gas from being drained from said leases through | found was necessary to be done in order wells on adjoining leases. "The court further finds that it was necessary, in order that the terms of the original leases be carried out, that the property be developed, and that the lease be kept in proper condition, and that, in order to do this, it was necessary to equip said lease by the purchase and placing thereon of different kinds of machinery, tools, piping, tubing, and supplies, and that said equipment was purchased by the Nemo Oil Company and placed thereon. "The court further finds that the Nemo Oil Company expended in the development, equipment, maintenance and operation of the lease in question the sum of $105,138.57, and that all of the equipment, supplies, tools, lumber, and other materials purchased with any of said amount and placed on said lease still remain thereon, and were taken possession of, together with the said leases by the Zelma Oil Company, in October, 1919, and that the said Zelma Oil Company is still in possession of said lease, supplies, tools, equipment, lumber, and machinery so placed thereon. "The court further finds that the Nemo Oil Company placed certain equipment on said leases and afterwards sold the same, but that the amounts paid for said equipment are not included in the sum of $105,138.57; that in addition to the sum of $105,138.57 the Nemo Oil Company expended for the purchase of said leases the sum of $11,100; that the Zelma Oil Company did not receive the benefit of said sum or any portion thereof, except a sum representing the difference between the amount paid the American National Bank, $8,100, and the Producers' State Bank, $6,500, to wit, $1,600. "The court further finds that the Nemo Oil Company economically and properly operated and developed said leases, and the prices paid for the development, equipment, maintenance and operation, and all labor, drilling, casing, supplies, machinery, and operating expenses, were fair and reasonable, and were necessary for the proper development and operation of said leases." to preserve the subject of the litigation and prevent its loss to the plaintiffs. We adhere to the rule announced by this court in Barnes v. Winona Oil Co., 200 Pac. 985, not yet [officially] reported, the syllabus of which is as follows: peaceable possession of land upon which he "Where a person in good faith entered into owns an oil and gas lease, and produces oil and gas therefrom, and thereafter said lease is declared void or invalid, the measure of damages to the landlord in an action for an accounting for the oil and gas produced from said premises by the lessee is the value of the oil at the surface or in pipe line or tanks wherever the same may be, less the reasonable cost of producing the same" -and agree with the reasoning of that case wherein it is said: "In our judgment, what would amount to a willful taking of property applicable to persons in possession of land producing mineral ores therefrom or cutting timber on the land, is not applicable to a person in possession of land producing oil and gas therefrom. The reason for the rule is very apparent. If a person in possession under a mining lease is producing mineral ore therefrom, and has notice that the landlord considered the lease invalid, or that a third party claims a superior lease upon the land, the party might cease mining the ore, or from cutting the timber, until the title to the ore or timber is determined, without irreparable injury either to the landlord or the lessee, but in case of a person in possession of land producing oil and gas therefrom a different condition exists. If the party in possession shuts in the wells, the oil and gas is liable to be drained by adjacent landowners, or he has the risk of salt water ruining the wells, and in many other ways the wells may be ruined by failure to operate or to produce the oil or gas therefrom, thereby causing irreparable damage to the property. It is essential to produce the oil and gas to protect the interest of all the parties, and to hold that the further operation of said lease by the person in possession would amount to a willful taking and appropriation of the property of another would be placing too narrow a construction on the word 'willful.' "To permit the owner of the land or another lessee to recover from the person who is in peaceable possession of the land, and producing oil or gas therefrom, the value of the oil at the surface, without deducting therefrom the cost of producing, would be analogous to permitting the recovery of exemplary damages. From these findings of fact, it appears that it was necessary for the preservation of the interests of the parties that the property be developed. If the Nemo Oil Company had not proceeded with the work, the Zelma Oil Company would have been compelled to do so, or the property would have been destroyed or damaged or the leases forfeited for failure to drill offset wells, and of course, the Zelma Oil Company would have expended money in this operation, and as the Nemo Oil Company "economically and properly operated and developed said leases, and the prices paid for development, equipment, * maintenance, and operation, and all labor, drilling, casing, supplies, machinery, and operating expenses, were fair and reasonable, and were necessary for the proper development and operation of said leases," we are unable to see that