have known, of this defective condition. | compensate him for such future disability, This thought was embodied in onc of the instructions given by the trial court, and defendant has no cause of complaint. 3. Instruction 10, which reads as follows, is complained of: "If you find from the evidence that the stile in question was constructed partly upon the ground of defendant company, and that the same was ordinarily and generally used by those who were passengers on defendant company's cars as a means of egress from said grounds, where the railway of defendant terminated, and that there was no other reasonable means of egress from said grounds, and that said defendant company knew that said stile was so used by passengers upon its cars in leaving said grounds, and that it permitted them to do so; and you further find that said stile, by reason of its narrowness, or by reason of the fact that there was no railing thereon or by reason of the fact that said stile was constructed of light and defective lumber, if such you find the fact to be, was not such means of egress from said grounds as an ordinary person would provide under similar circumstances,-you will be justified in finding the defendant guilty of negligence, as charged. If, however, you find that the said stile was such as an ordinary person would employ under similar circumstances as a means of egress from said grounds, then there would be no negligence upon the part of defendant." The criticism is that there was no evidence upon which to base it. Suffice it to say that we find in the record ample testimony to justify the instruction. pain, and suffering as the evidence shows it is reasonably probable will result to him in the future from such injuries." The first point made with reference to this is that there is no testimony on which to base an allowance for future disability. The evidence clearly shows that plaintiff was suffering from his injuries at the time of trial, and the experts testified that his injury would probably be permanent. Plaintiff testified that he was earning $50 per month before the injury, and had not been able to earn more than $10 since. This was sufficient to take the case to the jury. Smith v. Sioux City, 119 Iowa, 50, 93 N. W. 81; Winter v. Central Iowa R. Co. 80 Iowa, 443, 45 N. W. 737; Ashley v. Sioux City (Iowa) 93 N. W. 303. Next it is argued that the instruction runs counter to the rules announced in Fry v. Dubuque & S. W. R. Co. 45 Iowa, 416, and Laird v. Chicago, R. I. & P. R. Co. 100 Iowa, 336, 69 N. W. 414. A reading of these cases will sufficiently demonstrate the incorrectness of this proposition. Abstractly considered, the instruction has support in Bailey v. Centerville, 108 Iowa, 20, 78 N. W. 831; Miller v. Boone County, 95 Iowa, 5, 63 N. W. 352; Smith v. Sioux City, 119 Iowa, 50, 93 N. W. 81. 5. Lastly it is argued that the verdict is contrary to the instructions. The principal contention here is that there was another means of egress from the defendant's grounds, whereby plaintiff could have reached his destination with safety. There was testimony to the effect that there was an opening in a barbed-wire fence 40 rods away, but it was not a place which afforded a reasonable means of egress from defendants terminal. Another opening in the fence, 400 or 500 feet away, was spoken of by one witness, but it was not in sight, and the witness said that it may have been closed on the day of the accident. It was clearly a question for the jury to say whether or not there was another reasonably safe, and accessible place of exit from the grounds where the railway terminated, and as to whether or not plaintiff was negligent in not taking it. 4. Instruction 19, relating to the measure of damages, is also challenged. It reads as follows: "If you find him entitled to recover, he should be allowed a fair and reasonable compensation for his injuries. In estimating his damage, no precise rule can be given for the amount to be allowed, as they are not in their nature susceptible of exact money valuation. You are to use your own sense and judgment, and be guided by the evidence, in