text:
    THE STATE v. DEWEY HOBSON PALMER, Appellant.
    Division Two,
    March 13, 1920.
    1. EVIDENCE: Other Disconnected. Difficulties. Evidence of quarrels and violent threats by defendant with other parties, prior to the homicide but on the same night, with which deceased was in no wise connected and was not present, is not admissible.
    2. VENUE: How Proven. Venue in a criminal case may be established in the same way as any other material fact. It may be established by direct testimony, or it may be inferred by the jury from all facts and circumstances in evidence from which the inference may be reasonably drawn. The inference that the homicide was committed in the county in which the information was filed may be drawn from testimony showing that a certain school - house was in the county and west of its east county line, and that deceased was shot 650 feet west of the school house.
    Apeal from] Howard Circuit Court. — Hon. A. W. Walker, Judge.

    Reversed and remanded1.

      R. M. Bagby and Sam C. Major for appellant.
    (1) The record in this case is silent as to where this offense was committed. The evidence shows that it was close to the boundary line between Howard and Boone counties. The only evidence in the record as to the venue is that the offense was committed near Ar-nett’s school house, but the record is silent as to what county Arnett’s school'house is located in. The court can take judicial notice of the boundaries of a county, but it cannot determine that a school house is in a certain county where the evidence is silent on the subject. State v. v. Hartnett, 75 Mo. 251; State v. Hughes, 82. Mo. 86; State v. King, 111 Mo. 576; State v. MbGinnis, 71 Mo. 245; State v. Burgess, 75 Mo. 541; State v. Bush, 136 Mo. App'. 608. (2;) The court erred iu admitting the illegal and irrelevant testimony concerning the details of a difficulty which took place twenty minutes before the difficulty between the deceased and this defendant, to-wit: the difficulty between the defendant and Prank and Nina Patton and Bill Patton. This difficulty had nothing whatever to do with the difficulty in which the deceased was shot. It transpired, according to the testimony of the State’s own witness, twenty minutes prior to the difficulty between deceased and the defendant, and after the event had closed and the Pattons had gone a quarter of a mile across the Ewing field and the defendant had gone down the road with his brother and was waiting for the witness, Newt Hill. It was not a part of the res gestae and should not have been introduced under this guise. Wharton’s Criminal Evidence (9 Ed.), sec. 264, p. 198; State v. Guinn, 174 Mo., 680.

      Frank W. McAllister, Attorney-General, and Henry B. Hunt, Assistant Attorney-General, for respondent.
    (1) The evidence concerning the altercation between appellant, and the Pattons and Bessie Level, should not have been admitted. The deceased was not present, and took no part in this affair, and did not encounter appellant until after this quarrel was over. 21 Cyc. 920; State v. Swain, 68 Mo. 612; State v. Clayton, 1001 Mo. 5201; Joyce v. Com., 78 Ya. 290; Sewell v. Com., 3 Ky. L. R. 86; State v. Crabtree, 111 Mo. 141. (2) The question of venue is always a question of fact, and it may be proved like any other fact. State v. Burns, 48 Mo. 438-; State v. West, 69 Mo. 404; State v. Shour, 196 Mo. 223; State v. Lee, 228 Mo. 497; State v. Schatt, 128 Mo. App. 624; State v. Gow, 235 Mo. 325; State v. McCawley, 180 S. W. 870.
   MOZLEY, C.

On the 14th day of April, 1917, the prosecuting attorney of Howard County, in vacation of the court, filed an information against defendant, Dewey Hobson Palmer, charging him with having shot and killed Millard P. Wright under such circumstances as to constitute murder in the second degree. The information charges that the killing occurred in the County of Howard and State of Missouri. On the 6th day of November, 1917, defendant was put on trial in said county and convicted by a jury of murder in the second degree and his punishment fixed at twenty years in the State Penitentiary.

At the close of the State’s case defendant demurred to the evidence, which was overruled by the court, and again at the close of the whole case the demurrer was renewed, but met a similar fate. Exceptions were duly preserved to these rulings and are set forth in the record before us. Motion for new trial was filed within the time allowed by law and, on the 1st day of April, 1918, it was overruled by the court and exceptions duly saved. The case is regularly here on defendant’s appeal.

On the night of January 6, 1917, Jim Skinner, who lived in the eastern part of Howard County, near the dividing line between that county and Boone County, gave a dance, at which both defendant and the deceased were present, but there was no trouble of. any kind between them. Defendant was sober. Deceased and his associates were drinking; had whisky with them, and deceased was more or less under its influence. A Mrs. Bessie Level, to whom defendant was paying, court and whom he afterward married, was at the dance, in company with Bill Patton. When the dance subsided (which was past eleven o’clock at night) Mrs. Level and her escort, and Prank Patton and his wife, Ina Pearl Patton, and their three children, started home. Defendant wishing to speak with Mrs. Level rode up behind them on his horse and called to Mrs. Level, who stopped to talk with him and the conversation soon developed into a vulgar quarrel between defendant, Mrs. Level and Frank Patton and his wife, in which defendant it is. said 'by the testimony of the Pattons to have made the most dire threats against anyone who dared to accompany Mrs. Lev.el, insisting that he would attend to that duty himself, and coupling his threats with the most shocking obscenity and vile epithets. The matter terminated, however, in-Mrs. Level and the Pattons, after the quarrel was over, proceeding on their way towards the home of Pattons.

After these parties had started through the field, towards their home, Arthur:- Palmer, a brother of defendant, who had come during the quarrel, and defendant got on their horses and started west to go home; they had gone a short way when Newt Hill called to them to wait, as he was going their way. They waited for him and while so doing they heard some horses coming down the road towards them; they turned their horses around in the road and stood there. A loose mule was running towards them, and they could see horses with riders on them strung along the road coming toward them. Defendant told his brother to catch the mule, which he did, and was- holding it by the bridle when the approaching •parties (who proved to be deceased, Millard Wright, and Paul Cook) came up.

The testimony as disclosed by the record is conflict-. ing from this timé as to what happened between the time of the arrival of deceased and Cook, and what was. said and done by defendant -and deceased just before and when the fatal shot was fired. This conflicting testimony was. submitted to the jury and their finding was favorable to the contention of the State.

At the trial of the case the court admitted, over the objection of defendant, all of the testimony in relation to the quarrel or difficulty' between defendant and the Pattons which occurred before the trouble between deceased and defendant and when deceased was not present. As the admission of this testimony is challenged by appellant as being reversible error, we set it out in full:

Mrs. Prank Patton, stated as follows: “We took the southeast path through the woods: to the main road. As we were passing through, the woods to the main road, the defendant, Hop Palmer, rode upl behind Bessie Level and told her to come back, that he had something to tell her- He called her three times before she went He stepped off his horse and took hold of her arm and said: ‘Now, Grod damn you, you will walk with me to Ina Patton’s tonight or there won’t any son of a bitch in this crowd go up this path. ’ He asked Bessie why she came to the dance, and says ': “I told you I would kill you, if you came to the dance.’ Bessie left Hop Palmer just as we crossed the main road and rejoined Bill Patton. When we got to the road! I told Hop1 we had heard enough —not to go any further. He threatened to kill every son of a bitch of a Patton, and said there was nothing to them and never was. He asked my husband out into the road. I would not let him go and told Hop he was like the Oklahoma wind, that I had heard it before. I told him to go on down the road home. When he asked us to go out in the road, he threw off all his coats! When we left him, he was cursing, but 1 did not listen any longer.”

Prank Patton testified: “After we left Skinner’s house, I saw the defendant, Hop Palmer. He came down the path following me and called Bessie Level. He told Bessie he wanted' to see her. He got down off his horse. He took Bessie Level by the arm and he says, ‘I am going to walk with you to Ina Patton’s.’ He says, ‘No son of a bitch walks up through these woods if I don’t.’ He walked with Bessie to- the big road and there threw off his coat down in the road. My wife says s ‘ Gro on down the road Hop. You are like the Oklahoma wind.’ He says to my wife: ‘ The damned son of a bitch, come out in the road and I will show you what I can do for you; ’ and he says.: ‘Prank, if I ever catch you off your farm I expect to kill you. ’•• And at that we left. ’ ’ Substantially the same facts were testified to by Will (Bill) Patton.

