The opinion of the court was delivered by
Porter, J.:The jury made over seventy special findings, among them the following:
“(17) Ques. When said box car 7706 was put in' that train, and at the time the deceased lost his life, was, or was not, one of the grab-irons or foot-rests of the ladder on the south end of said box car 7706 mashed flat against the wood of the car so that it could not be safely used by the deceased as a handhold or as a foot-rest? Ans. Yes.”
“(21) Q. Did the deceased attempt to get from the top of said box car 7706, in the exercise of ordinary care, when [the train was] in motion, in an effort to reach his post of duty at the head end of the train near Scullin or Mill Creek station, at about two o’clock in the morning of the 7th day of November, 1902, or did he not? A. Yes; he did.
“(22) Q. If you answer ‘yes,’ then state if he did so in the customary manner and by the proper method in vogue by head-end trainmen under similar circumstances?' A. Yes.”
“(24) Q. If you answer question 16 ‘it was,’ then state would the deceased have lost his life if said grab-iron, or foot-rest, on the south side of said box car 7706 had not then been mashed flat against the said end of said box car, in all-reasonable probability? A. No.”
“ (26) Q. At the time of the death' of said William A. Johnson, was or was not the rung or foot-rest of the ladder of said box car 7706, on the south end of said box car, in a defective and unsafe condition for the trainmen to use or handle in the night-time in the discharge of their duty, in the exercise of ordinary care, and train in fast motion? A. Yes.
“(27) Q. If you answer ‘yes,’ then state if said con*89dition could have been discovered by reasonably thorough or proper inspection, either before said box car 7706 was put in that train for transportation or, when en route and before the death of said William* A. Johnson? A. Yes.”
“(81) Q. Was or was not the top of the load upon saifl flat car (next to said box car) lower than the said grab-iron, or foot-rest, which was mashed flat against said end of said box car 7706? A. Yes; lower.”
.“(35) Q. If you answer ‘yes,’ then state if he fell from the grab-iron on the south end of said box car 7706 to the ground between the end of said box car and the end of said flat car, near the southwest corner of same, thence down to the ballast and between the rails? A. Yes.”
“ (41) Q. Was or was not said box car and its several appliances complained of, and each of them reasonably, properly and timely inspected by the defendant at Sapulpa, I. T., before said car was put in that train for transportation in and for the trainmen to Handle in the exercise of ordinary care? A. No, it was not.
“(42) Q. If you answer the last question ‘no,’ then state if that was a contributive proximate cause of the injuries to and death of said William A. Johnson. A. Yes.”
•“(56) Q. If you find and believe from the evidence that said appliances and car 7706 were defective and dangerous to use, then and there, and that the defects were of such a nature that in the exercise of ordinary care, by reasonable and proper and timely inspection- or otherwise by the defendant company, they could have been discovered, then state if the defendant should have discovered all same, before the injuries to, and death of, the said William A. Johnson, in the exercise of reasonable diligence. A. Yes.”
The principal contention of the plaintiff in error is that the defendant in error was not entitled to recover because she failed to show by evidence what the courts of the Indian Territory would hold in such a case. In her petition she pleaded the laws of the Indian Territory, and on the trial introduced in evidence the act of congress of May 2, 189.0, putting in force and effect in that territory certain chapters of Mansfield’s digest *90of the statutes of Arkansas, and also offered in evidence those sections of the Arkansas statutes which provide for maintaining an action for wrongful death and in reference to descents and distributions. In her petition there was also an averment as follows:
“Plaintiff further avers and states that, under *the law in force and effect at the time and place of the death of said William A. Johnson, and still is in full force and effect (where his death and injuries occurred) , in and of the Indian Territory, the same being of similar import and character as the law of the state of Kansas, in such case made and provided, the plaintiff herein is entitled to maintain this action and demand against the defendant, and she may enforce the same not only in the courts of the Indian Territory but in the courts of the state of Kansas as well, and such enforcement in the courts of the state of Kansas would be beneficial to the plaintiff and in no manner contravenes the policy of the state of Kansas, and is not against good morals — the laws of said territory in this regard being substantially the same as the laws of the state of Kansas, and not penal but remedial in character — as will more fully and at. large appear by referring to said laws of said territory.”
Plaintiff in error’s position is: (1) That having alleged that she might have maintained this action in the Indian Territory it was incumbent upon defendant in error to prove what the courts there would hold in such a case; (2) that when congress adopted for the territory chapter 20 of Mansfield’s digest of the Arkansas statutes it did not adopt the construction of the common law as declared by the supreme court of Arkansas, but that, in order to determine what the common law of the Indian Territory is, we must look to the decisions of the United States courts for the eighth circuit, which have jurisdiction there. In the principal case cited by the plaintiff in error (St. Louis & S. F. R. Co. v. Arnett, 84 S. W. 599, 600) the exact contrary was held by the Texas civil court of appeals with respect to the effect *91of the act of congress of May 2, 1890. The court there said:
“Such putting in force in the Indian Territory of the common law as then existing in Arkansas carried with it the construction theretofore placed thereon by the courts, of that state.”
