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tator, but who died before the happening of only no such intention, but in our judgment the contingency." This case, therefore, clear-it does not in any way have such effect. ly recognized the rule that where the person to take is certain, contingent estates of inheritance, as well as springing and executory uses, etc., are transmissible by descent, and are devisable and assignable, and that, too, in a case in which it was considering a will which created a contingent remainder with a double aspect-where there were "two contingent fees not limited to take effect the one upon or after the other, but the one to take effect to the entire exclusion of the other, and the falling out of the contingency is to decide which of the two is to take effect." It further clearly recognized the distinction between a case where an individual is named, or definitely described as the party to take, and one where there is a limitation to a class, and it also demonstrated that Hambleton v. Darrington was not overruled by Buck v. Lantz by citing it as an illustration of the rule above stated, and also citing Buck v. Lantz. The case of Larmour v. Rich, 71 Md. 369, 18 Atl. 702, throws no light on the subject. The court held that by the terms of that will the remainder given to the children of the testator's daughter did not vest until the death of the parent. In Reid v. Walbach, 75 Md. 217, 23 Atl. 472, it was again said, "Contingent estates of inheritance will pass by descent and are also devisable"-citing Spence v. Robins, 6 Gill & J. 513, 26 Am. Dec. 587, and Hambleton v. Darrington, supra. Nor does Garrison v. Hill, 79 Md. 75, 28 Atl. 1062, 47 Am. St. Rep. 363, affect the question. There, as in Buck v. Lantz, the will under discussion was that of the life tenant, and not of the contingent remainderman.

After stating the facts fully, and the conten tion of the widow and administratrix of Louis Courtney O'Donnell, who was one of three grandchildren named by the testator as contingent remaindermen, the court said: "The obvious answer to this contention is that, according to the clearly expressed intention of the testator, the estate did not vest, or become the property of Louis Courtney O'Donnell, her husband, who died intestate on May 27, 1885, until the death of the life tenant, Oliver O'Donnell, who did not die Then, until the 15th of November, 1901." after quoting the part of the will which made the trust for the benefit of his grandson, Oliver O'Donnell, during his life, and referring to the provision for the remainder which began by saying, "and from and immediately after the decease of my said grandson, Oliver O'Donnell, in trust," etc., the opinion proceeded: "Here the use of the words 'from and immediately after the death,' taken in connection with the other parts of the will, fixed the period or point of time with reasonable certainty at which the estate should vest and become the property of his other grandchildren. The testator plainly states the contingency which shall first happen before the property should take effect and vest in the grandchildren named in the will, and that was the death of Oliver O'Donnell, without issue. The husband of the appellant, Nina O'Donnell, having died in the lifetime of the life tenant before the time fixed for the contingent remainder to vest in him (she) is not therefore entitled to share in the distribution of his property under the 16th arAs the re-ticle of the will, either in her right as widow or as his administratrix”-citing Larmour v. Rich, 71 Md. 384, 18 Atl. 702, Cox v. Handy, 78 Md. 108, 27 Atl. 227, 501, and Nowland v. Welch, 88 Md. 51, 40 Atl. 875. The court then considered the remaining question, whether trust created by the will determined at the death of the life tenant. It is obvious that the opinion was based on the construction of the will, which the court held showed the intention of the testator to be that the contingent remainderman should not take until after the death of the life tenant-relying on the language quoted above, taken in connection with other parts of the will.

mainderman died before the contingency happened, without leaving a will, under the rule above referred to, only such heirs could take as were in esse when the contingency happened, and, as it happened at the time of the death of the testatrix, of course she was not an heir, and she could not dispose of the remainder by her will. The rule which declares that contingent estates of inheritance will pass by descent and are also devisable (which is again announced in Garrison v. Hill) means that they are devisable by the contingent remainderman, as we have seen, but, of course, his will does not take effect on such remainder until the happening of the contingency. If it does happen, and he has willed it, then his devisee takes the interest he would have had if he had been then living. That is clearly the meaning of the cases on the subject.

