102 N. W. 449, where it was suggested that a correct charge was like the one given in the case at bar; and even there it was held that the use of "may" instead of "will" was not misleading under the facts of the case. The charge of the court was correct. The only complaint that can be made is that the court did not go farther and say that it must be reasonably certain that the suffering would be permanent. This was not specifically asked and there was no error. [6] 6. The verdict for Mrs. Carson was for $8,125, of which we may assume $125 was for the loss of clothing, and that for Mr. Carson was for $2,000. The defendant claims that they are excessive. Mrs. Carson was severely bruised, there were some superficial scalp wounds, one thumb was broken, there was a gash 21⁄2 inches down across the eyebrow, her nose was flattened, her right eye was injured, and apparently she is in a neurasthenic condition. She was unconscious for a day or so and was in the hospital for two weeks. She claims that she has suffered much and is still suffering. There is some facial disfigurement the extent of which the record does not make nearly so definite as it might. The most important injury is to the eye. From the testimony of the physicians the jury might conclude that the double vision, with which it is conceded she is affected, is substantially permanent, cannot be cured or improved by an operation, nor practically corrected by the use of glasses. Mr. Carson sustained some injury, but the record leaves it indefinite. He did not make much use of a physician. He claims to have pain in his hips and his osteopathist ascribes it to an injury to the pelvic bones. He claims that it disables him from work. He is the manager of a wholesale drug house. The extent of interference with his work is not shown. There is no evidence as to the value of his time and no specific claim is made for the value of lost time. He incurred expenses for the care of his wife amounting to something like $200. The Carsons were each forty years of age and had three children. Mrs. Carson was usually able to perform her household duties. It appears that they were accustomed to be together much and to attend entertainments and social gatherings. If all that the jury might find as to the condition of Mrs. Carson's eye, and attendant injuries including facial disfigurement, is taken as established, a very great deal of value personal to herself is taken out of life, and her husband suffers appreciably the loss of her society and companionship for which he is entitled to compensation. Quite likely the parties exaggerate their injuries. The doctors may be mistaken. Often there is marked improvement at the end of litigation. These were considerations present with the jury. The verdicts seemed to the trial court large. So do they to us. The trial court, in much better position than we to determine the question, thought they should not be disturbed. The record does not justify our interference. [7] 7. There is a claim of misconduct of counsel for the plaintiffs. On the cross-examination of the chauffeur relative to convictions in the municipal court counsel incorporated suggestions that he was a reckless and careless driver. That the purpose of showing convictions was to affect credibility was not suggested. Objections were sustained and counsel was persistent in repeating questions instead of excepting to the rulings and making his record. Apparently some of the testimony should have been received. There was also an insinuation that the chauffeur had been discharged by a former employer. There was a conscious effort to get to the jury the suggestion that he was a careless and reckless driver. It was not long continued and does not seem to have been considered at the time very important. While objectionable, and subject to criticism, it was not of a character calling for a new trial. Orders affirmed. WALSO et al. v. LATTERNER. (No. 20918.) (Supreme Court of Minnesota. July 12, 1918.) (Syllabus by the Court.) 1. TRUSTS 34(1) - DEPOSITS IN SAVINGS BANK-"EXPRESS TRUSTS"-STATUTE. In 1911, T. deposited in a savings bank a sum of money in his name "in trust for" his brother O. T. died in 1915 without withdrawing this deposit. It is held; Conceding that it was the intention of the depositor thus to create a trust in favor of the beneficiary, it was an express trust authorized by Gen. St. 1913, § 6710, subd. 5. 2. BANKS AND BANKING 301 (5) — JOINT SAVINGS BANK DEPOSITS-SURVIVORSHIP. If such was the intention of the depositor, on his death the money so on deposit belonged to the beneficiary. 