so near to said public street, or the sidewalks thereon, that persons lawfully traveling thereon would be liable to fall into the well. And I further instruct you that if you find from the evidence that said A street was not at the time of the accident complained of, and had not been for a long time prior thereto, a common public street or highway for all persons to go and return in and upon, travel, walk, pass, and repass on, as alleged in the complaint, but had been washed away and abandoned, and was not fit for or used for travel, and that said street had no sidewalks, and that said well was distant from said street sixty or seventy feet, and that no person traveling upon said street could have fallen into the well, then the plaintiff cannot recover against the defendant in this action, and your verdict must be for the defendant." Which instruction the court gave to the jury, but modified the same by adding thereto, and giving as a modification thereof, the following, to wit: "But if the jury shall find that the well mentioned in the complaint was left open and exposed, and the lot and premises open, as mentioned in the complaint, and in the possession and under the control of the defendant, at the time of the death of plaintiff's infant son, then, in case the jury find for the plaintiff, they shall give him such sum as they think he is entitled to." There was no error in the refusal of said instruction before modification. The quotation from the complaint therein contains much surplusage, and is indefinite in its allegation as to whether the child fell from said A street, the sidewalk, or from said town lot, into said well; and to instruct the jury that, if they found that said A street and sidewalk were 60 or 70 feet distant from said well, plaintiff could not recover, would take from their consideration whether, if the child had fallen into said well from said town lot, the plaintiff could recover. We can readily suppose a case in which, if the child fell from said town lot into said well, the owner in possession might possibly be liable in damages; but, whether liable under all the circumstances of this case, we are not called upon to say. The question then arises whether the giving of said instruction, as modified, was error. By the modification the court instructed the jury, if they found for the plaintiff, they might give him "such sum as they think he is entitled to." This leaves the jury without limit in their estimation of damages. They are not even confined to the amount demanded by the complaint. It gives the jury an arbitrary discretion to give such damages as caprice, whim, or passion might dictate, regardless of the amount claimed by the complaint, or shown by the evidence. It relieves the jury of every restriction, and authorizes them to give such sum as they "think" plaintiff entitled to, whether, under all the circumstances of the case, it be just or not, and turns them loose, without chart or guide, to

grant such damages as they may think the pecuniary necessities of the plaintiff might seem to need, regardless of the evidence in the case. It is inconsistent with all rules governing juries in making up their verdicts that they should do so to any extent they may think, without regard to proof.

In this connection, we will dispose of the ninth error assigned, which is as follows: "You are instructed that, if your verdict shall be for the plaintiff, such damages may be given by you to the plaintiff as, under the circumstances of the case, may be just; and, in determining the amount, you have the right to take in consideration the pecuniary loss, if any, suffered by this plaintiff in the death of Samuel C. Holt by being subjected to burial and funeral expenses, and by being deprived of his support, and also the relation proved as existing between plaintiff and deceased, and the injury, if any, sustained by plaintiff in the loss of said deceased child's society." This instruction was given to the jury prior to the one last above considered, and that part of it which directs the jury that, in case they find for the plaintiff, such damages might be given, "as, under the circumstances of the case, may be just," substantially follows section 4100 of the Revised Statutes of 1887. The expression, "as, under all the circumstances of the case," as used in said section, means the "circumstances of the case" that are properly shown to the jury by the evidence under the pleadings, and the jury should have been so instructed. Said section does not turn the jury loose, without restriction, and permit them to assess damages on their own ideas and notions of what the "circumstances of the case" are, regardless of the pleadings and proof. It does not set at naught the rules of evidence applicable to the production or introduction of testimony on the trial of the case, and authorize the jury to assess damages from all the circumstances of the case that they or any of them may have read or heard outside of the jury box, as well as those shown by irrelevant testimony within the jury box. Said section permits the jury to consider only the circumstances that are produced and shown on the trial of the case by relevant testimony under the pleadings, and none other. Plaintiff was permitted to testify in this case that he was a very poor man; that he had no property; and will it be contended that his poverty was a circumstance of this case that could have been considered by the jury in their estimation of damages? We think not. We refer to this to emphasize the fact that the expression, "all the circumstances of the case," does not mean that irrelevant circumstances, and circumstances not properly presented to the jury, should be considered by them in awarding damages. It means only relevant circumstances that are properly presented to the jury by the evidence under the pleadings. Their estimate must be based upon facts and