There is another part of the will that strongly sustains the conclusion reached. It is that part which provided that, in the event of the death of any of the three grandchildren under 21 years of age and without issue, the "share of him or her or them so dying shall go to and become the property of the survivors or survivor of them absolutely" etc., and in case all three of them died under 21 and without leaving issue, then the will provided that the said share "shall go to and become the estate and property of all my other children then living and all

Great reliance is placed by the appellees on Lee v. O'Donnell, 95 Md. 538, 52 Atl. 979, and it is contended that it overruled Hambleton v. Darrington. In the first place, it might be said that this court would not intentionally overrule a case, especially one which would affect titles to property, with

After giving to his wife certain

of such of them as may be then dead," etc. | mainder. It was therefore impossible to tell until the household furniture and plate, he made this death of the life tenant who was to take consequently the person to take was not certain, and hence the rule as announced in Hambleton v. Darrington and followed in Demill v. Reid and other cases did not apply. That was sufficient to prevent the widow and administratrix from being entitled to share in the interest which would have gone to Louis Courtney O'Donnell, if he had been living at the death of the life tenant. Then, again, Louis Courtney O'Donnell did not make a will, and hence, as decided in Buck v. Lantz, only such as were his heirs in esse at the time of the happening of the contingency could take. His daughter, Louisa Courtney O'Donnell, was his only heir, and, as such, she did take what her father would have taken if he had survived Oliver O'Donnell. There is certainly nothing in Reilly v. Bristow, 105 Md. 326, 66 Atl. 262, which in any way conflicts with what we have said, or that can be said to sustain the construction placed on Lee v. O'Donnell by the appellees. On the contrary, it tends to sustain the position contended for by the appellants, although it is not necessary to now determine whether it went to the extent the appellants contend for it.

bequest: "I give, devise and bequeath unto my brother, Richard D. Fisher, all the rest and residue of my estate, real, personal, and mixed, of which I may die possessed, in trust," etc. That expression was certainly broad enough to include all that he could devise and bequeath, unless the words "of which I may die possessed" so qualify the rest of the clause as to prevent this remainder from passing. There is nothing else in the will or circumstances surrounding it which would indicate an intention on the part of the testator to die intestate as to any property he could devise or bequeath, but the contrary is manifested. It was said in Barnum v. Barnum, 42 Md. 311: "There is always a strong disposition in the courts to construe a residuary clause so as to prevent an intestacy with regard to any part of the testator's estate, unless there is an apparent intention to the contrary." And the court referred to Sir William Grant's statement that "it must be a very peculiar case indeed in which there can at once be a residuary clause and a partial intestacy, unless some part of the residue be not well given." In Dulany v. Middleton, 72 Md. 76, 19 Atl. 146, Judge Alvey quoted from Booth v. Booth, 4 Ves. 407, that "every intendment is to be made against holding a man to die intestate, who sits down to dispose of the residue of his property." As indicating the extent to which this court has. gone, even when the testator did not know he had the property which was involved, see Stanard v. Barnum, 51 Md. 451, Dalrymple v. Gamble, 68 Md. 523, 13 Atl. 156, and Lindsay v. Wilson, 103 Md. 252, 63 Atl. 566, 2 L. R. A. (N. S.) 408.

In

We have thus at such great length reviewed many of our own decisions because there seemed to be some misapprehension as to the law on the subject before us in this state. Our conclusions are that Hambleton v. Darrington has not been overruled by this court, | and that Robert A. Fisher took a transmissible and devisable estate under the will of his father as the person to take was certain, and there was nothing in the will of James I. Fisher which indicated his intention that such interest or right as a con- A number of cases reflecting upon the tingent remainderman may have before the meaning of the term "of which I may die happening of the contingency should be post-possessed" can be found in the books. poned until the death of the life tenant. It Thomas v. Blair, 111 La. 678, 35 South. 811, is proper to add that the whole will is not it was held that the expressions "all my before us, but we assume that, if there had property" and "all the property I possess" been anything in it affecting the question, were equivalent. In Brantly v. Kee, 58 N. it would have been inserted in the record. C. 332, "all the property I now possess" was held to mean all that the testator "owned,” and "therefore included estates in remainder." In Loring v. Arnold, 15 R. I. 428, 8 Atl. 335, "all interest and estate in all real estate in Rhode Island" passed upon coutingent remainder. In Whitehead v. Gibbons, 10 N. J. Eq. 250, "all the rest and residue of my estate, real, personal and mixed, wherever it may be situated or found that I may die possessed of," etc., held to embrace everything that the testator had a right to dispose of not specifically devised or bequeathed. In Laughlin v. Norcross, 97 Me. 33, 53 Atl. 834, by "all the estate, real, personal and mixed, wherever found, and however situated, whereof I die seized and possessed," it was held that "the testator evidently meant to include all kinds of rights

