source: Caselaw Access Project

author: WOODSON, J.

license: Public Domain

text:
    FLOYD JOHNSON v. WAVERLY BRICK & COAL COMPANY and MISSOURI PACIFIC RAILWAY COMPANY, Appellants.
    Division One,
    September 16, 1918.
    1. NEGLIGENCE: Dangerous Place: Coal Chute: Warning. A “trimmer” engaged in separating stone and other foreign materials from coal as it was being carried from the mine by a “shaker” into a car, in the absence of notice of approaching cars on the switch, was at work in a dangerous place, and the mining company by which he was employed, and the railway company which placed cars on the switch upon request of the mine foreman, are chargeable with knowledge of the danger. Such “trimmer” had a right to assume that the two companies would not imperil his safety by permitting or causing the car on which he was at work to be struck by other cars and moved without notice or warning to him.
    2. -: -: Relegating Duty to Another. If one person owes a duty to another, and instead of performing it himself depends upon a third to discharge it, and said third party neglects it, and as a consequence of such neglect the party to whom the duty was due is injured, the party who owed the duty is liable in damages for the resulting injuries.
    3. -: -: Duty HabituaUy Neglected: Custom. Neither the coal mining company nor the railroad company, which owed to a “trimmer” at work on a stationary car being loaded at a coal mine the duty to warn him that cars were about to be run in upon the switch, can escape the result of causing or permitting, without warning, cars to be pushed against the car on which be was working, by the fact that either or both of them habitually neglected said duty. No custom or usage can make that lawful which is unnecessarily dangerous.
    4. -: -: Question for Jury. Where the coal mining' company owed to an employee the duty to give him notice of the approach of a train on a switchtrack and its collision with the car op which he was at work, and he testifies that no such notice was given and the foreman testifies that he gave him such notice, the question of whether such notice was given becomes one of fact, to be determined by the jury.
    5. -: Contributory: Seeing Approaching Train. A “trimmer” at work in separating stone from coal on a car standing on a switch at a coal mine, was not guilty of negligence in standing with his back to a train approaching on the switch, if he .did not know it was approaching and under the rules of the railway company and of the mining company he had no reason to apprehend that a train would approach without giving him notice.
    6. -: Assumption of Risk: Employer’s Negligence. The risks which the employee assumes are those purely incidental to the employmennt, and include such injuries as are liable to occur at any time during the performance of the work in the ordinary and usual way, unaided in any degree by the negligence of the employer.
    7. -: -; -: Question for Jury. If the evidence tends to show that the plaintiff’s injuries were the result of the negligence of defendants, and not the result of an assumed risk, it presents a question of fact for the jury, and the court cannot declare as a matter of law that plaintiff assumed the risk of the particular injury.
    8. INSTRUCTIONS: Conflicting: Not Preserved. Appellants are in no position to complain that the instructions are conflicting if their motion for a new trial complained of no such error.
    9. EVIDENCE: Joint Tortfeasors. It is not error to refuse to instruct the jury that the testimony of a witness respecting a conversation with the foreman of the coal company, offered on behalf of the railroad company, should not be considered in determining the issues between the plaintiff and the coal company. The foreman was the coal company’s vice-principal, and if his testimony shows that the cars which were run against the car in which plaintiff was working were run at his request, and neither company gave plaintiff the notice which their rules required, the foreman’s testimony does not pertain solely to the defense arising out of the issues between plaintiff and the railroad company, but is pertinent to the issue of negligence between plaintiff and the coal company.
    10. NEGLIGENCE; Imputed to Joint Tortfeasors: Failure to Give Notice. The negligence of a railway company in failing to give notice to a “trimmer” at work in a car on a switch at a coal mine that a train is about to be run against the car cannot be imputed to the mining company. But if it was the duty of both companies to give such notice, and neither did so, it is not error to refuse to instruct the jury that the failure of the railway company to give the necessary notice cannot be imputed to the coal company, nor to refuse to instruct them that the failure of the coal company to give such notice cannot he imputed to the railway company. Neither tortfeasor can escape liability for failure to perform its duty to plaintiff by an attempt to make the other’s negligence the sole cause of the injury. The failure to give the notice being negligence, all tortfeasors whose duty it was to give it and failed to do so are liable.
    11. VERDICT: Excessive: $15,000. A verdict for $15,000 for a “trimmer” at a coal mine, whose leg was amputated six inches above the ankle and who also lost the little finger of the right hand, as a result of the injuries done him by defendants, was too large by $5,000.
    Appeal from Lafayette Circuit Court. — Eon. Samuel Davis, Judge.
    Affirmed.

      O. L. Rider for appellant, Waverly Brick & Coal Co.
    (1) The court erred in overruling the demurrer of Waverly Brick & Coal Company to plaintiff’s evidence. Smith v. G-. C. & D. F. Ry. Co., 164 S. W. 132; Martinowsky v. City of Hannibal, 35 Mo. App. 70; Stanley v. Union Depot R. Co., 114 Mo. 606; Myers v, Railway Co., 120 Mo. App. 292; Otrick v. Railway Co., 134 S. W. 668. Livesay v. First Nat. Bank, 86 Pac. (Colo.) 102; 3 Labatt’s M. & S. (2 Ed.), sec. 1143; Junior v. Mo. E. L. & P. Co., 127 Mo. 79; Stegmann v. Gerber, 146 Mo. App. 104; Hirsch v. Freund Bros. Bread Co., 150 Mo. App. 162; Clark v. M., K. & T. Ry. Co., 179 Mo. 66; Bailey v. Kansas City, 189 Mo. 503. (2)- The court erred in overruling the motion of defendant coal company to instruct the jury as to the application and effect of certain portions of the testimony of the witness Day. State v. Phillips & Ross, 24 Mo. 484; Union Sav. Assn. v. Edwards, 47 Mo. 449; Morrison v. Yancey, 23 Mo. App. 674; Carle v. City of De Soto, 63 Mo. App. 166; Illinois Central Railroad Co. v. Houchins, 89 S. W. 533; Edger-ton v. Wolfe, 6 Gray (Mass.), 453; Rachel v. Rachel, 4 La. Ann. 500. (3) The court erred in refusing to give Instruction 1 requested by defendant coal company for a directed verdict in its favor. Eailway Co. v. Bangs, 11 N. W. (Mich.) 276; McCarty v. Hotel Co., 144 Mo. 402; Herbert v. Mound City B. & D. Co., 140 Mo. 433; Eobinson v. Packing Co., 171 S. W. 34; Scoffin v. Furniture Co., 171 S. W. 933; Palmer v. Tel. Co., 91 Mo. App. 106; Moore v. Eailway Co., 146 Mo. 572.