allowing him such sum as will reasonably compensate him. In making up this amount, you should award, as may appear from the evidence, In conclusion, we may say that the case the reasonable value of the time lost be- was submitted to the jury on two theories: cause of the injury, the amount he has One, that the stile, by reason of its narrowpaid for medical attendance and nursing, ness, or for want of railings, or because it and fair compensation for the bodily pain was constructed of light or defective maand suffering caused by the said injury; terials, was not such means of egress as an and if you further find that plaintiff's in- ordinarily prudent person would provide, in juries are permanent, and will, to some ex- which event defendant might be found tent, disable him in the future, and cause guilty of negligence; and the other, that the him pain and suffering hereafter, you injury was due to a defective board should also allow him such further sum in said stile, in which event defendant as, paid now in advance, will reasonably would not be guilty of negligence, unless it See cases hitherto cited. Defendant's contention that it is not liable be cause the stile was erected by a stranger is unsound in principle, and not sustained by authority. When it invited its passengers to use this stile, it, in effect, represented that it was reasonably safe for the purposes intended; and, when injury occurred by reason of its unsafe or faulty construction, it should not be allowed to it did not know of its defective construction. Gulf, C. & S. F. R. Co. v. Glenk, 9 Tex. Civ. App. 599, 30 S. W. 278, and cases cited. knew, or in the exercise of reasonable care | sibility. should have known, of its defective condition. The latter theory, was bottomed on the thought that the stile itself was not dangerous, save as it had a defective board. What we have said in the first division of this opinion has reference to this last contention. On the other proposition, defendant was liable for the defective condition of the stile, although it was erected by a stranger. Defendant had full knowl-shield itself behind another, and to say that edge of the construction of the stile, and impliedly invited its passengers to use it. Under such circumstances, its liability is the same as if it had itself set up and maintained the device. See cases hitherto cited and McDonald v. Chicago & N. W. R. Co. 26 Iowa, 124, 95 Am. Dec. 114; Beard v. Connecticut & P. Rivers R. Co. 48 Vt. 101; Gilmore v. Philadelphia & R. R. Co. 154 Pa. 375, 25 Atl. 774; Watson v. Oxanna Land Co. 92 Ala. 320, 8 So. 770. This rule is bottomed on the proposition that the duty of a carrier of passengers does not end when the passenger has alighted from its cars. It must also provide reasonably safe means of access in and from its stations or terminals for the use of its passengers, and the passengers have a right to assume that the means of egress provided are reasonably safe. This duty it cannot delegate to another so as to relieve itself from respon The instructions were even more favorable to the defendant than it was entitled to. We are not to be understood as approving all of them. Suffice it to say that defendant was in no manner prejudiced either by those given, or by the refusal of the court to give those asked by it. Our observations in the second paragraph of this opinion must be construed with reference to these suggestions. There is no prejudicial error in the record, and the judgment must be, and is, affirmed. Bishop, J., took no part. Petition for rehearing overruled. TEXAS SUPREME COURT. RROR to the Court of Civil Appeals for James W. SWAYNE et al., Piffs. in Err., the First Supreme Judicial District to v. LONE ACRE OIL COMPANY. (........ Tex...... ) 1. The life estates created by statute, giving a surviving husband or wife one-third interest for life in the real estate of the other, are subject to the incidents of common-law life estates, although they are not the same as the common-law estates; and the life tenant is therefore impeachable for waste. 