and constructed its railroad across it. On the trial of the appeal the award of damages was largely increased This sum was not paid, but the defendant continued to occupy the land condemned, and to operate its railroad across it. After a number of months' delay and neglect on the part of the company to pay the award, the plaintiff tore up one of the rails in the track, and placed a post with boards nailed across it between the rails. His purpose in tearing up the rail and placing the obstruction on the track was to assert his right to the possession of the land, and he took precautions to prevent accidents by giving notice to the company. Thereupon the employés of the company caused his arrest. Held, in an action to recover damages for false imprisonment and malicious arrest, that it was error for the court to charge that the arrest was made without probable cause, and that the court should have charged the reverse,-that there was probable cause.

(Syllabus by the Court.)

Error from district court, Pratt county; W. O. Bashore, Judge.

Action by W. J. Quinn against the Wichita & Western Railway Company. From a judgment for plaintiff, defendant brings error. Reversed.

This action was commenced by W. J. Quinn against the Kingman, Pratt & Western Railroad Company to recover damages for a malicious arrest unlawfully made. The plaintiff was in the possession of a half section of land in Richland township, Pratt county, the title to one quarter section of which was in the name of his wife, and the other in his own name. In the summer of 1886, the Kingman, Pratt & Western Railroad Company caused a right of way for its railroad to be condemned across the plaintiff's land. From the award of the commissioners the plaintiff appealed to the district court, where he obtained an award of $1,650 as his damages,-a sum largely in excess of that allowed by the commissioners. While the appeal was pending, the railroad company ad constructed its road across the plaintiff's land. The company took time to make a case for the supreme court, but no petition in error was ever filed to reverse the judgment. The company continued to operate the railroad, and did not pay the plaintiff his damages. Afterwards he instituted proceedings to enjoin the operation of the railroad across his land. A temporary order of injunction having been obtained, proceedings were instituted before the judge of the district court to punish the defendant for violating the injunction. The order was held void, and the injunction dissolved on the 27th of June, 1887. On the 16th of July, 1887, the plaintiff's damages still remaining unpaid, he took a rail out of the track of the railroad where it crossed his land, and set a post up near the center of the track, across which he nailed boards, for the purpose of preventing the railroad company from running its trains across his land. Notice was given and precautions were taken to prevent accident to any train passing along the road. The road master, learning what had been

The

done, took hand cars, and in company with the section boss and a number of men went to the place where the rail had been removed, for the purpose of repairing the track. He found the plaintiff there, who objected to his replacing the rail. The plaintiff asserted his right to prevent the company from crossing what he claimed to be his land, because his damages had not been paid. After some controversy, the road master arrested him, and took him to Cullison. A warrant for his arrest was sworn out by the section foreman, but the complaint was sworn to and the warrant issued in Banner township by a justice of the peace of Richland township. After the arrest an agreement was entered into between the plaintiff and the attorney for the railroad company to the ef fect that the plaintiff should not interfere with the operation of the company's trains, and that the damages for the right of way should be paid to him within a week. prosecution was thereupon dismissed, and the plaintiff released from custody. On the 27th of July, 1887, this action was brought against the Kingman, Pratt & Western Railroad Company to recover damages for the arrest. A judgment was obtained, to reverse which the company prosecuted proceedings in error in this court. While the case was pending here, and on the 18th of July, 1889, articles of consolidation were entered into by the Kingman, Pratt & Western Railroad Company and the Wichita & Western Railroad Company, and the name of the Wichita & Western Railway Company was adopted for the new company. On the 6th of May, 1890, the Wichita & Western Railway Company was, on its own motion, substituted as plaintiff in error in this court. Afterwards the case was heard, the judgment of the district court reversed, and the cause remanded for a new trial. 25 Pac. 1068. No proceedings were had in the district court prior to the reversal of the judgment for the purpose of reviving the judgment against the consolidated company. By leave of court, an amended petition was afterwards filed alleging the consolidation, that the Wichita & Western Railway Company had succeeded to all the property of the Kingman, Pratt & Western Railroad Company, and had assumed all its debts and liabilities. The company objected to the filing of this amended and supplemental petition on the ground that no order had ever been made substituting the Wichita & Western Railway Company as defendant. The objection being overruled, and the amended petition filed, the defendant answered with a general denial. The case was tried to a jury, resulting in a verdict and judgment in favor of the plaintiff for $2,600. This proceeding is prosecuted to reverse the judgment.