      James F. Oreen and Harvey C. Clark for appellant, Mo. Pac. Ey. Co.
    (1) Plaintiff’s instructions 5 and 6, which purport to cover the whole case are in conflict with instructions 4 and 5 given for the defendant railway company and ignore the defense pleaded by the defendant railway company and the evidence upon which the same are based and conceded to be proper matter of defense in instructions 4 and 5 given at defendant’s request. (2) The error in an instruction given for the plaintiff, purporting to cover the entire case, is not cured by other instructions given on behalf of the defendant. State ex rel. Long v. Ellison, 199 S. W. 988; Wojtylak v. Coal Co., 188 Mo. 283; Traylor v. White, 185 Mo. App. 331; Hall v. Coal and Coke Co., 260 Mo. 369; Humphreys v. Eailroad, 191 Mo. App. 721; Walker v. White, 192 Mo. App. 19. (3) A verdict of $15,000 under the facts in this ease is excessive. Domineck v. Western Coal & Mining Co., 164 S. W. 567; Hollenbeck v. Eailroad, 141 Mo. 113; Whalen v. Eailroad, 60 Mo. 323; Adams v. Eailroad, 100 Mo. 443; Chitty v. Eailroad, 166 Mo. 443; Brady v. Eailroad, 206 Mo. 509; Norris v. Eailroad, 239 Mo. 655. (4) The plaintiff’s evidence shows that he was familiar with the custom prevailing at the mine of looking to the vice-principal of the coal company and not to the employees of the railway company for notice when switching was to be done on the coal company’s tracks; his statements and conduct on the day of the accident shows that he relied upon this custom, and his negligence in continuing to work on the car with his back in the direction from which a train would approach, in view of the fact that he knew the foreman desired the switch to be made and that he had gone down to where the train crew was at work, was the sole cause of his injury. If it be negligence in the railway company to fail to give warning of the purpose to move the car on which the plaintiff was at work, notwithstanding the custom in this regard existing at the mine and known to its employees, including the plaintiff, the conduct of the plaintiff constituted such negligence as a matter of law that the case should be taken from the jury, in so far as the defendant railway company is concerned.

      Aull $ Aull for respondent.
    (1) The court properly overruled appellant’s demurrer to the evidence and submitted the case to the jury. The authorities cited by appellant are not the law. (2) Instructions 4 and 6 for respondent properly declared the law. Hinzeman v. Railroad, 182 Mo. 624; Iluhn v. Railroad, 92 Mo. 447; Settle v. Railroad, 127 Mo. 344; Hamman v. Coal Co., 156 Mo. 244; Wendler v. House Furn. Co., 165 Mo.540 ;Henderson v. Kansas City, 177 Mo. 477; Feldman v. Railroad, 175 Mo. App. 637; Hardwick v. Wabash, 168 S. W. 332; Dunn v. Company, 182 S. W. 113. (3) The verdict was a reasonable and fair verdict under the instructions of the court. Henderson v. Kansas City, 177 Mo. 491; Huhn v. Railroad, 92 Mo. 447; Settle v. Railroad, 127 Mo. 344; Hamman v. Coal Co., 156 Mo. 244; Wendler v. House Furn. Co., 165 Mo. 540. Appellant is not in position to complain. (4) The court properly refused instruction 2 requested by appellant coal company. The coal company, through its manager, was present at the time, urging the crew to shunt the cars in under and beyond the chute. The court properly refused instruction Ño. 7 requested by defendant coal company. The instruction eliminated all negligence whatever on the part of defendant coal company and required the jury, merely because the railway company crew failed to give warning, to find for defendant coal company. O’Rourke v. Ry. Co., 142 Mo. 351; Applegate v. Railroad, 252 Mo. 175. The motion for a new trial contains no assignment of error sufficient to have the action of the court in giving or refusing instructions reviewed in this court. K. C. Disinfecting Co. v. Bates Co., 201 S. W. 92; Polski v. St. Lonis, 264 Mo. 250; Wampler v. Railroad, 269 Mo. 464; State v. Rowe, 271 Mo. 88; Carver v. Thornhill, 53 Mo. 286; Sweet v. Manpin, 65 Mo. 68; R. S. Mo. 1909,' sec. 2025; R. S. Mo. 1909, sec. 1841. “Wherever a person should reasonably apprehend that as the natural and probable consequences of his act or neglect another will be placed in a situation of danger of receiving injury, a duty of exercising due care to prevent such injury arises. And if the injury results from the failure to use such care a liability to the person injured exists.” Railroad v. Snyder, 55 Ohio St. 361; Ella v. Boyce, 70 N. W. 1106; Lippert v. Company, Fed. 942; Van Winkle v. Company, 19 Atl. 472; Moon v. Railroad, 46 Minn. 109; Burkhart y. Schoot, 74 S. W. 430; Roddy v. Railroad, 104 Mo. 234; Geismann v. Electric 0<^, 173 Mo. 654; Young v. Oil Co., 185 Mo. 641.
   WOODSON, J.

The plaintiff brought this suit in the circuit court of Lafayette County against the defendants to recover $30,000 damages for personal injuries received through their alleged joint negligence. The trial resulted in a judgment against both defendants for the sum of $15,000 and after moving unsuccessfully for a new trial both defendants appealed the cause to this court.

The defendant, Waverly Brick & Coal Company (which, for brevity, will hereinafter be called the Coal Company) was engaged in mining, loading, shipping and selling coal; the defendant Railway Company was a common carrier, engaged in the transporting of coal and other freight to and from Waverly to and trom other points in the State, and the plaintiff was an employee of the Coal Company, engaged in trimming cars, that is, standing on the cars while they are being loaded and separating stone and other foreign materials from the coal as it passed into- the cars, and trimming them up neatly as they were being loaded.

