is compensation, and it is not the loss of the deceased, but the loss of the survivors, which is to be estimated; and this involves not merely the probable earnings of the deceased, but the probability of such earnings inuring to the surviving wife. If you find for the plaintiff in this case, you should endeavor to assess the damages at her pecuniary loss by reason of the death of her husband, and, in reaching the amount of this loss, you should take into consideration what her husband had done for her in the past towards her support and maintenance, and what, considering her means and his earnings, as well as his habits and disposition, he would be likely to have done in the future. The law does not contemplate and speculate on the probable earning of the deceased, but simply aims to make good to the survivors that which they have probably lost by his death; and you should endeavor, fairly and impartially, if this loss is established by the evidence, to give the plaintiff compensation for her loss by reason of the death of her husband." The particular part of this instruction which is criticised by the defendants is that part which reads as follows: "And what, considering her means and his earnings, as well as his habits and disposition, he would be likely to have done in the future." We are inclined to agree with counsel for defendants that that part of the instruction which directed the attention of the jury to consider the means of the plaintiff in determining the amount of her recovery should not have been given by the court. The amount that the plaintiff is entitled to recover in this case does not depend on her means. Regardless of whatever amount of property she might possess, the law imposes upon her husband the duty to maintain and support her. That she has a right to, and when she has been deprived of her husband she is entitled to recover for the pecuniary loss suffered, and the amount does not depend upon her means or upon her wealth. The law makes no distinction in the amount that a surviving widow is entitled to recover between one who is possessed of wealth and one who has no wealth at all, and for that reason the court should not have directed the attention of the jury to a consideration of her financial standing when deliberating on the evidence in the case. This rule, if permitted to stand, would soon result in distinction being made between one of wealth and one of poverty, when no such distinction is recognized in law. Such an instruction is calculated to be highly prejudicial in an action of this class and character. C., R. I. & P. Ry. Co. v. Hambel, 2 Neb. (Unof.) 607, 89 N. W. 643; Pittsburg, Ft. Worth & C. R. Co. v. Powers, 74 Ill. 341; Louisville & Nashville Ry. Co. v. Collinsworth, 45 Fla. 403, 33 South. 513; Smith v. Chicago, R. I. & P. R. Co., 42 Okl. 577, 142 Pac. 398. the employés of defendants in charge of the engine of defendants (or either of them) discovered the peril of said deceased in time to have stopped said engine and train, and avoided striking and injuring him, you should find for the plaintiff, regardless of the contributory negligence of the deceased, if you believe he was negligent." [4] There is an objection urged against this instruction on the ground that the facts in this case do not warrant the submission of the question of the last clear chance to the jury. The evidence under which this instruction is sought to be justified is that of the witness W. H. McClain, who testified for the defendants. His testimony with reference to this phase of the case is as follows: Q. "Q. Did you see this Taylor Lee that was killed? A. Yes, sir. Q. Where did you see him? A. I saw him when he was within about Where was he with reference to the restauten, or possibly twelve, steps of the track. rant building when you saw him? A. I don't understand where that building is. Q. Do you know where that little brick building is adjacent to the track? A. Yes, sir. Q. Where was he with reference to the outer of that building, for instance? A. Well, he was-I judge he was about four or five steps this way from that store; he was something like ten steps, sidewalk crossing when you saw him? A. We I suppose. Q. How far were you from the were on the opposite side of the street-the north side of the street. Q. What did you do to direct his attention? A. I whistled through my teeth and I hollered at him, and then I whistled again. Q. What did you say to the engineer, if anything? A. I hollered to the engineer we struck a man. Q. At that time A. In the center of the where was the man? track. Q. On the sidewalk or off of the sidewalk? A. Off of the sidewalk. Q. Which way? A. South-just a little south of the sidewalk. When he stepped off of the sidewalk, he turned rather to the left and south. Q. Angling across the track? A. Yes, sir. Q. Was he hit on the crossing or not? A. Well, he