"Gentlemen of the jury, you are instructed that, under the allegations of the plaintiff's petition, he is not entitled to recover any amount for any loss of earnings, either prior to the commencement of the action or subsequent thereto, and you are directed to wholly disregard all of the evidence offered in this connection in your deliberations of this case.'

advise them that, before the plaintiff could | refused to give upon the request of the derecover at all, he must establish the acts of fendant, reads as follows: negligence stated in his petition, as defined by the court in the preceding, part of its instruction. In such circumstances we do not see how the jury could have been misled. Whilst the instruction, is not a model of clearness and perspicuity, the principal fault that may be found with it, in so far as the defendant is concerned, is its generality. The complaining party is not in position to object to the generality of an instruction given when he did not ask for a explicit instruction on the point involved. In the case of M., K. & T. Ry. Co. v. Young, 8 Kuu.. App. 525, 56 Pac. 542, a personal injury case, the instruction was as follows:

more

In the case at bar there was no attempt to allege or show any loss of earnings either before or after the commencement of the action, nor any impairment of the plaintiff's earning capacity, and the trial court correctly instructed the jury to that effect as follows:

"The court instructs the jury that if, under the evidence and the instructions of the court, you find in favor of the plaintiff, you should assess his damages in such an amount as you be"If you find from the evidence that the plain- lieve from the evidence will be a fair compensatiff sustained the injuries as alleged in the petition to him for the pain of body and mind, if tion, or any part thereof, and that such injuries any, which he has suffered, occasioned by such so sustained were caused by the negligence of injuries; and, in the determining what amount the employés of the defendant company, and of damages you will award him, you may take that the plaintiff was not himself guilty of neg- into consideration the question as to whether or ligence contributing to such injuries, then you not the injuries received by plaintiff are permaought to find for the plaintiff." nent, but you cannot award him anything for the impairment of any earning capacity the plaintiff may have had."

Counsel complain of this instruction upon the ground that it does not confine the jury to the issues framed by the pleadings. The court said:

It seems to us that this instruction covers the law applicable to the plaintiff's measure of damages as fully and more accurately than the instruction requested by the defendant.

"Counsel insist that the instruction is misleading, in that it does not confine the jury to the issues framed by the pleadings, but permits them to find against the company, upon any negligence of the employés of the company who may have [4] The evidence which the court refused caused the injury. The instruction is a correct to strike out upon motion of the defendant regeneral statement of the law, and, under the broad allegations of the petition, is not mis-lated to the name, residence, and profession leading. If counsel for plaintiff in error had de- or business of the plaintiff. He testified that sired a more specific statement, he should have he was engaged in the practice of medicine requested special instructions."

and surgery and running a drug store, and that, prior to taking up his residence at Porter, he lived at Ft. Smith and Choska. This

Other authorities to the same effect are Magoon v. Before, 73 Vt. 231, 50 Atl. 1070; McCormick Harv. Mach. Co. v. McNicholas, evidence, counsel contend, was inadmissible, 66 Minn. 384, 69 N. W. 36; Hansen v. Gaar, because it tended to lay a predicate for damScott & Co., 68 Minn. 68, 70 N. W. 853; South- ages for loss to the earnings of the plaintiff ern Ry. Co. v. Hobbs, 151 Ala. 335, 43 South. as a physician, without there being any spe844; T. & N. O. Ry. Co. v. Ochiltree (Tex. cial allegations claiming damages therefor in Civ. App.) 127 S. W. 584; M., K. & T. Ry. the petition. We think the evidence was adCo. v. Gilbert et al. (Tex. Civ. App.) 131 missible as a preliminary question. The jury S. W. 1145; Southern Ry. Co. v. Sieg, 46 Ind. App. 259, 92 N. E. 194; Martin v. Garlock, 82 Kan. 266, 108 Pac. 92, 20 Ann. Cas. 84.

