In Georgia Pac. R. R. Co. v. Propst, 83 Ala. 518, it was decided that "a railroad company is liable, as principal, for injuries received by a person who was employed by the conductor of a freight train as brakeman during the trip, while acting under the orders of the conductor, in coupling cars; but not if the person so acting and injured was only a passenger, who was not employed by the conductor, nor under any obligation to obey his orders."

In the opinion, rendered by Chief Justice Stone, it was said that "so far as this count informs us, the plaintiff was a mere passenger on the train; and so far as the right to control or direct the movements of the plaintiff is shown in this count, the conductor would have had as much authority over any other passenger, or even a by-stander, as he had over him. Such order or direction, as averred, is entirely without the routine of the conductor's duties."

In Georgia Pac. R. R. Co. v. Propst, 85 Ala. 203, the conductor addressed the plaintiff as follows: "Will, come here, and make this coupling for me"; and the plaintiff was injured in conforming to this order or request. The court said: "Such an order or direction could not fasten a liability on the railroad corporation." See also Gilliam v. South etc. R. R. Co., 70 Ala. 268; Howard v. Kansas City etc. R. R. Co., 41 Kan. 403.

We are referred to Indianapolis etc. R. R. Co. v. Horst, 93 U. S. 291, as decisive in favor of the recovery of the plaintiff. That case decides that a shipper accompanying his stock on the train is entitled to the rights of a passenger, but in many particulars widely differs from this. In that case the shipper was commanded by the conductor to get out of the caboose and go on top of the train, because the caboose was about to be detached. The shipper had no choice but to obey, or leave his stock to go forward without any one to accompany or take care of them. In this case there was a caboose accompanying the train, where the plaintiff might have ridden in safety. He did not go upon the top of the train to accompany his stock, or to take care of them; he went, as before stated, merely to comply with the order or request of the conductor to assist in signaling the train. The other cases referred to by the plaintiff are not contrary, we think, to the law as before declared.

In answer to one of the questions, the jury stated that the plaintiff was not "guilty of negligence in going on top of the

train at Eudora just prior to the accident." This finding of the jury, however, is not conclusive. If the plaintiff's evidence, with all the legitimate inferences which a jury might reasonably draw from it, is insufficient to sustain a verdict in his favor, so that a verdict for the plaintiff, if one should be returned, would be set aside, the court may properly direct a verdict for the defendant without submitting the evidence to the jury. In Atchison etc. R. R. Co. v. Plunkett, 25 Kan. 188, the jury found that Plunkett, at the time of his injuries, was in the exercise of reasonable and ordinary care. This finding was not considered sufficient to authorize the verdict, in view of the testimony and the other findings. Mr. Justice Valentine in that case said: "If the findings in detail contradict the general findings, we may order the judgment to be rendered in accordance with the findings in detail, and wholly ignore the general findings. For instance, where a question of negligence arises in the case, the jury cannot be allowed to say conclusively, after finding certain special facts, that these facts constitute negligence, when in fact and manifestly they do not constitute negligence."

Finally, it is claimed that although Lindley might have been guilty of contributory negligence, he is entitled to recover, because the conductor and engineer of the railroad company were guilty of gross negligence. Neither the findings of the jury nor the testimony introduced in the case establishes that the company or any employee was guilty of such gross negligence as amouted to wantonness: Southern Kan. R'y Co. v. Rice, 38 Kan. 398; 5 Am. St. Rep. 766; Kansas Pac. R'y Co. v. Whipple, 39 Kan. 531. Allen, the engineer, testified that the fireman signaled him to stop. Bradshaw, the fireman, testified that Guy, the head brakeman, signaled him. The jury found that the engineer did not see the plaintiff on top of the train just prior to the accident; therefore, he was not actuated either by gross negligence or malice toward him or any one else. The conductor did not give the engineer the signal to move forward. The jury, in returning their answers about the negligence of the employees of the train, found as follows:

"Q. Were any of the men who were running or operating the train guilty of any negligence at the time of the accident? If yes, in what did it consist? A. Yes; the hurried manner in which the employees of the train managed the same.

