the court shall give such instructions upon the law to the jury as may be necessary, which instructions shall be in writing and signed by the judge." Sess. Laws 1887, p. 156. In thus giving the instructions we think the court erred, and violated the express provisions of the practice act above referred to. The subsequent extension of the instructions by the stenographer and the signature of the judge did not cure the error. The language of the Code is that it shall be given in writing before argument, and signed by the judge. In the case of Rich v. Lappin, 43 Kan. 666, 23 Pac. Rep. 1038, it was held that "the district court must give its instructions to the jury in writing, when requested so to do by either party; and the giving of them orally, and having them taken down by a stenographer, and after the jury has retired having them written out by the stenographer, is not sufficient." In Rising Sun, etc., Tp. Co. v. Conway, 7 Ind. 187, it was held that, "when the court is requested, at the proper time, to give its charge to the jury in writing, the whole charge should be in writing, and should be given literally as it is written. Laselle v. Wells, 17 Ind. 33; Railroad Co. v. Daniels, 21 Ind. 257; 2 Thomp. Trials, § 2376. Where the statute requires a written charge to the jury, it is error for the court not to comply with it, and compels a reversal of the judgment. State v. Potter, 15 Kan. 302. In the case of City of Atchison v. Jansen, 21 Kan. 560, this doctrine is announced: "Where the statute provides that the court shall, when requested by either party, reduce its instructions to writing, this provision is mandatory, and a disregard of it is error, compelling a reversal. Hence, when the record contains several pages of instructions, which were given orally to the jury, in disregard of the demand of one party for written instructions, and some of which are plainly instructions upon the law of the case, and not mere directions as to the form of the verdict or other collateral matters, the court must reverse the judgment, irrespective of the question whether such oral instructions as are incorporated into the record are correct statements of the law applicable to the case." The foregoing authorities have received the sanction of the supreme court of this state in Montelius v. Atherton, 6 Colo. 224; Lee v. Stahl, 9 Colo. 208, 11 Pac. Rep. 77. For this error alone the judgment of the court below must be reversed. We do not think it necessary for us to review the testimony in the case, or pass upon the other questions presented by the assign. ment of errors.

The judgment must be reversed. (48 Kan. 654)

CLARK V. MISSOURI PAC. RY. Co. (Supreme Court of Kansas. May 7, 1892.) INJURY TO RAILROAD EMPLOYE-NEGLIGENT CONSTRUCTION OF ROAD CONTRIBUTORY NEGLIGENCE-PLEADING AND PROOF.

1. Where the servant has equal knowledge with the master of the construction and condition of the roadbed of a railroad company, and knows all of the daugers and hazards incident to his work thereon, such servant assumes all the risks and hazards of his employment

2. In constructing a branch of one of the principal railroad lines of the state dirt ballast was used between the tracks of the road, the dirt or filling not extending to the end of the ties, but the roadbed was raised at the center, sloping downward towards the end of the ties, leaving no dirt under them. A head brakeman, familiar with the construction of the roadbed, embankment, and track, and having control of the movement of the train, just after dark, when the road bed was covered with snow which had fallen after some sleet, directed the engineer to back the train up, and while the train was moving slowly backward, he stepped in between two cars to uncouple them and slipped and fell with his knee across the rail. In this condition he was run over and his knee crushed. Subsequently, his injured leg was amputated, and soon afterwards he died. Held, under these circumstances, no negligence can be imputed to the railroad company.

3. A trial court commits no error in refusing evidence outside of the allegations of the pleadings, and not within any of the issues framed thereby.

(Syllabus by the Court.)

Error from district court, Cloud county; E. HUTCHIN N, Judge.

Action by Caroline Clark, as administratrix of William D. Clark, deceased, against the Missouri Pacific Railway Company, to recover damages for the death of deceased. Judgment for defendant on demurrer to plaintiff's evidence. New trial denied. Plaintiff brings error. Affirmed.

