prosecutes this appeal. . R. Jones and J. C. Wilhoit, both of Muskogee (Arthur Miller, of Kansas City, Mo., of counsel), for plaintiff in error. Owen & Stone and Sumner J. Lipscomb, all of Muskogee, for defendant in error. RUMMONS, C. (after stating the facts as above). [1] There was sufficient evidence before the jury to sustain the verdict, unless the assignments of error raised by the defendant as to the admission of evidence and as to the instructions of the court are well taken. The first assignment of error presented by defendant raises the question of the admission by the trial court, over the objection of defendant, of evidence offered by plaintiff, in rebuttal, of a statement made by the engineer of defendant, who operated the locomotive that struck the plaintiff, to the conductor after the accident occurred and the train had stopped, and the conductor and the engineer were examining as to the extent of the injuries sustained by the parties riding in the wagon. Counsel for plaintiff asked this question: "I will ask you if at the time you heard the conductor call the engineer by name and ask him how this accident occurred, how he happened to hit these people, and if the engineer replied and said he thought he heard a brake rod dragging, and looked back to see, and did not see the people until he had hit them; you heard that, or that in substance?" To this question the defendant objected, and, objections being overruled by the court, excepted, and the witness replied: "Yes, sir." Counsel for defendant insist that there was prejudicial error in the admission of this testimony; while counsel for plaintiff insist that the question and answer are proper, both as part of the res gestæ and also for the pur ། pose of impeaching the conductor, who was a witness for the defendant. Upon cross-examination of the conductor counsel for the plaintiff asked this question: "If he had seen these people 15 feet before he got to them could he have stopped the train in time without hitting them?" Counsel for defendant objected to this question on the ground that it was not an issue in this case, the fact whether the engineer could or could not have stopped the train in order to avoid the injury in this case. Thereupon this colloquy ensued: "Judge Owen: We ask leave to amend, and we offer this to show the rate of speed the train was going. Judge De Graffenried: It is admitted for the purpose of showing the rate of speed the train was going." Counsel for plaintiff in their brief insist that at the trial they amended their petition so as to make the fact sought to be shown by the evidence complained of material to the case; but we find in the record no other reference to any amendment or any leave granted by the court to amend or any statement in the record as to the nature of the amendment sought to be made by counsel for plaintiff. So that, in determining the question raised by defendant's first assignment of error, we can only consider the issues as presented by the pleadings at the time the trial began. Upon those issues was this evidence admissible? Was it a part of the res gestæ, or was it admissible for the purpose of impeaching the conductor? We must conclude that the court erred in admitting this testimony upon each of these propositions. Our Supreme Court, in the case of Coalgate Co. v. Hurst, 25 Okl. 588, at page 597, 107 Pac. 657, at page 660, says: "The defendant [plaintiff in error] offered to prove by one of its employés that within 20 or tion with Jenkins near the entrance of the mine 30 minutes after the accident, in a conversawhilst he was then in a semiconscious, or what was termed by the witness as a flighty or groggy condition, that he said: 'I asked Jenkins where his "buddy" was, and he stated: "He is on ahead, dead, all right. My lower limbs are paralyzed. I told him not to fire the shot, but he said he would go ahead and fire it anyhow." Was it a part of the res gesta? If so, it should have been admitted; otherwise not. Was the alleged statement spontaneous, and so connected with the main fact under consideration as to illustrate its character, or to form in conjunckins was a servant of the master, and may have tion with it one continuous transaction? Jenfired this shot that caused the accident, and when confronted with his coemployé, with the inquiry as to where his 'buddy' was, being apprehensive as to the consequences of his act, he may have sought to escape such responsibility by placing it upon his coemployé. It does not appear that the ruling of the court in the exclusion of this evidence under the circumstances was error. Gowen v. Bush, 76 Fed. 349, 22 C. C. A. 196; Fredenthal v. Brown & McCabe, 52 Or. 33, 95 Pac. 1116; L. & N. R. Co. v. Pearson, Adm'r, 97 Ala. 211, 12 South. 176." In the case of the City of Wynnewood v. Cox, 31 Okl. 563, at page 576, 122 Pac. 528, at page 533, Ann. Cas. 1913E, 349, following "Res gestæ,' as said by Mr. Wharton, in his work on Criminal Evidence, 'are events speaking for themselves, through the instinctive words and acts of participants, not the words and acts of participants when narrating the events. What is done or said by participants, under the immediate spur of a transaction, becomes thus part of the transaction, because it is then the transaction that speaks.' the case of Coalgate Co. v. Hurst, supra, the cumstances appearing in this case could not court says: and would not be binding upon the defendDurkee v. Central Pac. R. R. Co., ant. supra; Fredenthal v. Brown, supra; Havens v. R. I., etc., R. R. Co., 26 R. I. 48, 58 Atl. 247, 3 Ann. Cas. 617, and note page 621. So that upon any view of the case the testimony complained of by the defendant was incompetent and immaterial. It remains to be seen whether or not