plaintiffs are injured by said judgment, and under the facts, it would, in our opinion, be inequitable to penalize the defendant for doing that which the court "To hold that the taking of the oil is willful, by a person who has obtained possession in an orderly manner without creating a breach of peace, and is in peaceable possession of the been declared invalid or void, and doing only land, operating under a lease which has not what he is entitled to do under his contract, we think would be contrary to the intention and spirit of the law that the damages should be compensatory only." (203 P.) It was evident that this was the view taken by the plaintiffs at all times until after a reversal of the judgment, for in the amendment to their petition they state in substance that the Nemo Oil Company has been in possession and obtaining oil from the leases since the 2nd day of July, 1916, and that the plaintiffs are entitled to an accounting. It it appears that the Nemo Oil Company has expended money on the development of said leases and wells and has expended money for and on behalf of the plaintiffs and the Zelma Oil Company in excess of the amount it has derived from the sale of said oil and gas from the premises, then the plaintiffs will reimburse defendant Nemo Oil Company for any balance found due, and they offer to do full and complete equity. And in the original brief submitting the case to this court they say: "In conclusion, the plaintiffs in error pray that the findings and judgment of the lower court be reversed, and that judgment be here rendered in favor of the plaintiffs in error, canceling the instruments described in the pleadings. We also ask that the case be remanded for an accounting. If defendants have received more income from the property than the reasonable value of the improvements they have placed on it, plaintiffs are entitled to judgment for the difference. On the other hand, if the value of the improvements exceeds the income derived by defendants from the property, the plaintiffs offer to do equity and reimburse the defendants for such difference, if any." The statements contained in their petition and brief, and their prayer for relief are inconsistent with their present demand for the highest market price for the oil and gas sold without any deduction for expenditures, and as this court granted them the relief sought they cannot now be heard to complain. The plaintiffs in error contend that the opinion of this court as to the proper method of accounting is obiter dictum and not binding upon the trial court. But it is unnecessary to determine this question, for the reason that it is immaterial whether the expression of this court be treated as the law of the case or as obiter dictum, or whether it be considered as merely a suggestion to the trial court, as a proper method of accounting, because under the conclusions herein reached the method suggested by this court and adopted by the trial court was proper, and was in accordance with the prayer of plaintiff's amended petition. The defendant in error Sinclair Oil & Gas Company has filed a cross-petition in error, complaining of the judgment rendered against it, but has failed in its brief to point out wherein the judgment of the trial court is erroneous. We conclude that the judgment of the trial court is correct, and it is therefore affirmed. HARRISON, C. J., and PITCHFORD, McNEILL, and ELTING, JJ., concur. (84 Okl. 211) SAND SPRINGS RY. Co. v. SMITH. (No. 10357.) (Supreme Court of Oklahoma. Nov. 15, 1921. Rehearing Denied Jan. 10, 1922.) (Syllabus by the Court.) 1. Carriers 320 (16)-Whether it is negligence to allow cars to become so crowded that a passenger is compelled to stand on platform is a jury question. While it cannot be declared negligence as a matter of law for a street railway company to allow its cars to be crowded with passengers, yet if the company permits its cars to become so crowded that a passenger, while standing upon the platform of a car, received injuries when the car collided with another car of the defendant, the question of whether the overcrowding of the cars is negligence is one of fact for the jury. 2. Carriers 336-Riding on a crowded car or platform on carrier's invitation not contributory negligence per se. The mere fact that a person rides on a crowded car or the platform of such a car on the invitation of a railway company cannot be regarded as contributory negligence per se. 3. Carriers 296-One riding on a crowded car assumes the inconvenience therefrom, but the company is not relieved from using due care for such passenger's safety. One who rides on a crowded car assumes the inconvenience resulting from its crowded condition, but the company is not for that reason relieved from the responsibility of using due care for the safety of the passengers invited upon such crowded cars. 4. Carriers 347 (7)-Whether one riding on a crowded platform resulting in injury is guilty of contributory negligence is for the jury. Whether a person who enters a car of a street railway company which is already crowded and rides on a crowded platform, from which he is injured, is guilty of contributory negligence is a question to be determined by the jury under all the circumstances brought out in the evidence. 