(64 Kan. 553) CHICAGO, R. I. & P. RY. CO. v. RHOADES. (Supreme Court of Kansas, Division No. 1. March 8, 1902.) CIRCUMSTANTIAL EVIDENCE-SUFFICIENCYPRESUMPTION OF FACT. 1. So to establish a theory by circumstantial evidence that it may be accepted as a fact proven, the known facts relied upon as a basis for the theory must be of such a nature and so related to each other that the only reasonable conclusion that may be drawn therefrom is the theory sought to be established. Hence 2. By the term "a presumption of fact" is meant a fact the existence of which is established by that just and reasonable inference which common sense and experience naturally draw from another fact known to exist. It must have a fixed fact for its foundation. It cannot be based upon a presumption. an instruction in the following language: "You are further instructed that it is a presumption of fact that when a mechanical appliance fails to do the work that it is intended to do that it is defective, or out of repair, and that when a mechanical appliance is once shown to be defective or out of repair it is presumed to remain so, unless it is affirmatively shown that it was repaired,"-is erroneous, because it bases a presumption of fact upon a presumption, and not upon an established fact. (Syllabus by the Court.) Error from court of appeals, Northern department, Western division. Action by Lewis Rhoades against the Chicago, Rock Island & Pacific Railway Company. Judgment for plaintiff. Defendant brings error. Reversed. Argued before DOSTER, C. J., and JOHNSON, ELLIS, and POLLOCK, JJ. M. A. Low and W. F. Evans, for plaintiff in error. W. G. Bissell, for defendant in error. POLLOCK, J. Action by Lewis Rhoades against the Chicago, Rock Island & Pacific Railway Company to recover for personal injuries received by plaintiff on April 9, 1898, while in the employ of the company, acting in the capacity of "hostler" at Phillipsburg, a junction and division point on defendant's line of railway.. It appears from the record: That plaintiff had been engaged as hostler or hostler's helper at this point for a period of about four years prior to his injury. That it is the duty of the hostler and his helper, when an engine comes in off the road, to receive it from the engineer, run it to the water tank and coal chute, and load the tender with water and coal, run it to the roundhouse, care for it until the time arrives for its next trip, and run it out preparatory to starting on the trip. That the coal chute at Phillipsburg had originally been constructed when engines of a smaller type and of not so great a height were used. That in more recent years the height of the engines and tenders have been increased, and by reason thereof it became necessary to sink the track alongside the coal chute a sufficient depth to permit the apron, from which the coal descends from the pocket in which it is contained to the tender, to conduct the coal down from the chute to the tender. That the track alongside the coal chute at Phillipsburg was sunk a depth of about 10 inches, leaving an incline from some distance beyond each end of the coal chute, towards the center of the chute. That on the night in question engine No. 897, a large engine used in drawing a passenger train between Phillipsburg and Fairbury, Neb., on defendant's line of road, came in, and plaintiff and his helper ran the engine to the coal chute to equip it with coal. The engine was stopped on the incline opposite pocket No. 2 in said chute. The apron was drawn down upon the tender by the helper, but the height of the tender was such that it did not allow the apron to descend to such an angle as to automatically unfasten the door holding the coal in the pocket. That plaintiff started, as he was accustomed to do, to climb up between the cab of the engine and the lowered apron of the coal chute to unlatch the door holding the coal in the pocket, when, the air brakes on the engine failing to hold the engine and tender in position, it backed down the incline, catching plaintiff between the cab of the engine and the apron, causing him serious personal injury. The acts of negligence alleged against defendant by plaintiff consisted of the manner in which the track was lowered, leaving an incline on which it was difficult to hold an engine while being provided with coal; the defective construction and working of the door and apron on the coal chute, and the use and loading of an engine of such a height that the apron on the coal chute would not drop sufficiently to cause the unlatching of the door holding the coal automatically, as was intended by its construction, which required plaintiff to climb up and unfasten the door with his hand, as he was doing when injured; and, as further alleged, "in permitting to come to plaintiff's hands for coaling a locomotive engine and tender whose air brakes were defective and out of repair, the plaintiff not being informed of said fact, but the defendant having notice thereof." Upon the trial, the evidence showing complete knowledge on the part of plaintiff of all the defects alleged to exist in the construction of the track and in the construction and operation of the apron and door on the coal chute, the size and height of the engine in question, etc., the only question of negligence submitted to the jury by the court was the last above stated. Plaintiff had verdict and judgment, which judgment was by the court of appeals affirmed. From the decision and judgment of affirmance the railway company brings error to this court. A determination of the questions involved in this controversy demands the consideration of the sufficiency of the evidence found in the record to uphold the