author: GRAVES, J.

text:
    RICHARD T. FOARD v. GEORGE M. McANNELLY, Appellant.
    Division One,
    December 23, 1908.
    1. EJECTMENT: Mistake as to True Line. There is a wide - ’ difference between an agreed line, and a mistaken line which had been considered and acted upon by the adjoining owners as' the true dividing line. And where' they had a survey made and afterwards one of them built a fence on the line so run, and each held thereafter to that line, but with no agreement that it was to be accepted as the true line, neither is estopped from claiming to the true line when it is later ascertained and established. The agreement itself must be made to appear-before mere use to a mistaken line, surveyed in an attempt to-ascertain the true line, can be used to estop either adjoining-owner from later claiming to the true line; and in this case-there is no evidence that tends to establish such an agreement..
    2. -: -: Estoppel. Where there is no agreed line,. the building of a fence by defendant upon a mistaken line-ignorantly supposed by both adjoining owners to be the true-line, ^.nd the cultivation and continued use and possession of' the ground up to that line by defendant, with no misleading-of defendant to his injury by plaintiff, do not estop plaintiff' from claiming to the true line.

      3. -: Limitation: Adverse Possession. Tlie possession of the land if not adverse, liowever long, does not ripen into title; and where the defendant testified that he only claimed to the true dividing line whatever it might be, his possession, though for more than ten years, was not adverse. And where the evidence is conflicting as to whether defendant claimed to be the owner, whatever the true line might be, or claimed to own only to the true line, wherever that was, the question of limitations, though the possession was longer than ten years, should be submitted to the jury.
    Appeal from Texas Circuit Court. — Hon. L. B. Woodside, Judge.
    Affirmed.

      L. D. Grove for appellant.

      Lamar, Barton '& Lamar for respondent.
    (1) The possession of coterminous proprietors under a mistake or ignorance of the true line and without intending to claim beyond the true line will not work a disseizin in favor of either. Finch v. Ullman, •106 Mo. 255; Sehad v. Sharp, 95 Mo. 573; Crawford v. Ahrens, 103 Mo. 88; PIoux v. Batteen, 68 Mo. 84; St. Louis University v. McCune, 28 Mo. 481; Battner v. Baker, 108 Mo. 311; Schwartzer v. Gebhardt, 157 Mo. 99. (2) There was no evidence of an agreed line. Patton v. Smith, .171 Mo. 231. This is conclusively shown by the fact that Meador deeded to defendant describing his land by the survey line without referring to any agreement. Patton v. Smith, 171 Mo. 240. (3) Conforming to an erroneous line in good faith believing it to be the true line, and intending to claim only to the true line, does not estop the adjoining owner, however long the possession of the other may be, from claiming to the true line when it is ascertained. Patton v. Smith, 171 Mo. 231. (4) The defense of “innocent purchaser” is an affirmative allegation and the burden of proving it is upon defendant. Young v. Schofield, 132 Mo. 650; Holdsworth v. Shannon, 113 Mo. 525. (5) Defendant cannot complain of the court’s refusal to submit the McSpadden survey because he was benefited by it. (6) As there was no evidence of an agreed line, acquiescence or innocent purchaser, these matters were properly taken from the jury.
   GRAVES, J.

The petition is an ordinary petition in ejectment for the following strip of land in Texas county:

“Beginning at the northwest comer of section nineteen in township' thirty, range nine west, in Texas county, Missouri, thence running east on said section line thirty-seven chains to- a fence, thence running south one hundred and twenty-two links, thence running west with a fence thirty-seven chains, thence running north one hundred and twenty-two links to place of beginning; thence running north ten links to the northeast corner of section twenty-four, in township thirty, range ten, thence running west on the section line of section twenty-four, five hundred and twenty-five links, thence running south one hundred and thirty-two links to a fence, thence running east five hundred and twenty-five links with a fence, thence north one hundred and thirty-two links to the place of beginning. ’ ’

Ouster was laid as of April 2, 1905, damages claimed in the sum of five dollars, and monthly rents and profits alleged to be $1 per month. We set out the answer more fully, for in so doing it assists in the statement of facts shown upon the trial. In the answer we find first a general denial. Then follows this language:

“For a further answer says: That plaintiff ought not to have or maintain his action, but should be stopped from setting up or maintaining the same for the following reasons: that the fence running east and west, described in the plaintiff’s petition, was b-uilt more than twenty years ago by one R. B. Meador, who was then the owner of the south half of southwest quarter, section eighteen, township thirty, range nine, and the southeast quarter of the southeast quarter, section thirteen, township, thirty, range ten west, and in the possession of the same, and this plaintiff then being the owner of, and in possession of the tract of land lying directly south thereof, and who by agreement joined in the building of said fence mentioned in plaintiff’s petition, as and for a division fence between their several tracts of land, which has ever since that time been used by the said plaintiff and the said R. B. Meador up to about the seventh day of September, 1904 (as a division fence dividing this respective tract of land), at which time this defendant purchased the said land (described in petition) from the said R. B. Meador, and immediately thereafter went in the possession thereof.
“Defendant alleges that from the time of the building of the said fence at the time and in the manner, and for the purpose aforesaid, the said Meador and the said plaintiff believed and considered the said fence to be the true boundary line dividing the said tracts of land owned then by the said plaintiff and the said Meador, and immediately after the building of the said fence the said Meador commenced to clear up, cultivate and improve the said land (described in the petition) and laid out and expended a large amount of money and labor in improving the same (all the time claiming the same as his land), and has ever since that time occupied the same and remained in undisputed possession thereof until the said 7th day of September, 1904; paid all taxes assessed thereon; all done in the belief that the said fence was the true line dividing their respective tracts of land, and further says that all the improving on the said land was done with the knowledge, consent and approval of the said plaintiff, and under the full belief that the said fence marked the line of division as aforesaid.
“Defendant further alleges that about the first of June, 1904, he commenced negotiations with the said Meador for the purpose of ultimately purchasing the said land, and while the same was in the actual occupation of the said Meador as aforesaid, and which fact of such contemplated purchase by defendant of the said land was well known to this plaintiff, and well knowing the same to be claimed by the said Meador, remained quiet and permitted this defendant to purchase same, the plaintiff well knowing that defendant believed that the said fence would mark the boundary of the said tracts between plaintiff and defendant in case he should purchase same.
“Defendant alleges that afterwards and on 7th day of September, 1904, he did purchase the same, and received a deed from the said Meador for the said land owned by the said Meador as aforesaid, still believing that the said Meador was the owner of all the land of which the said fence formed the south boundary line, and paid for the said land a valuable consideration, all of which he would not have done except in the belief that he was entitled upon the said date to all the land up to the said fence.
“The premises being considered, the plaintiff should be estopped from claiming the possession of the said land or any part thereof.”

The record discloses no reply, but the case pro-' ceeded as if one of general denial of new matter had been filed.

From the foregoing answer it appears there was a doubtful or disputed boundary line between Meador and Foard. The defendant is Meador’s grantee.

There are three different surveys testified to in the evidence. One by George Paulding in 1884, one by S. S. Roark, county surveyor of Texas county, in 1901, and a third by L. C. MeSpadden, surveyor of Dent county, a year or more later. In the latter survey, Mr. Roark assisted. The Roark survey fixed the line north of the Paulding survey, and the McSpadden survey very slightly to the north of the Roark survey. It might be well to state that P'aulding seems to have been the deputy surveyor of one Brown. The fence described in the petition is on the line of the Paulding survey, and the land sued for and recovered is the strip between the fence and the Roark survey. As to how the several surveys were made is fully in evidence. By this we mean the parties describe their work fully, both as to what Government land marks were found and what were not found.

There is also a deed in evidence from Meador and wife to1 R. T. Foard, conveying a small tract of land in section nineteen, which was south of the line, whatever it may be, and in this deed made by Meador the land is described by Government numbers, with nothing to indicate an agreed boundary line. This deed was in 1899', some four years after the Paulding survey.

The evidence upon one of the disputed questions, i. e., as to whether or not there was an agreed line, can be best stated in their own language. Mr. Foard says:

