author: Weight, J.

text:
    Pennsylvania Company, etc. v. Rathgeb.
    1. Ordinary prudence requires that a person in the full enjoyment of the faculties of hearing and seeing, before attempting to pass over a known railroad crossing, should use them for the purpose of discovering and avoiding .danger from an approaching train; and the omission to do so, without a reasonable excuse therefor, is negligence, and will defeat an action by such, person for an injury to which such negligence contributed.
    2. In-an action for damages for alleged negligence, the question of negligence on the part of the defendant, or of contributory negligence on the part of the plaintiff, is generally a mixed question of law and fact, to he decided by the jury, under proper instructions from the court.
    .3. But if all the material facts, touching the alleged negligence, be undisputed, or be found by the jury, and admit of no rational inference but that of negligence, in such case the question of negligence becomes a matter-of law merely, and the court should so charge the jury.

      4. The court, in charging the jury, observed, “I will not say to you that the .plaintiff should have looked east along the track. I will only say that he was obliged to use his sense of sight in a reasonable manner; and it is for you to say whether he ought to have looked to the east along the track or not before he attempted to cross.” If it appear that by looking he could have run and avoided the danger, it was his duty to look; and, in such case, the court should have charged, as matter of law, that it was his duty to look.

      Error. Reserved in the District Court of Columbiana county.
    This is a case of collision between the defendant in error' and a train of cars upon a public crossing, Rathgeb was driving a one-horse wagon eastward on Main street, in the village of Salem, June 5,1872, when he was struck by an extra passenger train, his horse killed, wagon broken, and himself severely injured.
    His testimony is to this effect:
    On the 5th day of June, 1872, in the afternoon, I went west over this west Main street crossing with a load of coal to John Kirk’s house. "While I was unloading the coal one train came along going west. After I unloaded the coal I started back to town, and when I got to the mill I stopped my horse and watched and listened for a train. I thought there might be a freight train coming. It was between five and six o’clock, afternoon, and the passenger train had gone west when I was unloading the coal. I stopped about five minutes at the mill; I did not hear any train, nor any whistle or bell. I then started on and drove the horse on a walk till I reached the track — drove slow on purpose and listened for a train as I drove along. I can’t see very far — my sight not very good. I did not see or hear anything until my horse stepped on the track, and just then the train came from the east onto me. I had heard no signal.
    In his cross-examination he says :

      “ I owned the horse four years. Drove this horse over that crossing often. The engine hit us just as my horse stepped on the rail. The horse did not scare until it was hit —he never did scare much, he would not scare at the cars. I do n’t know whether the engine hit the horse or the wagon, I was too much scared when I saw the train, saw it come right on us as the horse stepped his fore feet over the first rail. I stopped to listen about a couple of rods east of Bard’s mill. I stopped there for about five minutes and listened. (But upon experiment of timing by a watch, witness made it fifteen seconds.) I then started my horse and drove onto the crossing at a slow walk. I am nearsighted; I could see a train if there were no obstructions in the way at a distance of fifty rods. Afterl started from where I stopped ,at the mill to listen, and drove on.toward the crossing I looked at my horse and did not look along the track. I did not look along the railroad track to the east at all. I could not see the train coming for the hill and bend in the track; and I first saw the train just as it struck us. I heard no noise of the train coming as I drove along, and the horse did n’t scare until the train was on it, on the track. I do n’t know how far it is from the mill to the track. John Kirk lived back of Sharp’s machine shop, while I was unloading the coal at his house two trains passed along, one going east and one west; I heard them, could not see them because of the hill. I knew it was train time for the passenger trains east and west, they passed at Salem; and I thought the trains I had heard wore all that had to pass. I always stop and listen for trains. It was an emigrant train that hurt me, so the people told me the same evening that I was hurt. I did not hear the train, it came up quiet and fast.”
    It is 330 feet from the center of the railroad track to the east line of Bard’s mill, two rods east of which he says he stopped to listen. There is the usual conflict of testimony as to the ringing of the bell and sounding of the whistle, previous to reaching the crossing. Some witnesses say they heard no such signals; some say they were not given, while the railroad men, and others not connected with the train, say the signals were given. If the case turned upon this disputed question of fact, we should, perhaps be content to leave the controversy where the jury and the court below left it.
    Main street, on which Rathgeb was traveling, runs east and west, and the railr®ad crossing it runs from southeast to northwest. The colliding train came from the southeast, having stopped at a station some distance from Main street.

      A map was offered in evidence, and the testimony of the engineer making it, who testified for the company, as to the distance at which a train could be seen, coming from the south-east, by one on Main street. It hence appears that a person going along Main street from west to east, when 330 feet from the crossing, could see a train 248 feet from the crossing; approaching the track, and 150 feet therefrom, the train could be seen 339 feet from the crossing ; 100 feet from the track, a train can be seen 430 feet from the crossing. The range of vision increases as the track is approached, and ten feet therefrom a train can be seen while 1800 feet distant, and 'even.farther than that.
    Counsel for defendant below asked the court to charge the jury as follows :
    1. “ If the plaintiff, as he passed Bently’s house, and approached near to the iron track, did not look eastward along the railroad to discover if a train was approaching, and drove his horse upon the track without so looking eastward, that would be evidence of negligence upon his part, and sufficient to justify the jury in rendering a verdict against him.” Which the court read to the jury, but refused to give as a whole, but did give all of it in charge to the jury, save the concluding words following: “ and sufficient to justify the jury in rendering a verdict against him,” which the court refused to give, to all of which counsel for defendant excepted.
    Counsel for defendant also asked the court to give the following instruction in charge to the jury, viz :
    2. “ The plaintiff was bound to use his senses of sight and hearing, in a reasonable manner, to discover if a train were approaching from the east, and if the conformation of the ground to the east obstructed the view along the track to the east until he came up near the track, that circumstance would require of him a greater amount of caution to discover if a train were approaching from the east, before he allowed his horse to enter upon the iron track, and would not excuse him from looking along the track to the east after he came near to the track, where he could see.” Which the court gave to the jury, with the exception of the following clause, viz: “ and would not excuse him from .looking along the track to the east after he came near to the track, where he could see,” which clause the court refused to give. And the court said to the jury: “I will not .say to you that the plaintiff should have looked to the east along the track. I will only say that he was obliged to use his sense of sight in a reasonable manner; and it is for you to say whether he ought to have looked to the east, along the track, or not, before he attempted to cross.” That is, whether, by entering upon the track, under all the circumstances surrounding him at the time, without so ■looking along it, he failed to use ordinary care. His failure to so loqlc along the track to the extent of his power of sight, would, standing alone, tend to show negligence; but taken in connection with the other testimony in the case, bearing on the point, it is for you to find whether he used due care or not. To all of which refusal, qualification, and charge given, counsel for defendant excepted.
    3. Counsel for defendant further asked the court to give the following instruction to the jury, viz: “ If the plaintiff’s sense of sight was impaired, so that he could noi discern objects but at a short distance, and if any rattling noise made by his wagon, or the force and direction of the wind, interfered with his ability to hear the approach of the train, then, if he did not stop his horse and pause just before entering upon the railroad track, and listen to hear if any train were approaching, that would be evidence of negligence upon his part.” Which the court read to the jury, but refused to give as a whole, but did give it all with the exception of the closing words following: “of negligence upon his part,” and for which words the court substituted the words following: “for your consideration upon the question whether he used ordinary care to avoid the injury,” to all of which counsel for defendant excepted.
    “It is claimed by the defendant, that if plaintiff did not look along the track to the east, as he approached the track, that he could not recover* but I will not so charge. I leave that for you to determine, taking into view the condition of his eyesight, whether he stopped to listen as he approached near the track, and failed to hear any bell or whistle, or other indication of the approaching train, and any other testimony in the case, tending to show the danger reasonably to be apprehended by him, and precautions taken by him to avoid it. You must be convinced, from all the testimony, that he used ordinary care to avoid the injury, or he can not recover.”
    The jury returned a verdict for plaintiff, below, in the sum of $1,900. Motion for a new trial was overruled and a bill of exceptions taken, embodying all the testimony. A petition in error in the district court was reserved to the supreme court for decision.

      J. T. Brooks, for plaintiff in error,
    claimed that even if the railway company was guilty of negligence, and Rathgeb was guilty of contributory negligence, he can not recover, and cited: Railroad v. Picksley, 24 Ohio St. 655; Davis v. Railway, 47 N. Y. 400; Reynolds v. Railway, 58 N. Y. 248; Mitchell v. Railway, 64 N. Y. 655; Railroad v. Methoven, 21 Ohio St. 586; Gorten v. Railroad, 45 N. Y. 664; Artez v. Railroad, 34 Iowa, 154; Railroad v. Terry, 8 Ohio St. 585; Baxter v. Railroad, 41 N. Y. 502.

      J. A. Ambler and Kennett & Ambler, for defendant in error,
    on the question of contributory negligence cited: Tuff v. Warman, 2 Conn. B. N. S. 740; Radley v. Railway, 3 Law and Eq. Rep. 467; Patterson v. Wallace, 28 E. L. & E. 48; Railroad v. Crawford, 24 Ohio St. 638.
   Weight, J.

It may be assumed that the signals were not given as the train approached the crossing. The statute, 69 Ohio L. 49, requires that whistle and bell shall be used, from eighty to oue hundred rods from the crossing, the bell to continue ringing until the road is passed. If these injunctions are not complied with, the statute provides that the company shall be liable in damages to any person injured “ by the neglect or act of said engineer or person in charge of the engine,” %. e. in failing to give the signals.

It is evident from this language that the failure to give signals must have occasioned the accident, that is, must have been the proximate cause of it before recovery can be had. The injury must happen “ by neglect ” of the engineer. If it occurred from some other cause, liability can not arise therefor, under that statute. Indeed, this statutory duty is not different in the responsibility it imposes upon railroad companies from that arising under the common law. Railroads must be careful. If they neglect this duty and such neglect occasions damage, they are responsible. But, though they may be negligent in some degree, if no damage arises, no liability exists. That is, if the injury complained of was not brought about by the negligence in question, but by something else not chargeable to the company, they can not be held.

