in the highway caused by piles of sand that [5] One of the points most strongly pressed had existed five days or more, and that the is that the findings as to notice were not suptownship trustee had actual personal knowl-ported or sufficient. These were to the effect edge thereof at least five days prior to the that the township trustee had actual notice time of the injury. The defendant complains of the defect at least five days prior to the that the trial court overruled a demurrer to time of the injury, which notice consisted of the petition, an objection to the introduction personal knowledge, and that he received of evidence, a demurrer to the plaintiff's evi- this notice Monday before the accident, dence, and a motion for new trial, and erred which was about dark on the following in the instructions and in the admission of Saturday. There was considerable testimony evidence. indicating that the roadway was obstructed a week or ten days before the accident and the trustee himself testified that he was di The petition and the evidence, respectively, charged and fairly tended to show a cause of action in favor of the plaintiff and a corrector of the work of construction. The lanresponding liability against the township. [2, 6] The statute authorizes a recovery for damage by reason of any defective bridge, culvert, or highway (Gen. Stat. 1909, § 658), and, while counsel are correct in their assertion that a duty rested upon the township to repair the bridge in question, this duty did not authorize the obstruction of the highway leading thereto or relieve the township from responsibility for rendering and leaving it in a defective and dangerous condition. The fact that the bridge was undergoing repairs did not relieve the township from keeping the highway in condition for travel. To hold otherwise would make it possible for the township board to continue a road in dangerous condition at will so long as the excuse of repair or reconstruction could be advanced. There is no inconsistency between the duty to repair and the duty to keep in safe condition. As said in Cunningham v. Clay Township, 69 Kan. 373, 377, 76 Pac. 907, 908: "The liability of the township is founded upon neglect of the duty to keep the highway in repair. But instead of the general requirement of ordinary diligence in the discharge of such duty the statute substitutes a specific test. When injury is sustained by reason of a defective highway, if the township trustee has had five days' notice of the defect the township is liable, however great care the officers may have exercised. ** The statute makes its own definition of actionable negligence." Jacobs v. Bangor, 16 Me. 187, 33 Am. Dec. 652, and cases cited; Snowden v. Town of Somerset, 52 App. Div. 84, 64 N. Y. Supp. 1088; Hurst v. Taylor, 14 Q. B. D. 918. See Higmon v. Quindaro Township, 89 Kan. 476, 132 Pac. 215, and cases cited, holding that the absence of a safeguard constitutes a defect within the meaning of the statute. In Sims v. Williamsburg Township, 92 Kan. 636, 141 Pac. 581, it was held that actual knowledge of conditions naturally productive of injury, obtained while repairing a road, constitutes notice of defect. [3] The complaints regarding the admission of evidence have been examined, and nothing substantially prejudicial appears. [4] Fault is found with certain statements made in argument by one of the counsel, but the record discloses that the trial court acted promptly, properly, and sufficiently in this matter. guage of the statute is: "Shall have had notice of such defects for at least five days prior to the time when such damage was sustained." Gen. Stat. 1909, § 658. Long before this enactment the Legislature had laid down the rule that: "The time within which an act is to be done shall be computed by excluding the first day and including the last." Civil Code, § 747 (Gen. St. 1909, § 6343). As early as the eighteenth Kansas it was said: "But we take the law to be well settled, however, in matters of practice, where any particular number of days not expressed to be clear days is prescribed, the rule in regard to the computation of time, is, not to exclude both the day on which the notice is served, and the day on which the act is to be performed, but to exclude the one and include the other. The spirit, if not the letter of our statute, sustime within which an act is to be done shall be tains this computation. It provides that 'the computed by excluding the first day, and including the last.'" Dougherty v. Porter, 18 Kan. 206, 209. In Northrop v. Cooper, 23 Kan. 432, the rule was applied to a case requiring publication "for at least 30 days before the day of sale." The same argument was made there as here, that 30 full days were intended. In Schultz, Adm'x, v. Hine, 39 Kan. 334, 337, 18 Pac. 221, 222, the same rule was followed, and it was said: "Three days before the time of appearance are required; and we think this provision does not contemplate that three full days shall elapse between the day of service and the day of apfrom the statutory rule of computing time." pearance, or that any exception shall be made See, also, Howbert v. Heyle, 47 Kan. 58, 63, 27 Pac. 116; Matthews v. Arthur, 61 Kan. 455, 59 Pac. 1067; Erie Township v. Beamer, 71 Kan. 182, 183, 79 Pac. 1070; State v. Sessions, 84 Kan. 856, 858, 115 Pac. 641, Ann. Cas. 1912A, 796. Following, therefore, the well-established rule, it must be held that actual knowledge acquired on Monday was sufficient; the injury occurring the following Saturday evening. The judgment is affirmed. All the Justices concurring. (98 Kan. 452) curred while employed as a switchman by GIERSCH ▼. ATCHISON, T. & S. F. RY. CO. the defendant company as a result of being (No. 20202.) crushed between two freight cars in the de (Syllabus by the Court.) 1. MASTER AND SERVANT (Supreme Court of Kansas. June 10, 1916.) fendant's yards at Emporia. The defendant appeals and error is assigned upon the rejection of certain evidence, the overruling of a demurrer to the plaintiff's evidence, in giving and refusing instructions, and in denying a motion to set aside certain special findings, a motion for judgment on the special findings and a motion for new trial. The principal contention, save one, is that the evidence failed to make out a case. other question presented will be first consid 267(1)-DEATH OF SWITCHMAN-EVIDENCE. In an action brought by a widow to recover for the death of her husband who was killed while engaged in the work of switching, the answer consisted of a general denial and the averments of contributory negligence and assumption of risk. In the defendant's testimony it appeared that the car against which the deceased was crushed was at the time an interstate car. This evidence was first received over objection and afterwards stricken out. Held, that it was properly received and erroneously stricken out. [Ed. Note.-For other cases, see Master and Servant, Cent. Dig. § 909; Dec. Dig. 267(1).] 2. MASTER AND SERVANT 2504, New, vol. 15 Key-No. Series-DEATH OF SWITCHMANINTERSTATE EMPLOYMENT. The testimony referred to in the foregoing paragraph brought the liability of the defendant, if any, for the death of the deceased under the federal Employers' Liability Act April 22, 1908, c. 149, 35 Stat. 65 (U. S. Comp. St. 1913, §§ 8657-8665) exclusively, and as the widow cannot maintain an action thereunder she cannot recover herein. PLEADING AND 3. DEATH 57 PARTIES PROOF. While ordinarily any defense to be relied upon should be pleaded, the question here is one of the capacity of the plaintiff to maintain the action, and her incapacity was proper to be shown under the pleadings as they were framed. [Ed. Note.-For other cases, see Death, Cent. Dig. 74; Dec. Dig. 57.] 4. EVIDENCE 174(1)-RAILROAD REPORTS— CARBON COPIES. The testimony referred to consisted of carbon copies of official railroad reports made in the usual course of business, and were competent. [Ed. Note.-For other cases, see Evidence, Cent. Dig. 88 561, 563, 568, 569; Dec. Dig. 174(1).] 5. APPEAL AND ERROR 231(3)—HARMLESS ERROR-ADMISSION OF EVIDENCE, The fact that without specific and serious objection on the ground that the witness was permitted to testify as to the contents of such carbon copies instead of their being formally introduced in evidence, held not to constitute material error. [Ed. Note.-For other cases, see Appeal and Error, Cent. Dig. § 1299; Dec. Dig. 231(3); Pleading, Cent. Dig. § 1439; Trial, Cent. Dig. §§ 194-200.] ered. The The petition was filed under the statute (Gen. Stat. 1909, §§ 6014, 6015; Code Civ. Proc. §§ 419, 420) praying judgment for $10,000 and alleging the nonacceptance of the provisions of the Workmen's Compensation Act (Laws 1911, c. 218). The answer, after admitting the alleged corporate character of the defendant, consisted of a general denial and averments of contributory negligence and assumption of risk. The reply denied every allegation in the answer not admitted by the petition. The testimony showed that the deceased was a switchman in the Emporia yards, that in attempting to adjust the knuckle on a slowly moving flat car he was crushed by the moving upon him of the other cars from which the one mentioned had been uncoupled. When the plaintiff's testimony was closed nothing had been said as to the character of the car in question. The defendant demurred to the evidence on the ground that it did not prove facts sufficient to constitute a cause of action, and, on being asked by the Court whether counsel desired to argue the demurrer, the answer was: "I think your honor has seen enough of these questions tried to decide the question without argument. There is a point, but I do not wish to call the