5. Appeal and error 1001 (1)—Verdict supported by evidence not disturbed. In a civil action, triable to the jury, where there is competent evidence reasonably tending dicial errors of law are shown in the instructo support the verdict of the jury, and no prejutions of the court or its ruling on law questions presented during the trial, the verdict and finding of the jury will not be disturbed on appeal. For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes 6. Damages 132(3) — Trial 295(10) Record examined, and held that there was no reversible error in the record, and ordered that the judgment of the trial court be affirmed. carrying passengers; that on the 4th day of July, 1912, the said defendant was operating said railway as aforesaid, and running both gasoline and electric cars over said line, and carrying passengers for cash fares; that on said date about 9 o'clock p. m., said defendant received plaintiff on one of its said electric cars, which was being run by means of electricity from a wire overhead, and said plaintiff had paid his cash fare to the city Appeal from Superior Court, Tulsa County; of Tulsa; that said defendant agreed and M. A. Breckenridge, Judge. Action by Roy Smith, by his father and next friend, W. B. Smith, against the Sand Springs Railway Company for damages for personal injuries. Roy Smith having attained his majority, was substituted as plaintiff. Verdict and judgment for plaintiff, and the defendant appeals. Affirmed. Stuart, Cruce & Riddle and H. O. Bland, all of Tulsa, Paul P. Pinkerton, of Sand Springs, and E. J. Doerner, of Tulsa, for plaintiff in error. Walker, Underwood & Rodolf, of Tulsa, for defendant in error. JOHNSON, J. This is an appeal from the superior court of Tulsa county. On the 5th day of May, 1913, Roy Smith, by his father and next friend, W. B. Smith, commenced an action in the superior court of Tulsa county against the Sand Springs Interurban Railway Company as defendant to recover damages for alleged personal injuries received by the said Roy Smith on the evening of July 4, 1912, while a passenger on one of defendant's trolley cars. Before the case was tried be low, Roy Smith attained his majority and was by order of the court substituted as plaintiff in his own right, and on the 6th day of December, 1917, the case was tried to the court and jury, and resulted in a verdict and a judgment thereon in favor of the said plaintiff in the sum of $3,000, to reverse which judgment this proceeding in error was commenced. For convenience the parties will hereinafter be referred to as plaintiff and defendant, respectively, as they appeared in the trial court. The pleadings of the parties are quite voluminous, and a brief summary of which is substantially as follows: The plaintiff alleged, in substance, that the defendant was a corporation, and was at all times hereinafter mentioned engaged in the operation of a line of interurban railway between the city of Tulsa and Sand Springs, being about six miles west and northwest of Tulsa; that said defendant ran and operated both gasoline and electric cars over and upon said line of road between Tulsa and Sand Springs for the purpose of transporting and undertook to safely transport and carry said plaintiff from Sand Springs to Tulsa over its line; that shortly before said electric car upon which plaintiff was riding left the station of Sand Springs one of the gasoline cars of said defendant, which was being used on said date to carry passengers over said line, left said station with many passengers for Tulsa; that said gasoline car had not proceeded very far from Sand Springs, but, on account of the defective condition of the engine and machinery with which said car was being run, said car stopped on the track of the defendant company; that it was a dark night, and the agents and servants of the defendant company negligently failed and neglected to put up any danger signals or lights, or send any one back on the track of said defendant company to notify the agents and servants of said company who were running and operating the electric car upon which this plaintiff was riding of the danger ahead; that the electric car upon which this plaintiff was riding, being very heavily loaded and running at full speed, was proceeding in an easterly or southeasterly direction on said railway line between Sand Springs and the city of Tulsa, when the said electric car collided with and ran into the gasoline car standing on the track of the said defendant, as aforesaid; that the electric car crashed into said gasoline car with great force, tearing off the front end of said electric car, and that by reason of said collision this plaintiff was knocked down and thrown forward and out of the front end of said car with great force and violence, and was bruised, mangled, wounded and rendered unconscious; that said electric car was being run and operated by the agents and servants of the said defendant in a careless and negligent manner; that the operators of said car were green, unskilled, and inexperienced men in the running of electric cars; that the brakes and appliances of said electric car, the technical name of which is unknown to said plaintiff, by which said car was operated, were defective and out of order, and failed to work, and that if said car had been in proper repair and operated by capable and competent men said car could have been stopped and said accident avoided; that the plaintiff received For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes (203 P.) in said collision permanent and lasting injuries as follows: His