Mich. 276, 86 N. W. 823, relied upon by ap-ant's land. In rebuttal plaintiff put Cunningpellant. [5] IV. The next exception argued is that the alleged stipulation in the agreement for submitting the apportionment of the expense to arbitrators or referees selected by the parties is not enforceable. For the purposes of this case the appellant's proposition of law may be conceded; but it in no manner affects the principal agreement by which plaintiff was authorized to proceed with the work and defendant undertook to pay his proper share of the cost. The agreement, if any, as to arbitration, so called, goes only to a remedy for a settlement of the rights of the parties under the contract by which the outlet was to be constructed, and, if it be true that the remedy so contemplated is not available, it does not close the door of the courts against a hearing in the ordinary course of legal procedure. [6] V. Exception is taken to the court's instruction upon the measure of plaintiff's damages. ham on the stand and he denied the imputation. On cross-examination the witness was asked if he did say at a time and place mentioned that Dugger told him to stop the tile and he had done it, and if he had not made other statements of similar effect, and to these questions he answered, "No." When plaintiff's rebuttal had closed, defendant then offered witnesses to testify that at the time and place mentioned Cunningham did say in substance that he had been hired by plaintiff to block the tile. On plaintiff's objection the testimony was ruled out, and it is of this ruling complaint is made. Had the offer been limited to the simple proposition that the witness contrary to his former testimony had admitted stopping the tile, the offer might well have been upheld as tending to discredit him; but to admit proof of his alleged statement out of court, not under oath and not in the presence of the plaintiff, that he had been bribed or employed by plaintiff to do a wrongful act to defendant's injury, would not have been justifiable. To do so would be making it necessary for plaintiff to enter upon a second rebuttal to deny such a grave imputation and thus distract the attention of the jury from the principal issue they were impaneled to try. These assaults and counter assaults The instruction criticized is to the effect that, if plaintiff is found entitled to recover, the jury shall proceed to ascertain the benefits or increase of value accruing to each farm on account of the outlet, and the amount of the verdict will then be for that proportion of the cost of the improvement which the benefit to the defendant's farm upon the witnesses and parties concerning bears to the sum of the benefits to both matters which are material only as affectfarms. It is said that this method of arriving their credibility must end somewhere, ing at the benefits is not relied upon in plaintiff's petition. To this it may be answered that, if a petition states a good cause of action, the fact that it demands judgment upon an erroneous theory of the measure of damages will not necessarily defeat a recovery if the evidence on the trial and the instructions of the court are sufficient to sustain a recovery on the basis of a correct measure. We discover nothing, however, in the petition herein inconsistent with the rule given by the court. [7] Counsel further say that the contract sued upon is so vague and uncertain it does not show "that the parties had in mind this method of estimating the share which Mr. Kelly should pay." It is entirely immaterial what either party may have had in mind as to the measure of damages for a breach of the contract if no stipulation was made with reference thereto. If the contract was otherwise complete the court will formulate the proper rule for the measure of damages. The instruction in this respect seems unexceptionable. [8] VI. Error is assigned upon certain rulings of the trial court upon the introduction of evidence. The defendant in presenting his case offered testimony tending in some degree to show that one Cunningham, at the instance of plaintiff, had blocked or stopped the tile to prevent the drainage from defend and the court did not abuse its discretion in refusing to open the door any wider. Indeed, if we were to hold that the court erred in of a character to require a reversal of the this ruling, we should not regard the error case. [9] Further complaint is made that defendant's counsel were unduly restricted in cross-examining the witness Stewart, who was examined in behalf of plaintiff. Stewart was the witness who most directly corrobo rated plaintiff concerning the contract sued upon as well as in some other respects, and upon cross-examination he appears to have been pursued