BURKE, C. J. From the undisputed evidence in the record before us in this case, it appears that in April, 1887, David O'Brien, the defendant in error, was employed by the Northern Pacific Railroad Company, the plaintiff in error, as a common laborer in the work of "surfacing" its track between CleAlum and Martin, in Kittitass county, Wash. T. On the 21st of April, 1887, and for some days before that, this "surface gang" were engaged at work near a point on the Northern Pacific Railroad about six miles west of This gravel train consisted of a flat car, which hour. To our mind the evidence warrants the belief that the train was running at about 18 miles an hour, the highest rate of speed allowed by the rules of the company. The evidence, moreover, clearly shows that the flat car was designed for the laborers to ride on to and from their work, and that the caboose was reserved for the use of the train men. Cle-Alum, known as "Nelson's Siding." "found, he was unconscious. His head was For some time previous to the 21st of April, badly cut, one of his teeth was knocked out, his the "surface gang" were taken to their work right clavicle was broken, and he was badly every morning from Cle-Alum on a gravel bruised and lacerated on other parts of his train provided for that purpose by the com- body. The collision occurred between 12:50 pany; were brought back to Cle-Alum at and 1 o'clock in the afternoon of the 21st. noon for their dinner; after dinner, usually So far there is no dispute as to the facts. The about 12:45 P. M., they were taken to their evidence as to the rate of speed at which the work again on the gravel train; and at night gravel train was running at the time of the the same train brought them back to Cle-collision was somewhat conflicting; some of Alum. On the 20th of April, 1887, the con- the witnesses putting it as high as 35 miles ductor of the gravel train received his usual an hour, and some as low as 12 miles an orders for the next day's work, directing him to work between Cle-Alum and Nelson's siding, and to look out for trains going east. On the 21st of April, another train, belonging to the same company, and consisting of a large, heavy engine, intended for mountain work, a tender, and box car, was sent out from Easton as a "wild train," with orders to flag against the gravel train working between Cle-Alum and Nelson's siding. The engine of the wild train was out of repair, and so badly disabled that it could neither start up nor stop with anything like the promptness of such an engine in good order, and at the time in question was on its way to the company's repair shops at Ellensburgh. The engine was reversing; the tender being in front. By the rules of the company "flagging against other trains" was required to be done by sending a man ahead of the flagging train three-quarters of a mile with danger signals; and the person giving the signals was required to locate himself so as to be plainly seen, and to make the signals in such a manner as to be plainly understood. The conductor of the wild train sent a flag-man ahead, but, instead of keeping the train three-quarters of a mile behind him, the train followed the flag-man so closely that there were not to exceed 300 to 500 feet between them. About midway between Cle-Alum and Nelson's siding there is a 10-degree curve, on one side of which is the Yakima river, and on the other a rocky bluff of considerable height. As the flag-man turned the western end of this curve, his own train being not more than 300 or 400 feet behind him, he saw the gravel train from Cle-Alum approaching; but owing to obstructions on the side of the track, which intcrcepted the view between the engineer of the approaching train and the flag-man, the signal could not be seen until the train was upon the flag-man, and the result was a fatal collision between the two trains. The .21p.no.1-3 That this disastrous collision was caused by the gross negligence of the conductor and engineer of the train going down to Ellensburgh, that is, the "wild_train," there can be no doubt whatever. It would be difficult to conceive of a case of more wanton, inexcusable negligence than that of which the conductor and engineer of that train were guilty. They must have known from the time they left Nelson's siding that the gravel train was then on its way from Cle-Alum, carrying the laborers to their afternoon work, and that the two trains must inevitably meet somewhere on that 6-mile stretch; yet with this knowledge, and in direct violation of the rules of the company and of ordinary prudence, they ran their train to one of the sharpest curves on the line, leaving the flag-man only 300 feet ahead of them to warn the approaching train of the danger. Exception has been taken to the instructions of