I. The State’s contention that the filing of the bill of exceptions is not shown by the record, we think is not well taken. In our opinion the fact of its filing does sufficiently appear by the record and that it is our duty to review the bill in passing, on the

. II. It is earnestly insisted by appellant that the testimony set out above relates solely to a difficulty with other parties and that it is wholly disconnected with, and different from, the offense charged against defendant in the information, and that it was therefore error prejudicial to his defense against said charge.

It will be observed that there was no trouble and had been none between deceased and defendant until they met in the road where Arthur Palmer, a brother of defendant, had, at defendant’s request, caught the runaway mule. It was at that time and place that the difficulty between the two and in which deceased lost his life occurred. The trouble defendant had with the Pat-tons had ended some time before and they were gone. Nothing that was said or done in the Patton quarrel in any way referred to deceased, nor was deceased present while it was going on.

The State concedes in its brief and in oral argument at our bar that the admission of said testimony was error, and the authorities cited by the State in its brief fully support the concession made. [21 Cyc. 929; State v. Swain, 68 Mo. l. c. 612; State v. Clayton, 100 Mo. 520, and State v. Crabtree, 111 Mo. l. c. 141.]

These authorities expressly hold that “evidence of a previous difficulty between defendant and a third person with which deceased had no connection and which was not a part of the transaction in which deceased was killed, is not admissible.’’

III. Appellant malms the point that the venue was not proven, Venue in a criminal case may be established the same way as any other material fact, that is, by direct testimony, or it may be inferred by the jury from all facts and circumstances in evidence in the event that such facts and circumstances reasonably justify such inference. As there is no direct evidence showing the venue, of the crime charged to. be in Howard County we look to the facts and circumstances in proof to ascertain if the jury were justified in drawing the inference therefrom that it was in fact in said county.

The proof shows that Jim Skinner (who gave the dance) lives in Howard County about two miles west of the Boone County line; it shows that Frank P'atton and his family (to whose home deceased was taken after he was shot) lives in Howard County about one mile from the Boone County line; it shows that a public road extends east and west; that Skinner lives a short distance north of this road and Patton a short distance south oi said road. This road passes by the Arnett school house which is in Howard County and is the point that the county highway engineer measured from, westward a distance of 650 feet, to the point in the road where deceased was killed. We think under this testimony and under the authority of the cases of State v. Sanders, 106 Mo. 195; State v. Lee, 228 Mo. 497, and State v. McCawley, 180 S. W. 870, and under the further fact that defendant was informed against in Howard County and the jury instructed that they must find that the alleged crime was committed in Howard County, that their conclusion that the'situs of the offense was in Howard County was a, legitimate and reasonable deduction therefrom. We therefore overrule this contention.

IV. Appellant malms a number of additional assignments of alleged error which we think are unnecessary to be reviewed, since upon retrial they may be avoided.

It follows from what has been said that the case will have to be reversed and remanded for retrial. It is so ordered.

Bailey and White, GO., conur.

PER CURIAM: — The foregoing opinion of Mozley, C., is hereby adopted as the opinion of the court.

All of the judges concur.-


source: Caselaw Access Project

author: WALKER, C. J.

license: Public Domain

text:
    FRED K. LOCK v. CHICAGO, BURLINGTON AND QUINCY RAILROAD COMPANY, Appellant.
    In Banc,
    March 15, 1920.
    1. EVIDENCE: Substantial for Plaintiff: Appellate Practice. If plaintiff’s testimony that he stumbled over a brake-beam lying-in defendant’s railroad yard is substantial, and is not contrary to reason, the appellate court will accept the verdict of the jury finding it to be true.
    2. DANGEROUS PLACE: Brake-Beam in Yards: Constructive Notice of Location. At different times cars were repaired in defendant’s railroad yard, their parts separated, and it was customary to take out brake-beams and drop them near at hand, to be subsequently removed; a car was being repaired near the scene of the accident on the day preceding it; the yard belonged to defendant and was fenced; and plaintiff, a switch-tender, testified that having aligned the rails so as to permit a train to pass, at four o’clock of a dark and_ rainy December morning, he started to walk across the yard to a shanty where he stayed when not engaged in adjusting the switches, and while looking ahead to determine his course, he stumbled over a brake-beam, fell to the ground, and before he could arise a switch engine on a lead track struck him. Held, that the other facts were circumstances confirmatory of plaintiff’s testimony, and that, under the Federal Employers’ Liability A,ct, defendant cannot escape liability on the ground that the evidence failed to show it had either actual or constructive notice of the location of the brake-beam.
    3. -: -: -: Act of Servant. Under the Federal Employers’ Liability Act, a switch-tender is not required to show a negligent placing of a brake-beam in the railroad yards, over which he stumbled and fell; but the leaving of the beam at said point was a negligent act and -bound the company as effectually as if it, as principal, had left it there.
    4. -: -: Assumption of Risk. A switch-tender, having aligned the tracks at the switches and started to the shanty where he stayed when not so engaged, at four o’clock on a dark and rainy December morning, had a right to assume that the railroad company had exercised proper care to provide a reasonably safe place for him to work, free from any obstacles which would cause his injury, and that a, brake-beam, over which he stumbled, had not been left in the yard over which he customarily passed; the leaving of the beam in such place, at such time, did not constitute a risk normally incident to his employment.
    5. <-: -: Evidence of Customary Acts. Where the railroad yard through which the switch-tender passed in going in the night time to a shanty in which he stayed between his acts in aligning tracks, was used by defendant in the conduct of -its business, testimony that it was the practice of the employees to scatter materials over the yard in repairing cars is admissible, the switch-tender having stumbled over a brake-beam in the yards and having been injured thereby. While such acts are in a sense collateral, an inference of fact bearing on the particular act of negligence may properly be drawn from them.
    6. -: -: Collateral Fact. The rule is that if a collateral fact bearing on the main issue is so intimate and valuable as to tend to prove the main fact, it is competent evidence.
    7. DAMAGES: Under Federal Act: Contributory Negligence: Instruction. It is proper to- instruct the jury, in a suit for personal injuries brought under the Federal Employers' Liability Act, that the amount of plaintiff’s damages may be reduced in the proportion that his own negligence contributed to his injury; and the instruction on the subject in this ease is unobjectionable.
    8. VERDICT: Excessive: $10,000. Under the Federal Act. an injured employee is entitled to such damages as will compensate him for expenses incurred, loss of time, suffering and diminished earning power, and the amount recoverable is not otherwise limited or restricted, except where he has been guilty of contributory negligence; and there being no such negligence, a verdict of $10,000 for the loss of an arm and a gash above the eye which impairs the sight, supported by substantal evidence and approved by the trial court, vested with authority to set it aside if excessive, is approved.
    Appeal from Lina Circuit Court. — IJ.on. Fred Lamb, Judge.

      Affirmed.