[2] Moreover, the court in another instruction, which seems to follow very closely an instruction approved by the Supreme Court of Illinois in Chicago West Div. Ry. v. Mills, 105 Ill. 63, limited the jury in its findings of negligence to the specific acts of negligence charged in the petition. It seems to be well settled that any generality in an instruction may be cured by other instructions which limit plaintiff's right of recovery to the specific negligence alleged in the petition. C., R. I. & P. Ry. Co. v. Johnson, 25 Okl. 760; Roney v. City of Des Moines, 150 Iowa, 447, 130 N. W. 396; Johnson v. St. L. & S. Ry. Co., 173 Mo. 307, 73 S. W. 173.

[3] Instruction No. 2, which the trial court

are the sole judges of the credibility of the witnesses, and have a right to all reasonable information to aid them in the exercise of this duty.

In 3 Encyc. of Evidence, 759, it is said:

"A witness may be questioned in his examination in chief with regard to his residence, occupation, the positions then or previously held by him, that the jury may fairly estimate the value and weight of his testimony."

In Georgia So. & F. Ry. Co. v. Ransom, 5 Ga. App. 740, 63 S. E. 525, it was held:

"The credibility of witnesses being a question entirely for the jury, any fact or circumstance that would tend to throw any light on that question, or that would assist the jury in weighing the testimony, is proper and relevant. The age, the business, the condition of a witness, whether married or unmarried, and whether he has children, frequently illustrate the question of his credibility."

As was aptly remarked in another opinion | consequences which were contingent, speculato the same effect (Castenholz v. Heller, 82 tive, or merely possible. The court said: Wis. 30, 51 N. W. 432): "The jury cannot know too much of a witness to properly weigh his testimony."

[5, 6] The rule is well settled that mental (Supreme Court of Oklahoma. April 13, 1915.) pain and suffering, accompanying personal injury or physical pain, is always the subject of compensation. The mental anguish, however, should be connected with the bodily in

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

to its coal chutes and pick up all coal dropped in so doing "and place the same on cars or engines where desired" by the company; also to break into certain dimensions and unload "all coal for stationary boilers; also to unload wood from cars to storage piles in its yards there and to load cinders on its right of way at points designated by the company"; also to be punctual and to discharge his duties thereunder without delay or inconvenience to the company, and should he fail, neglect, or refuse to perform the contract, the company had the right to terminate the same at any time without being liable in damages therefor; the company to be the sole judge as to whether he faithfully and satisfactorily performed the same: all tools to do the work were to be furnished by the company and returned by deceased at its termination; the company to keep a record of all coal delivered at the chutes for unloading and deceased to make daily reports of the cars unloaded under the contract and receive, collect, and deliver to the authorized agent of the company a ticket from each engineman or other employé, showing the number of tons of coal delivered to any engine, and not to sublet the work without the written consent of the company-held, that the relation existing between deceased and defendant thereunder was that of master and servant and not proprietor and independent contractor, and this, too, although the contract provided: "It is hereby agreed and understood that the contractor shall be deemed and held as the original contractor, and the railway company reserves and holds no control over him in the

doing of such work other than as to the result to be accomplished."

question of defendant's negligence was for the
jury.

[Ed. Note.-For other cases, see Master and
Servant, Cent. Dig. §§ 1001, 1006, 1008, 1010-
1015, 1017-1033, 1036-1042, 1044, 1046-1050;
Dec. Dig. 286.]

6. MASTER AND SERVANT 286-DEATH OF
RAILROAD EMPLOYÉ NEGLIGENCE OF EN-
GINEER-QUESTION FOR JURY.

Evidence examined, and held that, as the same reasonably tends to prove that the engi neer failed, while running the train in question, to use and operate the continuous train power brake, with which the train was equipped, in violation of the Federal Safety Appliance Acts of March 2, 1893, as amended by acts approved April 1, 1896, and March 2, 1903, the question of whether he did or not was for the jury.

[Ed. Note.-For other cases, see Master and Servant, Cent. Dig. $$ 1001, 1006, 1008, 10101015, 1017-1033, 1036-1042, 1044, 1046-1050; Dec. Dig. 286.]

Error from District Court, Garfield County; James W. Steen, Judge.

Action by A. P. Bond, administrator of the
estate of William L. Turner, deceased,
against the Chicago, Rock Island & Pacific
Railway Company. Judgment for plaintiff,
and defendant brings error. Affirmed.

C. O. Blake, R. J. Roberts, W. H. Moore,
J. G. Gamble, and K. W. Shartel, all of El
John C. Moore,
Reno, for plaintiff in error.

