author: GANTT, J.

text:
    LOEVENHART v. LINDELL RAILWAY COMPANY, Appellant.
    Division Two,
    July 3, 1905.
    NEW TRIAL: One Dollar Damages.. Where the jury returned a verdict for one dollar as damages to a drunken passenger who was removed from a street car and whose injuries were very severe, this court will not hold that the action of the trial court in granting plaintiff a new trial, was error, or an abuse of its discretion.
    Appeal from St. Louis City Circuit Court. — Eon. E. D. Wood, Judge.
    Affirmed.

      Boyle, Priest & Lehmann, Geo. W. Easley and. Geo. T. Priest for appellant.
    (1) “In trials at common law, the jury are the proper judges of damages, and where there is no certain measure of damages, the court, ordinarily, will not disturb their verdict, unless on grounds of prejudice, passion or corruption in thé jury.” 2 Greenleaf on Evidence, sec. 255; Boggess v. Railroad, 118 Mo. 338; Dowd v. Air Brake Co., 132 Mo. 579'; 1 Graham & Waterman’s New Trials, 452. (2) The rule is that in personal actions founded upon tort and sounding merely in damages, a new trial will not be granted on the sole ground of the smallness of damages. Pritchard v. Hewitt, 91 Mo. 550; Gregory v. Chambers, 78 Mo. 294; Watson v. Harmon, 85 Mo. 443; Leahy v. Davis, 121 Mo. 224; Field on Damages, p. 702, sec. 888-. (3) If the smallness of the verdict can he accounted for from the facts shown in the record on any other hypothesis than passion and prejudice on the part of the jury, a new trial should not be granted. Gregory v. Chambers, 78 Mo. 298; Jenkins y. Hankins, 41 S. W. 1028. (4) The appellant may submit to the verdict for nominal damages to avoid the expense of a new trial, and the respondent has no grounds for complaint. Brown v. Railroad, 51 ' Mo. App. 192; Phillips v. Phillips, 34 N. J. L. 208. "

      Nathan Frank, Richard A. Jones and Max W. Oliver for respondent.
    (1) It is the peculiar and special province of the trial court to set aside the verdict of the jury and grant a new trial whenever that verdict is arbitrary or in disregard of the instructions of the court and manifestly unjust. Lockwood v. Ins. Co., 47 Mo. 50; Reid v. Ins. Co., 58 Mo. 421; Chouquette v. Railroad, 152 Mo. 257. (2) There exists no more important power for the promotion of justice than that intrusted to the trial court in the matter of granting new trials. It is a power to be exercised with great care and no one is so well informed as to how this discretion, should be used as the trial judge. It is only when it very clearly appears that a wise discretion has not guided his action that an appellate court will interfere. Chouquette v. Railroad, 152 Mo. 257; Haven v. Railroad, 155 Mo. 215; Kuenzel v. Stevens, 155 Mol 280. To warrant any interference by the appellate court, it must be shown affirmatively that injustice has been done in granting the new trial, or that the discretion of the trial judge has been unsoundly or arbitrarily exercised. Bank v. "Wood, 124 Mo. 72; Parker v. Cassingham, 130 Mo. 348; McClosky v. Pulitzer Pub. Co., 163 Mo. 22. (3) The trial court is best able to determine whether the jury has performed its duty fairly, and, having found that the measure of damages laid down by the instructions of the court has been disregarded by the jury, the trial court may properly grant a new trial of the cause. Lee v. Knapp & Co., 137 Mo. 335; Chouquette v..Railroad, 152 Mo. 257..
   GANTT, J.

This is an appeal from the order of the circuit court of the city of St. Louis granting a new trial to the plaintiff.

