author: WOODSON, J.

text:
    WILLIAM FRISBY et al., Appellants, v. ST. LOUIS TRANSIT COMPANY.
    Division One,
    November 25, 1908.
    1. APPELLATE PRACTICE: Statement to Jury: Not Preserved. If the statement of defendant’s counsel to the jury in which he admits that defendant owned the street car at the time of the accident, is not preserved in the bill of exceptions, it cannot on appeal be considered for the purpose of showing such necessary-fact or for any other purpose.
    2. NEGLIGENCE: Ownership of Car: Must Be Shown, The evidence should support the allegations as to the ownership and operation of the cár at the time of the killing of plaintiffs’ son, and should show defendant, and not another company, to be liable. These facts need not be established by direct and positive testimony, but may be shown by reasonable inferences to be drawn by the jury from the facts and circumstances appearing in the evidence and trial. But the fact that defendant filed an answer in the nature of a general denial and that its counsel appeared and defended the suit is not a circumstance tending to establish such fact; and if there are no other facts or circumstances shown by the record from which defendant’s ownership and operation of the car can be inferred, the court, on plaintiffs’ appeal, will sustain the involuntary non-suit.
    Appeal from Audrain Circuit Court. — Hon. Jas. D. Barnett, Judge.
    Affirmed.

      Boyle dk Priest and T. M. Pierce for respondent.
    At the trial below appellants did not prove that the car doing the mischief to the plaintiffs’ son was operated by this respondent. Appellate courts from •time to time have held that very slight evidence as to ownership' is all that is necessary, but under the most liberal construction of appellate practice there must be some evidence, be it ever so vague and slight. The principle that insufficient evidence as to ownership, when unchallenged at the trial, will not be scrutinized too closely on appeal, has been recognized in the following cases: Kerr v. Railroad, 113 Mo. App. 1; Geiser v. Railroad, 61 Mo. App. 4591; Johnson v. Railroad, 104 Mo. App. 588; Walsh v. Railroad, 102 Mo. 582; O’Keefe v. Railroad, 124 Mo. App. 619. The rule, however, that ownership must be proved by some evidence is unchanged and inflexible. Appellants, in their pleadings, alleged that the respondent’s car was operated by its servants, but they offered no evidence in support of this allegation. Until proof was offered to fix liability upon respondent, no occasion arose for it to offer evidence. Having wholly failed to establish by proof the mateidal allegations of their petition, the peremptory instruction should have been given. 17 Ency. PI. and Pr., 598; Edmunds v. Railroad, 3 Mo. App. 602.

      Wm. L. Bohnenlcamp for appellants in reply; Fry <& Rodgers of counsel.
    (1) Respondent contends that appellants did not prove that the car which' killed plaintiffs ’ son was operated by respondent. In this connection counsel for respondent cites Missouri cases in which the question of "failure to prove ownership” was involved and in which the appellate courts of this State have held that direct proof of ownership is not necessary. Respondent’s counsel admits that the appellate courts of this State have held from time to time that very slight evidence as to ownership is all that is necessary and that the principle has been recognized that insufficient evidence of ownership', when unchallenged at the trial, will not be scrutinized too closely on appeal, "but contends that there is no evidence offered by appellants to show ownership. It is true that there is no direct proof of ownership, no doubt because that fact was conceded by defendant’s counsel in his opening statement to the jury, but, aside from the opening statement to the jury, the record before this court is full of evidence and conduct on the part of defendant’s counsel, from which the jury could well infer that defendant (respondent) was the owner of the car in question and the car that did the mischief. ■ The following cases so hold: Walsh v. Railroad, 102 Mo. 582; O’Keefe v. Railroad, 124 Mo. App. 619; Kerr v. Railroad, 113 Mo. App. 1; G-eiser v. Railroad, 61 Mo. App. 459; Johnson v. Railroad, 104 Mo. App. 588; Keltenbaugh v. Railroad, 34 Mo. App, 152. (2) Respondent cannot try the case below on the assumption that it owned- and operated the car in question and then on appeal try the case on the theory that it did not own and operate the car. Iluss v. Hyde Bakery Co., 108 S. W. 66. The demurrer at the close of plaintiffs’ case was argued pro and con at length, parts of cases were read to the court and the facts discussed by both sides. Plaintiffs’ contention was that defendant was guilty of negligence in the manner stated in their brief and defendant, contended that it was not negligent, but that plaintiffs’ boy was. And never was there a word said about the failure of direct proof of ownership, and again when the motion, to set the nonsuit aside was argued at a subsequent term, not a word of a failure to prove ownership was said, until at the close of this argument, when the court said: “Have you gentlemen ever thought of the fact that there was no direct proof of ownership in this case, and what effect it would have if I were to sustain the motion to set the nonsuit aside?” The court was the first to speak of it, and not until at the close of the arguments on the motion to set the nonsuit aside. Then after calling the court’s attention to the witness Hurt’s testimony and the conduct of defendant’s counsel and the opening statement made by counsel on both sides, the court said that he would not overrule plaintiff’s motion on that account. This is not in the record, but I do not believe respondent’s counsel will dispute that this was said and done. The question of ownership was certainly unchallenged at the trial of this case, and, therefore, according to the contention of respondent’s own counsel in his brief, ownership is sufficiently established in this case. That insufficient evidence as to ownership, when unchallenged at the trial, will not be scrutinized too closely on appeal is well settled by the appellate courts of this State. Walsh v. Railroad, 102 Mo. 588; O’Keefe v. Railroad, 124 Mo. App. 619; Johnson v. Railroad, 104 Mo. App. 594.
   WOODSON, J.

This suit originated in the circuit court of the city of St. Louis, and upon a change of venue the cause was sent to the circuit court of Audrain county. The suit was instituted by plaintiffs to recover of defendant the sum of $5,000 damages sustained by them for the alleged negligence in killing their minor son on the 29th day of September, 1903. There was a trial had before the court and jury, and at the close of plaintiffs’ evidence defendant asked and the court gave an instruction in the nature of a demurrer to the evidence. Thereupon plaintiffs took a nonsuit with leave to move to set same aside, and after failing in that regard they appealed the cause to this court.

At the very threshold of this case we are met with the contention of the respondent that there is no evidence contained in the record which tends to show that the deceased was killed by one of its cars, or that it owned or operated the car which struck and killed the plaintiffs’ son.

It is conceded by counsel for appellants that there is no direct or positive evidence which tends to show that the respondent owned or was operating the car at the time the boy was struck and killed, but he contends that such ownership may be shown by reasonable' inferences to be drawn by the jury from the facts and circumstances appearing in the record. As an abstract legal proposition that is unquestionably true. [Walsh v. Railroad, 102 Mo. 582.] But the trouble with applying that rule to the facts of this case is the total absence from the record of all facts and circumstances from which such inferences could be reasonably drawn.

It is first insisted by counsel for appellant that the opening statement made to the jury by counsel for respondent virtually concedes the ownership of the ear, and that such concession was sufficient to carry that issue to the jury. If the statement referred to had been preserved in the record, then, unquestionably, it would have been sufficient evidence from which the jury might have reasonably inferred ownership on the part of the respondent; but, unfortunately for appellants, upon an inspection of the record we find that the statement is not incorporated or preserved in the bill of exceptions, and for that reason we have no authority to consider it for any purpose whatever upon this appeal. [Priddy v. Hayes, 204 Mo. 358.]

Counsel for appellants have with great care condensed or abridged all the evidence contained in the record from which he contends the jury might have reasonably drawn the conclusion that the respondent owned and operated the car at the time the boy was killed. That abridgment is as follows:

“Defendant’s counsel on cross-examination of one of plaintiffs’ witnesses asked the following question:
“And you looked forward and the boy had come right on the track in front of the car? A. Yes, sir; the motorman hallooed ‘ Oh, ’ he was just a foot away.
“Q. Just a foot away from the track? A. Yes, sir.
“Q. And the motorman did all he could.to stop the car. A. To shut the power. Yes, sir.
££Objection by Mr. Miller (one of defendant’s counsel): The defendant moves to strike out that part of the answer which says the car was going- at full speed, because it’s indefinite, doesn’t specify anything.
££Objection by Mr. Robertson: We object for the reason that the accident is not predicated in any way on the speed of the car and there is no evidence to show what would be an unlawful speed or unreasonable speed or anything- bearing on the subject at all.
“The Court: I don’t understand the inquiry is made with a view of showing that the speed was unlawful, but simply to show the surroundings.
“Mr. Bohnenkamp : That’s all, if the court please, and we want to show with reference to stopping the car.
“Mr. Robertson: We also object because we don’t think he is sufficiently qualified to be an expert on that subject.
“Respondent’s counsel on cross-examination asked this question: And you saw this car coming to the north? A. Yes, sir.
£ ‘ Q. Now you looking down that way, saw the car coming up? A. Yes, sir.
££Q. , And you saw the boy coming along walking from the west track to the east track? A. Yes, sir.
“Q. You were riding north on this car? A. Yes, sir.
“Q. Now, you had-your back turned; you wasn’t looking in the direction of the car. A. No, sir.”