wasn't direct on the crossing where the street goes straight across the track. Q. Was you looking at him all the time from the time you first saw him? Q. Did he look any direction before going on the A. Just as sure as I am looking at you. track? A. He didn't. Q. Did he stop? A. He did not. Q. What did he do? A. When he walked out, he walked as though he was going to check up, like lots of people do, and after I seen he would not stop is when I whistled him the last time, and when he got in the middle of the track he kind of stopped and jerked himself back, and the engine hit him before he could get his balance and go ahead." On the cross-examination the foregoing witness testified as follows: "Where was you when-where was your enA. He gine when you saw him there first? was away back up past the edge of that barn. Q. Between the north boundary of Cherokee street and the barn? A. He was right there. Q. How far north of the north boundary of Cherokee street? A. Just before we came on the street. Q. You stated a minute ago you was back by the barn? A. Just before we got on the street. Q. How many feet from here to the barn (designating)? A. I judge it is about a hundred and fifty feet. Q. You was back here a hundred and fifty feet when you saw him? "You are further instructed that although A. Yes. Q. Between this north boundary of you may believe that the plaintiff's deceased Cherokee street and the barn-back as far as was guilty of contributory negligence, still, un- the barn? A. Back about as far as the barn. der the rule of the last clear chance in law, Q. It would be about like that, wouldn't it if you further believe from the evidence that (designating)? A. Right there (designating). The next error urged by defendants is instruction No. 4, that was given by the court to the jury in his general instructions. This instruction is as follows: a man." The witness A. C. Carter testified for the plaintiff, and was the only other witness who saw the accident, and that part of his testimony which was relevant to this point is as follows: Q. How many feet, then-about how many feet | plained of by the defendants, under the were you from-was it from where you were theory that, although the plaintiff might to where this street comes across here, where have been guilty of contributory negligence the sidewalk is on-how many feet were you from him when you first saw him-just about in going on the right of way or on the track, how many? A. What is the street-one hun- that if the defendants discovered his peril, dred and fifty feet wide? By the Court: Yes, and did not exercise care to prevent injura hundred. A. I will say it was two hundred and fifty feet. Q. Could you see his face? A. ing him, that it would be liable in damages, Yes. Q. Looking right at you? A. No; he notwithstanding the negligence of the dewasn't looking at me. Q. Which way was he ceased in attempting to cross said track at looking? A. Looking this way (designating). that time and place. The rule known as Q. Going on west? A. Yes. Q. You was ringing the bell? A. Yes, sir. Q. And the en- the last clear chance or humanitarian docgineer was whistling the whistle? A. Yes. Q.trine has been approved by the courts of this Then, did you keep your eyes on him from the state wherever the facts warrant its applitime you saw him ten feet from here (designat- cation. It is recognized as an exception to ing) until you struck him? A. Yes, sir. Q. When was it you hollered to the engineer? A. the general rule that contributory negligence Just as we struck him. Q. Did you holler be- of the party seeking a recovery would be fore you struck him? A. No, sir. Q. You said excused if the defendant saw the perilous -what did you say? A. I said we have struck situation of the deceased in time to have prevented the injury by the exercise of ordiThis is recognized as an excepnary care. tion to the rule that contributory negligence bars a recovery without reference to the degree of negligence on his part, but this rule has well recognized exceptions, one of which is that the negligence of the plaintiff must not be contemporaneous with the negligence of the defendant. Or, in other words, if the negligence of the plaintiff is concurrent with the negligence of the defendant, then a recovery is denied. The rule as announced by the great weight of authority is that the doctrine of the last clear chance recognizes primary negligence on the part of the plaintiff, looked like the west side of the track. Q. but that such negligence has ceased, and Where was he when he was struck? A. Going right across the track at the corner of the after such negligence has ceased that his building that little restaurant down there on condition of peril has been discovered by the the corner. Q. Taking the railroad as going defendant, and, notwithstanding the prior north and south, and the crossing as