the court below upon this head; and, as counsel for the plaintiff in error has laid great stress upon this exception, we give the instructions complained of: "The train with which Hulett's train collided, and which had orders to flag against Hulett's train, had no business to be where it was at the time of the collision. It should have remained at the point where the flag-man was put off and sent forward, until he had proceeded a sufficient distance forward to guard against accident; but, instead of that, the train followed behind the flag-man only a few hundred feet, and was thereby placed in a posi pose to review the authorities upon this rule, or to discuss it at any length, for we think the recent decisions of the supreme court of the United States upon this subject are decisive of this case; and as the amount involved is large enough to bring the case within the jurisdiction of that court, if we err in our decision, we have no doubt the losing party will take the case to the supreme court for review and correction. On tion where it was impossible to prevent a collision with the train which came dashing around the curve, with its load of human freight, ignorant of the impending danger." "This was gross negligence on the part of those in charge of said train, and, the facts being undisputed, it is the duty of the court to tell you so, and not to confuse you with abstract definitions of negligence which you may not understand alike, and may therefore have difficulty in applying." We think these In our view, then, of the law, the coninstructions correctly stated the law applica- ductor and engineer of the "wild train" were ble to the facts of this case. Negligence is a not fellow-servants of the laborer O'Brien, question of mingled law and fact, and, where the defendant in error in this case, or engaged there is any conflict in the evidence, the ques- in the same common employment with him. tion is submitted to the jury under proper in- One of the rules of the Northern Pacific Railstructions; but whether a given state of road Company expressly provided that "trains facts constitutes negligence in any case is a are to be run under the direction of the conquestion of law for the court. In this case, ductor, except when such direction conflicts as we have seen, the facts which are alleged with these rules, or involves risk or hazard, to constitute the negligence were established in which case the engineer will be held equalby undisputed evidence. In such a case it ly responsible." These men were not only becomes the duty of the court to declare, as engaged in totally different departments of a matter of law, whether the facts thus work, but they stood in a different relation proved do constitute negligence. 1 Shear. & to their common principal. The conductor R. Neg. §§ 52, 53, 56; Dascomb v. Railroad and engineer were agents of the corporation, Co., 27 Barb. 221; Railroad Co. v. Arm- clothed with the control and management of strong, 52 Pa. St. 282; Carter v. Towne, 103 a distinct department of the business of the Mass. 507. This the court did, in language company. They had, on this occasion, the to which, indeed, exception has been taken, entire control and management of the train, but which, though open to criticism, does and were to all intents and purposes the pernot furnish ground for the reversal of the sonal representatives of the company, for judgment below. The court, in subsequent whose negligence it is and ought to be parts of the charge, qualified and restrained responsible to the defendant in error, and the force of his words in this instruction, and other subordinates similarly employed. particularly cautioned the jury against preju- page 394, the court, in Railway Co. v. Ross, dice or passion in making up their verdict. used this language: "The conductor of a But, admitting that the collision was railway train who commands its movements, caused by the gross negligence of the con- directs when it shall start, at what station it ductor and engineer of the “wild train,” it shall stop, at what speed it shall run, and has is contended on behalf of the plaintiff in er- the general management of it, and control ror that under the rule which exempts the over the persons employed upon it, represents master from liability to a servant for injuries the company; and therefore that, for injuries caused by the negligence of a fellow-servant, resulting from his negligent acts, the compain the same common employment, the rail- ny is responsible. If such a conductor does road company cannot be held responsible to not represent the company, then the train is the defendant in error in this case. This, it operated without any representative of its seems to us, presents the only question of real difficulty in this case. If the