3. NEW TRIAL 102(9) - TRUSTS 373— INTENTION OF DEPOSITOR IN SAVINGS BANK -NEWLY DISCOVERED EVIDENCE. Whether the evidence as it stood at the close of the trial made a case for the jury on the issue of the intention of the depositor is not de cided. But it is held that, had there been in evidence certain declarations of the depositor as sworn to in affidavits on a motion for a new trial on the ground of newly discovered evidence, the issue would have been for the jury. There being sufficient excuse for not producing this evidence on the trial, the court should have granted the motion. Where a gift is wholly beneficial to the donee with no burdens imposed, his acceptance is presumed as a matter of law. Appeal from District Court, Hennepin >For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes 'trators of the estate of Thomas J. Latterner, deceased, against Oliver F. Latterner. Verdict directed for plaintiffs, and from an order denying his motion for a new trial and from the judgment subsequently entered, defendant appeals. Reversed, and new trial granted. Benton & Morley, of Minneapolis, for appellant. George S. Grimes and John Walso, both of Minneapolis, for respondents. credit of another, or "in trust for" another. There is no question in this state, and little question in other jurisdictions at the present day, that such a deposit, where the bank book is retained by the depositor, is not a completed gift or a completed trust. In either case, whether the deposit is made in the name of another, or whether in the name of the depositor in trust for another, the depositor may withdraw the deposit at any time before he dies. Branch v. Dawson, 36 Minn. 193, 30 N. W. 545. Where the depositor dies without withdrawing the deposit, the authorities are in conflict. In Massachusetts it is settled by a long line of decisions that the mere fact of such a deposit being made "in trust for" another, coupled with the retention of the passbook by the depositor, is not sufficient evidence of a trust to entitle the beneficiary to the deposit on the death of the depositor. Brabrook v. Boston Five Cents Savings Bank, 104 Mass. 228, 6 Am. Rep. 222; Clark v. Clark, 108 Mass. 522; Gerrish v. New Bedford Institution for Savings, 128 Mass. 159, 35 Am. Rep. 365; Cleveland v. Springfield Institution for Savings, 182 Mass. 110, 65 N. E. 27; Bailey v. New Bedford Institution for Savings, 192 Mass. 564, 78 N. E. 648, 116 Am. St. Rep. 270; Supple v. Suffolk Savings Bank, 198 Mass. 393, 84 N. E. 432, 126 Am. St. Rep. 451. BUNN, J. Thomas J. Latterner, a resident of Hennepin county, died December 26, 1915, at the age of 86. He had never married. Defendant Oliver F. Latterner was his brother, and lived near him. For some years prior to April 8, 1911, Thomas J. Latterner had a savings account in his own name in the Farmers' & Mechanics' Savings Bank of Minneapolis. On the day mentioned he deposited $3,600 to this account, which made his total deposit $5,000. At the same time he opened another account in the bank in the name of "Thomas J. Latterner, in trust for Oliver F. Latterner," and deposited $5,000 to this account. The passbook was delivered to Thomas J., and he retained it in his possession until his death. From time to time he withdrew small sums, aggregating about $85, from this account, but the credits for interest made the total of the account $5,899, at the time of the death of Thomas J. After his death the passbook, which had been found among his papers by a guardian who had been serving during the last year of his life, was delivered to Oliver F., and the bank paid to him the amount shown due. This action was brought "A deposit by one person of his own money, by the administrators of the estate of Thom-in his own name as trustee for another, standing as J. to recover of defendant the amount so alone, does not establish an irrevocable trust paid, with interest. At the close of the evi- during the lifetime of the depositor. It is a tentative trust merely, revocable at will, until the dence the court directed a verdict for plain- depositor dies or completes the gift in his lifetiffs. Defendant moved for a new trial, one time by some unequivocal act or declaration of the grounds being newly discovered evi- such as delivery of the passbook or notice to the dence, the court saying as to the newly dis- the beneficiary without revocation or some debeneficiary. In case the depositor dies before covered evidence that neither defendant nor cisive act or declaration of disaffirmance, the his counsel was guilty of negligence in not presumption arises that an absolute trust was producing the evidence at the trial, but that created as to the balance on hand at the death of the depositor." in the court's opinion the evidence, if received, would not change the result. Defendant appealed from the order denying a new trial, and also from the judgment subsequently entered. Counsel for defendant contend that the case should have been submitted to the jury on the evidence outlined above, and in any event that the newly discovered evidence, if received on another trial, would make a question of fact for the jury. Counsel for plaintiffs contend that the evidence showed as a matter of law that the sum on deposit did not belong to defendant, but did