cupying the same home. Parsons v. Livingston, 11 Iowa, 104, 77 Am. Dec. 135; Arnold v. Waltz, 53 Iowa, 706, 6 N. W. 40, 36 Am. Rep. 248; In re Rafferty (D. C.) 112 Fed. 512; Sheehy v. Scott, 128 lowa, 551, 104 N. W. 1139, 4 L. R. A. (N. S.) 365, 111 Am. St. Rep. 184. The definition is still further enlarged by the statute above quoted, and made to include the widow or widower, though without children, while continuing to occupy the real estate used as a homestead at the death of the spouse and the divorced person to whom it is adjudged or given by the terms of the decree of divorce during his or her continued personal occupancy. Code, § 2973. No person can claim the benefit of homestead exemption unless he or she comes within one of the classes above mentioned. The ward in this case is confessedly not the head of a family. It is clearly evident that she is not a widow, and, unless she is to be classed as a wife to whom the homestead has been adjudged in a decree of divorce, she is very clearly not one of those for whom the statute clothes the property with exemption from execution.

Upon this question we are constrained to disagree with the learned trial court. "Marriage is a civil contract requiring the consent of parties capable of entering into other civil contracts." Code, § 3139. Without such consent no marital rights are acquired and no marital duties imposed. If one or both of the parties be insane, and thereby incapable of giving the consent necessary to constitute a contract, there can be no marriage in law or in fact between them, although in the interest of good order the courts will assume jurisdiction to decree the annulment of such union. But such annulment is not necessary to clothe the parties with all the rights of unmarried persons. Powell v. Powell, 18 Kan. 371, 26 Am. Rep. 774; Wagmire v. Jetmore, 22 Ohio St. 271; Wightman v. Wightman, 4 Johns. Ch. (N. Y.) 343; Dare v. Dare, 52 N. J. Eq. 195, 27 Atl. 654; Patterson v. Gaines, 47 U. S. 553, 12 L. Ed. 553; Drummond v. Irish, 52 Iowa, 41, 2 N. W. 622. In Wier v. Still, 31 Iowa, 107, this court stated the rule as follows: "This contract rests upon the consent of the parties thereto. If one of them was legally incapable of consenting, it is void, and may be so declared by a court of chancery." In the case of Stewart v. Vandervort, 34 W. Va. 534, 12 S. E. 736, 12 L. R. A. 50, a claim for alimony was allowed by the trial court to the defendant in a decree annulling the marriage, although there was no statute authorizing such allowance. In reversing that order the court says: "It is very clear that without authority of statute alimony could not be decreed for it never was a marriage. The woman was never a wife." In Powell v. Powell, supra, the court used this language: "A marriage of an insane person is absolutely void by reason of the want of capacity of such party to contract." If, then, in the case before us there was no

valid marriage, ceremonial or otherwise, between the ward and Louis Wolfe, if she was not his wife by any contract or bond which the law would recognize or enforce, and if the decree adjudging the alleged marriage to have been void is not a decree of divorce within the meaning of our statute (and we see no way to escape either conclusion)— then this unfortunate woman is included in none of the classes named by the homestead statute as being entitled to its benefits. We do not mean to be understood as holding that under no circumstances can a woman whose marriage has been declared void successfully assert homestead rights. She and her children, if she has any, may constitute a family within the meaning of the law, and there may be other circumstances not appearing in this case under which she could justly claim exemption. But, as a single or unmarried person which she has been adjudgto be, without children or others depending upon her, we are clear that no such exemption exists in her favor. It is worth while also to notice that the exemption which the statute provides for the benefit of a divorced person continues only so long as he or she shall continue in the personal occupancy of the homestead. This woman is not and concededly was not in the personal occupancy of this property, nor had she been for several years at the time of its partition sale. It is true that, being insane and incapable of consenting to her own removal to the hospital, she may be considered as having been in constructive possession of her home until it was sold and disposed of, and probably, had she left a family, there a liberal construction of the statute would allow us to say she continued in personal occupancy of it, but no such modifying circumstance exists, and we are not justified in saying that, although for years confined in the hospital for the insane, the ward was at the same time in the actual occupancy of her home in a distant part of the state. Still other reasons could be adduced for sustaining the claim of the appellant; but those already mentioned we regard as sufficient.

