tried de novo upon appeal to the district court. The bill of particulars filed by plaintiff contains no allegation that the alleged usury was knowingly charged or received, or any allegation of equivalent import. There was a general demurrer to this bill of particulars, which was overruled and exceptions saved. Upon the trial the court's instructions contained no reference to the fact that usury by a national bank must be knowingly received or charged in order to justify a recovery under the statute. To these instructions defendant duly excepted. Defendant then of fered an instruction containing this element, which was refused and exceptions saved. Each of these rulings was clearly error. The cause of action is statutory, and one of the necessary elements of a recovery is that the "taking, receiving, reserving or charging" of the usury shall be "knowingly done." If the petition failed to so allege, it was fatally defective, and, if alleged therein, the defendant had a right, under the statute, to have this question submitted to the jury. First National Bank of Mill Creek v. Ellis, 27 Okla. 699, 114 Pac. 620, Ann. Cas. 1912C, 687; First National Bank v. Landis, 27 Okla. 710, 113 Pac. 718. The cause should be reversed, with directions to the trial court to set aside the judg ment and the order overruling the demurrer to the petition and to sustain said demurrer. By the Court: It is so ordered. 1. PETROLEUM IRON WORKS CO. v. No. 7919-Opinion Filed Nov. 28, 1916. Trial-Demurrer to Evidence. It is only where the evidence with all the inferences to be drawn therefrom is insufficient to support a verdict for the plaintiff that a demurrer to the evidence can prop erly be sustained, or a verdict directed for the defendant. 2. Appeal and Error-Instructions-Prejudicial Error. The jury is not supposed to know when the court correctly or incorrectly states the law, and it is prejudicial error for the court to give conflicting instructions to the jury, and thus leave the jury to decide conflicting principles of law. 3. Trial-Injuries to Servant-Inconsistent Instructions. Instructions numbered 151⁄2 and 19, respectively, given in this case, carefully considered, and held to be in direct conflict. (Syllabus by Collier, C.) Error from District Court, Pawnee County; Conn Linn, Judge. Action by James Bullington against the Petroleum Iron Works Company. Judgment for plaintiff, and defendant brings error. Reversed and remanded. Keaton, Wells & Johnston and I.. V. Orton, for plaintiff in error. McNeill & McNeill, for defendant in error. Opinion by COLLIER, C. Suit was brought by James Bullington against the Petroleum Iron Works Company, to recover damages for personal injuries alleged to have been sustained by the negligence of said company, The negligence alleged, upon which recovery is predicated, is that the defendant negligently constructed and maintained steps without banisters, leading from the ground to the top of a tank upon which the plaintiff was employed. The defendant demurred to the petition, which was overruled and excepted to. Thereupon the defendant filed his answer denying each and every allegation of the petition, except that the plaintiff was in its employ at the time stated; (2) that the injury occurred by reason of plaintiff's own negligence directly contributing thereto; (3) that plaintiff was familiar with the character of the steps referred to and assumed all risks incident to ascending and descending the same. To this answer the plaintiff replied. denying each and every material allegation, except that the steps were open and visible. The uncontradicted evidence is that the plaintiff was employed as a laborer by defendant; that he ascended said steps in the morning, descended said steps at noon, and that he again ascended said steps, and in descending said steps at the completion of his day's work, with the other persons engaged with him in the work, that he fel! from said steps and was severely in in 1 It is further in evidence that said gang of workmen, working with the said Bullington, were being directed by a foreman known as the "Bull Gang Boss"; that banisters had been furnished for said steps and were lying on the ground near said steps, but had not been attached to same; that said steps shook when persons were upon them, and there was nothing at the sides of the steps to pre vent persons from falling off; that plaintiff had not complained of the condition of the steps; that he was unaccustomed to the character of work in which he was engaged, and he admitted that he had signed a written statement some time after the accident in which he said: "There was some kind of a piece on one of the steps. I caught my heel on this piece and that knocked my step off and caught my heel on something and knocked the heel off my slipper. When my foot struck the piece it sounded like iron. I fell off the steps and fell down underneath." Upon the completion of the testimony, the defendant demurred thereto, which was overruled and excepted to. Thereupon the defendant requested the court to direct a verdict for the defendant, which was overruled and excepted to. Among other instructions given by the court are instructions numbered 15% and 19. respectively, which read as follows: "No. 152. You are further instructed that an employer is not liable to an employe on account of any injuries sustained by such employe from the negligence of a fellow servant. and all such persons engaged in the same common work are fellow servants, even though one may be a foreman in general charge of the job." "No. 19. Where the master gives to a person power to superintend, control, and direct the men engaged in the performance of work, such person, as to the men underneath him. is a vice principal, and