assignments as presenting the same question or proposition, and we shall so consider them. [1] Plaintiff testified in his own behalf that on the 18th day of January, 1908, in company with one Brenlee, he went early in the morning to defendant's station in the town of Eldorado, for the purpose of embarking upon its passenger train to Chickasha, which arrived at Eldorado between 7 and 8 o'clock. He testified that he and Mr. Brenlee, on arriving at the station, went to the ticket office, where Mr. Brenlee purchased for him a ticket to Chickasha, which Brenlee thereupon gave to him, and also a sum of money; that they then went out upon the platform, looking for the train, and within two or three minutes thereafter the train arrived; that as soon as it arrived he went up to the train where the people were getting on and off the train; that he heard the conductor call, "All aboard!" and he turned and caught the train to get on; that he caught with his hands on the iron rods of the train about the entrance; that as he did so the train moved up with a sudden jerk, jerking loose his left hand with considerable force, and throwing him around against the train, but that he swung onto the train until it moved 10 or 15 feet, when he caught the bottom step with his right foot, and got back on the train. He testifies that by the sudden jerk, and by striking him against the car. he was hurt across the breast, through his shoulders, and in his back.

question for the jury. There is evidence tending to show that plaintiff did not promptly and immediately board the train after its stopping at the station; but his testimony, however, tends to show that he walked immediately to the entrance of the train, where the passengers were getting on and off, and there stopped, and promptly upon the conductor's calling, "All aboard!" he attempted to board the train; that other passengers got on after him. The call of "All aboard!" given by the conductor, was an invitation to those passengers about the train fixing to embark upon it to board it; that the train would soon depart. After such call, it was the duty of the conductor and of the employés of the carrier in charge of the train to allow a reasonable length of time for those acting upon its invitation to board the train; and that the train be not suddenly moved or jerked, so as to endanger those who attempted immediately to board it. Hall v. McFadden, 19 N. B. 340; Montgomery & E. Ry. Co. v. Stewart, 91 Ala. 421, 8 South. 708; Lent v. N. Y. Cen. & C. Ry. Co., 120 N. Y. 467, 24 N. E. 653. Such call of the conductor is one of daily occurrence upon all railways, and is acted upon by the traveling public as both a warning that the train will soon depart and an implied invitation to passengers preparing or waiting to board the train to do so, and that they should act promptly. Defendant's conductor, upon being asked what was meant by this signal, answered: "To notify the people that we are ready to go. Those reubens run, jumping on, when you hallo, 'All aboard!' It means for the passengers to get on; that I am getting ready to go. I never start until I see all on."

It is not important to summarize here the evidence relative to the extent of his injuries and the duration thereof. Plaintiff's testimony as to how the accident occurred is, in some of the substantial parts, corroborated by Mr. Brenlee, who accompanied him to the [2] The court refused to give the following station. On the other hand, there is evidence instruction requested by defendant: "You of the conductor in charge of the train and are instructed, if the defendant's train stopof one Mr. Wilson, city marshal of Eldorado. ped a sufficient length of time to board the a disinterested witness, to the effect that train, then your verdict should be for the such accident did not occur; but the credi- defendant." This instruction correctly states bility of the witnesses cannot be determined, the law; but in the general charge of the nor the weight of the conflicting evidence court an instruction was given, by which weighed, by this court in this proceeding. plaintiff's right to recover was made to deThe question presented by plaintiff's assign-pend upon the existence of the fact that his ments is: Does the foregoing evidence in behalf of plaintiff state facts sufficient to send the case to the jury for the jury to determine whether the accident, if any, was caused by the negligence of defendant?