The authorities cited by appellee are not inconsistent with this conclusion. Higgins v. Higgins, 117 Ky. 725, 78 S. W. 1124, decided by the Kentucky court, is authority for the proposition that the incarceration of a wife in an insane asylum after her husband's death does not affect her homestead rights. In the opinion thus stated we fully concur; but it has no application to the case of a woman who is neither wife nor widow. The decision in Wiser v. Lockwood's Estate, 42 Vt. 720, is cited to the effect that after the death of the husband insane at the date of marriage, and where no proceedings have been taken to have such marriage annulled or declared void, the wife becomes entitled to the rights of a widow. With this also we may agree, but the rule stated is not pertinent to the facts in the case at bar. Counsel for ap

pellee also cite the case of Barber v. Barber, 74 Iowa, 301, 37 N. W. 381, as holding that a woman who married an insane person in ignorance of his insanity is entitled to the rights of a widow after his death. The opinion cited does not so hold. In that case the marriage was adjudged void at the suit of the wife on the ground that the husband was insane when such marriage took place, and she was permitted to recover from him compensation for her services, and for the impairment of ber health occasioned by the defendant's treatment of her. The court nowhere expresses the view that a woman married under such circumstances is entitled to the rights of a widow after the death of the husband, nor was such question presented by the issues there being considered.

It is unnecessary to further pursue the discussion. As we have already stated, rights of the character here claimed by the appellee are of statutory origin, and can be claimed and enjoyed only by those persons or classes designated by the Legislature in the creation of the right. The ward in this case belongs to none of the classes thus favored.

It follows from what we have said that the cause must be reversed and remanded for further proceedings not inconsistent with the conclusions herein announced.

Reversed.

BURGER v. OMAHA & C. B. ST. RY. CO. (Supreme Court of Iowa. July 9, 1908.)

1. APPEAL AND ERROR-OBJECTIONS IN LOWER COURT.

Where an objection to evidence was properly overruled when made, the fact that it later appeared that the evidence was incompetent is not available on appeal, where no further action was taken in regard to it.

2. SAME REVIEW - QUESTIONS OF FACT-DIRECTED VERDICT.

On review of a refusal to direct a verdict, the Supreme Court is required to consider the evidence in the light most favorable to the party against whom a directed verdict is sought. [Ed. Note.-For cases in point, see Cent. Dig. vol. 3, Appeal and Error, § 4024.]

3. CARRIERS CARRIAGE OF PASSENGERS-ACTIONS FOR INJURIES-EVIDENCE-SUFFICIENCY.

Evidence, in an action for injury to a street railway passenger, held sufficient to go to the jury on the question of whether he was in the exercise of due care.

[Ed. Note.-For cases in point, see Cent. Dig. vol. 9. Carriers, § 1402.]

4. SAME.

Evidence, in an action for injury to a street railway passenger, held sufficient to go to the jury on the question of whether defendant was negligent in starting the car, proximately resuiting in the injury.

[Ed. Note. For cases in point, see Cent. Dig. vol. 9, Carriers, § 1160.]

5. SAME QUESTIONS FOR JURY-PROXIMATE CAUSE.

Where the immediate effect of the negligent starting of a street car was not to throw a passenger, who was attempting to board, to the ground, but instead he maintained his hold

on the rail, and ran alongside for some distance in an effort to board, when finally his hold was broken or relinquished, and he fell and was injured, the question whether his fall was the proximate result of the negligent starting of the car, if the facts permitted of a question, was for the jury.

6. NEGLIGENCE-PROXIMATE CAUSE.

A negligent act, putting another in a position of danger, continues and controls as long as the danger continues, unmodified by any independent, affirmative, and voluntary act of the person affected, or by some intervening, controlling circumstance.