by counsel very aggressively and unrelentingly for several hours. In the course of the grill the witness was asked in a variety of forms whether upon a specified occasion in referring to his testimony as a witness upon a former trial of the same cause he did not say, "I have just got done in the trial between Dugger and Kelly and got damned well paid for it," or other words of similar import. Answers to these interrogatories were ruled out on plaintiff's objection, and this is said to be prejudicial error. The ruling was correct. Proof that the witness did make such a statement concerning a former trial would have no tendency to rebut or disprove any statement of fact which he made on this trial. The matter sought to be elicited from him contains nothing to indicate what his testimony on the LADD, C. J., and EVANS and PRESTON, JJ., concurring. former trial was or to designate the party | shown, the judgment of the district court is for whom such testimony was given. As- affirmed. suming, however, that he stood in the same relative position to the parties on each trial, the chief force and effect of the matter sought to be elicited from him was not so much to discredit the witness, as to cast odium upon the plaintiff by indirection-a kind of makeweight which the court should exclude from the jury. [10] Complaint is also made that the court improperly permitted plaintiff to testify to offers or suggestions of compromise between the parties. The substance of his testimony was that plaintiff offered to accept $75 and discharge his claim, and that defendant accepted his offer and agreed to pay it, but afterward repudiated the agreement and refused to pay. This we are disposed to hold was not an infraction of the familiar rule that offers of compromise are not admissible in support of a contested claim or defense. In this case the witness testified, not to an offer or proposal merely, but to an agreement upon the sum to be paid. A mere offer of compromise is to be protected because a party to a controversy is permitted in the interest of peace to tender such terms as to him shall seem proper, and if rejected by the other party it would be manifestly unfair to make use thereof as an admission of debt or liability. But where the offer is accepted or agreed to, and the parties get together upon an amount to be paid or received, we can see no good reason for excluding proof of the fact. Without extending this discussion further, it may be said that the issues in this case are purely of fact upon which the evidence was such as to entitle the parties to a verdiet of a jury, and we find no prejudicial error in the conduct of the trial, rulings, or instructions. The case has been contested with a fierceness and pertinacity out of all proportion to the sum in controversy. It has been three times tried in the court below, with the result that the accumulated costs, to say nothing of counsel fees, are several times as great as the amount of the recovery. Surely a fourth trial should not be ordered unless the record discloses some error but for which we may conceive that a different result might well have been reached. Νο such error appears. Had these parties been endowed with wisdom to devote the money they have thus expended or for which they have become liable to the betterment and extension of the common improvement already constructed, both farms would doubtless now have been drained to the limit of perfection; but, as it is, unless the courts find a way to put an end to their litigation, both plaintiff and defendant are liable in due time to find themselves thoroughly drained of everything but their fighting spirit. No sufficient ground for reversal being BETTINGER v. LORING et al. (No. 29710.) The care required of an electric railway company operating cars over a public highway is care reasonably proportionate to the peril to be guarded against. [Ed. Note.-For other cases, see Street Railroads, Cent. Dig. §§ 172-177; Dec. Dig. § 81.*] 2. STREET RAILROADS (§ 117*)-ACCIDENTS AT CROSSINGS NEGLIGENCE EVIDENCE QUESTION FOR JURY. In an action for the death of a traveler struck by a train of an electric railway company at a crossing, the question of actionable negligence held under the evidence for the jury. [Ed. Note.-For other cases, see Street Rail roads, Cent. Dig. §§ 239-257; Dec. Dig. § 117.*] 3. DEATH (8 58*)-ACTION FOR DEATH-CONTRIBUTORY NEGLIGENCE-PRESUMPTIONS. Where there was no witness to an accident causing death, the presumption is that decedent exercised due care, unless the facts proved show beyond controversy that the accident could not have occurred had he exercised the care of a person of ordinary prudence. [Ed. Note.-For other cases, see Death, Cent. Dig. §§ 75-78; Dec. Dig. § 58.