We think the trial court committed no error in sending the case to the jury. It is well-settled law that a carrier of passengers, in stopping its trains at stations for the purpose of taking on or letting off passengers, is under duty to hold the train a reasonable length of time to allow passengers to board or alight with safety. Choctaw, O. & G. R. Co. v. Burgess et al., 21 Okl. 653, 97 Pac. 271. Whether the carrier in the instant case held its train a sufficient length of time, and whether starting the train at the time it did with a sudden jerk and lurch, was negligence on its part was, under the facts, a

injury was received while, in a reasonable way, and without any negligence on his part, he was attempting to board defendant's train, and that the accident was caused on account of the train's being started before it had been stopped a reasonable length of time and in such manner as would prevent the plaintiff from boarding the train in safety. We think the rule of law applicable to the facts in this case is stated with sufficient clearness in the charge given by the court for the jury not to have been mislead, and substantially the equivalent of the instruction refused was embodied in the charge. For which reason, the refusal of the instruction, although it correctly states the law, is not reversible error. Finch et al. v. Brown et al., 27 Okl. 217, 111 Pac. 391; Ellet-Kendall Shoe Co. v. Ross et al., 28 Okl. 697, 115

Pac. 802; Citizens' Bank of Wakita v. Gar- | Ry. Co., 5 L. R. Q. B. Cas. 314, plaintiff nett, 21 Okl. 200, 95 Pac. 755.

sought to recover damages for injury sustain[3] By another assignment, defendant com- ed by his wife, owing to the negligence of plains of the rejection of certain testimony. the railway company. Defendant was perPlaintiff, on cross-examination, was asked mitted to prove by a witness that plaintiff if, on the day about one month after the ac- and another person, acting as agent, offered cident, he went to the barn of one Mr. Hous- to compensate the witness if he would give er in the town of Ada, in which town both evidence as to the accident. Lord Cockburn, plaintiff and said Houser lived, and there C. J., in holding such evidence competent, had a conversation with him. This question said: "I think this rule ought to be discharg plaintiff answered in the affirmative. There- ed, so far as the ground taken that the eviupon he was asked the following question: dence was improperly admitted. I. think it "Did not you tell Houser that that was all was rightly admitted. The conduct of a right, and if he would help you out in this party to a cause may be of the highest imcase you would give him $50? A. No, sir; portance in determining whether the cause of I did not speak but a few words. Q. You action in which he is plaintiff, or the ground know that was not mentioned? A. No, sir; of defense, if he is defendant, is honest and I did not offer him any money at all." Hous- just, just as it is evidence against a prisoner er, who testified for plaintiff, was later called that he has said one thing at one time and by defendant, and was asked the following another at another, as shewing that the requestion: "Tell the jury whether or not course of falsehood leads fairly to an inMr. Walker told you, in substance, that he ference of guilt. Anything from which such had $50 for you, and he wanted you to treat an inference can be drawn is cogent and him right about this case?" To this ques- important evidence with a view to the issue. tion, an objection was sustained. Prior to So, if you can shew that a plaintiff has been asking this question, Houser was asked by suborning false testimony, and has endeavdefendant's counsel if he remembered the oc- ored to have recourse to perjury, it is strong casion of plaintiff's coming to his barn about evidence that he knew perfectly well his a month after the accident and talking with cause was an unrighteous one. I do not say him, which the witness answered in the af- that it is conclusive; I fully agree that it firmative, except he could not say as to the should be put to the jury, with the intimatime. Counsel for plaintiff insist that the tion that it does not always follow, because foregoing question was not competent, first, a man, not sure he shall be able to succeed for the reason that the question and answer by righteous means, has recourse to means of plaintiff were upon a collateral issue; of a different character, that that which he and, secondly, that the question propounded desires, namely, the gaining of the victory, to the witness Houser was not the same ques- is not his due, or that he has not good tion that was propounded to plaintiff. On ground for believing that justice entitles him the authority of both the decided cases and to it. It does not necessarily follow that he the text-writers, a witness who has testi- has not a good cause of action, any more fied upon a material issue may be asked, than a prisoner's making a false statement upon cross-examination, whether he has of- to increase his appearance of innocence is fered to one of the parties to procure testi- necessarily a proof of his guilt; but it is mony for him for pay, or made an agreement always evidence which ought to be submitted or proposition to either party, for a consid- to the consideration of the tribunal which eration, to suppress testimony, or whether has to judge of the facts; and therefore I he himself has attempted to buy or bribe think that the evidence was admissible, inother witnesses; that such evidence is not asmuch as it went to shew that the plaintiff collateral, for it goes directly to the credit thought he had a bad case." The doctrine of the witness. Barkly v. Copeland, 86 and rule of the foregoing case has been genCal. 483, 25 Pac. 1, 405; Lewis v. Steiger, erally approved and followed by the courts 68 Cal. 200, 8 Pac. 884; Luhrs v. Kelly, 67 of this country. Cal. 289, 7 Pac. 696; Morgan v. Frees, 15 At paragraph 795, 1 Thompson on Trials, Barb. (N. Y.) 352; McGinnis v. Grant, 42 it is said: "Evidence of attempts by the opConn. 77; Folsom v. Brawn, 5 Foster (25 N. posite party, or by one authorized by him, to H.) 114; State v. Downs, 91 Mo. 19, 3 S. W. destroy, fabricate, or suppress evidence may 219; 1 Greenleaf on Ev. § 462; Wharton on be shown; such acts being in the nature of Ev. § 547. Such questions may be asked as an admission that the party has no sufficient a predicate for impeaching the witness by case, unless aided by suppressing or fabrithe evidence of other witnesses. Whether cating evidence." To the same effect is the the question rejected in this case is the same holding in the following cases: Chicago City as the question propounded to plaintiff, and Ry. Co. v. McMahon, 103 Ill. 485, 42 Am. whether the impeaching witness qualified as Rep. 29; Winchell et al. v. Edwards et al., to the time and place of said conversation, 57 Ill. 41; Snell et al. v. Bray, 56 Wis. is unimportant to decide; for, upon another 156, 14 N. W. 14; Martineau v. May, 18 Wis. ground, we think this testimony was compe-59; Georgia Railroad & Banking Co. v. Lybrend, 99 Ga. 421, 27 S. E. 794.