We will not further discuss authorities outside of the state, but will cite some not already mentioned, which more or less reflect upon the questions before us. 2 Wash. on Real Prop. (6th Ed.) § 1557; 2 Minor's Inst. 361; 2 Williams on Executors, 888, 889; Pinbury v. Elkin, 1 P. Williams, 564; Peck v. Parrott, 1 Ves. Sr. 236; Robertson v. Fleming, 57 N. C. 387; Heard v. Read, 169 Mass. 216, 47 N. E. 778; Loring v. Arnold, 15 R. I. 428, 8 Atl. 335; Chess' Appeal, 87 Pa. 362, 30 Am. Rep. 361; Hennessy v. Patterson, 85 N. Y. 91; Dunn v. Sargent, 101 Mass. 336; Collins v. Smith, 105 Ga. 525, 31 S. E. 449. In this last case a number of authorities are cited.

2. The next question is whether the language used in the will of Robert A. Fisher

v. Heyward, 2 Desaus. (S. C.) 422; Heard v. Read, 169 Mass. 216, 47 N. E. 778; Collins v. Smith, 105 Ga. 525, 31 S. E. 449; Woodman v. Woodman, 89 Me. 128, 35 Atl. 1037; Davenport v. Coltman, 9 M. & W. 494; Hemingway v. Hemingway, 22 Conn. 472. And in Reilly v. Bristow, supra, the estates of Annie H. Griffin and Frederick H. Griffin

were not only vested in possession, but such interests as they might have from their father's estate depended entirely upon a contingency which had not yet been determined when that case was heard, but this court held that their wills would each pass either

a third of the whole or a third of the twothirds under discussion. Frederick's will was, "I devise and bequeath my estate, real and personal," but his sister's was "I give, devise and bequeath all of my property of whatever kind I am possessed, real, personal or mixed," and whether their father died intestate as to any part of the remainder depended upon the contingency whether his three children left children. We are, then, of the opinion that the expression "of which I may die possessed" did not limit the broad language of the testator used in that clause. Nor do we think that the rest of the will indicates an intention not to include such an Interest as this. Several years before his death the testator had reason to believe that he would get the benefit of Mrs. Green's share, as he was presumably familiar with the terms of his father's will, and, as he was making provision for his wife and any child or children that he might leave, there is every reason to believe he intended to include everything he could dispose of by will. The mere authority given the trustee to "invest" his property, with power to change said investments, cannot be held to mean that he intended to exclude this remainder, because that could not in its then condition be invested by the trustee. trust might have lasted years after the contingency happened.

The

We will reverse the decree, but will order the costs above and below to be paid out of the fund, as both sides have requested that to be done, whatever our conclusion might be.

Decree reversed, and cause remanded in order that a decree may be passed in accordance with this opinion, the costs, above and below, to be paid out of the fund remaining in the hands of the Safe Deposit & Trust Company of Baltimore, substituted trustee.

(109 Md. 304)

asked to describe the type of a locomotive, his answer, "I cannot exactly tell what type she was; the only thing I can tell you is that she was old and worn out when they [the railroad company] got her"-was fairly responsive to the question, importing that the engine was of an old type.

[Ed. Note.-For other cases, see Witnesses, Dec. Dig. § 248.*]

2. APPEAL AND ERROR (§ 1052*)-REVIEWHARMLESS ERROR - UNRESPONSIVE ANSWER OF WITNESS.

The answer was not prejudicial to defendant, where the next witness, an employé of defendant, testified without objection that the engine was an old one, of about the type used on a certain railroad many years ago.

[Ed. Note.-For other cases, see Appeal and Error, Dec. Dig. § 1052.*]

3. DAMAGES (8 173*)-ADMISSIBILITY OF EVIDENCE-LOSS OF EARNING CAPACITY.

had testified that in consequence of his injuries In a personal injury action, where plaintiff he was unable to pursue his former occupation, or to perform as hard work as before, evidence of what income he had been able to earn and had received since the injury, and what work he had been able to do, was admissible to show the effect of his injury on his earning capacity.

[Ed. Note. For other cases, see Damages, Cent. Dig. § 490; Dec. Dig. § 173.*] 4. MASTER ANd Servant (§ 270*)—INJURIES TO SERVANT ADMISSIBILITY OF EVIDENCE CUSTOM.