It was also said in the opinion that the uncontradicted evidence in that case “shows that in that state [Arkansas], prior to May 20, 1890, the question of fellow servant is determined exclusively by the character of the act intrusted to the person, rather than the rank of the employee.” If it were necessary to determine in this case what the common law of the Indian Territory is upon the question of fellow servants, this court, in the absence of evidence, would assume it to be the same as that of Kansas. (St. L. & S. F. Rly. Co. v. Weaver, 35 Kan. 412, 11 Pac. 408, 57 Am. Rep. 176.) Was it necessary for plaintiff to prove what the common law of the Indian Territory was at the time the accident happened, or what the courts of that territory would hold if this action were tried there ?
. The whole force of both contentions of plaintiff in error rests upon the assumption that the evidence in the case establishes that the only negligence for which the railroad company could in any event be held liable is the negligence of fellow servants of ■ the deceased. In other words, that the death was caused by the negligence of the inspectors, who, it is claimed, under the laws of the Indian Territory were fellow servants of deceased. Plaintiff in error says:
“The most that can be said from the evidence is that the inspectors at Sapulpa or Francis failed to do their duty, either to inspect the car thoroughly for such a defeot or to mark the same as in bad order.”
The assumption that this is all the'negligence shown is, we think, unwarranted. The railroad company offered no evidence that the car was ever inspected; so far as the evidence shows, it never was. The defect *92was an obvious one which the most casual inspection would have disclosed. The jury therefore rightfully inferred that the car was put into the train without inspection. (Mo. Pac. Ely. Co. v. Barber, 44 Kan. 612, 24 Pac. 969.) The railroad company was charged in the petition with negligence in not having the car inspected and in putting it into the train for the employees to use in its dangerous and defective condition. Its duty required it to use reasonable diligence to provide the employees with reasonably safe appliances for the performance of their duties. (Railroad Co. v. Penfold, 57 Kan. 148, 45 Pac. 574; Mo. Pac. Rly. Co. v. Dwyer, 36 Kan. 58, 12 Pac. 352.) The doctrine of assumed risk has no application. In the absence of notice deceased had the right to assume that the car and its appliances were reasonably safe. (Mo. Pac. Rly. Co. v. Barber, supra; A. T. & S. F. Rld. Co. v. Seeley, 54 Kan. 21, 37 Pac. 104; Railroad Co. v. Penfold, supra; Railway Co. v. Michaels, 57 Kan. 474, 46 Pac. 938; Railway Co. v. Bancord, 66 Kan. 81, 71 Pac. 253.) It has been repeatedly declared to be the duty of the railroad company to inspect its cars before putting them in service. (Solomon Rld. Co. v. Jones, 30 Kan. 601, 2 Pac. 657; St. L. & S. F. Rly. Co. v. Weaver, 35 Kan. 412, 11 Pac. 408, 57 Am. Rep. 176; A. T. & S. F. Rld. Co. v. Napole, 55 Kan. 401, 40 Pac. 669; A. T. & S. F. Rld. Co. v. Wagner, 33 Kan. 660, 7 Pac. 204.)
What the courts of the Indian Territory would hold in a case where the only negligence shown is the act of a fellow servant is therefore wholly immaterial. The same question was decided in A. T. & S. F. Rld. Co. v. Lannigan, 56 Kan. 109, 42 Pac. 343. In that case the injury occurred in Missouri, at a time when the common-law rule in force in that state relieved the master from liability for the negligent act of a fellow servant. The proximate cause of the injury, however, was the failure of the railroad company to furnish the employee with a suitable lantern, and this court held that the fact that a fellow servant of the plaintiff was *93also guilty of negligence which contributed to the injury did not necessarily prevent plaintiff from recovering. In A. T. & S. F. Rld. Co. v. Moore, 29 Kan. 632, a judgment against the company was reversed because the trial court refused to instruct that under the common law in force in Texas, where the injury occurred, plaintiff could not recover for an injury caused by the negligence of a fellow servant. On a second trial plaintiff recovered again, and, in 31 Kan. 197, 1 Pac. 644, the judgment was affirmed upon the ground that the evidence showed that the injury was caused by the ■culpable negligence of the road-master, whose duty it was to direct repairs and keep the road in a safe condition, and that even under the rule of the common law the company was liable.
It was not necessary for plaintiff to prove a conclusion of law. When she established that the action here was one which under the laws of the Indian Territory survived, that the laws of descents and distributions there permitted plaintiff to maintain the action, and that the death was caused by the negligence of the railroad company in putting the defective car into the train', this court assumes, as a matter of law, that the holding of the courts there would be the same as that of the courts here.