Before, therefore, plaintiff can recover, because signals were not given, he must cause it to appear that this failure of duty brought about the disaster; for if his own imprudence was the moving cause, he can not maintain his action, although the company may not have observed the provisions of the statute.

The law is thus stated in “Wharton on Negligence, § 884 : “ Where a person knowingly about to cross a railroad track may have an unobstructed view of the railroad, so as to know of the approach of a train a sufficient time to clearly avoid any injury from it, lie can not, as a matter of law, recover, although the railroad company may have been also negligent, or have neglected to perform a statutory requirement.” “Wharton elaborately collects the authorities that sustain the text.

We think the law must now be considered as well settled, that the traveler approaching a crossing, must be upon the lookout for danger. Ordinary care requires that he must look and listen to see if a train is in the vicinity, and if ho fails in this, it is not merely evidence of negligence to be considered by the jury, it is itself such negligence as will prevent a recovery. Gorten v. Erie R. R. Co., 45 N. Y. 660; Ernst v. H. R. R. Co., 35 N. Y. 9, and 39 N. Y. 61; Beisiegel v. N. Y. C. R. R., 34 N. Y. 625; Havens v. Erie R. R., 41 N. Y. 296; Wilcox v. Rome & W. R. R., 39 N. Y. 358; Artz v. C. R. I. & P. R. R., 34 Iowa, 153; Stevens v. Railroad, 18 N. Y. 422; Reynolds v. Hinchman, 32 Iowa, 146; G. & W. R. R. v. Loomis, 13 Ill. 548; Davis v. Railroad, 47 N. Y. 400; Mitchell Acler v. N. Y. C. & H. R. R., 64 N. Y. 655; 58 N. Y. 248.

Counsel for the railroad company asked the court to charge the jury as follows :

1. “If the plaintiff as he passed Bently’s house and approached near to the iron track, did not look eastward along the railroad to discover if a train was approaching, and drove his horse upon the track without so looking eastward, that would be evidence of negligence upon his part, and sufficient to justify the jury in rendering a verdict against him.” The court gave the charge, all but the concluding sentence “ and sufficient to justify the jury in rendering a verdict against him.”

The evidence is clear, that Rathgeb might have seen the train at any point less than 300 feet from the crossing, until he reached it, and seen it in time to have avoided a collision. Although he says he was near-sighted, still he stated that he could have seen a train for a distance of fifty rods, and his defect of vision was not such as to vary the principle.

Being able to see, therefore, and the opportunity of seeing being presented, his failure to discover or to be aware of the approaching cars, we think, was not only evidence of negligence, but negligence itself, and sufficient to justify a verdict against him. And in, other parts of the charge, the court declined to say that the positive duty of the plaintiff was to look up along the track, but left it to the jury to determine whether it was incumbent upon him to do so or not. We think such directions do not meet the requirements of the case. The l’ule should be laid down in such clear terms that there can be no mistake in its application. This case is really disposed of by that of Railroad v. Elliott, 28 Ohio St. 340. In the Cleveland C. & C. R. R. v. Crawford, 24 Ohio St. 631, the first clause of the syllabus is, “ Ordinary prudence re-, quires that a person in the full enjoyment of the faculties of hearing and seeing, before attempting to pass over a known railroad crossing, should use them for the purpose of discovering and avoiding danger from an approaching train ; and the omission to do so, without a reasonable excuse, therefore, is negligence, and will defeat an action by such person for an injury to which such negligence contributed.”

In this case the court say that as a general rule the question of contributory negligence is a mixed question of law and fact, and proceed to observe, “ Where, however, all the material facts in the case are undisputed, or are found by the jury, and admit of no rational inference but that of negligence, or that of due care, it is, no doubt, the duty of the court to say to the jury that, as matter of law, the facts so appearing amount to negligence, or due care, as the case maybe; as it would be the duty of the court to determine, as a question of law, what judgment should be rendered on a special verdict.” This ease carefully distinguishes between those cases where omission to use the senses is negligence and where it is not. If the using the eyes and ears could not have prevented the collision, an omission to use them is not contributory negligeuce. If the circumstances were such as would have excused a person of ordinary prudence from looking and listening, then there is no negligence.

The proposition is further illustrated by the case of the Bellefontaine Railroad Co. v. Snyder, 24 Ohio St. 670, the syllabus of which.is, “It is the duty of a person approaching, crossing, or standing upon a railroad track, where cars are being run, to look out for approaching-cars, and if he fails to do so, he is prima facie guilty of such negligence as will prevent his recovery for injuries occasioned to him, while so crossing or standing upon the track, by the mere carelessness, negligence, or nnskillfnlness of the company, not amounting to willfulness on their part; and this presumption of negligence can only be rebutted by facts or circumstances showing that it was not reasonably practicable to make or keep such lookout, or such as would ordinarily induce persons of common prudence to omit that precaution.”

In the case before us, the evidence is clear that Rathgeb might have seen the train, by simply using his eyes, in time to have prevented the collision. There were none of the circumstances referred to in the Crawford and Snyder cases, which absolved him from the duty of exercising his vision. There was no reason why lie should not have looked, and had he done so he would not have been hurt.

A case of contributory negligence was decided by the Supreme Court of the United States, October term, 1877. The Balt. & Pot. R. R. v. Jones, Weekly Cin. L. Bulletin, Jan. 7, 1878. Jones ivas a laborer in the employ of the company. The men were in the habit of riding to and fro from their work. A locomotive and box car was used for this purpose, but the men, or some of them, often jumped on the pilot and rode there. Jones had been cautioned against this and forbidden to do so, but upon the day when he was hurt, he disobeyed the injunction and jumped on the pilot. By a collision he was hurt. The court was asked to charge as follows: “If the jury find from the evidence that the plaintiff knew the box car was the proper place for him, and if he knew his position on the pilot of the engine was a dangerous one, then they will render a verdict for the defendant, whether they find that its agents allowed the plaintiff to ride on the pilot or not.” This charge was refused. Mr. Justice Swayne says : “ The plaintiff was not entitled to recover. It follows that the court erred in refusing the instruction asked on this subject. If the company' had prayed the court to direct the jury to return a verdict for the defendant, it would have been the duty of the court to give such directions, and error to refuse.”

In the case before us the negligence of plaintiff was such that the jury should have been told that it barred his right of recovery.

Judgment reversed.


source: Caselaw Access Project

license: Public Domain

text:
    Collins v. Davis.
    Error-to the District Court of Belmont county.
    On suggestion of diminution of record, and motion for an order to send up a perfect transcript.

      John W. Okey, for the motion.

      J. H. Collins, contra.
   By the Court.

The original action was brought by Collins against Davis, to recover a money judgment.

Upon trial in the court of common pleas, judgment was rendered for plaintiff, which was subsequently reversed by the district court, on application of the defendant, and, in May, 1875, a petition in error was allowed to be filed in the supreme court, by the plaintiff, to reverse the judgment of reversal.

The defendant now moves this court for an order to the clerk of the court of common pleas, directing him to send up a full transcript of the record in the case*- and, in support of this motion, represents that since said judgment of reversal, and before the case came into this court upon error, the case was remanded to the common pleas for further proceedings, where the parties voluntarily appeared, and the case was again tried, without objection or a suggestion by the plaintiff' that he intended to prosecute error in this court to reverse this judgment of reversal; which second trial resulted in a verdict for defendant. Held,, that these proceedings in the court of common pleas, subsequent to the final judgment of reversal in the district court, form no part of the record of such final judgment, and can not be brought here upon suggestion of diminution of record and motion. They should be taken advantage of by answer, upon whicli an. issue of law or fact may be joined.

Motion overruled.


author: Ashburn, J.

text:
    The Western Insurance Company of Cincinnati v. Tobin AND ANOTHER.
    1. "When a series of propositions, requested as a charge to the jury, are given, and there are one or more sound propositions of law in the series, 'an exception to the series, in this form — “ to the giving of which charge defendant at the time excepted” — is insufficient. The exception should be to each proposition, or, if not intended to except to each, should, in some pertinent way, distinctly refer to the proposition claimed to be erroneous.
    2. Where a series of propositions are requested as a charge, and one or more of the propositions are unsound, and the charge is refused or modified in several respects, an exception as follows — -‘to which refusal and modifications of such charges defendant at the time excepted” — is not sufficiently definite. In such case, the exception falls, because it ■ fails to direct the attention of the reviewing court to the proposition or propositions in regard to which error is claimed to exist.
    3. An exception in the following form — 11 to which general charge of the court, the defendant at the time excepted, and excepted also to each proposition of law therein contained, differing from the several specific charges asked by defendant”- — -when the general charge contains more than one proposition of law, and is not in all respects erroneous, is wanting in definiteness, and fails to present any question with sufficient certainty for review on error.
    4. An exception to a general charge, or one containing more than a single proposition of law, should clearly point out the part of the charge intended to be questioned by the exception, at the time the charge is given or refused, and, failing in this respect, the reviewing court will not he bound to take notice of the exception.
    5. In an action by the owners of a steamboat against-an insurance company, on a policy against perils in the navigation of specified privileged waters, for the loss of the vessel, occasioned by encountering an unknown cause of peril, from which she suddenly sprung a leak and sunk, while navigating a privileged water, it is not competent, in chief, to give in evidence, for any purpose, specific cases of other steamboats that have been lost, while navigating the same and other western rivers, occasioned by some unknown injury causing them to suddenly leak and sink.