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In an action by a locomotive engineer against a railroad company for injuries caused by a collision of his engine with a wild engine, which escaped while left standing on a side track with steam up, evidence of the custom at that place as to caring for engines when brought in and not in actual service was inadmissible, since the custom would only be that of defendant, which might be either careful or negligent.

[Ed. Note.-For other cases, see Master and Servant, Dec. Dig. § 270.*]

5. MASTER AND SERVANT (8 205*)-ASSUMPTION OF RISK-MASTER'S INDIVIDUAL METHODS.

A servant does not assume the risk attending the work as conducted in accordance with his master's individual methods, but only those risks which cannot be obviated by the exercise of ordinary care.

[Ed. Note.-For other cases, see Master and Servant, Dec. Dig. § 205.*]

6. CUSTOMS AND USAGES (§ 5*)—REQUISITES—

GENERALITY.

To make a standard test of duty as to caring for live locomotives left standing on side tracks when not in actual service by showing the custom among railroad companies, a general custom prevailing among well-conducted railroads must be shown.

[Ed. Note.-For other cases, see Customs and Usages, Cent. Dig. § 4; Dec. Dig. § 5. 1 7. WITNESSES (§ 240*)—EXAMINATION-LEADING QUESTIONS.

Questions asked an engineer after he had stated how he had disposed of his engine when he came in from a certain run, whether it was the practice down there for engineers, when they bring their locomotives in, to do just what he did at that time, and whether or not an en

MARYLAND, D. & V. RY. CO. v. BROWN. (Court of Appeals of Maryland. Jan. 12, 1909.) 1. WITNESSES (§ 248*) - EXAMINATION - RE-gineer was expected to report the condition of SPONSIVENESS OF ANSWERS,

Where a locomotive engineer, who had had no training as a mechanical engineer experienced in the construction of locomotives, was

his engine if it was in bad condition when he brought it in, were improper because leading. [Ed. Note.-For other cases, see Witnesses, Dec. Dig. $ 240.*]

8. EVIDENCE (§ 158*)-SECONDARY EVIDENCE. | The question whether an engineer was expected to report the condition of his engine, if it was in bad condition when he brought it in, in effect asked for a rule of the railroad company, and the best evidence would have been the rule itself.

[Ed. Note.-For other cases, see Evidence, Dec. Dig. § 158.*]

9. APPEAL AND ERROR (§ 1058*)-REVIEW— HARMLESS ERROR-EXCLUSION OF TESTI

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The exclusion of an answer to the question was not prejudicial to defendant, where the witness testified that he received instructions to report the condition of the engine, and that he reported to the repair shop that it was all right for service.

[Ed. Note. For other cases, see Appeal and Error, Cent. Dig. §§ 4195, 4200-4206; Dec. Dig. § 1058.*]

10. EVIDENCE (§ 539*)-OPINION EVIDENCEEXPERTS.

An assistant master mechanic of a railroad, familiar with the construction of a particular locomotive, having testified that it was in good condition at the time of an accident caused by its running wild, was competent to testify that when its reverse bar was in the center, as it appeared to have been left just before the accident, the locomotive could not move because the ports through which the steam enters the steam chest were closed, and the opening of the throttle would not open them.

[Ed. Note.-For other cases, Dec. Dig. § 539.*]

see Evidence,

11. WITNESSES (§ 37*)-COMPETENCY-KNOWLEDGE OF FACTS-CAUSE OF ACCIDENT.

In an action against a railroad company for injuries from a wild engine, testimony of defendant's assistant master mechanic as to how the accident occurred was properly excluded, where it did not appear that he had seen the engine from the time of its arrival until the accident, nor that it was within his sight when it escaped.

[Ed. Note. For other cases, see Witnesses, Cent. Dig. §§ 80-87; Dec. Dig. § 37.*] 12. TRIAL (§ 91*)-RECEPTION OF EVIDENCESTRIKING OUT TESTIMONY NECESSITY OF

EXCEPTIOΝ.

Where testimony is admitted without exception, it cannot be stricken out at the close of the testimony.

[Ed. Note.-For other cases, see Trial, Cent. Dig. § 242; Dec. Dig. § 91.*] 13. MASTER AND SERVANT (§ 270*)-INJURIES TO SERVANT EVIDENCE COMPETENCY PHYSICAL CONDITION.

A defect in the working of a locomotive throttle, being in its nature continuous, unless repaired, and it being within the power of the railroad company owning it to show repairs, if any are made, the court, in an action against a railroad company for injuries to a servant from an engine running wild, acted within its discretion in refusing to strike out evidence, admitted subject to exception, that the throttle of the engine causing the injury on August 6th was in a defective condition in the preceding July, where defendant offered no evidence of repairs.