2. One entitled to an undivided life estate under a statute giving a surviving husband or wife a one-third interest in the real estate of the other can not demand absolutely any part of the production of oil wells subsequently opened upon the property by the remainder-men, but is entitled only to the income upon one third of the oil produced. (April 27, 1905.) NOTE. As to right of dower in mines, see, in this series, Seager v. McCabe, 16 L. R. A. 247. and note. As to rights of life tenants generally in oil in place, see, in this series, Koen v. Bartlett, review a judgment modifying a judgment of the District Court for Jefferson County in plaintiffs' favor in an action brought to establish an interest in petroleum produced from land in which plaintiffs claimed an undivided interest. Affirmed. The facts are stated in the opinion. Messrs. Amos L. Beaty, W. D. Gordon, and E. C. McLean, for plaintiffs in error: The widow's estate is not confined to the surface of the land, but includes the minerals beneath; and the case must be adjudged accordingly. Tex. Rev. Stat. art. 1689; Benavides v. Hunt, 79 Tex. 383, 15 S. W. 396; Koen v. Bartlett, 41 W. Va. 559, 31 L. R. A. 128, 56 Am. St. Rep. 884, 23 S. E. 664; Seager v. McCabe, 92 Mich. 186, 16 L. R. A. 247, 52 N. W. 299; Blakley v. Marshall, 174 Pa. 31 L. R. A. 128; Williamson v. Jones, 25 L. R. A. 222, with note as to nature of property in mineral oil and gas, also 38 L. R. A. 694; Marshall v. Mellon, 35 L. R. A. 816, and Wilson ▼ Hughes, 39 L. R. A. 292. precisely the same footing in regard to all questions of waste. Atty. Gen. ex rel. Churchill v. Marlbor 425, 34 Atl. 564; Wilson v, Youst (Wilson v. Hughes) 43 W. Va. 826, 39 L. R. A. 292, 28 S. E. 781; MacSwinney, Mines, 32; Tiedeman, Real Prop. 2; Co. Litt. 4a; 1ough, 3 Madd. 539; Smythe v. Smythe, 2 Washb. Real Prop. 3; 2 Bl. Com. 16-18, 144; Lewis v. Branthwaite, 2 Barn & Ad. 437. Since the life estate comes by inheritance, and vests solely by operation of law, the widow, though having only a life estate, might drill for oil without being guilty of waste, and is consequently entitled to her proportion of the oil produced, less the expenses of producing and marketing. Tex. Rev. Stat. art. 1689; Higgins Oil & Fuel Co. v. Snow, 51 C. C. A. 267, 113 Fed. 439; Seager v. McCabe, 92 Mich. 186, 16 L. R. A. 247, 52 N. W. 299; Branbridge, Mining, 55; 4 Wait, Act. & Def. 424. The remainder-man having drilled wells and devoted the land to mining purposes, the widow is entitled to her proportion of the proceeds of the oil, after deducting the expenses of producing and marketing, regardless of whether she would have been allowed to sink wells and extract oil. Higgins Oil & Fuel Co. v. Snow, 51 C. C. A. 267, 113 Fed. 439; Koen v. Bartlett, 41 W. Va. 559, 31 L. R. A. 128, 56 Am. St. Rep. 884, 23 S. E. 664; Gillum v. St. Louis, A. & T. R. Co. 5 Tex. Civ. App. 338, 23 S. W. 717; Lenfers v. Henke, 73 Ill. 405, 24 Am. Rep. 263; Priddy v. Griffith, 150 Ill. 560, 41 Am. St. Rep. 397, 37 N. E. 999; Allen v. McCoy, 8 Ohio, 418. The life estate cast by the Texas statute does not carry the inherent restrictions as to use that hedge about conventional life estates or dower and curtesy, and is not impeachable for waste. In conventional life estates, if the grantor did not prohibit the grantee, or life tenant, the latter was not punishable for waste prior to the statutes of Marlbridge and Gloucester. 28 Am. & Eng. Enc. Law, p. 891; 2 Bl. Com. 123. It is in every instance a conventional! "life estate" to which the doctrine of waste has been applied. Blakley v. Marshall, 174 Pa. 425, 34 Atl. 564; Wilson v. Youst (Wilson v. Hughes) 43 W. Va. 826, 39 L. R. A. 292, 28 S. E. 781; Marshall v. Mellon, 179 Pa. 371, 35 L. R. A. 816, 57 Am. St. Rep. 601, 36 Atl. 201. There was at common law "a life estate of the legal kind. as contradistinguished from conventional." 2 Bl. Com. p. 125. A tenant for life without impeachment for waste, and a tenant in tail after possibility of issue extinct, seem to stand upon Swanst. 251; Bridges v. Stephens, 2 Swanst. 