      H. J. Nelson, Bailey <& Hart, Palmer Trimble and M. O. Roberts for appellant.
    (1) The instruction in the nature of a demurrer to-the evidence offered at the close of plaintiff’s cas© and again at the close- of all the evidence, should have been given, (a) In actions under the Federal Employers’ Liability Act negligence is essential to a recovery and it is an -affirmative fact, which must be established by competent evidence. The statute prescribes that the “defect or insufficiency” in the “track” or “roadbed” causing the injury must be “due to negligence.” Seaboard A. L. R. Go. v. Horton, 233 U. S. 49-2 ; Fish v. Railroad Co,, 263-Mo. 106; Erie R. Co. v. Winfield, 244 U. S. 172; New York C. R. Co. v. Winfield, 244 U. S. 150; New Orleans Railroad Co. v. Harris, 38 Sup'. Ct. Rep. 535. (b) Prior knowledge on the part of the employer of the existence of a-negligent defect must be shown. Proof of an injury and an obstruction on the master’s, premises, i. e., that the defect existed at the time of the injury, is not sufficient to show prior knowledge, actual or constructive; for the fact of an accident carries with it no presumption of negligence on the part of the employer. On the contrary, in the absence of affirmative proof showing prior knowledge of the defect, the injury is to be attributed to causes for which the master is not liable. Haggard v. McGlrew Coal Co., 200 S. W. 1072; Elliott v. Railroad,. 204 M,o. 14; Winslow v. M., K. & T., 192 S. W. 121; Railroad v. Ingram, 187 S. W. 452, affirmed in 244 U. S. 648; Gurley v. Railroad, 104 Mo. 211; Yarnell v. Railroad, 113 Mo. 570; Glasscock v. Dry Goods Co., 106 Mo. App. 657; Patton v. Railroad, 179 U. S. 658. (c) Proof that a negligent obstruction was upon the master’s premises at the time of the injury, does not establish prior knowledge, actual or constructive,' on the part of the master even though the injury occurred on the private premises used exclusively by his employees, for knowledge will not be presumed even under such circumstances, as it is an independent element of liability which must be alleged and proved. M., K. & T. v. Jones, 103 Tex. 187, 125 S. W. 309; Ft. Worth Ry. Co. v. Jones, 166 S. W. 1130; Ry. Co. v. Jones, 18-2 S. W. (Tex. Civ. App.) 1Í84; Welch v. Railroad, 17 N. Y. Supp. 342; Haggard v. McGrew Coal Co., 2-QO1 S. W- 1072; Barrett y, Virginian Ry. Co., 244 Fed. 307; Elliott y. Railroad, 204 Mo. 1; Hollenback v. Railroad, 141 Mo. 109. (d) Prior knowledge to any of the employees of the- defendant of the existence of the brake-beam is not sufficient. Knowledge of a defect in a railroad yard must be brought home to some agent or employee charged with removing and remedying the defects. (4) Thompson on Negligence, sec. 3797, p. 78 ; 1 Bailey on Personal Injuries (2 Ed.), sec. 282, p. 588; Covey v. Railroad Co., 86' Mo. 641; Porter v. Railroad Co., 71 Mo. 78; Johnson v. Railroad, 96 Mo. 340 ; Dedrick v. Railroad, 21 Mo. App. 433. »And the enactment of a statute prescribing that an employee does not assume the risk of the negligence of a fellow servant, does not alter the rule or repeal this principle. See Mr. LaBatt’s comprehensive note in 41 L. R. A. 1, and particularly on p. 143 thereon, (e) The preponderance of the evidence in this case against the plaintiff’s uncorroborated statement that there was a brake beam near the 21 lead, is so strong as to compel the presumption that the jury was actuated by prejudice, bias or sympathy. Under such circumstances this court will not hesitate to set aside the verdict of the jury. Lehnick v. Met. St. Ry. Co., 118 Mo. App. 611; Gage v. Trawick, 94 Mo. App. 307; Fries® v. Fallon,, 24 Mo. App. 439; Holt v. Morton, 5(31 Mo. App. 187; Hewitt v. Doherty, 25 Mo. App. 326; Lionberger v. Pohlman, 16 Mo. App. 392; Walton v. Ry. Co., 49 Mo. App. 620; Empey v. Grand Ave. Cable Co., 45 Mo. App. 422. (2) Instruction No. 6 on the measure of damages is erroneous for the reason that it does not conform to the present value theory adopted by the Federal Supreme Court. Railroad v. Kelly, 241 U. S. 485.

      A. G. Knight for respondent.
    (1) By Section 1 of the Federal Employers’ Liability Act (U. S. Comp. Stat. 1901, Supp. 1911, p. 1322) every railroad company is made liable for the negligence of any of its officers, agents or employees and their negligence is the company’s negligence, and their act in leaving the brake-beam at the point where it was shown to be left was a negligent act the moment they did so, binding the company as effectually as if the company itself had left the brake-beam there, and the plaintiff was not bound to assume a further burden not embodied in the statute or required by its terms, i. e. to'show a negligent remaining of the brake-beam at the point where left. Hawkins v. Railroad Co., 1891 Mo. App. 224; Cross v. Railroad Co., 191 Mo. App. 202; Laughlin v. Ry. Co., 205 S. W. 3^. (a) The direct and. circumstantial evidence was ample to support the finding of the jury that an employee of the company left the'brake-beam at the point of injury, (bj The advancing legislation of recent years, extending the liabilities of the master for injuries to the servant, not only of this and other states, but of the Congress, and especially the act upon which this suit is founded, abolishing the fellow-servant rule, denying tlm defense of contributory negligence and modifying the doctrine of assumption of risk, has practically swept a.Wav all the objections to the doctrine as a distinctive rule of evidence of re* ipsa loauitur, as applicable to meater and servant. Most of the objections to the a-^. •nh’cabilitv of this rule to that situation have now no pred; cate on which to rest, and with the breaking dowii of these barriers, the rule must unfold with the spirit of the law. While we think the facts and circumstances are ample and abundant to impel the inference of defendant’s negligence in this case, yet if they are lacldng in the least degre.e in force or probativeness, this rule of evidence will at least lend, aid to the conclusion of negligence, and it may be would entirely support it if necessity required. Jones v. Ry. Co., 178 Mo. 528; Turner v. Harr, 114 Mo. 335; Blanton v. Dold, 109' Mo. 64; Sackewitz v. Am. Biscuit Mfg. Co., 78 Mo. App. 144; Johnson v. Met. St. Ry. Co., 104 Mo. App. 588; Klebe v. Parker Distilling Co., 207 Mo. 480'; Benedict v. Ry. Co., 104 Mo. App. 218; Mo. Pac. Ry. Co. v. Larussi, 161 Fed. 70; Wanen v. Mo. & Kans. Tel. Co., 196 Mo. App. 553; Myers v. City of Independence, 189 S. W. 821; Orris v. Railway Co., 214 S. W. 127; 4 Wigmore, Ev. p. 3557; Wiles v. Railroad Co., 125i Minn. 348, 147 N. W. 427; Graham v. Badger, 164 Mass. 42; Lykiardopoulo v. New Orleans C. R, L. & P. Co., 127 La. 310,53 So. 575, Ann. Cas. 1912A, p. 976; Trim v. Ship Bldg. Co., 211 Mass. 592: Nolen v. Eng-strum Co., 166 Pac. 346; Duhme v. Hamburgh American Packet Co., 184 N. Y. 404, 112 Am. St. 615; Removich v. Const. Co., 264 Mo. 43, L. R. A. 1917E, p. 233; Note L. R. A. 1917E, pp. 4 to 126.
   WALKER, C. J.

This is an action predicated on the Federal Employers’ Liability Act, for personal injuries. It was brought by the respondent against the appellant in the Circuit Court of Linn County, where it was tried in March, 1916, resulting in a verdict in favor of the respondent in the sum of $10,000. A review of the judgment rendered thereon is sought by the appellant.

Appellant maintains, at Hannibal, a terminal yard, which has thereon various buildings, a main, transfer and switching tracks, necessary in the operation of its business as a railway company. Respondent at the time of his injury was employed in this yard as a switch-tender, his hours of labor being from seven p-. m. to seven a. m. His duties required him to open and throw switches and align them for the passage of trains. In so doing, it became necessary for him at times to pass over the tracks, switches and rails in the yard. He had been thus employed by the appellant for twenty-six days prior to his injury, which occurred December 11, 1915', at about four o’clock in the morning. The weather-, at the time was dark and rainy. Just prior to his- injury, respondent had aligned a switch for a train which was to pass through the yard en route to St. Louis. Immediately thereafter he started to walk toward and across the main lead, giving signals as he went with his lantern, to the train for which he - had aligned the switch, to proceed. By the “main lead” is meant a main track which ran diagonally across the yard from which other tracks radiated to switch and repair parts of the yard. One of these tracks was known as lead to switching tracks No. 21 to No. 25, and is designated in this record as “2!1 lead.” After giving the signals, and while respondent was in the space between the main lead and 21 lead on his way to a shanty in the yards, where he stayed when not engaged in the discharge of his duties, and while looking ahead to determine his course, and to see if the train for which he had aligned the switch was approaching, he stumbled over a brake-beam lying between the main track and 21 lead, and fell to the ground. In falling, he struck on his side and back, and fell lengthwise of the track. As he attempted to arise, a'switch engine approaching on the 21 lead knocked him down again, caught him and dragged him about twenty feet, running over and crushing his right hand and wrist. He also received a disfiguring gash over his right eye. Arising after the switch engine had passed, he saw for the first time the brake-beam over • which he had fallen in the first instance. The injury he received necessitated the amputation of his right hand, and a portion of the arm, about two or three inches above the wrist; and the gash above Ms eye resulted in an injury to his sight. His employment in interstate commerce is conceded.

At the time of his injury, he was twenty-three years of age, in a good state of physical health, and was earning two dollars and thirty cents per night. The yard where the injury occurred was the private property of the appellant. It was enclosed with a solid plank fence, which was placarded on the entrance to. same with notices forbidding trespassing. Watchmen were kept to enforce tMs injunction.

Witnesses for appellant testified as to a statement alleged to have been made by the respondent at the'yard office immediately after the injury, to the effect 'that when he wa.s signaling the train he had aligned the switch for, he stepped back out of its way, and was struck by the switch engine, knocked down, and in putting his hand on the Pail to* put himself out of the way, it was run over and crushed.