[Ed. Note. For other cases, see Master and Servant, Cent. Dig. § 916; Dec. Dig. § 270.*] 14. NEGLIGENCE (§ 127*)-EVIDENCE-COMPETENCY CONDITIONS PREVIOUS OR SUBSEQUENT TO ACCIDENT.

Whether proposed proof of conditions prior to the occurrence under inquiry is admissible does not depend upon the time of their exist

ence, but upon their relevancy to the issue and the capability of explaining it, and its admissibility, as well as the requirement of proof of absence of intervening change in conditions, rests in the discretion of the court.

[Ed. Note. For other cases, see Negligence, Cent. Dig. § 248; Dec. Dig. § 127.*]

15. TRIAL (§ 253*)-REQUESTED INSTRUCTIONS -IGNORING ISSUES.

In an action by a locomotive engineer against the railroad company for injuries from tion embraced three counts, one charging neglicollision with a wild engine, where the declaragence in selection and retention of co-employés, and the others negligence in failing to provide proper tools, etc., and to properly inspect its equipment, charges that, inasmuch as the evidence showed that defendant had employed competent employés, the verdict must be for defendant, were properly refused as withdrawing the entire case from the jury, but referring only to a question raised by the first count, and ignoring those raised by the others.

PROVINCE OF JURY.

In

[Ed. Note.-For other cases, see Trial, Cent. Dig. §§ 613-623; Dec. Dig. § 253.*] 16. TRIAL (§ 191*)-INSTRUCTIONS—INVADING an action by a locomotive engineer against a railroad company for injuries from a collision with a wild engine which escaped from a side track, where there was evidence tending to show that the engine causing the injury, when placed on a side track shortly before the accident, was not in good condition, and it was a question for the jury under the evidence whether the starting of the escaped engine was due to defendant's negligence either in purchasing a defective engine, failing to inspect it, or to watch it on the side track, prayers asserting that the engine when placed on the side track just before the accident was in good condition, and that there was no evidence that the engine as it was so placed was defective in such a way that it would start off, were properly refused as assuming facts which were for the jury to find.

[Ed. Note. For other cases, see Trial, Dec. Dig. § 191.*]

17. MASTER AND SERVANT (§ 286*)-INJURIES TO SERVANT-ACTIONS-QUESTIONS FOR JURY -DUE CARE OF MASTER.

In an action by a locomotive engineer against a railroad company for injuries from a collision with a wild engine, where it appeared that the engine had been left on an upgrade side track with sufficient steam up to be able to move up the grade; that a hostler who acted as watchman of the engines had numerous other duties, and there was no evidence of any system of their safe custody while under steam on a side rules, either for inspection of engines or for track, whether defendant exercised due care to prevent the escape of the engine was a question for the jury.

[Ed. Note.-For other cases, see Master and Servant. Dec. Dig. § 286.*]

18. MASTER AND SERVANT (8_110*)-INJURIES TO SERVANT-FAILURE TO FURNISH SUITABLE APPLIANCES.

If a railroad company allowed a locomotive, which was unsafe for the uses to which it was put by the company, to escape from a siding and run unmanned upon the main track, where it collided with a train operated by an employé of the company as engineer, and injured him as a direct result of the company's negligence, and while he was in the exercise of due care, he was entitled to recover for his injuries.

[Ed. Note.-For other cases, see Master and Servant, Dec. Dig. § 110.*]

19. MASTER AND SERVANT (§ 101*)---INJURIES TO SERVANT-LIABILITY OF MASTER.

A railroad company is not an insurer of the lives or limbs of its employés, but is only bound to exercise ordinary care for their protection.

[Ed. Note. For other cases, see Master and Servant, Cent. Dig. § 136; Dec. Dig. § 101.*] 20. TRIAL (8_253*)-INSTRUCTIONS-PRAYERSIGNORING ISSUES.

In an action by a locomotive engineer against a railroad company for injuries from a collision with a wild engine, where a defect in the engine was alleged as a possible cause of its escaping, a prayer if the jury find that the escaped engine was standing on the siding in charge of defendant's employés, and ran away by reason of the neglect or carelessness of the employés, defendant should recover, was properly refused as ignoring the alleged defect in the engine.