Mr. Hurt testified that he had operated cars in St. Louis and that he was familiar with the type of cars that were being operated on Broadway at the time that appellants’ boy was killed. After further questioning the witness as to the description and equipment of the Broadway cars Mr. Robertson (defendant’s counsel) interrupted by saying: “That’s cars generally — not this car.”

Mr. Bohnenkamp : I asked about the Broadway cars.
“Mr. Robertson: There’s a hundred cars on Broadway; there may be different kinds of cars on Broadway.
‘ ‘ The Court : Qualify him as to the types if there are more than one.
“Q. "Were there more than one type used on Broadway? A. Yes; I guess there’s about three different kinds of cars.
“Q. I mean as far as equipment is concerned? A. Oh, no; it’s the same equipment; they use the general electric system.”

Mr. Robertson objected to a hypothetical question: “Well, hold on; there’s not sufficient elements; in the first place the grade is not fixed; it’s a pretty fair grade.

‘ ‘ The Court : He has seen the grade.
“Mr. Robertson : I know, but still he hasn’t given it so anybody else can see it; the jury must see it, the court must see it; it must go into the record, and then not a word is said about speed.
“Mr. Miller: The further objection that the witness has testified to several grades of cars, as many as three, that were operated on Broadway, unless he. is able to state that this car was one of those particular grades and state what car that was, the character of the car, the testimony is inadmissiblé because it does not show the size of the car, the weight of the car, the condition of the car with reference to passengers thereon, which must make a very material difference; the proper conditions have not been submitted to this witness.
“The Court: He inquires as to these various grades of cars.
“Mr. Bohnenkamp: He said the equipment was the same. I will ask him this further question, if the court please: Q. The type of car that you refer to, there being no difference in the equipment, does that make any material difference in the way — affecting the starting and stopping? A. Oh, no; some cars, they take an old car and repair it up and make a new car and some shorter than others, some longer, some heavier than others; that’s what I mean by different grades of cars; they are all the same type of motor and controller.
“The Court: What effect, if any, does that have on stopping the car? A. Doesn’t have any effect, I know of; some cars are lighter; of course, the lighter car could be stopped easier.
‘1Q. You are familiar with the cars used on Broadway? A. Yes, sir; the twenty-one hundred type.
“Q. That’s the way they number them, by the numbers; a certain line has certain numbers? A. Yes, sir; Olive street- is three hundred.
“Q. And no other cars than that type run on Broadway? A. Not at that time I don’t think.
“Mr. Bohnenkamp: Now, as far as the type of the car is concerned I think he has qualified on that; with reference to the passengers on the car we will see what we can do on that and I will withdraw this witness.
“Q. That’s the way they number them, by the numbers; a certain line has certain numbers? A. Yes, sir; Olive street is three hundred.
“Defendant’s counsel, Mr., Robertson, makes this objection to a hypothetical question: We object to that question; it’s not composed of sufficient elements; I tried a case up here once and I remember they said there were two kinds of motors; there are two-motor cars and four-motor cars; the more force there is the more power there is, the more power there is to stop with.
“The Court: The witness has already said there, was only one kind on that line.
“Mr. Robertson: He said generally, but he didn’t know for certain; may I ask him a question?
“The Court: Yes, sir.
‘ ‘ Q. Du yon know what kind of car this was ? A. No, sir.
“Q. You .are just speaking of cars generally that run on Broadway? A. Yes, sir.
“Q. Do you know whether they are two-motor or four-motor cars? A. Most of the cars were motor cars at that time.
“Q. Some were four-motors, wasn’t they? A. I don’t think at that time.
“Q. What was your opportunity for observation of the cars on Broadway running north and south? A. I crossed the street eighteen times a day.
“Q. Well, you made no inspection of'the' cars? A. Oh, yes; we have to look at them you know.
“Q. Well, you didn’t get onto them and see how many motors and didn’t see how they were equipped; you don’t know what number this car was? A. No, sir.
“Q. What numbered car was it; they had other type cars, didn’t they; they had a series of cars? A. Yes.
“Q. Those are different-sized cars? A. Yes, sir.
“Q. And different make-up¡? A. Yes, sir.
“Q. You don’t know what size this car was? A. No, sir.
“Q. All you aim to say is that they generally run the type of twenty-one hundred at that time? A. Yes, sir.
“Q‘. But they may have run others there you don’t know anything about? A. They may have run others at that time; yes, sir.
“Mr. Robertson : We object.
“The Court: Q. Were you familiar with the type running on Broadway at that time? A. About that time, yes, sir.
“The Court: You may answer the question.
“Mr. Robertson: We object for the reason his familiarity with the type would not be sufficient because he doesn’t know this particular car and he said in cross-examination that other cars might have run there as far as he knew.
“Mr. Bohnenkamp: They may have had a mule car on that track as far. as that’s concerned sometime during the day.
“Mr. Robertson: No, they didn’t, a mule had to get out of the way of electricity.
“The Court: Answer the question.”

At the bottom of page 47 of the abstract witness Hurt in answrer to a question about the motorman operating the fender on the car, said:

“Yes, there’s a fender, he pulls a lever and drops; it’s another kind of fender; I don’t think they use them though; they were trying several kinds at the time I quit, and I believe they adopted this one I speak of, the one you run up> against the fender, the lower fender or life fender drops on to the rail.
“Defendant’s counsel objects to the offer of the fender ordinance in evidence, and says': This ordinance is entitled, ‘Fenders to be provided, approval of;’ the petition charges that we complied with that ordinance, therefore the ordinance is wholly immaterial.”

After a very careful consideration of all of this evidence, we are unable to see how it could be inferred therefrom that the car in question was owned or was being operated by the respondent at the time it struck and killed appellants’ son. All of that evidence would apply equally as well to the Suburban Railway Company or to any other company operating a street ear system in the city of St. Louis.

The street car tracks on Broadway and the cars which were being operated thereon at the time of the injury might have belonged to any of the latter companies, at least there is nothing in. the evidence which shows anything to the contrary except the mere fact that counsel for respondent conducted the trial of the cause. If that fact alone constituted sufficient evidence from which the inference of ownership might be drawn, then in no case where a defendant appears in a cause by counsel could such a failure of proof ever be successfully raised, because the inevitable answer would be, why are you defending the cause if you and your car did not cause the injury? Yet the books are full of cases which hold that “the evidence should support the allegations as to ownership and operation of the train and road at the time of the injury, and should show the defendant, and not another company, to be liable.” [17 Ency. Plead. and Prac., 598.] “In an action for damages, where it does not appear from the pleadings and evidence that the car, by which plaintiff was injured, was in use by defendant, and where it is not shown that the car was running on defendant’s railway, and where the connection between defendant and those in charge of the car is not shown, plaintiff cannot recover.” [Edmunds v. Railroad, 3 Mo. App. 602, 603.] The same rule has been announced in the following cases: Kerr v. Railroad, 113 Mo. App. 1; Geiser v. Railroad, 61 Mo. App. 459; Johnson v. Railroad, 104 Mo. App. 588; Walsh v. Railroad, 102 Mo. 582; O’Keefe v. Railroad, 124 Mo. App. 619.

It must follow from these observations that the action of the trial court in sustaining the demurrer to appellants’ evidence was proper, and that the judgment of the circuit court should be affirmed.

.It is so ordered.

