by the trial court to the effect that plaintiffs were guilty of laches, and had waived their rights to the maintenance of this action.

There was sufficient competent evidence favorable to defendants to support the trial court's finding that no fraud was committed by defendants.

Todd, one of the plaintiffs, went to F. D. Parker, in Denver, about the latter part of November, 1909, and asked him "to look up a trout proposition." During the latter part of December 1909, the plaintiffs Todd and Tinker met the defendant Isaac S. Stapp in Parker's office. The Stapp property was discussed at that time.

The evidence is conflicting as to what representations were made by the defendants. The plaintiff Todd testified that Isaac S. Stapp, at the meeting in Parker's office in December, 1909, and later, when the deal was closed on January 10, 1910, represented one lake to contain "between forty and fifty acres, another about twenty-five acres, two about ten acres, and the smaller one about five acres." F. D. Parker, a witness for the plaintiffs, testified that Stapp's representations "were in conformity with the representations set forth in that first letter," referring to a letter of Stapp wherein the latter stated that one lake contained about thirty acres, one about twenty, and one about five. The plaintiff Todd testified that Stapp told him "he had two surveys of the lakes." Stapp denies this. Stapp also testified that he merely told Todd what he "called" the size of the lakes. He further says, "I told him I didn't know what it was, I never surveyed them."

Early in January, 1909, the plaintiffs Todd, Tinker and Fuller, made a visit to the lakes. The deal for the purchase of the property was not closed until after this visit to the lakes was made. The defendant Isaac S. Stapp testified that after the plaintiffs returned from the lakes, Todd said, "we are perfectly satisfied, we were satisfied before we came; we knew what was here before we come, some of our party have been here fishing." This testimony was not rebutted by plaintiffs. This was competent evidence on behalf of de

fendants as tending to show that plaintiffs did not rely upon the defendants' representations as to the size of the lakes. 20 Cyc. 117, and n. 80.

Plaintiffs' own witness, F. D. Parker, when called by the defendants testified that Stapp demanded that Todd see the property, so as to be satisfied, and that Stapp said he was unwilling to sell the property to anybody without their seeing it first. This testimony related to the first conversation between the defendant Isaac S. Stapp and the plaintiff Todd, who began the negotiations on behalf of himself and the other plaintiffs. This evidence related to circumstances tending to show good faith on the part of the defendant, Isaac S. Stapp, at the time he made the representations.

The witness, Ruby Buck, on behalf of the defendants, testified that in March, 1910, the plaintiff Todd stated in her presence "that for the last six years he had been trying to get hold of Stapp's lakes." This evidence was not rebutted. This is another circumstance tending to prove that plaintiffs did not rely upon the defendants' representations but rather relied upon the knowledge that plaintiff Todd theretofore possessed concerning the property.

A surveyor testified on behalf of the plaintiffs that the large lake contained only 16.29 acres and the second lake had an area of only 6.8 acres. This testimony was not contradicted but this evidence goes no further than to prove the falsity of alleged representations.

The complaint alleges that the defendants represented that they "had stocked the lakes with 800,000 fish, mostly trout." It is not alleged that this representation was false otherwise than by the allegation "that there are very few fish in the large lake or second large lake, and none in the third." Stapp testified that he told plaintiffs how many fish he had put into the lakes. There is no evidence that his representations in this respect were false, except testimony tending to show the quantity of fish in the lakes at the time the alleged representations were made, and afterwards. Furthermore it does not appear that any particular reliance was placed upon this representation since the plaintiff Todd

testified that the plaintiffs "placed absolute reliance upon the representations of the Stapps with reference both to the acreage and presence of fish in abundant quantities" without stating that reliance was placed on representations with reference to previous stocking of the lakes with fish.

The evidence was conflicting as to whether or not the defendants represented that "the lakes contained large numbers of fish," as alleged in the complaint. Some of the witnesses for the plaintiffs testified that the defendant, Isaac S. Stapp, represented that the lakes "were thoroughly well stocked with three varieties of trout." Stapp testified that the plaintiff Todd asked him how many trout there were in the lakes and that he, Stapp, replied that he did not know, and had no way of knowing. Stapp further testified that he told Todd how many he had put in at different times. On such conflicting evidence the conclusions that the trial court arrived at should not be disturbed.