*] 4. STREET RAILROADS (§ 117*)-COLLISION AT CROSSINGS CONTRIBUTORY NEGLIGENCE QUESTION FOR JURY. Whether a traveler killed at a public crossing by a train of an electric railway company was guilty of contributory negligence, held, under the evidence, for the jury. [Ed. Note.-For other cases, see Street Railroads, Cent. Dig. §§ 239-257; Dec. Dig. § 117.*] 5. STREET RAILROADS (§ 113*)—ACCIDENTS AT CROSSINGS-EVIDENCE-ADMISSIBILITY. In an action for the death of a traveler struck by a train of an electric railway company at a crossing, evidence as to decedent's intoxication and his manner of driving when approaching the crossing was admissible on the question of his due care. [Ed. Note.-For other cases, see Street Railroads, Cent. Dig. §§ 229-238; Dec. Dig. § 113.*1 6. STREET RAILROADS (§ 117*)-ACCIDENTS AT CROSSINGS - CONTRIBUTORY NEGLIGENCE EVIDENCE. train were required by rule to stop all trains Where operators of an electric railway on the safe side of a dangerous crossing, it was for the jury to determine whether decedent, struck by a train at the crossing, exercised the care of a reasonably prudent man in placing some reliance on compliance with the rule. [Ed. Note.-For other cases, see Street Railroads, Cent. Dig. §§ 239-257; Dec. Dig. § 117.*] 7. STREET RAILROADS (§ 118*)-COLLISIONSACTIONS-EVIDENCE-INSTRUCTIONS. Where, in an action for the death of a traveler struck by an electric train at a crossing, the evidence showed that the crossing was dangerous and largely used, and that frequent trains passed, and the company showed the adoption of a rule requiring a stop before crossing, and that the train which struck decedent did so stop, but there was nothing to show that decedent was familiar with the crossing except as might be inferred from the fact that he was a proprietor of a livery business in a neighboring city, and there was evidence that he was on the crossing when struck by the train, a charge that if, owing to the dangers of the crossing, the statutory signals were insufficient to render a proper use thereof reasonably safe, the company must provide other precautions as might reasonably be necessary, either by the employment of a flagman or other expedient, as ordinary prudence might dictate, was not erroneous because of the evidence of the company, the truth of which was for the jury. [Ed. Note.-For other cases, see Street Railroads. Cent. Dig. §§ 258-269; Dec. Dig. 8 118.*] 8. STREET RAILROADS ( 114*)-COLLISIONSCONTRIBUTORY NEGLIGENCE EVIDENCE. Where there was no witness to the conduct of a traveler, killed by an electric train at a crossing, from the time he was about 75 feet distant from the crossing, until he was found injured and unconscious, the mere fact that he might have avoided the accident had he refrained from attempting to cross would not jus tify a finding of contributory negligence. [Ed. Note. For other cases, see Street Railroads, Cent. Dig. §§ 239-250; Dec. Dig. § 114.*] 9. DEATH (8 77*)-ACTION FOR DEATH-DAM AGES. Where decedent leaving property worth $1,300, and $2,500 in life insurance, was of industrious habits, but there was nothing to show that he had worked for wages, or any definite showing as to his earning capacity, though his business was that of a liveryman, and nothing to indicate that he was materially less capable of earning money than the average man of his years and experience, there were sufficient facts to justify the jury to assess substantial damages for his death for loss to his estate. [Ed. Note.-For other cases, see Death, Cent. Dig. § 96; Dec. Dig. § 77.*] 10. EVIDENCE (§ 123*)-RES GESTE-DECLABATIONS-ADMISSIBILITY. A statement by a motorman, made about the time of or a few minutes after the discovery by the trainmen of an accident to a traveler and the stopping of the train to render aid, that because of a heavy load the train could not be stopped, was admissible as a part of the res gestæ. [Ed. Note.-For other cases, see Evidence, Cent. Dig. §§ 351-368; Dec. Dig. § 123.*] 11. APPEAL AND ERROR (§ 273*)-QUESTIONS REVIEWABLE-RULINGS ON PLEADINGS. An exception to the refusal to withdraw from the jury two separate paragraphs of the petition will not be sustained on appeal if the ruling is correct to either of the paragraphs. [Ed. Note.-For other cases, see Appeal and Error, Cent. Dig. §§ 1590, 1606, 1620-1623, 1625-1630, 1764; Dec. Dig. § 273.