Various collateral facts and circumstances were adduced in evidence by appellant to* sustain the concha-’ sion that its employees had no part in or knowledge of the location of the brake-beam, and that soon after the accident it was not .to be found between the tracks.

I. Appellant contends that its demurrer to the evidence should have been sustained, first, because the respondent’s statement as to the location of the brake-beam was not corroborated, but was shown by circumstances to be false; and, second, that appellant was not shown to have had either actual or oonsto’uctive notice of the location of the brake-beam, as stated by the respondent. The latter testified affirmatively to the fact of the brake-beam’s •location, and that it constituted the obstruction which caused his fall in the first instance. It was' shown that at different times cars were repaired in the yard, and their parts separated, and that it was customary when such repairs were in progress, to take out brake-beams and drop them near at hand where they could subsequently be removed- by a crew thus engaged. That a oa.r was being repaired on a track near the scene of the aocident on the day preceding', the morning' the respondent was hurt. These facts cannot be otherwise construed than as circumstances confirmatory of respondent’s testimony, which is not weakened by the fact that he did not know who placed the brake-beam between the tracks or its location there prior to the accident, or how long it had been there, or that it was not seen there the, day preceding and immediately .following the accident. The assumption, therefore, based upon the circiunjstances adduced by the appellant to establish, first, that the brake-beam was not where it was stated to have been by the respondent; and, second, that it mysteriously disappeared, do not in our opinion, tend to weaken the' force of the latter’s testimony. The first attempts by an array of circumstances to contradict affirmative testimony; and the second assumes that if the brake-beam was as located by the respondent it mysteriously and unaccountably disappeared. Certainly, it could not have accorded with any rational purpose of the respondent to cause its removal. If it did mysteriously disappear, as contended by appellant, its disappearance could have redounded only to the 'benefit of the appellant. Other arguments are adduced by appellant upon circumstances of like character to the foregoing, for the purpose of destroying the force of the respondent’s testimony. They do not impress us as having a tendency to accomplish this rnd.

The quantum of proof necessary to sustain a verdict in a case of this character may perhaps be more readily determined by the statute upon which the action is based. It is as follows: “That every common carrier by railroad while engaging in commerce between any of the several States . . . shall be liable in damages to any person suffering injury' while he is employed by such carrier in such commerce, '. . . for such injury or. death resulting in whole or in part from the negligence of any of the officers, agents, or employees of such carrier, or by reason or any defect or insufficiency, due to its negligence, in its cars, engines, appliances, machinery, track, roadbed, works, boats, wharves or other equipment.” ["Sec. 1, Fed. Employers’ Liability Act, U. S. Comp. Stat. 1901, Supp. 1911, p. 1322.]

This section renders every railroad company liable for the negligence of any of its officers, agents or employees, and their negligence is that of the company. The leaving of the brake-beam, therefore, at the point where it was shown to have been left, was a negligent acib and bound the company as effectually as if it, as principal, had left it there, and respondent Was not required to show a negligent placing of the brake-beam at the point where it was left. [Mondou v. Railroad, 223 U. S. 1, 56 L. Ed. 327; Pedersen v. Railroad, 229 U. S. 146, 57 L. Ed. 1125; Seaboard Airline v. Horton, 223 U. S. 492, 58 L. Ed. 1062.] Thus left, it did not constitute a risk normally incident to the employment in which the respondent was engaged, and he had a right to assume that the appellant had exercised proper care with respect to providing a reasonably safe place for him to work, free from any obstacles which would be likely to cause him injury. In other Words, as the statute has been construed by the courts, an employee cannot be treated as having assumed a risk until he becomes aware of the defect or obstruction and of the risk arising from it, unless it is so obvious that an ordinarily prudent person under similar circumstances would have observed it. [Seaboard Airline v. Horton, 223 U. S. 492, 58 L. Ed. 1062; Fish v. Railroad, 263 Mo. 106; Young v. Lusk, 268 Mo. l. c. 640; Williams v. Pryor, 272 Mo. l. c. 619.]

The jury, however, heard all of appellant’s testimony, as well as that of the respondent, as to the manner in which he was injured, and the location of the brake-beam, and gave credence thereto rather than to the testimony of the witnesses for the appellant. The respondent’s testimony being substantial in its nature, and not contrary to reason, we are not inclined to disturb the conclusion reached by the jury in regard thereto. [Laughlin v. K. C. So. Ry., 205 S. W. 3; Hall v. Coal Co., 260 Mo. 365; Stauffer v. St. Ry. Co., 243 Mo. l. c. 316.]

II. Error is assigned 'in the admission of testimony that it was the practice of appellant’s employees to scatter materials over the yard' in the repairing of cars. The yard constituted one of the appointments of appel-' lant in. the conduct of its business. The manner which the yard was kept, therefore, was a proper subject of proof. [St. L. Nat. Stockyards v. Godfrey, 198 Ill. l. c. 294; Chicago City Ry. Co. v. Sugar, 117 Ill. App. Rep. 578; Rich v. Pelham Co., 48 N. Y. Supp. 1067; Boyce v. Wilbur Lumber Co., 119 Wis. l. c. 648.]

While proof of such acts of appellant’s employees may in a sense be held to be collateral, an inference of fact is authorized to be drawn therefrom bearing upon the particular act of negligence which rendered the testimony admissible. [Rose v. St. Louis, 152 Mo. 602; Campbell v. Railroad, 121 Mo. 340; C'alcaterra v. Iovaldi, 123 Mo. App. 347 and cases p. 352; Franklin v. Ry. Co., 97 Mo App. l. c. 480 and cases; Evans v. Gas. Co., 148 N. Y. 112.] From all of which the general rule is deducible that the competency of a collateral fact in any given case turns on whether or not the court deems its bearing on the main issue to be so intimate and valuable as tending, to prove the main fact, when the objections to the testimony as collateral evidence may be disregarded.

In harmony with the rule as thus announced, it having been affirmatively shown by the testimony of respondent that the brake-beam had been left between the tracks, it was not improper, as corroborative of his testimony, to show that, it was the habit of the employees of the appellant to thus leave materials on the yard when repairing cars. Especially is this true when a custom thus sought to be established is shown to have been practiced in this immediate vicinity of the accident, and is limited to proof of the leaving of materials on the yard, similar to that which was the proximate cause of the alleged injury.'

III. The giving of instruction numbered G is assigned as error. So far as applicable to the contention here made, this instruction told the jury, “that in case they should believe and find from the evidence that the defendant - was guilty of negligence contributing to plaintiff’s injuries, which must be found by the jury before they can find for the plaintiff at all; and if the jury should further find and believe from the evidence that plaintiff was also guilty of some negligence contributing to his said injuries; that is, if the jury should believe and find that the negligence causing plaintiff’s injury, if any, is partly attributable to the defendant and partly to the plaintiff, then the plaintiff is not entitled to recover full damages, but the damages shall be diminished hy the jury proportionately; "that is to say, plaintiff in sneh event would only be entitled to recover the proportional amount of damages sustained by him bearing the same relation to the full amount as the negligence attributable to 'both defendant and the plaintiff.’-’ This is in harmony with the rule as to the measure of damages announced by the Federal Supreme Court (K. C. So. Ry. v. Jones, 241 U. S. l. c. 183; Ill. Cent. R. Co. v. Skaggs, 240 U. S. 66; Seaboard Airline v. Tilghman, 237 U. S. l. c. 501; Grand Trunk & Western Ry. Co. v. Lindsay, 233 U. S. 1. c. 491; Norfolk, etc. Ry. v. Earnest, 220 U. S. l. c. 122); and it has been followed by this court in Blankenbaker v. St. L., etc. R. Co., 187 S. W. 840. There is nothing to the contrary in the case of C. & O. Ry. Co. v. Kelly, 241 U. S. 485, cited by appellant. There is, therefore, no merit in this assignment.

IV. The appellant contends tersely, without comment, that “the verdict is excessive.” Under the Federal act, the respondent was entitled to such damages as would compensate him for expenses incurred,, loss of time, suffering and diminished earning power (Mich. Cent. R. Co. v. Vreeland, 227 U. S. 59, Ann. Cas. 1914C, 176) and the jury was so instructed.

