have the right to seek the next most available place, the one that reasonably offers the place of greatest safety, and with proper caution occupy the same until the carrier shall provide them with better. Our Legislature, following the example of some of the older states, recognized this right at an early period of our territorial existence, and enacted statutory provisions which, in a great measure, control the determination of the question before us. These provisions are as follows:

Wilson's Rev. & Ann. St. 1903, § 657: “A carrier of persons for reward must use the utmost care and diligence for their safe carriage, must provide everything necessary for that purpose, and must exercise to that end a reasonable degree of skill."

Section 658: "A carrier of persons for reward is bound to provide vehicles safe and fit for the purposes to which they are put, and is not excused for default in this respect by any degree of care."

Section 659: "A carrier of persons for reward must not overcrowd or overload his vehicle."

Section 660: "A carrier of persons for reward must give to passengers all such accommodations as are usual and reasonable, must treat them with civility, and give them a reasonable degree of attention."

Section 712: "A common carrier of persons must provide a sufficient number of vehicles to accommodate all the passengers who can be reasonably expected to require carriage at any one time."

Section 713: "A common carrier of persons must provide every passenger with a seat. He must not overload his vehicle by receiving and carrying more passengers than its rated capacity allows."

Section 714: "A common carrier of persons may make rules for the conduct of his business, and may require passengers to conform to them, if they are lawful, public, uniform in their application, and reasonable."

Section 1050: "In case any passenger on any railroad shall be injured while on the platform of a car while in motion, or in any baggage, wood or freight car, in violation of the printed regulations of the corporation, posted up at the time in a conspicuous place inside of its passenger cars, then in the train, such corporation shall not be liable for the injury; provided, it had furnished room inside its passenger cars sufficient for the accommodation of its passengers."

Section 1051: "When fare is taken by any railroad corporation for transporting passengers on any mixed train of passenger and freight cars, or on any baggage, wood. gravel or freight car, the same care must be taken and the same responsibility and duties are assumed by the corporation as for passengers on passenger cars."

When the plaintiff purchased his ticket and paid his fare to the station agent at Tecumseh, he was a passenger for reward, and entitled to transportation upon the defend

ant's train from Tecumseh to Shawnee; and it was the duty of the railway company to provide him a suitable vehicle in which to ride, safe and fit for the use, to provide hin. with such accommodations as were usual and reasonable, to provide him with a seat and give him a reasonable degree of attention, and no degree of care would excuse any default in this respect. The railway company was a carrier of persons for hire or reward, and was operating a mixed train, consisting of passenger and freight cars. upon which it received the plaintiff as a passenger. In such case the law required of the carrier the "utmost degree of care and diligence for his safe carriage," and imposed upon it the same responsibility and duty as for carrying passengers upon passenger cars. It is true the carrier is permitted to make rules and regulations for the conduct of its business, and if such rules are lawful, are public, reasonable, and uniform in their application, may require the passengers to obey them. The manner of making such rules public, so as to charge passengers with notice thereof, is prescribed by the statute, they must be "posted up at the time in a conspicuous place inside of its passenger cars then in the train." If such regulations are so posted, and the passenger is injured while violating such reasonable rules, then such passenger cannot recover, provided the carrier had furnished room inside its passenger cars sufficient for the accommodation of its passengers. The statute exempts the carrier from liability for injuries to a passenger, when injured on a platform or in a baggage car, when it has performed two conditions, viz.: Posted up in its passenger cars in a conspicuous place printed regulations forbidding the passenger to occupy such places, and provided him with sufficient accommodations in its passenger coaches. It necessarily follows that if the carrier has failed in either of these requirements, and the passenger is injured by the negligence of the carrier while riding upon the platform or in the baggage car, the carrier is liable for such injuries.