circumstances properly in evidence, and they should be properly instructed as to the principles of law applicable to the "facts," or, in other words, "the circumstances of the case" shown by the evidence. In this class of cases, certain elements based upon proof may be taken into consideration; yet, without proof, the jury should not consider them. 2 Thomp. Neg. 1290. The instruction under consideration is substantially the same, in effect, as one considered in Beeson v. Mining Co., 57 Cal. 20. That was an action brought by the widow for damages for the death of the husband; and the court held, under section 377, Code Civil Proc. Cal., which is identical with section 4100, Rev. St. Idaho, that it was not error to instruct the jury that among other things, in awarding damages, they might take into consideration "the relation proved as existing between plaintiff and deceased at the time of his death, and the injury, if any, sustained by her in the loss of his society." This clause of said instruction was based upon certain evidence in regard to the character of the social relation existing between the plaintiff and her de ceased husband. The evidence showed that the social relations were always pleasant; that the kindest social relations existed. Based upon this evidence, the trial court instructed the jury as above indicated, which instruction was sustained on appeal. The court in that case say: "It is true that in one sense the value of social relations and of society cannot be measured by a pecuniary standard; and possibly the legis lature, in enacting section 377, Code Civil Proc., may not have intended to give relief in that sense, especially as the words 'pecuniary or exemplary,' which were formerly in the section, were omitted in the amendment of 1873-74; but, in another sense, it might be, not only possible, but eminently fitting, that a loss from severing the social relations, or from deprivation of society, might be measured, or at least considered from a pecuniary standpoint," and that "the loss of a kind husband may be a considerable pecuniary loss to a wife. She loses his advice and assistance in matters of domestic economy." The evidence in that case established the kind social relations that existed between the plaintiff and deceased, and the court held, because of the severance of those relations, the wife might suffer considerable pecuniary loss, and for that reason it was a circumstance which the jury might properly consider in making up their verdict, while in the case at bar there was no attempt at proof of the social relationship existing between plaintiff and his 21⁄2 year old child; and, if such proof were possible, it would certainly not be contended that a child of such tender age could give advice and assistance to its parents in any matter whatever. However, be that as it may, there is no claim for damages made by the plaintiff, in his complaint, for loss of society, nor is

there any proof of circumstances that would warrant the jury in considering that element in estimating the amount of the verdict. It will be observed that the court gave inconsistent or contradictory instructions as to the measure of damages. The first was that, if the jury found for plaintiff, such damages should be given "as, under all the circumstances of the case, may be just." The second was that, if they found for the plaintiff, "they shall give him such sum as they think him entitled to." In the first the jury were confined to all the circumstances of the case as the only elements to be considered in reaching the amount of damages, while in the second they were not confined to any circumstances or evidence, but were authorized to give such sum as they "think plaintiff entitled to," entirely regardless of the circumstances of the case. Where instructions are inconsistent or contradictory, the judgment will be reversed. Monroe v. Cooper, (Cal.) 6 Pac. 378; Sappenfield v. Railroad Co., 91 Cal. 48, 27 Pac. 590; McKelvey v. Railway Co., (W. Va.) 14 S. E. 261; Harrison v. Spring Valley, etc., Co., (Cal.) 4 Pac. 381. It is held in numerous cases that an erroneous instruction is not cured by a correct one subsequently given on the same subject, unless the latter specifically withdraws the erroneous one. Wasson v. Palmer, (Neb.) 14 N. W. 171; Fitzgerald v. Meyer, (Neb.) 41 N. W. 123; Baxter v. Lockett, (Wash. T.) 6 Pac. 429. In the case at bar the erroneous instruction was the last given.

The fourth error assigned is the court's refusal to give the following instructions: "The jury are instructed that, in an action by a parent for the death of his minor child, the measure of damages, if, under the evidence in said action, he is entitled to damages, is the value of the child's services until he becomes of age, less the expenses of his support during that time." There was no error in the refusal of said instruction.

The sixth error assigned is that the court erred in giving the following instruction: "You are instructed that in determining the question of negligence, in this case, you should take into consideration the situation and conduct of both parties at the time of the alleged death of plaintiff's infant child, as disclosed by the evidence; and if you believe from the evidence that the death of plaintiff's infant son was caused by the negligence of the defendant's servants or employes, as charged in plaintiff's complaint, and without any greater want of care on the part of the plaintiff than was reasonably to be expected from a person of ordinary care and prudence in looking after and caring for his own infant son, then the plaintiff is entitled to recover." We think this instruction fairly states the law, and there was no error in giving it.