157, note; Coffin v. Coffin, Jac. 72; 4 Kent, Com. 12th ed. 78, note b. The legal life estate in question under our statute-a freehold estate of inheri tance,-does not "necessarily" imply impeachability for waste. The congress of Texas did not adopt the common law of England as a rule of property. The common law was adopted only as a rule of decision. Considering that the Republic up to that time had been under the civil law, where an estate of this character was under no restrictions as to use, but where the usufructuary had a right to seek for and open every kind of mine (1 Domat, Civil Law, 843; 2 Domat, Civil Law, 945, 968), is it not reasonable that congress intended to fix the time or duration in which the estate could be enjoyed, rather than to hedge about with limitations the use thereof inherent in certain estates of this character at common law? Cartwright v. Hollis, 5 Tex. 164; Thompson v. Duncan, 1 Tex. 489; Bradley v. McCrabb, Dallam (Tex.) 508; Campbell v. Everts, 47 Tex. 102; Klein v. Gehrung, 25 Tex. Supp. 238, 78 Am. Dec. 565; 3 Kent, Com. 448; 2 Bl. Com. p. 403; Howard v. North, 5 Tex. 298, 51 Am. Dec. 769. The widow's estate is equal to the children's in all of its uses. McGowan v. Bailey, 179 Pa. 470, 36 Atl. 325; Marshall v. Mellon, 179 Pa. 371, 35 L. R. A. 816, 57 Am. St. Rep. 601, 36 Atl. 201; Blakley v. Marshall, 174 Pa. 425, 34 Atl. 564; Wilson v. Youst (Wilson V. Hughes) 43 W. Va. 826, 39 L. R. A. 292, 28 S. E. 781; Lunn v. Oslin, 96 Tenn. 28. 33 S. W. 561; Owen v. Hyde, 6 Yerg. 334, 27 Am. Dec. 467; Gaines v. Green Pond Iron Min. Co. 33 N. J. Eq. 612; Sayers v. Hoskinson, 110 Pa. 473, 1 Atl. 308; Snyder, Mines, § 941. When the remainder-man, as such and as tition and without the joinder of the life cotenant, entered upon the land before partenant, and drilled oil wells, and devoted the hitherto unused land to mining purposes, thereby destroying all other possible uses, mining thereby became a lawful mode of use, and the proceeds, when severed and sold, became a product of the land, and the accounting is due on a basis of profit, and not corpus. Gillum v. St. Louis, A. & T. R. Co. 5 Tex. Civ. App. 338, 23 S. W. 717; Koen v. Bartlett, 41 W. Va. 559, 31 L .R .A. 128, 56 Am. St. Rep. 884, 23 S. E. 664; Seager v. Mc Cabe, 92 Mich, 186, 16 L. R. A. 247, 52 N. | Am. St. Rep. 891, 27 S. E. 410; Marshall v. W. 299; Donahue, Petroleum & Gas, chap. Mellon, 179 Pa. 371, 35 L. R. A. 816, 57 Am. 4, § 3. St. Rep. 601, 36 Atl. 201; Wilson v. Youst Messrs. Smith, Crawford, & Sonfield, (Wilson v. Hughes) 43 W. Va. 826, 39 L. R. for defendant in error: A. 292, 28 S. E. 781. The common law was adopted as the rule of property in Texas in 1840, and has been in force ever since, and was in force in 1848, when the statute casting an estate for life on the surviving husband or wife was enacted. Therefore, the estate conferred by the statute not being further defined than "an estate for life," the character of the estate was such as had been fixed and construed by the common law. Hartley's Digest, art, 127; Black, Constr. & Interpretation of Laws p. 130; McCool v. Smith, 1 Black, 467, 17 L. ed. 220 United States v. Jones, 3 Wash. C. C. 209, Fed. Cas. No. 15,494; United States v. Trans-Missouri Freight Asso. 24 L. R. A. 73, 4 Inters. Com. Rep. 443, 7 C. C. A. 58, 19 U. S. App. 36, 58 Fed. 58; Kircher v. Murray, 8 C. C. A. 448, 23 U. S. App. 214, 60 Fed. 50; Boone v. Hulsey, 71 Tex. 189, 9 S. W. 531; Babb v. Carroll, 21 Tex. 771. Where the statute confers upon the surviving wife "an estate for life in one third of the lands of her deceased husband," such estate is no greater than that of a life tenant at common law. Carroll v. Carroll, 20 Tex. 744; Hendrix v. McBeth, 61 Ind. 473, 28 Am. Rep. 680; Tiedeman, Real Prop. § 72; 1 Washb. Real Prop. 4th ed. p. 139. A tenant for life has only the right to full enjoyment and use of the land and all its temporary profits during his estate therein. He is entitled to none but temporary profits, and is prohibited from doing anything with the land which would constitute waste. 