The action was begun September 16, 1897, and on January 6, 1898, plaintiff filed an amended petition wherein he states in substance that on the 23rd day of July, 1897, he entered one of the defendant’scars for the purpose of being transported as a passenger from Seventh and Washington avenue to his home, and defendant agreed and it became its duty, as a common carrier, to well and safely carry and transport plaintiff from said Seventh and Washington avenue to his place of destination on said line of cars. But that the defendant in violation of its contract aforesaid, and unmindful of its duty, failed to safely carry the plaintiff but, on the contrary, while upon said car as such passenger plaintiff was wickedly, brutally and unlawfully assaulted by the conductor and motorman of said car and forcibly ejected therefrom. And by said assault plaintiff was bruised and marked for life. . That he has suffered great pain in mind and body, and laid out and expended considerable sums of money for physicians, surgeons and medicine, to his damage to the sum of $5,000, wherefore he prays judgment for said sum of $5,000, his actual damages, and $5,000, punitive damages, and costs.

Defendant in its amended answer denies each and every allegation in the amended petition. ' And for another defense stated that at the time of the commission of the alleged grievance plaintiff entered the car in a drunken condition, and, with two companions, took seats in the car, and the plaintiff then and there began to vomit upon the side,, seats and floor of said car, and the conductor thereof quietly and without unnecessary force removed plaintiff to the rear platform of said car, so that he could vomit over the side of the car and not defoul the same, to the disgust and inconvenience of the passengers then upon or thereafter to come upon said car. That when plaintiff had been removed to the rear platform his two companions followed, and, after •using loud, profane and threatening language towards the conductor, plaintiff and his two companions began to assault, strike and beat said conductor, and except for his acts in self-defense, and with the assistance of the motorman, said conductor would have suffered great bodily harm, and that defendant’s said servants only acted in necessary self-defense against the assault of said plaintiff and his two companions, and in putting said plaintiff off of the car for his said misconduct, they used no more force than was necessary. The reply was a general denial.

The cause was tried before a jury on the 4th of May, 1902, and resulted in a verdict for plaintiff, assessing his actual damages at one dollar; no punitive damages were given. A motion for a new trial was filed in due time, assigning, among other reasons, that the verdict was against all instructions of the court, and on this ground the court set aside the verdict of the jury and granted a new trial. It is from this order that the appeal is now here, and the only question is the propriety of the action of the court in granting plaintiff a new trial.

The evidence tended to prove that on July 23,1897, about 9:30 o ’clock in the evening, the plaintiff, with two companions, boarded a street car, operated by the'appellant company in St. Louis. They took their seats, they paid their fare to the conductor in charge, but soon thereafter, the plaintiff was taken sick and began to vomit. The testimony of appellant’s witnesses was to the effect that the plaintiff vomited on the sides and floor of the car and refused to retire to the rear platform at the request of the conductor, who thereupon with the use of force removed the plaintiff to the rear platform; that thereupon the plaintiff attacked the conductor and was assisted by his two companions; that the conductor, with-the assistance of the motorman, defended himself and ejected plaintiff and his two companions from the car. On the other hand, plaintiff’s witnesses testified that plaintiff was at no time the aggressor, but was given no opportunity to retire to the rear platform, but was dragged thereto by the conductor, mistreated and struck in the face by the conductor, and on the head with an iron car comptroller in the hands of the motorman ,• that he was struck in the face by the conductor and thrown from the car into the street and received a scalp wound four inches long on the head and severe bruises on the side of his body. His injuries were dressed by Dr. Heine Marks.

1. It is insisted by the defendant that the circuit court in setting aside the verdict of the jury in favor of the respondent and assessing Ms damages at one dollar sought to exercise a discretion which it did not possess. It is urged by counsel for the defendant that, inasmuch as instruction number four for the plaintiff authorized the jury to take into account the extent of the injury inflicted by the servants of the defendant, the physicial pain and humiliation, if any, endured by the plaintiff, and by their verdict award him such sum as would compensate him therefor not to exceed the sum of $5,000, any sum returned by the jury from one cent up to $5,000 could not be otherwise than in conformity with the instruction, and, therefore, their verdict could not have been against their instruction from the court, and cases of this court are cited wherein this court has refused to interfere with the verdict on the ground of its inadequacy when the circuit court has refused to grant a new trial on that account. The question presented to tMs court on this appeal is whether the action of a trial court, which has heard the testimony and observed the conduct of the jury, in granting a new trial because he believes that Mjustice has been done, should be- interfered with by this court.