The other facts fully appear in the fol lowing statement by HORTON, C. J.:

On March 22, 1887, Caroline Clark, as administratrix of the estate of William D. Clark, deceased, commenced her action in the district court of Cloud county, to recover $10,000 as damages by the reason of the death of William D. Clark. It was alleged in the petition that William D. Clark was, on December 12. 1885, in the service of the defendant as a brakeman on one of its trains running from Burr Oak, in Jewell county, to Jamestown, in Cloud county, on the Jewell branch of the Central Branch Union Pacific Railroad, controlled and operated by the defendant, and that he was injured at an intermediate station called "Randall," on the branch, and that he died on December 14, 1885. The circumstances of the injury are alleged in the petition as follows: "That while at said Randall station part of said train of cars was switched upon the side track of said station, and the said Win. D. Clark, as a part of his duties as said brakeman, was then and there required to, and did then and there, couple and uncouple certain cars of said train. That while so engaged said train of cars, to wit, that part of said train of cars that had been switched upon said side track, was pulled off of said side track upon the main track of said road, and east of the east end of said side track, and the said Wm. D. Clark was then and there, on said main track, required to continue to do and perform, and did do and attempt to do, the work of coupling and uncoupling the cars of said train. That at the place on said main track where said coupling and uncoupling were required to be done the roadbed, embankment, and track, through the negligence and want of care of said defendant, were in a defective con

dition, and badly out of repair, making it

or attempt to do the work of coupling or uncoupling cars at this place in the manner in which said work had to be done by the said Wm. D. Clark. That he was not familiar with the condition of the roadbed, embankment, and track at this point, and did not know from the condition that said roadbed, embankment, and track was then in at said place that it was dangerous and unsafe to couple or uncouple, or to attempt to couple or uncouple, cars at said place; and, it being dark at the time, he was prevented by the darkness from seeing the bad condition of the said roadbed, em. bankment, and track at said place was then in, and did not know that it was dangerous and unsafe for him to couple or uncouple, or attempt to couple or uncouple, cars at said place. That, notwithstanding the said Wm. D. Clark, at said time and place, was required and obliged, in the line of his duty as such brakeman, to couple and uncouple the cars of said train, and that whilst so engaged, and without any negligence or fault on his part, the said Wm. D. Clark, by reason of the said roadbed, embankment, and track being defective and out of repair at said place, while in the act of coupling or uncoupling a car of said train, slipped and fell between and under the cars of defendant's said train, said train being then in motion, and so immediately set in motion by the employes of the said defendant in the control of said train. That by reason of said fall, caused by the defective condition of said roadbed, embankment, and track, causing the said Wm. D. Clark to slip and to fall between and under the cars of defendant's train then in motion, the said Wm. D. Clark was then and there sorely and grievously injured, and had his right leg crushed, mangled, and broken, both above and below the knee, and was otherwise injured." The petition further alleged "that after the said injuries were received by the said Wm. D. Clark, as aforesaid, and on the same day, the said Wm. D. Clark was removed and conveyed by the said defendant and defendant's employes from said Randall station to the said Jamestown, in Cloud county, Kansas, and by the said defendant there placed in the charge, care, and control of the physicians and surgeons of said defendant, then in the service and employ of the said Mis. souri Pacific Railway Company, to be cared for and treated by them for the injuries received; that the said physicians and surgeons of the defendant assumed the charge and care of the said Wm. D. Clark, the injured man, and took the en. tire control and management of the case, prescribing the treatment for his injuries, and giving all directions connected therewith; that said defendant, by reason of the obligations resting and devolving upon it towards the said Wm. D. Clark, its employe, was in duty bound and under obligations to furnish him with competent, careful, and skillful physicians and surgeons, having the requisite professional discretion, judgment, knowledge, and ability to properly manage and treat such injuries as the said Wm. D. Clark