court's attention to it now." The Court: "I do not wish to hear you unless you have something particular that you wish to call the court's attention to; if you have not, I will pass upon it now." To which counsel responded: "I think that the general grounds I have stated is all." The defendant thereupon introduced its evidence and one of its witnesses testified Johnston, C. J., and Mason and Marshall, JJ., that the car which had been uncoupled was dissenting. S. P. 79329 and belonged to the Southern PaAppeal from District Court, Lyon County. cific. Another witness, a traveling car acAction by Jessie Giersch against the At-countant of the defendant, testified that a chison, Topeka & Santa Fé Railway Company. Judgment for plaintiff, and defendant appeals. Reversed and remanded. W. R. Smith, O. J. Wood, A. A. Scott, and Harlow Hurley, all of Topeka, and W. L. Huggins, of Emporia, for appellant. W. S. Kretsinger and Hamer & Ganse, all of Emporia, for appellee. WEST, J. Jessie Giersch recovered a judgment for the death of her husband in complete record of the movement of cars is kept making up what is called the conductors' wheel reports of each train showing the car and its movements which reports were in duplicate and on file in the defendant's office. He further testified that this record showed that the car in question was received from another line at Shawnee, Okl., moved into Emporia from Arkansas City on December 26th, from Emporia to Topeka on the 26th, Coddington and back to Emporia on that if the defendant desired to avail itself of this it should have followed the usual practice and given notice thereof when stating its defense by way of answer. It would be more accurate, however, to say that the real question is whether or not in view of the condition of the pleadings the defendant had a right by competent evidence to show that whatever liability might exist the widow could not maintain the action. If, as a matter of fact, her late husband was engaged in interstate commerce, the law of the the 27th, empty in extra 1837 Humfert, arrived in Emporia December 28th, arriving in and out of Emporia the 29th, destination being Ft. Worth, Tex. He stated that this record from which he had been testifying was a carbon duplicate of the report made up and sent in to the car accountant's office by the conductors. An objection was made to all the answers of this witness because the same are "incompetent, irrelevant, and immaterial, did not prove or tend to prove or disprove any issues in this lawsuit, and the evidence is not competent because it is hear-state affords her no remedy, and her right say, not being the best evidence." This objection was overruled, but later the evidence was stricken from the record. to recover becomes a clear federal question, which must be solved in accordance with the federal decisions thereon. In affirming the decision of this court in Brinkmeier v. Railway Co., 81 Kan. 101, 105 Pac. 221, the Supreme Court, in Brinkmeier v. Mo. Pac. Ry. Co., 224 U. S. 268, 32 Sup. Ct. 412, 56 L. Ed. 758, held that as the petition did not state a cause of action under the Safety Appliance Act, but at most a right of recovery under the common law, the ruling upon the sufficiency of the evidence did not involve a federal question. Also that the refusal to permit the amendment of the petition so as to come under the federal act after the statute of limitations had run, involved only a question of pleading and practice under the state law, and was not subject to federal review. Some contention is made that certain portions of the record are presented here through the briefs instead of the abstracts, but as both parties are about equally at fault in this respect we will consider the matters as if abstracted in the usual way. It is now strenuously contended that the testimony of this witness was not only competent, but that it demonstrates that the car upon which the deceased was working was at the time an interstate car, and therefore the plaintiff's cause of action was under the federal, and not the state, statute, and as the former does not permit the suit to be brought by the widow, but only by the administrator or personal representative, the plaintiff cannot pre-But here we have the opposite. The evidence vail. [1, 2] In the former days of strictness carbon copies of office records like those in question would not be deemed competent, but practical requirements of business, and the application of common sense by the courts have brought about a recognition of the competency of such records. Darling v. Railway Co., 76 Kan. 893, 93 Pac. 612, 94 Pac. 202; Bourquin v. Railway Co., 88 Kan. 183, 127 Pac. 770; Wilkes v. Coal Co., 95 Kan. 493, 148 Pac. 768; Enright v. Railway Co., 96 Kan. 546, 152 Pac. 629. On this we are unanimous. That the witness should be permitted over objection to