All concur.


source: Caselaw Access Project

author: GRAVES, J.

license: Public Domain

text:
    THE STATE ex rel. WILLIAM J. GAVIGAN, Appellant, v. BERNARD DIERKES, Auditor of St. Louis.
    Division One,
    November 25, 1908.
    1. LEGISLATIVE POWER: One Branch. One house of a municipal assembly can make an investigation into the subject of municipal taxation, and has the right to designate a committee for that purpose. But one house cannot by resolution create a position and attach thereto a salary to be paid out of the city funds. It cannot create a committee and in the same resolution provide for a clerk, designate his compensation, and authorize the committee to employ him.
    2. -: -: Contract. One house of a municipal assembly cannot by resolution make a valid contract. The creation of salaried positions, as well as the expenditure of public funds, is placed in the hands of the whole legislative department, to which there is coupled the restraining veto power of the mayor.
    3 -: -: -: Employment of Private Persons: No Ordinance. Section 6759, Revised Statutes 1899, providing that ‘.‘no city shall make any contract, unless the same . . . be made upon a consideration wholly to be performed or executed subsequent to the making of the contract; and such contract, including the consideration, shall be in writing and dated when made, and shall be subscribed by the parties thereto,” and section 7, article 16, St. Louis charter, providing that “all contracts relating to city affairs shall be in writing, signed and executed in the name of the city, by the officer authorized to make the same, after due notice; and in cases not otherwise directed hy law or ordinance, such contracts shall be made and entered into by the Comptroller, and in no case by the Assembly or any committee thereof,” are a complete bar to the power of one house hy mere resolution, appointing a committee of investigation, to provide therein for a clerk to he paid $200 per month, and to he appointed hy the committee. Since such clerk is a private person, the only method to create a valid contract binding the city to pay for his services is hy an ordinance providing for such character of work, to he entered into in the method prescribed by the statute and charter.
    4. -: -: -: -: Implied Power. Even though in its power to appoint a committee to make an investigation there was an implied power authorizing the one house to make a contract with the committee’s clerk for his services to the city, that power must he exercised in pursuance to the terms of the statute and charter, and unless the contract is so made the city is not hound to'pay the clerk.
    5. APPROPRIATIONS: Specific: “Other Expenses.” An appropriation ordinance, to authorize the city auditor to pay a warrant for services performed for the city, must he specific and definite as to the officer to he paid or the work to he paid for. An appropriation for “other expenses of the House of Delegates” is not sufficiently specific to authorize the auditor to draw a ■warrant for a clerk of a committee of investigation appointed hy the House. The words, “other expenses,” under the rule of ejusclem generis, mean expenses of the character mentioned in the clause with which they are connected, namely, “publishing, printing, stationery, office expenses, furniture, rent of telephone and other expenses of the House of Delegates.” .
    Transferred’from St. Louis Court of Appeals.
    Affirmed.

      Rassieur, Schnurmacher S Rassieur for appellant.
    (1) The House of Delegates had the power, hy means of a committee, to make the investigation which resulted in the employment of relator. Charter, art. 3, see. 31; In re Dunn, 9 Mo. App. 255; sec. 1314 * Rev. Mun. Code City of St. Louis, 1901. (2) (a) The express grant of power thus conferred upon the House hy the charter, carries with it, hy necessary implication, the right to employ all such means as may he requisite or needful to make the grant or power effect.ual, and to carry it into execution. G-roner v. City Council of Portsmouth, 77 Ya. 488; City of Richmond v. Dickinson, 155 Ind. 345; Ellis v. Washoe Co., 7 Nev. 291; Smith v. Sacramentq, 13 Gal. 531; Egan v. Chicago, 5 111. App. 70; City of Memphis v. Adams, 56 Tenn. 518; Sargent v. Inhabitants of Bristol, 2 Hask. 112; Burton v. Norwich, 34 Yt. 345; Stewart v. Council Bluffs, 58 la. 642; Rockebrandt v. City of Madison, 9 Ind. App. 227. “Where an express power is given, all the power necessary to carry it into effect is implied. That which is implied is as much a part of the statute as if written therein.” State ex rel. v. Railroad, 164 Mo. 208. (b) No officer of the city was required, in the discharge of his official duties, to render the committee the services it procured from relator. The committee required these services, and, therefore, had the power to obtain them from relator. (3) The House approved relator’s bill, and directed the clerk to draw a voucher therefor on the Auditor. The funds in the hands of the Auditor were applicable to the payment of relator’s demand. The appropriation ordinance set aside funds “to cover expenditures of the current fiscal year, including bills unpaid at the beginning of the fiscal year.” Expenditures is here used in the sense of disbursements or' outlays during the fiscal year, and not merely in the sense of expenses incurred during the fiscal year. Webster’s Dictionary, “Expenditures;” Worcester’s Dictionary, “Expenditures;” Anderson’s Dictionary of Law, “Expenditures;” 12 Am. and Eng. Ency. Law, 394; Sullivan v. Min. Co., 39 Cal. 459. (4) The charter provision limiting the annual salary of clerks to $1,800 has no application to relator. It applies only to the regular staff of clerks in the various departments of the city government whose duties are more or less permanent and who perform services which are required month in and month out, and not to casual employment like relator’s.

      Charles W. Bates and Benjamin H. Charles for respondent.
    (1) The alleged contract of employment of the relator as a clerk was “without express authority of law,” and was therefore void. Constitution,'art. 4, sec. 48. (a) The House of Delegates has no powers except such as are specially conferred upon it. The power to contract is not conferred upon it by the charter; and this attempted contract of employment is therefore in conflict with the provision of the Constitution above cited, (b) The constitutional provision is violated because the alleged contract of employment was not in writing. Charter, art. 16, sec.' 7; R. S. 1899, sec. 6759; Woolfolk v. Randolph County, 83 Mo. 501; Crutchfield v. Warrensburg, 30 Mo. App. 456; Schell City v. Mfg. Co., 39 Mo. App. 264; Taylor v. School District, 60 Mo. App. 372. (c) The Constitution is violated by the alleged contract for the reason that it could be made and entered into “in no case by the Assembly or any committee thereof.” Charter, art. 16, sec. 7. (d) The Constitution is violated because the House of Delegates attempted to pay the relator a greater compensation than was permitted by the charter, art. 16, sec. 18. (2) The Auditor is expressly prohibited from allowing this claim. Charter, art. 4, sec. 21; art. 5, secs. 10, 11, 14; McQuillin’s Note, and authorities there cited, on Power and Duty of Auditor in Auditing Claims — Municipal Code of S:t. Louis, p. 236; Municipal Code, sec. 2282; State ex rel. v. Brown,,172 Mo. 382. Mandamus will not lie to compel the auditing of a claim for which there is no appropriation. State ex rel. v. Brown, 141 Mo. 28 ; State ex rel. v. Holliday, 64 Mo. 526, 65 Mo. 76.
   GRAVES, J.

On October 30, 1903, the House of Delegates of the city of St. Louis passed a resolution authorizing the appointment of a special committee of five from that body for the purpose of investigating the returns of property as made for taxation, and by this resolution the said committee was authorized to appoint a clerk at a salary of not more than $200 pei* month and one or more attorneys at a salary of not more than $350' per month each. This committee was appointed November 6, 1903, and the relator was named as its clerk, and under the evidence performed the work of a clerk for the committee. On April 8, 1904, the following resolution was passed by the House of Delegates:

“Tour Special Committee on Investigation of tax returns, heretofore appointed by this House on October 30, 1903, begs leave to report that in accordance with authority conferred on said committee, it did, on the 6th day of November, 1903, employ Peter T. Barrett as its attorney and counselor at an agreed compensation of $350, and Vm. J. Gavigan as its clerk at an agreed compensation of $200 per month, and on February 15, 1904, employed William F. Ryan as an additional attorney at an agreed compensation of $350 per month, and because of the expenses incurred thereby by your committee, we ask that your honorable House pass the following resolution:
“Resolved, That the Committee on the ‘Investigation of Taxes’ be and is hereby authorized to expend the sum of $3,615 out of the fund Municipal Assembly, House of Delegates, to defray the expenses already-incurred by your committee under said resolution.”

