to the questions asked T. J. Kelley, a section foreman of the railway company, who was engaged upon the section of the railroad passing through plaintiff's land. After showing that he was experienced in railroading, and in the building and repairing of cattle-guards, and also that he was acquainted with the cattle-guards in question, the inquiries were made, if, in his opinion, the cattle-guards in question were properly constructed; were the cattle-guards constructed in the usual and ordinary way of constructing cattle-guards by railways; and if it was possible to construct a guard that would prevent breachy stock from crossing it. These questions called merely for the opinion of the witness, and we think there was no error in excluding them from the jury. As a general rule, opinions of witnesses are not admissible in evidence. The facts should be stated, and leave the jury to draw inferences and form opinions upon the facts. There are exceptions to this rule, as upon a question of skill or science, or where the subject-matter of inquiry is of such a character that jurors not having experience would not be apt to reach a correct judgment without the aid of expert testimony. But we think the case at bar does not come within any of the exceptions. Cattle-guards are in such common use, and are so simple in construction, that practical business men of common experience, when given the facts, can, without the aid of opinion, reach a correct conclusion as to whether the guards were proper and sufficient to complete the inclosure. A jury, coming as it does from the body of the people, many of whom are necessarily familiar with the habits of domestic animals, and with what is necessary to restrain them, is probably more capable of determining whether a cattle-guard is proper and sufficient to prevent stock from crossing it than the man who is experienced only in building cattle-guards. The supreme court of New York has passed upon this question, and held that the inquiry of whether a cattle-guard on a railroad is properly constructed is not the subject of expert testimony, but that when the manner of construction is shown, the jury is competent to determine whether it is suitable and sufficient without opinion evidence. In deciding the question the court say "That when the manner of its construction was shown, the jury was competent to speak of its fitness for use, as was any person engaged in its construction, or in the construction of such guards, however numerous. It does not require experience in the construction of cattle-guards to know that if the timbers composing the superstructure are so near each other that the feet of horses or cows will not pass between them, the guard furnishes no obstruction to cattle desiring to pass over it. If the opening between the timbers is only two inches, and the animal's foot is five inches in length, it can pass almost as easily as if the timbers were in actual contact. No amount of opinions could justify the finding that a cattle-guard so constructed was fit for the use for which it was constructed, however skillful and competent the witness might be." Swartout v. Railroad Co. 7 Hun. 571; Rog. Exp. Test. 10; Lawson, Exp. & Op. Ev., rule 24; St. Louis & S. F. Ry. Co. v. Edwards, 26 Kan. 72; Enright v. Railroad Co. 33 Cal. 236. The facts in regard to the manner in which the guards were constructed, and in respect to whether they served to complete the inclosure and obstruct cattle from passing within, were not only available, but were fully offered in evidence. The testimony tended to show that the pits underneath the guards were only from 14 to 16 inches deep, and some of the timbers across the pits were so close together that the foot of a horse or cow could not pass between them, and that cattle crossed over them with but little difficulty. Altogether, the testimony abundantly shows that they were insufficient. 2. It is next urged as error that the jury assessed damages against the railway company for the injury done to plaintiff's corn by stock which entered his inclosure at points other than over the alleged defective cattle-guards. Of course, the company cannot be held liable in this action beyond the damage caused by its failure to construct and maintain proper cattle-guards. It is true, there was some testimony to the effect that stock once gained an entrance into plaintiff's corn-field through the fence, and the jury, in answer to special questions, say that 575 bushels of corn were destroyed by cattle and other animals on the plaintiff's premises, and that the damages sustained by plaintiff by reason of this injury to his corn was $161. In their general verdict they evidently allowed the plaintiff this amount for damages done to the corn by the railway company. The special questions immediately preceding these, however, related to stock which came into plaintiff's inclosure over the defective cattle-guards, and obviously the corn referred to by the jury in their answers was that which was destroyed by the cattle that crossed over the defective guards. The jury had been specially charged that the railway company was not liable for injury done by cattle crossing at other points. The findings, when read together, will fairly bear the interpretation. that the jury only took into account and computed, in their allowance to the plaintiff, the injury done to the plaintiff's corn by cattle crossing over the cattle-guards; and where a finding of fact made by the jury is susceptible of two interpretations, that one should be given it which would make it consistent with the other findings, and with the general verdict, rather than an interpretation which would overturn and destroy the general verdict. Simpson v. Greeley, 8 Kan. 586. 