belong to the estate of Thomas J., and that the newly discovered evidence was insufficient to create a question of fact. There are many cases where one person In New York the rule is the other way. The doctrine of the New York cases at the present time is best stated in Matter of Totten, 179 N. Y. 112, 71 N. E. 748, 70 L. R. A. 711, also reported with an elaborate note in 1 Ann. Cas. 910. We quote: It is unnecessary to cite the many New York decisions that preceded the Totten Case, holding to an even more liberal rule in favor of the beneficiary. The above exThe New York rule, or a rule even more facerpt clearly states the law in New York. vorable to the beneficiary, is in force in other states, as shown by the note referred to. [1] 1. Counsel for plaintiffs contend, first, that the New York rule cannot be applied in this state for the reason that this trust, conceding that it was the intention of the depositor to create an express trust, is forbidden by our statute. It is true that the New York statute does not limit the creation of trusts in personal property, and that our statute, abolishing all express trusts except such as are authorized by the chapter, ap as in real property. But we think that such | might be ascribed to his wish to escape taxa trust as this is authorized by subdivision | ation. Except in the Massachusetts cases 5 of section 6710, G. S. 1913, assuming that referred to, such a fact has been regarded the intention was there, and sufficiently evi- simply as one for the jury to consider in denced. "To receive and take charge of any deciding on the question of intent, and as money and to invest and loan not conclusive. Undoubtedly the strongest the same for the benefit of the beneficiaries fact in favor of the beneficiary in such a case of such express trust" is the broad language is the failure of the depositor to withdraw of subdivision 5. If Thomas J. Latterner the deposit, allowing it to remain until his intended to make himself trustee to receive death. Another fact to be considered in this and take charge of the money deposited and connection is the following rule of the Savto invest and loan the same for the benefit ings Bank, printed in the passbook: of Oliver F., we do not think that intention "Whenever any deposit shall be made by any is defeated by the statute. As to the scope person in trust for another, upon satof subdivision 5, attention is called to the the deposit or any part thereof, together with isfactory evidence of the death of such trustee, able and exhaustive opinion of the late Jus- the dividends or interest thereon, may be paid tice P. E. Brown in Young Men's Christian to the person for whom the deposit was made." Association v. Horn, 120 Minn. 404, 139 N. W. 805. [2] 2. The authorities are practically in accord on the proposition that the existence of the trust in every such case is a question of fact involving the intention of the donor and an apt declaration of that intention. See above note in 1 Ann. Cas. at page 904, and cases cited. The conflict between the New York decisions and those in Massachusetts is not at all over the validity of such a trust, but wholly as to what is sufficient evidence to make a question for the jury on the issue of the intention of the depositor. Even in Massachusetts, where the evidence shows declarations of his intention to create a trust, or to give the money to the beneficiary, the court refuses to disturb a finding that the trust is complete and enforceable on the death of the depositor. Gerrish v. New Bedford Institution for Savings, 128 Mass. 159, 35 Am. Rep. 365; Supple v. Suffolk Savings Bank, 198 Mass. 393, 84 N. E. 432, 126 Am. St. Rep. 451. It should be noted here that the declarations of the depositor in the cases cited, and in other cases we have examined, are no stronger as showing an intent to create a trust than are the declarations of Thomas J. in the case at bar, which constituted the newly discovered evidence which the trial court said would not change the result. It being a question of the intention of the depositor, all acts and declarations of his that shed any light on that question should be received in evidence, as well as all facts and circumstances surrounding the transaction. One of these facts in the present case that it is proper to consider, and which is undoubtedly of some weight against the claim that the depositor intended to create a trust for his brother, is the fact that on the very day that Thomas J. made this deposit, he had made a deposit to his own account in the bank, which brought the amount up to $5,000, the limit allowed by law. This was the situation in some of the cases referred to, and the basis of the decision in some of the Massachusetts cases. In other cases the action of the depositor in making a deposit * * It may well be inferred that Thomas J. was aware of this provision of the passbook, and hence that he knew that in case of his