Whether the statute relating to the liability of carriers for injuries to passengers upon platforms or in baggage cars is an adopted one we are not advised, but an examination of the adjudicated cases discloses that the states of New York and Missouri each have statutes identical in language with ours. They have been in force in those states for more than half a century and have received uniform construction. It is held in both states that it is the duty of the carrier. if it has adopted rules and regulations respecting the carrying of persons upon the platforms. of cars or upon baggage cars, that in order to charge the passenger with the observance of such rules they must be printed and must be posted up in the passenger cars in such conspicuous place as will be observable to passengers within the cars; that no mere words or warnings will fill the requirement

of this statute, but the printed rules or regulations must be actually posted; also, that the carrier must provide the passenger with a seat in its passenger cars, and that if any of the seats are occupied with luggage, or one passenger is occupying more than one seat, he is not bound to request such obstructions removed, but may seek some other unoccupied place. Nolan v. Brooklyn, etc., R. R. Co., 87 N. Y. 63, 41 Am. Rep. 345; Werle v. Long Island R. R. Co., 98 N. Y. 650; Willis v. Railroad, 34 N. Y. 670; Weymouth v. Broadway, etc., Co., 2 Misc. Rep. 506, 22 N. Y. Supp. 1047; Merwin v. Manhattan Ry. Co., 113 N. Y. 659, 21 N. E. 415; Graham v. Manhattan Ry. Co., 149 N. Y. 336, 43 N. E. 917; Morrison v. Erie R. R. Co., 56 N. Y. 307; Schaefer v. Union Ry. Co. (Sup.) 51 N. Y. Supp. 431; Weymouth v. Broadway, etc., Co., 142 N. Y. 681, 37 N. E. 825; Vail v. Broadway, etc., Co., 147 N. Y. 377, 42 N. E. 4, 30 L. R. A. 626; Sherman v. Hannibal & St. Joe R. R. Co., 72 Mo. 62, 37 Am. Rep. 423; Wagner v. Mo. Pac. Ry. Co., 97 Mo. 512, 10 S. W. 386, 3 L. R. A. 156; Berry v. Mo. Pac. Ry. Co., 124 Mo. 223, 25 S. W. 229; Gerstle v. U. P. Ry. Co., 23 Mo. App. 361; Chaney v. L. & M. Ry. Co., 176 Mo. 598, 75 S. W. 595; Higgins v. Han. & St. Joe R. R. Co., 36 Mo. 418; Choate v. Mo. Pac. Ry. Co., 67 Mo. App. 105. The rule deduced from these cases. under statutory provisions like ike ours, is that it is not negligence per se for a passenger to ride upon a platform of a moving car, or in a compartment not intended for the use of passengers, where the trains are overcrowded, or he cannot without great danger or difficulty find a seat in a passenger coach, even though the carrier has provided coaches for its passengers and has posted notice of its rules and regulations; that in case of injury to a passenger while on a platform or in a baggage car the question of the passenger's negligence in occupying such place is one of fact to be determined by the jury.

But notwithstanding these statutory provisions, which are plain and controlling, we think the great weight of modern and wellconsidered cases supports the doctrine that, if the train is crowded, it is not negligence per se for the passenger to occupy the platform or baggage car, and the question as to whether he was justified in assuming such risk is one for the jury. It is said in Hutchinson on Carriers (3d Ed.) § 1198: "If, however, the railway company has permitted the car to be overcrowded, the passenger will not as a matter of law be chargeable with negligence in riding upon the platform, and the question whether in any particular case he was justified in doing so will ordinarily be one of fact for the jury. But when the car is overcrowded, and in consequence the passenger is obliged to ride upon the platform, he must exercise for his safety a degree of care commensurate with the increased danger usually incident to such an exposed place, and if he fails to do so, and

injury results, his conduct will preclude him from the right of recovery. While there are cases which hold that the passenger will be justified in riding upon the platform if he is unable to obtain a seat in the car, the better rule would seem to be that if there is standing room within the car he should stand inside, rather than expose himself to peril by riding upon the platform. He is not required, however, to disregard the usual courtesies of life in order to get an advantage over other passengers in securing a place within the car. If, therefore, the car should be so crowded that the passenger, in the exercise of reasonable prudence, would be justified in concluding that he could not get inside without unreasonably pushing or crowding his way, he would be under no duty to attempt to enter, and it would not be negligence for him, under such circumstances, to ride upon the platform." Our statute places the riding upon the platform and in a baggage car under the same rule.

car.