The act does not restrict the amount of damages recoverable, except as to those actually sustained, and there is no limitation in this respect in our statute. Contributory negligence, the only effect of which would have been to diminish the amount of recovery, was not shown. The evidence adduced in support of the verdict was substantial. While the jury was limited to no exact measure in estimating the damages (Laughlin v. Railroad, 275 Mo. l. c. 472) the trial court was vested with a discretion to set aside their verdict if it had been deemed excessive. This was not done, and taking all of the facts into consideration, we are not inclined, to rule otherwise.

In the absence of reversible error, the judgment is affirmed. It is so ordered.

Williamson, Goode and Woodson, JJ., concur; Graves, Blair and Williams, JJ., dissent.


author: GOODE, J.

text:
    CHANIE WILLIAMSON, Appellant, v. UNION ELECTRIC LIGHT and POWER COMPANY.
    In Banc,
    March 15, 1920.
    1. NEGLIGENCE: Safe Place: Narrow and Unlighted Platform. A petition which states that deceased was ordered and directed to stand twelve feet above a concrete floor on á platform twelve inches wide, and while so standing to reach up six feet and regulate the dampers to a boiler; that the platform was unsafe, because too narrow for deceased to perform his labors with safety, because it had no railing to prevent a person on it from falling off and because it was inadequately lighted; and that, while performing the said work, deceased fell and was killed, states a cause of action. And particularly does the averment that it was dark on the platform tender dn issue to be submitted to a jury.
    2. -: -’: Assumption of Bisk. Although the height and narrow width of the platform on which deceased was required to work were apparent, and although the danger in adjusting the dampers of the boilers which his employment required him to regulate was apparent, h’e 'did not assume such risks; but he assumed only such risks, in respect to the place where he was put to work, as were incident to the service after his employer performed his duty by using care to provide a place of reasonable safety. Although the danger may be obvious, if this is due to a lack of care on the part of the master in furnishing him a safe place, the servant does not assume the risk.
    3. -: -: Contributory Negligence. Unless to perform on the platform the work with which the servant was occupied at the time he fell appears conclusively from the allegations to have been plainly hazardous to a degree that would have deterred a man of ordinary prudence from undertaking to perform it, he cannot be defeated on the score of contributory negligence, as a matter of law, upon a demurrer to the petition.
    Appeal from St. Louis City Circuit Court. — Eon. Wilson A. Taylor, Judge.
    Reversed and remanded {with directions).

      W. R. Hill, Spencer & Donnell and T. F„ McDonald for appellant.
    ■ (1) The petition clearly alleges a cause of action flowing from a breach of the duty owed by defendant to Williamson, its employee. Coin v. Lounge Co., 2221 Mo. 505; Clark v. Iron and Foundry Co., 234 Mo. 449'; Burkard v. Rope Co., 217 Mo. 481; Nash v. Brick 'Co., 109' Mo. App. 606; Wendler v- House Furnishing Co., 165 Mo. 537; Yost v. Cement Co., 191 Mo. App. 431; Duerst v. St. Louis Stamping Co., 163- Mo. 621; Fisher v. Lead Company, 156 Mo. 485. (2) The petition does not show facts from which Williamson can be charged with having assumed the risk arising from the condition of his surroundings. Williams v. Pryor, 2721 Mo. 621; George v. Railroad, 225 Mo. 406; Fish v. Railroad, 263 Mo. 124; Yost v. Cement Co., 191 Mo.. App. 433; Strother v. Milling Co., 261 Mo-. 24; Young y. Lusk, 268 Mo. 640; Dakan v. Chase Co., 197 Mo. 267; Jewell v. Bolt and Nut Co., 231 Mo. 201; De Late v. Biscuit Co., 213 S. W. 885. (3) The petition does not allege facts which constitute contributory negligence on the part of Williamson, and inasmuch as the law is that, unless the only conclusion that can be drawn from the facts is that there was contributory negligence, the question is for the jury, and the demurrer to the petition should be overruled. Jewell v. Bolt and Nut Co., 231 Mo'. 200; George v. Railroad, 225 Mo. 411; Williams v. Pryor, 272 Mo. 623; Pauck v. Provision Co., 159 Mb. 478; Yost v. Cement Co., 191 Mo. App. 433; Garaci y. Const. Co., 124 Mo. App. 719; Burkard v. Rope Co., 217 Mo. 481; Wendler v. House Furnishing Co., 165 Mo. 537; Carney v. Brewing Assn., 150 Mo. App. 437; Bowman v. K. C. Elec. Light Co., 213 S. W. 161; Osborne v. Wells, 211 S. W. 890; Barnard v. Brick Co., 189 Mo. App. 417.

      J our dan, Rassieur & Pierce for respondent.
    (1) The servant is chargeable with knowledge of all conditions surrounding his employment, and of risks created by these conditions, according as it may reasonably be inferred that those conditions or those risks would have been comprehended by a person of ordinary prudence whose mental and physical capacities, both natural and acquired, and opportunities for observing the facts indicative of danger, were the same. 4 Labatt’s Master & Servant, sec. 1310, p. 3673; Porter v. Hannibal & St. Joseph Railroad, 71 Mo. 77; Hollenbeck v. Railroad, 141 Mo. 96; McGinnis v. Hydraulic Press Brick Co., 261 Mo. 287. If the risk is such as to be perfectly obvious to the sense of any man, whether master or servant, then even in the case of defective machinery, the servant assumes the risk. Keegan v. Kavanaugh, 62 Mo. 230; Price v. Hannibal & St. Joseph Railroad, 77 Mo.'508; Fugler v. Bothe, 117 Mo. 494; Sailer v. Shoe Co., 1301 Mo. App. 721; Jones v. Cooperag'e Co., 134 Mo. App. 330 ; Pollman v. Car & Foundry Co., 123 Mo. App: 228; DeForest v. Jewitt, 881ST. Y. 264. (2) Plaintiff, as servant of the defendant, was bound to inform himself as to his surroundings, and is held, as a matter of law, to have known and accepted all the risks of the premises which were open and obvious to the sense of any man. (a) This has been applied to overhead dangers, as where a railroad brakeman ran into an overhead bridge, or a driver drove under a low gateway. D;evitt v. Railroad, 50 Mo. 302; Baker v. Asphalt P'aving Co., 92 Fed. 117; Carroll v. Boston Coal Co., 81 N. E. 296. -(b) The same is true as to dangers underfoot, such as risers between a hallway and a room or mud scrapers at the foot of a staircase. Ware v. Evangelical Baptist Assn., 63 N. E. 885; McGinnis v. Brick Co., 261 Mo. 287. (3) An employer is not an insurer against accidents, nor is it chargeable or responsible for not providing, against all possible and unanticipated happenings. IGlover v. Bolt & Nut Co., 153 Mo. 327; Fugler v. Bothe, 117 Mo. 494; Wendall v. Ry. Co., 100 Mo App. 556; Devitt v. Ry. Co., 50 Mo. 302; Hollenbeck v. Ry. Co., 141 Mo. 97. (4) The mere failure to furnish light does not of itself constitute negligence. Price v. Railroad, 77 Mo. 508; Cleveland Ry. Co. v. Morrey, 88 N. E. 932; 2 Bailey on Personal Injuries (2 Ed.), p. 1197. Nor is the master required to furnish the safest kind of platform that can be devised. He is merely required to exercise ordinary care in furnishing it.; The rule in that regard is the same as in furnishing appliances. Friel v. Citizens Ry. Co., 115' Mo. 503. Shohoney v. Railroad, 223 Mo. 677; Steinhauser v. Spraul, 127 Mo. 562.
   GOODE, J.

Demurrers were sustained by the court to three petitions of plaintiff, who stood on the third one, refused to amend and prosecuted this appeal from a final judgment rendered against him. This is the third amended petition, omitting caption and signatures:

“Plaintiff by leave of court first obtained files this her third amended petition and for her cause of action states that she was the lawful wife and now is the widow of Joseph Williamson, deceased, who died in the City of St. Louis, on the 8th day of December, 1914.

“That defendant, Union Electric Light & Power Company, is and at all times hereinafter mentioned was a corporation duly organized and existing under the laws of the State of Missouri, and engaged in supplying electricity, heat and power in the City of St. Louis, and was also engaged by and through its agents and servants in operating the electric machinery, engines, and steam boilers, and had control over the equipment and appliances used in connection therewith, in the Pierce Building in said city, and by means thereof supplied said building with electricity, heat and hot water service.