*] 12. APPEAL AND ERROR (§ 1042*)-HARMLESS ERROR-ERRONEOUS RULINGS ON PLEAD INGS. Appeal from District Court, Webster County; R. M. Wright, Judge. Action at law to recover damages for the death of Eugene Bettinger, who is alleged to have lost his life by the defendant's negligence. Verdict and judgment for plaintiff, and defendants appeal. Affirmed. Dyer & Dyer, of Boone, for appellants. Kenyon, Kelleher & O'Connor and Frank Maher, all of Ft. Dodge, for appellee. WEAVER, J. The company of which defendants are receivers owns a line of electric railway extending from Ft. Dodge to Des Moines and other points. On August 12, 1911, plaintiff's intestate was struck and mortally injured by one of the company's trains upon a highway crossing in Webster county on the border of the city of Ft. Dodge, and this action is brought to recover the damages thereby occasioned to his estate. In support of such claim it is alleged that the collision is chargeable to the negligence of the persons having charge and control of the movement of the train in the following particulars: (1) That they were negligent in failing to exercise reasonable care to stop the train and avert the injury after they discovered or knew of the peril to the deceased. (2) That they were negligent in failing to give proper signals or warnings of the approach of the train. (3) That defendants, their agents and employés, were negligent in operating trains over said crossing, which by reason of the manner of its construction admits surroundings rendering its use peculiarly dangerous, without employing a watchman or making use of other proper safety device. Answering plaintiff's claim, defendants deny the charges of negligence on its part, allege that the collision was due to the negligence of the deceased, and further say that if the crossing was especially or peculiarly dangerous the deceased knew it and undertook its use fully appreciating the risk thereof. [1, 2] I. Appellants' argument is first directed to the proposition that there is no evidence of defendant's negligence and no sufficient showing that deceased exercised due care for his own safety. It is conceded by both parties in argument that the crossing in question is obscure and dangerous. The railway at this point is laid through a somewhat broken and hilly tract of land bordering the course of the Des Moines river. Immediately at the crossing the railroad was substantially north and south and intersects the highway which here extends from the southeast to the northwest at a somewhat sharp angle. The approach of the railway from the south is upgrade and around curves. At a point about 150 feet south of the crossing an approaching [Ed. Note.-For other cases, see Appeal and Error, Cent. Dig. §§ 4110-4114; Dec. Dig. train comes around a curve and through a 1042.*] I cut the depth of which is variously stated Where the court submitted to the jury the issue of negligence alleged in one paragraph of the petition, but not that alleged in another, but merely stated the acts of negligence alleged in the petition, the failure to strike out the paragraph not submitted was not prejudicial. For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep'r Indexes by the witnesses as from 9 to 15 feet and upon the banks of which was a growth of weeds and brush from 2 to 4 feet in height and a few small trees. Owing to these conditions, the curve in the track, the high banks, and other obstructions, one who is driving in an ordinary carriage along the highway from the east after passing a point about 150 feet distant from the crossing obtains no view of the track to the south until his team is nearly or quite upon the east rail. On the day in question the deceased, who was conducting a livery stable in the city of Ft. Dodge, had been employed to drive one Frund to a mill situated some two miles beyond this crossing, and was returning alone to the city when his injury occurred. There is no living eyewitness of the collision, for, strangely enough, none of the three employés accompanying the train appear to have seen the deceased or to have known of the collision until later in the day. According to their version of the incident, they came from the south with a train of freight cars to a point a half mile or more from the crossing, where they cut the train in two, proposing to take it up the grade in sections. They say they proceeded with the first section of 10 or 15 cars very slowly, until as they approached the crossing they came to a full stop. Then, after an interval of 15 seconds and sounding the whistle, they moved on slowly to a switch some 400 feet farther to the north, where they placed the cars on a side track, and then started back with their motor after the second section of the train. When this return movement was begun and they approached the crossing, they discovered for the first time the body of Mr. Bettinger, the wreck of his carriage, and his horses standing on each side of the cattle guard and one of them badly wounded. It should also be said that the trainmen testifying in the case further say that when they stopped the first