manner and at the proper time, and without unnecessary delay, and with due skill, such surgical operations as the nature of the injuries received by the patient in their charge might require and demand for his benefit and safety; that the nature of the injuries received as aforesaid by the said Wm. D. Clark were such, his right leg being crushed and mangled and the bones broken both above and below the knee, that amputation of the right leg above the knee was necessary and required to be performed without delay in order to save the life of the said Wm. D. Clark, yet the said physicians and surgeons of the said defendant having charge of the injured man, not regarding their duty in the premises, wholly failed and neglected to give to the said Wm. D. Clark the immediate, prompt, and proper surgical and medical aid and attention which the serious nature of his injuries required and demanded, but, on the contrary, carelessly, negligently, heedlessly, and causelessly failed and delayed for a long time, to wit, for about the space of twelve or more hours after the said injuries were received by the said Wm. D. Clark, to ampu tate said injured limb, as was necessary to be done to save the life of the said Wm. D. Clark, and further failed and neglected, during said delay, to render the said Wm. D. Clark the proper and necessary aid and attention and skillful handling required for his condition, but, on the contrary, administered to him in large and dangerous quantities powerful opiates and anæsthetics, prejudicial, hazardous, and injurious to give and administer to a person in his condition, and neglected and failed to give him the proper treat. ment and care." The cause was heard before the court and a jury. When the plaintiff had rested her case, the defendant demurred to her evidence, which demurrer the court sustained, to which plaintiff excepted, and filed her motion for a new trial, which was overruled, to which she again excepted. Plaintiff brings the case here to have the rulings and decisions of the district court reversed.

A. D. Wilson and Kennett, Peck & Matson, for plaintiff in error. Waggener, Martin & Orr, for defendant in error.

HORTON, C. J., (after stating the facts.) It was charged in the petition that the roadbed, embankment, and track of the railroad at Randall station, where Wiliam D. Clark, the brakeman, was injured, were at the time dangerous and unsafe for coupling or uncoupling cars. It was also charged that by reason of the roadbed, embankment, and track being defective and out of repair at the place of the injury, while Clark was in the act of uncoupling a car from the train, he slipped and fell between and under the cars; that the train was then in motion, and had been immediately before set in motion by the employes of the railroad company controlling the same. The evidence shows that Clark had been running over the branch line continuously from April, 1884. until the time of the accident,-about 20 months. He lived at Jamestown. He

made two round trips each day, being a brakeman all the time. On one round trip it was called a passenger train, and the other a mixed train. Part of the time he acted as baggage man on the passenger train, but he helped to do the switching all the time. He was over this track many times, and helped to do the train work in coupling and uncoupling cars at Randall. The road was built in 1879. The evidence shows that the road was ballasted with dirt in the usual manner of such ballast, namely, a ridge of dirt in the middle of the track as high as the top of the ties, and descending each way to the bottom of the ties at the ends, making a descent of six inches in the four feet from the middle of the track to the end of the ties; and this was the condition of the road throughout, except at the terminal stations of Jamestown and Burr Oak, where the filling extended to the end of the ties, level with the top.

W. W. Pinkerton, the conductor, and William Tangmau, the engineer, were the only railroad men who testified on the trial. Neither was in the service of the company at that time. Both were friends of the plaintiff, all living in the same town. They testified that this road was constructed like western roads generally are. Mr. Pinkerton said the dirt was raised at the center, and sloped downward towards the ends of the ties, for the purpose of drainage, and to let the water out from under the ends of the ties. Mr. Tangman testified that it was customary on the central branch, and on western roads generally, to fill in the center of the track and slope outward, except at terminal stations, but that on eastern roads they usually grade them up quite a distance from the switch targets. The first wit ness was J. M. Rogers. The accident occurred on Saturday night, and he was over the track Sunday forenoon. He testified that at the time of the accident the ground was covered by snow which had fallen after some sleet. Two other witnesses testified that there was snow on the ground, and one of them said there might have been sleet also. The movements of the train at the time of the acci. dent were under the direct control of Mr. Clark. He was the head brakeman. Owens was the rear brakeman. Mr. Clark was ahead giving signals to the engineer, to direct the movement of these cars. Four or five were attached to the engine, and had been drawn out upon the main track east of the switch target. It was desired to throw two or three of these back upon the side track. Mr. Clark turned the switch, so that the cars would go back upon it. William Tangman, the engineer, referring to Mr. Clark, said, “He gave the signal to back up. The en gineer obeyed the signal, and backed up slowly. As the cars were moving backward, Mr. Clark stepped in to draw the pin to uncouple the cars that were to be left on the side track, from the others. He succeeded in drawing the pin, and then "slipped and fell" with his knee across the rail, and one truck of the car from which he had cut the others off ran over and crushed his knee. The accident occurred

between 5 and 6 o'clock in the evening. The employes of the train had their lanterns lit before they reached Randall. The leg of Mr. Clark which was injured was amputated the next morning, but he died the day after. The evidence showing that dirt ballast was used between the tracks, that the dirt or filling did not extend to the ends of the ties, and that the roadbed was raised at the center, but sloped downward towards the ends of the ties, leaving no dirt under the ends, did not establish that the road was improperly con structed or out of repair. Indeed, the evidence is to the effect that the road or branch was constructed like similar roads or branches are generally constructed in Kansas. But, if the road was negligently constructed or kept in repair, the deceased had notice of it.