Judge Thompson, in his masterful work on the Law of Negligence (2d Ed., vol. 3, § 2958), says: "Upon the question whether contributory negligence is to be ascribed to a passenger who is hurt while riding in the baggage or express car, under such circumstances that he would not have been hurt if he had remained in a passenger car, there is considerable conflict of judicial opinion. It is no doubt a reasonable regulation that passengers shall not ride in the baggage The safety of the passengers, the impeded discharge of duty by the company's servants, and the security of the property conveyed therein, are considerations in support of this rule. Moreover, all passengers are probably aware that the hazards of travel are increased by riding in this portion of the train. Prima facie, therefore, a passenger who, unless excused by special circumstances, elects to ride in the baggage car instead of remaining in one of the passenger coaches -assuming that there is room for himcommits an impropriety of such a character that, in case he is injured while so riding and the circumstances are such that he would not have been injured if he had remained in one of the passenger coaches, he will be precluded from recovering damages from the company, unless it appears that he is riding there by permission of the conductor for the benefit of the company." It will be observed that Judge Thompson holds that the passenger riding in the baggage car is guilty of indiscretion, and prima facie negligent, when he elects to ride in the baggage car, when there is room for him in the passenger coach, and, unless excused by special circumstances, such as riding there with the permission of the conductor for the benefit of the company, or where the regulations are habitually disregarded, or it is customary to convey and accept fare or tickets from passengers in the baggage car without objection by those having the management of the train.

The rule that the passenger will not be guilty of negligence per se by riding upon the platform or in the baggage car, when the platforms or passenger cars are crowded, or when he is unable to observe any vacant seats, but that the question as to whether he acted under all the circumstances as a reasonably prudent man would have acted, and whether the position he occupied at the time of the accident was one of increased risk, or in fact bore any causal relation to the injury, is supported by the following authorities, in addition to those cited supra: Hardenbergh v. St. P. & M. R. R. Co., 39 Minn. 3, 38 N. W. 625, 12 Am. St. Rep. 610; Thorpe v. N. Y. C. & H. R. R. R. Co., 76 N. Y. 404, 32 Am. Rep. 325; St. L. & I. M. Ry. v. Leigh, 45 Ark. 368, 55 Am. Rep. 558; Louisville, N. O. & Tex. Ry. v. Patterson, 69 Miss. 421, 13 South. 697, 22 L. R. A. 259; Jacobus v. St. Paul, etc., Ry., 20 Minn. 134 (Gil. 110), 18 Am. Rep. 360; C. & O. Ry. v. Jordan (Ky.) 76 S. W. 145; Kentucky Central Ry. v. Thomas, 79 Ky. 160, 42 Am. Rep. 208; Morgan v. L. S. & M. S. Ry., 138 Mich. 626, 101 N. W. 836, 70 L. R. A. 609; Lynn v. So. Pac. Ry., 103 Cal. 7, 36 Pac. 1018. 24 L. R. A. 710; McGuire v. Middlesex Ry. Co., 115 Mass. 239; L. S. & M. S. Ry. Co. v. Kelsey, 180 Ill. 530, 54 N. E. 608; Chicago & Western Ind. Ry. v. Newell, 212 Ill. 332, 72 N. E. 416; Benedict v. Mil. & St. P. Ry., 86 Minn. 224, 90 N. W. 360, 57 L. R. A. 639, 91 Am. St. Rep. 345; Lynn v. So. Pac. Ry. Co., 103 Cal. 7, 36 Pac. 1018, 24 L. R. A. 710; Bonner et al. v. Glenn, 79 Tex. 531, 15 S. W. 572; C. & A. Ry. v. Fisher, 141 Ill. 614, 31 N. E. 406; C. & O. Ry. v. Lang's Adm'r, 100 Ky. 221, 38 S. W. 503, 40 S. W. 451, 41 S. W. 271; Graham v. Receiver, 20 Wash. 466, 55 Pac. 631, 43 L. R. A. 300, 72 Am. St. Rep. 121; Marquette v. C. & N. Ry. Co., 33 Iowa, 564; Penn. Ry. Co. v. Paul, 126 Fed. 157, 62 C. C. A. 135; Dennis v. Pittsburgh, etc., Ry. Co., 165 Pa. 624, 31 Atl. 52; G., H. & San A. Ry. Co. v. Morris, 94 Tex. 505, 61 S. W. 709; Trumbull, Rec., v. Erickson, 97 Fed. 891, 38 C. C. A. 536; Highland Av. & B. R. R. v. Donovan, 94 Ala. 299. 10 South. 139; Pray v. Omaha St. Ry., 44 Neb. 167, 62 N. W. 447, 48 Am. St. Rep. 717; Blake v. Burlington, C. R. & N. Ry. Co., 89 Iowa, 8, 56 N. W. 405, 21 L. R. A. 559; B. & O. Ry. v. State, 72 Md. 36, 18 Atl. 1107, 6 L. R. A. 706, 20 Am. St. Rep. 454; Cody v. N. Y. & N. E. R. R. Co., 151 Mass. 462, 24 N. E. 402, 7 L. R. A. 843; Wagner v. Mo. Pac. Ry. Co., 97 Mo. 512, 10 S. W. 486, 3 L. R. A. 156; Berry v. Mo. Pac. Ry. Co., 124 Mo. 223, 25 S. W. 229; N. Y., L. E. & W. Ry. Co. v. Ball, 53 N. J. Law, 283, 21 Atl. 1052; Washburn v. Nashville, etc., R. R. Co., 40 Tenn. 638, 75 Am. Dec. 784; International & G. N. Ry. v. Ormond, 64 Tex. 485.

