plication; but, as we have seen, there is no application which in any manner affects the obligation of the insurance company on its policy of insurance. Consequently, the clause quoted is of no force or effect, because it attempts to impose an obligation upon the insured which he must discharge within a specified time from the date of an instrument which in law has no existence and is of no binding force upon him. Or, to otherwise state the reason why the provision in the policy relied upon does not avail the company, the purpose thereof was to enforce the one in the application relating to chimneys; but, as the application in question was not executed until after the policy was issued in circumstances which did not affect it, there is no antecedent agreement to which it attached, or which fixes or affects the rights of the insured or his assignee. that the policy shall be void if the interest of the insured in the property be not truly stated herein, and that the insured concealed the fact that he was not the owner of the premises on which the house was situated, and falsely represented that he owned it. With respect to the alleged concealment and representations of Beach, regarding the title to the ground, there is no testimony whatever, as we have already pointed out, that he ever made any statements or representations whatever regarding title, so that the allegations regarding title were not proved. True, the answer alleges that the policy shall be void if the interest of the insured in the property be not truly stated therein; but the policy does not state what that interest is. We cannot go to the application upon which the insurance company relies for the purpose of determining that question, for the reason that It appears from the testimony that Beach, it is of no force or effect, and, in the circumsubsequent to the issuance and delivery of stances of this case, is no part of the policy. the policy, built an addition to the building Nowhere in the policy, so far as we are ad12x18 feet, and also added a second story to vised, is the interest of Beach in the ground the original building. Through the roof of upon which the building is situate specified. the second story he passed the stovepipe, True, the policy provides that it shall be void through a metal safety chimney, made of if the subject of insurance be a building on heavy galvanized iron, of such size that a ground not owned by the insured in fee simspace of two inches was left between the pipe ple; but this is not a statement as to what and the safety appliance. The policy pro- his title is to such ground, but merely a provides that it shall be void if the hazard be vision which will result in avoiding the polincreased by any means within the control icy if the insurance company sees fit to take or knowledge of the insured. One of the de- advantage of it. It has not done so by any fenses interposed was to the effect that by pleading on its part. The part of the answer the improvements and additions and passing upon which counsel relies to enforce a forthe stovepipe through the roof the hazard feiture because of the provision in the policy was increased. Whether or not the action of last referred to does not in any manner refer the insured with respect to the property cov- to such provision. If an insurance company ered by the policy increased the hazard be- wishes to take advantage of a clause in a yond that as it existed when the policy was policy which voids it, it must do so by pleadissued is one of fact. Joyce on Insurance, §ing facts squarely presenting that question. 2194; Kerr on Insurance, § 151, p. 417; Kir- According to the undisputed testimony comcher v. Milwaukee Mechanics' M. I. Co., 74 Wis. 470, 43 N. W. 487, 5 L. R. A. 779; Schenck v. Mercer Co. M. F. Ins. Co., 24 N. J. Law, 447; Le Roy v. Park Fire Ins. Co., supra. There was no testimony, either direct, or from which it could be inferred, that the additions to the building, or the passing of the pipe through the metal safety appliance, increased the hazard in the slightest degree, or that the loss was occasioned by fire which originated in the additions, or because of some defect in the safety appliance. On the contrary, it appears from the evidence that the fire originated in the kitchen, which was at all times equipped with a brick chimney. The claim that the policy was rendered void because the building was located on ground not owned by the insured in fee simple is not before us for consideration, because the pleadings do not present this defense. The part of the answer upon which counsel for defendant predicates the right to have this question considered stated, in substance, petent to consider under the issues made by the pleadings, the trial judge did not err in directing a verdict for the plaintiff. The judgment of the district court is affirmed. Judgment affirmed. In an action by a brakeman for injuries by the derailment of the car, evidence held to show contributing cause of the injury. that the excessive gauge of the rails was the [Ed. Note.