When the cars were to be loaded they were placed on a side switch of said- Railway Company at a chute at said mine, at which there were three tracks on which cars might be placed for the purpose of loading, and the coal was carried up from the mines and dropped into a shaker which carried the same to the car being loaded, and at the end of the shaker there was an apron extending to near the middle of the car for the purpose of distributing the coal in the car. The main line of the Railway Company passed north of the chute, and the three side tracks branched off from the main line about a quarter of a mile therefrom and ran north and east of the chute, which made a large curve, and on the concave side thereof there was a high bluff, which prevented one working at the chute from seeing a car as it approached the same until it reached the point beyond the switch numbered three, a distance of about 180 feet.

At the time plaintiff was injured he was standing with his back to the north, with his left hand resting on the shaker.

The plaintiff was an experienced man in the business, having worked for the Coal Company for years and was perfectly familiar with the method of loading, switching and handling the cars about the chute.

The uncontradicted evidence of all parties showed that it was the custom in moving the cars to be loaded, or after they had been loaded, for the foreman or some other employer in charge of the mines to advise the Railway Company what cars it was desired should be moved, and that such foreman would then notify the person engaged in trimming the cars what was to be done, so he could look out for his own safety; the record also shows that it was not the custom of the Railway Company to notify the employees of the Coal Company of the intention to move the cars about the chute. This custom was known to and acquiesced in by the plaintiff and other employees of the latter company.

The plaintiff’s evidence tended to show that on the morning of the accident, Robert Moss, who was in charge of the mines and employees of the Coal Company, told plaintiff to go down to the train crew when the local came in and ask them to set in some cars on the switch, which would necessitate moving the car on which the plaintiff was at work under the chute as a trimmer. That in pursuance to the instructions of Mr. Moss, plaintiff saw the train crew, but was advised by them that they would not be able to do the switching that morning. He then went back to work on his car, and while there engaged, Moss came to him and asked if his message had been delivered. The plaintiff gave him the reply made by the crew. Moss says that he told the plaintiff to .prepare for a switch, and that he would go down and see what he could do with the train crew. The plaintiff denies this statement of Moss, but says that after he told Moss what the train crew said, Moss went down the track to where the crew was switching near the main track. He continued to work on the car. Moss continued on down the track to where the train crew was at work and asked them if they could not set in the desired cars. The foreman asked him if it could be done immediately. Moss told him it could; the foreman said alright and signaled the train, which was slowly backing in his direction, to go on back. The train continued to back slowly south toward the shaft, and after picking up two cars between the chute and the train, backed on against the car upon which the plaintiff was at work. "When these cars struck the car under the chute, the movement threw the plaintiff from the top of the car under the wheels, and he sustained the injuries of which he complains. Moss, after telling the train crew that it would be all right to back on down and make the switch, did not make any effort to warn the plaintiff. He says that having told the plaintiff what he intended to do, he presumed that he would be on the lookout. Plaintiff testified that not hearing what Moss said to him about going on down and having the switch made, he gave the matter no further thought.

As a result of his injury, it became necessary to amputate the right foot of the plaintiff six inches above the ankle, as well as the little finger on his right hand.

The Coal Company introduced no evidence except Rule 379 of the Railway Company, which was in force at the time the injury occurred. It reads as follows:

“In switching at stations and in yards where it is necessary to disturb cars that are being loaded or unloaded, great care must be taken to warn all persons in the vicinity of the same and opportunity given them to get away from the cars and out of danger before the cars are moved.

“When cars are so moved they must be returned to the same position found.”

At the close of the plaintiff’s case, counsel for the defendants asked and the court refused a demurrer to the evidence.

Such other facts as may be necessary for the proper disposition of the case will be stated in the opinion.

I. It is first insisted by counsel for the defendants that the trial court erred in refusing their demurrer to the evidence.

The evidence clearly shows that the place where the plaintiff was working, in the absence of notice to him of the approaching train, was dangerous, and that each of the defendants knew of that danger and adopted means to obviate it. All the authorities recognize such places as being dangerous. Moore v. Wabash, St. Louis & Pacific Ry. Co., 85 Mo. 588; Koerner v. St. Louis Car Co., 209 Mo. 141.

And the plaintiff had the right to assume that the defendants would not imperil his safety by permitting or causing the ear on which he was at work to be struck by other cars and moved without notice or warning to him. Young v. Lusk, 268 Mo. l. c. 639; Williams v. Wabash Ry. Co., 175 S. W. 900; Koerner v. St. Louis Car Company, 209 Mo. 141; Kame v. Railroad, 254 Mo. 175; Peppers v. Plate Glass Co., 165 Mo. App. 556; Anderson v. Ry. Co., 196 Mo. 442; Porter v. Stock Yards Co., 213 Mo. 372; Kettlehake v. Car & Foundry Co., 171 Mo. App. 528, l. c. 541; Hutchinson v. Safety Gate Co., 247 Mo. l. c. 94; Erickson v. Railroad, 171 Mo. l. c. 659; George v. Railroad, 225 Mo. l. c. 405; Charlton v. Railroad, 200 Mo. 413; Crawford v. Stockyards Co., 215 Mo. l. c. 414; Clark v. Railroad, 234 Mo. 396; Clark v. Iron & Foundry Co., 234 Mo. 436.]

The Coal Company, in order to prevent injury to its employees engaged in such work,' undertook to notify them when any car they were on was to be moved, and the Railway Company adopted the rule read in evidence designed to accomplish the same end. It is conceded that the Railway Company did not perform this duty to the plaintiff, nor to any other of its employees working about this chute, but depended upon the Coal Company to discharge that duty for both of them.

The law is well settled that if one person owes a duty to another, and instead of performing that duty himself, depends upon a third party to discharge it for him, and that party neglects to so do, and the person to whom the duty was due is injured in consequence of said neglect, then the party who owed the duty is liable in damages for the injury resulting therefrom. This is elementary. [Neff v. City of Cameron, 213 Mo. 350; Berry v. Railroad, 214 Mo. 593; O’Rourke v. Lindell Ry. Co., 142 Mo. 342; Applegate v. Railroad, 252 Mo. 173; Benton v. St. Louis, 248 Mo. 98.]