E. D. Kenna, A. A. Hurd, and F. W. Bentley, for plaintiff in error. J. C. Ellis and E. A. Austin, for defendant in error.

The

ALLEN, J. (after stating the facts). first proposition urged is that more than one year elapsed after the consolidation of the two railroad companies without any proceeding in the district court to revive the judgment against the new corporation. It is insisted that the cases of Railway Co. v. Smith, 40 Kan. 192, 19 Pac. 636, Cunkle v. Railroad Co., 54 Kan. 194, 40 Pac. 184, and Railroad Co. v. Butts, 55 Kan. 660, 41 Pac. 948, are decisive of this case, and that under these authorities the action in the district court was dead, and could not be revived without the consent of the railway company. Coun

sel for the defendant in error has argued at length, both orally and in the brief, against the soundness of the rule declared in these cases, but we are not disposed to re-examine the question. This case, however, is different from either of those cited. The new company voluntarily took the place of the old in this court. The only purpose of the proceeding here was to reverse a judgment for the payment of which the new company was liable. The error complained of here, and for which the judgment of the district court was reversed, was in the refusal of the trial court to grant the defendant a new trial. The new company was, therefore, after being substituted as plaintiff in error here, prosecuting an action in this court to obtain a new trial in the district court. This court, at its instance, reversed the judgment of the trial court, and granted it the new trial it desired. The mandate of this court thereupon issued to the lower court commanding it to grant the new trial, not to the old, dead company, but to the new, living company, which had taken its place. Can it be that, after having asked and obtained through the command of this court a new trial of the case, it may still urge that it has never consented to become a party in that court? Can it be a party for the purpose of vacating and setting aside the judgment where the plaintiff's cause of action still remains, and where this court merely grants a new trial, and yet claim that it is not a party for the purpose of any further proceeding in that court? We think it must take the burdens and benefits of the judg ment obtained here together; that it must follow into the district court the mandate sent there at its instance, and must abide the result of a new trial; that the substitution under these circumstances must be treated as having been made with the consent of the defendant.

In the fourth instruction given by the court, and excepted to by the defendant, the jury were told that the facts proven in this case did not constitute probable cause for the plaintiff's arrest. Section 104 of the act concerning crimes and punishments, reads: "Any person who shall wilfully throw down, break, remove, displace, cut, split, burn, or in any manner destroy or injure any of the rails, sills, switches, cross-ties, piles, bridges,

culverts, viaducts, parapets, or any other fixture of any railroad, or shall wilfully injure or destroy any embankment of any railroad within this state, now constructed or in process of construction, or of any railroad which shall hereafter be constructed, or be in process of construction in this state, shall, on conviction thereof, be punished by confinement and hard labor in the penitentiary not less than one nor more than three years." Gen. St. 1889, par. 2238. According to his own testimony, the plaintiff willfully removed a rail from the track of the railroad constructed and operated over his land. He also willfully placed an obstruction on the track, which is made a crime by section 103 of the same act. His only justification for his acts was that he owned the land, and that, as the railroad company had failed to pay him the damages he had been awarded, he had a right to resume possession of it. Whatever the rights of the defendant might have been in an action to recover the land occupied by the railroad company, he had no right to take the law into his own hands, and proceed to tear up the railroad track. It might be that on a trial the fact that he acted in good faith under the claim of right might have shielded him from punishment as for a crime under the section of the statute quoted. But, as his acts constituted a crime within the letter of the statute, there was probable cause for his arrest, and the instruction given was erroneous. Railroad Co. v. Harris, 122 U. S. 597, 7 Sup. Ct. 1286; State v. Johns (Mo. Sup.) 27 S. W. 1115; Clifton v. State, 73 Ala. 473.

Other claims of error are discussed in the brief, but, as the same questions may not arise again, we deem it unnecessary to discuss them in detail. The one already considered compels a reversal of the judgment. All the justices concurring.

1. The negligence of a husband in driving with his wife in a vehicle over a defective highway, whereby injury occurs to the wife, cannot be imputed to her in ba of an action for damages against the township permitting such defects, where it is not shown that the husband was under the direction and control of the wife at the time.