      6. When a steamboat is shown to have been seaworthy at the time she was insured, and no intervening circumstance occurs to render her unseaworthy, her seaworthiness is presumed to continue; but when, during the life of the policy, she springs a dangerous leak, without apparent cause, a new presumption arises — that of unseaworthiness; yet, as this now presumption is not a conclusive one, the owners-are not required, to entitle them to recover for the loss, to show the identical cause of her loss, but may show a probable cause.
    7. In case of loss from some unknown cause, a person conversant with steamboat navigation, and who is, from actual experience, familiar with the perils attending steamboat navigation on the privileged waters and other of the western rivers, may give his opinion, and say whether a steamboat, while being navigated thereon, with ordinary skill and care, might, without apparent or known cause, suddenly spring a-leak and sink from some unknown peril of the river.
    8. A person experienced in the navigation of steamboats used to carry cotton on the western rivers, known as “cotton boats,” may, when speaking from personal knowledge and experience, say -whether such boats, when freighted with cotton, usually leak, and require the daily, . use of the pumps to keep them free from water, as tending to show how the words “ tight and sound,” used in the policy, were understood by the parties.
    9. "When the actual effect of a known agency is unknown, and the opinion of one familiar, by actual observation, with the matter under consideration, is the best testimony the subject-matter to be investigated affords, the opinion of such person may be received as testimony; hence, it was competent to receive as testimony the opinion of skilled river navigators, familiar with the subject, as to the effect the wave-swells made by a larger steamboat would have upon a smaller and heavily-laden one, while passing.
    10. The statements of a steamboat captain, made in the discharge of his duty as commander of the vessel, while she is in a sinking condition, and he is in the act of seeking aid of another to relieve her from present peril of loss, as to her perilous condition, how and where she was leaking, made under such circumstances, his statements accompanying his acts, and explanatory of them, are res gestes, and therefore competent testimony.
    Error to the Superior Court of Cincinnati.
    This is an action by the owners of the steamboat Wade Hampton, on a policy of insurance, issued February 15,1871, against perils of the river, etc. for one year, with permission to navigate the Ohio, Mississippi and Ouchita rivers, and so much of Red and Black rivers as necessary in passing between Cuchita and Mississippi rivers.
    One condition of the policy required the boat to be “tight and sound,” and run and navigated, as is usual for boats of her class, and in tbe usual prosecution of business. It is charged in tbe petition, that on the 6th of November, 1871, the vessel, whilst navigating the Mississippi river, struck some unknown substance, which caused her to leak, and that she sunk by reason of a peril of the river covered by the insurance, and by reason of the disaster became a total loss. The answer denies that the vessel whilst navigating the Mississippi river struck some unknown substance which caused her to leak, and met with a disaster, and was thereby sunk by a peril of the river covered by the policy; denies that the vessel during .the continue anee of the policy was tight and sound, but, on the contrary, at the time of the alleged disaster and loss, and for some time previous to and during the continuance of the policy, was not tight and sound, and was unseaworthy. The reply denies the vessel was not seaworthy.
    She was laid up at New Orleans part of the summer of 1871, but started out in the fall trade about tbe latter part of August, 1871. She was then engaged exclusively in the Natchez and New Orleans trade, and in the Vicksburg and New Orleans trade, running only upon the lower Mississippi river. At the time of her loss, and for two months previous thereto, she had been running in the Vicksburg trade, making weekly trips, leaving New Orleans regularly on Monday of each.week, and returning in time to start on the same day of the next week.
    The "Wade Hampton was known as a cotton boat, and engaged in the cotton trade, on a privileged water, at the time of her loss; she was about two hundred and thirty feet long, thirty-eight feet beam, eight feet hold, and her guards projected from fourteen to sixteeu feet beyond the side of the vessel. Her carrying capacity is variously estimated at from 2,800 to 8,200 bales of cotton, when loaded down with her guards in the water.

      During the month of October, 1871, thirty-six new outriggers were put in alongside of old ones, in the forward part of the boat, on both sides. Four of these were put in by Mc-Haffie and men employed by him, and the other thirty-two were put in by McAdams & Co., a firm of ship carpenters and repairers in New Orleans. They were put in at various times while the Hampton was lying at New Orleans, between her weekly trips up the river; the last were put in shortly before the vessel started on her last trip.
    These outriggers were about twenty-one feet long, four inches thick, and from eight to ten inches deep, and were inserted from the outside through ports cut in the side of the vessel, without removing the guard rim or deck.
    Whether the outriggers were caulked is a disputed question of fact. The defendant claims they were not, and that the leak, which caused the vessel to sink, resulted from this want of caulking 'and unskillful keying of some thirty-two of the new outriggers. Plaintiffs claim that they were well caulked, and water enough could not have got through by the new outriggers to sink the boat; that the boat was not fully loaded, aud that the water did not reach the outriggers by several inches.
    The Wade Hampton was comparativly new, running in her second season; was constructed out of the best quality of material, put together in a workmanlike manner, and originally carefully caulked. Having run a short time over a year she was, in April 1871, put on the docks, examined, and repaired. In August 1871, she was again put on the docks, examined, caulked where needed, and made, as believed, tight and sound. This examination, etc., was prior to putting in the new outriggers. The proofs show that cotton boats leak, some more and some less. That the tightest of them require working of the pumps more or less every day. The vessel was on her- way from Vicksburg to New Orleans, and opposite Donaldsonville when she sunk. The point at which.she commenced leaking badly is not quite certain, but it was after -she crossed Grass Creek Bar and had passed Plaquemine, and the leak was, probably, mostly under control of the pumps until near Donaldson-ville, when it was found the water was rapidly increasing. A landing was made at Donaldsonville, and there the captain of the Wade Hampton applied to the officers of the Steamer Lizzie Hopkins to receive and carry a portion of his cargo, which was refused, her captain being absent.
    Captain Goddin decided to put off cotton on the shore, but had to cross the river to do so, as the water was so shoal where the boat was lying that his stage planks would not reach the dry land by thirty feet; when they got to the other side and put off forty bales of cotton, in some way the passengers became alarmed, and about sixty of them rushed out crowding the stage and stopping on shore in the way of the men at work discharging cargo, which after a time demoralized the crew so they could not be kept at work. Yery soon the water gained on the pumps and got up on the decks, so that they were covered and all further, efforts to keep the boat from sinking were useless. She was a total loss, having sunk in water seventy or eighty feet deep.
    The evidence shows the vessel rubbed when passing over Grass Creek Bar, made a bad landing at Labutat Landing, striking hard, and the wave swells of the steamer Howard shook her greatly. She was a mail boat, making a great many landings to deliver the mails, at some of which the landing was difficult and dangerous. The privileged waters from various causes, are dangerous waters to navigate, and vessels navigatingthem are sometimes liable, from unknown causes, to spring a leak and become a total loss.
    The foregoing general statement is deemed sufficient to give an understanding of the ease, and questions now decided. Some other facts, on special questions, will appear in the opinion.
    On the trial, many objections were made to testimony, and almost as frequently, exceptions, on one side or the other, taken to the rulings of the court th'ereon. Objections were made, and exceptions taken, by the defendant below, to theúnstruetions given on request of plaintiffs below, the refusal of the court to give instructions requested by defendant, and also to the general charge of the court. All of which will sufficiently appear in the opinion.
    Plaintiffs below recovered a judgment at special 'term. The case went to the general term on error, and was there affirmed. To reverse this judgment of affirmance the case was brought to this court. The errors assigned are as follows :

      First. The court at special term erred in admitting testimony offered by defendants in error.

      Second. The court erred in excluding testimony offered by plaintiff in error.

      Third. The court erred in its charge to the jury.

      Fourth. The court erred in giving the special charges requested by the defendants in error.

      Fifth. The court erred in refusing to give the special charges requested by the plaintiff in error.

      Sixth. The court erred in overruling the motion for a new trial, and in entering judgment against the motion of plaintiff .in error, on the verdict of the jury.'

      Seventh. The court erred in general term, in affirming the judgment of the Superior Court in special term.

      Jacob D. Cox, John F. Follett and Wm. C. Cochran, for plaintiff in error:
    I. The introduction of testimony as to what caused the loss of other steamboats than the Wade Hampton was incompetent. 1 Greenlf. on Ev. §§ 51, 52; 3 Bouvier’s Institutes, § 3087; 1 Phillips on Ev. 748; Carter v. Pryke, Peake’s Cas. 95; Holcombe v. Hewson, 2 Camp. 391; Bay v. Law, 1 Pet. C. C. 207, 209; Somes v. Skinner, 16 Mass. 360; Jackson v. Smith, 7 Cow. 717, 719; Keith v. Taylor, 3 Vt. 153; Newman v. Bennett, 2 Chitt. 195; Boldron v. Widdows, 1 Carr & Payne, 65; Matton v. Nesbitt, 1 Carr & Payne, 70; Hubbard v. Concord, 35 N, H. 52, 60, 61; Thompson v. Bowie, 4 Wal. 463, 471; 110 Mass. 110, 113; 4 Md. 242; 60 Mo. 227; 78 Penn. St. 293.