‘ ‘ That on all the dates hereinafter mentioned the said Joseph Williamson, deceased, husband of plaintiff, was in the employ of defendant Union Electric Light & Power Company as a fireman in said Pierce Building, and that his duties were to fire and assist in firing the steam boilers in said building and to regulate and assist in regulating the dampers on said boilers.

‘ ‘ That in order to regulate the damper on said boilers said deceased was ordered and required by defendant, its servants and agents to climb up a wooden ladder from the floor of the boiler-room to a platform twelve feet above the floor, which said platform was twelve feet long and about ten or twelve inches in width and was fastened between two brick columns and against the rear wall of the furnace at the rear end of said boilers, and said deceased was compelled to stand on said narrow platform while regulating said dampers upon said boilers and reach up six feet above said platform in order to regulate and adjust said dampers; that said platform upon which it was necessary for deceased to stand in order to perform his duties was unsafe and dangerous in this, that it was too narrow a space wherein to perform his labors with safety, and that the same was not equipped with a railing.

“Plaintiff further states that it was exceedingly dark upon said platform and at the place where deceased was required to perform his labors and that defendant failed to exercise reasonable care to provide a reasonably safe place on which for plaintiff’s husband to perform his duties, in this, to-wit, that said defendant negligently failed to put a railing around said platform or to widen the same to a width sufficient so that deceased would have been able to perform his duties thereon with safety, and negligently failed to provide adequate and proper lights on or near said platform.

“Plaintiff further states that said defendant knew, or by the exercise of reasonable care could have known, said platform was an unsafe place for deceased on which to perform his labors.

“Plaintiff further states that on, to-wit, the 4th day of December, 1914, while deceased was in the performance of his duty and was. exercising ordinary care and while regulating said dampers on said boilers, and by reason of the narrow and unsafe platform on which he was compelled to work by defendant, and because of the negligent failure of defendant to properly light said platform and to widen said platform and equip the same with a railing, deceased lost his footing and balance and fell from said .platform to the cement floor below, injuring himself and fracturing Ms skull, and died as a result of said injuries on, to-wit, the 8th. day of December, 1914.

“Plaintiff further states that she was .wholly dependent upon the deceased for support and that his earning’ capacity was $-per month, and that by reason of the negligence of the defendant aforesaid, she has been damaged in the sum of ten thousand dollars.

“Wherefore plaintiff prays judgment in the sum of ten thousand dollars, together with her costs in this behalf expended.”

The alleged negligence of the defendant consisted in ordering and requiring deceased to stand twelve feet above the floor of the engine room of the Pierce Building*, on a platform ten or twelve inches in width, and in that place regulate the dampers of the boilers by reaching six feet above the platform. This board or platform is alleged to have been unsafe because too narrow for deceased to perform his labors on with safety, and’ because it was inadequately lighted, and had no railing to prevent a person on it from falling off. We have concluded these averments, particularly the one that it was dark on the platform, tendered an issue to be answered and submitted to a jury, as toi whether defendant fulfilled its duty as employer to use ordinary care to furnish its employee, the deceased, a reasonably safe place in wMoh to perform his task of adjusting the dampers of the boiler.

Defendant asserts that the deceased assumed the risk of injury from working on the platform, because its height, and dimensions were apparent, and whatever danger there was in adjusting the dampers while standing on it, was apparent,'too. That the deceased assumed the risk, under those conditions, especially if they existed when deceased took his job, probably is the law in most jurisdictions. [1 Shear. & Redf. Negligence (6 Ed.), secs. 207e et seq., original Sec. 185-, and cited cases.] It is not in this one. The doctrine of this court is that an employee only assumes such risks, in respect of the place where he is put to work, as are incident to the service after the employer has performed his duty by using care to provide a place of reasonable safety. And although the danger of the place may be obvious, if this is due to lack of care on the part of the master to. furnish a safe place, the servant does not assume the risk. Adjudications to the contrary may be found; but for a long1 time the rule of decision of the courts of this State on the subject has been as stated. [Williams v. Pryor, 272. Mo. 613, 621; Fish v. Railroad, 263 Mo. 106, 112; Curtis v. McNair, 173 Mo. 270.] Many other eases of the same character might be cited.

Neither can we accept the proposition that the deceased so obviously contributed by his own negligence to cause his death, that ho should be ruled to have done so as a matter of law. Unless to perform on the platform the work he was occupied with when he fell, appears conclusively from the allegations to have been plainly hazardous to a degree that would have deterred a man of ordinary prudence from the task, the deceased cannot be defeated on the score of contributory negligence. [Williams v. Pryor, 272 Mo. l. c. 623; George v. Railroad, 225 Mo. 1. c. 411; Jewell v. Bolt & Nut Co., 231 Mo. 201.] We are speaking,-now of the facts as shown in the petition. Of course on a trial it may be proved that the negligent way in which the deceased moved about the platform, or some other careless act of his, contributed to cause him to fall. The averments of the petition fall short of convicting the deceased of negligence beyond an inference to the contrary. Decisions on the subject are reviewed in Jewell v. Bolt & Nut Co., supra.

The judgment is reversed and the cause remanded, with directions to set aside the judgment and the order sustaining the demurrer and permit the defendant to answer, if so advised.

All concur.


author: GRAVES, J.

text:
    W. M. BROOKS, Appellant, v. T. A. ROBERTS et al.
    In Banc,
    March 15, 1920.
    1. LACHES: Action at Law: Suit to Quiet Title. Laches is no de-_ fense to an action .at law. Where the petition and answer are not set out, but abstracted by appellant, and it is stated in this abstract that laches was interposed by the answer as a defense, but both this abstract and the statement of respondent also say that the petition was an ordinary action under the statute to quiet title, and the record shows the case was tried as one at law, the case will be so treated on appeal, and the finding of the judge sitting as a jury will be binding, for such a petition states a cause of action at law, and not in equity.
    2. -: -: -: Taxes. The mere non-payment of taxes on land does not show laches.
    3. IDENTITY OF NAME: Identity of Person. Identity of person is to be presumed from identity of name. But the presumption may be overcome by credible evidence. The presumption only establishes a- prima-facie case. The jury, or the court sitting as a jury, may believe or disbelieve such evidence; if believed, the presumption fails; if disbelieved, the presumption will authorize a verdict.
    4. -: —:-: Instruction: Reasonable Doubt. An instruction on the presumption of identity of person arising from identity of name should not require the trier of the facts to find the identity of person beyond a reasonable dopbt, or otherwise ignore the presumption. The term “reasonable doubt” or similar expressions have no place in instructions in a civil case.
    5. INSTRUCTION: Erroneous: Given by Court to Itself. An erroneous instruction given by the court sitting as a jury to try the facts will work a reversal. In such case, the erroneous instruction in a law case is just as fatal as if the issues had been submitted to a jury and such instruction had been given to them as their guide.
    6. CONVEYANCE: Existence of Deed: Presumption: Payment of Taxes. In the absence of any record, proof that a deed was made by the patentee to defendant’s ancestor may be made either (1) by proof of such facts as will raise a presumption that such deed was made or (2) by direct evidence that such deed was made and had been lost or destroyed. But the presumption that a deed was made cannot arise from the mere payment of taxes for a period, of years, either by such ancestor or his heirs or grantees; but ancient and long possession, coupled with other circumstances, will justify the presumption. Nor will evidence that defendant’s ancestor was in possession of a patent, in which he was not named as patentee, aid the presumption that a deed was made by said patentee to him as grantee. And the presumption aside, and no record of a deed or possession of the land being shown, the evidence should show a deed in fact.
    Appeal froxn Reynolds Circuit Court. — lion. E.. M. Bearing, Judge-
    Reversed and remanded.