section at the crossing they looked down the road to the east a distance of 150 to 160 feet, the direction from which deceased must have appeared, and saw neither him nor any other person. The only explanation these witnesses can give of the collision is by way of theory or conclusion that deceased recklessly or blindly drove his team into collision with the train after the motor had crossed the highway but before the crossing was fully cleared by the attached cars. This theory, they say, and counsel argue, is borne out by the fact that upon subsequent examination blood and hair were found under the sill on the east side of the fourth car from the motor. But this is at best a matter of argument or deduction the correctness of which the court cannot pass upon as a matter of law. Nor do we find the record such that we can say as a matter of law there is no evidence of want of due care The cross in the handling of the train. ing, as we have said, was a peculiarly dangerous one, and it was much used by the public. The care which the law requires of a company operating cars over or across a public highway is care which is reasonably proportioned to the peril to be guarded against. Kinyon v. Railroad Co., 118 Iowa, 349, 92 N. W. 40, 96 Am. St. Rep. 382; Gray v. Railroad Co., 143 Iowa, 268, 121 N. W. 1097; Gray v. Railroad Co., 160 Iowa, 1, 139 N. W. 934. And the facts being shown, the question whether they answer the requirements of reasonable care under all the circumstances is ordinarily for the jury to answer. It is true that the trainmen, or at least two of them, testify that they came to the crossing slowly, made a full stop, and then moved on very slowly, and, if this is to be accepted literally, it is very possible that the court would not permit a finding of negligence to stand. But while there is no eyewitness to deny these statements, it can hardly be questioned that the facts and circumstances otherwise established are such as may properly have lessened the weight and value of such testimony in the estimation of the jury, or to suggest the thought that the trainmen were testifying more from their memory of their rules and customs than from a specific recollection of the actual occurrences. If, as they say, when the motor crossed the road there was no one approaching upon the 160-foot stretch of highway to the east, it is quite incredible that deceased should have covered that distance and crashed into collision with the fourth car behind the motor. Again, while the fact is the subject of dispute, there was testimony, which, if believed by the jury, would sustain the finding that when first discovered the helpless body of the deceased was lying close to the rail on one side of the track, while the wrecked carriage was on the other-a circumstance which tends to discredit the suggestion that deceased drove midway into the side of the moving train. Still again, though it is perhaps not an impossible result, it is not easy to understand how, upon the theory advanced by appellant, the deceased sitting in his carriage could have been thrown under the wheels of the moving train. That he was under the wheels is quite clearly shown from the fact that his foot or leg was crushed and portions of his clothing "sheared" off and left lying between the rails. Indeed, nothing but the insistence of the trainmen that they saw nothing of the deceased or his team or carriage at or near the crossing until their return trip, the facts and circumstances disclosed are all quite consistent with the conclusion that when struck by the train deceased was in the act of crossing the track; or, in other words, that he or his team came upon the track slightly in advance of the train. There is evidence that wheel tracks which may have been made by his buggy veered sharply to the north near the track, and it is possible that the deceased finding the train upon him sought to swing the team out of danger, or that the team in its fright instinctively took that course and was immediately overtaken and the outfit broken and scattered by the impact. That these things could have happened, or that deceased could have driven into the side of the train and met his death without being discovered if the train had been stopped a few feet south of the crossing, and then have moved forward at three miles per hour while the trainmen looked down the highway and found it clear, is something so out of harmony with the ordinary experience and observation of mankind that the court cannot say that the jury was manifestly wrong in refusing to give it controlling weight and influence in deliberating upon the verdict. not for the peremptory direction of the court. [3-6] II. Neither can we dispose of the issue of contributory