[Ed. Note. For cases in point, see Cent. Dig. vol. 37, Negligence, §§ 69-79.]

7. SAME-CONTRIBUTORY NEGLIGENCE-CONDUCT IN EMERGENCY.

Where what is done by a person in the face of an emergency is no more than may be expected from an ordinarily prudent person under like circumstances, due care is not wanting.

[Ed. Note.-For cases in point, see Cent. Dig. vol. 37, Negligence, §§ 99, 100.]

8. SAME QUESTIONS FOR JURY.

Where reasonable minds might differ whether a person in the face of an emergency acted with due care, the question is one for the jury. [Ed. Note. For cases in point, see Cent. Dig. vol. 37, Negligence, § 340.]

9. CARRIERS - CARRIAGE OF PASSENGERS-ACTIONS FOR INJURIES-QUESTIONS FOR JURYCONTRIBUTORY NEGLIGENCE.

Whether a passenger, thrown from his footing in attempting to board a street railway car by the negligent starting thereof, was guilty of contributory negligence in not releasing his hold on the rail and in running alongside and attempting to regain his position and board the car held for the jury, and especially where the starting of the car was slow.

10. SAME "EMERGENCY."

In the sudden and unexpected starting of a street car while a passenger is attempting to board, there is presented an emergency an "emergency" being a sudden or unexpected happening or occasion calling for immediate action.

Ed. Note.-For cases in point, see Cent. Dig. vol. 9, Carriers, § 1352.

For other definitions, see Words and Phrases, vol. 3, p. 2361.]

11. SAME-INSTRUCTIONS.

An instruction, in an action for injury to a street railway passenger, after advising the jury that plaintiff could not recover if his own negligence contributed to the accident; that the fact that plaintiff did not let go of the car, but kept his hold on the rail, and ran alongside trying to get on after it had started, did not necessarily show that he was guilty of contributory negligence; that if by reason of the starting of the car an emergency arose, then, even though his action was ill judged, if under the facts he acted as a man of ordinary prudence in a like situation, and had used ordinary care in his original attempt to get on the car, he was not guilty of contributory negligence-correctly stated the law, and without confusion. 12. TRIAL INSTRUCTIONS REQUESTED INSTRUCTIONS COVERED BY THOSE GIVEN.

A refusal of a requested instruction that, if a witness had willfully sworn falsely with reference to any material fact, the jury were at liberty to disregard his testimony, or to give it only the weight and credit to which they believed it entitled, was without prejudice, where the court charged that the jury were the judges of the credibility of the witnesses, and that, where there was a conflict in the evidence, they should harmonize it if they could, but that if they could not do so, they should give to each

witness such credit as they deemed him entitled, or none if entitled to none.

[Ed. Note. For cases in point, see Cent. Dig. vol. 46, Trial, §§ 651-659.]

13. APPEAL AND ERROR-REVIEW-HARMLESS ERROR-INSTRUCTIONS.

Where, in a personal injury action, there were other elements of damage alleged than loss of time, to which evidence was addressed, and the verdict was for $5,000, there was no prejudice in the court's failure, in its instructions, to place any limitation on the amount recoverable for loss of time, though the petition alleged damage, on that account, of but $1,000.

[Ed. Note.-For cases in point, see Cent. Dig. vol. 3, Appeal and Error, §§ 4225-4228.] 14. CARRIERS-CARRIAGE OF PASSENGERS-ACPLEADING TIONS FOR INJURIES CIENCY.

SUFFI

Where the trend of the allegations of fact, in a petition for injury to a street railway passenger, was to the effect that he was in the exercise of due care for his own safety, an allegation that the injury was not due to any act of negligence of his was sufficient as a conclusion, or, at least, the pleading was not wholly wanting in an allegation on that subject; and if the street railway company desired more, it should have moved therefor.

Appeal from District Court, Pottawattamie County; W. R. Green, Judge.

Action to recover damages for a personal injury. Trial was had to a jury, resulting in a verdict and judgment for plaintiff. Defendant appeals. Affirmed.