verdict rendered and the charge of the court to the jury upon this evidence. The record contains no direct evidence tending to show any defect in the construction or condition of the air brakes on the engine handled. The ultimate fact that the engine backed down the incline and caused the injury to plaintiff complained of is undisputed. Why the engine backed down is attempted to be shown only by inference. It is assumed the engine moved because the brakes failed to hold. It is further assumed the brakes failed to hold because of the leakage of air at the valves. And again, it is assumed that the valves leaked air because of their defective construction or condition. This conclusion is arrived at by deduction. No witness knew or claimed to know the actual existing facts. The conclusion reached by this deduction is reasonable. It may be the true conclusion, and probably is the correct theory, but is this sufficient? To establish a theory by circumstantial evidence, the known facts relied upon as a basis for the theory must be of such a nature, and so related to each other, that the only reasonable conclusion that may be drawn therefrom is the theory sought to be established. Asbach v. Railway Co., 74 Iowa, 248, 37 N. W. 182; Carruthers v. Railway Co., 55 Kan. 600, 40 Pac. 915. To entitle the plaintiff to a recovery in this case it devolves upon him to establish by evidence two facts: First, a defective condition of the air brakes on the engine; second, notice, either actual or constructive, of such defect by the company. This court, in Railroad Co. v. Wagner, 33 Kan. 660, 7 Pac. 204, says: "Where an employé seeks to recover damages for injuries resulting from insufficiency of any of the machinery or instrumentalities furnished by the railroad company, it will not only devolve upon such employé to prove such insufficiency, but it will also devolve upon him to show that the railroad company had notice of the defects, imperfections, or insufficiencies complained of, or that by the exercise of reasonable and ordinary care and diligence it might have obtained such notice." In seeking to establish these facts plaintiff is met with two presumptions, the force of which he must overcome: First, that the appliances with which the engine he was handling for the company was equipped were not defective, or, if defective at the time, the company had no notice of such defect; second, that he assumed the usual and ordinary risks incident to his employment. As was said by this court in Railroad Co. v. Wagner, supra, quoting with approval from Mr. Wood in his work on Master and Servant: "The servant seeking to recover for an injury takes the burden upon himself of establishing negligence on the part of the master and due care on his own part. And he is met by two presumptions, both of which he must overcome in order to entitle him to a recovery: First, that the master has discharged his duty to him by providing suitable instrumentalities for the business, and in keeping them in condition; and this involves proof of something more than the mere fact that the injury resulted from a defect in the machinery. It imposes upon him the burden of showing that the master had notice of the defect, or that in the exercise of that ordinary care which he is bound to observe he would have known it. When this is established, he is met by another presumption, the force of which must be overcome by him, and that is that he assumed all the usual and ordinary hazards of his business." The record shows this engine had been handled continuously for months prior to the date of plaintiff's injury, both by plaintiff himself as hostler and by the engineer who ran the engine, and at all times the air worked satisfactorily. Also that it had been many times inspected, and the air found to work perfectly; that it was tested many times immediately after the accident, and found in good order. The only direct evidence in the record tending to show an existing defect in the air equipment was that of one Robinson, who worked as hostler at Phillipsburg about two months previous to the injury, who testified that on one occasion between the 1st and 15th days of February prior to the accident the air brakes released. The circumstances under which this occurred-the conditions existing at the time are not given. It is not shown that notice of this fact was given the company, or that any duty devolved upon the hostler to either ascertain and remedy existing defects, or to notify the company of their existence. On the contrary, it is shown by the evidence of plaintiff that it is not the duty of the hostler to make an inspection or examination of the machinery for defects. Hence it must be held that, even if the release of the brakes which occurred, as testified to by this witness, was the result of a defect in the construction or condition of the air equipment, which is not shown, no actual notice of the existence of such defect is brought home to the company, and the undisputed fact that continuously for a period of two months thereafter the air worked satisfactorily on all occasions rebuts any presumption of constructive notice to the company. Upon this condition of the evidence the court instructed the jury as follows: "You are further instructed that it is a presumption of fact that when a mechanical appliance fails to do the work that it is intended to do that it is defective, or out of repair, and that when a mechanical appliance is once shown to be defective or out of repair it is presumed to remain so, unless it is affirmatively shown that it was repaired." This was error. This instruction is erroneous for two reasons: First. As an abstract proposition of law, because it bases one presumption upon another, and a presumption can only be based upon known facts. In Railway Co. v. Henrice, 92 Pa. 434, 37 Am. Rep. 699, it is said: "A presumption should always be based upon a fact, and (64 Kan. 507) GSBORN et al. v. RUSSELL et al. (Supreme Court of Kansas, Division No. 1. March 8, 1902.) BOARD OF HEALTH-COMPULSORY VACCINA TION-SCHOOL CHILDREN. lie or private schools." 