      Arthur T. Brewster and Sam M. Brewster for appellant.
    (1) It was the duty of the court to render judgment in an action under Section 2535 for the party showing the better title. The defendants showing; no title and the plaintiff making a prima-facie showing, should have had judgment. Toler v. Edwards, 249 Mo. 161; Maynor v. Land & Timber' Co., 236' Mo. 728'; Gage v. Cantwell, 191 Mo. 706; Gránton v. Holliday-Klotz Co., 189' Mo. 332; Dixon v. Hunter, 204 Mo. 390. (2) Identity of name is identity of person prima-facie. Geer v. Lumber & Mining-Co., 134 Mo. 96; State v. Moore, 61 Mo. 279; Gitt v. Watson, 18 Mo. 276; Hoyt v. Davis, 21 Mo. App. 236; Jackson v. Goes, 13 Johns. (N. Y¡-) 518; Jackson v. King, 5 Cow. (N. Y.) 237. (3) The presumption of a grant is indulged only in favor of an ancient and uninterrupted .posssession; and; since it is admitted in this case that the land is wild and uncultivated timber land,’there can be no presumption that the patentee and his wife executed a deed to Ward under whom defendants claim. Dessaunier v. Murphy, 27 Mo. 51; Brown v. Oldham, 123 Mo. 631; Glasgow v. Mo. Car & F. Co., 229 Mo. 591, 597; Jackson ex dem. v. Blanshan, 3 Johns (N. Y.) 296; Fletcher v. Fuller, 120 U. S. 534; Elliott on Evidence, sec. 1332; White v. Loring, 24 Pick. 319; Wigmore on Evidence, secs. 2522, 2515; 1 Jones on Evidence, secs. 75, 76, 76A, and 77.

      R. I. January for respondents.
    (1) No one has a right to require another to come into court and show his title who cannot himself show, at least, a prima-facie title. If defendants’ proof goes no further than to show that plaintiff’s claim in invalid, it is no concern of plaintiff to know whether or not defendants’ title is good. Wheeler v. Reynolds Land Co., 193 Mo. .291; Senter v. Lumber Co., 25i5 Mo. 601; Skill-man v. Clardy, 256 Mo. 323. (2.) The facts and circumstances offered in evidence by the defendants, that their father, Martin F. Brigham, had claimed to own the land since 1860; that he had in his possession the patent theréfor, with a bundle of deeds, which he said were the title papers for the land; that the patent was issued to John Conner, as entryma-n; that this patent and the deed from Howard Ward to George E. Young, under; whom Martin F. Brigham claimed title, after the destruction of . the deed records in 1872, were both on the same day, to-wit, May 20, 1887, refiled for record and recorded in the recorder’s office of Reynolds County; that the deed from Ward to Young, was dated in 1859 and first recorded"in I860; that the deed records were destroyed in 1872; that Brigham continued to pay the taxes from I860- to his death in 1897; that since his death all the original deeds have been lost or destroyed; that John Conner, the patentee, nor any of his heirs, for' more than sixty years, have ever set up any claim to the land, would be such circumstances as to lead any court or any person to presume and believe that John Conner, the patentee, prior to the date of the deed from Ward to -Young, had executed and delivered a deed to said Ward, which, with the record thereof, had been destroyed with the other deeds Martin F. Brigham had. Glasgow v. Mb. Car & Foundry Co., 229' Mo. 596; Greenleaf on Ev, sec. 17; Dessaunier v. Murphy, 22 Mto. 95; Brinley v. Forsythe, 69 Mo. 185; Williams v. Mitchell, 112 Mo. 300; Brown v. Old-ham, 123 Mo. 631. (3) Title to real estate and the execution and delivery of deeds, like any other fact, may be established by circumstantial evidence, and it is not necessary that the evidence should remove all reasonable doubt- — a preponderance of the evidence is sufficient. Brewer v. Cochran, 99 S. W. (Tex.) 1033; Glasgow v. Mo. Car & Foundry Co., 229 Mo. 600. (4) It is not necessary that the party claiming the land should be in the actual possession thereof before a court or jury would have the right to presume, from evidence and circumstances, the execution of a deed. Glasgow v. Mo. Car & Foundry Co., 229 Mo. 596. (5) The presumption of identity of persons from identity of name, may be shaken and overcome by the very slightest proof of facts which produce a doubt of identity. Keyes v. Monroe, 226 Mo. 121; 2 Chamberlayne on Mod. Law of E:v. sec. 1191.
   GRAVES, J.

Action to quiet title. Neither petition nor answer is set out in the record, but the appellant states their contents in his abstract and there is no counter abstract. For the character of the pleadings we must abide appellant’s outline thereof, which reads: “The petition is in the ordinary form under Section 2535, Revised Statutes 1909, alleging that the plaintiff owns. said land, that each of the defendants claim an interest therein, either fee simple or otherwise, and praying the court to try, ascertain and determine the estate, title or interest of the parties thereto. Defendants, Ellen M. Cook and Emma E. Brigham, filed answer claiming said land, and alleging that the patentee, John Conner, conveyed said land to Howard Ward in 1859, and said deed and the record thereof has been destroyed by fire; that the Conner heirs under whom plaintiff claims title are not heirs of the John Conner who entered said land; and alleging that they and their ancestor, Martin F. Brigham, have been in the constructive possession of said land since 1859, having, paid taxes and exercised ownership over the same for all that time, and that John Conner and his heirs have been guilty of gross laches and should be now barred from maintaining any claim.

“This case was tried before the Circuit Court of Reynolds County, Missouri, on the 27th day of May, 1914, resulting in a judgment in favor of “John Conner, the entryman,” from which said judgment both plaintiff and defendants perfected their appeal to this court and said judgment was by this court on June 1, 1917, reversed and remanded to the Circuit Court of Reynolds County (No. 18566; 195 S. W. 1019).

“The case was thereupon tried at the May term,' 1918’, of the Reynolds County Circuit Court, and at the conclusion thereof was continued by the court until the next term of said court.

“On the 26th day of November, 1918’, at the regular November term, 1918’, of the Reynolds County Circuit Court, judgment was rendered by the court quieting title in the defendants Ellen M. Cook and Emma E. Brigham to the land sued for, and decreeing that plaintiff has no right, title or interest whatever therein. A certified copy of which judgment is on file in this court.”

For the plaintiff the evidence shows: (1) a patent from, the U. S. Government to one John Conner of St. Louis County, Missouri, of date of September 1, 1859, which was recorded in Reynolds County, Missouri, May 20, 1887; (2) quit claim deeds from the widow and heirs at law of one John Conner, who died at Metropolis, Illinois, October 7, 1901; (8) the testimony of Ester Y. Conner, the widow of the said John Conner, who died at Metropolis, Illinois. This witness testified in 'substance, that she and John Conner were married in Canton, Iowa, October 15, 1856; that two days after their marriage they moved to Quincy, Illinois, and lived there about three years or a little less; that from there they moved to St. Louis, and lived there five or six years, and then moved to Cincinnati, Ohio, where they remained three years; that from thence they moved back to St. Louis, and removed from St. Louis to Metropolis in 1868 or 1869.; that whilst her husband was in St. Louis he was steward on a steamboat from St. Louis to New Orleans; that she heard her husband say that lands were cheap in Missouri and that he thought he would buy some; that she never signed any deed to lands in Reynolds County; that she never saw any ■patent to lands in Missouri, nor did she know of him owning the lands in suit until she saw an advertisement in a St. Louis paper, a short time before this suit; that her husband never kept her1 informed of his business ; that she never knew or heard of Howard Ward of St. Paul, Minnesota, and had she signed a deed prior to 3860 she thought she would remember it; that in 1900 they had a fire and Mr. Conner’s papers were all burned; that she was 72 years old and might be in error as to exact dates, and the time that they lived in Quincy, Illinois.

The defendant offered in evidence the same patent. They then offered a quit claim deed from Howard Ward and wife, to George Young, dated August 23,1859 (seven days prior to patent to Conner), which deed was acknowledged in Ramsey County, Minnesota, and filed for record in Reynolds County, Missouri, May 7, 1860, and again filed for record May 20, 1887, the same day the patent was filed. From Ward to defendants was shown a paper title. To bridge the missing fink,' and as tending to show facts, which would justify the presumption or a conclusion that Ward had a deed from the patentee, John Conner, the defendants offered oral testimony of parties living in Boston, Massachusetts, and with this the testimony of Ellen M. Cook, defendant. This testimony (depositions in the case) tends to show: (1) that Martin F. Brigham died in Boston, October 17, 1897, testate, leaving as his children, Francis H. Brigham, Ellen M. Cook, and Emma E. Brigham; that at his death Martin F. Brigham had in his possession title deeds to the land in question, including the patent; that they saw the patent from the United States to John Conner, and that it was signed by President Buchanan, Mrs. Cook says that after the death of her father-she saw the title papers aforesaid at the home of Martin F. Brigham, sometime between 1872 and 1875, and at that time again noticed the patent; that in 1904 her brother Francis IT. Brigham deeded his interest to her; the evidence also shows that these titl@ papers were put into the possession of Thos. D. Cook, husband of Ellen M. Cook, where they- were seen by some of the witnesses, but that there was a fire in the office of Thos. D. Cook, when some of his papers were destroyed, and such title papers have not been seen since. It thus appears that both sides had convenient fires. Conner lost all his papers in a fire and Cook a part of his documents.

