The expectation of life of one injured by another's negligence may be shown, in order to estimate the damages, where the evidence shows the injury is permanent."

65

Under the statute, a passenger, suing for personal injuries, is entitled to show the profits of his business, which depended on his personal exertions, for the purpose of assessment of his damages, though the business required the investment of a small capital. Evidence of subsequent repairs is usually inadmissible as evidence of negligence."7

66

Evidence is admissible as to the general reputation of a party to a civil action for peace and quiet in the community where he lives.68

Circumstances showing that the defendant had knowledge of defects are provable to show negligence."

65 City of Shawnee v. Slankard, 116 P. 803, 29 Okl. 133.

66 Muskogee Electric Traction Co. v. Eaton, 49 Okl. 344, 152 P. 1109; Rev. Laws 1910, § 2872.

67 Evidence of alterations or repairs subsequent to an accident or injury is not admissible as an admission of negligence. Shawnee Gas & Electric Co. v. Motesenbocker, 138 P. 790, 41 Okl. 454; City of Cushing v. Bowdlear (Okl.) 177 P. 561.

Where the servant's death is alleged to have resulted from defendant's failure to provide safe appliances, evidence of alterations, repairs, and precautions made after the accident to avoid a recurrence is inadmissble. Sloan r. Warrenburg, 129 P. 720, 36 Okl. 523.

In action for injuries from negligent failure to furnish appliances for elevation of hand cars in repair shops, admission of evidence that general foreman, shortly after injury, ordered a crane for elevating the cars, was reversible error. Chicago, R. I. & P. Ry. Co. v. Jackson, 63 Okl. 32, 162 P. 823. In an action for damages, alleged to have been caused by being struck by lightning gathered on the wires of an electric light plant and conveyed into the plant, where plaintiff was working, evidence of installation of additional lightning arresters after the injury was inadmissible. City of Wynnewood v. Cox, 122 P. 528, 31 Okl. 563, Ann. Cas. 1913E, 349.

68 Where in a civil action for assault the evidence was conflicting as to whether plaintiff was the aggressor, evidence of plaintiff's general reputation for peace and quiet in the community where he lived was properly admitted. Breckenridge v. Drummond, 55 Okl. 351, 155 P. 555.

Where it was proper to show the character of the party in an action for assault it was not error to permit witnesses to answer questions as to his character as a fighting and quarrelsome man, as well as questions as to what his general reputation was. Spain v. Rakestraw, 101 P. 466, 79 Kan. 758.

69 In an action to recover for injuries caused by a defective bridge, plaintiff can show other defects in the bridge than those that caused the accident,

In an action for injury to a fireman from a collision between his truck and a street car, evidence that he had previously ridden on the truck at a similar speed, or that he knew when he boarded it that the truck would proceed at any particular rate of speed is inadmissible to show his contributory negligence.70

71

In an action for wrongful death evidence is admissible to show decedent's probable duration of life, his condition of health as bearing on the pecuniary value of his life to the plaintiff,72 the property owned, wage earning capacity, and disposition of the deceased to contribute support. It has been held that evidence is admissible as to the number, age, and sex of decedent's children depending upon him.7*

73

Mortality tables are not admissible to prove plaintiff's life expectancy, 75

In an action by parents for the wrongful death of a child, evidence as to the amount of property owned by the parents is admissible.7"

to show that the city had knowledge of the defects, or that they should have had knowledge thereof. City of Kingfisher v. Altizer, 74 P. 107, 13 Okl. 121. In action for injuries to an employé by reason of defective track, orders by train dispatcher, calling attention to the condition of the road and directing the rate of speed to be maintained, are admissible to show notice to defendant of condition of the track at place of accident. Ferris v. Shandy (Okl.) 174 P. 1060.

Evidence in an action against the defendants, as individuals, for personal injury to plaintiff on account of their negligence as members of the board of county commissioners in failing and refusing to inspect and repair a bridge, held to reasonably support a verdict for defendants. Strong v. Day (Okl.) 176 P. 401.

70 Oklahoma Ry. Co. v. Thomas, 63 Okl. 219, 164 P. 120, L. R. A. 1917E, 405.

71 Coffeyville Mining & Gas Co. v. Carter, 70 P. 635, 65 Kan. 565. 72 Coffeyville Mining & Gas Co. v. Carter, 70 P. 635, 65 Kan. 565.