3. It is finally urged that the court erred in telling the jury that, in addition to the value of the corn destroyed, the owner of the crop can recover a reasonable compensation for the time and labor necessarily expended in trying to protect his crops from injury by guarding the opening in the inclosure caused by the defective cattle-guards, and erred in including such compensation in the judgment rendered. This rule was enunciated by the court in the case of St. Louis & S. F. Ry. Co. v. Sharp, 27 Kan. 134, and of its correctness and justness we have no question. In that case it was said: "An owner of the crops, upon ascertaining that injuries were being done thereto by the cattle and other animals which had entered at the places where the railway company had failed to erect suitable cattle-guards, was bound to use proper diligence to prevent further injuries to his crops." This duty being enjoined upon the plaintiff, the expense necessarily incurred in its performance is the natural and direct consequence of the neglect of the railroad company, and for which it should be held liable. Counsel say that under this rule there would be no limit to the expense which the owner of the crop might incur in an effort to protect his crops, and that the expense might even be made to exceed the value of the crop, or the injury which could have been done had not the effort to protect the crop been made. He is only entitled to reasonable compensation for the time and labor necessarily expended in a reasonable effort to protect his crops, and would not be entitled to compensation beyond the damage which might be done by reason of the railroad company's neglect. For instance, if the extent of the injury which could be done to his property by the failure of the railway company to maintain proper cattle-guards did not exceed $500, he could not recover for time and labor spent in protecting such property an amount exceeding that sum. The rule requiring the owner of the crop to use an ordinary and reasonable effort to protect his crop, and giving him compensation therefor, must generally operate beneficially in the interests of the railroad company, whose neglect makes such expense necessary. The effort must generally have the effect of preventing greater injury and loss, and to that extent reduces the amount for which the company would be liable. In Iowa, under a like statute, the supreme court has well said— "That there was no error in an instruction given, to the effect that a plaintiff might recover as damages a reasonable compensation for time and labor necessarily expended in trying to save his crops from destruction. If he, in the exercise of ordinary efforts to prevent the destruction of his crops because of defendant's fault, expended money or labor, he should be compensated therefor. This is one of the natural and ordinary consequences of the neglect of the appellant to comply with the statutory requirement to put in the cattle-guard; and if plaintiff is not allowed to recover for this, the law fails to compensate him fully for the injury inflicted, while it required at his hands the performance of this duty. So, also, if his cattle were necessarily injured because of the failure of defendant to put in the cattle-guard, the plaintiff should, upon the same principle of compensation, be allowed to recover therefor." Smith v. Chicago, C. & D. R. Co. 38 Iowa, 518. The authorities cited by counsel for the railway company contain nothing inconsistent with this rule, or the views herein expressed. Seeing no error in the record, the judgment of the court below must be affirmed. (All the justices concurring.) (33 Kan. 449) HAFER and others v. HAFER and others. 1. HUSBAND AND WIFE-ANTENUPTIAL CONTRACTS. The statutes of Kansas recognize the right of partics contemplating marriage to make settlements and contracts relating to and based upon the consideration of marriage, and an antenuptial contract providing a different rule than the one prescribed by law for settling their property rights, entered into by persons competent to contract, and which, considering the circumstances of the parties at the time of making the same, is reasonable and just in its provisions, should be upheld and enforced. 2. SAME-CONTRACT SUSTAINED. H., a widower, who was 56 years of age, and had a family of seven children, all of whom had reached majority except the youngest one, and who, with the united labor of his deceased wife and children, had accumulated a property of the value of $14,000 and upwards, in good faith entered into an antenuptial contract with B., a maiden lady of 26 years of age, who was possessed of two cows and $40, whereby they agreed that each should separately enjoy and have the untrammeled control of his and her own property, as well as the increase and profits thereof, and that if she should survive him she would receive from. his estate a child's part; "that is, his estate shall be divided into an equal number of parts, equal to the number of children of said H., plus one, and the said B. shall receive one of said parts, and no more." On the same day they were married, and in less than three years afterwards H. died, leaving property of the aggregate value of $19,000. The widow claimed an allowance of onehalf under the law of descents and distributions, alleging that the contract was void because it was inequitable and uncertain. Held, that the provisions therein made for the widow were just and reasonable, and that the contract cannot be held invalid on the ground of uncertainty in stating the share of his estate to which she was entitled. 