Harl & Tinley, for appellant. S. B. Wadsworth, F. E. Gates, and George B. Lynch, for appellee.

BISHOP, J. Defendant operates a street railway line in Council Bluffs, and the claim of plaintiff is that, while attempting to board one of defendant's cars, at what is known as the "Gun Club Station," the car was suddenly started forward, whereby he was thrown to the ground and injured. We shall take up the several matters of error occurring on the trial in the order of their presentation in argument.

1. As a witness in his own behalf, plaintiff testified, in chief, that his occupation was that of a barber; that before the accident in question, he was an able-bodied man. He was then asked: "What was your earning capacity per month before the time of the accident?" This question was objected to as incompetent and immaterial, and the objection was overruled. The ruling is assigned as error. We think there was no error. At the time of the ruling only the fact that plaintiff was by trade a barber appeared of record. All the matters on which the argument for error is built up came out subsequently on cross-examination. If counsel conceived that the effect of such matters was to make clear the incompetency of the evidence, given on direct examination, respecting earning capacity, it was open to them to prefer challenge thereto, but this they did not do.

2. At the close of all the evidence defendant moved for an instructed verdict in its

favor, on the grounds: (1) Negligence on the part of defendant had not been proven; (2) the acts of negligence sought to be established were not the proximate cause of the injury of which plaintiff complains; (3) freedom from contributory negligence had not been proven. The motion was overruled, and of this defendant complains. A determination of the question thus made involves, of course, a review of the evidence. Presenting the same in the light most favorable to plaintiff, as we are required to do, there was warrant for a jury finding of this state of facts: Defendant's line of railway, at the point in question, runs east and west, and is double tracked; the east-bound cars using the south track. While there is a platform on the north side of the tracks at the Gun Club Station, there is none on the south, and entrance to cars must be made from the ground. Plaintiff had been attending a shoot at the gun club, and, in company with one Craybill, came down from the club grounds-carrying his gun case in his hand-to take the car east from the station. As the car approached, a stop signal was given, and they stepped across to the south side of the tracks. Plaintiff says that when the car stopped, three or four passengers got off; that "Craybill got on the car first, and I took my gun in my right hand and set it on the platform, and he took the gun. I took hold of the (hand) rail with my left hand, and put my right foot on the step, and just started to get on, and took hold of the opposite rail, when the car started with a jerk, and I fell on the rail behind the car. The car was standing still when I put my gun on the platform, and the instant I put my foot on the step it started, just as I went to take hold of the opposite rail." Craybill, as a witness for plaintiff, says: "Three or four persons got off the car. I climbed right on as soon as these people got off. Burger took hold of the rail; handed me his gun first, just as quickly as I got on. He got hold of the railing and tried to get on. He undertook to make a step up there. I think he had a foot on the step. The car started as tight as it could go from the start. Burger fell down. It dragged him down. After he fell the car went from 150 to 200 feet." Discussion ought not to be nec essary to make it clear that here was a case to go to the jury. Accepting plaintiff's story -as the jury might well do-he was in the exercise of due care. The defendant was negligent in starting its car before passengers had opportunity to board the same, and in the manner of starting; and such negligence was the proximate cause of the accident.

3. Some of the witnesses for defendant testified that plaintiff continued his hold upon the hand rails after the car started, and ran along beside the car a distance of several feet before his hold was broken or relinquished, and he fell. Predicating its request on the testimony to this effect, defendant asked an instruction directing the jury that,