“Q. You have seen and read and heard read a description of the land described in this petition, have you not? A. Yes, sir.
“Q. I will ask you who was in possession of this land when this suit was filed on April 14, 1905; who was in possession of it or had it in possession of that date? A. I had it in possession in my deeds.
“Q. Who had it under fence? A. George H. McAnnelly.
“Q. How much of that land is in cultivation if you know? A. Five or six acres.
“Q. What is the rental of it worth a year? A. Well, now, I suppose it would be worth $2 a year.
“Cross-examined by. Mr. Grove:
“Q. Did you ever have possession of it? A. I suppose I had possession of it before it was fenced. I had a deed to it.
“Q. When was it fenced? A. Well a part of it was fenced about the year 1884 or afterwards.
“Q. Who built the fence? A. Meador.
“Q. All of it? A. Yes, sir, he built all of the first fence.
‘ ‘ Q. Did not you fence a part of it, build a part of the fence between you and Meador? A. I don’t think that I built any part of the fence which is in dispute; I repaired the fence.
“Q. After Mr. Meador had built a part of the fence there did not you take it up. then and build on east? A. No, sir, Mr. Meador had a fence there.
“Q. When you bought the land? A. When I bought the land, yes, sir.
' “Q. You did not buy all of the land from him, did you? A. No, sir.
“Q. Now at the time you bought this piece of land from Meador that you speak of, there was a fence on that land fencing in some land still further south of this strip? A. Yes, sir, and a cross fence running across.
“Q. And after you bought that land you moved your fence on a line with this fence did you not? A. I think he moved it.
“Q. But anyway it was moved? A. Yes, sir. Now for you to understand me Mr. Meador cleared all of this land that was under fence long before I ever cleared any of my land to that fence.
“Q. Did you ever have a talk with Mr. Meador about the line fence? A. Mr. Meador made, several years afterwards, a proposition to me that he would divide the fence and give me choice, I could either take the east end of the road or the west side and I took the west side.
“Q. You have kept that part of the fence up since? A. Yes, sir.
“Q. That was more than five years ago, was it not? A. I could not tell you the date of it.
‘ ‘ Q. After the building of that fence in ’84 or ’85 or ’89, whichever the case might be, did or did not Mr. Meador take possession of all that land north of the fence? A. Mr. Meador built the fence over there that was in question.
“Q. Did or did not he clear up that land after ' the fence was built? A. No, sir, he cleared the land before the fence was built.
“Q. Did you know at the time he was clearing the land that he was doing so? A. Of course, I knew that he wa.s clearing it.
“Q. Has he remained in possession of the land from that time to the time that he sold Mr. Mc-Annelly, cultivating it yearly? A. Yes, sir.
‘ ‘ Q. Did you or did you not, in any way, question his right to the possession of that? A. When the true line was set up I questioned his right there and Mr. Meador told me that he did not own any land in section 19 or 24 nor he did not claim any, and the fact was that when Mr. Meador sold to Mr. Mc-Annelly I saw his deed and Mr. Meador did not deed him any land in sections 19 or 24.
“Q. But at the time that Mr. MeAnnelly bought it this fence was in the same position that it had been for thirty years? A. Certainly.
“Q. Mr. Foard, did you and Mr. Meador along in 1884 or 1885' have a survey made, by a Mr. George Paulding, deputy county surveyor of Texas county? A. Mr. Meador had a survey made by Mr. George Paulding- and he also told me that Mr. Brown had surveyed it before; I don’t know anything about it only what Mr. Meador said.
“Q. You was present at the survey made by Mr. George Paulding was you not? A. I was part of the time..
“Q. And the fence is on the line now that was pointed out by Mr. Paulding at the making of that .survey, is it not? A. Yes, sir.”

Mr. Meador tells it thus:

“Q. Where did you live from the year 1882 up till about a year ago ? A. I lived out two miles southwest of Houston in section 18, township 30, range 9.
“Q. When did you move on and take possession of the land described in this deed from Anderson to yourself? A. In 1882.
“Q. How long did you live there? A. I lived there from ’82 to December, 1904.
“Q. You was in possession of this land all this time, was you? A. Yes, sir.
“Q. I will ask you to state to the jury about what time 'you placed a fence on the south side of your farm? A. At different times; I cleared the land up at different times. The first I cleared up in the spring and crossed the line on the Anderson farm about fifteen yards, not knowing where the line was—
“The plaintiff objected to any testimony on the part of Mr. Meador as to acquiring title by limitation to that twenty acres in 18, for the reason he made a warranty deed to it and he would be estopped; which objection was by the court overruled.
“Q. Tell the jury when you built that fence, that is described in the petition here, between sections 18 and 19 ? A. I built part of it in 1883.
‘ ‘ Q. Tell the jury what you did- in reference to ascertaining the boundary line between you and Mr. Foard before you built the fence ? A. Before we built the fence there was nothing said about it. We thought I was building about on the line.
“Q. Tell the jury what you did to ascertain the line? A. By agreement with Mr. Foard we employed Mr. Paulding to run the line.
“Q. Tell the jury what you did in reference to' that matter; who first mentioned having this surveyed? A. Mr. Foard and I talked the matter over to have it made between us and he employed Mr. Paulding to come and malee the survey because he said Mr. Brown was not as good a surveyor as Mr. Paulding and I wanted Mr. Brown, the county surveyor.
“Q. Tell the jury what you did in reference to building the fence on that survey? A. After the survey was made I cleared the land up at different times; I just fenced the land that Mr. Paulding surveyed for us.
“Q. You built the fence on that line? A. Yes, sir, we told him to establish these corners when he came to run the line.
“Q. State to the jury whether or not the fence that is described in this petition is the fence that you then built and whether or not it is on that survey? A. Yes, sir.
“Q. I will ask you to tell the jury whether or not Mr. Foard was present when that survey was made? A. Yes, sir.
“Q. Tell the jury whether or not you took possession of the land north of that fence and when you took possession of it? A. Well I took possession of it from the time that Mr. Paulding made the survey.
“Q. How long did you hold possession of it? A. Why, from the time he made the survey up until this last December.
“Q. What did you do with the possession then? A. I sold it to Mr. McAnnelly.
“Q. State whether or not Mr. Foard ever objected to that survey? A. I never heard a word until two years ago when Mr. Roark came in there and changed the line.
“Q. Tell the jury if you was cultivating and improving that strip of land on that side of the fence? A. Yes, sir.
“Q. When? A. The first in 1882.
“Q. When was the last part? A. It has been about ten or twelve years ago the last was fenced.
“Q. .Now you state you built the first fence, I will ask you to state to the jury whether or not Mr. Foard ever extended that fence in any direction? A. Mr. Foard and I swapped pieces of land on it, a forty acres north of the line in dispute and I had one forty acres south of the line and I traded him twenty acres of that forty for the one of the north with the understanding we was to trade to these corners established there and we thought these were the proper lines.
“Q. What was said between you and Mr. Foard in regard to that matter ? A. There was nothing said, only we just traded.
“Q. What was said about it? A. I could not say what was said only the trade was made you know and we traded a certain piece of land for a certain piece of land.
“Q. Tell the jury whether or not there was a fence that had been built on the land that you traded Mr. Foard and if so where that fence was? A. The fence had been built on the land that I traded to Mr. Foard, there was two fences, there was a cross fence and an outside fence.
“Q. I am speaking of the fence that runs parallel with this fence. A. It was south of the line.
“Q. Where was that fence? A. It was on the twenty acres that I traded to Mr. Foard, nearer to Mr. Foard than it was to my house.
“Q. What did Mr. Foard do with the fence after he purchased it? A. He moved the fence back on the line that Mr. Paulding made and he extended the fence on east.
“Q. On the same line that Mr. Paulding had established? A. Yes, sir.
“Q. State whether or not that was an extension of the fence that you built on east on a straight line. A. Yes, sir.
“Q. When did Mr. Foard build that extension? A. I don’t know that I can call the years when I swapped back with him. It was either that year or the next year, I don’t know whether I had the place in cultivation or not, the twenty acres, it was sometime within a year after I had made the trade when the fence was moved.
“Q. State to the jury whether or not you have always claimed title to this land up to this fence.
“The plaintiff objected to this question; which objection was by the court overruled.
“A. Yes, sir.
“Q. From what time did you commence claiming it? A. From 1882; that was the time we moved over, and we did not know whether the line was exactly, but we claimed down to where the line was.
“Q. Tell the jury what act or acts Mr. Foard did in recognizing that fence as being the true boundary line between your land and his.
“The plaintiff objected to this question, which objection was by the court overruled.
“A. I never heard any objection from Mr. Foard about it being the true boundary line.
“ Q. I will ask you to state to the jury who has kept up that fence?
“The plaintiff objected to this question for the reason it would have no tendency to prove or disprove the line, which objection was by the court overruled.
“A. Me and Mr. Foard was coming up the road one day and we was talking about the fence and he said I will give you the choice side of this road to keep the fence up; I could have the east side and he would take the west side and he agreed that he would rather take the west side and I took the east side and we have kept it up ever since.
“Q. When was that arrangement made? A. Fifteen years ago or more.
• “Q. Now, I will ask you, you spoke of a road, what road is that? A. That is the Mountain Grove and Houston road.
“Q. It runs through these premises? A. Yes, sir.
“Q. State to the jury whether or not the two fences on the east side and on the west side of the road were on a line with each other? A. Yes, sir, they were on a line parallel east and west.
' “Q. I will ask you whether or not Mr. Foard has built any new fences on that same line? A. Yes, sir.
“Q. When did he build them? A. Why, it has been four or five years ago.
“Q. That was before the Roark survey was it? A. Yes, sir.
“Q. Was that fence on a line with the fence you originally built? A. Yes, sir; the old fence was moved away and a new fence was put there.
“Cross-examination by Mr. Lamar:
“Q. You spoke of claiming to the fence, you simply claimed to the fence because you thought the fence was on the line? A. Yes, sir.
“Q. You did not at any time claim to own any land in 24, did you? A. Not at the present time, but before that time I had owned land in 191, but I didn’t never, own any land in 24.
“Q. You did not consider that you was selling any land in 24 to Mr. McAnnelly? A. No, sir.
“Q. You only claimed to the fence because you thought the fence was on the line? A. Yes, sir.
“Q. Now as a matter of fact was not there some doubt as to where the real line was? A. No, sir; I never heard any doubt until Mr. Roark came up there.
“ Q. You spoke, a while ago, about you and Judge Foard having an agreement ago about keeping np this fence? A. Yes, sir.
‘‘Q. There is a part of the fence east of the lane and a part of the fence west of the lane? A. Yes, sir.
“Q. And the agreement between you and Foard was that he was to take the fence west of the lane and you was to take the fence east of the lane and keep the fence up? A. Yes, sir.
“Q. At the time there was no talk about the fence being on the line? A. No, sir; we supposed it was on the line.
“Q. Was there anything said by you and him at the time the deed was made further than you sold the land in this description? A. We traded to the corners.
“Q. Did you go and look at the corners or say anything about the corners? A. The thing had been talked over about where the corners were.
“Q. At the time you sold to him you just sold him what land you had in 19? A. We just swapped.
‘ ‘ Q. And he deeded you what land he had in 18 ? A. Yes, sir.”