[Ed. Note.-For other cases, see Master and
Servant, Cent. Dig. §§ 144-151; Dec. Dig. 88.] of Enid, for defendant in error.

4. MASTER AND SERVANT 284-INJURY TO SERVANT-INTERSTATE COMMERCE-QUESTION FOR JURY.

TURNER, J. On June 4, 1913, defendant

Where, in a suit in damages for personal in error, A. P. Bond, as administrator of injuries based upon the Federal Employers' Liability Act (35 St. at L. 65), one defense was that although defendant was engaged in interstate commerce, deceased, if an employé of defendant, was not engaged in interstate commerce at the time he was killed, and where the contract existing between them in effect constituted deceased an employé of defendant at work in its yards at Enid at the time he was killed; and the evidence reasonably tended to prove that his duties were to unload cars of coal into its chutes and to unload the same from there into the tenders of its engines engaged in hauling its interstate and intrastate trains; that a record of the coal thus unloaded and loaded was kept in the shape of tickets deposited in boxes at the chutes; that it was the duty of deceased each day, between 4 and 6 o'clock, to turn these tickets in the nature of a report over to an agent of defendant at its freighthouse some distance up its tracks northward from its chutes; and that while crossing the tracks on his way to the freighthouse so to do he was run over and killed by one of defendant's backing trainsheld, that the evidence was sufficient to take to the jury the question of whether deceased was killed while engaged in interstate commerce.

[Ed. Note.-For other cases, see Master and Servant, Cent. Dig. §§ 1000-1090, 1092-1132; Dec. Dig. 284.]

5. MASTER AND SERVANT 286 - DEATH OF RAILROAD EMPLOYE-DISCOVERED PERILNEGLIGENCE-QUESTION FOR JURY.

Evidence examined and held that, as the same reasonably tends to prove that the engineer knew or ought to have known when he first saw deceased deflecting on the track in front of him that he would be upon the track when the train reached him and could have avoided injuring deceased by the exercise of proper care had the train been running at a lawful speed, the

the estate of William L. Turner, deceased,
sued plaintiff in error, Chicago, Rock Island
& Pacific Railway Company, in the district
court of Garfield county, in damages for per-
sonal injuries resulting in the death of his
intestate. The suit was brought under the
Federal Employers' Liability Act (35 St. at
L. 65), and upon the theory that defendant
was engaged in interstate commerce; that
deceased was an employé of defendant and
engaged in interstate commerce at the time
of his death, and that defendant's negligence,
among other things, consisted in operating
its train, which killed deceased, in violation
of the Federal Safety Appliance Act of
March 2, 1893, as amended by acts approved
April 1, 1896, and March 2, 1903. On June
24, 1912, defendant petitioned to remove the
cause to the United States Court for the
Western District of Oklahoma, which refus-
ed to take jurisdiction, and the cause was
remanded to the state court. After amended
petition filed and demurrer thereto overrul-
ed, on November 14, 1913, defendant, after a
general denial, answered admitting its cor-
porate existence, and that it was engaged in
interstate commerce, and that deceased met
death at the time and place set forth in the
petition; but denied that he was an em-
ployé of defendant at the time and alleged
that he was an independent contractor.
There was trial to a jury and judgment for
plaintiff and defendant brings the case here,

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

assigning that the court erred in refusing to direct a verdict for defendant at the close of all the evidence.