2. In the absence of a lawful regulation prescribed or authorized by the legislature, a board of education of a city of the second class has no authority, at a time when the disease of smallpox does not exist in or near such city, to deny a child of school age, resident therein, admishas not been vaccinated. sion into the public schools because such child (Syllabus by the Court.) Error from court of appeals, Southern department, Western division. Action by Hattie M. Osborn and others for a writ of mandamus against A. Russell and others. From an order of the court of appeals denying the same they bring error. Reversed. Argued before DOSTER, C. J., and JOHNSTON, ELLIS, and POLLOCK, JJ. F. J. Oyler and H. F. Mason, for plaintiffs in error. Reeves & Kirkpatrick, for defendants in error. should be a reasonable and natural deduction from such fact. The true rule was correctly stated by Mr. Justice Thompson in Douglass v. Mitchell's Ex'r, 35 Pa. 443: That as proof of a fact the law permits inferences from other facts, but does not allow presumptions of fact from presumptions. A fact being 1. The authority granted to the state board established, other facts may be, and often of health by section 4, c. 129. Laws 1885, did are, ascertained by just inferences. Not so not vest in such board power to make a regulation that "no person until after being sucwith a mere presumption of fact. No pre-cessfully vaccinated shall be admitted into pubsumption can with safety be drawn from a presumption. There being no fixed or as- I certained fact from which an inference of fact might be drawn, none is drawn.'" Second. The instruction is erroneous as applied to the evidence in this case. No mechanical appliance works perfectly at all times and under all conditions. The master is under no obligation to furnish perfect tools or mechanical appliances to his servant. This would require the impossible. The extent of the master's duty in this regard is to furnish at all times such tools, mechanical appliances, and other instruments of labor as are reasonably safe in design, construction, and condition for use in the particular service in which the servant is engaged. Beyond this, there being no duty enjoined by law, no negligence can be imputed. The fact that the best of mechanical appliances that human ingenuity can devise or mortal skill execute will not at all times and under all conditions perform the work for which they are designed does not argue that such mechanical appliances are not reasonably safe and suitable for use by the servant in the work to be performed, or that they are defective in such sense as to render the master guilty of negligence by failure to furnish better; but argues alone that, being, as they are, the product of human effort, they cannot but fail at unforeseen times to fully perform the design of their maker. For such unforeseen and unapprehended injuries as may result to an employé in the performance of service for his master by reason of the failure of a mechanical appliance to at all times and under all conditions perform the work for which it was intended the employer is not liable. Such injuries are the result of accident, not negligence, and the hazard of such injuries as are necessarily incident to the employment are assumed by the employé in his contract of employment. The master is liable where the injury is occasioned by the failure of a mechanical appliance to perform the work for which it was intended when it is shown the mechanical appliance failed to perform the work because defective, and where it is further shown the master either knew, or by the exercise of reasonable diligence and care for the safety of his servant should have known, and remedied the defect. It follows that the judgment of the court of appeals and the district court must be reversed, and cause remanded for a new trial in accordance with the views herein expressed. All the justices concurring. ELLIS, J. When this suit was commenced on December 13, 1899, the plaintiffs in error were children aged, respectively, 10, 8, and 6 years, residing in Dodge City, a city of the second class, and were, by an order of the board of education of such city, denied admission to the public schools by reason of not having been vaccinated. Through their father, as next friend, they applied to the court of appeals for the Southern department for a writ of mandamus to compel the board of education and superintendent of schools to admit them to school privileges notwithstanding that they had not been vaccinated. An alternative writ was issued. Among other things, they set forth in their application for such writ that there was no smallpox in Dodge City or in Ford county, and no cause to apprehend its appearance there. The defendants answered, alleging that Dodge City was in imminent danger of an outbreak of smallpox because of being a division point of the Santa Fé Railway; that vaccination was a scientific preventative of the spread of smallpox; that the state board of health had adopted a rule providing, among other things, that no person, until after being successfully vaccinated, shall be admitted into public or private schools; and that the city council had adopted an ordinance requiring all residents of the city to be vaccinated under penalty of a