this error was prejudicial. We are unable to say that it was not. In view of the conflict in the evidence offered by plaintiff and defendant as to the failure of defendant to sound its whistle or ring its bell when approaching the crossing, the jury may have taken the evidence of this statement of the engineer as a confession of negligence upon the part of the defendant in failing to keep the proper lookout by the engineer when approaching the crossing where the accident occurred. If they took this view of this evidence, it will be readily seen that it is highly prejudicial to the defendant, and we are unable for that reason to say that this was harmless error. In the opinions of courts of last resort are to be found innumerable decisions upon what is or is not admissible in evidence as a part of the res gestæ. The result is that the admissibility of such evidence in every case must depend upon the circumstances of the particular case. But the rule is universal that, to be admissible as part of the res gestæ, the statement must be substantially contemporaneous with the transaction, made on the spur of the moment, and induced by the happening of the events concerning which the statement is made, and not a narrative or statement of what has occurred. Smith v. C., R. I. & P. Ry. Co., 42 Okl. 577, at page 580, 142 Pac. 398; Louisville & N. R. R. Co. v. Webb, 99 Ky. 332, 35 S. W. 1117; Durkee v. Central Pac. R. R. Co. (Cal.) 9 Pac. 99; Fredenthal v. Brown, 52 Or. 33, 95 Pac. 1114. [4] Defendant next complains of the giving by the court of its fourth instruction to the jury. The court instructed the jury in its third instruction as to the duty of defendant to give warning of the approach of its train to the crossing, and followed this in instruction 4 by instructing the jury as to the statutory duty of defendant as to such a warn In the light of the decisions of our own court, and of the cases cited, we are constrained to the opinion that any statement made by the engineer of defendant in replying. The instructions follow: to a question by the conductor as to how the accident happened would be a mere narrative of the occurrence, and not a part of the res gestæ. [2, 3] Was this evidence admissible for the purpose of impeaching the conductor of defendant? Counsel for plaintiff in crossexamining the conductor asked him, in substance, the identical question propounded to plaintiff's witness in rebuttal, and of which defendant complains. The conductor denied that any such conversation took place. The rule is well settled that a witness can only be impeached upon a question material and relevant to the case. Under the issues of this case, as stated above, the only charges of negligence against the defendant were running its train at a high and dangerous rate of speed, and failure to give any warning by ringing the bell or sounding the whistle or otherwise. The plaintiff having alleged these specific acts of negligence is bound by them, and cannot present any other issue of negligence to the jury. C., R. I. & P. Ry. Co. v. McIntire, 29 Okl. 797, 119 Pac. 1008. So that the question of whether or not the defendant was negligent by reason of the failure of its engineer to keep a proper lookout on approaching the crossing at which the accident occurred was not within the issues of the case, and any statement made by the engineer upon that matter would be immaterial. Again, the statements of an employé of the defendant made under the cir "(3) You are further instructed that, if you believe by a preponderance of the evidence in this cause that the plaintiff, on or about the 9th day of January, 1912, was riding along Lake street in a wagon, and that the said Lake street was a public highway of the city of Muskogee, and that said public highway crosses the railroad track of the defendant, and as plaintiff came to said crossing the defendant negligently and carelessly ran one of its locomotives up and across said highway at said crossing, at a high and dangerous rate of speed, or negligently and carelessly omitted while so approaching said crossing to give out any signals by ringing the bell or sounding the whistle to warn the public of the approach of said train to said crossing, and that by reason of the failure of the defendant to give such warning and without contributory negligence on the part of the plaintiff, as will be herein defined to you, said locomotive struck the wagon in which plaintiff was riding 'and overthrew said wagon, and threw the plaintiff out upon the ground, with such force as to injure her, then in that event your verdict should be for the plaintiff for whatever damages you may find her to be entitled, not exceeding the sum sued for in this action. "(4) You are further instructed that it was the duty of the defendant to either ring the bell upon the engine or sound the whistle at a distance of at least 80 rods from a public highway where such railroad crosses such highway and to keep the bell ringing or the whistle blowing until the train should have crossed said public street as a warning to the public of the approach of such train, and if you believe by a preponderance of the evidence in this cause that on or about the 9th day of January, 1912, the defendant was operating a train of cars along its railroad tracks in the city of Muskogee, you are instructed that it was its duty to ring the bell or blow the whistle as a warning to the public of the approaching train at least 80 rods from Lake street before reaching same, and to islature to apply to the operation of railcontinue to ring the bell or blow the whistle un-road trains in the country, but nevertheless, til after it had passed said crossing or public even though under the circumstances of the highway, and