Defendant also put in evidence the application of John Conner of St. Louis County to enter the land in question, the date of which is stated to be October 11, 1858-. Directories of the City of St. Louis from 1848 to 1867 were also put in evidence, except there.is none for the year 1858. The- one for 18591 shows the name of John Conner, with his avocation given as a laborer. The one for 1860 shows two men by the name of John Conner, both laborers by avocation. The directory of 1864 shows three men with the name, one as laborer, one as a stone cutter, and one with no- avocation stated.

Defendant showed that taxes on this land were paid by Martin F. Brigham for the years of 1897 to 1901, inclusive, and by his estate for 1903 and 1908, and by Emma E. Brigham, one of the defendants, for 1904, 1905-, 1906, 1907,1909,1910 and 1911. ' Tax books in evidence showed that Martin F. Brigham had paid taxes for 1886, 1892, 1893, 1894, 1895 and 1896, and it is stated that for some years the books failed to show by whom taxes were paid. Other details will be left to. the opinion, under proper assignments of error. Trial was had before the court, and judgment for defendants, and plaintiff has appealed.

I. Whilst the abstract of the answer says that laches was interposed- as a defense, both this abstract and the statement of counsel for the defendants say that the petition is an ordinary petition under Section 253-5,, Revised Statutes 1909. Such a petition would state a cause of action at law, and not in equity. To an action at law laches is no defense. [Kellogg v. Moore, 271 Mo. l. c. 193.]

The parties seem to have so treated it at the trial, as they introduced no evidence, except the failure to pay taxes by plaintiff and his predecessors in title. It cannot be said that this evidence was introduced for that purpose, but rather to show defendant’s claim of title, and plaintiff’s non-claim of title. And the mere nonpayment of taxes on land would not show laches. The record shows that the case was tried as one at law, and it is such in fact. Each side asked instructions, although the case was tried by the court, without the intervention of the jury. In such case the finding of the trial court is binding here, and if such court has not improperly instructed himself (acting as the jury) the judgment will have to be affirmed. Of the instructions next.

II. In a law case tried before the court, we can but judge the views of the court by the instructions given. In this case, the fourth instruction for defendants reads:

‘ ‘ The court declares the law to- be that while identity of name is prima-facie identity of person, it may be' shaken by the slightest proof of facts which produce a doubt of identity; and if the court believes and finds from the evidence in this case that there is a reagona];)je 0f the John Conner under whom plaintiffs claims title, being the John Conner who entered the land here in suit, then the prima-facie case of identity of person is overcome and the Identity of person must be proven like any other fact, and if the court believes and finds from the evidence in this case that there is proof of facts and circumstances to produce a doubt in the mind of the court that the John Conner under whom plaintiff claims title is not the John Conner who entered the land here in litigation, then the mere fact that the ancestor of the grantors of plaintiff was of the same name of the entryman of the land, without other proof of identity, is not sufficient to establish title to the land in plaintiff. ’ ’

This instruction was objected to by the plaintiff, and exception duly saved to the actions of the court in giving it. The giving of it, and other instructions, is assigned as error here.

The plaintiff had deeds from the widow and heirs at law of a John Conner, whom he shows to have lived in St. Louis County (for at that time there had been no separation of the city from the county) at the. time John Conner of St. Louis County entered and got a patent to the land in dispute. The patent was in evidence. The defenses were (1) that these parties deeding to plaintiff were not the widow and heirs at law of the patentee, and (2) that the patentee had conveyed to Ward. Identity of name raises the presumption of identity of_ person without further showing. This presumption may be rebutted by evidence, and the presumption weakened, but the question of identity remains as one for1 the jury to determine. [Flournoy v. Warden, 17 Mo. l. c. 439 et seq.] The fact that there were other John Conners in St. Louis County may weaken the presumption, but will not destroy it. [Flournoy v. Warden, supra; Rupert v. Penner, 17 L. R. A. (Neb.) p. 824, note.] The introduction of the patent to John Conner, and the introduction of the deeds from the widow and heirs at law of John Conner, with the proof of the relationship, made a prima-facie case for the plaintiff, because of the doctrine that identity of person will be presumed from identity of name. Defendants could and did offer evidence tending to rebut this presumption, but this made a case for the determination of the trier of the facts under the usual rule of burden of proof and preponderance of evidence. The instruction which we have quoted goes further. This instruction required the trier of the facts to find the identity of person beyond a reasonable doubt, or otherwise ignore the presumption. The instruction amounts to that, because it says “and if the court believes and finds from the evidence in this case that there is a reasonable doubt of the John Conner under whom plaintiff .claims title being the John Conner who entered the land here in suit, then the prima-facie case of identity of person is overcome.”

As a trier of the facts the court could take the presumption of identity of person from the identity of name, and all the evidence upon the question of identity of person, and from it all determine the question of identity of person, but he should not have viewed the case from an angle fixed for him by this declaration of law. When once the prima-facie case of identity of person was made by the plaintiff, then the credibility; of thei evidence against it was for the trier of the facts. The court as the trier of the facts could believe or disbelieve such testimony. If he believed it, he would find for defendants. If he disbelieved it, the presumption of identity would authorize a verdict for plaintiff. [Gannon v. Gas Co., 145 Mo. l. c. 514; Quisenberry v. Stewart, 219 S. W. 625.]

Where the court instructs himself as the trier of the facts, an erroneous instruction is just as fatal as if a jury were trying the facts, and the court had given the same instruction. The identity of the person in this case should have been submitted to the trier of the facts under the ordinary and usual instructions as to burden of proof and preponderance of evidence. For this error the case will have to be reversed.

This presumption of identity of person from identity of name was a link in the chain of plaintiff’s proof. The weight of this presumption, as well as the weight of plaintiff’s other proof was to be weighed by the trier of the facts in the light of all the facts in the case. And as said, the trier of the fact might have disbelieved all- 'of the evidence tending to controvert the presumption"- of identity of person, in which case the presumption would authorize a verdict for plaintiff. Nor does the term “reasonable doubt” or similar expressions have any place in civil case instructions.

For this error we reverse and remand this cause, but ¿s the case has been twice here, and there are other questions raised, we think we should (to the end that there may be an end to this litigation) pass upon them as advisory to the court nisi upon a retrial.

III. Defendants’ answer pleads that there was a deed from the patentee to Ward. This may be proved in two ways, (1) either by proof of such facts as will raise the presumption of such deed having been made, or (2) by direct evidence that such deed was made and had been lost or destroyed. We discuss these' separately.

Doing to the first question. There are no fact’s to justify the presumption of a deed from the patentee to Ward. The only fact is the payment of taxes by the subsequent grantees of Ward. It would be a novel doc-' trine to hold that by the mere payment of taxes for a period of years a conveyance would be presumed. Ancient and long possession, when coupled with other circumstance's, will justify the presumption of a deed, but in this case there was no ancient or long possession. The admission in the record is to the contrary. There are therefore no facts upon which to. predicate the presumption of a deed. [Brown v. Oldham, 123 Mo. l. c. 631; Glasgow v. Mo. Car & Foundry Co., 229 Mo. l. c. 585; Dessaunier v. Murphy, 27 Mo. l. c. 51.] We make this ruling in view of certain other declarations of law given by the court in behalf of the defendant.

We shall not pass upon the sufficiency of the evidence to show, as a fact, that there ever was a deed from the-patentee John Conner to Ward. The evidence goes largely toward showing that Ward’s subsequent grantees were in possession of the patent, rather than to the fa.et that there was a deed from John Conner to Ward. Upon a new trial this matter can be duly weighed by the trier of the facts. Especially is this true where the matter of a presumption of a deed is eliminated by the fact of there being no ancient, long and continued possession. The evidence should show a deed in fact, and if defendants, upon retrial, fail to show such; then defendants’ title fails. It is useless perhaps to add, but we do add, that the facts as to whether or not there ever was (as a fact) a deed from Conner, patentee, to Ward, must be considered under the time-worn rules as to burden of proof and preponderance of the evidence. The defendants aver such a deed. Upon them is the burden of showing that fact, and as we have ruled, exclusive of any presumption of a deed. Whether their evidence will show a deed, the trier of the facts will determine, provided there is sufficient evidence to take that issue to the trier of the facts.

We need not go further. Por the error'suggested herein the judgment is reversed, and the cause remanded.

All concur.