Decided 4 February, 1901.
On Petition for Rehearing.
Mr. Justice Wolvertondelivered the opinion.
Counsel for appellant have presented a very able and exhaustive petition for a rehearing of this cause, but devoted largely to a reargument of matters heretofore fully considered. Their chief reliance, however, is based upon questions which they insist the court overlooked in disposing of the case.
11. Referring to the question of departure in the pleadings, it is asserted with emphasis that the complaint was intended to, and does, state the ownership of the locus in quo to be in Seufert Bros. Company. But, let it be admitted that it does; it is difficult to> see how this could help the defendant, because, at most, the reply contains nothing more than a new assignment, — simply a restatement of matters going to make up plaintiff’s cause of action, describing more particularly what had been before described too generally, — and a departure cannot be predicated thereon: Phillips, Code PL, § 273; Merch. Nat. Bank v. Richards, 6 Mo. App. 454, affirmed in 74 Mo. 77. The testimony touching the ownership of the locus in quo would be equally admissible under this view as under the one adopted in the opinion.
12. The conveyances, the admission of which is complained of, if they serve no other purpose, operate as color *374of title, and were therefore proper to go to the jury. And it cannot be doubted that there is ample evidence in the record upon which to put the case to the jury upon the question of adverse possession.
The defendant tried the cause in the court below upon the theory that the decedent was a trespasser, or at most was upon the defendant’s right of way with its mere tacit assent, and hence that defendant owed him no duty of active vigi-. lance to avoid, hurting him, or, to state it in another form, that it owed him no duty except that it should not wantonly and willfully injure him. On the other hand, the plaintiff urged the theory that the decedent was something more than a trespasser or mere licensee; that he was. at the place where he was killed by the encouragement and invitation of the defendant’s officers and employees. At the trial here great emphasis was laid upon this especial issue, which received the greater attention because it presented the most important as well as the most vital question in the case. The instructions fairly presented the issue to the jury, and, while they may not be entirely unexceptionable, they are intelligible, and were undoubtedly understood by that body. The only doubt we entertained touching them was whether the court, in view of the attending circumstances and conditions, had sufficiently described or defined what would be reasonable care on the part of the defendant in the management and operation of its trains, having in mind the different phases of the proposition respecting the decedent’s right to' be at the place where he lost his life. But no instructions were suggested that were more explicit upon the subject. The jury could not have mistaken the real issue, so we concluded there was no error, and are of the same opinion now. It would have been a work of supererogation to' have taken up the instructions one by one, and discussed them separately, the general rule being that they should be coristrued as a whole; hence the remark at the close of the opinion that what we *375had said would indicate our views as to- those instructions not specially mentioned.
13. After plaintiff had rested, the defendant introduced in evidence a deed, dated January 7, 1896, from Seufert Bros. Company to E. McNeill, receiver of the defendant company, which recites, among other things, that “whereas, the Oregon Railway & Navigation Company is the owner of a right of' way 200 feet in width across the premises above described, upon which right of way the railway of the said Oregon Railway & Navigation Company is at present constructed.” Having in mind this deed, the court gave the following instruction: “The fact that Seufert Bros. Company had executed a deed to the railroad company in which they had admitted that the .defendant had a right of way across the premises would not be conclusive against their right to- the wagon road in this case; and the question of whether or not they did have a right to- the wagon road, as well as the question as to whether .or not they were licensees, and there by the invitation of defendant, are questions purely of fact for you to consider under the instructions which I have heretofore given you.” To this the defendant took an exception, and requested another instruction, namely: “The plaintiff charges that the place at which the accident complained of occurred was upon the lands of Seufert Bros. Company, and that his decedent was at the time employed by the Seufert Bros. Company, and was rightfully upon the premises when he sustained the injury. But on this- question I charge you that the uncontradicted evidence is that the place of the accident was upon the right of way of the defendant, and that defendant was engaged in the pursuit of a lawful business thereon.” The request being refused, another exception was taken. Now it is strongly insisted that the court was in error in its treatment of the deed, in. that it did not give it the effect of estopping the plaintiff from claiming that Seufert Bros. Company had any right incon*376sistent with the defendant’s right of way. Primarily it may be observed that the deed is not pleaded as an estoppel, and cannot be considered in that aspect.
14. Again, the instruction asked and refused contains a vicious non sequitur. It is the same as. saying to- the jury that because the locus in quo was upon -the right of way, therefore it could.not be upon the premises of Seufert Bros. Company, and is misleading, because we have seen that the ownership of a right of way by the defendant is not inconsistent with the general ownership of the premises by Seufert Bros. Company. Nor is the fact that defendant possessed a right of way inconsistent with the idea that Seufert Bros. Company had acquired rights with reference to it as licensees. The instruction given proceeds upon this theory, and is therefore not erroneous.
It is further insisted that there was error in not giving the following instruction, viz.: “The plaintiff charges that the defendant was operating a train of cars over the premises and upon its tracks, the trucks of which were too wide for the tracks; but I charge you that there is no- evidence to sustain this allegation and that you cannot consider the same.” The vice of this instruction consists in the fact that it invades the province of the jury, because there was some evidence competent to- go to the jury upon the subject. It was sought, by motions addressed to the court, to have the evidence taken from the jury; but it declined to grant them, upon the ground that the evidence had some tendency to- prove the charge alluded to in the instruction. The tendency may have been slight, but there is no- mistaking the fact that it has some bearing upon the question, and was proper to be submitted to the jury.
Having carefully reconsidered the views expressed in the opinion- handed down, we find no reason to- doubt their soundness. The petition must therefore be overruled.
Rehearing Denied.