sit and relate his conclusions as to what the carbon copy of the official report showed instead of such copy being offered in evidence is, in the opinion of the writer, a sort of judicial atavism rather than a recognition of any recognized or sensible rule of evidence. Twice in her brief the plaintiff calls attention to the fact that the papers themselves were not offered in evidence. The majority, however, conclude from all the circumstances that the real objection was to the copies and not to the construction thereof by the witnesses, and regard it as if the witness had held in his hand a letter and proceeded to give the contents without objection instead of having it read to the jury. [3-5] The remaining point is the effect of this evidence in view of the fact that no hint in the pleadings can be found that a defense of an interstate nature was to be made, and it is argued with much force and consistency brought the case under the federal statute and this of necessity involves a federal question. In American R. R. Co. v. Birch, 224 U. S. 547, 557, 32 Sup. Ct. 603, 606 (56 L. Ed. 879), it was held that the federal Employers' Liability Act gives the right of recovery to the personal representatives, and not to the heirs, and that the latter cannot maintain an action, even where the local statute gives a right to the heirs as well as to the personal representatives to maintain such an action. In the opinion it was said: "But this distinction between the parties to sue and the parties to be benefited by the suit purpose we must yield. makes clear the purpose of Congress. To this * In the present case it looks like a useless circumlocution to require an administration upon the deceased's estate, but in many cases it might be much the simpler plan and keep the controversy free from elements but those which relate to the cause of action. But we may presume that all contending considerations were taken into account and the purpose of Congress expressed in the language it used." 229 U. S. 156, 33 Sup. Ct. 651, 57 L. Ed. 1129, In St. L. & San Francisco Ry. v. Seale, Ann. Cas. 1914C, 156, it was held that: applies, no one but the injured employé or, in "Where the federal Employers' Liability Act case of his death, his personal representative, can maintain the action." Further, that: "An employé whose duty is to take the numbers of, and seal up and label, cars, some of which are engaged in interstate, and some in intrastate, traffic, is directly and not indirectly engaged in interstate commerce." "Where plaintiff's petition states a case under the state statute, but on the evidence it appears that the case is controlled by the federal statute, and the defendant has duly excepted, the state court is bound to take notice of the objection and dismiss if plaintiff is not entitled to recover under the federal statute." In that case the defendant at the close of the evidence requested a directed verdict on the ground that the liability was controlled by the federal statute, which request was denied. The court said: "It comes then to this: The plaintiffs' petition, as ruled by the state court, stated a case under the state statute. The defendant by its special exceptions called attention to the federal statute and suggested that the state statute might not be the applicable one. A plea in abatement would have been unavailing, because the plaintiffs were the proper parties to prosecute that case. When the evidence was adduced it developed that the real case was not controlled by the state statute but by the federal statute. In short, the case pleaded was not proved and the case proved was not pleaded. In that situation the defendant interposed the objection, grounded on the federal statute, that the plaintiffs were not entitled to recover on the case proved. We think the objection was interposed in due time, and that the state courts erred in overruling it." 229 U. S. 161, 33 Sup. Ct. 653, 57 L. Ed. 1129, Ann. Cas. 1914C, 156. In Toledo, St. L. & West. R. R. Co. v. Slavin, 236 U. S. 454, 457, 35 Sup. Ct. 306, 307 (59 L. Ed. 641), the evidence showed that although the case was brought under the state statute, the plaintiff was injured while engaged in interstate commerce, and it was held that the objection that he could not recover under the federal Employers' Liability Act was not a technical rule of pleading, but a matter of substance, and that where there are substantive differences between the state and federal statutes in regard to defenses of assumption of risk and contributory negligence, proceeding under the former is reversible error. Neither the complaint nor the answer contained any reference to the Employers' Liability Act, but over plaintiff's objection evidence was admitted which showed that the train on which the plaintiff was riding when injured was engaged in interstate commerce. The