The evidence in addition shows that from time to time Meador fenced the land he used to the north of the fence and was so using it when he sold to the defendant. The defendant was not a witness at the trial and as to whether he was advised as to the controversy arising after Roark’s survey does not appear. Upon these facts, the court instructed as we take it, upon its own motion, as follows:

“The plaintiff in this case sues the defendant for a strip, of land 122 links wide and along the north side of section 19, township 30, range 9, and section 24, township. 30> range 10.
“2. The deeds produced in evidence are sufficient to convey the title to plaintiff to all the lands in said sections 19 and 24 that is described in the petition, and if you. find from the evidence that the defendant was at -the time this suit was commenced in possession of any part of the lands in said section 19' and 24 described in the petition, you will find the issues for the plaintiff, unless you further find that the defendant and those under whom he claims has acquired title thereto by limitation.
“3. If you find from the evidence that the land on the north side of said sections 19 and 24 have been surveyed at different times and that such surveys do not agree, then it is the province of the jury to determine from the evidence as to which of said surveys is correct.
“4. Although you may find from the evidence that the survey made by Roark is correct, still if you further find from the evidence that prior to said survey the said line was surveyed by one Paulding and the line in question wás located and designated by said Paulding and if the witness Meador was at said time owner of the said land at said time, north of said line, and after such survey took possession of the said land to the line designated by Paulding, and claimed to own the land up to such line designated by Paulding, and if under such claim of title he held the open, notorious and adverse possession of the said land for a period of ten years prior to the 14th day of April, 1905, then you will find the issues for the defendant; and in such case if the defendant bought Meador’s land believing that the same extended to the said line, so marked or designated by Paulding, and was put by Meador in possession thereof, and has since the purchase held the adverse, open and notorious possession of the same, claiming title thereto, then the period of his possession prior to April 14, 1905, may be considered and included with that of Meador in estimating such period of ten years’ possession prior to April 14, 1905.”

Verdict and judgment for plaintiff and defendant appeals.

I. That plaintiff and defendant occupied their respective lands after the Paulding survey upon the supposition that it was the true line, is quite apparent from the testimony of both parties. That the fence was constructed by Meador on this supposed true line is practically undisputed. That some years later plaintiff and Meador divided their fence for purposes of repair is agreed. But inasmuch as a peremptory instruction upon all the evidence was asked by defendant and refused by the court, we are forced to say whether or not this evidence so far indicates an agreed line, i. e., a line agreed "upon by the parties, rather than the supposed rig’ht line, as to authorize such an instruction. And we are forced to pass upon the probative force of this evidence, by still another instruction asked by defendant and refused by the court.' By instruction numbered 3 the defendant sought to have the court submit the question to the jury in this language:

“The court instructs the jury that if you find and believe from the evidence, that plaintiff and R. B. Meador agreed that the line dividing their respective premises should be located by one George Paulding, a surveyor, and that in pursuance of such agreement the said Paulding located the line where the fence described in plaintiff’s petition was built and now stands, and that plaintiff and Meador accepted such survey as the dividing line between their respective premises, then it became the true line and you should find the issues for the defendant, although you may believe that said survey was not on the section line or Government survey. ’ ’

By its refusal to give this instruction, the court in effect said that there was not sufficient evidence to-submit the case to the jury as to whether there was an agreed line, ratter than a mistaken supposed line. As we take it there is a vast difference between an agreement as to what stall be tte division line, and a mere supposed division, line wtict has been acted upon by tte parties, with no intention of claiming further than tte true line. Tte authorities, upon tte two classes of cases are reviewed and discussed by Brace, J., in Schad v. Sharp, 95 Mo. 573. If tte evidence in this case shows or even tends to stow that tte fence line was agreed upon by plaintiff and Meador as tte true line, then to say tte least, tte court erred in refusing instruction number three as asked for by defendant. In tte case just cited, quoting from another case, it is said:

“ ‘It is tte well-settled law in this State that when two adjoining proprietors are divided by a fence wtict they suppose to he tte true line, each claiming only to the true line, they are not bound by tte supposed line, tut must conform to the true line when ascertained.’ [Jacobs v. Moseley, 91 Mo. 457; Tamm v. Kellogg, 49 Mo. 118; Thomas v. Babb, 45 Mo. 384.] Their possession under mistake or ignorance of tte true line dividing their premises, and without intending to claim beyond tte true line when discovered, will not work a disseisin in favor of either party. [Houx v. Batteen, 68 Mo. 84; St. Louis University v. McCune, 28 Mo. 481.]”

And on tte otter line of cases, tte same case likewise quotes and comments as follows:

“Tte true principle to he deduced from Taylor v. Zepp, 14 Mo. 482; Blair v. Smith, 16 Mo. 273, and Turner v. Baker, 64 Mo. 218, to wtict we are cited as an authority for these instructions, is thus stated in Jacobs v. Moseley, supra: ‘Where there is a dispute as to tte true division line between adjoining proprietors, or tte line is uncertain, and they are both ignorant as to its true location, and they fix and agree upon a permanent boundary line and take possession accordingly, the agreement is binding on them and those claiming under them.’ In this case both plaintiff and defendant were ignorant of the true line. The only information they had on that subject was that derived from Parks, who told them ‘that the fence was on the line or near to it,’ and there is not a scintilla of evidence of any agreement between, them that the German line should be the boundary line between them, regardless of the actual location of the true line. . . We think there was no error in refusing these instructions. In actions at law the Supreme Court will not pass upon the weight of the evidence. [Webb v. Webb, 87 Mo. 541.]”

We must, therefore, determine from this testimony whether or not there was an agreement between these parties as to a division line. Does the testimony of Foard and Meador so show? If it tends to so show, the instruction numbered 3 should have been given and the question submitted to the jury for its determination of a disputed fact. Under the law mere possession is not sufficient to show the agreement. The agreement itself must be made to appear. There is a dispute in this evidence as to who had Paulding make this survey. Plaintiff says Meador procured the survey to be made and he was present a part of the time, and Meador says that plaintiff insisted upon Paulding, the deputy surveyor, making it, because he was a better surveyor than his principal, the county surveyor. But does this testimony go further than to show that the parties were trying to ascertain the true line, rather than make an agreement as to what should be taken as a true line in case of a disputed line? We think not. Then corroborative of this idea, Mr. Meador on cross-examination says that he only claimed to the fence on the theory that the fence as built by him was on the true line. The only actual agreement he testifies to is one made some years later as to which portion of the fence should be kept in repair by the respective parties. This agreement is not inconsistent with the idea that the parties were acting upon a supposed true line, rather than upon an agreed true line. We have set this evidence out in full for the reason that the action of the court in refusing this instruction is a close one, but we are not of the opinion that the evidence is such as to have authorized the trial court to submit the question to the jury. There is no evidence that the parties specifically agreed beforehand that Paulding should make the survey, and when it was so made, it should be considered as the true line between the parties. Without such explicit testimony we think the action of the trial court right, both in refusing the demurrer and the said instruction numbered three, supra.

II. If there was no agreement between plaintiff and Meador as to what should be considered the true line, as we have just found that there was not, then can the plea of estoppel as set out in the answer prove availing? This question was not submitted by the trial court in the instructions given. This question is squarely presented by defendant in instruction numbered 4, which was asked but refused. The instruction reads:

“The court instructs the jury that if you find from the evidence that the fence described in plaintiff’s petition was built by plaintiff and R. B. Meador in 1884 and was by him and the said Meador regarded and treated at the time of the building thereof as and was built for a fence dividing land owned by them, and that said Meador believed said fence to mark the southern boundary of his land, and so believing took possession of the land described in the petition, cleared up at his expense the same, expended money and labor thereon in improving the same, believing at the time he expended such money and labor that the fence was the true boundary line and that the land was a part of Ms land, and that he would not have made such improvements if he had believed the land was not his own, and that the defendant at the time of his purchase from Meador believed that the fence was the true boundary line forming the southern boundary thereof, then the plaintiff is estopped from maintaining this action, and you will find for the defendant.”

It may also be raised by the instruction in the nature of a demurrer to the testimony, but as it is squarely raised in the instruction quoted it is not necessary to discuss the other point. This again forces us to the evidence. Plaintiff says that Meador first cleared the land, and then built the fence. The evidence of Meador does not materially alter the situation. Among other things, he says: .

“Q. Tell the jury what you did in reference to building the fence on that survey. A. After the survey was made, I cleared, the land up at different times, I just fenced the land that Mr. Paulding surveyed for us.
“Q1. You built the fence on that line1? A. Yes, sir, we told Mm to establish these corners when he came to run the land.
“Q. State to the jury whether or not the fence that is described in this petition is the fence that you then built and whether or not it is on that survey. A. Yes, sir.”

It must be borne in mind that we are dealing now with the question of estoppel, and that too in the absence of an agreed line. If the evidence had disclosed a division line agreed upon by the parties, and in addition the doing of some act, by one of the parties, in pursuance of such agreement and understanding, which act was induced by the conduct as expressed in the agreement, and which act was detrimental to the party, then we can see elements of estoppel in pais. But on the other hand, if the building of the' fence, the plowing and cultivation of the ground, and the continuous use and possession thereof, which are the acts involved here, were superinduced by the mistaken view, entertained by both parties, that the supposed line was the true line, and we repeat without it being an agreed line, then, under our holdings, we see no elements of estoppel in pais. In such case there is no willful misleading of one party by the other to his detriment. If the plaintiff had, as a matter of fact, .known the true line, and by either acts or words so conducted himself as to have misled Meador, to his detriment, then a different question would be here.