73 Berry v. Dewey, 172 P. 27, 102 Kan. 593; Coffeyville Mining & Gas Co. v. Carter, 70 P. 635, 65 Kan. 565; Berry v. Dewey, 172 P. 27, 102 Kan. 593. In an action for wrongful death, under Code, § 418, it is competent for plaintiff to show the relation existing between the deceased and his family, as bearing upon the question of pecuniary injury suffered by them in his death. Union Pac. Ry. Co. v. Sternberger, 54 P. 1101, 8 Kan. App. 131, 74 Coffeyville Mining & Gas Co. v. Carter, 70 P. 635, 65 Kan. 565.

75 But the admission of mortality tables to prove the expectancy of the plaintiff is error. Missouri, O. & G. Ry. Co. v. Lee (Okl.) 175 P. 367. 76 Kali Inla Coal Co. v. Ghinelli, 55 Okl. 289, 155 P. 606.

The customs and habits of the parties are admissible."

In an action for death of a railroad employé, it is competent to inquire into manner of construction and location of tracks of railroad, though the inquiry involves an engineering question."

78

In an action for the death of a 9 year old boy from falling into a pit maintained in a dangerous condition by the defendant city the character of the decedent's trespass is a circumstance to be considered in ascertaining whether he was guilty of contributory negligence.79

In an action for the death of a section foreman, removing motorcar from the track, the admission of evidence that the whistle was not blown or bell rung at a highway crossing a certain distance from the place of the accident is admissible as bearing on defendant's negligence.so

Evidence as to whether deceased, who was struck by a train, was a licensee or a trespasser is immaterial, where it is conceded that the engineer and fireman were keeping a sharp lookout.81

In an action for the death of a railroad employé, petition for re

77 On issue whether person killed in crossing accident looked and listened for train, his habit in that regard may be shown. Angell v. Chicago, R. I. & P. Ry. Co., 156 P. 763, 97 Kan. 688, rehearing denied 157 P. 1196, 98 Kan. 268.

In an action for the death of a brakeman, held that evidence of an habitual practice of brakemen at stations to alight from moving trains was admissible. St. Louis & S. F. Ry. Co. v. Clampitt, 55 Okl. 686, 154 P. 40.

In a suit for the death of an engineer by collision with a switch engine, it was error to exclude evidence of a custom that a rule requiring decedent to take a side track, which he failed to do, had been abandoned and disregarded with knowledge of defendant employer. Clemens v. St. Louis & S. F. R. Co., 131 P. 169, 35 Okl. 667.

Evidence that the deceased was habitually negligent prior to the explosion is inadmissible to prove contributory negligence. Great Western Coal & Coke Co. v. McMahan, 143 P. 23, 43 Okl. 429.

Defendant's evidence that plaintiff, a boy 11 years old, was in the habit of crawling beneath cars when he found the track blocked, held inadmissible. St. Louis & S. F. R. Co. v. Hodge, 53 Okl. 427, 157 P. 60.

78 Missouri, O, & G. Ry. Co. v. Overmyre, 58 Okl. 723, 160 P. 933.

79 City of Shawnee v. Cheek, 137 P. 724, 41 Okl. 227, 51 L. R. A. (N. S.) 672, Ann. Cas. 1915C, 290.

80 Dickinson v. Granbery (Okl.) 174 P. 776. 81 Lusk v. Haley, 75 Okl. 206, 181 P. 727.

Evidence as to whether there was anything to prevent engineer from seeing deceased upon the track was admissible to show whether engineer saw deceased on track. Lusk v. Haley, 75 Okl. 206, 181 P. 727. Evidence as to

moval and bond filed by defendants are properly excluded from the jury, as the question whether the action was removable was not one which the jury were required to consider.82

Where there is no proof as to how a fatal accident occurred, the manner of its occurrence may be shown by circumstantial evidence from which jury may infer its manner and cause, if the inference is a reasonable, although not a necessary, resulting fact.83

§ 973. Negative evidence

On an issue of custom and a question as to the requirements of reasonable care, negative evidence, not raising collateral or impertinent issues, is admissible.84

§ 974. Will contest

In determining the admissibility of evidence on the issue of sanity and testamentary capacity, a large latitude is allowable, both as to

whether engineer rang bell or sounded whistle after passing a crossing before he struck deceased was admissible on question of due care, in view of fact that engineer had discovered deceased in a place of peril. Id.