      The defendants in error were bound to prove that the Wade Hampton did encounter a peril, and that-her loss was occasioned directly thereby. 2 Parsons on M. Ins. 518; 2 Phillips on Ins. §§ 2077, 2132; 2 Greenleaf on Ev. §§ 385, 387; 3 Phillips on Ev. 247; Bullard v. Roger Williams Ins. Co., 1 Curtis C. C. 148; Paddock v. Franklin Ins. Co., 11 Pick. 226, 236, 237; Prescott v. Union Ins. Co., 4 Whart. (Penn.) 399, 402, 408; Fleming v. Marine Ins. Co., 4 Whart. 59, 62, 63, 64; s. c., 3 Watts & S. 144, 153; Dupeyre v. Western Ins. Co., 2 Robinson (La.) 457; New v. Royal Mss. Co., 5 H. & N. 211, 217.
    In the absence of proof that the Wade Hampton actually encountered a peril insured against, and that her loss was occasioned thereby, the law presumes that her loss was occasioned by unseaworthiness. Barnewell v. Church, 1 Caines; 246; Patrick v. Hallet, 3 Johns. Cas. 76; Talcott v. The Commercial Ins. Co., 2 Johns. *124; Talcot v. The Marine Ins. Co., 2 Johns. *137; Fleming v. The Marine Ins. Co., 4 Whart. 408; s. c., 3 Watts & Serg. 154; Paddock v. Franklin Ins. Co., 11 Pick. 226; Wallace v. DePeau, 1 Brev. (S. C.) 252; Hudson v. Williamson, 3 Brev. 342; Rugely v. Sun Mut. Ins. Co., 7 La. Ann. 279, 282; Marcy v. Sun Ins. Co., 11 La. Ann. 748; s. c., 14 La. Ann. 246; Wright v. The Oriental Mut. Ins. Co., 6 Bosw. 269, 280; Watson v. Clark, 1 Dow. 336, 348; Douglass v. Scougall, 4 Dow. 269-76.
    It is true that this is not a conclusive presumption of law, and may be overcome by the weight of proper testimony, but the only proper way to rebut this presumption of unseaworthiness, where it can be done at all, is by convincing proof that the vessel was in fact seaworthy, and that she did in fact encounter a peril sufficient to account for the loss.
    In this case, no foundation has been laid by the defendants in error for the introduction of expert testimony by the proof of any facts connected with the loss of the Hampton, from which the loss can be traced as a direct, consequence. The opinions of witnesses, so far as they are-based upon any facts at all, are based upon facts wholly ex-: traneous and from which, no conclusion whatever can properly be drawn as to the loss of the Hampton. 2 Phillips on Ins. 246, 645; 1 Greenl. on Ev. § 440, et seq.; Phillips on Ev. *778; 2 Parsons on Ins. 537, 538; Starkie on Ev. *176; Grigsby v. Water Co., 40 Cal. 396.
    II. If it is competent to prove that Goddin made a visit to the Lizzie Hopkins, and attempted to procure assistance —and this is not disputed, it is competent to prove what he said as to the object of his visit when making it, and what he said, as a part of what he did, in order to procure assistance. 1 Greenleaf on Ev. § 113; 1 Taylor on Ev. § 539; 12 Wheat. 460; Am. Fur Co. v. U. S., 2 Pet. 358; 3 Wall. 115; 2 Curtis C. C. 317; 1 W. Rob. 62; 14 Mich. 489; 26 Wis. 295; 44 Vt. 378.
    III. Upon the general doctrine that what an agent says, while acting within the scope of his authority, is admissible against his principal, as part of the res gestee, we cite the following additional authorities: Hanover R. R. Co. v. Coyle, 55 Penn. St. 402; Pennsylvania R. R. Co. v. Books, 57 Ib. 339; Baring v. Clark, 19 Pick. 220; Thomas v. Sternheimer, 29 Md. 268; Beardslee v. Steinmesch, 38 Mo. 168; Tuttle v. Turner, 28 Texas, 759; Howe Machine Co. v. Snow, 32 Iowa, 433; Flint v. Transportation Co., 7 Blatchf. 536; Westcot v. Bradford, 4 Wash. C. C. 493, 500, 501; Neely v. Naglee, 23 Cal. 152; Ward v. Preston, Ib. 468; Woodwell v. Brown, 4 Penn. St. 121; Austin v. Crittenden, 33 Vt. 553; Matteson v. New York, etc., R. R. Co., 62 Barb. 364; Morse v. Conn. River R. R. Co., 6 Gray, 450; Sessions v. Little, 9 N. H. 271; Wetmore v. Mell, 1 Ohio St. 26.
    IY. Evidence of a usage among navigators to run boats in a leaky condition just so long as the pumps will keep them above water, even if it were possible to establish it, would not be admissible to vary or contradict the express terms of the policy — that the vessel should be at all times tight and sound — or the implied warranty of law that she should be made and kept at all times in- a seaworthy condition. 2 Parsons on Cont. 356, 357; 2 Greenl. on Ev. §§ 249, 251; Schooner Reeside, 2 Sumner, 567; 1 Greenl. on Ev. 292, and. notes; Timm v. Blear, 29 Wis. 254; Hearne v. Ins. Co., 20 Wall. 488; Hill v. Winsor, 118 Mass. 259; Wadsworth v. Alcott, 2 Selden, 64; Evans v. Meyers, 25 Penn. St. 114; Linsley v. Lovely, 26 Vt. 123; 5 Foster, 369; Dixon v. Durham, 14 Ill. 324.

      Lincoln, Smith & Stephens, for defendants in error:
    I. There was no presumption oí unseaworthiness because the plaintiffs could not say the time or blow from which the vessel received the injury that caused her to sink. Marcy v. Sun Ins. Co., 14 La. Ann. 265; Snethen v. Memphis Ins. Co., 3 La. Ann. 475; Stephenson v. Piscataqua Ins. Co., 54 Me. 74; Anderson v. Morrice, 10 C. P. L. 66, 67; Starbuck v. N. E. M. Ins. Co., 19 Pick. 199, 200; Phœnix Ins. Co. v. Cochran, 51 Penn. 144; Binges v. Wickham, 3 Best & Smith, 690; Walsh v. Wash. Ins. Co., 32 N. Y. 436, 437.
    The question of seaworthiness is to be determined by the jury. The burden of proof, however, is on the insurer to establish the fact of unseaworthiness, the presumption of law being that the ship was seaworthy. Treadwell v. Union Ins. Co., 6 Dow. 273; Paddock v. Franklin Ins. Co., 11 Pick. 226; Watson v. Clark, 1 Dow. 344; Munroe v. Vandam, 1 Park. Ins. 333; Parker v. Potts, 3 Dow. 23; Walsh v. Washington Mar. Ins. Co., 32 N. Y. 427; Patrick v. Hallett et al., 1 Johns. 246; Talcot v. Am. Ins. Co., 2 Johns. 124, 467; Arnould on Ins. (Perkins), 245.
    II. The evidence of disasters to other boats was competent. Kent v. The Town of Lincoln, 32 Vt. 597; Isbell v. N. Y. & N. H. R. R. Co., 25 Conn. 562, 563; Ross. v. Bos. & Wor. R. R. Co., 6 Allen, 92; Jones v. Williams, 2 Mes. & Wels. 330; Stambeaugh v. Smith, 23 Ohio St. 585; Penn. R. R. Co. v. Stanahan, 79 Penn. 405; Sheldon v. Hudson R. R. Co., 4 Kern. 218; Grand Wes. R. R. Co. v. Richardson, 1 Otto, 470, 471; Smith v. Old Col. & Newport R. R. Co., 10 R. I. 27.
    III. Seaworthiness depends upon the usages and custom of the trade in which the vessel is engaged. 1 Arnould on Ins. 677, 678; Hazzard v. The New Eng. Ins. Co., 8 Pet. 580; Tidmarsh v. Wash. F. & M. Ins. Co., 4 Mass. 441; Cobb v. N. Eng. M. M. Ins. Co., 6 Gray, 200, 201; 1 Parsons on Mar. Ins. 386; Paddock v. Ins. Co., 11 Pick. 281.
    It is a well settled rule of law, as it is the usage of all trades, that the captain shall not unload his vessel at an intermediate port, unless compelled to do so by an imperative necessity. Turner v. Pro. Ins. Co., 25 Me. 522, 523; Parsons on Mar. Ins. 380.
    It is his duty to get his cargo on to the port of destination at the earliest moment consistent with its safety. Turner v. Protection Ins. Co., 25 Me. 523; 1 Parsons on Mar. Ins. 380.
    Unnecessary delay is held to be a deviation. Lavabre v. Wilson, 1 Doug. 291; Fernandez v. Gt. W. Ins. Co., 48 N. Y. 577.
    The unloading for repairs on the way to the port of destination necessitates a general average for the expense of unloading and reloading and for temporary repairs, and throws these expenses upon the cargo, which the captain has no right to permit so long as he can safely avoid it. 1 Parsons on Maritime Law, 312; 3 Rob. Ad. 258; Lawrence v. Minturn, 17 How. 110; Crump on Marine Ins. 130; Dupont v. Vane, 19 How. 170; Bailey on General Average, 34, 35.
    The testimony clearly shows that all cotton boats leak more or less ; and that as leaks are usual and expected, it is the usage to continue on to the port of destination, so long as the pumps control the leak.
    The Hampton was proceeding to a port of repairs from the time the leak was discovered, and was not, therefore, affected by the seaworthy clause, beyond what the law would impose upon her officers outside of the policy. And so soon as the captain feared that he could not reach that port in safety, he landed to unload a part of his cargo, with reference to proceeding to such port, where she could be repaired, if repairs were needed.
    The captain being competent, was bound to act in accordance with his best judgment, and that judgment was binding upon all parties. Starbuck v. The New Eng. Ins. Co., 19 Pick. 200; Turner v. Pro. Ins. Co., 25 Me. 522, 523; Lawrence v. Minturn, 17 How. 110; Walsh v. Wash. Ins. Co., 3 Rob. 209, 210; Copeland v. New Eng. Ins. Co., 2 Met. 450; Gazzam v. Ohio Ins. Co., Wright (Ohio), 204; Stewart v. Ins. Co., 1 Humph. 246; Dupont de Nemours v. Vance, 19 How. 166.
    IV. The testimony of experts as to the nature and character of the dangers to which boats are subject on the western rivers was clearly competent. Logan v. Clipper, 18 Ohio, 375; Insurance Co. v. May, 20 Ohio, 224; Cottrell v. Mysick, 12 Me. 231; McKee v. Nelson, 4 Cow. 356, 357.
    It is objected that some persons were called to prove that all cotton boats leaked, more or less. This was competent upon several grounds : 1st, as showing the subject insured, and reflecting upon the meaning of the word “ tight and sound,” placing down the policy upon the subject-matter; and 2d, as showing that the captain was not in fault in not at once stopping to unload before he got to Donaldsonville. Starbuck v. N. E. M. Ins. Co., 19 Pick. 20; Turner v. Pro-Ins. Co., 25 Me. 523; Adderly v. Am. M. Ins. Co., Tanney, 129.
    As to the manner of taking exception to the charge of the court, and its refusal to charge as requested and the rule relating thereto see: Adams v. The State, 25 Ohio St. 586; Jones v. Osgood, 2 Seld. 232, 235; Bain v. W. & T. J. R. R., 3 H. Lds. 16; Caldwell v. Murphy, 1 Kern. 417; Elliot v. Pearson’s Lessee, 1 Pet. 330; Moore v. Bank of Metropolis, 13 Pet. 310; Insurance Co. v. Sea, 21 Wall, 161; Maggart v. Morgan, 1 Seld. 427, 428; Magee v. Badger, 30 Barb. 264.
   Ashburn, J.