it can make no differ ence whether he is called a superintendent. conductor, boss or foreman. For his negligent acts and omissions in performing the duties of the master the master is liable." To the giving of said instruction No. 19, the defendant duly excepted, and assigns the same as error. The jury returned a verdict in favor of the plaintiff in the sum of $. Within the statutory time, the defendant moved for a new trial, which was overruled, excepted to, and judgment rendered upon the verdict. To reverse said judgment, defendant brings error. We are of the opinion that the petition was not subject to the demurrer directed against it, and that the court did not err in overruling the same. "Where the evidence presents an issue of fact, whether clear or obscure, it is the duty of the court to submit such issue to the jury for its determination." Blair v. Lewis, 57 Okla. 707, 157 Pac. 905. "It is only when the evidence, with all the inferences that the jury can reasonably draw therefrom, is insufficient to support a verdict that the court is authorized to direct a verdict for the defendant." St. L. & S. F. R. Co. v. Clampitt, 55 Okla. 686, 154 Pac. 40. Applying the foregoing rules to the demurrer to the evidence and the request for a directed verdict, we are unable to see that the court committed prejudicial error in overruling the demurrer to the evidence or in refusing to direct a verdict. We are of the opinion that the giving of instruction No. 19 was prejudicial error, by reason of the fact that said instruction is in conflict with instruction No. 152. By instruction No. 151⁄2 the jury are instructed that all the persons engaged in the same kind of work are fellow servants, even though one may be a foreman in general charge of the job, and that the employer is not liable to an employe on account of injuries sustained from the negligence of such fellow servant. while in instruction No. 19 the jury are instructed that where the master gives power to superintend, control, and direct men engaged in the performance of work that he is to the men under him a vice principal, whether he is called superintendent, conductor, or foreman, and for the negligent acts and omissions of such person the master is liable. In other words, in one instruction the court in effect instructs the jury that the company is liable for the neg ligent acts of the said "Bull Gang Boss." and on the other hand he instructs the jury that the company was not liable for the acts of the said "Bull Gang Boss," thus leaving the jury to select or determine the law of the case. "The instructions of the court should clearly and intelligently set forth the law applicable to the issues and evidence submitted, without being conflicting or misleading." K. C., M. & O. R. Co. v. Roe, 50 Okla. 104, 150 Pac. 1035. * * "The jury should not be left to decide between conflicts in the charge, without having their attention directed thereto by the court and being instructed as to which of the an tagonistic principles is correct and applicable, and which should be disregarded." Savannah Electric Co. v. McClelland, 128 Ga. 87, 57 S. E. 91. "Where two contradictory instructions are given a new trial will ordinarily be granted, unless it plainly appears that the jury have not been misled thereby." Union Pac. R. Co. v. Jno. W. Millikin. 8 Kan. 647. "Conflicting or contradictory instructions furnish no correct guide to the jury, and the giving thereof is erroneous. Instructions of this character are misleading, as the jury is not supposed to know when the judge states the law correctly or incorrectly, and they should not be left to decide conflicting principles of law. The giving of contradictory instructions is ordinarily held as grounds for reversal." 38 Cyc. 1604F, and authorities therein cited. * * ST. LOUIS & S. F. R. CO. v. BRUNER. No. 4925-Opinion Filed Dec. 12, 1916. (161 Pac. 788.) Release-Evidence-Burden of Proof. Where the execution of a release for damages for personal injuries is admitted, and fraud in procuring the execution of the same and want of consideration therefor are pleaded, the burden is upon the party executing the release to prove by a preponderance of the evidence such fraud or want of consideration. (Syllabus by Rummons, C.) Error from District Court, Creek County; Wade S. Stanfield, Judge. Action by Florence Bruner against the St. Louis & San Francisco Railroad Company. Judgment for plaintiff, and defendant brings error. Reversed, and remanded for new trial. W. F. Evans, R. A. Kleinschmidt, and E. H. Foster, for plaintiff in error. W. V. Pryor, C. B. Rockwood, and C. W. Lively, for defendant in error. Opinion by RUMMONS, C. This action was commenced in the district court of Creek county by the defendant in error, hereinafter styled plaintiff, against the plaintiff in error, hereinafter styled defendant, to recover damages for injuries received because of the running away of a team attached to a vehicle in which plaintiff was riding, resulting in plaintiff being thrown to the ground and injured. Litigation arising out of this accident has been before this court in case of St. Louis & San Francisco Railroad Co. v. Mollie Bruner, 52 Okla. 349, 152 Pac. 1103, and the case of St. Louis & San Francisco Railroad Co. v. A. D. Bruner, 56 Okla. 682, 156 Pac. 649. Among other defenses pleaded by the defendant in its answer was the execution by plaintiff, in consideration of the sum of $50, of a release discharging defendant from all liability arising out of said accident. To the answer of defendant plaintiff replied, denying generally each and every allegation of new matter therein contained, and denying that she ever accepted any sum of money from defendant or signed any release, or released said defendant