right ankle was badly sprained and wrenched; both hands bruised and skinned, forehead badly cut and gashed; skull badly fractured and thrust in; that all of said injuries were caused by the negligence, mismanagement, and want of care of the servants, agents, and employees of said defendant, and the negligent management and control of said gasoline car and the said electric car which were being run by them, and particularly the electric car upon which this plaintiff was riding on said date; that the plaintiff was without fault in the premises. Plaintiff further states that the cut and gash upon his forehead has left a permanent scar, which has disfigured him permanently, and that the fracture of the skull, as above described, has permanently injured him; that by reason thereof he has suffered, and still suffers, great and excrutiating bodily pain, and has undergone great mental suffering and worry; that he has been unable to study or attend school since said injury; that by reason of the above and foregoing injuries, all of which were caused by the negligence and incompetency of the agents and servants of said defendant, this plaintiff has been injured in the sum of $5,000. The defendant answered, admitting that it was a corporation and engaged in operating a railroad as alleged by the plaintiff, but denied generally and specifically the negligence charged by the plaintiff, and alleged that if the plaintiff was injured it was due to his own negligence, and specifically set out such alleged contributory negligence on the part of the plaintiff, which was, in substance, that at the time the plaintiff boarded a car of the defendant he and others, consisting of a vast multitude of people, made a rush for said car and overloaded the same, against the protest of the servants of the defendant in charge of said car, insomuch so that such servants were not afforded room to work and operate said car, and that the plaintiff voluntarily assumed a dangerous position on said car on the front platform or vestibule thereof, knowing that such position was dangerous and hazardous, and that by reason of his conduct assumed an extrahazardous risk by reason of his said position on said car. To the answer of the defendant the plaintiff filed a reply, consisting of a general denial. The issues thus formed by the pleadings consisted in a charge by the plaintiff of primary negligence on the part of the defendant, and as a direct and proximate result thereof the plaintiff received the injuries complained of, and in answer to which the defendant denied such charge of primary negligence, and alleged contributory negligence 203 P.-14 of the plaintiff which resulted in his injuries, which charge of contributory negligence the plaintiff denied. The undisputed evidence showed, in substance, that on July 4, 1912, the date of the injury, there was a picnic at Sand Springs Park, and that an immense gathering of people had assembled there on that date, and that shortly after 9 o'clock p. m., the plaintiff with a companion, Floyd Riggs, by name, with the vast throng of people, boarded the defendant's trolley car No. 25, for the purpose of returning to Tulsa, and that a multitude of persons attempted to board said car, and a sufficient number thereof boarded and loaded said car to its fullest capacity, both inside and out, got upon the same, and the car, thus loaded, started, and after proceeding a short distance it reached the summit of what was a long, steep grade, and that the motorman and conductor lost control of said car, and by reason thereof the car ran away, during which time it attained a rapid rate of speed, a number of witnesses testifying to from 25 to 35 miles an hour, and that at a distance of some three-quarters of a mile, ran into the rear of another one of the defendant's cars, which was designated as a gasoline motor car, which was much heavier than the trolley car. Said collision resulted in killing and injuring a number of persons, and that the plaintiff was among the latter. The plaintiff testified in his own behalf that when he boarded the car the interior of the car proper was crowded so that he could not get in; that he stepped upon the front platform to the rear of the motorman, and at that time some four or five others were upon the platform, and that others continued to get upon the platform until it became also greatly crowded, but that the employees in charge of the car made no protest against his boarding the same, nor the others that immediately followed, or that he or they get off the car before the same started. The plaintiff testified to the fact of the two cars colliding, but that he did not remember anything else that happened until about 3 or 4 o'clock the next morning, when he regained consciousness, and was near or about his father's home, several miles from the scene of the accident, and was riding in an automobile with his companion, Floyd Riggs and another, who took him home. He further testified to the character of his injuries, which consisted practically as alleged in his petition, and introduced other witnesses, consisting of his father and mother and a doctor, Frank Riggs, and others, as to the nature and extent of his injuries, his witnesses testifying that at the time of the injury he was a school boy about 16 years of age, and that when school opened in September after the date of the injury, he attempted to away after the car left Sand