The first question we will consider arises on the exceptions by the defendant below to the special charges given, the special charges refused, and the general charge to the jury.

Plaintiffs below requested the court to give in charge to the jury a series of eight propositions, each of the series numbered. Some of them the court gave in form as requested ; others as modified in the general charge. To these charges the defendant below excepted in this form, viz: “ To the giving of which charges the defendant at the time excepted.”

This exception, we think, too general. If it was the purpose to except to each proposition in the series, the exception should have been to each, or so framed as to distinctly indicate such purpose. If intended as an exception to the whole series, it was insufficient. "Where the exception is to the whole series, and in it is found one or more sound propositions, as in this case, a general exception to the series as a charge is insufficient. 1 Seld. 422.

Defendant below requested the court to give in charge to the jury a series of twenty-one requests ; not each an independent proposition, but a portion of them independent propositions, and others depending one upon another. The first request in the series was given, many of them wholly refused, and the residue given as modified in the general charge. To this ruling an exception was taken in this form : “ To which refusal and modification of said charges defendant at the time excepted.”

The exception we think insufficient. Some of the propositions in the series were not sound, and the rule is firmly settled where one of a series of propositions presented in one request for a charge is unsound, an exception to a refusal to charge the entire series, as requested, can not be maintained. 3 Otto, 46; 11 N. Y. 416; 6 N. Y. 233; 7 N. Y. 236; 40 N Y. 556; 45 N. Y. 556; 47 N. Y. 570; 30 Ohio St. 104; 30 Barb. 246.

. To the general charge of the court the defendant took exception in this form : “ To which general charge of the court, the defendant, by his counsel, at the time excepted, and excepted also to each proposition of law therein contained differing from the several specific charges asked by defendant.” This form of exception is clearly obnoxious to the settled law upon this subject. It is not the duty of a reviewing court to analyze and compare the requests, modifications, and charge, to discover what particular portions are intended to bp excepted to. The chief office of an exception is to call the attention of the' trial court to the precise point as to which it is claimed it has erred, that the court may, then and there, consider it, and give other and different instructions to the jury, if, in its judgment, it has erred and should do so. An exception in the form we are considering wholly defeats that object. 25 Ohio St. 584; 47 N. Y. 576; 3 Otto, 46; Servis v. Stockstill, 30 Ohio St. 418; 3 Otto, 291; The P. Ft. W. & C. Railway v. Probst, 30 Ohio St. 104.

II. Many objections and exceptions to the admission of testimony offered by plaintiff below were made and taken by defendant below.

So far as practical, we have endeavored to classify the .testimony objected to, and exceptions. To consider and report upou each exception would be an unnecessary labor, and lead to no better practical result than to consider a single case of exception as the representative of a class.

a. The first class claiming consideration embraces all cases of special loss of steamboats from unknown causes, and may be represented by the following question and answer, taken from the testimony of the witness, E. C. Eindren.

“ Q. 17. Have you known of any instance of steamboats navigating the Mississippi river and its tributaries sustaining injuries in their hulls, by striking stumps, snags, and landings, by which they leaked or were sunk, and not discovered until some time after they had occurred; and if yea, give them ?

“A. I have known such instances. The "W. N. Sherman, in the Yazoo river, made a landing on the left hand side of the river; we run from that landing probably three miles, when we discovered the boat was filling with water; landed on the right hand shore, and she sank in about fifteen or twenty minutes ; this was in the year .1856; we found, through means of divers, that she had struck, on the left hand side of the river (where we had landed), a stump, and no one knew anything about it at the time; the divers found the hole afterward, and stopped it, and we raised the boat; that was tlie only instance that occurred to myself.”

¥e think this class of testimony objectionable on both principle and authority. It was calculated to create as many collateral issues as special cases of such loss introduced. In this case, the witness states: “No one knew anything about it at the time.” This is but the witness’ opinion on a subject upon which his opinion was not competent testimony. Other persons on the Sherman at the time might have noticed the shock occasioned by the blow that broke the vessel. This would probably become a disputed question, calling for the testimony of all the persons on the Sherman at the time of the accident, to settle the question of fact as to her case. The testimony of one credible witness, that he felt and noticed the blow, would properly outweigh the testimony of many who did not notice the fact. Here would be a vexed, but valueless, collateral issue. If such testimony is competent, coming from the plaintiff, the right of the defendant to meet and controvert it is unquestionable.

Very many cases were introduced in testimony, on the part of plaintiff, where steamboats had met with some unknown accident, and, suddenly springing a leak, sunk. This class of testimony was incompetent, because calculated to surprise, and take undue advantage of defendant at the trial. Ordinarily, he could not be prepared to meet and contest the merits of each particular case of loss, from unknown cause, introduced. To deprive him of this privilege would be the denial of a legal right, and to admit them would overwhelm the case with collateral issues of fact— distract judicial investigation — leading to no valuable legal result.

It is stated and claimed, this class of testimony was introduced and admitted only to show the nature and peril of such navigation. As testimony-in-chief, such testimony was not competent for any purpose. On cross-examination, it would be competent for a party to propound such questions as would call out such special cases. This could be done in order to ascertain the grounds of the witness’ judgment, and tending to test the correctness of his testimony. If special cases were called out on cross-examination, the party calling for them would be bound by the answers given, and no collateral issues could arise on its admission.

Greenleaf states the rule thus, and we think it sound and applicable: “ This rule excludes all evidence of collateral facts, or those which are incapable of affording any reasonable presumption or inference as to the principal fact or matter in dispute, and the reason is that such evidence tends to draw away the minds of the jurors from the point in issue, and to excite prejudice and mislead them ; and moreover, the adverse party, having had no notice of such a course of evidence, is not prepared to rebut it.” 1 Green-leaf, § 52.

b. Objection was made and exceptions taken to the opinion of witnesses, of which the following question and answer, so far as quoted, are representative. The question was not always put in this exact form, but substantially so, when seeking testimony of this character.

G. A. Houghton:

“Q. 4. State your opinion, derived from your knowledge, of the build and use, of steamers used on the lijwer rivers, upon the points, whether good, seaworthy steamers, properly laden, do or not sometimes receive serious injuries to their hulls, which are not known at the time to be such by the officers and crew, and which do not for-some reason at once fully develope themselves, but which finally cause them to leak seriously, and to sink unless the leak can be controlled by the pumps or found and stopped.

A. Tes, sir. I think cases of that kind do occur frequently in grounding, and straining the butts and opening the seams. Cases of that kind have beeu known to occur.”

¥e discover no valid objection to this question, nor to the answer, so far as quoted. The nature and necessities of the ease and issues made authorize the introduction’, as competent testimony, of the opinions of persons educated by experience in the nature of perils, open and bidden, attending the navigation, by steamboats, of the western rivers.

The petition substantially alleges, that the Wade Plampton, when insured, was tight, sound, and seaworthy, and so continued until she met with the unknown fatal accident; that while navigating a privileged water, she struck some unknown substance which caused her to leak and sink, from a peril of the river, which peril was covered by the insurance. Upon these allegations of fact the answer joins issue.

As we understand the issues, the seaworthiness of the Hampton, at the time the policy sued on was issued, is not questioned, but her seaworthiness at the time she last left the port of New Orleans is a contested fact. If seaworthy when insured the presumption of her seaworthiness would continue up to the time of her loss, unless some known intervening cause is shown that rendered her unseaworthy after she was insured. If shown to be unseaworthy when she last left New Orleans, her loss would be attributed to such unseaworthiness and the contest be at an end. On the other hand, if seaworthy when she left the port of New Orleans on her last trip, she will be presumed to remain seaworthy during all that trip. If, however, during the voyage, the Hampton suddenly began to leak, without any apparent or known cause originating in some peril covered by the policy, a new presumption arises, that of uuseaworthiness. This new presumption, however, is not conclusive, and may be countervailed by testimony. This new presumption shifts the burden of proof on the insured, to show that the vessel was lost by some peril insured against. He may not be able, and is not required in such case, to show the exact cause of the loss, but may introduce testimony tending to show a probable, or even possible, cause for the loss. As testimony tending to show a- probable or possible cause of loss, experienced navigators, who are acquainted with the nature and extent of the 'obstruetions in the privileged waters, the dangerous character of their navigation, and the fact of the open and hidden perils connected with the navigation of the western- rivers, are competent to express an opinion as to the probable cause of the loss of the Wade Hampton, if so it shall be, that she was lost by reason of some unknown cause. When from the nature of the case, opinions of persons acquainted with the nature of the subject under consideration, are the best testimony to be obtained, they are competent. If the Hampton was seaworthy when she started from the port of New Orleans on her last voyage, and the cause of her suddenly springing a leak is unknown, then the opinions of experienced river navigators familiar from actual experience and observation with the known perils and the fact of unknown perils incident to such navigation, are in the nature of expert testimony and clearly competent.

c. Exceptions were taken to questions and answers substantially as the following :

Captain Goddin was interrogated :

“Q. 18. If you know, state what caused the sinking of the Hampton ?
A. She must have had some violence, but what I can not state.
Q. 19. What do you mean by some violence ?
A. She must have had some blow or strain — opening her butts — either by lauding against the bank, or some other cause.”
“Q. 15. E. C. Eindren : Do you know whether or not the Hampton was seaworthy on this voyage on which she was sunk ?”
“Q. 9. John H. Kelly : Will you state how she was navigated on the voyage down, and whether she made a great number of landings, and about how many, and whether she might have sustained any injury in making any of those landings, or in the navigation, that might have caused her to leak, by which leak she was caused afterward to. sink.”
Q. 35. Peter Pepper: What was the condition of the Wade Hampton as to seaworthiness on the trip from Vicksburg to New Orleans, on which she was lost ?
A. She was perfectly safe at the time she was lost. I considered her perfectly safe and seaworthy to travel on up to the time she was lost.
Q. 39. Have you any idea as to what caused the Wade Hampton to leak on the trip on which she sank ?”