The seventh error assigned goes to the following instruction: "And, although you may find from the evidence that the parents

of said child were imprudent or careless in this respect, yet if you find that the servants and employes of the defendant in charge of said railroad ground were in a situation to see and recognize the fact that leaving the well open and exposed, if so, was unsafe and dangerous, and could have prevented the injury resulting in the death of said child, then the plaintiff is entitled to recover." Under the evidence in this case, as shown by the record, this instruction should not have been given.

The eighth error assigned is that the court erred in giving the following instruction: "I instruct you that under the law in this state a father may maintain an action for the injury or death of his minor child, and in such action such damages may be given as, under all the circumstances of the case, may seem just." The instruction contains the law, and there was no error in giving it. The latter part of this instruction has been above commented upon, under the ninth error assigned. The circumstances of the case are those relevant circumstances disclosed by the evidence, and the jury should have been so instructed.

The tenth error assigned is that the court erred in overruling defendant's objection to the following testimony, to wit: "Q. State, if you know, who took possession of the lot and premises after she left it. A. My understanding is that the railroad company has taken possession." Plaintiff was attempting to prove possession. The question was certainly-a proper one, but the answer is not responsive, and does not state that the railroad company took possession after "she left it;" that is, immediately after, or even prior to the death of the child. We do not think there was prejudicial error in admitting said answer, considering the evidence adduced on the trial by the defendant.

The eleventh error assigned is that the court erred in permitting Samuel H. Holt to testify to the relation held by Van Arsdel to the defendant. We do not think this error. If it was error, it was cured by the testimony of Van Arsdel afterwards given.

The twelfth error assigned is that the court erred in refusing to strike out the alleged proof of declarations and conversations between Van Arsdel and witness Holt Said declarations and conversations are not particularly pointed out by this exception, nor in appellant's brief, and for that reason cannot be considered.

The objection that the court erred in refusing to sustain the motion for a nonsuit at the close of plaintiff's testimony, because the same did not present a proper case for the jury, we cannot consider, for the reason that this appeal was not taken within 60 days after the rendition of the judgment. The authorities cited under the first error assigned are applicable to this exception.

Objec

The sixteenth, seventeenth, and eighteenth errors assigned are treated together by counsel for appellant, and relate to the leged errors of the court in permitting Holt to testify to the declarations of Van Arsdel, agent of appellant, made after the accident, and also to the filling of the well after the accident. On cross-examination, Mr. Worden, a witness for the defendant, testified that Mr. Fontleroy employed him to fill the well after the accident occurred, and that he filled it. Counsel for appellant objected to this evidence as incompetent. Thereupon, the court asked the following question: "Court: How long was it after the accident? A. I could not tell exactly the date, but it was some time after. Q. How long was it after the child fell into the well before Fontleroy employed you to fill it up? (Counsel for defendant objects to this as incompetent. tion overruled, and exception allowed.) A. Well, it was some time- I could not tell exactly. It was after the child was drowned. Could not state whether it was one or two weeks." It is true that the court stated that the evidence of Worden in regard to filling the well after the death of the child was let in to show possession of lot in appellant, but failed to instruct the jury to consider it for any other purpose; and it would appear to us quite difficult to prove possession of the lot at the date of the accident by proving that the well was filled some two weeks thereafter by the orders of appellant's servant. Precautionary measures for the future, such as making machinery more safe where an accident has happened, or placing safeguards about a place where a person has been injured, cannot be considered as showing negligence in the past, and it is error to admit evidence showing such facts. Railway Co. v. Hennessey, 75 Tex. 155, 12 S. W. 60S; Railroad Co. v. Clem, (Ind. Sup.) 23 N. E. 966; Sappenfield v. Railroad Co., 91 Cal. 48, 27 Pac. 590; Alcorn v. Railroad Co., (Mo. Sup.) 18 S. W. 188; Railroad Co. v. Hawthorne, 144 U. S. 207, 12 Sup. Ct. 591; Harvey v. Mining Co., (Idaho,) 31 Pac. 819.