conductor and engineer were fellow-servants of the laborers working on the track, and engaged in the same common employment, then the company is not liable to the defendant in error for the injuries he received in the collision. The general rule of law on this subject is well settled; but as it was interpreted in the Farwell Case, 4 Metc. 49, and in the other cases following the Farwell Case, its injustice long ago became so manifest, and was so frequently dwelt upon, both by text writers and courts, that in recent years the courts have shown a strong tendency to graft important limitations upon the general doctrine. In some of the states the legislatures have abolished the rule altogether; and in England the rule was carried to such an extent that in 1880 parliament felt called upon to interfere, and the result was the "employers' liability act." It is not, however, our pur owner." Railway Co. v. Ross, 112 U. S. 377, 5 Sup. Ct. Rep. 184. The case, then, stands the same as it would if the president of the company or the board of directors were on the train, commanding and directing its movements, and committing the acts of gross negligence here imputed to the conductor and engineer. No one questions that, where the master himself is guilty of negligence resulting in an injury to one of his servants, the master is responsible for such injury. An attempt has been made here to distinguish the case at bar from Railway Co. v. Ross by the circumstances that in the latter case the injury was caused by the conductor of the train on which the injured person was employed at the time, whereas in the case at bar the person whose negligence caused the injury was conductor of another train, and not of the train on which the injured person was riding. We can see no difference in principle between the cases. In each case the party guilty of negligence stood as vice-principal. He rep-sonal injury,) jurors are, ordinarily, ready resented the company, he was engaged in a enough to see these features, and need no totally different department of labor from graphic picture of the scene in the charge. that in which defendant in error was em- The court cannot too carefully avoid language ployed, and he stood in a very different rela- which may imply to the jury possible feeling, tion to their common principal. Railroad or in the most remote way (though not inCo. v. Herbert, 116 U. S. 642, 6 Sup. Ct. tended) influence them. The tendency of Rep. 590; Steam-Ship Co. v. Carey, 119 U. S. courts to refer to and comment on the evi245, 7 Sup. Ct. Rep. 1360. dence, and thus take from the jury that which is exclusively given to their keeping, cannot be too carefully avoided, or too strongly guarded against. In my judgment the choice of terms by the lower court was (that to which I have reference) unfortunate, and properly subject to criticism; while I am equally satisfied they were not so intended, and merely the result of oversight, incident to a necessarily hasty consideration, at the trial, of a very large number of instructions, as may not unfrequently happen. We will now briefly notice the other exceptions relied upon by plaintiff in error to reverse the judgment of the court below. The court below charged the jury that the burden of proof as to contributory negligence rested upon defendant. To this the defendant excepted. We think the charge of the court on this point was a correct statement of the law. It is true that in some states a different doctrine prevails; but in our view the better reason, as well as the weight of authority, is with the courts holding that the burden of proof is upon the defendant to show contributory negligence upon the part of the BAILEY et al. v. PLATTE & DENVER CANAL plaintiff in cases of this character. 1 Shear. & R. Neg. (4th Ed.) §§ 108, 109; Hough v. Railroad Co., 100 U. S. 213; Railroad Co. v. Mares, 123 U. S. 710, 721, 8 Sup. Ct. Rep. 321; Railroad Co v. Horst, 93 U. S. 291; Railroad Co. v. Gladmon, 15 Wall. 401. Exception was taken by the plaintiff in error to the admission of evidence, under the complaint, tending to show defects in the engine; and also to the admission of evidence introduced to show what defendant in error had been “working at prior to the collision, and what wages he had generally received." The object of this latter testimony was to furnish some basis for the estimation of the damages which defendant in error claimed to have suffered. We do not think the exceptions were well taken in either case. The allegations in the complaint were broad enough to cover such testimony; and, even if they were not, this would furnish no ground of exception, in view of section 105 of our Code. We find no error in the record, and the judgment of the district court is therefore affirined. LANGFORD, J., concurred. & MILLING