2 Bl. Com. p. 122; Tiedeman, Real Prop. § 72; Ft. Worth & N. O. R. Co. v. Pearce, 75 Tex. 281, 12 S. W. 864; Cook v. Caswell, 81 Tex. 678, 17 S. W. 385; Barnsdall v. Boley, 119 Fed. 195. Waste is an unlawful act or omission of duty which results in permanent injury to the inheritance, and any act which does damage to the reversioner, and is not one of the ordinary uses to which the land is put, is waste. Tiedeman, Real Prop. §§ 72, 73. A tenant for life has no ownership or interest in minerals underlying the land, unless at the time that the life estate is cast, or prior thereto, mines have been opened on the land. Marshall v. Mellon, 179 Pa. 371, 35 L. R. A. 816, 57 Am. St. Rep. 601, 36 Atl. 201; Blakley v. Marshall, 174 Pa. 425, 34 Atl. 564; Stoughton v. Leigh, 1 Taunt. 402; Coates v. Cheever, 1 Cow. 460; Williamson v. Jones, 43 W. Va. 562, 38 L. R. A. 694, 64 Am. St. Rep. 891, 27 S. E. 410; Westmoreland Coal Co.'s Appeal, 85 Pa. 344; Gaines v. Green Pond Iron Min. Co. 33 N. J. Eq. 603; Reed v. Reed, 16 N. J. Eq. 248; Hendrix v. McBeth, 61 Ind. 473, 28 Am. Rep. 680; Billings v. Taylor, 10 Pick. 460, 20 Am. Dec. 533; Gerkins v. Kentucky Salt Co. 100 Ky. 734, 66 Am. St. Rep. 370, 39 S. W. 444; Tiedeman, Real Prop. §§ 73-75; Donahue, Petroleum & Gas, p. 41, § 1; Higgins Oil & Fuel Co. v. Snow, 51 C. C. A. 267, 113 Fed. 438; Barnsdall v. Boley, 119 Fed. 195; Bond v. Godsey, 99 Va. 564, 39 S. E. 215; Maher v. Maher, 73 Vt. 243, 50 Atl. 1063; Neel v. Neel, 19 Pa. 323; Franklin Coal Co. v. McMillan, 49 Md. 549, 33 Am. Rep. 280; Moore v. Rollins, 45 Me. 493; Griffin v. Fellows, 81* Pa. 114; 4 Kent, Com. p. 41. The life tenant's possession and right where no mines have been opened when the life estate is cast are only in the surface. Benavides v. Hunt, 79 Tex. 390, 15 S. W. 396; Ames v. Ames, 160 Ill. 599, 43 N. E. 592; Caldwell v. Fulton, 31 Pa. 475, 72 Am. Dec. 760; Caldwell v. Copeland, 37 Pa. 427. 78 Am. Dec. 436. If plaintiffs, holders of the life estate of Mrs. Snow, are entitled to any share in the oil or other minerals, such right is limited to interest on the investment of the net proceeds of one eighteenth of the oil produced. Blakley v. Marshall, 174 Pa. 425, 34 Atl. 564; Lenfers v. Henke, 73 Ill. 405, 24 Am. Rep. 266; Dickin v. Hamer, 1 Drew. & S. 284; Wilson v. Youst (Wilson v. Hughes) 43 W. Va. 826, 39 L. R. A. 292, 28 S. E. Oil is a mineral; oil in situ is a part of 781. the land, the inheritance. Bryan, Petroleum & Natural Gas, p. 21; Brown v. Spilman, 155 U. S. 669, 39 L. ed. 305, 15 Sup. Ct. Rep. 245; Gerkins v. Kentucky Salt Co. 100 Ky. 734, 66 Am. St. Rep. 370, 39 S. W. 444; People's Gas Co. v. Tyner, 131 Ind. 277, 16 L. R. A. 443, 31 Am. St. Rep. 436, 31 N. E. 59; Williamson v. Jones, 43 W. Va. 562, 38 L. R. A. 694, 64 Messrs. Greer, Greer, Nall, & Parker and Crane, Greer, & Wharton also for defendant in error: Where a statute is enacted, using a wellunderstood, common-law, technical phrase, the statute will be construed as using the phrase in its technical sense, and with the same meaning it had at common law. Cayce v. Curtis, Dallam (Tex.) 404; Williams v. State, 12 Tex. App. 395; Mon- and the part in controversy is now very roe v. State, 23 Tex. 210; Powell v. State, valuable for the oil which it is producing. 17 Tex. App. 351; Black, Constr. & Inter- The stipulation of the parties as to the pretation of Laws, p. 130; Laird v. Briggs, | judgment to be rendered is as follows: L. R. 19 Ch. Div. 22; Adams v. Turrentine, "(1) Upon the foregoing statement of 30 N. C. (8 Ired. L.) 147; McCool v. Smith, facts judgments shall be rendered by the 1 Black, 467, 17 L. ed. 220; United States v. court on the issue of title as to the land deJones, 3 Wash. C. C. 209, Fed. Cas. No. scribed in plaintiffs' petition. (2) In case 15,494; United States v. Trans-Missouri it is held by the court that the plaintiffs Freight Asso. 24 L. R. A. 73, 4 Inters. Com. have no interest in the land, then, of course, Rep. 443, 7 C. C. A. 58, 19 U. S. App. 36, 58 judgment shall be rendered that the plainFed. 