going east and west across the track, was he above the negligence of the plaintiff, the defendant crossing or below the crossing or on the cross- might, by the exercise of ordinary care, have ing? A. He was going on down the sidewalkrefrained from inflicting any injury on plainit goes right straight across. He wasn't out tiff. When these conditions exist the courts in the street, but he was on the sidewalk, going on down the sidewalk. Q. I mean at the universally permit the plaintiff to recover. time he was struck, was in the crossing or White on Personal Injury, vol. 1, p. 525, par. above the crossing or below the crossing? A. He was going right across the track. There is 398; Shearman & Redfield on Negligence, a light down there on the corner, I think, and vol. 1, par. 99; Holmes v. S. Pac. Ry. Co., 97 he was, I could see, under that light." Cal. 161, 31 Pac. 834; Clark v. Wilmington Ry. Co., 109 N. C. 430, 14 S. E. 43, 14 L. R. A. 749; Kellny v. M. P. Ry. Co., 101 Mo. 67, 13 S. W. 806, 8 L. R. A. 783; Holwerson v. St. L. Ry. Co., 157 Mo. 216, 57 S. W. 770, 50 L. R. A. 850; Himmelwright v. Baker, 82 Kan. 569, 109 Pac. 178; Chas. W. Dyerson v. Union Pac. Ry. Co., 74 Kan. 528, 87 Pac. 680, 7 L. R. A. (N. S.) 132, 11 Ann. Cas. 207. "Now, with reference to the time that Taylor Lee was struck, how close to that time did you see Taylor Lee? A. The time that he was struck? Q. Yes; with reference to the time the engine struck him? A. I was just one block behind him. Q. I mean with reference to the time it struck him-did you see him at that time? A. Well, before he was struck you mean? Q. At the time he was struck. A. Just as soon as the train struck him I ran down there. Q. Did you see it strike him? A. Yes, sir; I seen it when it knocked him over; it On cross-examination the above witness testified as follows: In the case of O'Brien v. McGlinchy, 68 Q.Me. 552, is a clear and succinct statement of the law on this subject, to wit: "I am asking you how far was the train from him when you first saw it? A. Well, I don't know, sir. Q. Let's estimate the distance. A. About as far as to the building. Q. I want you to estimate the distance of it in feet. A. Well, I guess about a hundred feet, I guess. 2. About a hundred feet? A. I reckon so. Q. What was Taylor Lee doing at that time? A. He was going on down that way (designating). Q. What was he facing? A. Going west. Did he turn his head either way? A. I didn't pay any attention to him about turning his head. Q. Did he look to the north? A. I don't know. Q. Was you looking at him to see? A. I was looking at him and the train both. Q. You didn't see him turn to the north? A. No, sir; nor to the south either. Q. Did he stop before he stepped on the crossing? A. No, sir. Q. He didn't? A. No, sir; I don't think he did-I didn't see him; they met up there about the same time-just about the same time they met." [5] Under the foregoing evidence the court "But in cases falling within the foregoing description, where the negligent acts of the parties are distinct and independent of each other, the act of the plaintiff preceding that of the defendant, it is considered that the plaintiff's conduct does not contribute to produce the injury, if, notwithstanding his negligence, the injury could have been avoided by the use of ordinary care at the time by the defendant. This rule applies usually in cases where the plaintiff or his property is in some danger from a threatened contact with some * * * the plaintiff cannot and the defendant can pre-761, 108 Pac. 361, Judge Kane, in speaking of vent an injury. But this principle this question, stated: would not govern where both parties are contemporaneously and actively in fault, and by their mutual carelessness an injury ensues to one or both of them." From the testimony of the witness Carter, it will be seen that the deceased in this case was going west on Cherokee street, and that when he reached the right of way did not stop or hesitate, but walked directly on the railroad track, and just as he reached the center of the track was struck by the train. So, taking the most favorable view of this evidence, if there was any negligence on the part of the plaintiff in going on said track, it continued up until the time that the injury occurred, and, in order that the foregoing instruction might be applicable, it must be admitted that it was contributory The "In the case at bar there was no evidence tending to prove that the engineer in charge of defendant's engine discovered the peril of the plaintiff until the accident occurred. mere fact that the engineer may have seen the plaintiff approaching the track in a covered wagon would not necessarily put him on his guard as to the peril of the plaintiff. The engineer has the right to presume that a person thus approaching the track has not omitted the ordinary precautions imposed upon