On April 15, the said committee made its report and the House of Delegates adjourned sine die. On July 15, at a subsequent session of the House of Delegates, the following resolution was introduced:

“Whereas, the Special Committee of the House of Delegates on Tax Investigation did on the 8th day of April, 1904, report to this honorable House that, in accordance with the authority conferred on said committee, it did, on the 6th day of November, 1903, employ Peter T. Barrett, an attorney, at an agreed compensation of $350 per month and William J. Gavigan, clerk and bookkeeper, at an agreed compensation of $200 per month, and on the 15th day of February, 1904, did employ William F. Eyan, an attorney, at an agreed compensation of $350 per month, and because of the expense thereby incurred by it the said committee requested this honorable House to authorize it to expend the sum of $3,615 to defray the same; and
“Whereas, This House did on said 8th day of April, 1904, authorize the expenditure of $3,615 to defray said expenses; and
“Whereas, The said Special Committee on Tax Investigation did on the 15th day of April, 1904, report to this honorable House that immediately upon the organization of said committee, to-wit, November 6, 1903, it employed Peter T. Barrett at an agreed compensation of $350 per month and Wm. J. Gavigan at an agreed compensation of $200 per month, and that on the 15th day of February, 1904, it did employ William F. Eyan at an agreed compensation of $350 per month; therefore be it
“Resolved, That the said Peter T. Barrett be allowed for his services to said committee the sum of $1,855, and that the said William J. Gavigan be allowed for his services to said committee the sum of $1,060, and that the said William F. Eyan be allowed for his services to said committee the sum of $700, to be paid out of the fund heretofore appropriated to pay the expenses of the House of Delegates and that the clerk of this House be instructed to draw warrants on said fund in favor of said Peter T. Barrett for $1,855, William J. Gavigan for $1,060 and William F. Eyan for $700.”

The respondent is the Auditor of the city of St. Louis. There was oral evidence introduced which tended to show the services of the relator as clerk of said committee, and that his services were reasonably worth $200 per month. The position of the City Auditor is well stated in his return to the alternative writ of mandamus. In this return he says:

“Defendant alleges that on or about the 3d day of October, 1904, the clerk of the House of Delegates drew his warrant in favor of relator for the sum of ten hundred and sixty dollars, and that said warrant was presented to defendant as Auditor of the city of St. Louis and that the defendant on or about the 25th day of October, 1904, declined and refused, and still declines and refuses, to audit and allow the same, and declines and refuses to draw a warrant for the same to pay the same.
“Defendant states that the House of Delegates did not possess the power or the authority under the law to authorize its said committee to make the alleged contract of employment of relator as clerk and the said alleged contract was and is void under the provisions of section 48 of article 4 of the Constitution of the State of Missouri.
“This defendant states further that under section 18, article 16, of the charter of the city of St. Louis no contract for services of any clerk could be entered into at a compensation exceeding the rate of eighteen hundred dollars per year; that is to say, exceeding one hundred and fifty dollars per month, and that the alleged employment of the relator as such clerk of the said committee of the said House of Delegates was without authority of law.
“This defendant states further that there is now no appropriation or fund, nor has there been any such appropriation or fund since the 1st of April, 1904, out of which the amount claimed by the relator could be paid, or against which this defendant as Auditor of the city of St. Louis could draw or allow a warrant therefor.
“Defendant states further that the defendant as Auditor of the city of St. Louis, is prohibited by section 11 of article 5 of the charter of the city of St. Louis from drawing or allowing a warrant in favor of the relator when there is no fund or appropriation against which such warrant could be drawn or allowed, or out of which it could he paid.
“Wherefore this defendant prays that the alternative writ be quashed, and the peremptory writ be refused, and that he he dismissed with costs.”

John Faudi testified in effect as follows:

“Am Second Deputy Auditor of the city of St. Louis. Testified that he had with him in court the daily balance book covering all appropriations for the city. The daily balance book is an .exact copy of the appropriation bill, from time to time. The different departments draw against it, and deductions are made showing balances every day. When the appropriation hill is passed, the credits are entered in that hook, showing the amount carried by the hill to the various departments and objects mentioned in the hill. A separate account is kept for each appropriation. Whatever the bill appropriates to the House of Delegates is credited to the House, and as warrants are presented to the clerk of the House, the same are debited against those credits; that is, against the account. By reference to the book the balance of appropriation to any particular officer or department can be ascertained any day. The appropriation hill which was approved and went into effect on May 14, 1904, appropriated to the Municipal Assembly a total of $39,716.25, of which $23,640 was- for salaries, $8,000' for office expenses and publishing proceedings of the council, $8,000 for office expenses and publishing proceedings of the House of Delegates, and $76.25 for unpaid bills. On May 14, 1904, $8,000 was credited to the House of Delegates for miscellaneous or general expenses. On October 3, 1904, there was to the credit of the House of Delegates, unexpended, out of that fund $4,85162. The $76.25 for unpaid bills was for one unpaid voucher in the office from, the previous fiscal year. That $76.25 covered no unpaid bills which had been vouchered and left over in the office. The claim of relator had not been vouchered at that time, and did not reach the Auditor’s office until October, 1904. On October 25, 1904, the Auditor declined to allow Mr. Gavigan’s bill or to draw any warrant therefor. On October 25, 1904, the day when the Auditor rejected the bill, there was to the credit of the House of Delegates for general expenses, a balance of $4,094.22.”

The appropriation ordinance for the year 1903-4 introduced by respondent, shows:

“Sec. 1. There are hereby appropriated and set apart out of municipal revenue, the amounts, and for the purposes, as hereinafter specified, tO' cover expenditures 'of the current fiscal year, including bills unpaid at the beginning of the fiscal year namely:
‘ ‘ Municipal Assembly:
For salaries of members and officers . .$ 23,640'.00
Publishing proceedings, printing, stationery, office expenses, furniture, rent of telephone and other expenses of Council ..................... 8,000.00
Publishing proceedings, printing, stationery, office expenses, furniture, rent of telephone and other expenses of House of Delegates .......... 8,000'.00
Bills unpaid at beginning of fiscal year 278.00
Aggregate $39,918.00.”

There was also introduced the appropriation ordinance for 1904-5 which it is agreed was the same in items as the one above set out except the last item was $76.25 instead of $278.

As stated above the oral evidence shows that relator did the work of a clerk and worked under the direction of the committee. The trial court denied the peremptory writ of mandamus and entered judgment against relator for costs. Timely motion for new trial having been overruled relator duly perfected his appeal to the St. Louis Court of Appeals. The case is here from that court by order duly made on account of .the constitutional questions involved in the return. Such are the issues for our consideration.

I. Eespondent charges the alleged contract to be without foundation in law.

It is first urged that the contract with relator is violative of the provisions of section 48, article 4, of the Missouri Constitution. This provision reads: “The General Assembly shall have no power . . . to pay nor authorize the payment of any claim hereafter created against the State, or any county or municipality of the State, under any agreement or contract made without express authority of law; and all such unauthorized agreements or contracts shall be null and void. ”

There is further invoked by the respondent section 7 of article 16 of the city charter, the applicable portion of which is in the following language: “All contracts relating to city affairs shall be in writing, signed and executed in the name of the city, by the officer authorized to make the same, after due notice; and in cases not otherwise directed by law or ordinance, such contracts shall be made and entered into by the Comptroller, and in no case' by the Assembly or any committee thereof.”

Respondent also- says the mandate of Revised Statutes 1899, section 6759', is preclusive of relator’s right to recover. This section, so far as need be quoted, reads: “No county, city ... or other municipal corporation shall make any contract, unless the same shall be within the scope of its powers or be expressly authorized by law, nor unless such contract be made upon a consideration wholly to be performed or executed subsequent to the making of the contract; and such contract, including the consideration, shall be in writing and dated when made, and shall be subscribed by the parties thereto, or their agents authorized by law and duly appointed and authorized in writing. ”

At the outset it will be well to notice that the legislative branch of the city is composed of two Houses, and the resolution before us is the act of only one. We can therefore have no situation like that of a city official in the position occupied by relator. No office could be created except by the act of both Houses of the Municipal Assembly. We take it further that there is no question as to the right of either branch of the legislative department to appoint a committee to investigate any subject-matter properly coming before it. [Charter, art. 3, sec. 31; sec. 1314 et seq., Rev. Mun. Code of City of St. Louis, 1901.]