In Rush v. Railway Co., 36 Kan. 129, 12 Pac. Rep. 582, Mr. Justice VALENTINE, speaking for the court, said: "All that can be required of the employer is that he shall see that the employe is informed with respect to all the dangers and hazards incident to the work; and when this is done the employe will assume all the risks and hazards of his employment. The employer must always act in good faith towards his employe, and see, as far as he reasonably can, that the employe does not take any unknown risks or bazards. But where the employer and the employe are equally competent to judge of the risks and hazards, and both have equal knowledge of the surroundings, the employer cannot be culpably negligent as towards the employe, although the work may be dangerous or hazardous, and although it might be made safer by the employer if he should choose to do so." Williams v. Railroad Co., 22 Kan. 117; Railroad Co. v. Plunkett, 25 Kan. 188; Railroad Co. v. Wagner, 33 Kan. 660, 7 Pac. Rep. 204; Railway Co. v. Weaver, 35 Kan. 412, 11 Pac. Rep. 408. In the recent case of Railroad Co. v. Liehe, (Colo. Sup.) 29 Pac. Rep. 175, it was said: "The rule is that, when a person engages in the service of another he undertakes, as between himself and his employer, to assume all the ordinary danger and liability of the business upon which he is about to enter, and no more, and if, without fault on his part, he is injured as the result of the negligence of the master, the latter must an swer in damages. There are some excep. tions to the rule stated; as, for instance, where the servant has equal knowledge with the master of the defects existing in the machinery, the servant will be deemed to have waived his right of action for damages arising from injuries resulting from such defects." It is not claimed in this case that the railroad company agreed with the deceased to change or add additional ballast to the roadbed, or that it induced him to remain by any promise to reconstruct or repair the roadbed, embankment, or track. The movement of the train was under the control of the deceased, and by his signal the engineer of the train backed it up slowly; therefore it cannot be said, when he slipped and fell, be was compelled by his superiors to go into an unsafe and dangerous

place to perform work. The accident was a most unfortunate one, but the proof in the case did not fix any liability upon the railroad company. There was evidence offered tending to show that one end of a rail of the road was slivered up, and that some one, when crossing over it, had caught his pants and fell down. Other witnesses, however, for the plaintiff made an examination; and did not notice or find this defect; but, if the defect existed as described, it was some 10 feet from where the deceased slipped and fell, and does not seem to have been in any way the cause of the accident. The same may be said concerning a broken tie which was found a little east of where Mr. Clark lay, which was broken in the middle; but spikes held the rails to it at each end. Railroad Co. v. Wagner, supra; Railroad Co. v. Estes, 37 Kan. 715, 16 Pac. Rep. 131.

It is next claimed that the railroad company is liable upon the ground that, after the accident, the physicians or surgeons of the company were negligent in treating Mr. Clark and in amputating his leg. Dr. Friday, a regular practicing physician at Randall, was called immediately after the accident. Mr. Clark was taken to his home in Jamestown, and Dr. Friday did everything possible for his relief until he reached that town. Dr. Hartwell, the local surgeon of the railroad company, then attended, and reported the accident by telegraph to Dr. Holland, the assistant general surgeon at Atchison,-170 miles away. Dr. Holland tried to furnish assistance from Clyde and Jewell City, but failed. Then he wired Dr. Hartwell to call in any physician he chose in Jamestown. There is evidence tending to show that the amputation might have been made at 10 or 11 o'olock on the night of the accident It was not made until about 6 o'clock the next morning,-12 or 13 hours after the accident. Four expert physicians and surgeons were then present, and assisted in the operation. They were Doctors Friday, Hartwell, Moore, and Pigman. The only possible complaint concerning the amputation that can be made is that it might have been performed six or seven hours before it was. Dr. Moore attended Mr. Clark at the instance of the family, and no objec. tion was made by Dr. Hartwell to the calling of any other physician and surgeon. It does not appear that the railroad company was under any legal obligation to provide medical or surgical care. Railway Co. v. Beatty, 35 Kan. 265, 10 Pac. Rep. 845. Upon the facts disclosed there is no evidence showing or tending to show that the railroad company can be held liable for any results of the medical or surgical treatment of Mr. Clark after the accident, which, with the exception of the delay in making the amputation, according to all the testimony, was proper and skillful.