-For other cases, see Master and Servant, Cent. Dig. § 959; Dec. Dig. § 276.*] 2. MASTER AND SERVANT (§ 278*)-INJURY TO SERVANT-DEFECTIVE RAILROAD TRACKS — INSUFFICIENT INSPECTION-EVIDENCE. In an action by a brakeman for injuries by the derailment of a car, evidence held to show that a proper inspection would have revealed the defects in the track of which complaint was 10. MASTER AND SERVANT (§ 230*)—INJURY TO made. [Ed. Note.-For other cases, see Master and Servant, Cent. Dig. § 968; Dec. Dig. § 278.*] 3. MASTER AND SERVANT (§§ 124, 127*)-INJURY TO SERVANT DEFECT IN RAILROAD TRACKS-DUTY TO INSPECT. - It is the duty of a railroad company to reasonably inspect its railroad tracks and remedy defects in gauge. [Ed. Note.-For other cases, see Master and Servant, Cent. Dig. §§ 235, 252; Dec. Dig. 88 124, 127.*] 4. MASTER AND SERVANT (§ 270*)-INJURIES TO SERVANT-EVIDENCE-INSUFFICIENT NUMBER OF SERVANTS. In an action for injuries to a brakeman resulting from a defective track, evidence of defendant's foreman as to difficulty in obtaining the full force of men, and that he had fewer men in his department than he desired, was admissible. [Ed. Note. For other cases, see Master and Servant, Cent. Dig. § 932; Dec. Dig. § 270.*] 5. MASTER AND SERVANT (§ 163*)-INJURY TO SERVANT-NUMBER OF SERVANTS-INSUFFI CIENCY. It is negligence for a master to employ an insufficient number of servants to safely do the work intrusted to them. [Ed. Note.-For other cases, see Master and Servant, Cent. Dig. §§ 328-330; Dec. Dig. 8 163.*] 6. EVIDENCE (§ 471*)-CONCLUSIONS OF WIT NESS. Testimony that "conditions generally about that switch were old and much worn" was a conclusion of the witness. [Ed. Note. For other cases, see Evidence, Cent. Dig. §§ 2149-2151; Dec. Dig. § 471;* Witnesses, Cent. Dig. §§ 833-836.] 7. APPEAL AND ERROR (§ 1051*)-HARMLESS ERROR-ADMISSION OF EVIDENCE-CONCLU SIONS. The admission in evidence of the conclusion of a witness was not prejudicial, where there was evidence of other witnesses disclosing the facts. 8. APPEAL AND ERROR (§ 232*)-OBJECTIONS IN LOWER COURT-EVIDENCE-GROUND OF OBJECTION. SERVANT-MINORS-MISREPRESENTATION AS TO AGE. Though a minor applying for employment misrepresents himself to be of age in order to secure employment, and such representation is believed by his employer, he is not thereby barred from a recovery for injuries from his employer's negligence; the effect of such representation being to place on the employer the same duty he would owe to an adult. [Ed. Note.-For other cases, see Master and Servant, Cent. Dig. § 689; Dec. Dig. § 230.*] 11. MASTER AND SERVANT (§ 103*)-INJURY TO SERVANT DEFECTIVE RAILROAD TRACK DELEGATION OF DUTY TO SERVANT INJURED. A railroad company is not relieved of the duty to know the condition of its track by the exercise of reasonable care, and cannot place upon a brakeman the duty to look for defects, as far as he could do so in the discharge of his duty. [Ed. Note.-For other cases, see Master and Servant, Cent. Dig. § 175; Dec. Dig. § 103.*] Appeal from District Court, Fremont County; M. S. Bailey, Judge. Action by Louis T. Reiter against the Denver & Rio Grande Railroad Company. From a judgment for plaintiff, defendant appeals. Affirmed. Joel F. Vaile, Waldo & Dawson, J. G. McMurry, E. N. Clark, and William W. Field, for appellant. Champion & Blunt and Richardson & Hawkins, for appellee. WHITE, J. The appellee was plaintiff below, and sued appellant to recover damages for personal injuries sustained by him through the alleged negligence of the latter. Plaintiff recovered a judgment, from which the defendant prosecutes this appeal. The plaintiff claimed that his injury was caused directly and approximately by the [Ed. Note.-For other cases, see Appeal and negligence and carelessness of the defendError, Cent. Dig. 88 4161-4170. Dec. Dig. &ant in causing to be used and maintained in 1051.*] the switch on its railroad track, at or near the point where he was injured, old, worn, unsafe, and unfit frogs, which would not perform the function and purpose for which they were designed, in causing to be used and maintained in said switch certain rails, called "guard" or "wing" rails, when the same were out of proper position, in that they were out of gauge, to such an extent Where testimony in the trial court was objected to as immaterial and irrelevant, the court on appeal will not consider an objection that the evidence was the opinion of the witness, and on a subject upon which expert testimony was not admissible. [Ed. Note. For other cases, see Appeal and Error, Dec. Dig. § 232.*] 9. EVIDENCE (§ 553*)—OPINIONS-EXPERT TES TIMONY. In an action for an injury resulting from the derailment of a car, a witness for defendant was permitted to give, without objection, his opinion as an expert as to the cause of the wheels leaving the track, and was then asked, "With that track in the condition in which you found it, would the fact that it was three-fourths of an inch wider than the actual gauge ** be such a defect as would probably cause a derailment or not?" Held, that an objection was properly sustained, as the question did not cover the conditions as they existed at the time of the injury. * [Ed. Note.