[Ed. Note. For other cases, see Trial, Dec. Dig. § 253.*]

21. MASTER AND SERVANT (§ 293*)-INJURIES TO SERVANT-ACTIONS-PRAYERS-MISLEADING REQUESTS.

A prayer that a master is bound to use reasonable care to procure sound machinery and appliances for his employés, but is not bound to keep such machinery and appliances free from defects, was properly refused as misleading, as ignoring the nondelegable duty to provide safe tools and equipment.

[Ed. Note.-For other cases, see Master and Servant, Dec. Dig. § 293.*]

22. TRIAL (§ 260*)-REQUESTED INSTRUCTIONS -PRAYERS EMBRACED IN CHARGES GIVEN. A prayer fully covered by a charge given is properly refused.

[Ed. Note. For other cases, see Trial, Cent. Dig. §§ 651-659; Dec. Dig. § 260.*] 23. TRIAL (§ 253*)-REQUESTED INSTRUCTIONS IGNORING EVIDENCE.

In an action by a locomotive engineer against a railroad company for injuries from a collision with an escaped locomotive, where there was evidence tending to show that a defective throttle was the cause of the escape, a prayer that if an employé of the company placed the escaped engine on a siding, chocking its wheels, closing its throttle valve, etc., and leaving it in charge of two hostlers, on an upgrade, and it could get onto the main track only by running through two switches, defendant should recover, unless sufficient hostlers were not supplied to watch the engine, was properly refused as ignoring evidence of the defective throttle, as well as the theory of the application of external force starting the engine.

[Ed. Note.-For other cases, see Trial, Dec. Dig. 253.*]

24. MASTER AND SERVANT (§ 295*)-INJURIES TO SERVANT-ACTIONS-PRAYERS.

In an action by a railway engineer for injuries from a collision with an escaped engine, a prayer that if plaintiff while in defendant's employ had run the engine which escaped, and discovered that it was defective (the throttle bar being worn so that it opened when the hand was removed), and notwithstanding such discovery he remained in the employ, and was subsequently injured by the engine which ran away because of the defect, he could not recover, was properly refused, since he could well assume that such a patent defect would be discovered under any reasonable system of inspection, and be promptly remedied.

[Ed. Note.-For other cases, see Master and Servant, Cent. Dig. §§ 1168-1179; Dec. Dig. § 295.*]

Appeal from Baltimore Court of Common Pleas; George M. Sharp, Judge.

Personal injury action by James H. Brown against the Maryland, Delaware & Virginia Railway Company. Judgment for plaintiff, and defendant appeals. Affirmed.

Plaintiff offered the following prayers:

"(2) The jury are instructed that it is the duty of the employer to use due and reasonable diligence, having respect to the nature of the service of the employed, to provide suitable appliances and instrumentalities for doing the work. And if the jury find from the evidence that at the time of the accident and injury to the plaintiff, he was in the service of the defendant as a locomotive engineer, driving a locomotive to which a train of cars was attached from Rehoboth Beach, Del., to Love Point, Md., and whilst so engaged on the 6th day of August, 1905, a collision occurred between said engine, so driven by the plaintiff and another engine unmanned, the property of the defendant, and running wild on the same track on which the plaintiff was operating his engine, and that by reason of such collision the plaintiff was injured, and that such collision occurred because said runaway engine was unsafe and unfit for the uses and purposes to which it was applied by the defendant under all the evidence in this case, then if the jury further find that the plaintiff was without negligence or want of care on his part in the premises directly contributing to the happening of the accident and injury, and that such accident and injury to the plaintiff was directly caused by the negligence and want of care in the premises of the defendant, the plaintiff is entitled to recover." Granted.

"(3) If the jury shall find a verdict for the plaintiff, then in estimating the damages they are to consider his health and condition before the injury complained of, as compared with his present condition in consequence of said injury, and how far, if at all, it is calculated to disable him from engaging in those employments for which, in the absence of such injury, he would have been qualified, and also the physical and mental suffering, if any, to which he was subjected by reason of said injury, and to allow him such damages as in the opinion of the jury will be a fair and just compensation for the injury which he has sustained." Granted.

Defendant offered the following prayers: "(1) The defendant prays the court to instruct the jury that there is no evidence in this case legally sufficient to show that the defendant failed in any legal duty owing by the defendant to the plaintiff, and that therefore, under the pleadings and evidence, their verdict must be for the defendant." Refused.

"(2) The defendant prays the court to in

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