3. SAME-MARRIAGE A GOOD CONSIDERATION. Marriage is a good and sufficient consideration to sustain an antenuptial contract. 4. SAME-HOMESTEAD-PARTITION. Where the homestead of an intestate is still occupied by his widow and minor child, it is not subject to partition until the widow again marries or the child reaches majority, notwithstanding the antenuptial contract of the widow and her deceased husband, and not withstanding the minor may by her next friend ask for its partition. Error from Jackson county. Action for partition of the real estate of Godfrey Hafer, who died intestate on the twenty-fourth day of June, 1882, and left surviving him Virginia Hafer, his widow, and Benjamin Hafer, William G. Hafer, John H. Hafer, Louisa Hafer, Emma B. Hafer, George Hafer, and James Hafer, his children. Benjamin Hafer and other of the children filed in the district court of Jackson county their petition making the widow, Virginia Hafer, James Hafer, George Hafer, and certain judgment creditors and the grantee of James Hafer, defendants. Therein it was alleged that on the twenty-first day of October, 1879, Godfrey Hafer had entered into an antenuptial agreement, in writing, with Virginia Hafer, nee Virginia Bowser, in the following terms: "Antenuptial Agreement made October 21, 1879, between Godfrey Hafer and Virginia Bowser, of Jackson County, Kansas. "This indenture, made this twenty-first day of October, 1879, by and between Godfrey Hafer and Virginia Bowser, each of the county of Jackson and state of Kansas, witnesseth: "That the said Godfrey Hafer, for and in consideration of the covenants and agreements on the part of the said Virginia Bowser hereinafter contained, has this day promised and agreed, and does hereby covenant, promise, and agree, to and with the said Virginia Bowser, that he will marry and receive in marriage the said Virginia Bowser upon the terms, covenants, agreements, and conditions hereinafter set forth. "That the said Virginia Bowser, for and in consideration of the promises, covenants, and agreements on the part of the said Godfrey Hafer hereinbefore mentioned and hereinafter set forth, has this day promised and agreed, and does hereby covenant, promise, and agree, to and with the said Godfrey Hafer, that she will marry and receive in marriage the said Godfrey Hafer upon the terms, covenants, agreements, and conditions herein contained. "That the said Godfrey Hafer and Virginia Bowser, and each of them, being fully advised, and with full knowledge of what their right under the law of the state of Kansas would be in and to the property of the other if married without an agreement made with reference to said property before said marriage, and for the purpose of settling all questions as to the right of each or either of said parties in and to their said property and the property of each of them during the continuance of said marriage and after separation by death or otherwise, as we, the said parties, deem just and equitable between ourselves, our heirs, executors, administrators, and assigns, and for the purpose of preventing contention between any and all persons now interested in said property, or hereafter to be interested in the same, and in view of said marriage, and for and in consideration of the promises, covenants, and agreements herein contained, the said Godfrey Hafer and Virginia Bowser, and each of them, for themselves, their heirs, executors, administrators, and assigns, do hereby promise, covenant, and agree, and consent, to and with each other, that the said Virginia Bowser may and shall during the continuance of said marriage so agreed upon by and between said parties as aforesaid, and after separation by death or otherwise, separately own, use, possess, convey, and dispose of all property of every kind, both personal and real, belonging to her before said marriage, and all the rents, issues, and profits thereof, to whomsoever she may choose, and in the same manner and to the same extent that she now can or then could have done had such marriage not taken place, and that at the death of said Virginia Bowser all property separately owned by her, both real and personal, shall pass and vest in her heirs and assigns in the same manner and to the same extent that it would had such marriage not taken place. "That if the said Virginia Bowser shall outlive the said Godfrey Hafer, and shall live with him during the continuance of said marriage, and be his wife at his death, she shall receive of and from the estate of the said Godfrey Hafer a child's part, and no more; that is, his estate shall be divided into an equal number of parts, equal to the number of children of the said Godfrey Hafer, plus one, and the said Virginia Bowser shall receive one of said parts, and no more. "That the said Godfrey Hafer, his heirs and assigns, shall, during the continuance of said marriage so agreed upon by and between said parties, and after separation of said parties by death or otherwise, and forever, separately hold, own, use, possess, convey, and dispose of all of the property and estate, both personal and real, now belonging to said Godfrey Hafer, and all the rents, issues, and profits of said property, and every part thereof, (except the said part above called a child's part, to be received by said Virginia Bowser, as above stated,) to whomsoever the said Godfrey Hafer, his heirs and assigns, may choose, and in the same manner and to the same extent that he or they could have done had such marriage not taken place, and that at the death of said Godfrey Hafer all property now belonging to him, and all the rents, issues, and profits of said property, and all property received by said Godfrey |