-For other cases, see Evidence, Cent. Dig. §§ 2369-2374: Dec. Dig. § 553.*] as to render the passage of trains over said switch dangerous and hazardous, and in using and maintaining in said switch, as a part thereof, an old and rotten switch block and switch chairs, and in allowing the rail. road tracks constituting a part of said switch to be and remain out of repair and out of gauge. The defendant denied any negligence whatever upon its part, and alleged the assumption of the risk by the plaintiff, that he was a man of mature years and experience in the business and occupation in which he was then engaged, and familiar with the track, switch, frog, and guard rails mentioned in the complaint, and with the manner in which For other cases see same topic and section NUMBER in Dec. & Am. Digs. 1907 to date, & Reporter Indexes the same were used, and that plaintiff was guilty of contributory negligence. The appellant owned and operated a railroad, the main line of which passed through the city of Florence in Fremont county. From Florence in a westerly direction to the town of Coal Creek, in the same county, it owned a branch line, having three rails, permitting the operation over and upon the same of both standard and narrow gauge locomotives and cars. At a point between the city of Florence and Coal Creek, and about one-half mile from the latter town, the line of railroad was divided by means of a double pointed railroad switch; one branch extending to a coal mine called the "Old Slope," and the other branch extending to said Coal Creek. The appellee was employed by the defendant in the summer of 1904, at which time he represented himself to be of the full age of 21 years, though he did not attain his majority until October 26, 1905. A rule of the company required that minors "must not be employed in engine, train or switching service, or in other service, only upon the release from the parents or guardian." Upon entering the employment of appellant the appellee was assigned to work as a brakeman on the Coal Creek branch above designated, passing back and forth over it at least once a day each way, and sometimes oftener when the traffic was such as to require it. October 12, 1905, a train was made up at Florence and started to Coal Creek. It consisted of a narrow gauge car ahead, loaded heavily, with 12x12 green pine timbers; behind this narrow gauge car were six standard gauge empty cars, and behind these an engine, pushing the cars to their destination. The appellee was front brakeman on this train, and was properly riding upon the narrow gauge car. On approaching the double point switch at the east end of the left wing or guard rail, the left wheel of the forward truck of the narrow gauge car mounted the wing rail, and ran along the top thereof for several feet. The left wheel of the front truck took the wrong side of the frog, and eventually left the rails altogether, and ran along the ties, being deflected from the Coal Creek track to the Old Slope track. The wheels of the rear trucks of the narrow gauge car kept the Coal Creek track, as did all the other cars and locomotive constituting the train. By reason of the derailment appellee was jolted or thrown off the narrow gauge car, and fell in such way that the rear wheels of the car passed over his left leg, and injured it so seriously that it had to be, and was, amputated above the knee. The road through the switch was on a slight curve to the left, thus throwing the higher tracks to the right. The following diagram will aid in an understanding of the conditions where the injury occurred, and The lower track, marked No. 7, is the one upon which the left wheels of the trucks of the standard gauge cars and locomotive were traveling, No. 8 is the lower rail upon which the left wheels of the narrow gauge car were traveling, and No. 9 is the upper rail upon which the right wheels of all the cars were traveling. The double point frog extends from the point marked No. 1 to the point marked No. 2; the rail marked No. 3 is the lower wing or guard rail of the double point frog; the rail marked No. 4 is the upper guard rail of the double point frog; No. 10 is the head block of the switch; the dotted lines show the course of the derailed trucks of the narrow gauge car as shown by wheel marks on cross-ties; A is the point of the wing rail where the left-hand wheel of the front truck of the narrow gauge car first struck, and X is where the wheel finally Inounted to the top of the wing rail, along which it traveled to point B. The evidence discloses that the wing or guard rail at point A was very much worn as the result of car wheels striking against it, and glancing off; that the whole corner was worn off the ball of this rail three-quarters of an inch from the center down. After the wheel mounted the wing or guard rail at X it traveled along the top of the rail until it reached point B, where