In 16 Oyc. 733-4, the rule is stated thus: “No estoppel arises where the representation or conduct of the party sought to be estopped is due to ignorance founded upon an innocent mistake. So the acts or declarations of a party based upon an innocent mistake as to his legal rights will not estop him to assert the same. Ignorance or mistake if it arises from culpable negligence will not prevent an estoppel.” Further at page 741 of the same volume, we find this wholesome rule: ‘ ‘ There can' be no equitable estoppel short of one arising from actual contract, where the truth is known to both parties or where they both have equal means of knowledge.”

In addition it is elementary that representations and acts upon which estoppel is predicated must be prior to the acts alleged to be detrimental to' the interest of the other party. AVith these general rules in view, and if we hold, as we have in the first paragraph hereof, that there was no contract or agreement as to a division line, then we can see nothing in this plea of defendant under the evidence. Meador knew as much about the true line as did plaintiff, and in this ease, Meador’s shoes are defendant’s shoes. Eliminating the question of an agreed or contract division line, no acts of plaintiff were sufficient in law to justify the plea of estoppel in pais. This point will therefore be ruled against defendant.

III. The court instructed upon the question of adverse possession. Upon this question there is some evidence -from parties other than Meador, that he, Meador, always claimed the land to the fence. That he used and cultivated it for the statutory period of limitation cannot he questioned, hut in his testimony he does not go quite so far as some other witnesses. He says, upon cross-examination:

“Q. You spoke of claiming to the fence, you simply claimed to the fence because you thought the fence was on the line? A. Yes, sir.
“Q. You did not, at any time, claim to own any ■ land in 24, did you? A. Not at the present time, but before that time I had owned land in 191, but I never did own any land in 24.
“Q. You did not consider that you was selling any land in 24 to Mr. McAnnelly? A. No> sir.
“Q. You only claimed to the fence because you supposed that the fence was on the line? A. Yes, sir.
“Q. Now, as a matter of fact, was not there some doubt as to where the real line was? A. No, sir, I never heard any doubt until Mr. Roark came up- there.
“Q. You spoke a while ago about you and Judge Foard having an agreement many years ago about keeping up this fence. A. Yes, sir.
“Q. There is a part of the fence east of the lane and a part of the fence west of the lane? A. Yes, sir.
“Q. And the agreement between you and Foard was that he was to take the fence west of the lane and you was to take the fence east of the lane and keep the fence up? A. Yes, sir.
“Q. At that time there was no talk about the fence being on the line? A. No, sir, we supposed it was on the line.”

To our mind the question of adverse possession,under all the evidence, should have been submitted to the jury for their determination. Meador goes no further than to say that he and plaintiff supposed the fence was on the true line, and that he did not think of selling land in section 24 to defendant unless the fence was the true line. In a ease calling for a discussion of this kind of a question, Battner v. Baker, 108 Mo. l. c. 314, Black, J., said: “The question on these agreed facts and the evidence is whether the defendant has acquired the land sued for under- the Statute of Limitations. That defendant has been in actual possession of the strip of land for more than the statutory period of time, is conceded. The question, therefore, is whether his possession has been adverse to the true owners. Where adjoining landowners are divided by a fence, which they suppose is the true’ line, each claiming only to the true line, wherever that may be, they are not bound.by the supposed line, and must conform to the true line when it is ascertained. [Jacobs v. Moseley, 91 Mo. 457; Schad v. Sharp, 95 Mo. 574; Krider v. Milner, 99 Mo. 145; Skinker v. Haagsma, 99 Mo. 209.] ‘Their possession under mistake or ignorance of the true line dividing their premises and without intending to claim beyond the true line when discovered, will not work a disseizin in favor of either party.’ [Schad v. Sharp, supra.] But where one takes and holds possession up to a fence, and claims to be the owner up to it, his possession will be adverse, and this, too, though he may believe the fence to be on the true line, when, in point of fact, it is not on the true line. [Cole v. Parker, 70 Mo. 379; Handlan v. McManus, 100 Mo. 125.] The distinction between these rules lies in the fact whether the party claimed only to the true line wherever that might be, or to the fence.”

In the case at bar the testimony of Meador only tended to prove that he claimed to the true line wherever that might be, and this is borne out by the testimony of the plaintiff.

In other words under this testimony there is absent an agreed division line, and there are present no such facts which would authorize a court, as a matter of law, to say that there was adverse possession for the statutory period. It then becomes a question for the jury, which we think has been properly submitted in the instructions given.

These questions cover all the points of sufficient merit for a discussion in this opinion.

From the conclusions reached, it follows that the case should be and is affirmed.

All concur.


source: Caselaw Access Project

author: VALLIANT, P. J.

license: Public Domain

text:
    GEORGE W. CRAWFORD, Appellant, v. KANSAS CITY STOCK YARDS COMPANY.
    Division One,
    December 23, 1908.
    1. NEW TRIAL: Grounds Assigned: Other Grounds: Burden on Respondent. Although, the grounds assigned by the trial court for sustaining defendant’s motion for a new trial did not justify the order, yet if the record shows there was error committed in the course of the trial, not so specified, that did justify it, the action of the court in granting a new trial will be upheld on appeal. But the burden is on respondent to discover and point out such other error.
    2. -: -: No Evidence: Insufficient Evidence: Contradictory. An assignment for a new trial that there was no evidence to sustain the verdict and defendant’s demurrer to the evidence should have been sustained, and another assignment that there was some evidence but it was not sufficient and was outweighed by other evidence to the contrary, are contradictory.
    3. -: -: -: -: Consideration on Appeal. Where there is some evidence to support the verdict, but the trial judge is satisfied that it is so suspicious in its character or so trivial in its weight that justice would cry out against a judgment founded upon it, he should set the verdict aside and„ let another jury pass upon it, and if in doing so he says the weight of the evidence was not sufficient to sustain the verdict, the appellate court will' not review his action in granting a new trial on that ground, but will sustain his order. But if, in the opinion of the trial judge there was no evidence at all, there was nothing for him to weigh, and if he assigns that as a ground for granting a new trial his ruling on that point will be reviewed on appeal. And where the trial judge says as his grounds for granting the new trial that there was no evidence and that the evidence was insufficient, the appellate court will consider the case as if only the one ground, that there was no evidence, was meant.
    4. NEGLIGENCE: Stockyards: Open Gate. A stockyards company which has constructed a platform with cross gates, for guiding cattle as they are unloaded from the cars into pens,, is not liable to an attendant of the cattle who while riding on the car is struck by an open gate, for any negligence committed by the railroad company in the management of the train. If liable to him at all, it is for having the gate open while the train was passing.
    5. -: -: -: Custom. It is dangerous, unnecessary and unusual to leave a gate open while the train is running, the gates forming the chute for the cattle from the car in which they are being shipped to the pens. But the stockyards company is not liable to an attendant of the cattle riding on one of the cars in the performance of his duties who is struck by the open gate, unless the company had cause to anticipate that someone was liable to be doing what the attendant was doing at the time he came in contact with the open gate. But if it was the custom for men on the company’s premises doing business with it and using the appliances furnished by it, for the purposes of that business, to do what the attendant was doing at the time of the accident, the company is presumed to know that custom and cannot avoid liability by denying such knowledge.
    6. -: -: -: -: Inference: Anticipating Danger. Although plaintiff, a stock attendant, was injured while attempting to leave a moving car in which were cattle he cared for, by coming in contact with the stockyard company’s ’gate which was open and extended across the platform to within a few inches of the moving car, and although none of the witnesses testified that he ever saw a stock attendant climbing down the car ladder in the stockyards, yet if there was undisputed evidence that stock attendants were frequently seen upon and in the cars while in the yards, and moving about from car to car caring for the cattle, and that the cattle required the attendant’s attention, it became the attendant’s duty to care for them and if necessary to enter the car by the use of the appliances provided for entrance, and it became the stockyard company’s duty to anticipate that, having attended to the cattle in one car, the attendant would in going to another car use the ladder and handhook and other usual appliances for exit, and to anticipate that if he did so he would come in contact with the open gate.
    7. -: Pleading and Proof: Material Variance: Location of Ladder. The variance between the pleading and proof must be material in order to work a reversal. Where the negligence charged was that defendant stockyards company was negligent in leaving open the gates to its pens while the train was yet moving, and the petition alleges that the cattle attendant “was in the act of coming down on the side of the car at the bottom of the ladder thereof” when he struck the gate, and his proof shows the ladder was at the end of the car, but also shows that he had come down the ladder, his right hand and right foot still on the ladder, that his left hand extended around to the hook on the side of the car and his left foot extended around to and rested on the sill of the car, there is no material variance between the pleading and proof.
    8. ’ ———: Stockyards: Stock Attendant: Contributory Negligence: Not Seeing Open Gate. If the stock attendant, before entering the moving cars to attend to the cattle, saw that the gates to the stock pens were open and that they extended up close to the railroad track, he was guilty of negligence if he did not take care to avoid coming in contact with a gate as he left the car. But he was not negligent if he did not look to see if they were open. As a general rule a man is not required to look for danger when he has no cause to anticipate danger or when danger does not exist except it be caused by the negligence of another; and, unless there are exceptional circumstances for anticipating danger and therefore for looking, the general rule applies; and where the gates were not usually open while the cars were moving and there was no positive evidence that they were open when he had opportunity to look, the circumstances were not exceptional, and he cannot be charged with contributory negligence for not looking.
    9. -: -: -- — : Contract Between Shipper and Railroad Company. Where the stock attendant sues a stockyards' company for negligence in opening the gates which formed a chute across the platform for the cattle to the stock pens, while thp train was still moving, and as a result thereof he came in contact with the gate as he was leaving a car to get on the platform, a contract between the attendant’s employer, the shipper of the stock, and the railroad company, to the effect that the attendant was to ride in the caboose and not on any freight car while the train was in motion or switching, and if he did so he was to assume the risk, is of no importance as a defense to the stockyards company, and is entirely out of place in the case, for three reasons: first, defendant was not a party to the contract and had no interest in it; second, the evidence showed that, in spite of that clause in the contract. which was the usual one, it was, with the knowledge and consent of conductors of trains, habitually disregarded and necessarily so because cattle often needed attention while the train was in motion; and, third, the caboose had been left at the last station by the railroad management, and the attendant was required to take passage on the cattle car or a street car, in order to care for the cattle as they came into the stockyards.
    10. -: -: -: Customary Duties. It was not error to permit plaintiff, a stock attendant, to introduce evidence tending to prove the custom of those attending the cattle to go over the trains and into the cars to look after the cattle while the train was in motion. It is always a question whether a plaintiff who charges his injuries to defendant’s negligence was at the time of the accident doing what was in the line of his well-known duty and doing it in the ordinary way.
    11. -: -: -: -: In Disregard of Shipping Contract. And where defendant seeks, by introducing a shipping contract between the attendant’s employer and the railroad company, to show that the attendant had no right to go into the car while the train was in motion, plaintiff may prove the custom of said attendants to go over and into the cars while the train was in motion with the knowledge and consent of the conductors. Otherwise, such evidence would not be competent for the purpose of proving a custom of disregarding the contract. But the contract itself was incompetent, and should have been excluded. But having been admitted no error was committed in permitting plaintiff to show that it had been habitually disregarded with the knowledge and consent of the conductors, who, in the management of their trains while on the road, are pro Jiac vice the corporation.
    12. -: Instruction: Leaving Gate Open: By Whom: Proof. The instruction is not erroneous in assuming that the defendant’s gate which was the cause of plaintiff’s injuries was left open by defendant’s employees, where there is no evidence that they left it open. If the gate was open, and in defendant’s keeping, it did not devolve upon plaintiff to show who opened it.
    13. -: -: -: In Immediate Peril. If in the usual course of the business of receiving and unloading cattle from cars the defendant stockyards company had reason to know that stockmen were liable to he climbing in and out of cattle cars moving along the side of the platform provided for their exit, and liable to be knocked off by an open gate, then it had no right to place its gates in a position where they were liable to strike a stockman so acting, even though there was no man in immediate sight in such peril. Defendant’s duty to keep the gates closed did not begin only when such stockman was seen to be in danger.