Holt, as a witness on his own behalf, as to a conversation had with Van Arsdel, who the witness had testified was the "chief of construction" for appellant, was asked the following question by his counsel. "Question. Go on, and state where it was, and when. Answer. I could not state when it was. It was during court here last spring. It was about the time this trial was to be called. After the accident I met Mr. Van Arsdel in the Raymond House. (Counsel for defendant objected to the giving of the conversation, for the reason that any conversa

came.

tion or declaration by the agent of a party, made after the happening of an accident, is incompetent, and cannot bind the principal.)” The objection was overruled, and duly excepted to, and the witness answered as follows: "Well, as I said, I met Mr. Van Arsdel in the Raymond House the evening I We shook hands, and talked awhile. He said he was awful sorry about my losing my boy. I spoke up, and says, "That well should never have been left there uncovered.' He says, 'I would have had them wells filled up, but we were going right to work to build the foundation for the depot grounds, and we would have had to dig another well. We needed that for water.'" The witness further testified that this conversation took place after the commencement of this suit. Counsel for appellant thereupon moved to strike out all of the above testimony, and the motion was overruled, and an exception duly taken. This evidence might be construed by the jury as an admission on the part of the company of its negligence in not having filled the well before the death of the infant. Admissions of an agent after an accident has happened cannot be admitted to show the negligence of the principal. Beasley v. Packing Co., 92 Cal.. 3S8, 28 Pac. 485; Packet Co. v. Clough, 20 Wall. 528; Black, Proof & Pl. § 28.

The last instruction, as to the amount of damages the jury might award, and also the one defining the elements which the jury might consider in estimating damages, were clearly erroneous, as well as the admission and declaration of Van Arsdel made after the death of the child; also, the evidence of the well having been filled thereafter,—all of which we cannot say, from the record, did not operate to the prejudice of the appellant. If error is shown, it is presumed to have worked injury to the party against whom it was committed, unless it affirmatively appears from the record that no injury did or could result. Rice v. Heath, 39 Cal. 609; Cleary v. Railroad Co., 76 Cal. 240, 18 Pac. 269. The judgment is reversed, and the cause remanded to the court below for new trial, with costs in favor of the appellant.

(19 Colo. 254)

HALL v. PEOPLE. (Supreme Court of Colorado. Dec. 22, 1893.) CRIMINAL LAW-COMPETENCY OF IMPEACHING Ev

IDENCE.

In a criminal prosecution it is not competent for the defense to introduce evidence for the sole purpose of impeaching the credibility of a person not a witness for the people. (Syllabus by the Court.)

Error to district court, El Paso county. Newton Hall was convicted of assault with intent to commit the crime of rape, and brings error. Affirmed.

J. M. Brinson, for plaintiff in error.

ELLIOTT, J. Two grounds for reversal are urged in this court.

1. After the evidence on the part of the prosecution had been given, Mr. Stephenson was called and sworn as a witness in behalf of defendant. On inquiry he testified that he was the father of the little girl who defendant was accused of having assaulted with criminal intent, and that he (the father) made the criminal complaint in the case. An anonymous letter was then handed to the witness, and he was asked whether he had sent the same to defendant. He replied that he had not; that he had never written and had never sent any such letter. The letter was as follows: "Colorado Springs. Mr. Hall: If you think your freedom is worth five hundred dollars, you know where to come or send your friends." Counsel for defendant offered to prove that the letter was in the handwriting of the witness Stephenson. The refusal of the trial court to admit such proof is complained of. The refusal was not error. The only effect of the proof would have been to discredit the character of the father by showing that he was willing to compromise for money the alleged criminal assault upon the person of his infant daughter. The admission of such evidence would have introduced a purely collateral issue. This was a people's case,-a criminal prosecution. The father was not a party, nor had he testified as a witness against defendant. The criminal complaint made as a basis for defendant's arrest and preliminary examination was not evidence on the trial before the jury, nor did it appear that the father had controlled or influenced any evidence given in the case. Not being a party, the father's declarations were not substantive evidence; and, not being a witness for the people, it was not competent for the defense to introduce evidence for the sole purpose of impeaching his credibility.

2. Upon careful examination we are not able to say that the verdict is unsupported by the evidence. The jury, upon competent evidence given by several witnesses in open court, found defendant guilty, and the trial court confirmed the finding. Under such circumstances, no substantial error appearing in the record, it is not the province of the appellate court to disturb the verdict. The judgment is accordingly affirmed.

2. The practice of stating causes of action in general terms, like the common counts, is not favored by the Code, but objections to such mode of pleading should be taken, if at all, by special demurrer or motion; they will not be entertained when raised for the first time on appeal or error.