Nor can the defendants, or either of them, escape the result of causing or permitting cars to be pushed against the car upon which the plaintiff was working, without warning, by showing that they or either of them habitually neglected to do so.. This is upon the principle that no custom or usage can make that lawful which is unnecessarily dangerous; and no one will say that to push cars back against the one on which the plaintiff was at work without warning was not unnecessarily dangerous. [Indermaur v. Dames, L. R. 1 C. P. l. c. 274; Reichla v. Gruensfelder, 52 Mo. App. l. c. 69; Dawson v. Ry. Co., 114 Fed. l. c. 872; 26 Cyc. pp. 1108-9 and cases cited; Hosic v. Railroad, 75 Iowa, 683; Hamilton v. R. R. Co., 36 Iowa, 31; Wendler v. People’s House Furnishing Co., 165 Mo. 536-7; Settle v. St. L. & S. F. Railroad, 127 Mo. 336; Pauck v. St. Louis Beef & Provision Co., 159 Mo. 467.]

Under this principle of law the Railway Company ■cannot escape liability unless the Coal Company performed the duty mentioned for it, that is, notified the plaintiff of the approaching train, which if done, would have enured to both defendants. Under' this view of the case, it becomes important to inquire as to whether or not the Coal Company performed this duty.

The plaintiff testified positively that Moss, the foreman of the Coal Company, did not so notify him, while Moss does not say positively that he did, but testified that he told the plaintiff to prepare for a switch, and that he would go down and see what he could do with the crew; this the plaintiff denies.

This evidence presented a question of fact for the jury which the court properly submitted to them for determination; and, therefore, the demurrer as to each of the defendants was properly refused. For the same reason, the court properly gave instruction numbered 2 for the plaintiff, submitting that question to the jury.

II. It is next insisted by counsel for defendants that the evidence showed that the plaintiff was guilty of such contributory negligence, as to prevent a recovery as a matter of law, by standing with his back to the approaching train so he could not see it. This insistence is untenable. The evidence shows the plaintiff did not know that the train was approaching and under the rules of the Railway Company and the custom of' the Coal Company, he had no reason to apprehend a train would approach him with.out notice first being given to him.

This point is ruled against the defendants.

III. Counsel for defendants also insist that the plaintiff is not entitled to a recovery in this case because his injury was the result of a risk incident to his employment, that is, he assumed all risks incident to his employment, and that his liability to be knocked off of the car mentioned and being injured was one of those risks.

This insistence is untenable for two reasons. First, because this was not a risk incident to his employment. Such risks are purely incidental to the employment, and is such an injury as is liable to occur at any time during the performance of the work undertaken, unaided in any degree by the negligence of the employer. For instance, should Jones employ Brown as a blacksmith, it would be the duty of the former to furnish the latter with reasonably safe tools or appliances with which to do that work, and it would be the duty of the latter, among other things, to weld iron, and in order to do that it would be necessary for him to heat the ends of the two pieces of iron- to almost a white heat, and place them in contact with each other and hammer them together, and as a necessary incident thereto hot scales and sparks will fly therefrom, which would be liable to strike him in the eye and destroy the sight thereof; such a liability would be a risk incident to the work undertaken, in which the employer would have had no part, and which the employee assumed as an implied part of his contract of employment, and for such an injury he could not recover damages from his employer for the reason he assumed the risk. But suppose upon the other hand the injury had occurred to his eye by reason of a sliver of steel flying from a defective and dangerous hammer negligently furnished by the employer while he was pounding the iron mentioned. Such injury would be the result of negligence of the employer. [Williams v. Pryor, 200 S. W. 53.] In no sense of the word, would such an injury be the result of a risk assumed as an incident of the employment; it would have no element of assumption of risk in it, and in the absence of contributory negligence he could recover damages of the employer for the injury so sustained, provided, of course, Ms own negligence did not contribute thereto. But, as suggested, the plaintiff might not be entitled to a recovery in such a case, even though he did not assume the > risk. If his negligence should contribute to the injury it would be as effectual in barring a recovery as if it had contributed to that of the employer in producing it. To illustrate: Suppose he knew the defective and dangerous condition the hammer was in, and that it would in all probability inflict injury upon him if he should use it, but notwithstanding such knowledge he should use it and should be injured thereby. Under such conditions he could not recover, but not on account of the assumption of the risk, but on account of his contributory negligence.

While on this subject I might add that the risk which is assumed by the employee, which is done by implication, which arises out of and constituting a part of the contract of employment, is liable to' cause injury at any time, as an incident to the performance of his duties to the employer, wholly independent of any act on the part of the employer. In other words, a risk assumed by the employee is incident to the performance of the work and is one that is liable to inflict injury upon him while performing bis duties to the employer in the ordinary and usual manner, without the interference or negligence of the latter; but where the latter’s negligence causes the injury the assumption of risk vanishes.

The second reason before suggested why this insistence is untenable is that the evidence tended to show that it was the negligence of the defendants which caused the injury, and not the result of an assumed risk. The evidence presented a question of fact for the jury, and the court properly submitted it to them.

For the reasons stated this insistence is ruled a-against the defendants.

IV. Counsel for the Railway Company contend that instructions numbered 5 and 6 given by the court for the plaintiff are in conflict with instructions numbered 4 and 5 given by the court for that company.

Should it be conceded that they are in conflict, and that the conflict was injurious to the Railway Company, yet it is in no position to urge that error here, for the reason that the motion for a new trial complains of no such error; it is perfectly silent on that subject. [Secs. 1841 and 2081, R. S. 1909; Matthews v. Central Coal & Coke Co., 177 S. W. 650, l. c. 653; Kansas City Dis-infecting & Mfg. Co. v. Bates County, 201 S. W. 92; Polski v. St. Louis, 264 Mo. 458; Wampler v. Atchison, Topeka & Santa Fe Railway Co., 269 Mo. 464; State v. Rowe and Sanders, 271 Mo. 88; Carver & Carver v. Thornhill, 53 Mo. l. c. 286; Sweet v. Maupin, 65 Mo. l. c. 68.]

V. Counsel for the Coal Company insist that the court erred in refusing its motion to instruct the jury that the testimony of the witness Day respecting the conversation with Moss, offered on behalf of defendant Missouri Pacific Eailway Company, should not be considered by the jury in determining the issues between the plaintiff and the Waverly Brick & Coal Company, but that the same pertains solely to the defense arising out of the issues between the plaintiff and Missouri Pacific Eailway Company.

