the effect that in case of the wife's death, either before or after the death of the assured, the money shall be paid to the children named in the certificate. The intention is clear, that in the event of the wife's death at any time while the insurance money should be unpaid, so as to be capable of practical identification and control, it should be paid to the children, thus giving them the greatest advantage that could arise from such a contingency, so long as the fund should not be otherwise appropriated by the wife. Thus effect is given to the entire certificate, without doing violence to its obvious meaning or to any of its words, and thus a construction is reached in accordance with well-settled legal rules, as well as in harmony with the dictates of reason and humanity." "Reading the certificate in the light of the extrinsic circumstances as shown by the amended answer, and considering the condition of the assured, and of the different members of his family, and the relations they sustain to each other at the time of effecting the insurance, no one can doubt for a moinent that it was the father's intention that the insurance money should be paid to his infant daughters in case his invalid wife should die either before his own death should occur or before the money should be paid to her. These children were his legitimate heirs, dependent upon him for support, and, next after his wife, the natural objects of his bounty. They were not the children of his wife, Ella, and could not inherit from her; hence we perceive his prudent foresight, as well as fatherly care, in causing their names to be inserted as beneficiaries in the certificate, contingent upon his wife's expected death. "If anything further were needed to strengthen the construction we have given this instrument, the objects, purposes, rules, and regulations of the benevolent order from which this certificate of insurance emanated might be considered. But it is scarcely necessary to invoke cumulative authority to confirm the view that it was the father's intention, in case of his wife's death, that the insurance money should go to his doubly orphaned minor children, instead of the administrator of the deceased wife, either for the payment of her debts, or for the benefit of her heirs, who were to him as strangers, having no special claim upon his fortune, his benevolence, or the fruits of his labor." Mr. Justice Elliott then said, that without questioning the correctness of "the adjudicated cases cited in behalf of the administrator's claim, they do not necessarily militate against the foregoing construction," and that in such cases "it is always safer to be guided by legal principles, founded on justice and equity, than to attempt to follow case precedents based on facts or circumstances not strictly analogous or controlling." The learned judge, continuing, said: "Much stress is laid upon the rule that the law favors vested estates in preference to contingent, unless an intention appears to the contrary. It will be noticed that the rule thus stated is pregnant with two very important and significant admissions: 1. That contingent estates may be created; and 2. That the intention of parties creating an estate is to be considered in determining its character. Let us test the certificate in the light of this rule. It cannot be denied that a contingent estate is contemplated by its express terms; indeed, a series of contingencies are contemplated. In the first place, the very object of procuring the certificate of insurance was to provide for the family of the assured in the contingency of his own death while they, or some of them, were living. The first contingency was, that the insurance money should be paid to his wife. Thus far there is no dispute. It is also undisputed that in a certain contingency the insurance should be paid to his children. What was the latter contingency? It is plainly stated in the certificate to be the contingency of the wife's death, -no more, no less. There are no other words limiting or qualifying the latter contingency. First, then, the husband, anticipating his own death, procures the insurance for his wife's benefit; second, knowing that his wife, according to the course of nature, must certainly die sometime, he provides that in case of her death the insurance shall be paid to his children. The wife being an invalid, and presumably older than his minor children, it is reasonable to presume the assured ex. pected them to survive her death. In the light of such facts and circumstances, what intention is conveyed by the terms of the certificate? The entire operative words have been considered. Nothing has been added thereto or subtracted therefrom. Legitimate facts and circumstances only have been taken into consideration in construing the language of the written instrument. The reasonable legal inference to be drawn from such lan. guage, under the circumstances, is, that the father intended the insurance should go to the invalid wife for her use while living, with remainder to his own children in the contingency of the wife's death, whenever it should ooeur; and so he used the unlimited words 'in case of her death to be paid to the children,' inasmuch as they could not inherit from their step-mother. Words might have been inserted in the certificate providing for the payment of the insurance to the children only in the contingency of the wife's death before the death of the assured. If such words had been inserted, they would necessarily have controlled the interpretation of the instrument. But such words were not inserted, and they certainly should not be supplied by implication when from all the facts and circumstances legitimate to be considered in construing the instrument the obvious effect of supplying them, as contended by appellee, would be to defeat, not to effectuate, the intention of the assured." MUTUAL BENEFIT ASSOCIATIONS. - The doctrine generally maintains that mutual benefit associations, so far as they are engaged in the mutual insurance of the lives of their members, are to be deemed insurance companies, and subject to the laws governing such companies. The certificates of membership issued by a mutual benefit association do not differ materially from ordinary policies of mutual life insurance, and are construed and gov. erned by the rules applicable to the latter: Note to Bankers' etc. Ass'n v. Stapp, 19 Am. St. Rep. 781, 782; Block v. Valley M. Ins. Co., 52 Ark. 201; 20 Am. St. Rep. 166. Upon the death of a member, the interest of the lastnamed beneficiary becomes vested: Note to Bankers' etc. Ass'n v. Stapp, 19 Am. St. Rep. 789, 790; Mich. Mut. B. etc. Ass'n v. Rolfe, 76 Mich. 147; and in case of the death of such beneficiary without disposing of such vested interest, and before payment, it passes to his personal representatives: Mich. Mut. B. etc. Ass'n v. Rolfe, 76 Mich. 147. The beneficiaries appointed by the holder of a certificate in a mutual benefit association payable on his death accord. ing to his direction acquire merely a contingent interest, where the laws of the association reserve to the members the power of substituting other beneficiaries for those originally named in the certificate: Knights of Honor v. Watson, 64 N. H. 517. AM. ST. REP., VOL. XXV.