fine. ordinance referred to was passed by the mayor and councilmen of said city subsequent to the bringing of this action. The case was tried upon an agreed statement of facts as The to certain propositions therein specified, and upon depositions of witnesses. There was no oral testimony. The application for a peremptory writ was denied. The plaintiffs in error, plaintiffs in the court of appeals, bring the proceedings here for review. A motion to dismiss is made by the defendants in error, which has been duly considered by this court and determined to be without merit. As it related to the question of certification of this cause from one division to another of the court of appeals, and as, owing to the expiration of said court by statutory limitation a similar question is not likely to again arise, we refrain from commenting upon it. The issues in this action must be determined under the law as it existed at the time the suit was brought. It is not claimed the legislature had adopted a law making vaccination compulsory, or a condition precedent to admission into the public schools. It had provided that "no pupil infected with a contagious disease shall be allowed to attend any common school, or to remain in any school room while so infected." Section 6200, Gen. St. 1901. It is claimed, however, that the authority granted to the state board of health under section 4, c. 129, Laws 1885, is sufficient to uphold the regulation of the board hereinbefore referred to. Said act provided that "the state board of health shall supervise the health interests of the people of the state," and "the state board of health shall adopt and publish such rules and order of business as may be necessary to make this act effective." By recent legislation the powers of the state board of health have been greatly extended, and we intend nothing here said as an intimation with reference to the present scope of such powers. It is sufficient for the purposes of this case to say that at the time it made the order invoked in this case it had no power or authority to adopt a regulation that "no person, until after being successfully vaccinated, shall be admitted into public or private schools," and its order did not invest the board of education with the authority attempted to be exercised. The question is not before us, but it is assumed the legislature has authority to enact such laws as are requisite for the preservation of health, and to prevent infection from contagious diseases, and it may well be that such power can be delegated. In re Rebenack, 62 Mo. App. 8; Duffield v. School Dist., 162 Pa. 476, 26 Atl. 742, 25 L. R. A. 152; Bissell v. Davison, 65 Conn. 192, 32 Atl. 348, 29 L. R. A. 251; Blue v. Beach, 155 Ind. 121, 56 N. E. 89, 50 L. R. A. 64, 80 Am. St. Rep. 195. The courts have usually sustained specific regulations intended to prevent the further extension of an epidemic, or to prevent the same when danger thereof appears imminent, and authority given to cities to establish quarantine in such cases has been uniformly upheld. Glover v. Board (S. D.) 84 N. W. 761; State v. Board of Education of Salt Lake City, 21 Utah, 401, 60 Pac. 1013; City of Salem v. Eastern R. Co., 98 Mass. 443, 96 Am. Dec. 650; Potts v. Breen, 167 Ill. 67, 47 N. E. 81, 39 L. R. A. 152, 59 Am. St. Rep. 262; Lawbaugh v. Board, 177 Ill. 572, 52 N. E. 850. In the case of State v. Burdge, 95 Wis. 390, 70 N. W. 347, 37 L. R. A. 157, 60 Am. St. Rep. 123, the court held: "In the absence of a statute making vaccination compulsory or a condition precedent to the right of children of proper qualifications to attend the public schools, a rule by the state board of health, which was authorized to take general supervision over the public health, and to make regulations to preserve it, and to guard against contagious disease, that no child shall be allowed to attend a public or private school within the state without presenting a certificate of vaccination, cannot be sustained as an exercise of police power." The statute (section 6298, Gen. St. 1901) requires the maintenance of a system of free common schools in each city of the second class in this state, "which shall be free to all children residing in such city between the ages" specified therein, and it has been held by this court that, in the absence of legislative authority, a board of education has no power to exclude from such schools a child possessing the requisite qualifications as to age and residence. Board v. Tinnon, 26 Kan. 1; Knox v. Board, 45 Kan. 152, 25 Pac. 616, 11 L. R. A. 830. It follows that the plaintiffs were entitled to a peremptory writ of mandamus as prayed. The judgment of the appellate court, Southern department, Western division, is reversed, and the application for such peremptory writ is sustained. All the justices concurring. OF MOTION-NOTE-EVIDENCE OF DE- 1. Where, the record is silent, all reasonable presumptions must be indulged in to uphold the judgment of a trial court. 2. The failure to file a motion for a new trial within three days from the rendition of the verdict or decision, or within the term at which the same is rendered, may be excused by a showing that the party was unavoidably prevented from so doing; and where the trial court has taken up and considered such a motion-the record not showing affirmatively the reason for so doing-it will be presumed that sufficient excuse was shown upon the hearing of the motion why it was not filed within the time required by statute. 3. The finding of a note and mortgage in the hands of the payee thereof is sufficient evidence, in the absence of any contrary showing, to warrant the conclusion of the court that the same had been delivered to the payee by the maker thereof. 