There was no error in this refusal. Moss was the foreman of the Coal Company, and what he said at the time to the employers of the Eailway Company about moving the cars mentioned was clearly admissible. He was the vice-principal of the Coal Company, and his testimony shows why and how the cars were moved and how the plaintiff came to be injured.

This point is ruled against the Coal Company.

VI. Counsel for the Coal Company also insist that the court erred in giving instructions numbered 4 and 6 for the plaintiff.

Counsel do not point to any error in either of those instructions, hut simply says that “the court erred in giving to the jury instruction No. 4 requested by . the plaintiff.” Then follows the exact language regarding instruction No. 6.

We have carefully read both of these instructions and we find no error in either of them; they follow the pleadings and are hypothesized upon the evidence introduced, which we have heretofore, in parágraph one of this opinion, held was sufficient to carry the case to the jury.

According to the following cases the evidence established the negligence of the defendants, and the instructions properly submitted the case to the jury. [Edington v. Railroad, 204 Mo. l. c. 67; Frankel v. Hudson, 271 Mo. l. c. 503; Applegate v. Railroad, 252 Mo. l. c. 188; Young v. Lusk, 268 Mo. l. c. 639; Williams v. Wabash Ry., 175 S. W. 900; Penney v. Stock Yards Co., 212 Mo. l. c. 328; Kame v. Railroad, 254 Mo. l. c. 196; Bolton v. Railroad, 172 Mo. 98; George v. Railroad, 225 Mo. 364; Charlton v. Railroad, 200 Mo. l. c. 433; Hutchinson v. Safety Gate Co., 247 Mo. 78; Koerner v. St. Louis Car Co., 209 Mo. 141; Curtis v. McNair, 173 Mo. 270; Clark v. Railroad, 234 Mo. 396; Clark v. Iron & Foundry Co., 234 Mo. 436; Baker v. Railroad, 147 Mo. l. c. 158; Taber v. Ry. Co., 186 S. W. l. c. 692; Sykes v. Ry. Co., 178 Mo. l. c. 712; Edington v. Railroad, 204 Mo. 61; Burkard v. Rope Co., 217 Mo. 481; Glaser v. Rothschild, 221 Mo. l. c. 186; Young v. Waters-Pierce Oil Co., 185 Mo. 634; O’Mellia v. Ry. Co., 115 Mo. l. c. 220; Settle v. Ry. Co., 127 Mo. l. c, 342; Pauck v. St. Louis Beef & Provision Co., 159 Mo. l. c. 475-477-8.]

For the reasons stated we are of the opinion that the court properly gave said instructions.

VII. Counsel for the Coal Company next insist that the court erred in refusing instruction number 7 requested by it, which reads;

“If you. believe from the evidence that the defendant railway company had in force at the time of this accident a rule which required all its switching crews before making a switch at stations and in yards where it was necessary to disturb cars that were being loaded or unloaded to first give warning to all persons in the vicinity of the same of their intention to make such switch, and give them opportunity to get away from cars and out of danger before the cars were moved, and if you further believe that on the morning in question they made a switch into the yard of the defendant coal company, who were working on or about the cars that were to be removed, to get out of danger, then you are instructed that the failure of said crew to give such warning cannot be imputed to the defendant coal company, and your verdict must be in favor of said Waverly Brick & Coal Company.”

This instruction was properly refused, notwithstanding the fact that the negligence of the Railway Company could not be imputed to the Coal Company. The mere fact that the former may have neglected to give the notice to the plaintiff in no sense excused the latter from doing so. It owed the plaintiff the same duty the Railway Company owed him, and under the law it had no authority to delegate that duty to some one else. We decided the same question against the Railway Company in paragraph one • of this opinion, where it attempted to unload the burden of its sins upon the Coal Company because the latter had been in the habit of warning its employees of the intended movement of cars about the chute. Now it is trying to retaliate by showing that the former did not observe the rule read in evidence. This cannot be done. We, therefore, think the court correctly refused said instruction.

VIII. It is finally insisted that the verdict of the jury is excessive and should be reduced. After a careful consideration of the record, we are of the opinion that this insistence has merit in it. It is true that plaintiff’s right leg was amputated some six inches above the ankle, and he also lost the little finger of the right hand. Of course, both of these injuries are permanent and disfigure the plaintiff, and will materially affect his earning capacity in the future; nevertheless we are of the opinion that $15,000 is excessive for these injuries when viewed in the light of former adjudications of this court. [Domineck v. Western Coal and Mining Co., 164 S. W. 567; Lessenden v. Mo. Pac. Ry. Co., 238 Mo. 247; Brady v. K. C., St. L. & C. Railroad, 206 Mo. 509; Whalen v. St. L., K. C. & N. Ry. Co., 60 Mo. 323.]

We are, therefore of the opinion that the judgment should be reversed ’ and the cause remanded on the ground that the verdict is excessive, unless the plaintiff will remit $5000 of the judgment as of the date thereof, within ten days from this date.

If that is done, the judgment will stand affirmed for $10,000 and the interest from date of the original ren-

dition thereof.

All of the judges concur; Bond, J., in result.

CASES ARGUED AND DETERMINED BY THE SUPREME COURT OF THE STATE OF MISSOURI AT THE OCTOBER TERM, 1918.


author: BROWN, C.

text:
    CLARA P. BOBB, Appellant, v. CITY OF ST. LOUIS.
    Division One,
    October 8, 1918.
    1. PLAT: Dedication: Without Seal. The General Statutes of 1865 (Chap. 44) did not require that the plat dedicating land to public use should be under seal. The statute only required that the plat be acknowledged and recorded.
    2. INSTRUCTIONS: Refusal: Harmless. If the trial court, sitting as a jury in ejectment, found all the issuable facts in plaintiff’s favor, and the questions of law involved appear fully upon the face of the record, he cannot on appeal complain that instructions asked by him were refused or modified by the court.
    3. DEDICATION TO PUBLIC USE: Abandonment: Limitations. Land acquired by a city, by a plat executed and recorded by its owners in the manner prescribed by law. by which they dedicated it to public use as a highway, does not, because it is not opened as a highway within ten years, automatically revert to the dedicators. Section 7847, Revised Statutes 1909, does not apply to the title to land acquired by the city in perpetual trust.
    4. -: By Trustee: After Acquired Title: Estoppel. A person who dedicates land to a public use, either individually or in a representative capacity, is estopped to set up a title adverse to that purported by his dedication, and an after-acquired title will inure to the public if the instrument is a dedication of a street. Two trustees, who held the title to an undivided fifth interest in a tract of land in trust for a named beneficiary, and the owners of two other undivided fifths, signed a plat of an addition, by which they dedicated a certain strip of it to public use as a street. The signers stated that they were owners of the tract included in the plat. The owners of the remaining two-fifths did not sign the plat and had nothing to do with it. Afterwards one of the trustees acquired the entire tract in severalty, and by his will devised the same to the plaintiff, who sues the city in ejectment to recover the strip. Held, that by the express representations in the act of dedication that he and the other signers- were the owners, the said trustee was estopped from denying the title then asserted and from setting up his after-acquired title against it, although he signed the plat as “trustee;” and being estopped, his devisee, who stands in his shoes, is likewise estopped.
    Appeal from St, Louis City Circuit Court. — Eon. William M. Kinsey, Judge.
    Affirmed.