negligence as a matter of law. So far as known or shown by the record, there was no eyewitness of the collision, and, unless the proved circumstances make it clear beyond controversy that it could not have occurred had he exercised the care of a person of ordinary prudence, his administratrix in this case is entitled to the presumption that deceased was exercising due care. Gray v. Railroad Co., 143 Iowa, 276, 121 N. W. 1097, and cases there cited. Upon the facts touching this issue the cited case is quite in point with the one at bar. There, as here, the crossing was obscure, and the train approached through a cut, and as in this case the railroad track was visible to the deceased as he came along the road at some distance from the crossing, but did not again come into view until he drove nearly There is still other evidence having direct or quite up to the crossing. In the Gray bearing upon this feature of the case. The Case the deceased was last seen driving his defendant's witness Mrs. Jones, driving in team at a trot in the direction of the crossthe opposite direction, passed over the cross-ing and not to exceed 55 feet therefrom—a ing just as the train was in the cut on the circumstance which is duplicated in this case south. Her team was moving rapidly, and she met deceased going toward the crossing at a point estimated at 75 feet east of it. He also was driving at a good pace. This was the last time he was ever seen until after the collision. Now if, as the trainmen claim, the train after emerging from the cut slowed down to a full stop, which the motorman estimates at 15 seconds, and then resumed its movement at a very low speed, it seems hardly possible that deceased, driving in the manner described, should not have covered that distance of 75 feet and safely made the crossing. save in the matter of distance which may have been 75 feet. We there held, as we think correctly, that these facts did not authorize the court to say as a matter of law that deceased continued his rapid pace up to the moment of collision, or did not as he reached the zone of danger do those things which the prudence of the ordinary man required at his hands. It is argued that deceased was intoxicated and driving in a reckless manner. There is evidence tending to show that at certain other points or places along the line of his drive he was driving at a rapid gait, that he swayThe duty of the trainmen with respect to er or bounced in his seat, and did not appear crossings was the subject of an established to have firm control of the team. It is also rule of the company introduced in evidence shown that scattered at or near the place of by the defendants. By the terms of this rule collision were found beer bottles, and a witall trains are required to come to a "full ness for defense who assisted in moving the stop" at this particular crossing, and train- injured man says he observed the smell of men are directed to be on "constant lookout liquor on his breath. On the contrary, there for traffic on all public highways, using the is much evidence tending to show that he was greatest possible caution in approaching all not intoxicated and was capable of caring obscure public highways." The testimony of for himself. The person whom he had taken Mrs. Jones is that the train was in motion from Ft. Dodge to the mill testifies that to all when she saw it. She heard no bell or whis- appearance deceased was sober when he tle. We do not understand the trainmen to started homeward a very short time before claim that the whistle was sounded except the accident, and, so far as witness knows, at the moment of starting after the alleged he had no liquor with him, and witness obstop. The physical facts and circumstances served nothing about him indicating intoxof the collision, the conditions existing at the ication. The woman who met him near the crossing when the deceased was discovered, crossing was herself absorbed in managing a are more consistent with the theory that the frightened or spirited team, and the most train did not stop, but continued over the she can say is that the team of deceased was crossing at a comparatively high rate of speed "trotting, coming right down, and I gave him and with the caution which the acknowledg- the road and went on," noticing as they passed obscurity and danger of such crossing re-ed that the horses were lathering in sweat. quired, than it is with the theory of due care Other witnesses who helped care for the inon the part of defendant's employés. It follows of necessity that the question of defendant's negligence was for the jury, and jured man say that they noticed no odor of liquor upon him and that the horses showed no marked signs of overdriving. The only |