Nor could it be well questioned that such committee could organize by the election of a chairman and clerk, but can it go outside of the committee and contract for the services of a clerk upon a mere resolution of the House creating the committee and providing for its selection and the selection of a clerk? The position held by relator was not one held by an ordinance duly passed by the legislative branch of the city government and approved by the mayor, but only by the resolution aforesaid. Can one branch of the legis-' lative department by mere resolution create a position and attach thereto a salary to he paid ont of the city funds? Or, further, can either branch of the legislative department make a valid contract for services, without the action of the other branch and of the mayor? Or, can such contract be valid without being in writing? If not, then is there such implied power in the charter and laws, as would authorize the resolution, so far as relator is concerned, and the contract, if such it could be called, as. indicated in the resolution? All of these are pertinent questions. Relator contends that there was power in the House of Delegates to make the investigation mentioned in the resolution. This we think correct, and as stated above, such body had the right to designate a committee for that purpose, but could either that body or its committee create a salaried position, or contract for services? To our mind there is no question that a salaried position cannot be created by resolution of one branch of the municipal legislative body. Such a proceeding is entirely out of harmony both with the spirit and letter of our law. Nor, do we think it less clear that one branch of the legislative department cannot by resolution make a valid contract. The creation of salaried positions, as well as the expenditure of public funds, is placed in the hands of the whole legislative department, there being coupled therewith the restraining veto power of the executive department. The resolution, therefore, created no legal position for relator, nor did it constitute a valid and binding contract under which he could act.

II. We think that inasmuch as relator was not a public official, but a private citizen, before there could be a valid and binding contract between him and the city, such contract must be one duly authorized by law and duly entered into in writing by the properly constituted authorities. In other words the relator being a mere alleged contractor for services with the city, the provisions of section 6759', Revised Statutes 1899, fully apply, as well as the provision of the city charter above quoted. If the city of St. Louis by proper ordinance had made an appropriation for this specific work, and authorized the appointment of a person to do it, then a different question might arise. Such, however, was not the case and this matter will not be discussed. No city ordinance appears in the record, except a general appropriation ordinance, which will be discussed in a further paragraph. The authority for the appointment of relator, as well as the authority to appropriate funds for him, specifically, only appears in this resolution. In our judgment, under the statute cited aforesaid, inasmuch as relator was not an officer, holding an office, created by ordinance, the only legal method for the authorization of his work would have been by ordinance providing for such character of work and providing for the execution of a contract as by the statute and city charter last aforesaid prescribed. The force and effect of this statute and its purposely .enacted restricting influence have been fully discussed by the courts, to which discussion we can add nothing. [Woolfolk v. Randolph County, 83 Mo. 501; Crutchfield v. Warrensburg, 30 Mo. App. 456; Schell City v. Rumsey Mfg. Co., 39 Mo. App. 264; Taylor v. School District, 60 Mo. App. 372.]

III. It is strenuously urged that inasmuch as there is legal authority for the House of Delegates to make such investigations, then there is an implied power in that body to employ the necessary means, although it require the expenditure of the public funds of the municipality for that purpose, and although it requires a contract either express or implied, with some person to do the work. Many cases from other States are cited, and some are forcibly in point, but an examination of those eases fail to show the constitutional and statutory inhibitions on municipal contracts, which we have, and for that reason the eases are not in point either in fact or in law.

But grant it that there was an implied power authorizing the House of Delegates to make a contract with relator for services to the city, yet, such power to contract, whether express or implied, must be exercised in pursuance of the terms of the statute and city charter quoted and in this case there is no such contract shown.

IV. There is yet a further reason fully justifying the conduct of respondent in refusing to audit the claim of relator. For the sake of the argument, grant it to be true that the legislative department could by appropriation ordinance prior to or after the work was done, pay relator for his services, yet have we such an ordinance in this case? We think not. The resolution it is true makes a specific disposal of a certain fund theretofore appropriated, by the appropriation ordinance, but this resolution cannot go beyond the scope of the ordinance. By the charter, article 5, it is provided: “No money shall be paid out of the Treasury except on the Auditor’s warrant, and no warrant shall be issued on any appropriation unless there is an unexpended balance to' the credit thereof sufficient to cover such warrant and money in the treasury to pay it.” And by section 14 it is provided: “No money shall be expended, nor shall any improvement be ordered involving the expenditure of money, except by ordinance, the provisions of which shall be specific and definite.”

Now take either of the two appropriation ordinances in evidence, for they are both the same in words, except as to the last clause, we have no specific appropriation for this work or for this relator. Relator contends that the words “other expenses of House of Delegates,” are sufficient to authorize the payment of this money out of the unexpended balance in that fund. The whole clause of the ordinance reads:

“Publishing proceedings, printing, stationery, office expenses, furniture, ' rent of telephone and other expenses of House of Delegates ..........$8,000.00.”

To our mind the rule of ejusdem generis fully applies here. The term “other expenses” means expenses of the character theretofore mentioned in that clause of the appropriation act and does not include an appropriation for work of the character performed by relator. To hold that it did include such would be to nullify the provisions of section 14, article 5, of the city charter, supra.

There are other questions raised which might be discussed, but these are sufficient for the final disposition of the case. The trial court was right and its judgment is affirmed.

All concur.


text:
    THE STATE ex rel. PETER T. BARRETT, Appellant, v. BERNARD DIERKES, Auditor of ST. LOUIS.
    Division One,
    November 25, 1908.
    For the reasons given in State ex rel. Gavigan v. Dierkes, ante, p. 578, the judgment in this ease is affirmed.
    Transferred from St. Louis Court of Appeals.
    Affirmed.

      Rassieur, Schnurmacher & Rassieur for appellant.

      Charles W. Bates and Benjamin H. Charles for respondent.
   GRAVES, J.

This is a companion case of the case of State of Missouri at the relation of William J. Gavigan v. Bernard Dierkes, Auditor, ante, p. 578. • Relator Barrett is one of the attorneys whose employment was attempted to be authorized by the same resolution under which Gavigan based his claim. A reading of the facts in that case will give the facts in this case, save as to the character of work performed. Barrett performed the services of an attorney for the same committee mentióned in the Gavigan case.

For the reasons assigned in the Gavigan case, the .judgment of the trial court is affirmed in this case.

All concur.


author: LAMM, J.

text:
    CECIL BERRY, a Minor, by Next Friend, DAVID W. HILL, v. ST. LOUIS, MEMPHIS & SOUTHEASTERN RAILROAD COMPANY, Appellant.
    Division One,
    November 25, 1908.
    1. DISMISSAL AS TO ONE DEFENDANT: Not Shown by Abstract. Where appellant’s abstract does not show a dismissal as to another railroad company made a codefendant at the institution of the suit for damages sustained on appellant’s turn- ' table, but does not purport to be a full transcript of all the record entries, and plaintiff does not furnish a counter or additional abstract, yet if the record shows that said codefendant took no appeal, that no judgment was rendered against it, that no proof was offered tending to show that plaintiff was injured through its negligence or that it owned or operated the railroad to which the turntable was appurtenant, the appeal will not be dismissed or the judgment reversed, because, first, absent a record showing one way or the other, the presumption is in favor of the regularity of the judgment, and, second, if appellant is liable at all it is liable for the whole harm done, even though its codefendant may also be liable.
    2. TORT: Liability of All Tortfeasors. If two or more railroad companies negligently injure plaintiff, each is liable for the whole damage done.