Also, for the purpose of settling with the contractor, that the company would keep a record of all coal delivered at the chutes for [1-3] As the undisputed facts disclose that unloading together with the number of tons deceased was run over and killed by one of in each car unloaded; that the contractor defendant's train of cars while it was back- would make daily reports of the cars uning in the company's yards at Enid, assum-loaded by him and "receive, collect, and deing that he was then and there in the discharge of his duties under the contract, the question whether he was an independent contractor or simply an employé of defendant turns upon the construction of the contract, and is a question of law for the court. Chicago, R. I. & P. Ry. Co. v. Bennett, 36 Okl. 358, 128 Pac. 705. This sends us to the contract. But before we examine the contract it is contended by counsel for plaintiff that the question of whether deceased was an independent contractor is res adjudicata because, he says, the United States court, in effect, held, in remanding the case to the state court, that such he was not, and, further, that he, at that time, was an employé of defendant engaged in an act of interstate commerce, and that such holdings are binding on this court. Plaintiff cites no authority in support of this proposition, and as we can find none and are of opinion that the only question decided by that court, which is binding on this court, is that it had no jurisdiction in this cause, we pass to the construction of the contract. It is dated November 10, 1910, and therein deceased is called the "contractor." It obligates him, at his own cost but for no specific time, to furnish all the labor necessary to handle all coal "required" by the company at Enid, from its cars to its coal chutes, and to pick up the coal dropped in so doing "and place same on cars and engines as desired" by the company. Also to break it into certain dimensions and "to unload all coal for stationary boilers." Also to unload wood from cars to storage piles in its yards there and to load cinders from its right of way to cars "at points designated by" the company. It required him to be punctual in the discharge of his duties thereunder, and to keep a sufficient number of men to unload the coal without unnecessary delay or inconvenience to the company, and provides that the company shall not be liable for his death or injury while employed in the work. Also, that should he fail, neglect, or refuse faithfully to perform the contract that the company reserves the right to terminate the same at any time without being liable in damages and to be the sole judge as to whether the contractor is "faithfully and satisfactorily" performing the same. All tools to do the work were to be furnished by the company, and were to be returned by the contractor at its termination. It further provides:

"It is hereby agreed and understood that the contractor shall be deemed and held as the original contractor, and the railway company reserves and holds control over him in doing such Work other than as to the result to be accomplished."

liver" to the authorized agent of the company "a ticket from each engineman, hostler, or other employé showing the number of tons of coal delivered to any engine." Closing, the contractor agrees not to sublet the work without the written consent of the company. Aiding in the construction of this contract the surrounding circumstances disclose that the yards referred to are located at Enid, and, between the company's engine house on the south and Market street crossing it at an obtuse angle on the north, is 3,100 feet long north and south and about 325 feet wide east and west. Running out of the engine house northward are four tracks; the distance from the engine house to the coal chutes, northeast on the right of way, is about 200 feet; on the right of way are numerous tracks some of which lead alongside this coal chute and from thence northward past stockpens, some 500 feet on the west, and a freighthouse and platform some 400 feet long, about 900 feet from the stockpens on the east, and the passenger depot some 700 feet from the freighthouse on the same side of the tracks and near Market street on the north. The tracks east of the depot and freighthouse are 9 in number, and include the main line, the passing track and yard track, and a water crane is located at the south end of the platform of the passenger depot which is about 550 feet long, from all of which it seems that this is the yard or right of way referred to in the contract, and that the coal chute referred to in the contract is 100 feet long and contains 22 pockets. Also that the cinders which deceased thereby contracted to load might be located anywhere upon this yard; that the storage piles of cordwood might also be so located, as might the sand cars to be unloaded, and that the engines to which he was required under the contract to supply coal might get it while alongside the coal chute or might receive it anywhere upon the numerous tracks in this extensive yard. Chicago, R. I. & P. Ry. Co. v. Bennett, 36 Okl. 358, 128 Pac. 705, lays down the rules by which to construe this contract and determine from it whether deceased was an independent contractor or a mere servant or employé of the company. This was a suit in damages by plaintiff against the company for negligently injuring him while in its employ as servant. One of the defenses was that, at the time he was injured, he was an independent contractor. The facts were undisputed and his contract with the company lay in parol. At the time he was injured he was employed by defendant to unload cars of coal into the tenders of defendant's engines as they lay

alongside, and he was injured while so doing. His tools were furnished by the company. Defendant contended, we presume, for an application of the rule laid down in Singer Manf. Co. v. Rahn, 132 U. S. 518, 10 Sup. Ct. 175, 33 L. Ed. 440, where that court held that the relation of servant existed only where the employer retained the right to say "not only what should be done but how it should be done," and insisted as plaintiff was paid by the ton that its station agent gave him no directions as to how he should unload the coal into the tenders; that he was an independent contractor. But in determining whether he was an independent contractor or not, the court, quoting approvingly from Thompson on Negligence, § 622, said:

* * In every case the decisive question is: Had the defendant the right to control, in the given particular, the conduct of the person doing the wrong? Does he reserve to himself the essential power of a master? It is but another form of language expressing the same idea to say that the true test to determine whether one who renders service to another does so as a contractor or not is to ascertain whether he renders the service in the course of an independent occupation, representing the will of his employer only as to the result of his work and not as to the means by which it is accomplished. On this question the contract under which the work has been done must speak conclusively in each case, reference being had, of course, to surrounding circumstances.'