Co. (12 Colo. 230) (Supreme Court of Colorado. Feb. 15, 1889.) CORPORATIONS-EASEMENTS. Under Gen. St. Colo. § 24), empowering a corporation to convey its property; and sections 341, 342, by which its property, on dissolution, passes way of a ditch company does not cease with the to its directors, instead of reverting,-the right of expiration of its charter, but, having previously been conveyed, its grantee may thereafter continue the use of the same. DE FRANCE, C., dissenting. Commissioners' decision. Appeal from district court, Arapahoe county. Appellants were plaintiffs below, and for cause of action against the defendant alleged that on the 1st day of February, 1884, and at the time of bringing this action, they were the owners in fee-simple of lots 21 to 32, inclusive, in block 9, in Hunt's addition to the city of Denver, in the county of Arapahoe and state of Colorado; that at the time plaintiffs acquired title to said lots the Platte & Denver Ditch Company was operating its ditch through all of said lots, near the center thereof; that said Platte & Denver Ditch Company became a body corporate on the 24th day of October, 1864, and, in the fall and winter of said year and the year following, constructed said ditch through the N. E. of section 4, in township 4 S., of range 68 W.; ALLYN, J., (dissenting.) I do not concur that said quarter section of land was prein the opinion filed herein. While the re-empted by A. Cameron Hunt on the 13th sult may be justified by the facts of the par- day of October, 1863, and that a patent was ticular case, I cannot approve of certain of issued to said Hunt therefor, February 15, the instructions as set out in the opinion. I 1866, without any reservation of any kind; doubt greatly the propriety of the court as- that said Hunt conveyed said lands in fee to suming to take the question of negligence John M. Clark and Julius Hotchkiss; and from the jury. The case should be very ex- that said Clark and Hotchkiss caused a part ceptional where this may be done at all. And of said lands to be duly platted and recorded, in this case the result of this was to ignore pursuant the laws of Colorado, as “Hunt's all explanation offered and excuse presented Addition to the City of Denver," which plat as insufficient, on the sufficiency of which I includes the said lots of plaintiffs; that said feel the jury may much more safely pass than ditch company never acquired from Hunt, or the court. But the language and manner any of his grantees, any grant of the right of of the instructions (being the instructions way through said lands, other than a parol first quoted in the opinion) are certainly sub-license from Hunt, revocable at pleasure; ject to criticism. In this class of cases, (per-that but for the said ditch said lots would be of the cash value of $6,000, but because of said | vested rights to and in said ditch, and the obstruction are worth no more than $2,000; water flowing therein, long prior in point of that the defendant became a body corporate time, and superior in point of law, to any on the 3d day of October, 1884, for the de- rights of the plaintiffs to or in said lots, and clared purpose of constructing, maintaining, that plaintiffs took said lots subject to the and keeping up, repairing, and keeping in said vested rights of said lessees; that the order a ditch or canal, describing the same right of way for said ditch was acquired by particularly, and as running all the way, as said Platte & Denver Ditch Company long near as may be, to the line of the Platte & before the plaintiffs had any right, title, or Denver ditch; that the incorporators in the interest in or to any of said lots; and that said said Platte & Denver Ditch Company and company had full power and lawful author the incorporators and stockholders in the de-ity to sell, convey, transfer, and dispose of its fendant corporation are not identical, but property, right of way, easements, and apdifferent persons; that defendant has taken purtenances to the defendant. possession of said ditch for its entire length, Plaintiffs replied to the first defense, and and pretends to be the owner thereof, and filed a general demurrer to the second dethreatens to and will maintain and operate fense. The demurrer was overruled, and, the same through plaintiffs' lots for the full plaintiffs electing to stand upon their deperiod of its existence, and that, too, with- murrer, judgment was rendered that plainout compensation to the plaintiffs; that de- tiffs take nothing by their suit. Plaintiffs fendant has never commenced any proceed-|appealed, and assign for error-First, that ings to condemn the right of way through the court erred in overruling the demurrer to said lots, or paid plaintiffs any compensation the second defense