if the facts were found to be as thus testified to, plaintiff could not recover, because the wrongful starting of the car, if it was wrongfully started, was not the proximate cause of plaintiff's injury. In a further request the court was asked to say that, upon a state of facts so found, defendant could not be held liable for the injury sustained, and this because, "by holding to the moving car and attempting to get on the same, plaintiff assumed any danger of injury arising therefrom." In a still further request the court was asked to say that upon a state of facts so found plaintiff was guilty of contributory negligence as matter of law, and hence could not recover. Each of these requests were refused, and the refusal as to each is denounced as error. We think there was no error. According to our understanding, it is no part of the contention of counsel that plaintiff acted in violation of any duty he owed to himself when he seized the hand rails and made his initial attempt to step upon the car platform. On the contrary, as we gather, this seems to be the theory of counsel, upon which the requests are based: That, conceding the premature starting of the car, and that the same was negligent, if the immediate effect thereof was not to throw plaintiff to the ground, but, instead, he maintained his hand hold on the rail, and ran alongside for some distance in an effort to accomplish a boarding, but finally relinquished his hold because unable longer to maintain the same, and there being no intervening act of defendant following the starting of the car, save the continued forward movement thereof, then the fall was not the proximate result of the wrongful act in starting the car, and, as that act is the sole matter of negligence complained of, as matter of law there can be no recovery. So, also, that under such circumstances the act of plaintiff in running alongside amounted in law to contributory negligence, and he assumed all risk of accident in so doing. The theory is well conceived in the interests of defendant, but it will not bear analysis. Of necessity it is based upon the supposition that the negligence of defendant ceased of effect once the immediate shock, incident to the premature starting of the car, had spent its force; that with the forward movement of the car, due care resumed its dominant sway. To hold in conformity with the view thus taken would be to write a new chapter on the law of negligence. Instead, it is the law, as universally applied, that where one by his negligent act thrusts another into a position of danger, the act-and the negligence by which it is clothed-continues and controls as long as the danger continues, unmodified by any independent, affirmative, and voluntary act on the part of the person affected, or by some intervening controlling circumstance. And it is for the jury to say at what point or juncture, and in what particular, such person ceased to be

The

dominated in his conduct by the act of negligence, and resumed voluntary control over his own actions. To search out and cite authorities in support of these conclusions would seem to be a work of supererogation. case, as here made, is quite different from one where an intending passenger approaches a moving car and attempts to board it. And such are the cases principally relied upon by appellant. In such cases the continued movement of the car cannot be considered, in any sense known to the law of negligence, as the proximate cause of an accident and injury attendant upon the attempt to board. If the operating company can be held responsible at all for such an injury, it must be upon proof of some affirmative act of negligence intervening between the attempt to board and the accident complained of, and from which act of negligence the accident and injury proceeded. Here, however, the plaintiff occupied the relation of a passenger when the start of the car was made. 3 Thompson, Negligence, § 2038.

Another question-simple in its last analysis is this: Where did the force which led up to and culminated in the accident which befell plaintiff have its origin? If traceable to the negligent conduct of defendant in starting and moving forward the car, and the accident would not have happened but therefor, then such conduct must be regarded as the proximate cause and the question in the case-if, indeed, the facts permitted of a question-was one for the jury. Giving attention, for a moment, to the question of contributory negligence, as made by the request, there is no theory on which to conclude as matter of law that due care for his own safety required of plaintiff that he release his hold upon the car the moment he was made aware of the fact that the same was in motion. Whether or not a person-brought to face an emergency-has acted with due care for his own safety is to be determined in all cases by the method of conduct. If what was done was no more than might have been expected from an ordinarily prudent person, placed under the like circumstances, then due care is not wanting. And if in the situation presented there is room for reasonable minds to differ as to the proper conclusion to be drawn, the question is one for a jury. And, as far as we know, all the opinion and text writers agree upon this. Now, as we understand it, the car platform-approached by a step-was not guarded by a door or gate, so that, in getting on and off, passengers were not dependent on any action of the employés in charge of the car. As we have seen, plaintiff had partially effected a boarding when the car started. And if the witnesses for defendant were to be believed, the car started slowly and without any jerk. It is not improbable that reasonable minds might conclude that plaintiff was not negligent in trying to regain his footing on the car step, and thence to the platform. The question was therefore

for the jury. Of course, if plaintiff on his own voluntary motion-and wholly disconnected and independent from the sudden start -ran alongside the car, and his fall was proximately due to some cause transpiring after the start was made, there might be room for the application of the principle of the cases on which appellant relies. But in the evidence there was no warrant for a finding that such was the situation with which the jury had to deal. As the argument concedes that the starting of the car was negligent, and assuming the truth of the testimony of defendant's witnesses, in our view the only question in the case is whether plaintiff was guilty of contributory negligence in not releasing his hold, at once, upon being made aware of the starting of the car. And such, by all the authorities, was a question for the jury.