2. The statute (section 1, c. 237, Laws 1887; paragraph 7134, Gen. St. 1889), giving a right of action against counties and townships in favor of persons who, without contributing negligence, sustain damages by reason of defective bridges or highways, changes neither the burden of pleading or proof, so as to require a plaintiff suing for damages for injuries caused by such defects to allege or prove nonnegligence on his part.

3. In order to constitute a public road a "defective highway" within the meaning of the statute above cited, it is not necessary that it shall first be improved, and put in condition for

travel, and then allowed to become defective through lack of repair.

4. The evidence in this case does not show the damages allowed ($5,165) to be excessive.

(Syllabus by the Court.)

It was contended in the court below that the evidence showed the husband to have been guilty of contributory negligence in driving over a highway known by him to be

A. Randolph, Judge.

Action by Elizabeth A. Telfer against Reading township. From a judgment for plaintiff, defendant brings error. Affirmed.

Chas. B. Graves, H. D. Dickson, and I. E. Lambert, for plaintiff in error. E. W. Cunningham and W. T. McCarty, for defendant in error.

DOSTER, C. J. Mrs. Elizabeth A. Telfer and her husband lived in Reading township, Lyon county. July 19, 1892, they started to visit Mrs. Telfer's mother, some miles distant, in a spring wagon. Mr. Telfer acted as driver. The highway at a certain point crossed a ravine with steep and rocky banks, which rendered it a difficult and dangerous place. In endeavoring to cross, the wagon was "tipped over" on account of the roughness and difficulty of the descent of one of the banks, and Mrs. Telfer was severely injured thereby. The defect in the highway causing the accident was known throughout the neighborhood, and, being on an open prairie, most of the travel had avoided it by going around some distance on either side; but a few weeks previous to the accident the owners of the adjacent lands had fenced the same up, compelling travelers to pursue the line of the highway, and thus cross the place in question, and a short time before the accident the husband and wife had crossed the place where it occurred. The township trustee had actual knowledge of the defect in the highway at that point, and contemplated putting it presently in better condition. The plaintiff, Mrs. Telfer, brought suit against the township in which the accident occurred to recover for her injuries, under the statute (section 1, c. 237, Sess. Laws 1887; paragraph 7134, Gen. St. 1889), which reads as follows: "Any person who shall without contributing negligence on his part sustain damages by reason of any defective bridge, culvert, or highway, may recover such damages from the county or township wherein such defective bridge, culvert, or highway is located, as hereinafter provided; that is to say, such recovery may be from the county when such damage was caused by a defective bridge constructed wholly or partially by such county, and when the chairman of the board of county commissioners of such county shall have had notice of such defect for at least five days prior to the time when such damage was sustained; and in other cases such recovery may be from the township where the trustee of such township shall have had like notice of such defect." A verdict was returned and judgment rendered in her favor, from which the township prosecutes this proceeding in error.

ligence was imputable to the wife, and, being so, barred a recovery by her; and a request for instructions to the jury predicated upon this view of the law was preferred, and refused by the court. The first claim of error arises upon this refusal. This claim is rested upon an assumed or implied agency of the husband in driving the vehicle under the direction and command of the wife, or as a participant with her in a joint venture or enterprise. Before proceeding to the consid eration of this claim of error, it may be well to state that no charge of negligence is made against the wife herself, either in the briefs or oral argument of counsel, other than the legal imputation to her of the husband's negligence under the facts proved. The question of her personal negligence in contributing to the injury was submitted to the jury under instructions of which no complaint is made, and was found in her favor. It is claimed that the visit to the mother was undertaken by the husband at the solicitation of his wife; that it was her visit, and not his; and that, if such does not appear as a fact from the evidence, the least that can be said is that it was a joint venture by both husband and wife; and from each of these alternative propositions of fact a deduction of agency in the husband for the wife is drawn, and from thence the legal imputation of negligence is derived. The question is, therefore, squarely presented whether the contributory negligence of the husband in driving his wife over a defective highway can be imputed to her in bar of an action against the person principally or primarily responsible for the injury. Our judgment is that it cannot; but the authorities, it may as well be admitted, are conflicting, irreconcilably so, and are numerous in support of each side of the contention. That the principal cannot recover for injuries to which the negligence of his agent and a third person have contributed, is settled beyond dispute, both upon reason and authority. The difficult question is, under what circumstances can an agency be implied or said to exist? The plaintiff in error in this case would imply it, as some of the courts have done, from the relation of husband and wife. Yahn v. City of Ottumwa, 60 Iowa, 429, 15 N. W. 257; Carlisle v. Town of Sheldon, 38 Vt. 440; Prideaux v. City of Mineral Point, 43 Wis. 513. The defendant in error contends that such cannot be done. Hoag v. Railroad Co., 111 N. Y. 199, 18 N. E. 648; Railway Co. v. Creek (Ind. Sup.) 29 N. E. 481; Railroad Co. v. Spilker, 134 Ind. 380, 33 N. E. 280, and 34 N. E. 218; Railway Co. v. McIntosh (Ind. Sup.) 38 N. E. 476; Flori v. City of St. Louis, 3 Mo. App. 231. The fact, if it be such, that the journey was undertaken at the solicitation