Stapp also testified that in June, 1910, which was after the purchase was made, he found that many fish had escaped from one of the lakes on account of the screens having been torn out of the flumes in the outlet.

The complaint also alleges false representations concerning the value of the property as a summer resort. It does not appear from the evidence that this representation was a material factor in inducing the plaintiff to make the purchase. The plaintiffs were interested particularly in "a trout proposition."

There was no erroneous theory adopted by the court below. The plaintiffs had selected their own theory of the case, and attempted to have their contract rescinded on the ground of alleged fraud. The alleged representations of the defendants, said by plaintiffs to have been false, were by the plaintiffs made the particular and only ground for the relief sought.

The trial judge, after having all the facts and circumstances pertaining to the whole transaction presented to him by both sides, observing for himself the character of the witnesses, the consistency of their testimony and their

manner and appearance on the witness stand, specially found, as a matter of fact, that no fraud had been committed. The judgment is supported by competent evidence. The finding that no fraud had been committed is not manifestly against the weight of the evidence, especially since the weight of evidence, as said in Garver v. Garver, 52 Colo. 227, 232, 121 Pac. 165, Ann. Cas. 1913D, 674, "does not necessarily mean a greater number of witnesses." Under these circumstances the conclusion and judgment of the trial court will be conclusively presumed to be correct and its judgment will not be disturbed. Davis v. Pursel, 55 Colo. 287, 291, 134 Pac. 107; Halfelfinger v. Perry, 52 Colo. 444, 447, 121 Pac. 1021; Lambert v. Scott, 53 Colo. 355, 357, 127 Pac. 142; Springhetti v. Hahnewald, 54 Colo. 383, 390, 131 Pac. 266; Hawkins v. Elston, 58 Colo. 400, 413, 146 Pac. 254.

The assignments of error which relate to matters other than the trial court's principal finding, herein before considered, need not be considered, as they relate to alleged errors which could be prejudicial only in case the trial court had found, or manifestly ought to have found, that fraud had been committed.

For the reasons above mentioned, the judgment is affirmed.

Affirmed.

Decision en banc.

No. 8667.

VALLERY V. BARRETT.

1. TRIAL-Directing Nonsuit or a Verdict for Defendant is admissible only in an entire absence of testimony tending to establish plaintiff's case.

2. VERDICT-Upon Conflicting Evidence, will not be disturbed. 3. INSTRUCTIONS-To be Considered as a Whole. An omission in one part of the charge may be supplied by what elsewhere appears therein. Reference to a particular statute, having, in part, no application to the matter in issue, is cured by an instruction which confines the attention of the jury to what is alleged in the complaint.

4. CONTRIBUTORY NEGLIGENCE-Evidence. Action against a railway company for negligently maintaining a bridge so narrow that while plaintiff's intestate, an employee, was looking from the engine his head came in contact with one of the side trusses, the collision resulting in his death. Testimony that on the previous day the engineer had said to the deceased, "don't look out, there's a bridge kind of close here," was held too indefinite to establish knowledge on part of the deceased that the bridge was dangerous.

Testimony of a witness that while passing through the bridge his hat was knocked off by the rods thereof held competent. 5. EVIDENCE-Opinions of Witnesses, as to their understanding of the rules of a corporation bind no one.

6. PERSONAL INJURY-Damages. Action under the Federal Employers' Liability Act for the death of an employee attributed to the negligence of defendant. Deceased was twenty-four years of age, of good health, and good habits. He had been earning from $70.00 to $109.00 per month. He left a widow and one child. There being nothing in the record to indicate passion or prejudice on the part of the jury, an award of $12,500 as damages was sustained.

Error to Lake District Court, Hon. Charles Cavender, Judge.

Department.

Mr. HENRY T. ROGERS, Mr. GEORGE A. H. FRASER, and Messrs. ROGERS, ELLIS & JOHNSON, for plaintiff in error. Messrs. HOGAN & BONNER, for defendant in error.

Opinion by Mr. Justice Teller.

The defendant in error, as administratrix of the estate of John L. Barrett, deceased, brought suit against the plaintiff in error, to recover damages for the death of her intestate, alleged to have been caused by the negligence of the railroad company while he was in its employ. The train on which Barrett was employed when killed was engaged in interstate traffic, and the action was brought under the Federal Employment Liability Act.

The amended complaint alleges that deceased was employed by the defendant as a fireman on engine No. 4, of