"Q. Did the engineer who was operating the engine at the

time of the accident to the plaintiff and just prior thereto, use ordinary care in handling the engine? A. No."

These answers do not tend to show malice or gross negligence.

The judgment of the district court will be reversed, and the cause remanded for a new trial.

CONTRIBUTORY NEGLIGENCE. One who takes an exposed position upon a train not designed for the use of passengers assumes the special perils of that position, whether he takes it by license, non-interference, or express permis sion of the conductor: Files v. Boston etc. R. R. Co., 149 Mass. 204; 14 Am. St. Rep. 411, and note. Compare New York etc. B. R. Co. v. Enches, 127 Pa. St. 316; 14 Am. St. Rep. 848, and note.

OFFICIAL BONDS - EVIDENCE OF OFFICER'S INDEBTEDNESS. — In a suit on township treasurer's official bond, his books are proper evidence to show his indebtedness to the township, and a supervisor who has participated in a settlement with him, and has examined his books and vouchers, may also testify as to the amount thus found due. OFFICIAL BONDS RELEASE OF TOWNSHIP Officer and SURETIES. - Where, upon a settlement with a township treasurer, the amount found due from him to the township is neither disputed nor doubtful, the township board has no authority to release him or the sureties on his official bond from his and their legal obligation to pay the amount due, in the absence of any well-grounded apprehension as to the legal liability of the bondsmen for the debt.

JURY AND JURORS-RIGHT TO ASCERTAIN FOR WHICH PARTY JUROR WILL DECIDE, IF THE EVIDENCE IS EQUALLY BALANCED. When selecting a jury,

a juror may be asked which side he would be inclined to favor, if at the close of the trial the evidence were equally balanced between the parties, to ascertain his bias, and for the purpose of exercising a peremptory challenge if necessary.

ASSUMPSIT on a town treasurer's bond. Judgment for plaintiff. Defendants bring error.

Main J. Connine and A. A. Crane, for the appellants.

A. D. Marshall, and T. A. E. and J. C. Weadock, for the plaintiff.

CHAMPLIN, J. Adelbert Kirsten was township treasurer of the town of Otsego Lake. To qualify himself to act, he gave to the township a bond, as required by law, with Hyman Joseph and De Witt Wilson as sureties.

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At the close of his official term the township board examined and audited his accounts as such treasurer, and found that he was indebted to the township in the sum of $1,037.71. The township board immediately notified the sureties of this fact, and that the township would hold them responsible on the treasurer's bond.

The board commenced their examination on April 15, 1887, and concluded it on the 18th. On the 16th Kirsten secured his sureties by a bill of sale on his stock of goods. The money found due the township not having been paid, this action was brought upon the township treasurer's bond.

The surety, Hyman Joseph, and the principal, Adelbert Kirsten, defend on the ground that, after the amount of the defalcation was ascertained, the township board settled with the sureties, and took their several and respective promissory notes in full of all claims against them. These defendants appeared by separate attorneys, and pleaded separately.

On the trial of the cause, the plaintiff introduced the books of the township treasurer, from which it appeared that he was indebted to the town in the sum stated. There does not appear to have been any conflict in the testimony respecting this fact, and it may be regarded as undisputed. It was proved by the record and by the testimony of the witnesses who examined the accounts.

This testimony was competent, and there was no error in overruling the objections of defendant's counsel to the introduction of the township treasurer's books in evidence, nor in permitting the supervisor, who was a member of the township board, and who took part in the examination of the books and vouchers, to answer the question, "What sum was found to be due from Kirsten to the township?"

The township board and Kirsten met for the purpose of looking over his accounts, and to ascertain how much, if any, was due to the township, and there was no valid obligation to his stating what sum they found to be due.

After the plaintiff rested its case, the counsel for defendants, to maintain the issue on their part, offered in evidence the record of the proceedings of the plaintiff township board, as recorded on pages 102 and 103 of their record, being the proceedings of a meeting of that board held on April 20, 1887, for the purpose of showing that on that day the said township board settled all claims of the township against defendant. Adelbert Kirsten, as its treasurer, and against defendants