death the bank would pay the money to Oliver. [4, 5] It does not appear affirmatively that Oliver knew that the deposit had been made before the death of his brother, nor does it appear that he did not know of it. He was prevented from testifying to his knowledge, as it appeared that such knowledge was acquired from a conversation with his brother, since deceased. The burden of proof being on plaintiffs, it may fairly be assumed that defendant did know of the deposit shortly after it was made. This is only important on the question of acceptance of the gift by the donee. Such acceptance before the gift is revoked is necesary to its validity. But, the gift being wholly beneficial to the donee, with no burdens imposed, acceptance is presumed as a matter of law. Varley v. Sims, 100 Minn. 331, 111 N. W. 269, 8 L. R. A. (N. S.) 828, 117 Am. St. Rep. 694, 10 Ann. Cas. 473. The feature of the retention of the passbook by the donor would be important if the case were one of a deposit of money to the credit of the donee, but as the depositor was trustee, the passbook would naturally be retained by him, as pointed out in many of the cases cited. That the depositor withdrew small amounts from time to time is not a controlling fact, in our opinion. This fact was also present in some of the cases. [3] We decide that the trust was not forbidden by our statutes, and that whether defendant was entitled to the money on deposit on the death of Thomas J. Latterner is a question wholly of the intention of the latter when he made the deposit. We have discussed the salient features of the evidence bearing on this question, but whether that evidence as it stood at the close of the trial required that this question be submitted to the jury, or whether the court was right in directing a verdict, we are not required to decide, and do not decide. We do decide that, had the declarations of the depositor, sworn to in the affidavits in support When there is no evidence as to negligence on the part of the person injured, the presumption of due care that arises from the instinct of self-preservation generally obtains. 3. RAILROADS 400(6)-OPERATION-LOOK OUT-QUESTION FOR JURY. Whether it is negligence to push cars before an engine without placing a guard on the foremost car to signal those in control of the train if any person is in danger, and to warn such person, depends upon the circumstances and conditions surrounding the operation of the train. It may be negligence per se. In most cases it will be a question of fact for the jury. 4. NEGLIGENCE 121(5)-BURDEN OF PROOF -PROXIMATE CAUSE. In an action to recover damages caused by alleged negligence, plaintiff must prove both negligence of defendant and that such negligence was the proximate cause of the injury complained of. 5. RAILROADS 398(1)—INJURY ON TRACKPROXIMATE CAUSE EVIDENCE. The evidence in this case, indicated in the opinion, will not support a finding that negligence of the defendant was the proximate cause of the injury complained of. Letton, J., dissenting. Appeal from District Court, Lancaster County; Shepherd, Judge. Action by Susan L. Sippel, administratrix of Charles F. Sippel, deceased, against the Missouri Pacific Railway Company. Judgment for plaintiff, and defendant appeals. Reversed and remanded. G. L. De Lacy, of Atchison, Kan., E. J. White, of St. Louis, Mo., J. A. C. Kennedy, of Omaha, and M. V. Beghtol, of Lincoln, for appellant. Berge & McCarty, of Lincoln, for appellee. SEDGWICK, J. The body of Charles Sippel was found on the tracks of defendant over a bridge in the defendant's yards. He had evidently been run over and killed by one of defendant's trains. The administratrix of his estate brought this action in the district court for Lancaster county to recover damages, alleging that his death was caused by the negligence of the defendant. The trial resulted in verdict and judgment for the plaintiff, and the defendant has appealed. [1] There is no complaint of the manner of the trial nor of the rulings of the trial court, except in refusing to direct a verdict for the defendant on the ground of a failure of evidence. The plaintiff in the brief assumes that: "If there is any evidence to support, the verdict, if there is any evidence to support a finding in favor of plaintiff on the various elements of the case, then the judgment of the lower court should be affirmed." This is not an accurate statement of the law. It is for the jury to determine the preponderance of the evidence. If there is a substantial conflict, and reasonable minds might differ as to the existence of facts necessary to entitle the plaintiff to recover, it is for the jury to determine those facts, and not for the court. The verdict of a jury will not be disturbed unless it is clearly wrong. If there is substantial evidence tending to establish each fact necessary to a recovery, so that in the absence of any conflicting evidence a verdict for the plaintiff