from any liability for its wrongful and negligent acts. Plaintiff further alleged in said reply that, if she did sign any release at any time, the same was obtained by fraud and without consideration, and the same is void. This reply was not verified. At the conclusion of the evidence of plaintiff, defendant demurred thereto, which demurrer was overruled, and exception saved to such ruling by the defendant. At the conclusion of the case defendant moved for a directed verdict, which motion was overruled, and exception saved to such ruling. Plaintiff recovered judgment for the sum of $750, and defendant prosecutes this proceeding in error to reverse the same. Defendant makes several assignments of error, but we deem it only necessary for a determination of this case to consider the assignment that the court erred in overruling the demurrer of defendant to the evidence of plaintiff. The plaintiff not having verified her reply to the answer of defendant, the execution of the release set up in defendant's answer was admitted, and the burden was upon the plaintiff to establish the facts alleged in her reply seeking to avoid such release. St. Louis & San Francisco Railroad Co. v. Bruner, 52 Okla., 349, 152 Pac. 1103, and cases therein cited. Plaintiff offered no evidence in chief tending to show that the release relied upon by defendant was obtained by fraud or without consideration, nor did she offer any evidence whatever tending to impeach such release. Settlements and compromises fairly made and in good faith are favored by the law as a discouragement to litigation, and in the absence of evidence tending to impeach a compromise settlement entered into in a personal injury case, on any of the grounds sufficient in law to avoid such settlement, such settlement will be upheld. St. Louis & San Francisco Railroad Co. v. Chester. 41 Okla. 369, 138 Pac. 150. The plaintiff having failed to offer any evidence upon which the release relied upon by the defendant could legally be set aside, the trial court erred in overruling the demurrer of the defendant to the evidence of plaintiff. This cause should be reversed and remanded, with directions to grant defendant a new trial. By the Court: It is so ordered. MIDLAND VALLEY R. CO. v. RIPPE. No. 6954.-Opinion Filed Nov. 14, 1916. 1. Appeal and Error-Review-Jury Question. The question of actionable negligence is ordinarily for the jury, and where there is evidence or inferences that may be drawn therefrom, reasonably tending to support the findings of the jury that there was actionable negligence which was the proximate cause of the injury suffered, this court will not disturb such verdict. 2. Poisons-Liability for Keeping-Duty. Where a poisonous compound is kept upon the right of way of a railroad company, it is its duty to keep such poisonous compound in a safe place, and whether or not the place in which such poisonous compound is kept in a safe place is a question of fact for the jury. 3. Poisons-On Railroad Right of WayDuty of Care. While a railroad company is not required to fence its right of way at depots and crossings, it is its duty to properly fence or otherwise so guard a poisonous compound kept upon its right of way as not to leave the same accessible to trespassing cattle. 4. Pleading - Amendments - Trial Amendments. Under the liberal rules of pleadings in this state, it is not an abuse of judicial discretion to permit, after the close of the evidence, an amended petition to be filed which does not state a different matter-another subject of controversy-than the one stated in the original petition, and does not substantially change the action or its defense. the evidence, or to direct a verdict for the defendant. 9. Poisons-Right to-Denial. The record in this case carefully examined, and it is found that the court did not err in refusing defendant a new trial. (Syllabus by Collier C.) Error from District Court, Osage County; R. H. Hudson, Judge. Action by John Rippe against the Midland Valley Railroad Company. There was a judgment for plaintiff, and defendant brings error. Affirmed. A. R. Museller, for plaintiff in error. Farrar L. McCain and O. E. Swan, for defendant in error. Opinion by COLLIER, C. This is an action brought by the defendant in error against the Midland Valley Railroad Company and board of county commissioners of Osage county, to recover damages for the loss of 28 head of cattle, alleged to have been caused by said cattle drinking poisonous water, which, by negligence of the plaintiff in error, flowed from a dipping vat on the right of way of said company adjacent to the land of the defendant in error, upon the lands of defendant in error. Hereinafter the parties will be designated as they were in the trial court. At the conclusion of the plaintiff's evidence, each of the defendants demurred to the evidence of the plaintiff, which demurrer was sustained as to the said board of county commissioners, and the said cause dismissed as to the said board. The demurrer of said company to the evidence was overruled, to which the said company duly excepted. At the conclusion of the evidence the said company moved for an instructed verdict in its favor, which was overruled and excepted to. Thereupon the plaintiff moved to amend his petition so as to conform to the evidence, to which the defendant company objected. The court permitted the petition to be amended as moved, to which the defendant duly excepted. The material allegations of the petition as amended are that the defendant company maintained dipping vats, storage tanks, and cooking pans on its right of way, which contained certain poisonous waters, and that the said defendant failed and refused to protect the same from stock by keeping up its fences around and