We think the court erred in taking this case from the jury. A number of witnesses testified that the train was so crowded when

the plaintiff went upon the train that no seats could be obtained, and some testified that it was even difficult to get to the door of the car. Upon the other side, evidence was submitted to the effect that there were several vacant seats in one of the passenger cars, and that there was no difficulty in getting into the passenger coaches. This was a material question in the case. It was also a material question whether the carrier had posted notice of its rules and regulations relating to passengers occupying the baggage car. We think, in view of the fact that the compartment occupied by the plaintiff was in the rear of the train, and he was sitting upon a box in an unexposed part of the car, that there is a debatable question as to whether the position he occupied was any more hazardous than a seat in the passenger coach, if there was such a car in the train. These questions were questions of fact, upon which reasonable minds might fairly come to different conclusions.

The judgment of the district court is reversed, and a new trial ordered, at the costs of the defendant in error. All the Justices concur, except BURWELL, J., who tried the case below, not sitting, and IRWIN and PANCOAST, JJ., absent.

(19 Okl. 203)

CASSADY et al. v. MORRIS. (Supreme Court of Oklahoma. Sept. 5, 1907.) 1. JURY-RIGHT TO JURY TRIAL.

A motion to discharge exempt property from attachment is triable to the court or judge, and neither party is entitled to a jury.

[Ed. Note. For cases in point, see Cent. Dig. vol. 31, Jury, § 90.]

2. HOMESTEAD - EXEMPTIONS-TORT OF FA

THER.

The homestead of the family is exempt to the family and cannot be taken on attachment for the tort of the husband and father.

[Ed. Note.-For cases in point, see Cent. Dig. vol. 25, Homestead, § 160.]

(Syllabus by the Court.)

Error from District Court, Kay County; before Justice Bayard T. Hainer.

Action by Tabitha Frances Cassady and others against William H. Morris. Judgment for defendant, and plaintiffs bring error. Affirmed.

Moss & Turner, for plaintiffs in error. Sam K. Sullivan and W. C. Tetirick, for defendant in error.

BURFORD, C. J. This cause presents for our interpretation the statutes providing for exemption of the homestead. The plaintiffs in error brought their action in the district court of Kay county against William H. Morris to recover damages for the felonious killing of the husband and father and son and brother of the plaintiffs. The action is one in tort to recover damages. The plaintiffs caused an attachment to issue and be levied upon a farm belonging to Morris in

Kay county. The defendant moved to discharge the property from the attachment and seizure upon the ground that it was the homestead of the family. The issue upon the motion to discharge was tried to the court, and the court found for the movant and ordered the property released from the levy. From this order the plaintiffs appealed, and present three alleged errors: First, that the court erred in refusing them a jury upon the trial of the motion to discharge the property; second, that the issue was prematurely heard and determined; third, that, suit being to recover damages in tort, no exemption is allowed.