4. Further, on the subject of contributory negligence, the defendant requested the court to instruct the jury that, if found that plaintiff retained his hold upon the car after the start was made, and ran alongside the same for some distance before he fell, "said action would be prima facie negligence on his part,

* and he cannot recover, unless he has shown, by a preponderance of the evidence, that said act was excusable by reason of danger, real or apparent, to him-that of falling and receiving injury, if he should release his hold upon the car." This request was also refused, and, as we think, rightly so. Fairly analyzed, it is the doctrine of the request that, on finding that plaintiff retained his hold upon the car, and ran alongside thereof, justification for his conduct in so doing was possible in law only on the theory that it was, or appeared to him to be, necessary to so act in order to prevent injury to his person. It excludes the idea that justification for his conduct was possible, even though his motive in so acting was to regain his footing and complete an entrance in the car. By the great weight of authority it is the rule that in the case of one not yet a passenger contributory negligence does not arise, as matter of law, from the mere fact that an attempt has been made to board a moving car. 3 Thompson, Negligence, § 3536. This being so, on no theory is it possible to say that one who sustains the relation of a passenger, and who has been thrown from his position by an act of negligence in the handling or operation of the car, must be held guilty of negligence per se if he attemptseither as the result of impulse, or in the reasonable belief that he can succeed-to regain his position and accomplish a boarding of the car. And, especially, such ought not to be the rule where, as here, according to defendant's witnesses, the start of the car was easy and slow.

5. In the 11th instruction, given by the court on its own motion, the subject of contributory negligence was dealt with. In the

instruction the law of the case-after advising the jury that plaintiff could not recover if, by his own negligence, he contributed to the happening of the accident and injury of which he complains-was thus stated: "The fact, if it be a fact, that plaintiff did not let go of the car, but clung to the rail and ran along the side of the car trying to get on, after it had started, will not necessarily show that he was guilty of contributory negligence. If, by reason of the starting of the car at the time and in the manner in which it was started, an emergency arose, then, even though plaintiff's action was ill judged, if, under all the facts and circumstances shown by the evidence, he acted as would a man of ordinary prudence in a like situation, and had used ordinary care in his original attempt to get on the car, then he was not guilty of contributory negligence," etc. This instruction is assailed on the grounds: "(1) That there was neither pleading nor evidence upon which to submit to the jury the question of such emergency; (2) that the instruction failed to tell the jury what would have constituted contributory negligence of the plaintiff in cling ing to the car and running along beside it; (3) that the said instruction was confused and misleading upon the question of contributory negligence, and incorrectly stated in law on the subject." There is no merit in any of these grounds. Most certainly it is within bounds to say that, in the sudden and unexpected starting of a street car, while a passenger is attempting to board the same, there is presented an emergency. According to the lexicographers, an emergency is a sudden or unexpected happening or occasion calling for immediate action. Webster's Dictionary; Century Dictionary. And in the pleading it was alleged, and without dispute the evidence made proof at least, that the car was started suddenly and without warning. In a previous instruction the court had correctly defined negligence, and the jury had been told that it was incumbent on plaintiff to show his own due care; that "on his part he was bound, where attempting to get on the car, and in all his conduct with relation to it, to exercise reasonable and ordinary care for his safety, and if he failed so to do, he was negligent, and cannot recover." We think no more could, in reason, be required. The instruction correctly stated the law, and without confusion.

6. Defendant asked an instruction to the effect that, "if the jury found that any witness in the case had willfully and intentionally sworn falsely with reference to any material fact in the case, they were at liberty to disregard the testimony of such witness, or to give to it only the weight and credit to which in their judgment it was entitled." The request was refused, and, on its own motion, the court told the jury that: "You are the judges of the credibility of the witnesses and the weight to be given to each and all