      T. J. Rowe for appellant.
    (1) Deeds and other conveyances without seal, from 1816 to 1893, were void. Plats without seal during the same time were void. An instrument in writing, not under seal, which the law requires to be under - seal, will not operate as an estoppel. G. S. 1865, ch. 109, sec. 7, p. 444; Shelton v. Alcock, 11 Conn. 249; Davis v. Tyler, 18 Johns. (N. Y.) 492. (2) Non-user of a public highway for a period of ten years, continuously, is an abandonment. R. S. 1909, sec. 10446; R. S. 1899, sec. 9472; R. S. 1889, see. 7847; Johnson v. Rasmus, 237 Mo. 586. (3) A public highway, road or street can only be established by dedication, condemnation or prescription. There is no such thing known to the law as establishment of a public highway by' estoppel. (4) The twenty-foot strip described in the petition was in St. Louis County until October 22, 1876, and it was never opened and repaired according to the provisions of Sec. 1, chap. 52, p. 290, G. S. 1865. (5) Where land is owned by several as co-tenants, no dedication will be valid unless all the co-tenants join therein. McBeth v. Trabue, 69 Mo. 656; City v. Gas. Light Co.. 78 Mo. 198.

      Charles H. Danes and E. A. Hamilton for respondent.
    (1) A tenant in common may make a conveyance of his interest by metes and bounds in part of land held in common and said conveyance is valid, not only as to the grantor, but as to his co-tenants. Barnhart v. Campbell, 50 Mo. 597; St. Louis v. Laclede Gas. Light Co., 96 Mo. 197; Cordier v. Brown, 98 Mo. 666. (2) A t person who conveys land or dedicates the same to public use, either individually or in a representative capacity, is estopped to set up a title adverse to that purported to be conveyed by his grant or dedication, and an after-acquired title will inure to the grantee in a deed, or to the public, if the instrument be a dedication of a street. Eeid v. Board of Education, 73 Mo. 295; Kansas City Milling Co. v. Eiley, 133 Mo. 574; E. S. 1909, sec. 2871; City of Napa v. Howland, 87 Cal. 84; Cincinnati v. Lessee of White, 31 U. S. 440; Poor v. Eobinson, 10 Mass. 131; Brock v. Eogers, 184 Mass. 545; Wells v. Steckelberg, 52 Neb. 597; Forney v. Calhoun Co., 84 Ala. 215; 11 Am. & Eng. Encyc. of Law (2 Ed.), p. 397; Elliott on Eoads and Streets (3 Ed.), see. 159. (3) A party may by his conduct adopt a plat and approve an unauthorized dedication of a street shown thereon and after such adoption and approval will not be heard to deny the validity of the dedication of such street, and user by the public need not be for the statutory period of limitation — ten years. Longworth v. Sedevie, 165 Mo. 222; McGrath v. Nevada, 188 Mo. 102; Laclede-Christy C. P. Co. v. St. Louis, 246 Mo. 446.
   BROWN, C.

This is ejectment, instituted February 27, 1912, in the circuit court for the city of St. Louis, to recover a strip of land in said city twenty feet wide, extending one thousand, one hundred and seventy feet north and south from the north line of Manchester Eoad to the south line of Bischoff Avenue, and bounded on the west by a line at all points thirty feet east of the west line of Cooper Street.

This land was in St. Lonis County up to the time of the adoption of the Scheme and Charter, October 22, 1876, by which it was included in the city.

The defendant city claims the land as a part of Cooper Street, and in its answer admits its possession, and denies the other allegations of the petition. As an affirmative defense it pleads that the strip of ground was dedicated to public use as a public highway, by a plat of dedication executed May 26, 1868, and filed in the recorder’s office of the city of St. Louis on or about the tenth day of June, 1869, by John H. Bobb, now deceased, and William C. Jamison, as trustees, and by Julia A. Letcher and Julia A. Ashbrook. That said parties stated in the dedication that they were owners of the said strip and that the dedication was accepted by the public and thrown open to public use, and has ever since been openly and notoriously used as a part of the street and that plaintiff is barred of whatever right he might otherwise have by the Statute of Limitations. As a second special defense it pleaded that about May 26, 1868, the said Bobb and William C. Jamison, trustees, together with Julia. A. Letcher and Julia A. Ashbrook, executed a plat dedicating the strip to public use forever, as a public highway known as Cooper Street, and that in said plat and dedication they represented themselves to be the owners. That said plat was filed in the recorder’s office of the city of St. Louis on the 10th day of June, 1869, and that the city thereupon accepted said strip so dedicated as a public highway, and that it was opened and has been used as such ever since, and improved by the city by paving the roadway, putting in sidewalks, sewers, lamp posts and other improvements located thereon, by all of which the plaintiff is estopped from asserting title. For a third defense it pleads that since about the year 1869, the city has carried upon the public records of its street department Cooper Street as a public highway fifty feet wide between Manchester Road and Bischoff Avenue, and believing that it had good title and ignorant of plaintiff’s claim has improved the street upon said land at great expense to the public, all of which the plaintiff had knowingly and fraudulently permitted, and had thereby forfeited all right to complain, and is estopped from asserting it.