Questions and answers within the scope of these are not objectionable. Some of them would elicit facts within the knowledge of the witness, others mingled fact and opinion, and others again opinion only. Where the witnesses'are experienced river-men, familiar with steamboats and steamboat navigation on the western rivers, well acquainted with the Hampton, the manner in which she had been navigated; in her peril saw and comprehended her condition so far as it could be seen andknown, they are persons competentto make answers in response to such questions. Where the question put to the witness would elicit only the knowledge of the witness, no valid objection could exist. Where, from the nature and necessities of the question to be developed, the best testimony the subject-matter affords must be “ compounded of fact and opinion,” such testimony is admissible.

The application of the principle here stated is not to extend in this case beyond the scope of the cited questions and answers thereto.

d. Exception was taken to questions and answers tending to show that steamboats of the class to which the Hampton belonged were designated “ cotton boats,” and that river-men aud insurance companies knew and understood such boats would leak, some more and some less, requiring the daily use of the pump.

With that view Capt. Goddin was asked :

Q. 37. What do you know as to all cotton boats taking more or less water, and causing considerable running of the pumps ?”
E. A. Eindren was interrogated on this subject by a slightly different form of question — thus:
“Q. Will you state whether all of these cotton boats oil
their trips and making landings will take more or less ■water and causing the use of her pumps ? How common is that ?”

We think the questions competent, and the answers, made within the scope of the questions, unobjectionable. The testimony would ascertain a fact, if such fact existed, in relation to this class of boats, and tend to show what the parties to the contract understood to be the meaning of the words in the policy, “ tight and sound.”

When put in the following form, as found in the testimony of E. L. Israel, it is objectionable:

“Q. 7. What do you know of boats carrying cotton taking more or less water, and causing her pumps often to throw water to their full capacity? Would you or not consider it unsafe to run a boat where her pumps are controlling the leak, though they might be throwing water an hour or two to their full capacity ?”

This question is two-fold, and, if fully answered, the answer wmuld also be two-fold. Tlie first part would seem to elicit the knowledge of the witness on a question in regard to wThich his testimony would be competent, while the second branch can only be answered by the witness giving his opinion in relation to a matter on which his opinion would not be competent.

The condition in which it would be proper and safe to run the Wade Hampton did not, in any known degree, depend upon the condition in which it would be proper and safe to run another steamboat. Whether it was prudent and safe to run the Wade Hampton, at any time after her increased leaking was discovered, was, so far as that question was in issue, a question of fact to be ascertained and determined by the jury from the facts and circumstances that surrounded her.

e. Exceptions were taken to such questions as sought from a witness an opinion, whether the Hampton could have received water in sufficient quantities from about her new outriggers to cause her to sink. Such questions are substantially as No. 4, in tbe testimony of John 0. Sinnott, as follows:

“ On such a boat as tbe Hampton if thirty-two outriggers were not caulked, state whether or not, in your opinion, leakage from that source alone would cause her to sink, if the ordinary bilge pumps carried by such a boat, and an independent donkey pump in addition, were all in working order.”

This we think objectionable. Too many unknown conditions are involved ; such as the size of the openings about the outriggers, the extent and effect of the wedging about the new outriggers, the manner in which the Hampton was loaded, the manner in which the pumps were worked, etc. If all the facts relating to and affecting this question of leakage about the outriggers, were brought to the attention of the jury, an intelligent opinion and informed judgment could have been arrived at without the use of extrinsic opinion. The opinions of witnesses would only be competent when the fact to be determined is obscure and could only be made clear by and through the opinions of persons skilled in reference to the question.

/. Exception was taken to the admission of the following testimony:

E. A. Blank, who had been a steamboat captain ten years, testified:

UQ. No. 9. Do you know the James Howard, and what kind of a boat is she, and what effect might her swells have upon a passing steamboat, loaded ?
A. I know her, and she is a very large, heavy boat. If a loaded boat wras caught in the trough of her waves, it would have a very bad effect on her; if a boat were headed right against her waves it would not be as bad as if she were in the trough of them.
§. No. 10. What do you mean when you say her waves would have a bad effect on her?
A. It is liable to spring her butts and seams open.
Q. No. 11. What effect would that have upon a boat?
A. It would 'cause her to leak.
Q. No. 12. To what extent might it cause her to leak ?
A. My opinion is that she might spring her butts and seams enough to sink her.”
E. A. Austion, a pilot on the Mississippi river for twenty-five years, testified that he knew the James Howard, and, when further interrogated, said:
“Q. How do the waves or swells of a very large boat like the Howard rock a loaded boat?
A. Meeting a boat like that it would have an effect on a boat like the Hampton on the guards or outriggers, that would have a tendency to open the seams of the outriggers and cause the caulking to fall out, which would have a tendency to let water in ; the waves are mighty severe on a boat in other ways unless her guards are down flat on the water.”

~We discover no valid objection to this testimony. The form of the questions to the witness Blank could have been improved, but his answers are unexceptionable. The actual effect of the waves made by the Howard on the Hampton was, and remains, unknown. In such case, experienced river navigators, who knew both boats and the general force of the waves or swells in the water made by the Howard, might give in testimony and say what would be their probable effect on the Hampton. In such case, the opinions of such skilled persons would be the best, and the only appropriate, testimony the subject-matter afforded.

g. Exception was taken to Q. 34 and answer of the witness Goddin. It is claimed they were wholly incompetent for any purpose. The witness, A. D. Hopkins was asked a question as follows, and answered :

“Q. 85. State whether or not you stated to Captain God-din, on the levee at New Orleans two o.r three weeks after the sinking of the Hampton, ‘that you had heard Captain Tobin would have trouble about insurance on the Hampton, and that you thought it would be a five thousand dollars job to you ? ’
A. No, sir; for I supposed Captain Goddin to be one of the owners of the boat; I never supposed they had any trouble until a later day.”

Captain Goddin in answer to Q. 34, says he did have a conversation with A. D. Hopkins, such as is mentioned in the above question put to Hopkins at the time and place named. "We think the question, and answer of Goddin competent, as reflecting.upon the credibility of Hopkins’ statement.

The exception to Q. 7, and answer in the testimony of J. Y. Richardson; to Q. 2, and answer in the re-examination of the witness Joseph Williams, and to Q. 2, and answer in the testimony of F. A. Blank, were well taken.

III. We now come to consider the objections made by plaintiff below to testimony offered by defendants below, and excluded.

1. At Donaldsonville, the Wade Hampton and Lizzie Hopkins were laying near each .other. At that landing, Captain Goddin,'from some cause satisfactory to himself, had come to the conclusion the safety of the Hampton required the removal of a portion of her cargo. Acting with that purpose and necessity in view, he went to the steamboat Lizzie Hopkins to get permission to ship a portion of the Hampton’s cargo on board the Hopkins.

Captain Goddin was the accredited agent of the owners of the Hampton, charged, in this emergency, with the duty of acting and speaking for them. What he did and said in the discharge of his duty, while the danger to the vessel was upon her and calling for immediate action, with a view of saving her, were as much the acts and statements of her owners, and should have the same force and effect, as if the owners had been present in person and dictated his words, or spoken in their proper person.

Was the matter objected to competent testimony? When Captain Goddin reached the Hopkins, he asked the witness, Henry Rod, for the captain, who was absent. Rod is then interrogated as to what took place between himself and Goddin. The answer is lengthy, and we will quote so much as will show the quality of the'.rejected testimony:

Q. 11. What did he say then ?
A.. He stepped up out of the yawl-boat, and told me that he was in a leaking condition or sinking condition, and told me that he was heavily loaded, that he had some new outriggers put in, and some were not caulked, and asked for the head clerk, Mi’. P. A. Charlet; he told me he knew the gentleman, or something like that; I did not pay much attention, as I had to watch the bank, and to watch the boat, as the wind was blowing; then he told me he would like us to take some of the cotton off his boat, and bring it to New Orleans, if we could take it off; I answered him that I had nothing to do with it, but would call the mate; when I told him about my power, he told me then to call the mate.”

The nature of Goddiu’s employment, and necessities of his positiou, made him the agent and representative of the owner’s of the boat. The Manchester, 8 Eng. Adm. 62. As such, his acts and statements, within the scope of his employment, are to be treated as res gestee. Story on Agency, § 134. Where the acts of the agent would be but dumb show, but for a meaning put into and upon them by his words, his words are to be treated, as verbal acts, and, whilst speaking clearly within the bounds of his employment and authority, are res-gestae. Hence the rule “that declarations of third persons are not admissible in evidence, as part of the res gestee, unless they in some way characterize or tend to give character to the act which they accompany, or derive a degree of credit from, the act itself.” 14 N. H. 101; 1 Greenleaf, § 440.

When the statements of Goddin, objected to, were made, he was acting clearly within the scope of his authority as master of the Hampton. He was in search of a specific help — to lighten his boat, by removing on board the Hopkins a portion of his cargo. • He acted in the belief that to remove a portion of the cargo would raise the Hampton in the water, and thus escape the danger from the leak. TIis acts in going to solicit such aid from the Hopkins would have been meaningless, without his statements to give character to the act. His acts and words must go in as a whole, that his conduct on that occasion may have meaning. Tie was not narrating a past transaction, but stating a present need, induced by a pending danger, with what he then probably thought to be the cause of his wanting the present aid.

His conduct and words concerned the safety of the vessel, care for the cargo, and possibly the lives of the passengers. Considering the duties of the captain of the Wade Hampton, his obligations and authority, we have no doubt as to the competency of acts done and woi'ds spoken by him while on the Hopkins. This application of the doctrine of res gestee is supported by the authorities. 1 Ohio St. 26; 1 Greenleaf, § 113; Story on Agency §§ 134, 135; 4 Cush. 93; 34 Barb. 256; 6 Barb. 79; 4 Seld. 497; 12 Wheat. 460.

The following answer is objectionable, because it does not give the conversation between Captain Goddin and Mr. Charlet. What was said by Goddin does not appear with any certainty.