if you further believe from a preponderance of the evidence in this cause that case the defendant could not comply with the agents, servants, and employés of the de- the letter of the statute, yet it was its duty fendant in charge of and operating said train to comply with the spirit of it, and to give failed or neglected to ring the bell or blow the whistle in the manner herein described, and by warning of the approach of its train to a reason of such failure or neglect to ring the bell city street crossing by sounding the whistle or blow the whistle the plaintiff was not warnor ringing the bell. Spiller v. Railroad Co., ed of the approach of said train in time to get 112 Mo. App. 491, 87 S. W. 43; Golinvaux out of its way, and said wagon in which she was riding was struck by the locomotive draw- v. Railroad Co., 125 Iowa, 652, 101 N. W. ing said train of cars, and she was thereby in- 465; 3 Elliott on Railroads (2d Ed.) 1155. jured, then and in that event your verdict will be for the plaintiff, unless you find from the evidence that plaintiff was guilty of contributory negligence as hereinafter defined to you in these instructions." It is argued by defendant that instruction No. 4 practically amounts to an instruction for the plaintiff, for the reason that the court there told the jury that it was the duty of defendant to sound the whistle or ring the bell at least 80 rods from the crossing, and continue sounding such whistle or ringing such bell until the crossing had been passed, when the evidence disclosed that the depot from which the train of defendant started was only 250 or 300 yards from the crossing at which the accident occurred. So that the jury were bound to find from the evidence that the defendant had failed to perform the duty imposed upon it as defined by the court in that instruction. It is urged by plaintiff that this instruction was harmless and resulted in no prejudice to the defendant in the minds of the jury. The plaintiff cites the case of M., O. & G. Ry. Co. v. Parker, recently decided by this court, 151 Pac. 325, as holding such an instruction to be harmless error. We have examined the case cited, and find that the only point decided is that, while "it is error for the court to instruct the jury that under the statute it was the duty of the railroad company to ring the bell and blow the whistle of the engine 80 rods from the crossing, but where it was evident, even though so instructed, that the jury was not misled thereby, or any of the rights of the defendant prejudiced thereby, it will be held to be harmless, and not reversible error." We do not think this case bears out the contention of counsel for plaintiff. Similar instructions have been held by the Supreme and appellate courts of Texas, which seem to be the only courts that have passed upon the question, under a statute identical with ours, and under identical circumstances, to be reversible error. G., C. & S. F. Ry. Co. v. Hall, 34 Tex. Civ. App. 535, 80 S. W. 133; T. & P. Ry. Co. v. Berry, 32 Tex. Civ. App. 259, 72 S. W. 423; Central Tex., etc., Ry. Co. v. Nycum (Tex. Civ. App.) 34 S. W. 460; Houston & Tex. Central Ry. Co. v. O'Neal, 91 Tex. 671, 47 S. W. 95; Ft. Worth & R. G. Ry. Co. v. Greer, 32 Tex. Civ. App. 606, 75 S. W. 552. The statute quoted by the court in this instruction was probably intended by the Leg The court in its third instruction correctly advised the jury as to defendant's duty under the law and the circumstances of the case at bar, but we think that in giving the fourth instruction quoted above the court erred; and, while we might hesitate to reverse this case were this the only error we find in the record, we cannot say that the error was harmless, and, in view of the fact that the case must be tried again, we call attention to this error. [5] The defendant next complains of the giving of instruction No. 7 by the trial court, which instruction is as follows: "(7) You are instructed that, if you find for the plaintiff, she is entitled to recover as damages such sum as will compensate her, not to exceed the amount sued for, and in estimating her damages you will take into consideration the nature of the injuries received by her and the physical pain and suffering caused by reason ages as you may deem reasonable for the pain thereof, and, in addition, may allow such damand suffering, if any, which has resulted or may result from the negligent acts of the defendant company." Does this instruction correctly state to the jury the rule as to the measure of damages to be allowed plaintiff? It is contended by defendant that the instruction complained of does not confine the jury to the evidence in finding the amount of damages to which plaintiff might have been entitled in the event of her recovery, but permits them to conjecture as to the amount which they may deem reasonable. We are of the opinion that this instruction is open to the criticism made by counsel for defendant, especially the concluding clause, “and, in addition, may allow such damages as you may deem reasonable for the pain and suffering, if any, which has resulted or may result from the negligent act or acts of the defendant company." The court nowhere directs the jury that their estimate of the amount which plaintiff would be entitled to recover must be controlled by the evidence, but permits them to allow the plaintiff such damages as they may deem reasonable for pain and suffering which may result. We think under this instruction the jury were not confined, as they should have been, to a finding of an amount sufficient to compensate her for the pain and suffering which they might find from the evidence would be reasonably certain to result from the injury. But, while we do not approve the form |