must be allowed to stand, still there may be such evidence in the record that no reasonable mind could believe that the facts existed as alleged, and in such case the court should so direct the jury. [2] It is conceded that the evidence shows that the defendant's train by which decedent was killed was operating in the switching yards of the defendant at Nebraska City; that an engine in the charge of an engineer and fireman was pushing one car before it to the north over what is called the high bridge, and drawing five or six freight cars after it, moving at a slow speed, perhaps three or five miles an hour. At the approach to this bridge the defendant had posted a sign which read "Danger-Trespassing on this bridge is forbidden." There is evidence that, notwithstanding the danger to foot passengers crossing over this bridge and the warning of the defendant, some people did walk over the bridge from time to time in preference to using the main traveled road, or what is called the lower bridge, which is less dangerous. The plaintiff insists that the bridge was "commonly used by pedestrians," and that the deceased was a licensee on the bridge. The evidence is very voluminous upon this question and is somewhat conflicting, and we assume that it was a question for the jury as to whether the conditions were such that the defendant was required to use reasonable care to avoid injuring the deceased. We re- "There could be no doubt that the evidence was amply sufficient to justify the court in refusing, at the instance of the defendant, to instruct the jury to find for it." Chicago & A. R. Co. v. Wilson, 225 Ill. 50, 80 N. E. 56, 116 Am. St. Rep. 102. * * * was not contradicted. No one testified that * * * * * I had large washings, and I couldn't do it alone without help and draw the water, and he said, 'I will be right back; I will go to the waterworks and come right back; now whatever you do don't start to draw that water until I come;' and I said, 'All right.' And that was the last ever seen of him." He had not taken his usual sleep; he was "tired." No one knows how long he had been on the bridge. He may have been some time on or about the bridge. It is more probable that he was loitering somewhere about the On the other hand, if a train is being mov- bridge than that he was passing over the ed over a bridge where it is manifestly dan- bridge in an ordinary manner on his way to gerous for people to walk, and proper signs town. The uncontradicted evidence of the are placed so as to warn people of the danger engineer and fireman that he was not upon of trespassing thereon, and only active per- the tracks, as the train approached the bridge sons who court danger attempt to cross the disposes of that question. No witness saw bridge, it would not be expected that a look-him approach the river, nor while he was out would be stationed to prevent accidents. throwing his refuse therein. If he climbed "Whether it is negligence or not for the serv-upon the bridge after having disposed of his ants of a railroad company to run an engine refuse, or if he stopped at the entrance of the backwards or push cars ahead of an engine bridge to throw his refuse in the river, there without stationing some one on the tender, or foremost car, to signal its approach to a person is no evidence that he could be observed by who may be on the track, is a question which an outlook on the car immediately before the is controlled by the circumstances under which engine, and there is positive evidence that the engine or train is operated. Under some circumstances the act has been held to be negligence as a matter of law, but in most cases it has been held to be a question of fact to be submitted to the jury." Southern R. Co. v. Daves, 108 Va. 378, 61 S. E. 748. he was not on the track where he could be seen from the approaching train. Under these circumstances it cannot be said that there is substantial evidence that any negligence of the defendant was the proximate cause of his injury. [4, 5] Is there such substantial conflict in the evidence as to the facts upon which the charge of negligence depends as to make it a question for the jury, and, if so, was such negligence the proximate cause of the injury? There was only one car being pushed by the engine; the others followed the engine. The engineer and fireman both testified that the car was no obstruction to their view of the tracks; that they could, and continually did, see the tracks before them; and that there If it had been shown that the deceased was upon the tracks when the cars were approaching the bridge, there might be room for the last clear chance doctrine, if it could be found that the engineer or fireman knew or ought to have known that he was in danger. In any view of the case, there is a total failure of evidence that anything that this defendant did or failed to do was the proximate cause of his injury, so as to create a liability for |