      14. -: Stockyards: Open Gates. It is the duty of a stockyards company to keep closed the gates by which a chute is made from the pens to the cars, while the cattle trains are moving in front of them, where stock attendants customarily move about over or go into the cars to care for the cattle while the cars are moving.
    15. -: -: -: License: Wilful Injury. It is not the law that if plaintiff went upon defendant’s premises in the performance of his duty without any special invitation from defendant, he was a mere licensee and defendant owed him no duty except not to willfully injure him. Having opened its place of business for the purchase of cattle in charge of plaintiff, defendant owed him the duty of exercising ordinary care to place its premises in a reasonably safe condition, and its liability is not limited to wilful injury.
    Appeal from Jackson Circuit Court. — Hon. Jas. H. Stover, Judge.
    Reversed and remanded (with directions).

      Botsford, Deaiherage é Yoimg for appellant.
    (1) The verdict of the jury is conclusive that there was no contributory negligence on the part of plaintiff. That finding is abundantly supported by the evidence. Railroad v. White, 67 F'ed. 481; Young v. Waters-Pierce Oil Co., 185 Mo. 666; Railroad v. Gee, 92 Fed. 318; Murphey v. Railroad, 115 Mo. 125; Railroad v. Nichols, 85 Fed. 945; Carpenter v. Railroad, 56 Fed. 451; Railroad v. Allen, 88 Pac. 966; Whipple v. Railroad, .35 Atl. 305. The uncontradicted evidence shows that the gates used by the stockyards company were usually kept closed when cars were passing, and that they were only opened, properly, when the cars had stopped in front of the pens, and when the opening of the gates and putting them up close to the cars were necessary in order to make a chute for the passage of the cattle from the car to the pens. The testimony shows that plaintiff was in the line of his duty in going into the car as he did and getting the cattle up, and coming out as he did, and being on the ladder at the time he was hurt. The fact that plaintiff and other stockmen in coming into Kansas City as he did usually rode on a street car from Argentine into the stockyards, does not have any influence upon the legal question in this case. The undisputed evidence is that the Santa Fe Company left the cabooses of these stock trains at Argentine. (2) The uncontradicted proof shows that plaintiff was injured by defendant’s gate, in charge of defendant’s employees, extending out at and before the time plaintiff was injured in such dangerous proximity to the car on which plaintiff was engaged with his cattle, as to inflict injury upon him while in the necessary and proper discharge of his duty to his employer. This proof made out a prima-facie case of negligence on the part of defendant. The gate in question which injured plaintiff was owned by defendant and was under the management and control of its servants. The rule is a well-settled one that negligence may be infered when the thing causing the accident is under the management of the defendant or its servants, and the accident is such that in the ordinary course of matters it does not happen if those having the management use proper care. Hill v. Scott, 38; Mo. App. 374; Dougherty v. Railroad, 91 Mo. App, 484; Bevis v. Railroad, 26 Mo. App. 23; Minster v. Railroad, 53 Mo. App. 282; Dougherty v. Railroad, 81 Mo. 325; Cannon v. Laclede Gas Light Co., 145 Mo. 507; Rintoul v. Railroad, 17 Fed. 905; Trans. Co. v. Downer, 11 Wall. 129; Malloy v. Railroad, 173 Mo. 80. The authorities in support of the proposition in this ease that it was the duty of defendant to plaintiff to keep defendant’s tracks and adjacent platform owned and used by defendant for its profit free from such obstructions as would be liable to strike plaintiff while on a ladder as he was, in the proper discharge of his duty, are very numerous. Young v. Waters-Pieree Oil Co., 185 Mo. 634; Railroad v. Burton, 97 Ala. 240 ; Wilson v. Railroad, 7 Colo. 101; Ellison v. Railroad, 87 Ga. 692; Killian v. Railroad, 79 Ga. 234; Railroad v. PMnazee, 93 Ga. 488; Railroad v. Thompson, 101 Ga. 27; Railroad v. Frelka, 110 111. 498; Railroad v. Hopkins, 200 111. 122; Gates v. Railroad, 2 S. D. 422; McMarshal v. Railroad, 80 Iowa 757; Railroad v. Earle, 94 Ky. 368; Martin v. Railroad, 95 Ky. 612; Railroad v. Barnhart, 115 Ind. 400; Wolcott v. Railroad, 45 Minn. 368; Martin v. Iron Works, 31 Minn. 407;.Nugent v. Railroad, 80 Maine 62.

      Pratt, Dana é Black for respondent.
    (1) (a) If defendant’s motion for a new trial was properly sustained for any reason, whether that given hy the trial court or any other which can be deduced from the record and which was set forth in the motion, then the order sustaining it must be affirmed here. Baughman v. Water Works, 58. Mo. App. 580;'Hewitt v. Steele, 118 Mo. 473; Bank v. Wood, 124 Mo. 72; Stanard Co. v. Railroad, 122 Mo. 258; Kreis v. Railroad, 131 Mo. 540; Hoepper v. Hotel Co., 142 Mo. 378; Metropolitan Co. v. Webster, 193 Mo. 363; Stoner v. Royar, 200 Mo. 451. (b) This is SO' even when the trial court assigns wrong grounds for sustaining the motion. Thiele v. Railroad, 140 Mo. 335; Bank v. Armstrong, 92 Mo. 282; Ittner v. Hughes, 133 Mo. 679. (c) And the burden rests on appellant of showing that the trial court erred in granting a new trial; prima-facie that court exercised its discretion properly. Bank v. Armstrong, 92 Mo. 278; Hewitt v. Steele, 118' Mo. 473; Folding Bed Co. v. Railroad, 148 Mo. 478. (2) Even if the trial court erred in the first and second reasons assigned for granting a new trial, this court will not interfere with its. action on the third ground, viz.: that the verdict was not supported by the evidence. Reid v. Ins. Co., 58 Mo. 430'; Bank v. Armstrong, 92 Mo. 279; Lawson v. Mills, 130' Mo. 171. (3) But the court below did not err in assigning as reasons for granting a new trial (1) that it should have sustained defendant’s demurrer at the close of plaintiff’s ease, and (2) that it should have sustained defendant’s demurrer at the close of the whole case; those reasons are abundantly supported by the record, (a) Because the allegations of the petition were not sustained by the testimony; nor did that testimony show that any negligence of defendant was the proximate cause of plaintiff’s injuries. Chitty v._Railroad, 148 Mo. 74; Hesselbach v. St. Louis, 179 Mo. 524; Roddy v. Railroad, 104 Mo. 234; Winterbottom v. Wright, 10 Mees. & W. 109; Collins v. Seldon, L. R. 3 O. P. 495; Moore v. Railroad, 84 Mo. 486; Straub v. Soderer, 53 Mo. 42. (b) Because, further, plaintiff’s own testimony plainly showed that his injuries were contributed to if not wholly caused by his own carelessness and disregard of his personal safety. Kelley v. Lawrence, 195 Mo. 87; Hurst v. Railroad, 163 Mo. 309; Hulit v. Railroad, 67 Mo. 239; Towner v. Railroad, 52 Mo. App. 648. (4) The record shows reasons (all set forth in defendant’s motion for new trial) other than those assigned by the trial court for sustaining that motion, which were sufficient to have warranted the court’s action, and for such reasons that action should be sustained under the authorities cited supra, (a) The trial court erred in admitting irrelevant and incompetent testimony, (b) Instruction 1 given at plaintiff’s request was erroneous, (c) Instructions 5 and 6 given at plaintiff’s request were erroneous, (d) The trial court erred in refusing defendant’s instructions 3,10,11,13 and 14. (e) The verdict was against the law as declared by the court to the jury.
   VALLIANT, P. J.