As to the first proposition, we think there is not much room for contention. The Constitution of the United States guarantees the right of trial by jury in all suits at common law where the value exceeds $20. This case does not come within this class. It is not a suit at common law, but a special proceeding governed by statute and is a substitute in a measure for the bill of discovery. Our Code of Civil Procedure (section 4453, Wilson's Rev. & Ann. St. 1903), upon the subject of trials, provides: "Issues of law must be tried by the court unless referred. Issues of fact arising in actions for the recovery of money or of specific real or personal property shall be tried by jury, unless a jury trial is waived, or, a reference be ordered as hereinafter provided." Section 4454: "All other issues of fact shall be tried by the court, subject to its power to order any issue or issues to be tried by jury or referred as provided in this Code." Upon the subject of attachments, in section 4415, it is provided: "The defendant may. at any time before judgment, upon reasonable notice to the plaintiffs, move to discharge an attachment as to the whole or part of the property attached." Section 4416: "If the motion be made upon affidavits on the part of the defendants or papers and evidence in the case but not otherwise. the plaintiff may oppose the same by affidavits or other evidence in addition to that

which the order of attachment was made." By section 3, art. 2, c. 24, p. 194. Laws 1899, the judge at chambers is given authority to dissolve attachments. The is sue is formed by a denial of the attachment affidavit, or upon the denial of facts set up in a motion to discharge. None of these affidavits or motions are, properly speaking, pleadings. The issues referred to in section 4453, supra, are the issues made by the pleadings in the case. Mere collateral issues that may arise upon motions are not included in the issues triable to a jury. It is evident, taking all the statutory provisions together, that the Legislature did not intend that the issue formed upon a motion to discharge an attachment, or to discharge exempt property from attachment, should be submitted to a jury. The purpose was to provide a speedy and summary mode of

disposing of such questions, and, indeed, we believe it has been the general practice in Kansas, from which state we have borrowed our procedure, as well as in this territory since its organization, to try such questions by the court. We think there was no errox in refusing a jury in this case.

The second proposition contended for is that the attached property should not have been dismissed until the plaintiff had secured a judgment, and its status should be determined as of that time. We do not consider this question of much moment. Clearly, if the plaintiff was not entitled to the attachment at the time it was levied, the defendant was entitled to have the property discharged. The law would not require him to have his property incumbered with an apparent lien which had no validity, for the purpose of enabling the plaintiff to secure a valid lien at some future period. The plaintiffs were either entitled to the attachment when it was issued and levied, or they were not entitled to it at all; and the defendant had the right to have this question determined, and it was the duty of the court to hear it at the first available opportunity. The third contention is that the suit is for a tort, and that there is no exemption from a judgment sounding in tort. Whatever the correct rule may have been prior to the amendment of our exemption laws in 1905, it does not seem that there can be any doubt as to its meaning now. It is provided (Laws 1905, p. 255, c. 18, § 1): "The following property shall be reserved to every family residing in the territory exempt from attachment or execution and every other species of forced sale for the payment of debts, except as hereinafter provided: First, the homestead of the family, which shall consist of the home of the family, whether the title to the same shall be lodged in or owned by the husband or wife." The exemption is to the family. How can the family have the home exempt if it may be taken for the wrong of the husband and father? It seems but to ask this question suggests its own answer. In this case it is shown that the defendant has a family consisting of a wife and children; that this farm is the homestead and home of the family; that they leased it temporarily, with no purpose of abandoning it, but with the express purpose of returning to it; that they had no other home. If the home is exempt to the head of the family, then, as a general rule, it may be taken for his torts, but under our statute the Legislature has clearly indicated its purpose by the amendment of 1905 to exempt the home to the entire family from forced sale of any character, regardless of whether the title is in the husband or in the wife, or in both, and this purpose is so clearly apparent that we need not look to decisions of other courts to determine the proper interpretation to be given our statute. If the home of this family can be taken upon a

judgment against Morris for his felonious acts, then the law fails entirely of its purposes, and the family is no better situated than if the law had never been changed. Each member of the family residing upor the homestead and in good faith making i a home is equally protected by the statute, and has such an interest as will prevent its forcible seizure for the debts or liabilities of either.

We find no error in the record.

The judginent is affirmed, at the costs of the plaintiffs in error. All the Justices concur, except HAINER, J., who tried the cause below, not sitting, and IRWIN,, absent.