4. A finding of a trial court that a note and mortgage, on which the action was founded, and which were found in the possession of the plaintiff, were identified." is sufficient on which to base a judgment, where the execution of such note and mortgage had been denied by the defendant under oath. (Syllabus by the Court.) Error from district court, Kearney county; A. J. Abbott, Judge. Action by Maria H. Hibbard against Willlam C. F. Schallehn. Judgment for plaintiff, and defendant brings error. Affirmed. Argued before SMITH, CUNNINGHAM, and GREENE, JJ. Milton Brown, for plaintiff in error. G. L. Miller, B. F. Stocks, Paul F. Coste, and Waggener, Horton & Orr, for defendant in error. CUNNINGHAM, J. This was an action upon a note given by plaintiff in error to the defendant in error, and to foreclose a mortgage on real estate securing the same. The petition was in the ordinary form. The answer, which was verified, denied specifically, that the note and mortgage sued upon were ever executed or delivered by the plaintiff in error. Trial was had on the issues joined on the 22d day of November, 1892, and a judgment was rendered in favor of the defendant therein for his costs. On the evening of that day the court adjourned until its next terin. A motion to set aside the verdict and for a new trial, alleging several grounds, was filed by the plaintiff below on November 23d, and this motion was taken up and passed upon on the 5th day of July, 1893, over the objection of the defendant in error that the court had no jurisdiction to hear the motion for a new trial because the same was not filed in time. The court, however, proceeded to hear the motion, and allowed it, and thereafter took up the case for trial on its merits. Upon this trial plaintiff identified and offered in evidence, and the court tried said case upon, the note and mortgage referred to in said petition, and there was no further evidence introduced or offered, and the court found for said plaintiff, and rendered judgment for her upon the findings." From this judgment, plaintiff in error brings the case to this court, and alleges as his two principal grounds of complaint that the court had no jurisdiction to grant a new trial at the time it did, upon the motion filed therein out of time, and because the evidence, as above indicated, was not sufficient to warrant a judgment for the plaintiff under the issues formed by the pleadings. Section 4571, Dass. St. 1899, provides that an application for a new trial must be made at the term the verdict, report, or decision is rendered, and within three days thereafter, unless unavoidably prevented. In this case the record shows that, although the motion for a new trial was not filed until after the adjournment of the term at which the verdict was given and the judgment ren dered, yet that the court took up this motion and granted it. This the court might do if the party filing the motion out of time was unavoidably prevented from filing within the time. The failure to file within three days and within the term is not inexcusable. If a party is prevented from so doing by unavoidable circumstances, yet his motion may be heard. The court must determine whether such circumstances exist. In this case the record is silent upon the question as to whether there was sufficient excuse for not filing the motion within the term. Nothing whatever is said upon the subject. But all presumptions that are warranted by the record must be indulged in to support the correctness of the ruling of the court, and, so far as the record shows, abundant proof may have been introduced to show that the party was unavoidably prevented from filing his motion for a new trial within the term. We cannot presume error. If this evidence was not before the court, the record ought to have shown its absence in order to show error. It must be remembered that this case is one where a new trial was granted, and not one where it was refused. In a number of cases this court has decided that a trial court is justified in refusing a new trial where the motion therefor was not filed within the time prescribed by the section which we have cited, but in this case a new trial was awarded although the motion was filed out of time; but mere filing of the motion out of time does not necessarily show that the court might not consider it, and from the fact that the court did consider it-the record being silent-we must presume that the motion fell within the exceptions created by the statute itself, and that the facts showing such to be the case were proven to the satisfaction of the trial court. It may be suggested that the cited section absolutely requires the filing of the motion within the term, and that the excuse of being unavoidably prevented applies only to the requirement to file within three days. There is some plausibility in such a contention, but we prefer to hold that the excuse goes to both requirements, and, if unavoidably prevented from filing his motion for a new trial within the term at which the verdict or decision is rendered, still a party may have his motion heard. Such a construction seems to us fair and just. It is the policy of the law to give litigants abundant opportunity to present their grievances to the court, and there is no reason to think that the legislature would wish to help out one who, through unavoidable circumstances, had been prevented from filing his motion within three days, and not one who, through the same circumstances, had been prevented from filing within the term. In this case the court adjourned on the same day on which the verdict and judgment were rendered. After a full consideration, we hold |