Q. What happened next ?
A. I told Mr. Charlet that the captain of the R. E. Lee wanted to see him ; then Mr. Charlet got up and came outside of his stateroom, and got speaking with Captain God-din ; then I stepped aside and heard him speaking about riggers, and about something else ; then I went below, and that’s all I know about it; and .1 told the gentleman ‘ that was all I could do for him.’ ”

2. The court erred in sustaining the objection to questions Nos. 49 and 53, put to Geo. M. Fredrick; also in excluding question and answer No. 19, in the testimony of P. A. Charlet; but ruled correctly in excluding questions Nos. 26, 29, and 30, in the testimony of MeHaffie.

Other objections to the admission or exclusion of test-imony were made by eách party. We think, from our examination, tbey are not of sufficient importance to require special notice. They are either not valid ones, or the testimony is of that unimportant description which frequently gets into a case, but can have no appreciable influence either way on the jury, as to the merits of the case.

Ve have endeavored to deal with the testimony, exceptions, and objections in such a manner that our views may afford a general guide upon like questions, in the further investigation of the case.

Judgment reversed, and cause remanded for a new trial.


author: Johnson, J.

text:
    Hoyt et al. v. Day.
    1. A testator, whose estate consisted of a single tract of land, occupied as a homestead, and some personal property, devised and bequeathed to his wife one-half of all his real and personal estate, and the other half to his brothers and sisters, and the children of a deceased sister naming each, and specifying the proportion or share of each. He appointed an executor, and authorized and empowered him to sell and convey “all said real estate to the purchaser or purchasers thereof, if necessary for the purpose of distributing” it “among the devisees and legatees aforesaid.” Held, that this was a devise in fee, to each of the devisees by name, of an undivided estate in land, in the proportions specified, and not a bequest of the proceeds of said land.
    2. That the power of sale vested in the executor was a naked power only, not a power coupled with an interest in the land, and could only be exercised, if necessary, for the purpose of making distribution among the devisees.
    3. Each of said devisees holds his share as a tenant in common with the others, and is entitled to all the rights of such tenancy, subject only to the power of sale.
    4. The power of sale was not absolute. It could only be exercised, if necessary, for the purposes of distributing the estate. Its exercise must be limited to the purposes for which it was granted.
    5. A devisee may sell and convey his undivided share as real estate before distribution, but the purchaser takes the same subject to this power of sale, the same as his grantor, if its exercise beeomes necessary.

      6. The devisees, or their grantees, have each'the right to hold his share in severalty, if the same can be set off without manifest injury to the others; but if distribution can not be made in land, and it becomes necessary to sell, to make a proper division, then the executor is authorized to sell the whole, notwithstanding a prior conveyance of an undivided interest by one of the devisees.
    7. By proceedings in partition, the widow had her half assigned to her in land. Held, that the power of sale was not thereby defeated as to the other half, if the necessity existed for a sale, to make distribution among the other devisees.
    8. The defendant acquired title to an undivided share, by purchase of a devisee; the plaintiffs afterward purchased and received a deed for the whole, including defendant's share, from the executor. The plaintiffs can not maintain their title to the share of defendant, unless the necessity existed for a sale of the whole; and a court of equity will not enjoin proceedings in partition to have such share set off in land, unless it appears that such share can not be so set off, without manifest injury to the interests of his co-tenants.
    Error to the District Court of Huron county.
    This is an action in equity, by the plaintiffs in error to quiet their title to some eighty-six acres of land.
    On appeal to the district court, the petition ivas dismissed after full hearing upon the evidence; a bill of exceptions was duly taken, and error is here prosecuted to reverse that judgment on the ground that it is contrary to the law and the evidence.
    The plaintiffs aver, that they have the legal title to, and are in peaceful possession of, said land, and that the defendant Day,-claims to be the owner in fee of one undivided one fifteenth of the same, and has commenced proceedings in partition, under the statute to have his share set off to him.
    It is also averred that such proceedings in partition are wholly inadequate to the determination of their rights in the premises; and that Day can not maintain the same, because lie has no interest in this land, and has no possession thereof, either jointly with the plaintiffs or otherwise.
    The plaintiffs pray, that said proceedings in partition be ordered to stand for hearing with this suit, and that said Day be enjoined therein, until the hearing of this case, and upon final hearing, his title be declared null and void.

      To this Day answers, denying plaintiffs’ title and possession, and that said proceedings in partition are inadequate to the determination of the rights of the parties.
    lie sots out his own title as follows : that about the 11th of February, 1869, one William Baker died seized of this land, together with sixty-eight acres more, then a part of his farm, and leaving a will, which was duly probated, which was in these words:
    “Item 1. — I do hereby direct all my'just debts, and all proper charges against my estate, to be fully paid out of my personal property.
    Item 2. — I do hereby devise and bequeath one-half of all my real and personal estate to my beloved wife, Leah Baker, to be absolutely hers, with all the household furniture.
    Item 3. — I clo hereby devise and bequeath the other half of all my real and personal estate to Hannah Moffat, my sister; Sampson Baker, Spencer Baker, and Abijali Baker, my brothers; Horace Robinson, William Robinson, and Mary Davis, my nephews and niece, in the following proportions, to-wit: to my sister and my brothers above-named, each one-fifth part; and to my nephews and niece one-fifth part equally between them, excepting said furniture.
    Item 4. — I do hereby nominate and appoint Benjamin Davis, of Fairfield township aforesaid, executor of this my last will and testament, and do hereby authorize and empower him to sell and by deed duly executed to convey all said real estate to the purchaser or purchasers thereof, if necessary for the purpose of distributing my said estate among the devisees and legatees aforesaid.

    In testimony whereof, I have hereto set my hand, this 12th day of May, 1868.”
    He alleges that on the 14th of May, 1870, said Leah Baker, widow, commenced proceedings in partition, and such proceedings were had that the .share devised to her by said will was set off to her out of said real estate of which Baker died seized, being sixty-eight acres, leaving to the other devisees the remaining eighty-six acres now in controversy: that afterwards, on the 22d of July, 1870, said Mary Davis, who under said will was entitled to one undivided one fifteenth of the remaining half of the testator’s farm, with her husband joining, sold and conveyed her share to the defendant.
    The answer further states that ever since he thus became an owner he has been in possession as owner, which the plaintiffs well knew when they purchased an interest in the premises; that said Benjamin Davis, who was appointed aud qualified as executor of said will, knew of these proceedings in partition by Leah Baker, and consented to and advised the same, and that the rights of all parties can be determined in his proceeding in partition, and that defendant’s share can be set off to him adjoining his other contiguous lands without injury to the premises.
    His prayer is, that plaintiffs be enjoined from interfering with his proceedings in partition, and that his title be quieted.
    The plaintiffs reply, and deny that the executor had knowledge of or consented to the partition to the widow of her share, or that defendant’s interest can be set off in severalty without injury to the residue, or that defendant acquired any title or interest in the premises by purchase of said Mary Davis, except such as she as a devisee held, which was subject to the power of the executor to sell the whole, as provided in said will.
    They further aver that on the 1st of September, 1870, said executor, in execution of the power vested in him by the will, and for a valuable consideration, sold aud conveyed in fee simple to the plaintiffs the whole of said land,, whereby all the interest of the defendant was entirely divested ; to which sale he consented.
    The defendant’s proceeding in partition was commenced September 14, 1870, and plaintiff’s action in this case July 5, 1871.
    Upon final trial a bill of exceptions was taken, setting out all the evidence, but as the case turns upon the construction of the will, it is unnecessary to notice it in detail.

      Watson & Strong, for plaintiff in error:
    It certainly seems clear that the testator intended that his wife should have the independent right of election; that her interest should not be incumbered or embarrassed by those of the other devisees; that she might, without consulting them, eiect to take her half of the realty in land; and, when so electing, to have her portion set off' to her by the usual mode, leaving the other parties in interest to look exclusively for their rights to the half set apart for them. We think this line between these devisees is clearly marked by the expressed intention of the testator.
    The power iu the will is to sell, if necessary, for the purpose of distribution. As all other provisions in'wills, their testamentary powers are construed in such manner as best to carry out the purposes of the testator. It certainly seems fair so to construe this power, based as it is on a necessity, to be commensurate with the necessity. To give the wife her share, its exercise is not required. If the other devisees need a sale, and conversion of the land into money, in order to make distribution among them, apply the power to their half. The testator seems to have intended nothing more than this scope for the power.
    It may be laid down as a sound proposition that so long as any purpose of the testator remains to be accomplished by the power, it remains in force for the purpose of accomplishing that object. And when all the purposes for which the power was conferred upon the donee are worked out by it, the power itself ceases to exist. It is lost in the accomplishment of its objects. It was decided, in the case of Willis v. Shorrel, 1 Atkyn, 474, that a fine will not bar a bare, naked power.
    “ The donee of the power can not defeat his own grant. Nor can the donee of a power simply collateral, suspend or extinguish it by any act of his own.” 4 Kent’s Com. 386; Goodrich v. Cator, Doug. 477; Coke Litt. 237a, 2656; Digge’s case, 1 Co. 174a; Willis v. Shorrel, 1 Atkyn, 474; Sugden on Powers, 50, 67; West v. Barney, 1 Russell & Mylne, 391.