him by law, and will stop in time to avoid an injury." Under the evidence of the witness Carter, the deceased and the train met at almost the same moment at the intersection; hence there could have been no time intervening between the discovery of his peril and when he was struck sufficient to enable the defendants to have stopped the train. The recent case of C., R. I. & P. Ry. Co. v. Barton, 159 Pac. 250, is a case somewhat similar to the case at bar. In that case the plaintiff attempted to invoke the doctrine of the last clear chance on the testimony of J. T. Masser, fireman, who testified as follows: "When I first saw Mr. Barton that morning he stepped out from behind that little side winI was sitdow and started toward the train. ting in the window (on the engine) and begun to holler at him. The engine was just west of the depot. The service application of the how long it was after I saw Mr. Barton's danger before we struck him. I sat where I could see on that high bench, and I noticed a man come out, and then he stopped and hesitated and reached over like that-I don't know, probably 10 or 12 seconds or some such matter as that. I done just what occurred to me to do. I hollered at him to keep him from being hit. There was nothing else I could do. I had no occasion to shout to him unless I thought he was going to get hurt. I saw the truck. saw the man reach for-I don't know what he reached for-paper, or something on the truck In reaching for this package, he didn't stop, but staggered towards the train as though he was dizzy or something." I negligence or prior negligence on the part of the plaintiff to go upon said track, and before the question is entitled to be submitted to the jury on the last clear chance doctrine it must appear that the negligence on the part of the plaintiff was not concurrent with or contemporaneous to the negligence of the defendant. It is urged by counsel for the plaintiff that this instruction is justified by reason of the evidence of the witness McClain, who was fireman on the train, and whose testi-air had been made before that. I don't know mony shows that when he was about 250 feet north of the path that crosses the right of way at the intersection of Cherokee street and of the railroad track that he saw the deceased walking towards the track some few feet east of the right of way. It is argued that the agents, servants, and employés that were operating this train had ample opportunity to have stopped the train before coming in contact with the deceased. With this contention we are unable to agree for the reason that the mere fact that Taylor Lee was walking towards the track at said intersection was not sufficient to warrant the agents, servants, and employés in the belief that he was going to attempt to cross the track before said train reached the crossing. On the contrary, the engineer and fireman had a right to presume that the deceased would not place himself in a position of peril, but that he would stop when he reached said track if the train was at such close proximity that it would be dangerous to attempt to cross the track. The evidence discloses upon the part of the witnesses that Taylor Lee was a man who possessed ordinary faculties, a good eyesight, a good hearing, and was a man of quick action. This being true, the employés of the defendant could not presume that he would attempt to cross this track just as the train reached the inter- There are various other assignments of section. The law is well settled in this error, but, under the foregoing views, it is jurisdiction that those who are operating unnecessary to discuss them. Counsel for this passenger trains near a crossing have a right plaintiff earnestly insists that to presume that persons approaching the should be affirmed for the reason that there crossing at that time will not place them- is no substantial error committed in the selves in a perilous position. In the case of trial. With this contention we are unable to From the foregoing evidence by the witness upon the part of the railroad company the plaintiff attempted to recover on the doctrine of the last clear chance, and the court, in speaking of this question, said: "This evidence does not bring the case within the doctrine of last clear chance, as announced in A., T. & S. F. Ry. Co. v. Baker, 21 Okl. 51, 95 Pac. 433, 16 L. R. A. (N. S.) 825; Clark v. St. L. & S. F. R. Co., 24 Okl. 764, 108 Pac. 361; Oklahoma City Ry. Co. v. Barkett, 30 Okl. 28, 118 Pac. 350." We do not believe that the facts in this case are sufficient to warrant the court in submitting to the jury the instruction complained of, for the reason that the evidence, under the holdings of this court, does not entitle the plaintiff to invoke this rule. case ing, and a recovery has been strongly re-tween the Bryan and Lloyd families for some sisted by the defendants on the