about the same, and also neglected to protect the same from a rain which fell, and because of such neglect to protect the same as was its duty to do, said dipping vats and cooking pans were filled to overflowing by said rain; that some of said water so poisoned ran into the pasture of plaintiff and around said vats and pans and upon the grounds adjacent to said vats and pans, and same was left standing in the cooking vats on said premises, the same not being properly fenced and protected; that by reason of said neglect of the defendant the cattle of said plaintiff drank of the poisoned water in the said pasture of plaintiff, and also escaped through the defective fence in and around the said vat and cooking pans, and drank out of the pools of poisoned water near said vat and out of said vat, and that by reason of drinking said poisoned water, so negligently made accessible, the said 28 head of cattle died. The uncontradicted evidence is that the plaintiff owned pasture lands adjacent to the right of way of the defendant company, and that upon said right of way the said company maintained a dipping vat and the other paraphernalia for dipping cattle for the eradication of Texas ticks; that the said “dip" was composed of arsenic and other materials; that a large quantity of said dip was left in said vats and dipping pans; that on the 7th of June, 1913, a heavy rain came, which caused the said vats to overflow, and part of such overflow to flow upon the lands of plaintiff and form a pool; that on the 8th day of June, 1913, and within 2 or 3 days thereafter, 28 head of said cattle suddenly died; that there were tracks of cattle around said dipping vat and pools of water near the same; that in the cooking pan was a solid substance, which was shown by analysis thereof to contain some 14 per cent. of arsenic, and that samples of water from said vat had been analyzed and shown to contain arsenic. The evidence was in conflict as to the condition of the fence around the vat, and whether or not the gate which opens to the vat was shut or closed, and whether or not the cattle gained access to said vat and pans through the gate or through a defective fence. It was further shown in evidence that the dipping vat and pans belonged to the said company, and that the dipping vat had been used by Osage county. There was expert testimony as to the quantity of arsenic that it would take to kill an animal, but the same was in conflict, and there was no direct evidence as to what quantity of water which had been poisoned the cattle drank, or what quantity of arsenic had been licked from the pan, while there was evidence tending to show that the licking by the cattle of the solid substance which was left in the pan would produce death. Against the objection and exception of defendant, an expert witness was asked: "What would you say as to the possibility or probability of stock grazing in a pasture within the width of the railroad right of way, plus 95 yards, being poisoned by overflow or seepage from a dipping vat, storage pan, and cooking pan, after a heavy rain, by water flowing into the pasture and into the pools from which they drank?" To which the witness answered: "Well, it would be possible there would be enough go through that might kill, but I don't know how much went through, or anything like that." Also, against the objection and exception of the defendant, a witness was asked the condition of the fence "in the spring," and answered, "It was in bad shape." The smallest valuation of the cattle that died, shown by the evidence, was-together with the expense of burying the same, and the interest thereon-less than the verdict rendered. Of the instructions given by the court instructions numbered 1, 4, 5, and 6 were duly excepted to, respectively, and are assigned as errors. Said instructions read: "(1) You are instructed that this is an action by the plaintiff, John Rippe, against the defendant, Midland Valley Railroad Company, to recover damages for the loss of 28 head of cattle, which the plaintiff claims died as the result of the negligent acts of the defendant company. Plaintiff claims in his petition that the defendant, on or about the 8th day of June, 1913, was the owner of and had in his possession and under his control certain dipping vats, storage tanks, cooking pans, paraphernalia, lands, and fences. the same being located on or near the right of way of the defendant near the town of Foraker, Osage county, Okla. That said vats, storage tanks, and cooking pans were, on and before the date mentioned, filled with certain poisonous waters which had theretofore been used in dipping cattle to remove from them what is commonly known as the cattle tick. That the defendant railroad company, being the owner of and in the possession and control of said dipping vat, storage tank, cooking pans, and paraphernalia, neglected and refused to protect the same from stock by keeping up its fences around and about the same, and also neglected to protect the same from a rain which fell on or about the 8th day of June, 1913, and that because of such neglect to protect the same said dipping vats, storage tanks, and cooking pans were filled to overflowing by said rain, and that some of said water, so poisoned, ran away from said vats across the railroad right of way and into the pasture of the plaintiff, and around the vats, and over the ground adjacent to said vats, same being left standing in the cooking vat on said premises, the same not being properly fenced and protected, and that the fences of defendant along its right of way in the immediate vicinity were not properly kept up, and that by reason of this neglect on the part of the defendant, the cattle of plaintiff drank of the poisoned water |