      3. NEXT FRIEND: Appointment: Proof. The issue of the appointment of a next friend cannot be raised by a mere general denial, and where the answer is a general denial there is no call on plaintiff to prove the appointment of his next friend. Where the petition alleges a given person is a lawfully appointed and duly qualified next friend, and there is no specific denial of that averment, it will be taken as admitted.
    4. EXCESSIVE VERDICT: $6,583.33..' The right ankle of the four-year-old boy was smashed, all the bones immediately above the ankle were splintered, the foot was left connected with the leg by a mere ligament, no perfect' union of the broken bones was formed, and he is left a deformed cripple for life. HelcL, that a verdict for $6,583.33 was little enough.
    5. CONTRIBUTORY NEGLIGENCE: Four-Year-Old Child. A four-year-old child cannot be guilty of contributory negligence, and the court should so declare as a matter of law.
    6. IMPUTED NEGLIGENCE. The negligence of a parent is not, in the infant’s suit, to be imputed to the child as a bar to the liability of a negligent defendant. The doctrine of imputed negligence is harsh and unsound when applied to an infant who sues in its own right.
    7. -: Assumed by Plaintiff: Theory of Trial. Although plaintiff’s own instruction assumed that the negligence of the mother was imputable to the plaintiff child, and put the case to the jury on that theory, the suit will not be considered on that theory on defendant’s appeal. Such instruction was more favorable to defendant than it was entitled to, and is not error of which it can take advantage.
    8. TURNTABLE: Trespasser: Child: Liability. Where defendant railroad company permitted its turntable, a dangerous machine and easily turned, and attractive to children, to remain unguarded and unlocked for a long time and knew that children habitually resorted to said place and used the turntable as a plaything, it is liable for injury to a child four years old, whose ankle, as the turntable was being revolved by the other children and he was riding round on it, was caught between a rail on the table and a rail on the spur track, although such child and the other children were trespassers. Such a machine is an attractive nuisance, and an implied invitation to children to play upon it.
    Appeal from Butler Circuit Court. — Eon. W. N. Evans, Judge.
    Ariurmed.

      W. F. Evans and James Orchard for appellant.
    (1) Y^e are aware of the attitude this court has taken in turntable cases, and that it is negligence per se to leave a turntable unlocked or unguarded, for the reason that the' same was attractive to children to go upon and play, and also the Supreme Court of the United States has in one ease ruled the same way. The doctrine, though, as this Court has remarked heretofore, has been very much modified in most of the States and also in this State. Our position in this case is that the courts in the different States holding that doctrine have followed blindly the decision of the United States Supreme Court without giving any intelligent reason for so doing. We think the greater weight of authority is with the courts in the different States who have declared against the rule and think they give the best reasons for their finding, and that their finding is based on better reason and common sense. Barney v. Railroad, 126 Mo. 387; Ruschenberg v. Railroad, 109 Mo. 112; Walsh v. Railroad, 145 N. Y. 301; Morrissey v. Prov. W. P. Co., 1 N. Eu 806; Ostertag v. Railroad, 64 Mo. 421; Moran v. Pullman Car Co., 134 Mo. 641; Overholt v. Vieth, 93 Mo. 422; White v. Stifel, 126 Mo. 295. (2) The negligence of parents in permitting or instructing children of tender years to go upon a turntable or any other dangerous place is negligence on the part of the parents, and such negligence is imputable to the child, and no recovery can be had. Stilson v. Railroad, 67 Mo. 671; 3 Elliott on Railroads, sec. 1259; Railroad Bill, 81 111. 76; Railroad v. Bockoven, 36 Pac. 322.

      Nathaniel G. Whaley and David W. Hill for respondent.
    (1) Defendant maintained the turntable unlocked and not otherwise secured, an attractive and dangerous machine in a populous place, adjoining public highways, where children frequented to play around and upon the table, to defendant’s knowledge, and the defendant thus failed to exercise that care which ought reasonably to be expected from an ordinarily prudent person under the same circumstances, and is therefore liable. 2 Thompson, Negligence, sec. 1827; Watson on Damages, sec. 235; Webb’s Pollock on Torts, pp. 46, 47, 48, 565 and 566; Whitaker’s Smith on Negligence; p. 63, and note; Nagel v. Railroad, 75’ Mo. 653; Koons v. Railroad, 65 Mo. 592; Dwyer v. Railroad, 12 Mo. App. 597; Newcomb v. Railroad, 169 Mo. 428; Kelley ,v. Parker-Washington Co., 107 Mo. App. 494; Railroad v. McDonald, 152 U. S. 262; Railroad v. Stout, 17 Wall. (U. S.) 657; Barrett v. Railroad, 91 Cal. 296; Callahan v. Railroad, 92 Cal. 89; Ferguson v. Railroad, 75 Ga. 637; Railroad v. Fitzsimmons, 43 La. Ann. 63; Keffe v. Railroad, 21 Minn. 207; Bridger v. Railroad, 27 S. C. 456; Evanisch v. Railroad, 57 Tex. 126; Railroad v. Styron, 66 Tex. 421; Railroad v. McWhirter, 77 Tex. 356; Brinkley Car Co. v. Cooper, 60 Ark. 545; City of Pekin v. McMahon, 154 111. 141; Siddall v. Jansen, 168 111. 43; Pensó v. McCormack, 125 Ind. 116; Price v. Water Co., 58 Kan. 551; Bransom’s Admr. v. Labrot, 81 Ky. 638; Powers v. Harlow, 53 Mich. 507; Mackey v. City of Vicksburg, 64 Miss. 777; Harriman v. Railroad, 45 Ohio 11. (2) The plaintiff having been of such tender age (four years), the law conclusively presumes him incapable of discretion, and refuses to impute to him contributory negligence. Fink v. Furnace Co., 10 Mo. App. 75. (3) The fa,ct that another child revolved the turntable does not relieve the appellant who failed to use due care in locking or otherwise securing the table. Nagel v. Railroad, 75 Mo. 661; Becke v. Railroad, 102 Mo. 547; Stotler v. Railroad, 200 Mo. 143.
   LAMM, J.

In the Butler Circuit Court, Cecil Berry, a child of four years, sued by his next friend in an action sounding in tort. He had judgment for $6,583.33, for personal injuries received'on defendant’s turntable. Failing to get a new .trial or arrest the judgment, defendant appeals.

I. The St. Louis & San Francisco Bailroad Company was made a codefendant at the institution of the suit. Appellant insists that the cause was not dismissed as to its said codefendant; contra, respondent insists it was so dismissed prior to submission. Appellant’s abstract does not show a dismisal,, neither does it purport to be a full transcript of all the record entries; neither does respondent furnish a counter or additional abstract. In this fix, with no claim that a full transcript of the record entries is here and with no counter abstract furnished, the parties litigant assert, in their respective statements of the case, on the one hand there was no such dismissal and on the other that there was a dismissal.

The record sufficiently shows the St. Louis & San Francisco Bailroad Company took no appeal. It shows affirmatively that no judgment- was rendered against it, that there was no proof offered tending to show Cecil was injured through its negligence or that it owned or operated the railroad to which the turntable was appurtenant. The instructions show that no issue was submitted to the jury touching the liability of the St. Louis & San Francisco Bailroad Company. To the contrary, the issues submitted involved appellant by name, and appellant only.

As we see it, while appellant complains in its statement of the above condition of the record, yet it does not in its brief proper press the point as reversible error. However, if it does, the position is unsound; because:

(a) Absent a record showing one way or the other, the presumption is in favor of the regularity of the judgment of a court of general jurisdiction — ■ i.. e., a dismissal would be presumed, or that such antecedent steps were taken as made a judgment against one of two defendants regular.

(b) Moreover, at the very worst on the record before us the matter complained of does not a particle affect the rights of the appellant on the merits of the case. If it is liable at all it is liable for the whole harm done the child. Therefore, the presence or absence of its codefendant as a party to the judgment or to the suit cuts no figure on the merits; for it .is primer law that if A and B negligently injure C, C may recover his damage's from one or the other or both. [Newcomb v. Railroad, 169 Mo. 409.] “A person,” says Bishop (Bishop on Non-Contract Law, sec. 573) “who has done any part of a wrong working harm to another, or even contributed his will to do it, is responsible to him in damages for the entire harm, however many other individuals, forces and things may have co-operated in bringing about the mischief. " [Neff v. City of Cameron, 213 Mo. 350.]

The matter complained of is no concern of appellant, it causes its liability to neither shrink nor swell, wax nor wane. It impairs appellant’s defenses not a whit. It is ordained by statute that only harmful. error will work a reversal. Before we can reverse a judgment, we must “believe that error was committed by such court against the appellant or plaintiff in error, and materially effecting the merits of the action.” [R. S. 1899, sec. 865.]

Not believing such to be the case, the point, if point it be, is ruled against appellant.