Complaint is further made that the trial court committed error in refusing to per. mit plaintiff to show that one of the two cars between which the deceased was injured was taken from another road, and differed from those in general use on the

defendant's road, in that it had no handholds or guards to hold or support a person in coupling or uncoupling cars. It is also claimed that the court committed error in excluding the evidence offered, tending to show that Mr. Clark, in his lifetime, paid to the railroad a certain portion of his salary in consideration of which the company was to give him medical treatment in case of injury. The evidence rejected was not offered to support any allegation of the petition. If the matters attempted to be established by the rejected evidence were material, they ought to have been alleged in the petition. No issue was tendered by the pleadings thereon. The railroad company had a right to assume that it would not be called upon to meet any negligence or other material matter not pleaded. Railroad Co. v. Irwin, 35 Kan. 286, 10 Pac. Rep. 820; Railway Co. v. Fudge, 39 Kan. 543, 18 Pac. Rep. 720. The judgment of the district court will be affirmed.

All the justices concurring.

(48 Kan. 624)

SCHOOL DIST. No. 39 OF BROWN COUNTY v. SULLIVAN et al.

(Supreme Court of Kansas. May 7, 1892.) SCHOOL DISTRICTS-CONTRACTS-RATIFICATION.

A contract for building a schoolhouse, void because made only by one member of the school board, may be ratified and made binding by the action of the school district in completing the building left unfinished by an absconding contractor; by furnishing the same with seats, desks, and other necessary school-house furniture: by occupying the same for school purposes; and by insuring the same.

(Syllabus by Simpson, C.)

Commissioners' decision. Error from district court, Brown county; R. C. BasSETT, Judge.

Action by Theodore F. Sullivan and others against school district No. 39, Brown county, to recover for lumber furnished for a schoolhouse. On a judgment for plaintiffs, defendant brings error. Affirmed.

W. D. Webb and Grant W. Harrington, for plaintiff in error. James Falloon, for defendants in error.

SIMPSON, C. The material facts in this case can be found stated in the opinion of Justice VALENTINE in 39 Kau. 347, 18 Pac. Rep. 287, delivered when the case was first brought to this court. When the case went back to the district court of Brown county it was tried to a jury, and a general verdict for the defendants in error was returned for $634.52. The jury also returned the following answers to special questions of fact submitted to them: "(1) Did the defendant school district, or any of its officers, enter into a contract for the erection of a schoolhouse, on the land described in the petition, with Hiram Eley? Answer. Yes. (2) Was that contract expressed or implied? A. Implied. (3) What was Hiram Eley to receive for the building of that schoolhouse,-furnishing all the material? A. Eight hundred and thirty-eight dollars. (4) Was the fact known to each member of the board that the defendant Hiram Eley was constructing this schoolhouse? A. Yes." "(6) Was