ground that time. On a former occasion there had been the plaintiff did not exercise ordinary care, a fight in which W. F. Lloyd was injured and that the injury inflicted was the direct somewhat. On the day this offense is aland proximate result of the deceased's con- leged to have been committed all of the partributory negligence. As it will necessitate ties attended a Sunday school, held at a a new trial of this case, we refrain from ex- neighborhood schoolhouse. After the servpressing any opinion on this point, but suffice ices had closed, one of the Lloyd boys asked it to say that the instruction submitted to Luther Bryan to come outside of the buildthe jury by the court that invoked the rule ing, saying that he wanted to talk to him. of law known as the last clear chance was They went out and had some conversation, prejudicial to the rights of the defendants, and a fight ensued between the two. Another and, under the facts in this case, should not one of the Bryans joined in the fight, and have been given. one of the Lloyd boys came in also. Another one walked up to where the fight was in progder his arm looking on. ress, and was standing with a song book un Luther Bryan and We therefore recommend that the judgment of the court be reversed, and the cause remanded to the district court of Wagoner county, Okl., for a new trial. one of the Lloyds was on the ground. The Bryan boy, apparently getting the best of the scrap, broke away from the fight, got up and seized a piece of plank three or four feet long, about one inch thick and three or four feet wide, and struck the nonoffending Lloyd boy, who was standing by looking on the proceedings, on the head, and knocked him senseless. He fell as though he was killed. W. F. Lloyd, the father of the injured boy and of the other Lloyd boys, came on the scene about this time. Bryan ran, and W. F. Lloyd pursued him with an open knife. At the same time he called to one of his other sons to catch Bryan and kill him, saying that he had just killed his brother. Aft This court will review the record on appeal only as to errors properly preserved as provided by the statutes, or those which are reasonably calculated to deprive the accused of a substantial right, or such as may result in depriving him of a fair and impartial trial. 2. ASSAULT AND BATTERY 96(8)-INDICT-er chasing Bryan some distance, W. F. Lloyd MENT AND INFORMATION 189(2)-ASSAULT came close enough to, and did, inflict a flesh WITH DANGEROUS WEAPON-CONVICTION- wound on Bryan's arm with a knife. The CHARGE OF Court. Bryans left the grounds and went to their home, and neither of the Bryans was rested, and no effort was made to prosecute them at all. The Lloyds went home and were later arrested and brought to trial. ar In a prosecution for assault with a sharp or dangerous weapon with intent to do bodily harm, the jury may find the defendant guilty of any offense, the commission of which is necessarily included in that with which the defendant is charged in the information, and it is the duty of the court to submit to the jury in- [1, 2] All the testimony in the record has struction upon every degree of assault which been carefully considered, as well as the inthe evidence, in any reasonable view of it, sug-structions of the court. There were no ex gests. Appeal from District Court, Kiowa County; James F. Tolbert, Judge. W. F. Lloyd was convicted of assault, and he appeals. Reversed. O. J. Logan, of Oklahoma City, for plaintiff in error. S. P. Freeling, Atty. Gen., and R. McMillan, Asst. Atty. Gen., for the State. ceptions taken to any rulings of the court, and no exceptions taken to any of the instructions given. This case was apparently tried by an inexperienced attorney, who had no idea that an appeal required the preservation of a record. The record discloses the fact that a motion for continuance was filed before the trial was begun, but was not properly presented to the court for action, and no exceptions taken to the action, or failure to properly act, on it by the court. The same condition of the record appears in connection with the motion for a new trial, based on the ground of newly discovered evidence. In our judgment, it would be a miscarriage of justice to affirm the judgment as rendered. There was no felonious assault The information charged W. F. Lloyd committed under the proof. The plaintiff jointly with three of his sons with assault-in error should not have been punished for ing Luther Bryan with a knife on the 21st more than simple assault and battery, which day of July, 1914. The evidence disclosed was included in the offense charged in the inthe fact that there had been ill feeling be- formation. This issue, however, was not sub ARMSTRONG, J. The plaintiff in error, W. F. Lloyd was convicted at the December, 1915, term of the district court of Kiowa county, on a charge of assault