railroad company then insisted that the case was governed by the federal act and moved the court for a directed verdict. This was overruled, and the court refused to charge in respect to the provisions of the federal statute, being of the opinion that the case was within the Ohio statute. The plaintiff recovered and the judgment was reversed by the circuit court of Lucas county on the ground that the plaintiff was injured while engaged in interstate commerce. This judgment was in turn reversed by the Supreme Court of Ohio. Slavin insisted that the defendant's failure to plead the Employers' Liability Act made it improper to consider the evidence touching the interstate character of the train on which he was injured. The court said: "But a controlling federal question was necessarily involved. For, when the plaintiff brought suit on the state statute the defendant was entitled to disprove liability under the Ohio act, by showing that the injury had been inflicted while Slavin was employed in interstate business. And, if without amendment, the case proceeded with the proof showing that the right of the plaintiff and the liability of the defendant had to be measured by the federal statute, it was error not to apply and enforce the provisions of that law." The Seale Case was followed, and it was said that in the Slavin Case the Ohio statute abolished the rule of the common law as to assumption of risk, while the federal statute left it in force, except when the injury was due to violation of certain statutes, and that the case should have been tried and determined according to the federal Employers' Liability Act. N. Y. Central R. R. v. Carr, 238 U. S. 260, 35 Sup. Ct. 780, 59 L Ed. 1298, involved the case of a brakeman on an intrastate car in a train consisting of both intrastate and interstate cars engaged in cutting out the former so that the train could proceed on its interstate business, and it was held that for an injury received while so engaged he could maintain an action under the federal act. Penna. Co. v. Donat, 239 U. S. 50, 36 Sup. Ct. 4, 60 L. Ed. —, was an action based on the federal statute, and the trial court left it for the jury to say from the facts whether or not the plaintiff was engaged in interstate commerce, and refused to charge that he was not so engaged, and therefore could not recover. The case was begun in the United States District Court. Two loaded cars coming from without the state were received in the yards at Ft. Wayne, Ind. Acting under instructions Donat began the switching movement necessary to place them on the required switch track, and it became necessary to uncouple the engine from the loaded cars, and with it to remove the empty ones from the private track. It was held that the court properly submitted the interstate question to the jury, and that a writ of error based on the refusal to charge that the plaintiff was not engaged in interstate commerce and could not recover was frivolous. In Atlantic Coast Line R. R. v. Burnette, 239 U. S. 199, 200, 201, 36 Sup. Ct. 75, 76 (60 L. Ed. -), the plaintiff, who was injured while working upon a train running from South Carolina to North Carolina, was given a judgment by the state Supreme Court (163 N. C. 186, 79 S. E. 414), which assumed that the case was governed by the federal act. It seems that the errors complained of were that the state court held the federal statute applicable and declined to regard the statute of limitations as a bar because not pleaded. The federal Supreme Court reversed the decision. was said: It "It would seem a miscarriage of justice if the plaintiff should recover upon a statute that did not govern the case, in a suit that the same act declared too late to be maintained. A right may be waived or lost by a failure to assert it at the proper time. Burnet v. Desmornes, 226 U. S. 145 [33 Sup. Ct. 63, 57 L. Ed. 159.] But when a party has meant to insist on all the rights it might have, such a result would be unusual and extreme. The record shows a case to which the act of 1908 did not apply, and which on offered and refused. In Pecos & Northern the earlier act of 1906 probably Ry. v. Rosenbloom, 240 U. S. 439, 441, 36 could not affect. * It also shows that the action was brought too late, and that the de- Sup. Ct. 390 (60 L. Ed. -), it was decided fendant insisted upon that point, although it that when an employé of an interstate carrier had not pleaded what was apparent on the alle- is engaged in interstate commerce when killgations of the declaration and the admissions of ed the right of recovery depends upon the the answer. In dealing with the enactments of a paramount authority, such as Congress is, federal act, which permits suits to be brought within its sphere, over the states, we are not only by a personal representative. The widto be curious in nomenclature if Congress has