-16 DENVER, TEXAS, AND GULF R. R. Co. v. SIMPSON. [16 COLORADO, 55.] RAILROADS - NEGLIGENCE-INJURY TO BRAKEMAN. In an action by a brakeman against a railroad company to recover for an injury received in attempting to couple cars on a dark night, evidence that the company failed to furnish a sufficient number of suitable links with which to make the necessary couplings, that the conductor ordered such brakeman to make a coupling with an unsuitable link, and that an attempt to obey the order resulted in the injury sued for, will justify a recovery. RAILROADS - NEGLIGENCE CARE REQUIRED OF INJURED BRAKEMAN. Where a railroad company is guilty of negligence in failing to provide its train with a sufficient number of suitable links to make necessary couplings, and in directing its brakeman to use a defective link in making a coupling, the brakeman, in attempting to obey the order, is only required to exercise such care as might reasonably be expected from person of ordinary care and prudence in the situation in which he was then placed, and if injured while in the exercise of such care, he is entitled to recover. Wells, McNeal, and Taylor, and Teller and Orahood, for the appellant. T. C. Early, J. B. Belford, and J. W. Mullahey, for the appellee. HAYT, J. In the court below, appellee, as plaintiff, obtained judgment for the sum of eight hundred dollars for bodily injuries sustained by him while in the employ of appellant in the capacity of brakeman upon its railroad. It is shown by the record that at the time of the accident appellant was operating a line of railroad in this state between the cities of Denver and Pueblo; that appellee was in its employ as brakeman on one of its freight trains running between said points; that upon the morning of the day of the accident the train upon which appellee was employed left the city of Denver, going south, upon schedule time; that said train was not then properly supplied with links with which to make the couplings necessary to be made upon the contemplated run; that appellee endeavored to provide the train with the requisite number of links before starting from the city of Denver, but was prevented from so doing by reason of the negligence of appellant in failing to furnish such links. About eight o'clock upon the evening of said day, appellee, in his capacity as brakeman, was required to make a coupling at Franceville Junction, upon the line of said railroad. In making that coupling appellee sustained the injury for which damages were recovered in the court below. The facts attending the accident are practically undisputed, the witnesses introduced by the plaintiff agreeing as to all material particulars, while the only attempt made to overthrow this testimony rests upon evidence of admissions claimed to have been made by the plaintiff to other employees of the company shortly after the accident. By such evidence contributory negligence on the part of appellee was attempted to be established. It is shown that the draw-heads of the two cars which appellee was required to couple were of unequal heights above the tracks, making the coupling somewhat difficult. The night was dark, cold, and stormy, the supply of links furnished the train by the company was exhausted; none remained with which to make this coupling. In this extremity, and as the train was coming down the side-track to the cars to be joined with it, appellee was searching about the tracks to find a link with which to make this necessary coupling. At this juncture the conductor in charge of the train ordered him to take a link laying upon the ground near the side-track and make the coupling with it. The accident occurred while appellee was endeavoring to execute this command. The link pointed out by the conductor not being a suitable one with which to make the coupling, it caused appellee's hand to be crushed between the cars. As described by the witnesses upon the stand, it was a bent link, as distinguished from a crooked link, — a crooked link being one crooked in a particular way for the purpose of making couplings in cases where the draw-heads of the cars to be connected are of different elevations above the track, while a bent link is one that has become misshapen by use. In view of the evidence, the verdict of the jury, in favor of appellee, cannot be disturbed. He was acting at the time under the immediate direction of his superior, the conductor, who had charge of the train and of the brakemen employed thereon, including appellee. Appellee did not discover the defect in the link in time to avoid the accident. He could not well do so in the darkness. He was required to act promptly in making the coupling, without time for investigation or opportunity for reflection. Under the law, he was only required to exercise such care as might reasonably be expected from a person of ordinary care and prudence in the situation in which plaintiff was then placed. In view of the facts, it cannot be said as a matter of law that he did not exercise reasonable care. On the other hand, the company is properly chargeable with negligence in failing to provide the train with a sufficient number of links in the first instance, and again in directing appellee to use the defective link. The duty of the master to supply the servant with suitable machinery and appliances for the work to be performed is universally recognized: Denver etc. R'y Co. v. Driscoll, 12 Col. 520; 13 Am. St. Rep. 243; Wells v. Coe, 9 Col. 159; Hough v. Railway Co., 100 U. S. 213. Some of the witnesses for appellant testified that soon after the accident appellee stated that the accident was caused by his glove sticking to the link, the glove being wet at the time. Evidence was introduced, however, to show that the accident was not so caused, and that if appellee made the statements attributed to him, he was in error in so doing. It was also in evidence that the glove was not wet, and that its use under the circumstances was reasonable and proper. All these matters, together with the law in relation to unavoidable accident and contributory negligence, were fully submitted to the jury under proper instructions; the damages are not excessive, and we see no reason for disturbing the verdict: Gilmore v. Northern Pac. R'y Co., 18 Fed. Rep. 866; International etc. R. R. Co. v. Doyle, 49 Tex. 190. In its essential features, the case is entirely dissimilar from the case of Wells v. Coe, 9 Col. 159, relied upon by appellant. In that case Coe, the party injured, was "foreman and boss of the workmen." His authority at the mine was plenary, save, perhaps, at such times as Wells might happen to be present. He had charge of the workmen and control of the machinery. By his orders the means provided to prevent just such accidents as the one causing the injury complained of were dispensed with, thereby making the accident possible, and it was rightfully held, under these circumstances, that he could not recover. It is contended that all evidence of the insufficiency of the supply of links upon the train was inadmissible under the pleadings. An examination of the complaint and answer shows that this was one of the matters directly put in issue; consequently the evidence was properly admitted. The judgment will be affirmed. - -INJURY TO BRAKEMAN. If a RAILROADS -DEFECTIVE APPLIANCES brakeman is injured through the defective and dangerous condition of a car, |