of the wife, possesses no weight. It cannot be that one who merely secures from another the favor of transportation in a private vehicle takes upon herself or himself all risk of the driver's negligence en route. To so hold would minimize the problem for consideration into a mere question of fact as to which of the travelers solicited the other, the one the favor of a journey, or the other the pleasure of company. If the one who asks to be carried hence is the master, so, on the other hand, the one who invites to a ride is also the master. If the maiden who begs of her escort a carriage drive is the mistress throughout the journey, so the gallant who invites his lady would likewise be the master until her safe return. It may be conceded that persons of mutual purpose and equal privileges of direction and control, who travel in the same vehicle, in pursuit of a common object, are the agents of each other in such a sense that the negligent act of one in furtherance of the common scheme is imputable to all; but such mutuality or equality of direction and control does not exist in the case of a journey taken by husband and wife. Say what we may in advocacy of the civil and political equality of the sexes, there are conditions of inequality between the same in other respects which the law recognizes, and out of which grow differing rights and liabilities. One of these is instanced in the case of a journey by husband and wife, such as was undertaken by the parties in question. By the universal sense of mankind, a privilege of management, a superiority of control, a right of mastery on such occasions is accorded to the husband, which forbids the idea of a co-ordinate authority, much less a supremacy of command in the wife. His physical strength and dexterity are greater; his knowledge, judgment, and discretion assumed to be greater; all sentiments and instincts of manhood and chivalry impose upon him the obligation to care for and protect his weaker and confiding companion; and all these justify the assumption by him of the labors and responsibilities of the journey, with their accompanying rights of direction and control. The special facts of cases may show the wife to be the controlling spirit, the active and responsible party, and the husband an agent, or even a mere passenger; but in cases where such facts are not shown the court must presume, in accordance with the ordinary-almost universal-experience of mankind, that the husband assumed and was allowed the responsible management of the journey. A review of the opposing decisions upon this question for the purpose of exhibiting the reasoning of the same, and approving that of some and combating that of others, would be profitless, and hence is not undertaken. It may be remarked, however, that the doctrine of imputable negligence, except when countenanced by statute, is a fiction of the law which finds small

favor with the courts, and has been very infrequently applied in our own.

Complaint is made that the court erred in instructing the jury that the burden of proof was upon defendant to establish contributory negligence upon the part of the plaintiff. The rule in ordinary cases is that contributory negligence is a defense to be alleged and proved; but it is claimed that the statute above quoted changes the rule of pleading, and shifts the burden of proof, as to cases falling within its terms. We do not assent to this view. While the statute gives a right of action to "persons who shall, without contributing negligence on their part, sustain damages," etc., yet its object was not to declare a rule either of pleading or of evidence, but to declare a rule of right. The common law is that persons who, without contributing negligence on their part, sustain damages by reason of the negligence of others, are entitled to redress for their injuries; but because of the nature of qua si corporations, such as counties and townships, whose functions and purposes are entirely public, they have been held to be without the rule of compulsion to respond for the negligent acts of their officers. Commissioners v. Riggs, 24 Kan. 255; Eikenberry v. Bazar Tp., 22 Kan. 556. This defect in the common law was remedied by the enactment of the statute in question, and the only effect of such statute was to bring a class of cases within the operation of the common law of negligence which hitherto had been without. This statute simply declared as to counties and townships what has always been the law with respect to cities, private corporations, and individuals. A contrary view has been held in Walker v. Chester Co., 40 S. C. 342, 18 S. E. 936. But it does not meet our approval.