Isaac A. Letcher is the common source of title, having acquired the land in which this strip is included in 1838, and it is admitted that in 1862 the title had become well vested by deeds in Julia A. Letcher, his wife, and John Letcher, Robert F. Letcher, Jacob J. Letcher and Julia A. Ashbrook, his children, the last named having intermarried with one Levi L. Ashbrook. On August 6, 1862, Robert F. Letcher conveyed his undivided one-fifth of the ten acres to his mother, and Mrs. Ashbrook, who, on June 27, 1866, conveyed an undivided one-fifth of the ten acres to William C. Jamison and John H. Bobb for the sole use and benefit of Robert F. Letcher for life, and at his death to the use of Julia A. Letcher and Julia A. Ashbrook, and the survivor of them for life, and at the death of the survivor to the use and benefit of the children and descendants of Mrs. Ashbrook according to the law of descents and distributions, then to the heirs of Julia A. Letcher. The husband of Mrs. Ashbrook joined in this conveyance.

Up to June 10, 1869, Cooper Street between Mancheseer Road and Bischoff Avenue had been a public road thirty feet wide, including none of the land in controversy. On that day there was filed in the office of the recorder of deeds for St. Louis County, the plat of Fairmont Addition. It was signed by Julia A. Letcher and Julia A. Ashbrook and husband, and also by William C. Jamison and John H. Bobb as trustees, and dedicated, among other streets, Cooper Street fifty feet in width, which included the strip now in controversy. This plat and dedication was unsealed and constitutes the only express dedication of the land to public use as a street. The owners were then all in possession of said land. There was a fence, or at least the remains of a fence, between this strip and the thirty feet originally occupied by Cooper Street, until 1890, when it disappeared.

In December, 1870, Abraham Siegel and John H. Bobb had become owners in fee of the entire ten acres, and so continued until September 17, 1884, when Bobb conveyed his interest to Siegel, who remained in possession as owner until January 5, 1887, when he conveyed it to the Planet Property & Financial Company, which remained in possession as owner until 1904, when it conveyed to John H. Bobb. The defendant city took exclusive possession of the strip sued for in 1909, and has continued in possession ever since. There was some evidence of its use by the public before that time.

John H. Bobb died March 10, 1910, leaving a will by which he devised all his residuary estate, including any interest he may have had in said land at the time -f his death, to this plaintiff, who is his widow, and claims the property in question under the will. At the trial evidence was introduced relating to the possession and use of the property by the parties interested or claiming an interest therein, including the public.

The cause was heard by the court without the intervention of a jury, and numerous declarations of law in the nature of instructions were asked by the plaintiff, some of which were given as asked, others modified by the court and given, and others refused.

Both plaintiff and defendant requested the court in writing to state in writing its conclusions of fact as found by the court separately from its conclusions of law, in accordance with the provisions of Section 1972, Revised Statutes 1909. This it did after stating the facts agreed upon by the parties, as follows: “From them the court concludes that the only fact or facts which it is expected to find relate to a right-of-way over the land in question, acquired by adverse user for a period of more then ten years before the commencement of this suit. Considering this testimony, while keeping in mind the fact that the public had already acquired a right-of-way over, a road thirty feet wide, and adjoining the land in question on the west, the court finds that a right-of-way over the land in question had not been acquired by the defendant by prescription or adverse user for more than ten years prior to the commencement of this suit.”

The court thereupon declared the law as follows: “The court, of its own motion, declares the law applicable to the facts in this case as follows, to-wit:

“First. "Where two or more persons, assuming to be the owners of land adjoining a public highway, undertake in the manner prescribed by the statutes of this State to dedicate a strip thereof for the purpose of widening said highway, and where the instrument signed by them purports on its face to be the act of the owners of said strip, and contains no limitations or exceptions as to the interest which it purports to dedicate, such an instrument is in the nature of a grant, and carries with it a representation or assurance of title in the nature of a warranty, especially where the owners of other tracts of land have joined in the same instrument for the purpose of widening, opening and dedicating continuous streets, according to a general plan. If the instrument so executed is defective, owing to the fact that one or more persons having an interest in common with the dedicators fail to join in the instrument, still it is binding upon those who do join, and if after so executing and recording such instrument those, or any of those who are joined therein, acquire the outstanding interest of those who did not join, the outstanding interest so acquired inures to the benefit of the grant, and renders the title of the grantee complete. In such case the dedicator who acquires an outstanding interest is estopped to maintain any claim for such outstanding interest as against a grantee in his deed of dedication.

“Second. And where one or more of the persons who join in the execution of a deed of dedication, in the circumstances mentioned in the foregoing declaration, in a representive capacity, as trustee, for example, and without, as here, disclosing for whom he assumes to act as trustee, such, person so acting in a representative capacity cannot acquire an outstanding interest in his own individual right, and successfully make a claim thereto as against the grantee. In other words, one acting in a representative capacity is estopped in the same manner and to the same extent as if he acted in his own right.

“Third. It appears from the agreed statement that John H. Bobb, who joined in the deed of dedication as trustee, on March 16, 1910, by mesne conveyance, acquired the outstanding interests of John Letcher, Jacob J. Letcher and Robert F. Letcher, if any he had, in the land in question, and who did not join in the deed of dedication. John H. Bobb was then estopped to maintain any claim based upon the outstanding interest which he had thus acquired as against the grantee in the deed of dedication to which he was a party, and his devisee, Clara P. Bobb, the plaintiff herein, is likewise estopped.

“It follows, therefore, that judgment must go in favor of the defendant.” To which declaration of law the plaintiff duly excepted.

Judgment was thereupon entered for defendant and this appeal duly taken.

I. The appellant insists that dedications to public use by a plat made pursuant to the provisions of Chapter 44, General Statutes 1865, are void if unsealed. This gea] statute does not require the formality of a seal, either' in express terms or by implication. It has no connection with the subject treated in Section 1 of Chapter 109 of the same statutes, providing that “conveyance of lands or any interest therein may be made by deed . . . acknowledged and recorded as herein directed, without any other act or ceremony whatever.” Chapter 44 provides with equal distinctness that dedications may be made by plat acknowledged and recorded as therein provided. Whether' they should be sealed was for the Legislature to determine.