58; State v. Phelps, 24 La. Ann. 493; tiffs take nothing by their suit, and pay State v. Whitener, 93 N. C. 590. the costs thereof. (3) In case it shall be held by the court that they are entitled to Gaines, Ch. J., delivered the opinion of an estate for the life of said Annie E. the court: This is an action of trespass to try title, and was brought by the plaintiffs in error to recover of the defendant in error an estate for the life of Annie E. Snow in an undivided one eighteenth interest in a small parcel of the John A. Veatch survey, and also to recover a like proportion of the net value of certain petroleum which had been extracted from the land. The plaintiffs recovered in the trial court to the full extent of their claim. Upon appeal the court of civil appeals affirmed the judgment as to the land, but reversed and modified it as to the recovery for the oil. The case was tried by the court upon an agreed statement of facts, together with a written stipulation, signed by the attorneys for both parties, as to the judgment to be rendered, according to the determination of certain questions of law affecting the respective rights of the plaintiffs and the defendant. We will state the facts necessary to a decision of the case; and this as briefly as practicable. It appears from the agreed statement that one Andrew A. Veatch inherited from his father a sixth undivided interest in the Veatch survey of 3,400 acres in Jefferson county, of which his father was the original grantee; that upon the death of Andrew, in 1871, his interest descended to his surviving widow, Annie E., and their two children,-that is to say, one third to each of the children in fee, and a life estate in the other third to the widow, with remainder to the children; that she subsequently intermarried with Henry A. Snow; and that by purchase the plaintiffs are the owners of her interest. It also appears that the defendant is the owner of the entire tract in controversy save the life estate which descended to Mrs. Veatch, the widow of Andrew A. Veatch. The entire Veatch survey was unoccupied and uninclosed at the death of Andrew Veatch, but was adapted to agricultural and pastoral purposes. No oil wells had been or were being bored upon it at that time. Oil, however, was discovered upon it in 1891, Snow in one eighteenth of the land in controversy without any interest in the oil or its proceeds, then the plaintiffs must get their quantum of land from the Gladys City Oil, Gas, & Manufacturing Company, and judgment shall be rendered that the plaintiffs take nothing by their suit, and pay the costs thereof. Likewise, if it shall be held that the plaintiffs must take their quantum of the land out of the land owned now by the Gladys City Oil, Gas, & Manufacturing Company, or out of that sold by it subsequent to the sale to the defendant. (4) If it shall be held by the court that they are entitled to an estate for the life of said Annie E. Snow in one eighteenth of the land in controversy, and in substance or effect that they are entitled to have one eighteenth of the net proceeds of the oil that has been extracted and marketed after deducting all expenses of producing and marketing invested or put at interest, and to receive only the interest thereon during her life, the corpus of the fund at her death to belong to the remainder-men, then judgment shall be rendered for the plaintiffs against the defendant for such life estate, and for the value of their interest in the proceeds of oil taken and marketed, to wit, $300. (5) If it shall be held by the court that they are entitled to an estate for the life of the said Annie E. Snow in one eighteenth of the land in controversy, and also to one eighteenth of the net proceeds of the oil extracted and marketed, after deducting all expenses of producing and marketing, judgment shall in that event be rendered for the plaintiffs against the defendant for such life estate and for their one eighteenth of the net proceeds of the oil marketed, amounting to $500." The trial court and the court of civil appeals both held that the plaintiffs in error were entitled to a third interest for life in the land in controversy, and that holding is not questioned by either party. The real question in the case is, What are the rights of the plaintiffs in error as life tenants in the oil under the land? The trial |