      And on the subject of powers, see Jackson v. Janson, 6 Johns. 98; Slocum v. Slocum, 4 Edw. 613; 4 Kent’s Com. 355; Lord Mansfield, Douglass Rep. 293; Lord Ellenborough, 3 East. 441; Jackson v. Veeder, 11 Johns. 169; Ricaud v. Williams, 7 Wheat. 59; Sharpstone v. Tillon, 3 Com. 51; Barclay v. Dupuy, 6 B. Mon. 92; Dorland v. Dorland, 2 Barb. 63; Miller v. Mutch, 8 Barr, 417; Meaking v. Cromwell, 2 Sandf. 512; Robert v. Whiting, 16 Mass. 186; Bloomer v. Waldron, 3 Hill, 361; Ward v. Barrows, 2 Ohio St. 241; Loyd v. Taylor, 2 Dallas, 223; Smith v. Folwell, 1 Binn. 546; 2 Redfield on Wills, 123; Reed et al. v. Underhill, 12 Barb. 113:

      H. & L. H. Goodin, for defendants in error:
    There was no unlimited power or discretion given to Davis. It was a power to be executed upon a contingency arising, to wit: “ If necessary for the purpose of distributing,” etc. If there was no necessity to exercise the power, then the occasion for its exercise could not have arisen. It was not a power to be exercised in any event. But a power to be exercised in a particular event. Darley v. James, 8 Wheat. 495; Allen v. De Witt, 3 Comst. 276, 278, 279, 281, 282; 4 Kent Com. 330; Cleveland v. Boerum, 27 Barb. 252; Ward v. Barrows, 2 Ohio St. 250, 251; Roseboom v. Mosher, 2 Denio, 68.
    Again, this power was limited to the subject-matter upon which it should be exercised. It was to sell and convey “ all said real estate . . . for the purpose of distributing my said estate among the devisees and legatees aforesaid.” He was giving this farm. He was not raising a fund to pay debts. The object was not to raise money for any purpose, but to bequeath this farm.
    We think that upon this point the case of Stablelon and Wife v. Ellison, 21 Ohio St. 527, is entirely conclusive. It shows that it was the whole farm that was to be sold, and not a part thereof.
    There can be no doubt but that William Baker devised this as land. This is what he supposed he was devising. The law on this subject is stated in 2 Story’s Equity, § 793. See also Craig v. Leslie, 3 Wheat. 563.
    The most of the cases relied upon by counsel for plaintiff are cases where a power was given to sell and divide the proceeds, not cases where the land was devised. The difference is most marked. The one is'a gift of the proceeds— money; the other is a devise of land. To carry out the intention in the first ease, the land must be sold. In the other, the sale of the land is the last resort, and only to be resorted to when absolutely necessary.

      Wickham & Wildman, also for defendants in error:
    I. The power contained in the fourth clause of the will has been extinguished, because : 1. The object of the testator has been accomplished. 2. By its object becoming unattainable.
    “A power to sell real estate in a will fails when its objects are unattainable.” Sharpsteen v. Tillow, 3 Cowen, 657. See also Ward v. Barrows, 2 Ohio St. 241.
    The object of the power has both been accomplished and become unattainable for the following reasons :
    The authority conferred upon Benjamin Davis, the executor, to sell the lands mentioned in the will of William Baker, was merely a naked power, and gave the executor no interest in the lands. They passed to and vested in the devisees, in the proportions provided in the will, there to remain, until divested by the proper execution of the power. Hill on Trustees, 235, 471, marginal. See also Hilton v. Kenworthy, 3 East, 533; 2 Sngdeu on Powers (6 ed.) 174; Peters v. Beverly, 1 How. H. S. 134; 16 Pet. 532; Burr v. Sim, 1 Whart. 266; Guyer v. Maynard, 6 Gill & Johns. 420; Shellen v. Homer, 5 Met. 462; Jameson v. Smith, 4 Bibb, 349; 4 Kent’s Com. 320; Sharpsteen v. Tillow, 3 Cow. 651.
    Courts in construing testamentary powers, like the one in this will, always endeavor to find the object intended to be accomplished by the testator. 3 Cow. 651; 6 Johns. 73. What was the object of-William Baker, deceased, in using the language contained in the fourth item of his will? It seems to us clearly and only to provide a convenient method or way by which the devisees, including Leah Baker, the wife, could partition the lands and sever the possession ; and a method to be exercised only in case it should become necessary for the purpose of distributing his estate. Can it be doubted that the devisees by their own act might have partitioned the premises among themselves by an agreement designating the part or portion each one was respectively to take, and by means of mutual releases or quitclaim deeds conveying to each his or her part so designated ? We think not. We contend that by the pai’tition proceedings the devisees, or their representatives, did sever the possession, so far as Leah Baker was concerned, her part being set off to her in severalty; and the portion belonging to the remaining devisees being one-half the land, being left in them as tenants in common, the court finding and declaring them, including the grantor of the defendant herein, to be tenants in common. All the devisees, or their representatives, were parties to that proceeding; all assented to the order of the court, and were satisfied with the division made. When the order had been made, and the partition made and confirmed in accordance with it, the object and desire of the testator had been fully accomplished. It no longer remained necessary for the executor to exercise the authority conferred upon him by the will, and consequently the power had become extinguished.
   Johnson, J.

The defendant’s title is derived from a conveyance by Mary Davis, one of the devisees, dated July 22, 1872.

The plaintiff’s title is derived from a conveyance by Benjamin Davis, as executor, dated September 1, 1872.

By the terms of this will, the testator bequeaths to each of the parties specifically named, an undivided share in an entire tract of land.

Each holds such share in fee. It is an estate in lands, and not in the proceeds of land. It is a devise to each by name, and not to the executor for each. It is an estate in freehold, descendible, devisable, and alienable.

As it is a.devise of an aliquot part of land in fee to each of the devisees, it follows that they are tenants in common, and entitled to all the rights of such tenancy, including the right to have partition, except so far as limited hy the terms of the will, if a sale becomes necessary.

By the terms of the sixth clause of the will, the executor is authorized and empowered to sell all of the real estate, if necessary for the purpose of distributing the estate among the devisees.

The land is not devised to the executor to sell and to divide the proceeds.

His power to sell is contingent on the necessity of having a sale, in order that a fair distribution among the devisees be made. If that can be done, no power of sale can be exercised against the wishes of any tenant in common.

The power thus vested in the executor is a naked power, not coupled with an interest in the land, and it could only be exercised for the benefit of the devisees, and only then if necessary to carry out the intention of the testator.

If the land could not be divided in the proportions named, so that each should have his share in land, then the executor might sell and distribute the money.

The entire estate and interest in the land, being specifically bequeathed, the primary right of each tenant in common was to have the land distributed.

As the language of the will, which confers authority to sell is not imperative, but is a simple power to sell if necessary, and as the legal title is in. the devisees, it follows that all the devisees might join in a sale, and thus convey the whole estate without the intervention of the executor.

It is equally clear, that each devisee has primarily a right to his share in land, if it can be set off'without injury to the interests of the other devisees.

This right to land is one that may be asserted by proceedings in partition, if necessary, but if distribution in land can not fairly be made, then it becomes a right to have money, and the power of sale may be made effective to convert the land into money.

By such proceedings, the widow had her half, set off in land, to which neither the executor nor the other devisees objected.

It was the clear intention of the testator that she should have land if it could be given her without detriment to the others interested.

If the commissioners, in her suit in partition, had reported that the farm was not susceptible of being divided into halves, then the whole might have been sold, either by the executor, or under order of the court under the statute, as would most conduce to the interests of all.

What is true as to the widow, is equally true of the other devisees.

It is claimed by plaintiffs, that the defendant, Hay, though claiming under a deed of prior date to that of the executor to them, stands in no better positiou than his grantor, Mary Davis, one of the devisees, and that she held her estate subject to this power of sale.

While it is true that each holds an interest in land, it is equally true, that neither is entitled to land, if a distribution thereof can not be made to him without injury to the others. In such case, any one may insist on a sale of the whole.

It is quite as evident that neither one nor a majority of the devisees could insist on a sale of the whole land and compel a minority to take in money, if the land can be divided, or if the shares of those wanting land can be given them without harm to the others.

When Davis, acting under the power of sale, conveyed the whole eighty-six acres (being the half of testator’s real estate, after the widow’s share was set off to her) no effort had been made to distribute in land, nor is it shown that such distribution could not have been made.

A majority did not want land, nor were they willing that Day should have his share in land; not because it could not be set off to him, nor because the residue could not be also divided, but because it would injure the sale of the residue.

They did not claim, nor does the evidence show, that to set Day's share off would injure the balance for the purposes of division, but for the purposes of sale.

• It was manifestly the intention of the testator, not only to give in land, if distribution could be made, but if that could not be clone, then to provide an easy and inexpensive mode of distribution, by converting the land into money and dividing it, without a resort to judicial proceedings.

"When the present action was commenced, the defendant had a proceeding in partition pending.

His title to the undivided one-fifteenth was subject only to this .power of sale, if necessary for the purpose of distribution. The title of the plaintiffs to this share, under their deed of a later date from the executor, depended on the same necessity.

If Day’s share could not be set off, under the provisions of the statute, then the executor, the other devisees assenting, might sell the whole, and Day would be compelled to take his share in money.

His right to a partition of land, the whole of which had been sold to plaintiff's before he commenced his suit for that purpose, and the plaintiff's’ right to claim the title to the whole, depended on a question of fact; that, is, could this share.be set off in land without manifest injury to the other tenants in common ?

If in that proceeding in partition the plaintiffs had filed a cross-petition in equity, containing the same allegations as are in the present petition, the present defendants might have been compelled to accept his share in money, if it appealed that his share could not be assigned in land.

The right of Day to have partition of the land, and the power of the executive to sell the whole could thus have been directly adjudicated.

In the present action the prayer is, that defendant’s pending proceeding in partition be perpetually enjoined, and plaintiffs’ title to the whole tract be decreed valid.

Its object is to prevent a partition to Day of his share, even though it may be done under the statute.

If granted, it denies all opportunity to determine the existence of a necessity for a sale of the whole, not because distribution in land can not be made to all, nor because Day’s share may not be set off to him without injury to the divisibility of the balance of the land, but because such assignment to him in land would injure the sale of the residue.

The other devisees did not want their share in land, but in money, and hence they insisted on a sale of the whole by the executor.

Until it is made to appear that Day’s share could not be given in land, the executor could not sell the whole.

The defendant claims that when the widow’s half was set off to her,'the power vested in the executor was gone; that the authority was to sell “ all said real estate,” and not a part, and as half had been assigned to the widow, there was no power to sell the remaining'half.

"We think the power of sale was given to effect a division in money, if one in land could not be made, and that the power to sell all the real estate included the power to sell this half, if the necessity existed to make distribution among the remaining devisees.

Upon the whole case, a majority of the court is of opinion that the district court did not err in dismissing plaintiffs’ petition upon the issues made and upon the evidence. As the effect of the evidence depended upon a construction given to the will, and as the weight of the evidence corresponds with the construction we have given to that instrument, the judgment of the district court is affirmed.

Day, C. J., and Scott, J., dissented from the judgment.