LE. The case is ejectment for a strip of land twenty feet wide claimed by the defendant city as being the east twenty feet of Cooper Street. It claims the right to possession both by dedication and adverse possession, and both issues were tried without a jury, After the evidence had been introduced both parties requested the court to state in writing its conclusions of fact separately from its conclusions of law, which it did, finding for the plaintiff upon the question of possession and use of the land as a public street for the period of ten years. This left only questions of law upon the admitted facts to be determined, and these were resolved in favor of the defendant. The plaintiff asked a number of instructions, which were refused or modified. Of this the plaintiff cannot complain, as the only issuable facts were determined in his favor and the questions of law involved appear fully upon the face of the record. [Kostuba v. Miller, 137 Mo. 161.]

III. In 1869 the land in question was included in a tract of ten acres in St. Louis County owned in com- ' mon by one Jamison and John H. Bobb, trustees for Robert F. Letcher and various successors in the use, together with Julia A. Letcher, John Letcher, Jacob J. Letcher and Julia A. Ashbrook, the wife of Levi L. Ashbrook. On June 10th of that year the plat of “Fairmont Addition” was filed in the office of the recorder of deeds for St. Louis County, in which the land was situated. It complied in form in all respects with the provisions of Chapter 44, General Statutes 1865, dedicated the strip of land in controversy to public use as a part of Cooper Street, which was shown upon the plat and in the dedication as a street fifty feet wide, was signed by Julia A. Letcher, Julia A. Ashbrook and husband and also by William C. Jamison and John H. Bobb, as “trustees,” and stated that the signers were the owners of the ten acres of land included by them in the plat. It was not signed by either John Letcher or Jacob J. Letcher.

This instrument is the foundation upon which the possessory right of the city stands in this appeal. At the time it was executed and filed Cooper Street was, and had for a long time been a public road legally established by the county court, fenced by the abutting owners, and travelled by the public as such. In 1876 it was incorporated within the city and became a part of its system of public streets. If the facts stated in the plat were true, the city became invested with the title and might appropriate it to the use whenever the public should require it. This quality was inherent in the very nature of the use, and was fully recognized and guaranteed by the terms of Section 7, Chapter 191, General Statutes 1865, which provided that “nothing contained in any Statute of Limitation shall extend to any lands given, granted, sequestered or appropriated to any public, pious or charitable use.” Having acquired the land in perpetual trust, it could only be abandoned by an act as deliberate as that by which it had been acquired. The Act of 1887 (R. S. 1889, sec. 7847) was not intended to apply to such titles, and does not purport to apply. It is unthinkable that the Legislature should enact that in every city addition the streets and alleys not opened within ten years should be automatically closed and revert to the dedicators. It is unnecessary to devote time and space to examples of the absurd results such an enactment would produce. This question has recently been discussed and determined by this court in Robinson v. Korns, 250 Mo. 663, and Caruthersville v. Huffman, 262 Mo. 367, in which we reached the result just stated.

IY. But the matters stated in this plat were untrue, for the dedicators who signed it were not the owners, or, as they are designated in the law under which they were attempting to act, the “proprietors” of ^ eirj¿re owners of two undivided fifths of the tract had nothing to do with it. As to them, at least, the dedication had not been operative.

It is said by some wise person that eyery lie, in its very nature, requires a truth to be lied about. In this case the truth about which the statement was made was the title to the land.

After flitting in and out and around Mr. Bobb for thirty-five years it finally settled upon him and, in 1904, he became seized of the title in fee simple and remained the absolute owner until his decease in 1910. The truth asserted itself, and the untrue became true. It’ is unnecessary to refer to Mrs. Bobb, his devisee and appellant here, because it is not questioned that she stands in the same relation to the title as would her deceased husband were he living and prosecuting this suit. The question is thus presented whether he could, if living, successfully claim the title as against this dedication. In answering it, it is unnecessary to notice that he executed the instrument as “trustee.” The interests of his beneficiaries are not involved. The execution of the plat and the statement that the signers were the owners was, in law, an assertion not only that they had the title, but of power to perform the act. The sole question is whether by the execution of the plat Mr. Bobb was estopped from denying the title which it asserted and upon which it rested. The statute under which the declaration was made must be looked to for the answer. It provides (Gr. S. 1865, ch. 44, sec. 1) that the plat shall set forth and describe “all the parcels of ground within such . . . addition reserved for public purposes, by their boundaries, course and extent, whether they be intended for avenues, streets, lanes, aiie.vs, commons or other public uses.” It further provides (Sec. 8) that such plat “shall be a sufficient conveyance to vest the fee of such parcels of land as are therein named, described or intended for public uses in such city, town or village, when incorporated, in trust and for the uses therein named, expressed or intended, and for no other use or purpose. If such city, town or village shall not be incorporated, then the fee of such lands conveyed as aforesaid shall be vested in the proper county in like trust.”

There can be no doubt that under this statute the plat made in pursuance of its terms constituted a grant of this particular land to St. Louis County and that when it was incorporated in the city the title passed with it. The statute designates the instrument as a “conveyance” and we can see no l'eason why it should not have the same effect as a divestiture of the dedicator and investiture of the public in the title and its incidents to the extent provided, including the quality of estoppel, that inheres in any other grant or conveyance. The reasons for the application of the doctrine of estoppel in cases of this character seems much stronger than those which apply to private grants, because there is not only a public interest involved, but every person becoming a proprietor upon the faith of the dedication has a private interest in the title which supports it; yet it is a well settled general principle that no man shall be allowed to dispute his own solemn deed by saying that he had no interest in the land at the time of his conveyance. [2 Am. & Eng. Ency. Law (2 Ed.), p. 392, and authorities cited.] This rule applies with still greater force and reason against one who makes a personal claim against his conveyance made in a fiduciary capacity. [Id. p. 397.] We see nothing in the Missouri cases cited by the appellant which bears upon the facts of this case, unless it be the remark of this court in City of St. Louis v. Laclede Gas Light Company, 96 Mo. l. c. 198, to the effect that “perhaps one tenant in common may himself be estopped to deny his grant of an easement in the common property; but he cannot create an easement in such property as against his co-tenant.” This is the precise position we are now taking.

We hold that by the representation of title expressly made by Mr. Bobb in the act of dedication executed by him' in 1869, as well as by the representations necessarily implied by the character of that instrument, he was estopped from setting up his after-acquired title against it, and that this appellant, his devisee, is bound thereby. It necessarily follows that the judgment of the circuit court is affirmed.

Bailey, G., concurs.

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

all concur; Bond, J., in result only.