in the defendant's answer; therefor; that the maintenance and operation second, that the court erred in rendering of said ditch will render said lots valueless, judgment against the plaintiffs, when there and will result in irreparable damage there was an issue raised by the first defense and to. Prayed that defendant be restrained from undetermined. maintaining or operating said ditch during S. E. Browne and T. G. Putnam, for apthe pendency of this suit, and until the fur-pellants. Markham & Dillon, for appellee. ther order of the court, unless it proceed, under the laws of this state, to condemn and pay for the right of way through said lots with all convenient speed; and for the recovery of the sum of $4,000 damages. RISING, C., (after stating the facts as above.) It is contended by appellants that the Platté & Denver Ditch Company never acquired a right of way for their ditch through the lands The defendant answered setting up two now known as "Hunt's Addition" for a defenses. The second defense alleged that longer period of time than 20 years from the said Platte & Denver Ditch Company, on or date of the incorporation of said company, about the 3d day of October, 1884, for a val- and that the sale of all its property and rights uable consideration, sold and conveyed all of by said company to the appellee did not, and its property, right of way, rights, easements, could not, convey to appellee any right of and appurtenances, in connection with the way through said lands, to be held and used said ditch, to the defendant; that said ditch after the expiration of said 20 years, that bewas constructed for the purpose of furnish- ing the period prescribed by the statute for ing water for milling, manufacturing, and the existence of said company. The absolute irrigation, and at a cost of $25,000; that said right of said company to build said ditch Platte & Denver Ditch Company lawfully ac- through said lands, and to maintain the same quired the right of way through the lands until the expiration of its charter, is not mentioned in the complaint; that said com- questioned in the argument for appellants, pany, long prior to the expiration of its char- but it is contended that the property rights ter, leased the water rights and powers of of said company in said right of way were said ditch to several persons for milling pur-limited to the use of said lands for a right of poses by perpetual lease, and that such per- way for said 20 years, and that it could not sons or their assigns have built and construct- convey to defendant a greater property right ed large flouring-mills, to be operated by such than it possessed. The right of a corporation water-powers, at an aggregate cost and ex- to convey its property is not questioned. That pense of $120,000, and that the water from the property rights of said ditch company in said ditch has been used for many years last the right of way for said ditch extended bepast for the purpose of operating the mach-yond the period of its existence, as limited inery in said mills, and cannot be dispensed by statute, is questioned, and this question is with, except at a ruinous loss to the owners the only one raised by counsel for appellants and operators of said mills; that one of the chief considerations for said sale and conveyance by said company to defendant was that defendant was to keep good said contracts of lease of water-powers to the owners and operators of said flouring-mills, and for that purpose to keep said ditch in repair; that said lessee of said water-powers and water-rights had, for the purposes aforesaid, acquired in their argument. To determine this question, we must ascertain how and by what right said company acquired a right of way for its ditch. At the time the right of way through the lands now known as "Hunt's Addition" was taken by said company, the title to said lands was in the United States; but A. Cameron Hunt had an existing pre-emption claim thereon, and for which taking by said com- upon prayed an appeal to this court, and their pany said Hunt gave a license. The right, appeal-bond was duly filed and approved. so acquired, to occupy said premises for a Nearly a month thereafter, defendants filed right of way for said ditch, became property | their motion in arrest of the judgment so renof the company, and, under the statute then dered, upon grounds in substance as follows: and now in force, the company could sell and (1) That the justice had no jurisdiction of dispose of it. Laws 1864, p. 61, § 43; Gen. the subject-matter of the action for the reaSt. § 240. And upon dissolution of the cor- son that the record and proceedings of the poration, upon the expiration of its charter, justice did not state the nature of the debt such property would not revert to the