The next serious contention is that there was no proof connecting the death of the deceased with any negligence of defendant. Plaintiff in error suggests a number of ingenious theories, any one of which might, if true, account for the death of brakeman Johnson, and the claim is made that in the absence of direct evidence showing the exact manner in which he fell the jury could not rightfully find that his fall was caused by the defective grab-iron- on the end of the car. They urge that he might inadvertently have walked off the end of the box ear, or fallen in attempting to slide down the brake-staff, but these are purely speculative possibilities, rendered improbable by the fact that he was proved to have been a capable, ex-. *94perienced, intelligent brakexnan and that the ordinary and usual manner in which he would have gone from the box car to the flat car was down the ladder and around the end of the box car, resting his feet upon the grab-iron, as well as by the fact shown in evidence that if he had walked off the end of the car he would have fallen upon the flat car. The evidence, it is true, is largely circumstantial, but the exact place where he fell is clearly established by the blood marks on the trucks of the car. He was seen going over this car to the head of the train in the performance of his duties. His lantern was seen to fall suddenly to the ground. Something caused him to fall. The court rightfully told the jury that he was presumed to have been exercising ordinary care to preserve his life and his person from injury. If it had been the missing grab-iron at the top of the car which caused him to fall he naturally would have fallen at the side of the train, and this would not have accounted for the presence of his body between the rails. There was, then, some evidence to warrant the jury in finding that his fall was occasioned by the defective grab-iron between the cars. “A charge of negligence, like any other fact, may be established by circumstances as well as by positive testimony.” (A. T. & S. F. Rld. Co. v. Brassfield, 51 Kan. 167, 174, 32 Pac. 814. See, also, Railroad Co. v. Perry, 65 Kan. 792, 70 Pac. 876.)
It is urged that there was no evidence of the length of time the defect existed; that the grab-iron on the end of the car might have been mashed in by coming in contact with the load of rails on the flat car after'the train was made up. Defendant in error met this theory by proof that the load on the flat car was so far below the grab-iron that the latter could not have become mashed in that way, leaving the inference that its condition must have been the same when it was placed in the train, and the jury so found.
It is also claimed that deceased had knowledge of the defective condition of the car, and therefore was *95guilty of contributory negligence. The conductor testified that at one of the stations north of where the accident occurred deceased, told him there was a defective car in the train and that it had a missing handhold which came near letting him down, but this referred only to the missing grab-iron at the top of the car at the south. The jury found specially that it was the defective condition of the grab-iron mashed flat against the end of the car which caused deceased to fall. There is nothing in the conductor’s evidence showing any knowledge of the defect which caused the death.
Complaint is made because the court admitted the testimony of a brakeman with reference to the usual and proper method of going from a box car to a flat car under the conditions and circumstances in which deceased was placed. This was not error. Similar testimony was held to be competent in Railway Co. v. Merrill, 61 Kan. 671, 60 Pac. 819.
There was no error in admitting proof that the defective condition of the car was repaired immediately after the accident. (St. L. & S. F. Rly. Co. v. Weaver, 35 Kan. 412, 11 Pac. 408, 57 Am. Rep. 176; City of Abilene v. Hendricks, 36 Kan. 196, 13 Pac. 121; A. T. & S. F. Rld. Co. v. McKee, 37 Kan. 592, 15 Pac. 484.)
The court gave the following instruction: “The burden is on the defendant to prove by a preponderance of the evidence the affirmative allegations of its answer.” Defendant had alleged in its answer the defense of contributory negligence, and it is contended that .under the authority of the case of Railway Co. v. Merrill, supra, this instruction was error. It is urged that the most of the evidence bearing upon contributory negligence came from plaintiff’s witness, Gardner, the rear brakeman. The fact is, however, he gave no testimony tending tó show contributory negligence of the deceased. He did not know what the deceased was doing a,t the time the accident occurred, except that he saw him going over the cars. We presume counsel claim that in his answer to a number of hypothetical *96questions as to the probable consequences of a brakeman’s attempting to make a descent between the box car in question and the flat car ahead of it by going down the brake-staff some evidence of contributory negligence entered the case, but there was no evidence that deceased attempted to cross over in such a manner. In the Merrill case the person injured was a witness and testified to his own acts at the time he was injured, and that was the only testimony from which his contributory negligence could have been shown. The doctrine in that case, we think, should not be extended ; certainly not to a case where there is no testimony introduced by plaintiff tending to show contributory negligence. Plaintiff in error could not have been in any manner prejudiced by this instruction, if it be conceded to be as objectionable as the one in the Merrill case. The other objections to the instructions have been examined, but we find nothing which is deemed prejudicial to the plaintiff in error.
At the close of the evidence counsel for plaintiff waived the opening argument. Defendant thereupon contended that by waiving the opening argument counsel also waived the right to make a closing argument, and upon the court’s permitting counsel for plaintiff to reply to the argument of defendant an exception was saved, and it is claimed that the court erred. (Railroad Co. v. Vanzego, 71 Kan. 427, 80 Pac. 944.) Defendant had the right to submit the case to the jury without argument when plaintiff waived the opening statement, but, having elected to argue the case to the jury, was not in a position to object to plaintiff’s closing the argument by a reply. The party on whom rests the burden of proof has the right to open and close the argument; he can waive either of these, or both. By waiving the opening he waives the right to close, provided the other party also waives his argument. This is the orderly method of procedure universally adopted by the courts. The case cited does not go to the extent claimed for it by the plaintiff in error.
*97Other errors are complained of which we do not consider material or of sufficient weight to require mention. We find no substantial errors in the record, and the judgment is affirmed.
All the Justices concurring.