And from 4 Words and Phrases, 3542: "An independent contractor is one who, exercising an independent employment, contracts to do a piece of work according to his own method, and without being subject to the control of his employer except as to the result of his work. Waters v. Pioneer Fuel Co., 52 Minn. 474, 55 N. W. 52, 38 Am. St. Rep. 564; Indiana Iron Co. v. Gray, 19 Ind. App. 565, 48 N. E. 803, S07."

"But," said the learned commissioner, "the test is not whether the defendant did in fact control and direct plaintiff in his work, but is whether it had the right under the contract of employment, taking into account the circumstances and situation of the parties and the work, to so control and direct him in the work. Moll on Independent Contractors, 35; Linnehan v. Rollins, 137 Mass. 123, 50 Am. Rep. 287. A case directly in point is that of C. P. Hamil ton v. Oklahoma Trading Co., 33 Okl. 81, 124 Pac. 38, and the numerous authorities cited and quoted from. See also Chas. T. Derr Const. Co. et al. v. Gelruth, 29 Okl. 538, 120 Pac. 253."

He further cites Moll on Independent Contractors, at page 76, where it is said:

"The ground upon which some decisions may be said to have proceeded was that, in view of the humble industrial status of the persons employed, and the simple character of the work to be done, the only admissible inference was that the employers intended to retain the right to give directions in regard to the details of the work."

And at page 77:

"It was held in Massachusetts that the employer's intention to retain the right of exercising control, and hence creating the relation of master and servant, should always be inferred when it appears that the employment was general, and not based on a contract to do a certain piece of work on certain specified terms in a particular manner and for a stipulated price."

And, governed by these rules, held that the plaintiff in that case was not an independent contractor but an employé of the company. If in that case plaintiff was held to be nothing more than a mere servant or employé, we cannot see how we can hold that he was other than that in this case. Considering the contract in whole and construing it in the light of surrounding circumstances: Here is deceased who was given a shovel by the company and put to work unloading cars of coal into a chute, placed there by the company, with directions to also unload sand from its cars at a point on its right of way to be designated by the company when occasion should arise. He was also required, under his contract, to load cinders, at points to be designated by the company, from its right of way into its cars. Also to unload cordwood where designated on storage piles along its right of way. Clearly in order to know what cars to unload he would have to be told by the company and, when told, the company would so far superintend his work and control his actions. And this too under the stipulation contained in the contract that he was liable to be discharged at any time or the contract terminated, which is practically the same thing, at the pleasure of the company. We can see nothing more in the contract than that deceased was a common laborer, an employé of and under the control and supervision of the company, and subject to discharge at the pleasure of the company.

It takes very little for courts to hold that one is subject to the control of another and hence a servant and not an independent contractor under the arrangements existing between them. In Johnson v. Hastie, U. P. Q. B. 232, one M. agreed to burn and clear off the timber on defendant's fallow at a certain price per acre. While doing so defendant, who lived a short distance away, came occasionally to see how the work was progressing, and on one occasion advised him to set fire to the log heaps. M. told him that a certain brush fence might take fire but defendant said it would make no difference. M. then fired the heaps and went home, during which time the fire spread and burned plaintiff's fences. It was held upon this evidence that M. was not an independent contractor over whom defendant had no control, but was his servant or employé. It seems the case turned on the act of control stated and defendant was held guilty of an act of negligence. In view of all of which we say that as the contract in question obligated deceased to furnish all labor "required" to handle all coal "furnished" by the company at Enid, and to unload its cars in its coal chutes “and place on cars or engines as desired" by the company, and "to unload all coal for stationary boilers" located no telling where on the company's right of way and to unload wood from its cars on storage piles in its yards