owner sued for, and that for the same reason the of the servient estate, but would pass to and county court had no jurisdiction on appeal; rest in the board of directors or trustees of (2) that the judgment was in excess of the the corporation, or the managers of the cor- amount sued for, as appearing on the jusporate affairs, by whatever name known, act- tice's docket; (3) that a justice of the peace ing last before the time of such dissolution. has no jurisdiction of a cause where a guardGen. St. §§ 341, 342. From these statutes ian or minor is plaintiff, and that the county we see that the property rights acquired by court cannot acquire jurisdiction of such a the ditch company are the same as when such cause by appeal; (4) that the suit was not rights are acquired by a person, and that the in the name of the minor by his guardian. duration of such right no more depends upon The assignments of error are substantially the life of the corporation than upon the life like the motion in arrest of judgment. of the person. It follows, therefore, that the E. P. Harmon and W. W. Cover, for apright acquired by the company to a right of pellants. J. F. Shafroth, for appellee. way over appellants' lots was not dependent upon, or limited by, the life of the corpora- ELLIOTT, J., (after stating the facts as tion. Appellants' contention is not well above.) Were the question res nova in this founded, and the judgment should be af-state, there would be ground for contending firmed. that the statute (Gen. St. § 2061) requiring the justice to record in his docket "the STALLCUP, C., concurs. DE FRANCE, C., amount and nature of the debt sued for" was dissents PER CURIAM. For the reasons stated in the foregoing opinion the judgment is affirmed ELLIOTT, J., not sitting. (12 Colo. 352) mandatory, and that its omission was a fatal jurisdictional defect. The doctrine announced in Home v. Duff, 5 Colo. 574, and Smith v. Aurich, 6 Colo. 388, relating to courts of record, bears a close analogy to that contended for by the appellants in this action, but the decisions as to courts not of record are the other way; and it is held that the omission of the justice to record the aforesaid matters in his docket may be supplemented by proofs aliunde. It is true that, if the justice has no jurisdiction over the subject-matter of a cause, the county court ac1. The omission of a justice of the peace to record quires none by virtue of an ex parte appeal, in his docket the "amount and nature of the debt" where the appellee insists in apt time upon sued for in an action, as required by Gen. St. Colo. his objection against the jurisdiction; but it § 2061, is not a fatal jurisdictional defect; but on an appeal to the county court where both parties is different where the parties voluntarily apappear and go to trial on the merits, the jurisdic- pear in the appellate court having jurisdiction of the justice may be shown by evidence out-tion of the subject-matter, and go to trial on BEHYMER et al. . NORDLOH. (Supreme Court of Colorado. March 8, 1889.) JUSTICE OF THE PEACE-JURISDICTION. side the record. 2. Where the evidence is not preserved by a bill of exceptions, it will be presumed that the proofs before the county court were sufficient to sustain its jurisdiction on appeal. Appeal from county court, Arapahoe county. the merits. It may be determined by the evidence on the trial in the appellate court whether or not the justice has jurisdiction. Liss v. Wilcoxen, 2 Colo. 85; Lyon v. Washburn, 3 Colo. 201; Downing v. Florer, 4 Colo. 210; Smith v. District Court, Id. 235. The evidence on the trial of this cause in the This action was commenced before a justice of the peace in April, 1883, by the issu-county court might have been preserved by ance and service of a summons in the statu- bill of exceptions, and then we could easily tory form. The justice of the peace did not determine whether the action was of such a record in his docket the nature of the debt nature as to be within the jurisdiction of a sued for, but did note that the amount was justice of the peace. By the same means we $80. At the time fixed for trial, plaintiff, might determine the other questions in confailing to appear, was nonsuited, and there- troversy, to-wit: Whether plaintiff sued as upon the plaintiff appealed to the county guardian for a demand due to a minor, or court. Both parties appeared in the county whether the words "guardian of the estate of court, and went to trial without objection, George Marty," immediately following the and plaintiff recovered judgment for $93.65. the name of the plaintiff in the summons, This was nearly two years after the com- were merely descriptio persona; also, whethmencement of the action. Defendants there-er the demand sued for was an interest-bear |