This is an appeal from an order of the trial court sustaining a motion for a new trial. There was. a verdict for the plaintiff for $5,000 damages for personal injuries which plaintiff alleged were suffered by him on account of the negligence of the defendant. The grounds for sustaining the motion, as specified in the order, were two, first, the refusal of the court to give a peremptory instruction asked by the defendant at the close of the plaintiff’s evidence and again at the close of all the evidence to the effect that the plaintiff was not entitled to recover; second, that the verdict was not supported by the evidence.

I. The first point made by respondent is that although grounds specified in an order sustaining a motion for a new trial may not justify the order, yet if the record in the case shows that there was error committed in the course of the trial, not so specified, that did justify it, the action of the court will be sustained.

That is a correct proposition, but in such case the burden is on the respondent to discover and point out to1 the appellate court such other error. [Millar v. Madison Car Co., 130 Mo. 517.] In apparent recognition of that obligation respondent has pointed out certain other rulings which he thinks justifies the order. Those rulings we will discuss later in the course of this opinion, but at this stage of the case we will consider the two grounds assigned as they relate to each other, to-wit: th'at the demurrer to the evidence should have been sustained, and that the verdict.is not supported by the evidence. Those two grounds, if the second one means what respondent thinks it does, are contradictory of each other; the first signifies that there was no evidence at all tending- to sustain the plaintiff’s cause of action, the second as interpreted by respondent signifies that there was such evidence but that it was not sufficient or was outweighed by other evidence to the contrary. This court has often said that the granting of a new trial on the ground that the greater weight of the evidence was against the verdict was a matter peculiarly within the province of the trial court and in a case fairly falling within that province the discretion of the trial court would not be reviewed. That is to say, we will not weigh the evidence pro and con to find on which side is the greater weight, because the trial court has done that and on that point we will defer to its judgment. And even if there is some testimony tending to sustain the plaintiff’s case and therefore the trial judge should feel constrained to submit it to the jury and there be no evidence to the contrary, still, if the trial judge should be satisfied that the evidence is so suspicious in its character or so trivial in its weight that justice would cry out against a judgment founded on it, he would set the verdict aside and let another jury pass on the case. In such case the trial judge, in sustaining the motion for a new trial, would not say there was no evidence but would say the evidence was not sufficient to satisfy his conscience that a righteous judgment could be based on it. And in such case also if in the order granting a new trial, the trial court should say that the weight of the evidence was not sufficient to sustain the verdict, the appellate court would defer to the judgment of the trial court; but if that court should say that there was no- evidence tending to prove the plaintiff’s case the appellate court would review that judgment. The theory on which deference is paid to the judgment of the trial judge on the weight of the evidence is that he had a better opportunity than any one else to weigh the evidence and that he did weigh it. But if, in the opinion of the trial judge, there was no evidence at all, there was nothing for him to weigh and therefore he weighed nothing. How then can a court in one breath say there was no evidence at all and in the next breath say it weighed the evidence and found it lacking in credibility or ponderance 1 When we reflect on the difference, as viewed from the standpoint of the appellate court, between saying on the one hand there was no evidence and on the other that the evidence was not sufficient in weight or credibility, we see how unjust it would be to a party, a verdict in whose favor had been set aside, if the ruling of the trial court had really been based on its opinion that there was no evidence yet the ruling be sustained by the appellate court on the ground that it was based on evidence which the trial court reviewed and found deficient in weight or credibility. In that case, by a mere form of words the appellant would be deprived of his right to have the appellate court pass on the question of whether or not there was any evidence. The assigning of a reason for sustaining a motion for a new trial is not a mere form and a party should not be deprived of his right to have the appellate court review the ruling by the using of an incorrect form of expression. Here the court has said there was no evidence and that being its opinion there was nothing to weigh and nothing weighed. The specification in this case that the verdict was not sustained by the evidence was doubtless either intended to mean that there was no evidence tending to sustain it or else that form of expression was inadvertently used. We do not feel compelled in this ease to defer to the ruling’ of the trial court on the theory that the court intended to say that it had weighed the evidence and had found that the preponderance was against the verdict, because the court had already said in effect that there was no evidence, therefore there was nothing to weigh. We conclude therefore that the motion for a new trial was sustained, so far as the specification in the order of the court shows, on the ground that the instruction in the nature of a demurrer to the evidence ought to have been sustained. That conclusion brings us to the consideration of the first question on the merits of the case to which we will now turn our attention.

II. Was there any substantial evidence tending to sustain the plaintiff’s cause of action?

Defendant owns a stockyards structure in Kansas City by means of which it carries on the business of receiving and caring for cattle that are shipped to that market. In defendant’s yards are railroad tracks to-be used by the different railroad companies bringing-cattle into the yards. One of these is called track 3 and is the only one with-which we have to do in this case. This track is owned by the defendant stockyards: company, but the cattle trains which are switched over it belong to and are operated by the railroad companies. This track 3 runs north and south; along the east side of it runs a long platform about ten feet wide; east of the platform are pens designed to receive cattle as they are unloaded from the trains. The platform is so constructed as to be on a level with the floor of the cars and extends from the pens to within about eight inches of the cars. On the west side of the pens are gates opening into- them, two gates to the pen. When a car is to be unloaded it is stopped with its door opposite the gates of the pen into which the cattle are to be received, then the gates are opened, they swing out across the platform, extending to its outer edge, and forming an alleyway or chute through which the cattle are driven into the pen. When the gates are opened an iron rod is dropped at the end of each to hold it in place. The eight-inch space between the floor of the car and the platform is. covered, when cattle are being unloaded, by a narrow bridge. When the cattle pass out from the car into the pen those gates are closed. There were forty-two pens along the east side of this platform, each designed to be about the length of a ear; they were numbered from 14 to 56 inclusive, beginning at the south end. The switch connecting track 3 with the track of the railroad company was a short distance south of the south end of the platform. The train on which the plaintiff was when he was struck and knocked off contained fifty-three cars, loaded with cattle and was hacking in from the south end, going very slowly.

According to plaintiff’s testimony he was on the platform watching 'for his cars, observing the cattle in the cars as they passed him, and when his cars came in view, seeing that some of the cattle of which he had charge had fallen down, he got into the car to help them up and while in the act of climbing out of the car was struck by one of the gates which was open, and was caught between the car and the edge of the platform, was rolled for a short distance and dropped to the ground, receiving some severe injuries. The petition alleges that the accident was caused by the negligence of the defendant in having the gate open then and there. The answer was a general denial and contributory negligence.

The plaintiff’s testimony tended to show as follows: He was at this time and had been for several years engaged in the business of attending to cattle being shipped from Texas to the Kansas City market and to the defendant’s stockyards. He was familiar with these stockyards and the manner of doing business. On this occasion he had come in attendance on a shipment of cattle, seven or ten carloads belonging to one Simpson wlm had hired him for this business. The shipment was from Pacos, Texas, to Kansas City, a journey which owing to some delay was about sixty hours. They were what were called sand cattle, which signified cattle raised in a sandy country with consequent soft feet, rendering them more liable than other cattle to fall down in the cars and become crushed or smothered. They have to be watched very carefully. “After you put that sort of cattle on the cars they become so tender-footed that it is almost impossible, unless a man stands right there, to keep them from dropping down, one on the other. . . . All these Texas sand cattle are about alike, very tender-footed and they get very sore-footed in transit. . . . I have worked these same cattle to St. Louis and never left my cars, but would go through one and come back and find one dead that was not down when I passed through a few minutes before. They are so tender-footed that when one falls down another will get right across its neck. They are liable to die within a very few minutes. ’ ’ This train arrived at Argentine, which is a short distance from the stockyards, about six o’clock in the morning of December 7, 190-2. The weather was very cold. The caboose was detached at Argentine and plaintiff had either to ride on the top of one of the cars or else go in a street -car for the rest of the journey; he went in a street ear, arrived at or near the stockyards in time to get breakfast before the arrival of the train, which was about nine o’clock. It was the custom of attendants in stock trains to go from Argentine to the end of the journey in street cars. After having breakfast, the plaintiff went to the stockyards to be present at the coming in of his' train and see to the delivery of the cattle of which he had charge. There was an elevated viaduct leading from the Stock Exchange Building across the stockyards and other tracks to track 3; a stairway came down from this viaduct to- the platform above described, landing at or near gates 30-31, the stairway faced north and a person coming down would naturally face in that direction and would have seen the open gates if he had looked and if they had been open at that time. But the plaintiff testified that he did not look in that direction; on the contrary he said that he was uneasy about the cattle in his charge, because they had come a long journey and for that reason were in bad condition; that as he came down the stairway he placed his hand on the railing and turned his face to the south whence he was expecting his train and that, still facing in that direction, when he reached the platform he turned south and walked towards the end of the-platform which, was about ten feet south of pen 14; there he saw the train coming, backing in on track 3; that as the train approached he squatted down on the platform to watch for the cars containing his cattle to see their condition. After a number of cars had passed, how many he did not know, his cars came in view. “And I don’t know at all whether it was the first, second or third, but I really believe it was the first car as they came to me that I found the cattle all piled up, and the first thing I thought of was to go1 in and help them up.” He got into the car as quickly as he could and helped the cattle up and then attempted to get out to the platform. The entrance to this car was through an opening about two and one-half feet square in the north end, and was reached by a ladder' at that end. There was a hook on the side of the car on which one could take hold and swing his body around to a footing on the ladder. It was by use of this hook and ladder that plaintiff entered the car through that opening and he was attempting to return to the platform by the same means. He come down the ladder at the end of the car, had reached around to the side and had taken hold of the hook with his left hand, reached around with his left foot and rested it on the sill of the car, intending to swing his body around to face north, the direction in which the train was going, and thus step on the platform, but before1 he could accomplish his purpose he was struck by the gate, was rolled between the car and the platform and then dropped to the ground with severe injuries. It was at or near pen 30, 31, 32 or 33. that he was struck by the gate, plaintiff did not know which. Plaintiff’s evidence also tended to show that it was the custom of men engaged in attending cattle on trains, not only at stations while the train was stopped, but also-when moving, to watch the cattle to see if they should fall and to help1 them to rise when fallen and for this purpose they walked along the cars on top and when necessary descended into them. This was the custom not only while on the road but while being switched into the stockyards.

