counsel that the proven facts are equally consistent with the theory that deceased attempted to climb upon the moving car for the purpose of riding westward to a point opposite the switch on the other side of the viaduct, where, as it appears, he would be next called upon to engage in throwing a switch. We think we may take notice of the fact that freight cars are usually provided with footholds and handholds at the right-hand corner of the car at either end, and that, therefore, if deceased attempted to mount the car, he would have done so in this instance on the north side, and it is certainly a matter of general observation that switch tenders do on some occasions thus ride on moving cars in the performance of their duties. There was no evidence that it was usual for the deceased or other switch tenders in defendant's yards at Rock Island to thus ride, nor is there any evidence that it is contrary to the rules of the company for them to do so. If deceased did attempt to mount this car, and, missing his footing, did fall under its wheels, the accident might have occurred at the place and in the manner indicated by the evidence. This is, of course, a mere surmise, but we are justified in any surmise which is as consistent with the facts proven as the theory which is sought to be established by such facts for the purpose of determining whether the proven facts tend to support plaintiff's theory. The surmise is not, however, foreign to the record, for a written statement, signed by the witness Ross two days after the accident, was introduced in evidence for the defendant as contradictory of his testimony on the stand, in which it is said the deceased attempted to get upon the car and slipped and the car wheel ran over his knee. When his attention was called to this statement, the witness emphatically denied its correctness and testified that he had signed it without reading all of it, and that he supposed it contained only the statements made by him to the agent, and that no such statement was made. He, however, affirmed the accuracy of the statement in many other particulars, and denied its accuracy only as to this statement and one or two others which are of minor importance. Of course, it was for the jury to say whether they should believe his testimony on the stand, in which he emphatically denied that he had seen deceased attempt to mount the car, as against what purported to be, and in the main was, a correct written statement signed by him soon after the accident as to what happened, but we have thought it not improper to refer to this statement as suggesting a theory of the accident for the purpose of determining whether that theory is ast consistent with the established facts as the theory relied upon for the plaintiff. The place where the deceased was found after the train was stopped has a particular significance as bearing on the theory that deceased caught his foot between the rails by reason of the defective blocking. It is conceded that, if deceased was thus caught, he must have been carried by the train much farther west than where he was found before the train stopped, for his body was not more than six feet from the east end of the blocking. The suggestion of counsel for plaintiff is that, when the engineer stopped his engine, the recoil of the cars was toward the engine and that the slack would be taken up so that the rear car would move forward ten or twelve feet and carry the deceased toward the place where he was first struck; but it seems to us that this is a mere surmise, and in no way tends to explain the fact that the deceased was found so near the place where it was claimed he was first struck by the moving car. If, after the train was started backward, the speed of the engine was decreased so that the cars moved faster than the engine, and a condition of tension existed throughout the train, then the stopping of the engine would certainly not cause any considerable recoil and movement forward of the rear car. If, on the other hand, the cars were being pushed backward at an increasing speed and their bumpers were in contact, then on the stopping of the engine they would run as much further as the slack would permit, and the recoil could not bring the rear car closer to the engine than it was when the engine was stopped. Now, it is simply incredible under the evidence that after deceased was struck by the rear end of the car the engine should not have moved backward more than six feet before the signal could be given to the engineer to stop and the train could be brought to a standstill. The train consisted of eighteen cars, and the testimony shows that the slack might amount to about ten or twelve feet for the entire train, but no rebound or movement forward of the rear car after the engine was stopped could, in our judgment, have brought the deceased back to within six feet of where he was first struck. There is evidence that there was a bloody spot ten feet west of where deceased was found where the train stopped, but it does not appear how this spot was caused. The deceased may have been placed there after he was taken out from between the wheels. But in any view this bloody spot was too near the blocking to support the theory that the deceased was struck while his foot was caught in the blocking. The facts not only do not tend to support the theory that deceased was struck while his foot was fast at the defective blocking, but, on the other hand, are much more consistent with the supposition or surmise that he may have attempted to mount the moving car and fallen in front of the wheels; for, if his purpose was to mount the moving train, he would probably have gone eastward to meet it, and have been run over somewhere east of the blocking. But there is no evidence that he went eastward to meet the moving car, and all we need say is that the place where he was found was not the place where he would have been found if he had been struck at the blocking. We reach the conclusion that the evidence does not tend to support the claim that the accident resulted from deceased's foot being caught by reason of the defective blocking, and on no other theory could the verdict of the jury under the instructions have been for the plaintiff. The jury are not permitted to find material facts without evidence or on mere conjectures as to the truth of one of two or more equally probable or possible theories having different legal results. Reynolds v. Burgess Sulphite Fiber Co., (N. H.) 59 