ow sued for the benefit of herself and her made its will plain, nor to allow substantive two minor children and recovered a verdict rights to be impaired under the name of proe for $7,000. It appeared from the evidence dure. Central Vermont Railway v. White, 238 C. S. 507, 511 [35 Sup. Ct. 865, 59 L. Ed. 1433]. that the train in question consisted of 30-odd But, irrespective of the fact that the act of cars moving, with one exception, in interstate Congress is paramount, when a law that is relied commerce, and there was enough shown to on as a source of an obligation in tort sets a support a finding that when killed he was limit to the existence of what it creates, other jurisdictions naturally have been disinclined to engaged in interstate commerce. An instrucpress the obligation farther." tion, to the effect that if so engaged the jury 185, 60 L. Ed. an should return a verdict for the defendant on its special plea that the plaintiff had no right to maintain the suit in capacity of which she sued, was refused. said: The court If when there was nothing on which to base such request, The ruling in Seaboard Air Line v. Kenney, 240 U. S. 489, 36 Sup. Ct. 458, 60 L. Ed. was that the federal act is paramount and exclusive, and recovery under it can be had only in the mode prescribed and by and for the person in whose favor it creates and bestows a right of action. The court refused an instruction that un der the law and the evidence the plaintiff could not recover. The defendant excepted to the ruling of the court striking from the record the testimony of the witness concerning the interstate character of the car. In Seaboard Air Line v. Koennecke, 239 U. S. 352, 36 Sup. Ct. 126, 60 L. Ed. action was brought by the widow for the benefit of herself and children. South Carolina had a statute similar to Lord Campbell's Act. In view of testimony brought out on cross-examination of plaintiff's witness, she asked leave to bring the case under the federal act; the declaration not disclosing under which statute the action was brought. The amendment was allowed, and the defendant objected to going on with the trial; but, counsel refusing to make the plea of having been taken by surprise, the trial was ordered to proceed. It was held that the trial court may have considered that the defendant was endeavoring to get a technical advantage. It was held that the cause of action arose under a different law by the amendment but the facts were the same whichever law gave them effect, and that it was not error to allow the amendment. In Chicago, Rock Island Ry. v. Wright, 239 U. S. 548, 36 Sup. Ct. an employé was injured when taking an engine from Phillipsburg, Kan., to Council Bluffs, Iowa, and it was held that the responsibility of the company was covered by the federal act, and that it The question before us goes to the vitals was error to submit the case to the jury of the plaintiff's right to maintain the acunder the state statute of Nebraska where tion. Having concluded that the testimony the action was brought. There, however, was competent it follows that it either showthe action was by the personal representa- ed or fairly tended to show that the deceased tives, and it was held that as the employer was killed while engaged in interstate comwas not prejudiced by the difference be- merce according to the settled federal rule. tween a federal and state case, the error in This being true the state law affords no retreating it as under the latter instead of the lief, and the federal act precludes the plainformer was not prejudicial, and therefore the tiff from maintaining the action. As the judgment was affirmed. No question was federal act furnishes the sole remedy, it folraised as to the right of the plaintiff to main- lows that the plaintiff as widow cannot maintain the action in either event. In Seaboard tain an action thereunder. The evidence havAir Line v. Horton, 239 U. S. 595, 601, 36 ing been rightfully received, and the court Sup. Ct. 180, 183 (60 L. Ed. ), it was held thereby apprised of the situation precluding that the distinctions between the assumption the plaintiff's right to recover, such evidence of risk and contributory negligence become im- was improperly and erroneously stricken portant under the federal Employers' Liabili- from the record, because, while not pleaded ty Act, "which in ordinary cases recognizes as- as a defense, nevertheless it was competent sumption of risk as a complete bar to the ac- under the general denial to show that the tion, while contributory negligence merely mit- plaintiff was not the proper party to recover, igates the damages." It should be observed just as it would be in a case under the state that in the case at bar not only was assump- law to show that she is not the widow or tion of risk pleaded, but an instruction there- | next of kin as alleged. |