it dropped on the right-hand side of the point of the frog, instead of the left-hand side, and upon reaching the west end of the wing rail of the switch, jumped to the ties. The double point frogs were "badly worn five or six inches back, a full length of a hand." The width of the frog at the point where it was flush with the surface rail was seven-eighths of an inch. The switch block and switch chairs were old, rotten, and cracked. The | proper width or gauge of a standard truck is 4 feet 81⁄2 inches, and of a narrow gauge is 3 feet. The tracks comprising the switch were from three-fourths to seven-eighths of an inch wider than the proper gauge. Rails on curves should be from one-half to threefourths of an inch wider than the regular gauge, except in switches. "In a switch they should be laid to gauge." A car in running sticks to the outside of a curve, and a loaded car will hug the rail closer than an empty one. Appellant's section foreman testified: "Went to place of accident next day; the gauge was three-fourths of an inch out where wheel dropped into frog, catching the wrong side of the point [at point B]." If the track was out of gauge, three-fourths of an inch at point of frog (B), it would probably be more likely to make the flange of the wheel catch the wrong side of the point than if it had been in gauge. "I think it is a bare possibility it would derail a train there on that gauge." The evidence conclusively shows that appellant, as to the branch line in question, had no inspection service, and that, while it was the duty of the section foreman to inspect the tracks, as to the tracks in question he had not done so. He testified that he had three men most of the time, sometimes two, and with the condition the track was in there was enough work for two gangs; that while he had authority to get more men, he was short because he could not get them at the wages he was authorized to pay. The first contention of appellant is that the evidence wholly fails to establish any negli gence on the part of the appellant in the matters alleged in the complaint. Appellant assumes that the worn and battered condition of the point of the frog at B in no wise contributed to the injury, and proceeds to eliminate that feature of the evidence, and case, from consideration. This assumption is based upon the fact that the evidence clearly shows that the wheels left the track rail at point X, some 10 feet before the point B of the frog was reached, and that therefore the condition of the frog at point B had no effect whatever in causing the accident. We cannot accept the assumption indulged by counsel. When we collate in the mind the facts: That a car on a curve hugs the outside or upper rail; that the frog in question was on the lower side of the curve; that the point of the frog was battered down and broadened, and where it was flush with the surface of the rail was seven-eighths of an inch wide; that the gauge of the tracks was from threefourths to seven-eighths of an inch wider than it should have been; that the front wheels of the car mounted the wing rail of frog at point X, some 10 feet east of the point of the frog; that the wheel when it reached the frog, instead of dropping on the lower side of the point thereof, as it should have done, dropped on the upper side, and derailed the car-the mind is irresistibly impelled to the conclusion that the worn or battered condition of the point of the frog at B materially contributed to the derailment. Had the tracks been in proper gauge, or had the point of the frog at B not been worn and battered, the flange of the wheel would doubtless have caught the point of the frog on the lower side, and the accident would thereby have been averted. Appellant, however, contends that "where there is a curve," the rails must be set at a gauge one-half to one inch wider than on tangents, and that therefore the excess gauge at point B, or even at point X, was the proper gauge for curves, and in full accord with good railroad construction, as shown by all the evidence. We think counsel has drawn erroneous conclusions from the evidence. We cannot read from the record where any witness testifies that excess gauge is permissible in a switch or turnout. The witnesses agree that on curves an excess gauge is allowable, and that tracks are so made, except in switches, where they should be laid to gauge. The testimony further shows that the rule of the appellant company requires that all switches be laid to gauge. M. A. Ward, wrecking foreman of appellant company, testified: "On the D. & R. G. R. R. they lay switches to gauge; they | 38 L. Ed. 597; 4 Thompson on Negligence, do not to my knowledge use any such excess § 3789. as three-fourths of an inch." He further testified that if the track was out of gauge threefourths of an inch, that might account for the accident taking place just as it did. It is further argued that it was physically impossible for the excess width of the gauge to have caused or contributed to the derailment. It is said that the tread of the narrow