The testimony on the part of defendant tended to prove that the gates were not open as plaintiff alleged and therefore he was not struck by a gate, and also that there was no such custom as plaintiff attempted to prove. Defendant also introduced in evidence the shipping contract between Simpson, the owner of the eattle, on the one side and the railroad company on the other, by which it was agreed that the attendant would “not get on or be on any freight car while switching is being done at stations or other places” and would assume all risks of doing otherwise.

We make this reference to the defendant’s testimony because if it aids the plaintiff’s case it is to be taken into account in considering a demurrer to the evidence.

Defendant was not liable for negligence if any committed by the railroad company in the management of the train; if liable at all it was for having the gate open while the train was passing. The open gate was a danger to one doing what the plaintiff was doing at the time he was struck and it was unnecessary and unusual to open it until the car had stopped at the pen designated to receive the cattle. The following cross-examination of the plaintiff by defendant’s counsel, designed to bring out the fact that the plaintiff was familiar with the use and operation of the gates, shows that such was the custom: “You know how the gates were used? A. I did. Q. Do you know how long’ the gate had been open? A. I did not. Q. Do you know who left it open? A. I do not. Q. You know that when these cars are set up to a certain chute or pen, then they swing the gates around so as to make the chute leading up to the car door and letting the cattle out? A. Yes, sir. Q. You know the gates were used that way? A. Yes, sir. Q. And when the gates were not in use they were swung around to one side? A. They are supposed to he. Q. They generally are? A. Yes, sir.” Therefore we say that the leaving of the gate open while the train was running was dangerous, unnecessary and unusual. Still the defendant would not be liable unless it had cause to anticipate that some one was liable to be doing what the plaintiff was doing at the time of the accident. The defendant is presumed to know its own business and to know who- are habitually involved in its operation. If therefore it was a custom for men on the defendant’s premises doing business with defendant and using the appliances furnished by defendant for the purpose of that business, to do what the plaintiff was doing at the time of the accident, the defendant is presumed to know that custom and cannot avoid liability by denying such knowledge.

The testimony on the part of the plaintiff as to such a custom leaves the answer to the question rather to inference from the facts stated than to express evidence. None of the plaintiff’s witnesses testified that he ever saw a stock attendant climbing down a ladder at the side of a ear in the stockyards while the train was in motion and some of defendant’s witnesses said they never saw one.

But the testimony for the plaintiff was to the effect that it was the duty of the stock attendants to be with their cattle all the time until they were delivered in the pens or chutes, that while in transit with train in motion and while switching in defendant’s yards these attendants were frequently to be seen on the top of the cars and in the cars caring for their cattle. Defendant’s witnesses said they had seen the stock attendants going over the tops of cars while switching in the stockyards.

It ought to require no testimony to establish the fact that it was the duty of men employed to attend to cattle to attend to them all the way. The fact that between the time the plaintiff left the train at Argentine and the time he saw it backing into the stockyards, a space of about three hours, he found several of his cattle down in a car, shows that they required his attention all the time. Counsel for defendant in their brief say that there was only one cow down, but the counsel are mistaken; the plaintiff testified that there were several down and one across another. But that is unimportant, because even if only one was down it was the plaintiff’s duty to go to its relief. He testified that sometimes when the cattle were fallen they died in a few minutes. Defendant did not become responsible for proper care of the cattle until they had been delivered in its pens. If then, before the train stopped at the chute, the cattle were suffering for attention, whose duty was it to go to their relief? The fact that plaintiff had left the train at Argentine and had gone by street car to the stockyards is unimportant, we are not dealing with the consequence of that fact, we are considering what occurred at the stockyards. If it was his duty to g’o into the car to assist the fallen cattle he was not outside of his duty when, to do- so, he used the ladder and the hook that was furnished for that purpose, and having assisted the cattle to rise, it was his duty to go, as he testified was his intention, to see if his cattle in the other cars were suffering; therefore in going in and coming out of the car and using the appliances provided for that purpose he was in the line of his duty and his right. That the stock attendants were frequently on top of the moving cars watching their battle seems to be conceded, but it is insisted that there was no proof that in coming out of the car they were in the habit of descending the ladder on the side of the cars. If they had the right, and their duty called them, to descend into the cars to assist fallen cattle and they habitually did so, is it not a natural inference and was it is not to be expected that when that duty was performed they would get out of the car by use of the appliances furnished? The evidence showed that cars equipped for ascent and descent to and from them as this was, were in common use then and there, therefore it was a thing appertaining to defendant’s business and defendant is chargeable with knowledge of it. Defendant seems to draw a distinction between what might be expected of a brakeman and what might be expected of a cattle attendant. We do not see why there should be such a distinction drawn. If the defendant had reason to apprehend that a brakeman might be climbing down the side of the can as this man was, it was because it knew the brakeman’s duty was liable to call him to do so, and so the stock attendant’s duty was liable to call him to do so, the only difference between them is the purpose of the act of each.

Respondent makes the point that the petition says .that plaintiff “was in the act of coming down on the side of the car at the bottom of the ladder thereof” whereas the plaintiff’s testimony shows that the ladder was on the end of the car. The proof was that the ladder was on the end of the car, that plaintiff had come down the ladder, his right hand and1 right foot still on the ladder, his left hand extended around to the hook on the side of the car and his left foot extended around to and resting on the sill of the car. Perhaps the plaintiff’s attitude could have been more accurately described in the petition than it was, but was the variance between the allegation and the proof material? The charge of negligence that the defendant was called to answer was that it left the gate open. Suppose other points being’ proven, the plaintiff’s testimony had tended to show that the ladder was on the side as averred in the petition and he was coming down it and the defendant’s testimony was to the effect that the ladder was on the end of the car and that plaintiff’s body was really at the corner of the car with one foot on the ladder at the end, and the other on the sill at the side of the car, and suppose the court at the request of the defendant had instructed the jury that if they believed from the evidence that the plaintiff was iu the attitude last described when he was struck by the open gate the verdict should be for the defendant, what would be thought of that as a trial of right in a court of justice? Section 655, Revised Statutes 18991, says: “No variance between the allegation in the pleading and the proof shall be deemed material unless it has actually misled the adverse party to his prejudice, in maintaining his action or defense upon the merits. ’ ’ There was no such' material variance here.

Our conclusion is that the defendant had reason to anticipate that a stock attendant was liable to be found doing just what the plaintiff was doing when the accident occurred and that it owed him the duty to keep its gates shut while the train was passing and failing to do so was guilty of negligence.

We come next to this question: Was the plaintiff so clearly guilty of negligence contributing to the accident as that the court should have taken the case .from the jury?

The evidence shows that if the gates had been open when he was coming down the stairway he would have seen them if he had looked, and it also shows that he did not look, but that on the contrary he came down the stairway with his mind on the cattle, leaning over the railing with his face turned south. If the plaintiff saw the gates open he was guilty of negligence in not taking care to avoid coming into collision with them; but the testimony is that he did not see them. Was he negligent because he did not look in that direction as he came down the stairway? As a general rule a man is not required to look for danger when lie has no canse to anticipate danger or when danger does not exist except it be caused by the negligence of another. [1 Thompson on Neg., 181, 191; 7 Am. and Eng. Ency. Law. (2 Ed.), 391; Langan v. Railroad, 72 Mo. 392; O’Connor v. Railroad, 94 Mo. 150.] That is the general rule, and whilst there may he some exceptions yet there is nothing in this case to take it out of the general rule. There is nothing in the evidence to indicate that plaintiff had any reason to anticipate that these gates might he open. It was contrary to the usual course of operation, in those stockyards ; nothing of the kind is shown to have ever occurred before, and it could occur only through the negligence of defendant, there being no suggestion that in this instance it did occur because of the unauthorized intermeddling of some third person. There was no duty therefore devolving on the plaintiff to look. But there is no positive evidence or strong inference that the gates were open when plaintiff came down the stairway. The evidence was that the opening and closing of the gates was an operation that required a very short time; therefore they might have been opened after the plaintiff had descended the stairway and turned to walk south on the platform. Besides all the defendant’s testimony on that point tended to show that the gates were not open at any time before the accident.