II. As one ground for arresting the judgment, it was alleged in the motion for arrest there was no proof offered that the Hon. David W. Hill was duly appointed next friend. This is so. Appellant assigns error in overruling the motion in arrest. Counsel do not press the point in hand as reversible error, as we gather from their brief. But if we are mistaken in this, there is no soundness in it. This is so, because :

The answer was a general denial coupled with affirmative allegations not material to the question now up. With the pleadings in this fix, was there a call for respondent to prove the due appointment of his next friend? The answer to that query is, No. Undoubtedly the general rule is that a general denial puts plaintiff on his proof. But there are exceptions grafted on the stock of the general rule and the particular in hand is controlled by one of them. In the philosophy of the science of pleading, the issue of the appointment of next friend cannot be raised by a mere general denial. If the defect struck at appears in the petition it might (possibly) be raised by special demurrer. '.Otherwise, it should be raised by a special plea in the answer. Therefore, it is the established practice that where the petition alleges a given person is a lawfully appointed and duly qualified next friend and there is no specific denial Of that averment, it will be taken as admitted. This is1 so whether proof was introduced to sustain it or not. ’The precise question, once mooted and for a season troublesome, was exhaustively considered and finally settled and put at rest In Banc in Baxter v. Railroad, 198 Mo. 1 (q. v.).

The point is ruled against appellant.

III. There is no question raised on the pleadings. There is no question made on the size of the verdict. If defendant is liable at all, the compensation awarded was little enough. Cecil’s right ankle was smashed. All the bones of the leg immediately above the ankle were splintered. The foot was left connected with the leg by a mere ligament, or strip' of flesh. The injury was such a capital oue that a perfect union of the bones was not formed and he is left a deformed cripple for life. Moreover, there is (and could be) no question raised of the contributory negligence of the child. A child may be of such an age that whether he is or can be guilty of negligence under the circumstances of a given case is a question of fact for the jury, and such is the usual case. He may have arrived at such degree of maturity in age and judgment that the court might say as a matter Of law he could be guilty of contributory negligence. On the other hand, he may be so tender in age and infantile in judgment that the court as a matter of law might rule he could not be guilty of contributory negligence in the circumstances of a given case. .This child, under the facts here, came within the latter class. He was non sui juris. [Holmes v. Railroad, 190 Mo. l. c. 105, et seq.; Cornovski v. Railroad, 207 Mo. l. c. 273, et seq.; Donahoe v. Railroad, 83 Mo. l. c. 565; Frick v. Railroad, 75 Mo. l. c. 608; O’Flaherty v. Railroad, 45 Mo. l. c. 74.]

IY. Before considering other questions raised, it will be useful to shortly state the facts, viz.:

It was alleged in the petition and admitted by the answer that defendant owned and operated a railroad, and turntable appurtenant, in the city of Poplar Bluff, on the 24th of March, 1904, and that Cecil was hurt on said turntable on said date.

It was alleged in the petition and shown by the proof that this turntable was not isolated, but was located in an open place adjoining public highways in said city and which place was used as a playground for children, either passing on their way to and from a near-by public school, or otherwise attracted there. That the table was on defendant’s private property, was not.kept fastened, enclosed or guarded in any way so as to bar the ready access of children to it, or their use of it. That it was a most dangerous contrivance for a child to play with; that it had been left unfastened and unguarded for several months prior to the accident and during that time the town children openly resorted to it and played with it by revolving it and riding thereon as a sort of “merry-go-round;” and that defendant either knew or by the exercise of ordinary care and caution could have known this was so. The uncontradicted proof also shows that the table was so poised and adjusted as to be easily manipulated by little children; that its plan contemplated it should be kept locked, but this precaution had been abandoned by defendant; that Cecil lived with his parents about 184 feet from it; that there was no fence or other barrier between his home and it except a single railroad track on level ground; that on the day in question he went there, with his little brother five years old, and a lad (named Barth) about fifteen years old, to play on the turntable; and that while Barth was revolving it and Cecil was riding round on it his ankle was caught •between one of the rails on the table and a rail on a spur track leading to- it and ruined as aforesaid.

It was alleged in the answer and denied by some of plaintiff’s witnesses, but defendant introduced evidence tending to show, that Cecil’s mother told Barth to take the children to play on the turntable. Defendant also put in proof tending to show that the child was allowed by its parents to play there at other times. Contra, plaintiff put in proof tending to show those things were not true. The turntable is not fully described in the record, but it seems to have been an ordinary, heavy, railroad turntable, used to turn locomotives end for end, and one witness said it looked like a “flying jenny,” whatever that may be.

On the facts thus outlined, plaintiff asked but one instruction following closely the allegations of the petition and the proof. In that instruction plaintiff put it to the jury to find that he was injured without the fault of his parents. The triers of fact were told that before they could find for plaintiff they must find that he went to the turntable without the knowledge and consent and against the wishes of his parents. The court also gave for defendant an instruction which imputed the negligence, if any, of the parents to plaintiff and they were flatly told that if the parents were negligent the plaintiff could not recover.

The court refused to instruct that if Barth and plaintiff’s little brother were negligent in taking Cecil to the turntable and putting it in motion, then plaintiff could not recover; and refused instructions which told the jury that plaintiff was a trespasser and there was no liability, if the turntable was located on the private property of defendant away from any public thoroughfare or place and was constructed in the usual way and used in the railroad business of defendant and to which Cecil had no access except by going across defendant’s main railroad track and onto its private property, if he went there without the permission of defendant. That if plaintiff’s mother put him in the custody of Barth with the general direction to go- and play there and if Barth took plaintiff and his brother to the turntable and put them on it and put the table in motion and caused the injury, then the verdict must be for defendant. By still other instructions the defendant asked the court to- declare as a matter of law that plaintiff could not recover.

It is not necessary to swell the case by setting out the instructions in full, because the main propositions relied on by appellant may be crystallized into- two, viz.:

(1) That the doctrine of those cases in this court, known to the bar as the turntable cases, is- unsound and we are asked to explode it.

(2) The other proposition is outlined by defendant’s counsel as follows:

‘ ‘ The case was tried on the theory that if a child was sent there by the mother, the negligence of the mother in sending the child was imputable to the child. The position of the defendant is, and was at the time of the trial, that although she might not have sent her children there, yet she placed them in the hands of this witness, Charley Barth, and he took them there. He says he took them by her instructions, and she, of course, denies that, but the defendant takes the position that although she might not have directed he take them there, yet he did take them there and had them in charge and put them on the turntable, and he started the turntable in motion and caused the injury; that any act of his in placing the children on the turntable and putting it in motion was negligence on his part and imputable to plaintiff, and, therefore, the plaintiff is not entitled to recover.”

It will be seen, therefore, that both propositions are here for determination. Is either sound?

(a) Of imputed negligence. The proposition that the negligence of the parent (or another) may be imputed to the child as á bar to liability on the part of a negligent defendant, in the infant’s suit, has received full and new consideration at the hands of this court in a very late case. [Neff v. City of Cameron, supra.] In that case we were asked to re-examine and alter the position of this court on that question. The result was that we refused to subscribe to the notion that the negligent sins of parents (or third parties) may be visited on the head of an innocent child in adjudicating the rights of the child itself. If parents sue in tbeir own right to recover damages for injury to their child, a negligent defendant may defend by proving their concurrent negligence, but such doctrine is unsound and harsh when applied to the infant who sues in its own right. I may not avoid liability by saying: “I was negligent, it is true. If I had not been negligent- the child would not have been injured. But a third person — a parent, a nurse, a maid, a grandmother — contributed to the injury of the child and therefore I am not liable.” On the reasoning of the Neff case, and controlled by our former adjudications therein cited, refusing to impute the negligence of the parent to the child, the point is ruled against appellant.

And this should be so although plaintiff’s own instruction was more favorable to defendant on that score than is the written law. Such excess of favor, in taking on and carrying an unnecessary burden, is not error of which a defendant (so favored) may take advantage. To allow a litig-ant who has had the advantage of his antagonist’s assuming unnecessarily a laboring oar, to bottom a right on appeal on that advantage, would be the same as if B, distanced in a foot race, would challenge the event because A, who won the monejr, chose to carry weight in the sprint or was too fat to run well.

(b) Of the turntable cases. The doctrine of these cases is based on an exception to the general rule of law that the land-owner owes no duty to trespassers or volunteers, going upon his land for their own purposes, to maintain it in any particular condition for their benefit.