Springs; that Judge Oliphant spoke to him first about the way the car was running; that he heard the conductor holler back to the motorman; that the motorman seemed to be powerless to control the car; that he (witness) was sitting down on the seat and braced himself when the crash came; that they had trouble working the brakes on the car when they went out, and that the car was going about 25 miles per hour at the time of the accident. B. E. Capps testified for the plaintiff that he was returning on the motorcar that was struck by the trolley car; that the motorcar had stopped, and there was no station there; did not know what it stopped for; he saw the conductor of the motorcar get off the car; that he could not say how long the car had been standing there at the time of the accident, he would say five minutes, though, or more;" "I do not know how much more." attend school, but that on account of his in- Jorder; that the witness knew something was juries he continually suffered from severe wrong with the car, and noticed it right headaches, and by reason of the same could not study, and that such trouble continued, insomuch so that he had never thereafter been able to attend school and pursue his studies, all of which was corroborated by the testimony of his father and mother, and that at the time of the trial, 5 years after the injury, he continued to have headaches from time to time as a result of such injury. As to the cause of the runaway of the trolley car, the testimony was in conflict. The plaintiff testified that when it was apparent that the car was running away that the motorman kept turning his brake wheel violently, and that the brake did not work, and that the motorman hollered back to the conductor that his brake wouldn't work, and for the conductor to put on his hand brake. Other witnesses testified for the plaintiff, corroborating his testimony in that respect, one of whom was Judge J. A. Oliphant, who testified, in substance, that soon after the car started, his wife called to his attention Floyd Riggs, the companion of the plainthe fact that the car was running very fast; | tiff, testified that he did not go inside of the that he asked the conductor "why the devil trolley car, but that he stood on the rail he didn't stop the car" and the conductor re- around the vestibule; that he saw Roy plied that the brakes would not work; that Smith, the plaintiff, standing just inside of the car continued to get faster until every the vestibule; that he was in reach of him, body became excited and were hollering, just a rail between them; that he was withmost of the passengers on the car were up in reach of the motorman, near enough to hollering about stopping the car or it would reach him with his hand; that the motorcar be running off; that the car continued to get faster; that it was going at least 30 miles had stopped, and that the brake refused to an hour; that if it slowed up any before the work on the electric car on which he was accident he didn't realize it. Soon after the riding; that the car was crowded; that the car started out, he testified, that he saw the electric car ran into the motorcar while the conductor at the front end of the car collect- motorcar was standing on the track; that ing fares, and when it got to going so fast he saw they were going to strike, and he he saw him run up to the motorman and jumped off about 200 feet before they start back, and Frank Gree and he were try-struck; that he rolled over several times on ing to get them to put on the brakes at both ends, and that he went to the conductor and asked him why he did not put on the brakes, and he said the brakes would not work, and then the wreck came; that when the wreck came he fell in the middle of the floor, and a great many people fell on him. R. B. Warren, a witness for the plaintiff, testified concerning the runaway, which testimony was about the same as that of Judge Oliphant's. the ground, but did not receive any injury; that he did not hear the motorman or conductor of the electric car say anything to any one about getting off of the car when they left Sand Springs; that the electric car was running about 35 miles an hour at the time of the injury, and that he did not slow down any; that he heard the motorman tell the conductor to put on the hand brakes; that the motorman shut off his motor before the collision, that after the collision he found A Mr. Markham testified for the plaintiff Roy Smith lying outside on the ground; that that he went out to Sand Springs on the he was unconscious; that he was bloody all night of the 4th of July, 1912, and went on over, his head was cut to the skull, and had the electric car in question; that the crowd scars and gashes on the body; his forehead rushed on the electric car so that when he was cut and skull crushed in on the top of got to Sand Springs he could not get off, his head about two inches the size of a lead but kept his seat; that it was the same car pencil, and his ankle was sprained; that he that was in the wreck; that he noticed in washed him in cold water and put him on going out that the motorman did not have some one's automobile and brought him to control of the car, and that he heard the the hospital; arrived at the hospital about motorman and conductor talking about it, 1 o'clock; that a physician dressed Roy's and that they said that the car was out of wounds, and that he took him to his home |