the fact that Hiram Eley was building a schoolhouse for the defendant school dis: trict, under a contract and agreement with C. A. Sawyer, treasurer of the defendant school district, generally known in that school district? A. Yes. (7) When did he commence the work of erecting the schoolhouse? A. On or about November 1, 1883. (8) When did he cease work, and did he abscond? A. He ceased work November 22, 1883; absconded between 22d and 24th of November, 1883. (9) How far was the schoolhouse completed when he absconded? A. It was ready for plastering. (10) At the time of the arrangement between Eley and any member of the school board did the board act in concert? A. No. (11) If Eley absconded, how long did the schoolhouse remain unoccupied and unfurnished? A. Finished January 10,1884; occupied June 24, 1884. (12) When did the defendant school district complete and finish the schoolhouse? A. January, 1884. (13) What other contract was made with defendant Eley for the erecting of the schoolhouse than the arrangement and contract made between him and C. A. Sawyer, treasurer of the defendant school district? A. No other. (14) What did the defendant school district expend, and what did they do to the completing of the schoolhouse? A. Expended ($600) six hundred dollars, plastered and completed the house. (15) What knowledge had they, if any, that the defendant Hiram Eley contracted for the building of the schoolhouse, and that he had done so under a contract of agreement with C. A. Sawyer, treasurer of the defendant school district? A. General knowledge, and by erection of building. (16) What action did defendant school district take in the meeting of school district to accept this schoolhouse which the defendant Eley had partially constructed? A. By completing arrangements to pay indebtedness accrued by reason of finishing said house. (17) What use did the defendant school district make of it since? A. Used it for schoo! purposes. (18) What other schoolhouse had the defendant school district at the time of accepting the schoolhouse commenced by defendant Eley? A. The old school building. (19) What did the defendant school district do in the way of finishing the schoolhouse commenced by the defendant Eley? A. Plastered it and bung doors. (20) What did defendant school district do in insuring the schoolhouse erected for the defendant school district? A. Insured it in the Burlington Co. (21) What moneys of the defendant school district, with its consent, was paid to the defendant Eley as part payment to build the schoolhouse? A. None by consent of the district. (22) Did defendant school district at the time of its acceptance of house have a full knowledge of all the facts in regard to the arrangements between Eley and its treasurer, C. A. Sawyer, and abandonment of the contract by the defendant Eley, and that the schoolhouse had only been partially completed? A. Yes. "(25) Did the board of the defendant school district have full knowledge of the contract and arrangements between Eley and Sawyer to build said school

house? A. No. have full knowledge; could it have ascertained it by exercising reasonable diligence? A. Yes. (27) Did the majority of the board have full knowledge of the fact? A. Yes. (28) Did Hiram Eley contract with the plaintiff for the plaintiff to furnish the lumber and lime to be used in the construction of the schoolhouse? A. Yes. (29) If so, what amount did the plaintiff furnish defendant Eley to be used in the construction of this schoolhouse? A. $469.35. (30) Was this lumber and building material actually used in the construction of this schoolhouse? If not, how much was used? A. It was. (31) What was it reasonably worth,-the amount that was used? A. $469.35. (32) From what time have you allowed interest thereon? A. From November 12, 1883, to November 23, 1888. (33) What amount is due plaintiff from the said Eley for the said material so used? A. $634.52. (34) Did plaintiff file a mechanic's lien for the material so furnished the said Eley, in the construction of said schoolhouse, with said district clerk of Brown county, Kan., and, if so, when? A. He did, on the 4th day of January, 1884. (35) Did plaintiff serve a copy of said lien on the defendant school district, or its officers, and, if so, when and on whom? A. He did, on or about January 15, 1884, on each member of the board.”

(26) If the board did not

Questions and answers of fact submitted by defendant: "(1) At the meeting of June 24, 1884, was there any statement made about the alleged contract between Sawyer and Eley that Eley should build the schoolhouse? Answer. There was not. (2) At said meeting was the ratification of any contract between said Sawyer and said Eley discussed or voted upon? A. There was not. (3) Was there any contract entered into between said Eley and Sawyer that was ever submitted to the district board or the district? A. There was not. (4) If any contract was entered into between said Eley and said Sawyer, what were its terms? A. Implied contract, requiring the payment of $838. (5) Was there any contract entered into between the board and said Eley? A. No. (6) If question No. 5 is answered in the affirmative, what was it, and when, and who of said board was present? A. (7) Did said Sawyer pay

said Eley, out of the money in his hands, belonging to said school district, for what he did and furnished in and about said

building. said schoolhouse? A. He paid him six hundred dollars. (S) What was the amount said Sawyer paid to said Eley out of the funds of the district for what he did and furnished in and about the building of said schoolhouse? A. $600. (9) Was it the intention of said district to ratify any contract between said Eley and said Sawyer at said meeting of June 24, 1884? A. It was not their intention. (10) At the meeting of June 24, 1884, was it generally believed between the voters there present that Eley had been paid for what he had done in and about the building of said schoolhouse? A. It was generally believed."

1. In the former opinion in this case it was held that if the contract for the con.