82 Lusk v. Phelps (Okl.) 175 P. 756.

83 Silurian Oil Co. v. Morrell (Okl.) 176 P. 964.

In an action for death from an explosion of gas which the master had negligently allowed to accumulate, in violation of Rev. Laws 1910, §§ 3975, 3982, evidence that gas had accumulated in the mine at times prior to the explosion held not inadmissible as too remote. Great Western Coal & Coke Co. v. Cunningham, 143 P. 26, 43 Okl. 417; Kali Inla Coal Co. v. Ghinelli, 55 Okl. 289, 155 P. 606.

In action for the negligent death of a servant, recovery may be had on circumstantial evidence if sufficient to prove the master's negligence culminating in death. Ft. Smith & W. R. Co. v. Knott, 60 Okl. 175, 159 P. 847. Where, in an action for the death of a mine employé from an explosion, the defense was that decedent's negligence in preparing his shot caused a "windy shot," plaintiff's evidence that frozen dynamite furnished by defendant to decedent would cause a "windy shot" was properly admitted in rebuttal. Great Western Coal & Coke Co. v. Coffman, 143 P. 30, 43 Okl. 404; Same v. Boyd, 143 P. 36, 43 Okl. 438.

In an action for the death of a shot firer from gases, by the explosion of a windy shot by reason of the reversing of an air fan at the time of the explosion, evidence was admissible that the general superintendent at, or immediately after, the installation of the fan prior to the accident, had notice of a defect in its adjustment. Coalgate Co. v. Hurst, 107 P. 657, 25 Okl. 588, writ of error dismissed 32 S. Ct. 838, 225 U. S. 697, 56 L. Ed. 1262,

84 Cook v. Leavenworth Terminal Ry. & Bridge Co., 165 P. 803, 101 Kan. 103, rehearing denied 166 P. 498, 101 Kan. 437.

the subject-matter of the evidence and the period of time considered.*5

A witness may testify whether the testator in his business relations acted like a rational man.s 86

85 In a will contest, involving the issue of testamentary capacity, court properly permitted both parties great latitude in evidence as to conduct, acts, and declarations of testator, both before and after executing will. In re Allen's Estate, 177 Cal. 668, 171 P. 686.

In a will contest witnesses may testify whether the testator's appearance and manner was rational or irrational as regards both his actions and sayings. In re Baker's Estate, 176 Cal. 430, 168 P. SS1.

86 In re Wax's Estate, 39 P. 624, 106 Cal. 343.

On an issue of testamentary capacity, contestant may show the manner in which deceased acquired the property disposed of by the will. In re Wilson's Estate, 49 P. 172, 117 Cal. 262; Wilson v. McConnachie, Id.

Though declarations of testatrix not a part of the res gestæ are inadmissible to show undue influence, whether made before or after the will, yet where undue influence is the issue, such declarations are competent to show the condition or state of mind of testatrix. In re Snowball's Estate, 107 P. 598, 157 Cal. 301. In a will contest, evidence of a conversation between teştatrix and a contestant 10 months prior to the execution of the will, in which testatrix stated she wished to make a will, and that she would leave the other contestant $3,000 or $4,000, the children $1,000 apiece, and the ranch to "you boys," and that L., her daughter, already had enough, was admissible as bearing on testatrix's state of mind with reference to her various children, and particularly toward contestants; the will being materially different from the disposition mentioned. Id.

That testator committed suicide and left his property away from his mother and brothers held proper for consideration on the issue of testamentary capacity. In re Wasserman's Estate, 170 Cal. 101, 148 P. 931.

Whether evidence regarding testator's insanity for some 50 years prior to his death is too remote rests largely in trial court's discretion. In re Baker's Estate, 176 Cal. 430, 168 P. 881. Evidence regarding testator's insanity for some 50 years prior to his death held admissible, where contestants claimed insanity was permanent and of long standing. Id.

In an action to contest a will, evidence of the condition of testator's mind both before and after the date of the will is admissible, but only for the purpose of showing the condition of mind at the precise date when the will was executed. In re Dole's Estate, 81 P. 534, 147 Cal. 188.

Adjudication of the testator's mental capacity in a proceeding to appoint a guardian held admissible upon the issue of his mental capacity to make the will. In re Loveland's Estate, 123 P. 801, 162 Cal. 595.

Where insanity of the testator is alleged, and his disease was a progressive one, a witness may testify as to the condition of his mind prior to the execution of the will. In re Dalrymple's Estate, 7 P. 906, 67 Cal. 444.

In an action to revoke the probate of a will on the ground of unsoundness of mind of the testator, the contestant offered in evidence a part of the great register of the county to show that the age of the testator was not what he had stated it to be in the will. The evidence was admitted over the objection