3. Under certain circumstances, a writ of attachment may issue upon a debt or liability not due, as well as upon claims that are due; but, where neither the complaint nor the affidavit of attachment states that the action includes a claim not due, the recovery may properly be restricted to such claims as are due.

(Syllabus by the Court.)

Appeal from district court, Arapahoe county.

Action by E. S. Lyon against George L. Kimball and others to recover the price of stone and rock sold and delivered, and for labor performed. Findings and judgment for plaintiff, and defendants appeal. Plaintiff also assigns cross errors. Affirmed.

Carpenter & McBird, for appellants. Willis Stidger and N. M. Laws, for appellee.

ELLIOTT, J. 1. The trial of the issues in this action required the examination of long accounts. The cause was accordingly referred to William H. Bryant, Esq., an attorney of the court, "to take testimony herein and report the same, together with his findings of fact and conclusions of law thereon." This was equivalent to a reference with directions to the referee to hear and decide the whole issue. Code, c. 16, §§ 204, 209, 212. The cause was tried upon the testimony of witnesses examined orally before the referee, as well as upon books of account and other documentary evidence. The referee having heard and observed the witnesses, and having authority to decide the whole issue, his findings of fact are entitled to the same consideration as the verdict of a jury or the findings of the court, based upon oral and written evidence produced in open court. In certain cases where the trial court has rendered its decree upon the report of a master or referee, this court has held that it must, upon appeal, examine and weigh all the evidence for the purpose of determining the issues of fact, as well as the law and equity of the case, according to its own judgment. But an examination of the record discloses that those cases stand upon a different footing from the present case, and that they are not in conflict with the views expressed in this opinion. For example: The case of Jackson v. Allen, 4 Colo. 263, was commenced and tried under the old equity practice, the testimony being taken and reported by a master, without any findings or conclusions whatever. In Miller v. Taylor, 6 Colo. 41, and also in Sieber v. Frink, 7 Colo. 148, 2 Pac. 901, the referee was directed to take and report the testimony, but no findings or conclusions, either of law or fact, were required of him. The present Code, in respect to references of the kind under consideration, provides as fol

as

lows: "The findings of the referee upon the whole issue shall stand as the finding of the court, and upon filing the same with the clerk, judgment shall be entered thereon in the same manner as if the action had been tried by the court, unless objected to by either party by filing a motion for a new trial as hereinafter provided. When the referee is to report the facts, the finding shall have the effect of a special verdict." See section 212. From the foregoing it is clear that we are not required, on this appeal, to sift and weigh the evidence, as in cases where the testimony is taken and reported without findings of fact, but that the review is to be confined to specific objections and exceptions, in cases of ordinary trials before the court or jury upon oral and written evidence. 2. In their printed brief, counsel for appellants contend that the complaint does not state facts sufficient to constitute a cause of action. But there is no assignment of error to that effect, nor does it appear that any such objection was interposed in the trial court. The complaint states the different causes of action in general terms, much like the common counts for goods sold and delivered, and for work done and performed. Such mode of pleading is not favored by the Code, but objections thereto should be taken, if at all, by special demurrer, or by motion for a copy of the account sued on, or for a bill of particulars; they will not be entertained when raised for the first time on appeal or error. Code, §§ 50, 63. See Campbell v. Shiland, 14 Colo. 491, 23 Pac. 324; also, Mulock v. Wilson, 35 Pac. -, (recently decided by this court.) The referee deducted $500 from appellee's claim on account of unmerchantable stone. Counsel for appellants claim that this allowance was not enough. Counsel for appellee claim that no allowance whatever should have been made. The testimony upon this point is conflicting; but, considering the referee's superior opportunity for weighing the evidence, we cannot undertake to revise his conclusions as to the amount of unmerchantable stone. Appellants' claim for overcharges of stone delivered stands upon similar testimony. They claim that they were overcharged $1,134.76. This was reduced by items amounting to nearly $300. The referee allowed something over $400 in favor of appellants. We cannot say this allowance was not warranted by the evidence. Under the contract, appellants were to pay, on the 10th of each month, for all stone delivered and sold, and 50 per cent. of the contract price for stone delivered and remaining unsold. As the evidence does not show the amount of stone delivered and sold, nor the amount remaining unsold, it is contended that there is not sufficient data upon which to determine the amount due to appellee when this suit was commenced. But it appears that the referee was able to determine with reasonable certainty the amount of stone delivered; and SO the amount