with a sharp and dangerous weapon with intent to do bodily harm, and his punishment fixed at 18 months' imprisonment in the state penitentiary. mitted by the court, nor was any request made by counsel that it should be so submitted, and his failure so to do was prejudicial error, sufficient to entitle the plaintiff in error to a new trial. The judgment will therefore be reversed, and a new trial ordered. Counsel who briefed this case did not appear in the trial court, and recognize in the brief submitted that their record was not properly preserved for the presentation of the appeal. * Reversed. DOYLE, P. J., and MATSON, J., concur. (103 Kan. 586) MCGARVIE et ux. v. FRONTENAC COAL CO. (No. 21756.) (Syllabus by the Court.) MASTER AND SERVANT 405 (5)-ACTION FOR The evidence examined and found insufficient to sustain a finding of plaintiffs' partial dependency on their 34 year old son for support, and insufficient to justify a judgment against the son's employer for compensation on account of the son's death in the latter's employment. earned $95 per month, another daughter, who earned $25 per month, and the deceased son, who earned $528.51 per annum. The son gave all his wages to his mother; that is, he intrusted them to her, and his mother gave him back from time to time what money he desired. The son paid his parents no stipulated amount for his board and lodging, and the father testified that he did not know whether the son gave his mother more than his board and lodging would amount to or not. The mother's testimony was to the same effect. She testified: * "Q. What did he do with his wages at that time? A. Well, gave them to me, always did. * And he always made his home with you? A. Yes, sir. Q. And got his meals there? A. Yes, sir. Q. Slept there? A. Yes, sir. Q. Did you do his washing and mending and things of that kind? A. Yes, sir. * Q. Now (Supreme Court of Kansas. Oct. 12, 1918.) do you know, Mrs. McGarvie, how much he gave you from his wages during the last year of his life? A. No, I don't suppose I could tell what he gave me. He always gave me his wages. Q. Then would he ever take back any of it? A. Yes, sir; if he wanted any, he always came to me and got the money. Q. When he would buy clothes, he would get the money from you? A. Yes, sir: he came to me for his money because he left it with me. * Q. He went to places of amusement? A. Yes, sir. Q. And traveled on the street cars and paid those expenses out of his earnings? A. Yes, sir. Q. Did he shave himself or get shaved at a barber shop? A. At the barber shop. Q. How often? A. Well, I think twice a week. Action by John McGarvie and wife Q. And wore good clothes, didn't he? A. Yes, against the Frontenac Coal Company for com- sir; he always wore good clothes. Q. And the pensation for the death of Peter McGarvie, money that he left with you there finally, Mrs. an employé. Judgment for plaintiffs, and McGarvie, would be just about what his board, room, washing, and mending and stuff of that defendant appeals. Reversed, and cause re-kind would have cost him if he had been boardmanded, with instructions to enter judgment ing? A. Well, I don't know. I guess it would, for defendant. Appeal from District Court, Crawford County. G. W. Earnshaw, of Joplin, Mo., and J. J. Campbell, of Pittsburg, for appellant. * * * sometimes. Q. And when he was not working and out of employment for any reason his board and his lodging and his washing and his mending went on just the same? A. Just the same. thur Fuller and W. J. True, both of Pitts-its of your son? Was he in the habit of spendQ. Mrs. McGarvie, what was the habburg, for appellees. Ar DAWSON, J. The plaintiffs are the parents of Peter McGarvie, a coal miner, who met his death in the defendant's employment. Compensation for them was sought under a claim of their partial dependency on the deceased. The trial court found "from the evidence and admissions and pleadings that the earnings of the said Peter McGarvie for the year previous to his death was $528.51, and that three times said amount was * * * $1,585.53. The court further finds from the admissions and evidence introduced in said cause that the said plaintiffs, John McGarvie and Catherine McGarvie, were partially dependent upon the earnings of the said Peter McGarvie, deceased, and that said partial dependency amounted to 17/22 of the earnings of said deceased, and that said plaintiffs are entitled to recover of and from said defendant 17/22 of $1,585.51, the same being $1,225." Defendant contends that these findings were not supported by the evidence. * * ing much money? A. No, he isn't much of a The family consisted of the mother, who Whatever was the basis for the trial was housewife, the father, who earned from court's determination that the son contribut$95 to $105 per month, one daughter, who ed 17/22 of his earnings toward the mainte |