The contract between the plaintiff’s employer, Simpson, and the railroad company, which the defendant introduced in evidence and which was to the effect that the attendant was to ride in the caboose and not be on any freight car while the train was in motion or switching and if so he would assume the risk, is of no importance in this ease. In the first place this defendant was not a party to that contract and had no interest in it, and besides the evidence showed that in spite of that clause in the shipping contract, which was the usual one, it was, with the knowledge and consent of the conductors of the trains, habitually disregarded and necessarily so because the cattle often needed attention while the train was in motion, and again, the caboose was cut off at Argentine by the railroad management, and the attendant was required to take passage either on the cattle car or in a street car.

Our conclusion is that the evidence did not show such negligence on the part of the plaintiff as would have justified the court in taking the case from the jury by giving the peremptory instruction asked by defendant to the effect that the plaintiff was not entitled to recover.

III. Respondent insists that the court was justified in granting the new trial on several grounds other than those specified in the order sustaining the motion as follows:

a. Over the defendant’s objection the plaintiff was allowed to introduce evidence tending to prove the custom of those attending the cattle to go over the train and into the cars to look after the cattle while the train was in motion on the road, or switching at stations with the knowledge and consent of the conductors.

The defendant was in the business of receiving and caring for cattle brought to that market. It was shown that cattle coming to defendant’s stockyards by railroad trains were usually in the care of an attendant who accompanied them on the journey and in the stockyards until they were delivered to the defendant. The question of whether the plaintiff at the time of the accident was doing what was in the line of his well-known duty and doing it in the ordinary way, was a question in the case. It was therefore necessary to show to the jury the nature of the service the plaintiff was engaged to perform. Was he employed to be a-mere listless attendant, to ride in the caboose and run no risk or-perform no labor in tbe way of caring for tbe comfort and safety of tbe cattle? if so- then be bad no business climbing into tbis car to help tbe fallen cattle to rise, but if that was a part of bis duty then tbe evidence was competent to show it. It is competent to show tbe duties of one in a particular employment by showing what men in like service usually do here, there and everywhere. To that extent tbe testimony.was competent, but it seems to- have been aimed also to prove a custom to disregard a clause in tbe shipping contract. In that light it would have been incompetent if tbe plaintiff bad not been forced into offering it by tbe introduction of tbe shipping contract by defendant, which was designed to show that tbe plaintiff bad no right to go into tbe car to assist tbe cattle while tbe train was moving. The introduction of that contract was error and it led tbe plaintiff, in self-defense, to show that although it was so nominated in tbe bond yet it was habitually disregarded. In tbe management of a particular train while it is on tbe road tbe conductor is pro hao vice the corporation, and if be thinks tbe condition of tbe cattle requires a waiving of that clause in tbe contract and knowingly permits tbe attendant to go into tbe freight car, be bad the right to do it. But as we have already said, in tbe foregoing paragraph of tbis opinion, that contract has no place in tbis case. Respondent in its brief says that it was introduced only for “tbe purpose of showing tbe conditions upon which plaintiff was allowed to accompany tbe live stock and the warnings that were given him as to- tbe dangers consequent thereon and as to things which be should not and could not safely do.” Whatever danger there was incident to tbe employment tbe plaintiff assumed when be undertook it and no warning was necessary to charge him with that risk. But negligence of tbe defendant in connection with tbe business it was impliedly inviting one of its customers to transact on its premises was not a danger incident to the plaintiff’s employment. The plaintiff is not suing for damages for injuries received by him through a danger incident to the act of climbing in and out of a cattle car while the train was in motion, but for injuries received through the negligence of the defendant in leaving the gate open.

But whether or not the defendant’s purpose in introducing the contract in evidence was the limited one mentioned, its effect on the minds of the jury was liable to be of farther range. It said in plain words that the plaintiff should not do what he was doing and that if he did so he assumed all risk and released the railroad company and every connecting carrier from all liability for injuries received by him. After that incompetent evidence had gone in the court did not err in allowing the plaintiff to prove that that clause in the contract was habitually disregarded or waived with the knowledge and consent of the conductors of trains engaged in that traffic.

b. Respondent complains of plaintiff’s instruction numbered 1, for the reason that, after stating other facts necessary to be found, it contained this clause: “and that while going down the ladder on and swinging around said car plaintiff . . . was struck and knocked off said car by a gate of defendant, and the said gate had been negligently left open by defendant’s employees,” etc.

The first part of the complaint of that clause in the instruction is based on the supposed variance between the allegation in the petition and the proof on the point of the ladder being at the end instead of at the side of the car. What we have already said on that subject in the former paragraph expresses our opinion and we deem it unnecessary to say anything further on the subject. The latter part of the criticism is based on tbe contention that there was no evidence tending to show that it was the defendant’s employees who left the gate open. There was no express evidence as to who left the gate open. Bnt if the gate was open as and when the plaintiff says it was, was it an unwarranted inference that it was left open by defendant or some of its employees? If the gate was open and plaintiff was hurt by it, did it devolve on him to prove who opened it? If so, then, in a case like this, there would be no remedy for the injury. The gate was in the keeping of the defendant and if it was left in a negligent manner and no testimony showing who did it the inference would naturally be that the keeper did it. There was no error in that instruction.

c. Instruction for plaintiff numbered 5: is as follows: “The court instructs the jury that in the admission of freight trains into defendant’s yards for the discharge and delivery of cattle therein, it was the duty of defendant to stockmen who might be on said cars while moving and in transit on the railway tracks in the yards of defendant to exercise ordinary care to see that its gates were not left open and extended out to said ears, so that they might strike or cause injuries to such stockmen in the discharge of their duties while going up> and down the ladders on said cars in the exercise of ordinary care thereon.”

The objections urged against that instruction are first that there was no evidence “that any stockman ever went up and down a ladder on a car in a place where a gate could have struck him, there is no proof that plaintiff was hurt in that way.” That is only a reiteration of the statement that there was no evidence tending to prove that stockmen in those yards were in the habit of going in and out of cars to attend to their cattle while the train was moving. We have already discussed that question, and also as to the manner in which the plaintiff was injured. The second proposition is that defendant was not required to regulate the gates with reference to stockmen on a moving car, “no matter what their position might he, unless and until such stockmen were seen to be in a place of danger.” If in the usual course of business the defendant had reason to know that stockmen were liable to be climbing in and out of cattle cars moving along the side of the platform and liable to be knocked off by an open gate, then it had no right to place its gates in position where they were likely to strike a man so acting, even though there was no man in immediate sight in such peril. We do not think the criticisms of that instruction are well founded.

The plaintiff’s instruction 6 took up the subject of the above-mentioned shipping contract and told the jury that although the contract by its terms required the plaintiff to remain in the caboose in a safe place yet if for the purpose of looking after the cattle the stockmen habitually disregarded that clause with the knowledge and consent of the conductors, then that provision of the contract was no defense to plaintiff’s action. We deem it unnecessary to say anything more on this point than we have already said. Under the circumstances it was not error to give that instruction.

d. ‘1 The trial court erred in refusing defendant’s instructions III, X, XI, XIII, XIV.”

Instruction III would tell the jury that “the duties of the plaintiff and defendant were not affected by any custom” and must not be considered in arriving at a verdict. That would have withdrawn from the jury the consideration not only of the custom of disregarding the shipping contract but also the evidence tending to show the custom of stockmen climbing in and out of the cars. The court did not err in refusing it.

Instruction X expressly declares that it was not the duty of defendant to keep its gates closed when cattle were not being unloaded or when cattle trains were moving along their front. In other words the act of leaving the gate open was not negligence on the part of defendant. If that were the law then the court ought to have given the instruction in the nature of a demurrer to the evidence, since the only act of defendant that was complained of was the act which in that instruction the court was asked to declare was not negligence.

Instruction XI was to the effect that if the plaintiff as he was in the act of getting off of the car had looked he would have seen the gate but did not look, the verdict should be for the defendant. That also is equivalent to a peremptory instruction to find for the defendant, because the plaintiff testified that he did not look. But as we have already said in a previous paragraph of this opinion, in discussing the demurrer to the evidence, if he had no reason to anticipate that the gate might be open it was not negligence on his part to fail to look.

Instructions XIII and XIV are in effect that if plaintiff went on the defendant’s premises to attend to his master’s business without any special invitation from defendant he was a mere licensee and defendant owed him no duty except not to wilfully injure him. If that is the law then a business concern may open its doors to the public and thereby extend a general implied invitation to all who want to do business with it to come in and yet be under no obligation to observe any degree of care to see that the premises are in a reasonably safe condition, liable only for wilful injury. That is not the law.

Defendant complains of the court’s modification of its instruction VII. The only modification of that instruction was that instead of saying that if the jury believed from the evidence that in getting off the car the plaintiff could have seen the gate, it said that if by the exercise of ordinary care he could have seen the gate, etc. There was no error in that.

The defendant’s last insistence is that the verdict was against the law as. declared by the court. A discussion of that proposition would only lead us over the grounds over which we have already passed. There was no error in the trial which would justify the court in setting aside the verdict and granting a new trial.

The judgment is reversed and the cause remanded to the circuit court with directions to reinstate the motion for a new trial, overrule it, and enter judgment for the plaintiff on the verdict.

All concur.