tent.

by the court, it is said: "On the trial of a | his injury or of the accident to any one. civil action, at which the plaintiff testifies as After buying a bottle of Peruna, he left next a witness in his own behalf, it is competent morning in a buggy for the towns of Lindfor the defendant to prove that the plaintiff, say and Pauls Valley, driving across counin furtherance of this identical cause, and try all day long. Upon his arrival at the for the purpose of prevailing therein, had last-mentioned place, he went to a hotel, sebeen guilty of base, dishonorable, or criminal cured a room, stating at the time that he was conduct. Evidence of this character is ad- sick, consulted with and called a physician, missible in behalf of the defendant, both to whom he also informed of being sick and sufdiscredit the plaintiff as a witness, and to fering great pain, remained at the hotel for throw suspicion upon the justice of his several days, but at no time mentioned to eicause of action." ther the hotel keeper or his physician, who made several visits, anything of the accident, or of the injuries he had received therefrom; and the physician who examined him at the time failed to discover any evidence of his injuries, but diagnosed his condition as one of symptoms of pneumonia, and treated him for such disease with favorable results.

It is urged by plaintiff's counsel that the evidence rejected does not tend to impute to plaintiff any dishonorable or corrupt conduct. With this contention, we cannot agree. It is true that the question rejected does not show by the conversation attempted to be established that plaintiff proposed in specific terms to bribe the witness to swear falsely for him upon any specific matter touching the case. Houser was a passenger on the train from which plaintiff departed at Eldorado on the morning of the alleged accident, and was also used as a witness by plaintiff to establish the movement of the train at that time. Witness resides in the town of plaintiff's residence. The character of testimony he was capable of giving in the cause was not of an expert nature, or of such a nature as to entitle him to extra com