Those courts maintaining the exception have shown an observable ingenuity (but have not been uniform), in formulating the principles underlying the exception. In some instances the exception has been bottomed on the wise Latin maxim of Lord Coke [9 Coke, 59], prohibetur ne quis facicit in suo quod nocere possit alieno — which, under the liberal gloss of a scholar, is said to mean that, “It is prohibited for one to do on his own property that which may injure another’s.” Again, the exception has been maintained under the law of nuisance. Generally speaking, if a nuisance is created, and any one is injured by the nuisance in any particular manner, and not in common with the public, an action of negligence will lie. [Webb’s Whittaker’s Smith on Negligence (2 Ed.), pp. 73-4.] Now, a dangerous machine like a turntable, easily manipulated by children, has been said to be “an attractive nuisance” as to them, when exposed in a public and unguarded place where they resort, and when the scienter (as here) is clearly shown.

In 1873 the Supreme Court of the United States held in judgment a case in which a child was injured on an unguarded and unlocked turntable located in a public place where children resorted with the knowledge of defendant railroad. [Railroad v. Stout, 17 Wall. 657.] The child was technically a trespasser. At the trial on the circuit, Dillon, circuit judge, among other charges to the jury charged as follows :

“The machine in question is part of the defendant’s road and was lawfully constructed where it was. If the railroad company did not know, and had no good reason to suppose, that children would resort to the turntable to play, or did not know, or had no good reason to suppose, that if they resorted there they would be likely to get injured thereby, then you cannot find a verdict against them. But if the defendants did know, or had good reason to believe, under the circumstances of the case, that the children of the place would resort to the turntable to play, and if they did they would or might be injured, then, if they took no means to keep the children away, and no means to prevent accidents, they would be guilty of negligence, and would be answerable for damages caused to children by such negligence.”

That charge was held a proper statement of the law by the Supreme Court of the United States (see, also, Railroad v. McDonald, 152 U. S. 273-4), and we see nothing wrong with it. It seems to us good law and good ethics. To hold otherwise would he to exalt mere money and property and put down humanity — would be to offend against little ones, and there is high authority for the proposition that it were better that a millstone were hung about the neck for drowning purposes than that such offense be given. In some cases it is said that considering the instincts and the curiosity of a little child the principle that protects him in the turntable cases is the same that protects my turkeys against being tolled by grains of corn into my neighbor’s trap, and protects my dog against being tolled by scented meat into a like fix.

The Stout case was put somewhat upon Lynch v. Nurdin, 41 E. C. L. 422, 1 A. & E. (N. S.) 29. In the Lynch case defendant’s carman left his horse and cart standing in the street for about half an hour without any person to take care of them. Plaintiff, a lad of about seven years, with several other children, was playing with the horse and around the cart. Plaintiff got on the cart. Another boy lead the horse on while plaintiff was attempting to get off the shaft. The plaintiff fell, was run over by the wheel, and his leg broken. In sustaining the judgment Lqrd Denman, C. J., among other things, said: “The most blamable carelessness of his [defendant’s] servant having tempted the child, he ought not to reproach the child with yielding to that temptation. He has been the real and only cause of the mischief. ’ ’ The Lynch case has been followed as sound law by later English cases. In Harrold v. Watney, L. R. 2 Q. B. Div. (1898) l. c. 322, Smith, L. J., said: “That case [the Lynch case] has never been overruled, but has been treated in subsequent cases as sound law.” In McDowall v. Railroad, L. R. 1 K. B. Div. (1902) l. c. 624, Kennedy, J., who delivered the judgment, quoted approvingly from Lynch v. Nurdin. So did Leonard, J., in Morgan v. Cox, 22 Mo. l. c. 378. Wagner, J., cited it with, approval in Boland v. Railroad, 36 Mo. l. c. 491. See, also, Walsh v. Transportation Co., 52 Mo. l. c. 439. In the McDonald case, supra, Mr. Justice Harlan, for the Supreme Court of the Hnited States, re-examined the doctrine of the Lynch case and reaffirmed it. It was there suggested that the case had heen repudiated in the English courts. But Justice Harlan questioned the correctness of that criticism. He. pointed out that the English case relied on to sustain it (Mangan v. Atterton, L. R. 1 Ex. 239) had in turn been questioned by Lord Chief Justice Cockburn in Clark v. Chambers, L. R. 3 Q. B. Div. 327.

Other eases sustaining the exception have put liability somewhat on the ground of enticement, allurement and implied invitation. [Keffe v. Railroad, 21 Minn. 207.] In the course of the opinion in the Keffe ease it was said, arguendo: “Now, what an express invitation would be to an adult, the temptation of an attractive plaything is to the child of tender years. If the defendant had left this turntable unfastened for the purpose of attracting young children to play upon it, knowing the danger into which it was alluring them, it certainly would be no defense to an action by the plaintiff, who had been attracted to the turntable and injured, to say that the plaintiff was a trespasser, and that his childish instincts were no excuse for his trespass. . . . It is true that the defendant did not leave the turntable unfastened for the purpose of injuring young children; and if the defendant had no reason to believe that the unfastened turntable was likely to attract and to injure young children, then the defendant would not be bound to use care to protect from injury the children that it had no good reason to suppose were in any danger. But the complaint states that the defendant knew that the turntable, when left unfastened, was easily revolved; that, when left unfastened, it was very attractive, and when put in motion by them, dangerous to young children; and knew also that many children were in the habit of going upon it to play. The defendant, therefore, knew that by leaving this turntable unfastened and unguarded, it was not merely inviting young children to come upon the turntable, but was holding out an allurement, which, acting upon the natural instincts by which such children are controlled, drew them by those instincts into hidden danger.”

The exception to the general rule has been allowed as good law in this State in Koons v. Railroad, 65 Mo. 592; Nagel v. Railroad, 75 Mo. 653 — both turntable cases — and has been allowed by courts of last resort in many States. For instance, in California, Nebraska, Kansas, Iowa, Washington, Tennessee, Georgia, Louisiana, South Carolina, Texas, Arkansas, Illinois, Indiana, Kentucky and Mississippi. [See, authorities cited in respondent’s brief. See, also, a leading article in vol. 66, Central Law Journal, p. 137 et seq., by Mr. Kenner.]

Mr. Kenner (happily it seems to me) lays down the following sensible rules as based upon reason and supported by the decided weight of authority:

A railroad company is liable for injuries to trespassing children playing upon its turntables, when the same have been left unlocked and in a public neighborhood where children would reasonably be expected to play. The most logical opinions so holding, are based upon the following grounds and reasons: (1) A turntable is a dangerous machine, created by the act of its owner; it is attractive to 'children and if publicly located and kept unlocked is a nuisance. (2) It can bé easily locked and made safe when not in use. (3) A turntable, existing under the above-named conditions, is an inducement and implied invitation to children and hence when injured thereon, they cannot he treated as voluntary trespassers. (4) Taking into consideration the childish instincts of children, a turntable existing under the above conditions acts as an allurement into a hidden danger or trap.” [1 Thomp. on Negligence, sec. 1036, et seq.; Ibid, vol. 2, sec. 1827.]

That the doctrine of the exception to the general rule is unsound has been maintained by courts of last resort possibly in Pennsylvania, New Jersey, Ohio, New Hampshire, New York, Massachusetts, Virginia and Michigan — though it had the support of a great judge, Cooley, in an early case in the Supreme Court of Michigan. The latest ease coming under our eye is Railroad v. Harvey, 77 Ohio St. 235, and the pryinglegal mind may find in that case all the authorities marshalled pro and con. A review of those authorities led that learned court to overrule, in effect, some of its own earlier cases. But we are not prepared to admit that the doctrine underlying the turntable cases is odious to justice, or unsound in principle, and therefore we shall not overrule Nagel v. Railroad and Koons v. Railroad, supra.

This defendant in violation of the law, as written by this court, in a city of four or five thousand souls, permitted a dangerous machine, attractive to children as a plaything, to remain unguarded and unlocked for a long time at a place to which children habitually resorted and upon which machine they were permitted to play without defendant’s lifting a finger to prevent it. The facts of the case amount to an invitation to children to use the machine. Under such circumstances it violated its social duty and we shall not help it to escape liability.

We see no reversible error, and the judgment is affirmed.

All concur.