Atl. Rep. 615. The judgment of the trial court is therefore reversed. BUCHHOLTZ v. INCORPORATED TOWN OF RADCLIFFE. Supreme Court, Iowa, 1905. INSTRUCTIONS AS TO DEGREE OF CARE REPEATED. - It was not error in an action for damages for personal injuries that there was a repetition in the instructions of the degree of care required of the defendant. MUNICIPAL CORPORATIONS - STREETS-WIRE STRETCHED ACROSS STREET CAUSING FALL OF PEDESTRIAN. — Where it appeared that while the plaintiff was chasing his cow in the street he ran against a guy wire stretched across the street and fastened to a stake, it was proper to instruct the jury that if under all the circumstances the plaintiff could readily have seen, and as an ordinarily prudent and careful man, ought to have seen the wire, he was guilty of contributory negligence and can recover nothing in this case. INSTRUCTION — CREDIBILITY OF WITNESS. — An instruction, after stating the method of impeaching a witness, further stating that if the jury believed plaintiff's general reputation for truth and veracity in the community in which he lived was bad, they had a right to disregard his testimony, but were not bound to disregard it, was proper. -- APPEAL from District Court, Hardin County. Action at law to recover damages for personal injuries said to have been received by plaintiff while passing along a street in the defendant town. Trial to a jury; verdict and judgment for defendant, and plaintiff appeals. Affirmed. J. H. SCALES, BRYSON & BRYSON, and HUFF & HUFF, for appellant. W. R. WILLIAMS, ALBROOK & LUNDY, and F. H. NOBLE, for appellee. DEEMER, J. Plaintiff claims that, while chasing his cow over one of the streets in the defendant town, he ran against a guy wire to a horizontal trapeze bar which had been erected upon the property of one Drake in such a manner as that the guy wire extended from the top of one of the uprights of the trapeze out into one of the streets of defendant town, where it was fastened to a stake driven into the ground, and that as a result thereof he was thrown upon the frozen ground and received very serious injuries to his body, head, and spine. The negligence charged against the city is that it permitted this dangerous appliance to remain in the street after knowledge of its presence, or for such a length of time as that in the exercise of ordinary care and prudence it should have known of and removed the same before the accident occurred. Plaintiff pleaded his freedom from contributory negligence, and offered testimony to show the nature of his injuries, which he claimed were very serious and permanent. 'Defendant interposed the usual defenses, and in addition thereto introduced evidence to show that plaintiff did not fall over the wire as claimed; and that his supposed injuries were imaginary or simulated. The case was submitted to a jury under instructions of which some general complaints are made, resulting in a verdict for defendant. This appeal is from the judgment rendered thereon. Appellant's chief complaints are of the instructions given by the trial court. It is said that they made prominent every point available as a defense, and obscured and disparaged plaintiff's cause of action. This complaint is unfounded. The instructions are the usual ones given in such cases, and we need not set them out in extenso. Suffice it to say that they were fair to both parties, and as we shall see were accurate statements of the law. There is some repetition in them as to what it was necessary for plaintiff to establish in order to show liability on the part of the town, but the rule announced was clearly correct, and the mere repetition thereof was not prejudicial to plaintiff. The repetition complained of was with reference to the degree of care required of the defendant, and was stated so that the different aspects of the case might be fully comprehended by the jury. In the last instruction it was merely an introductory statement, and was necessary to a complete statement of the rule to the jury. There was no error here. 2. A part of instruction 7 reading as follows is challenged: "If under all the circumstances surrounding him (plaintiff) he could readily have seen, and as an ordinarily prudent and careful man ought to have seen, the wire over which he claims to have fallen, then he was guilty of contributory negligence, and he can recover nothing in this case." It is scarcely necessary to cite any authorities in support of this instruction. But see, Cressy v. Postville, 59 Iowa, 62, 12 N. W. Rep. 757; Tuffree v. State Center, 57 Iowa, 538, 11 N. W. Rep. 1; Munger v. City, 56 Iowa, 216, 9 N. W. Rep. 192; Langhammer v. City, 99 Iowa, 295, 68 N. W. Rep. 688. The trial court submitted this special interrogatory, to which the jury made answer as shown: "With the exercise of ordinary care and diligence ought plaintiff to have seen the wire over which he fell? Answer: Yes." As the instruction was correct, plaintiff has no just cause of complaint of this interrogatory. If there was any prejudice, it was to defendant, in that the court in this question assumed that plaintiff fell over the wire, which was a matter in dispute. There was no error in submitting the interrogatory. Jones v. Shelby Co., 124 Iowa, 555, 100 N. W. Rep. 520, relied upon by appellant, does not hold to the contrary. 46 3. Testimony was adduced by defendant for the purpose of impeaching the plaintiff who was a witness on his own behalf; and the District Court instructed with reference thereto as follows: Some evidence has been introduced tending to impeach the plaintiff as a witness. One of the recognized methods of impeaching a witness is to prove that his general reputation for truth and veracity is bad in the community in which he lives. This must be proved by witnesses who are acquainted with his general reputation in the community in that respect. The opposing party may contradict such testimony by introducing other competent witnesses to testify that his reputation in such community is not bad. If you believe from the evidence in this case that plaintiff's general reputation for truth and veracity is bad in the community in which he lives, then you have a right to disregard his testimony as a witness as being unworthy of belief. But you are not bound to disregard it. It is for you to say, in the light of all the facts and circumstances in the case, whether any or all of his testimony is unworthy of belief, and you will give it such weight as you deem it entitled to, or |