Against this testimony was the evidence of plaintiff that the accident occurred, and that the injuries were received as he alleged. The truthfulness of his statements as to the occurrence of the accident and the injuries received therefrom, in the light of his conduct thereafter, were properly questions for the jury (Texas & P. Ry. Co. v. Gardner, 114 Fed. 186, 52 C. C. A. 142); and, after approval of the verdict by the trial court, it should not be disturbed upon this ground. But, since the establishment of his injuries

by this accident was dependent entirely upon plaintiff's testimony, the fact that he offered to influence witnesses to testify in his favor by the offer of money would be a circumstance strongly bearing upon the question of the justness of his claim and of his credibility as a witness; and the rejection of such evidence was prejudicial error.

[4] Counsel for plaintiff has urged that the question presented by the exclusion of

pensation therefor. One who willfully suborns perjury would rarely propose to a witness whom he sought to corrupt to pay him so much for false testimony. He would couch his proposition in more diplomatic and tactful language out of fear that so bold a proposal might shock the conscience of his witness, be rejected, and thereby the more greatly expose the offerer of the bribe to prosecution and conviction for his offense. The meaning of the conversation sought to be the foregoing evidence has not been preestablished that readily suggests itself to one's mind, under the circumstances, is that plaintiff sought by the offer of money to this witness to influence him to testify favorably to his cause. If defendant had been permitted to show this conduct on the part of plaintiff, it cannot be said it would not have had an effect upon the minds of the jurors favorable to defendant; and the importance of this testimony to defendant becomes apparent upon a review of the entire evidence of the case.

The action and course of conduct of plaintiff immediately after the accident and for several days thereafter was of a somewhat extraordinary and unusual nature. He traveled upon the train to Chickasha, and made no mention to the conductor upon the train of the injury he had received; nor to any other person, except to one passenger, whom he could not name. At Chickasha, where he stopped for the night, he purchased a nickel's worth of morphine, which he took and went to a hotel, where he went to bed, because he was suffering; but he made no mention of

served for review in this court, because no statement was made to the trial court of the

testimony which it was expected would be elicited by the question objected to. In volume 2, Cyc. p. 697, it is said: "To reserve any question on the ruling of the trial court in excluding testimony, there must be a pertinent question propounded, and, upon objection being made, a statement to the court of the testimony which it is expected will be elicited by the question and an exception taken to the ruling thereon." The foregoing language, we think, too broadly states the rule; or, if it be taken as stating the general rule, it does not include the exception that, where it is apparent on the face of the question asked the witness what the evidence sought to be introduced is, and that it is material, upon objection being sustained to it and exception thereto saved, the action of the court may be reviewed on appeal. Mitchell v. Harcourt et al., 62 Iowa, 349, 17 N. W. 581; Town of Londonderry v. Fryor (Vt.) 79 Atl. 46; Albertini v. Linden, 43 Mont. 126, 115 Pac. 31. An exception to the ruling of the trial court in this case was saved.

and claimed no forfeiture from the plaintiff in error by reason of the pretended default, and that said Kelley at the time was the owner and holder of said notes and mortgage, and that said defendant J. B. Roe had agreed with the said Kelley at the time Kelley held and owned the said notes and mortgage that he, Roe, would paint and make other improvements upon the property covered by said mortgage, and that the note which was due in October, 1908, might run until October 1, 1909, at which time defendants could pay the same, and the said Kelley would claim no forfeiture by reason thereof, and that thereupon, and relying upon said contract, and in consideration of said agreement, said plaintiff in error Roe did expend a considerable sum of money on improvements on said property, and which money he would have paid on the said note, except for the agreement aforesaid had with said Kelley, who was at the time of said agreement the owner and holder of said mortgage as aforesaid. To this amended answer the plaintiff filed a general demurrer.