gauge wheels is four inches, and, assuming that the right-hand wheel hugged its rail so that the entire excess of width came upon the left wheel, there would still be threefourths of an inch of the wheel upon its proper rail. This very fact, however, coupled with the worn and battered condition of the point of the frog at B, warrants the conclusion that the excess gauge was a contributing cause of the injury. It lessened the probability of the wheel taking the point of the frog. The appellant argues that the complaint charges the defendant with failure to provide "inspection service," and not that the inspectors who were provided were negligent in the performance of their duty, and that it affirmatively appears that the "inspection service" and "system" provided and maintained by the appellant did include occasional testing of the gauge of the track by its section foreman, and an immediate and special test when anything appeared to suggest suspicion. Counsel has evidently overlooked important allegations of the complaint. Paragraph 5 directly charges failure to inspect; paragraphs 6 and 7 also in effect so charge; and paragraph 8 not only alleges failure to inspect, but that no inspection service was provided or maintained. It is said that there is nothing in this record to indicate that a duty was imposed upon appellant, or any of its employés, to make an inspection differing in any respect from that which they did make; that there were no facts established upon which could be predicated a legal duty upon the appellant or its employés to apply a measuring stick or gauge at each or any particular point after the passage of any train, or every day, or at any other specified period. The latter part of this allegation is quite true; but there was evidence that at switches and upon curves it was necessary to frequently gauge the track, and that the particular curve or switch in question had not been gauged at all. We are clearly of the opinion that the evidence conclusively shows that a proper inspection would have revealed the defects of which complaint is made. The duty of reasonable inspection on the part of the defendant of its track was primary and inalienable, and it was bound to discharge it, or cause it to be discharged in a suitable and proper manner. Maydole v. D. & R. G. Co., 15 Colo. App. 449, 452, 62 Pac. 964; U. P. Ry. Complaint is made that the court, over the objection of defendant, permitted witness O'Brien, who at the time of the accident was section foreman of defendant, to testify that there was difficulty in obtaining a full force of men, and that he did not have as many men in his department as he desired. He also testified that he had not inspected this particular portion of the track because he was busy elsewhere. Under the circumstances we do not think the admission of this testimony was error. It is clearly negligent for a master to employ an insufficient number of servants to properly and safely do the work intrusted to them. Buswell's Law of Personal Injuries (p. 398, Ed. 1899) § 200; Patterson on Railway Accident Law, § 309. Over the objection of the appellant a witness was permitted to testify that "conditions generally about that switch were old and much worn," and the action of the court therein is complained of and said to constitute reversible error. While the words used are unquestionably a conclusion of the witness, yet the evidence of that and other witnesses did disclose the facts showing the old and much worn condition about the switch. If it was error, it was error without prejudice. It is said that plaintiff's track expert was, over objections of defendant, permitted to give his opinion directly upon the question whether the frog, with the conditions existing, was safe and efficient, and that it was a subject upon which expert testimony was not admissible. Coe v. Van Why, 33 Colo. 315, 80 Pac. 894, is cited in support of the contention. By an inspection of the record we find it unnecessary to determine the question. The objection interposed to this evidence was its immateriality and irrelevancy, "because the testimony has shown that this was not the point at which this car left the track, and was not the approximate cause of the derailment or injury." The testimony was not objected to upon the grounds here urged. United Oil Co. v. Roseberry, 30 Colo. 177, 69 Pac. 588. Appellant argues that, when it undertook to bring before the jury expert testimony by similar questions to witness West, the court refused to permit it; and it is said that, in view of the previous admission of testimony of the same kind, it was inequitable and grievous error to deny the defendant the right and opportunity to introduce expert testimony upon the subject. The record does not support the contention of appellant in that respect. A witness for defendant was permitted to give, without objection, his opinion as an expert as to the cause of the wheels leaving the track, and was then asked: "With that track in the condition in which you found it in every other particular, |