(19 Okl. 274)

ANDERSON v. TERRITORY. (Supreme Court of Oklahoma. Sept. 5, 1907.) 1. APPEAL-REVIEW-EVIDENCE.

Where the question for review depends in any wise upon the evidence, such evidence must be presented in full to the appellate court, or the question will not be considered.

[Ed. Note.-For cases in point, see Cent. Dig. vol. 3, Appeal and Error, § 2911.] 2. SAME-MOTION FOR NEW TRIAL.

Where a motion for a new trial presents material questions of fact necessary for determination, error cannot be predicated upon the overruling of said motion, where the record fails to show that it contains all the evidence introduced upon the hearing.

[Ed. Note. For cases in point, see Cent. Dig vol. 3, Appeal and Error, §§ 2916, 2917.] (Syllabus by the Court.)

Error from District Court, Comanche County; before Justice F. E. Gillette.

William Anderson was convicted of manslaughter, and brings error. Affirmed.

Ross & Anderson, for plaintiff in error. F. C. Simons, Atty. Gen., for the Territory.

GARBER, J. The plaintiff in error was convicted of the crime of manslaughter in the first degree at the February, 1905, term of the district court of Comanche county, and sentenced to eight years' imprisonment in the territorial prison at Lansing, Kan. At the September, 1905, term of the district court of said county, the same being the next term after the trial, he filed his motion for a new trial, setting up that the grand jury which returned the indictment against him was not drawn and impaneled as provided by law. The motion for a new trial being overruled, plaintiff in error prosecutes this appeal.

The only question raised in the motion for a new trial was the legality of the panel of the grand jury, and the only error assigned is the overruling of said motion. Section 5558, Wilson's Rev. & Ann. St. 1903. provides that a motion for a new trial based upon the ground that the grand jury was not properly drawn or impaneled must be filed not later than the next term after trial, and in this case the motion was filed in time. Section 5400 provides that, if a motion to set aside the in

dictment is based upon the ground that the grand jury was not drawn and impaneled as provided by law, a showing must be made tha those facts were not known to the defendan or his counsel until after the jury was sworn for the trial of the cause, and, under section 5557, the defendant must produce at the hearing in support of his motion affidavits of witnesses, or the same may be shown by the records of the courts, or he may take testimony in support thereof, as provided in section 5399, which provides for the compulsory attendance and testimony of witnesses to be used in support of the motion. The motion for a new trial in this case, verified by the affidavit of the defendant, presented numerous questions of fact relative to the regularity of the proceedings of the various election boards throughout the county at the general election of 1904 in signing and certifying to the lists of names of persons to serve as jurors in the several precincts. The apportionment of the number of persons to serve as jurors in the respective voting precincts by the county clerk was also challenged.

It will thus be seen that the issues of fact presented to the trial court on the hearing of the motion were: First. Were the facts relied upon to set aside the indictment known to the plaintiff in error or his counsel before Secthe jury was sworn to try his cause? ond. Were the allegations of irregularity set out in the motion supported by sufficient evidence? The issues thus presented necessitated the investigation of a broad field of human activity. They would admit of the introduction of affidavits and oral and record testimony. The scope of the examination at the hearing of the motion might be much broader than the trial itself, and would certainly necessitate a full and complete record in this court of all the evidence introduced upon said hearing, before it could determine whether or not error had been committed. An examination of the record before us fails to disclose any recital that the case-made contains all or any of the evidence offered or admitted at the hearing of the motion for a new trial. The record fails to show whether or not any such evidence was offered or admitted. In fact, the only record of the proceedings relative to the hearing and overruling of the motion of which the plaintiff in error complains is set out in a journal entry which reads as follows: "Territory of Oklahoma v. William Anderson. And now at this time, November 1, 1905, this cause is called on motion of defendant for a new trial. Said motion is considered and overruled, to which defendant excepts, and exception allowed. Thereupon defendant is allowed to December 1, 1905, in which to make, serve, and fil case-made in the Supreme Court." It will thus be seen that this court is not furnished with a sufficient record of evidence to determine whether or not error was committed in overruling the motion for a new trial. On the other hand, every jurisdictional requi