paid when due, and if the insurance was not kept up on the building, then the whole of said sum, or sums, and interest thereon, should become due and payable without notice, and that the mortgagee or her assigns should be entitled to the possession of said property with the rents and profits. Plaintiff further charged that the conditions of said mortgage and notes had been broken, in that on October 10, 1908, there became due and payable according to the terms of the mortgage the sum of $100 on the second note and the interest on all said notes; that sard note and the interest on the others had not been paid, although payment had been demanded; that defendant neglected to pay taxes on said property for the year 1907, amounting to $20. The plaintiff was obliged to pay the same to protect the property from a tax sale. Plaintiff further alleged that the defendants Roe and his wife were in possession of said property, and asked for a receiver, and that she have judgment for the entire sum, interest, and attorney's fee. Thereafter, on August 21, 1909, plaintiffs in error filed an amended answer to said petiThe defendant the Shawnee National Bank tion, which, after denying the allegations and the defendant S. S. Carson filed an anof the petition generally, denied that. plain-swer and cross-petition, asking to have subsetiff was the real party in interest, charging quent mortgages foreclosed. On September that J. W. Brooks was the owner and holder 7, 1909, the court sustained the demurrer to of the notes, that he had furnished a consideration for the purchase of the same, and had said notes and mortgage indorsed, and assigned, to the plaintiff, but that plaintiff had paid no consideration, and had no interest whatever in said notes, but was merely the agent of Brooks, and that Brooks was the legal and equitable owner of the property. Plaintiffs in error further admit that they executed the notes and mortgages, but alleged that the plaintiff could not claim a right to claim a forfeiture, or to ask foreclosure, for the reason that the defendants The action in foreclosure was begun July had sold and delivered to Kelley, the plain- 20, 1909. It is admitted by the pleadings tiff's vendor, material to the amount of $32.- that Kelley, the original payee of said note 75 at the time when Kelley was the owner and mortgage, transferred the same to Loand holder of the notes, and it was agreed rena B. Fleming after the maturity of the between them that the said amount should second note. Therefore the defense as urged be credited on this indebtedness, without by Roe and his wife, if good as against Kelclaiming any forfeiture from the plaintiffs ley, would necessarily be good as against in error of the unpaid note and interest. Lorena B. Fleming. Roe and his wife in Plaintiffs in error further allege in their their amended answer allege that the first amended answer that on April 10, 1909, all and third note have been paid, but admit interest on said notes being due and unpaid, that the second note, which became due Ocand the taxes and the note which became tober 10, 1908, also the interest for the year due October 10, 1908, still being unpaid, that ending October 10, 1908, is unpaid, also that J. B. Roe, one of the plaintiffs in error, ten- the interest for the half year ending April dered to and paid the same to the said Kel- 10, 1909, is unpaid, and taxes to the amount ley, and the said Kelley accepted the full of $20 are past, due, but they contend that payment of the said note for $100, which be- no other interest on said notes, and none of came due April 10, 1909, six months after the other of said notes are due and payable, No. 2 had matured, and as the taxes had be- and that plaintiff cannot lawfully claim the come due and payable, and had been paid, right to declare all of said notes due and to and that said Kelley at the time that he ac- ask for foreclosure of the mortgage by reacepted the $100 payment on said third note son of the above-named defaults for the folmade no demand on defendants, or either of lowing reasons: First, that prior to the date them, for the immediate payment of the un- of the transfer of the notes and mortgage to paid note, or the unpaid interest or taxes, Fleming by Kelley, and while Kelley was 122 P.-32

the defendant's amended answer, and the plaintiff in error, refusing to plead further, but electing to stand on said amended answer, was adjudged in default, and judgment was entered in favor of the plaintiff and against the defendants J. B. Roe and Ivy Roe, as prayed for. From this judgment Roe and his wife appealed, and present but one assignment of error for the consideration of this court, and that is that the court erred in sustaining the general demurrer to the amended answer of the plaintiffs in error.