It is also claimed that the defect in the highway where the plaintiff received her injuries was not a "defective highway," within the meaning of the statute; that, to constitute it such, the road should first have been improved at the point in question, and then allowed to become defective through lack of repair. It is thought that the statute (section 5, c. 168, Laws 1885; paragraph 7133, Gen. St. 1889) re-enforces this view, because it requires township officers "to keep roads in repair, and improve them as far as practicable," and because "permanent roads" need only be constructed "whenever the available means will permit." We cannot assent to this view. A laid-out and opened road is none the less a public highway because not yet put in condition for travel. The statute which gives the right of action contains no exceptions to its terms, and it and the one which provides for the improvement and repair of public roads relate to such widely differing subjects that they cannot be construed in pari materia. Besides, the statute which gives the right

1. The right of the plaintiff to dismiss his action without prejudice at any time before the final submission of the same is absolute, and the denial of his application to so dismiss is prejudicial error.

2. Where a court finds that a party to an action has been dead for a period so long that the action cannot be revived without the consent of parties, which is not given, the action abates, and should be dismissed at the costs of plaintiff. In such a case a judgment barring and canceling the cause of action is erroneous. (Syllabus by the Court.)

Error from district court, Kingman county; W. A. Bashore, Judge.

Action by the New Hampshire Banking Company against Hiram L. Ball and Eva Ball. From a refusal of leave to dismiss, plaintiff brings error. Reversed.

Adams & Adams and Hay & Hay, for plaintiff in error. C. W. Fairchild and W. C. Tetirick, for defendants in error.

JOHNSTON, J. An action was brought by the New Hampshire Banking Company against Hiram L. Ball and Eva Ball to recover upon a promissory note given by them for $2,000, and to foreclose a mortgage which they had given as security for the payment of the note. Other persons who claimed an interest in the real estate were made parties. Within four months thereafter, Hiram L. Ball, who held the legal title to the mortgaged land, died, and left surviving him his wife and three sons. Within a year from his death a motion was made to revive the action against the administrator of the estate and the heirs, and the motion was allowed. More than a year after the death of Hiram L. Ball the heirs and administrator challenged the validity of the revivor upon the ground that the attorney who appeared to have consented to a revivor for them was without authority, and did not in fact consent to a revivor. Before the question was determined, or a trial upon the merits had been reached, the plaintiff offered and undertook to dismiss the action without prej

udice. The court, however, denied the application to dismiss without prejudice, and thereupon, on application of the defendants to dismiss with prejudice, testimony was heard, and a finding made that there had been no legal revivor of the action within one year after it could have been first made, and that the action died. The conclusion of the court was that the action had not only abated, but that the cause of action upon the note and mortgage was absolutely barred, and that the plaintiff had lost all right to enforce payment of the note. The judgment was that the action should be dismissed with prejudice to a future action on the note and mortgage.

The plaintiff is entitled to control the disposition of its action, where the application is seasonably made, and until the final submission of the cause. It was a commonlaw right, and in this state the statute expressly provides that the plaintiff may dismiss without prejudice to a future action before the final submission of the case to the jury, or to the court, where the trial is by the court. Civil Code, § 397. Until that time the right is absolute, to be exercised by the plaintiff at its option, and without the consent of the defendants. The court com

mitted error in denying the application, and in proceeding to the trial of the cause. Amos v. Association, 21 Kan. 474; Ashmead v. Ashmead, 23 Kan. 263. The court was not justified in dismissing the case with prejudice, and even if the facts are as found by the court-that there was no revivor within one year after revivor could be first madeit would not warrant the court in entering an order and judgment barring and canceling the plaintiff's note and mortgage. If, by lapse of time, the action cannot be revived, it abates, and any rights that have been acquired by virtue of the pendency of the suit will be lost to the plaintiff. It is not to be treated, however, as a statute of limitations against the cause of action; and the extent to which the court is authorized is indicated in section 435 of the Code, namely to "order the action to be dismissed at the costs of the plaintiff." The judgment of the district court will be reversed, and the cause remanded for further proceedings. All the justices concurring.