In Lockwood v. Insurance Company, 47 Mo. l. c. 51, it was said by this court: “Trial courts, in reviewing verdicts, are not subject to the same rules that govern appellate courts. They may weigh the evidence, and, if they think injustice has .been done, grant a new trial, in cases where they would not be justified in taking an issue from the jury, and where appellate courts should not interfere. ’ ’

In Reid v. Insurance Co., 58 Mo. l. c. 429, the respective functions of a trial and an appellate court in the granting of a new trial were pointed out by Judge Wagner. He said: “The trial courts have opportunities which we have not. In witnessing and presiding .over the trial, they are put in possession of facts which we cannot possibly attain. They see the witnesses; can form an opinion respecting their'veracity; can observe whether they are biased or prejudiced; can notice their willingness or unwillingness, and a great many other circumstances which it is impossible to transfer to paper. They can also form a correct conclusion as to whether any improper influences operated on the jury in producing the verdict. All these considerations render it peculiarly proper that the question of granting new trials, on account of the verdict being against the weight of the testimony, should be exclusively exercised by the court trying the cause, and where the trial court is of the opinion that the verdict is not supported by the evidence, or is against the weight of evidence, it should never hesitate in exercising the power and giving the aggrieved party a new trial. ’ ’

In Chouquette v. Railroad, 152 Mo. 257, there was a verdict for one cent, and on motion of the plaintiff the verdict was set aside,'and from that order the defendant appealed to this court. The contention there was by the defendant that a verdict for one cent ought to be regarded as a verdict for the defendant, and that there was nothing in the record to support the reason given for granting the motion for a new trial, but this court said: “It is the peculiar and special duty of trial courts to grant new trials where the verdict is arbitrary, or manifestly and clearly wrong, or where it appears that the verdict was the result of passion, prejudice or misconduct on the part of the jury. ’ ’ Citing numerous eases of this court, it further said: “The jury having found by their verdict that plaintiff’s injuries were occasioned by the negligence of the defendant, it clearly devolved upon them, under the instructions of the court, to award her reasonable compensation therefor. Yet in utter disregard of the court’s instructions and the evidence touching the nature, character and extent of plaintiff’s injuries, the jury assessed her damages at one cent, after finding that she was entitled to damages on account of defendant’s negligence.” The court saying, “This precise question underwent adjudication in this court in Lee v. Publishers G-eo. Knapp & Co., 137 Mo. 385, and it was there held, in circumstances like the present, that this court will not interfere with the discretion of the trial court in setting aside the verdict of the jury unless it satisfactorily appears that such discretion has been arbitrarily and unreasonably exercised. ’ ’

In Haven v. Railroad, 155 Mo. 216, the conclusion was reached that the acts of 1891 and 1895 only bring the ruling of the trial court on the motion for new trial to this court for review, before a final judgment, instead of afterwards, as was formerly the case; that no other change in the procedure was contemplated by those acts. ‘ ‘ The case is here on appeal and the usual and immemorial appellate practice must obtain. It is here for review on matters of law, not on the weight of the evidence, nor for this court to substitute its discretion for the discretion of the trial court.”

The same conclusion practically was reached in McCloskey v. Pulitzer Publishing Co., 163 Mo. 22, in which last-named case the statement made in Kuenzel v. Stevens, 155 Mo. 280, was quoted with approval, that, “There is no more important power for the promotion of justice than that intrusted to the trial court in the matter of granting a new trial. It is a power to be exercised with great care, and no one is so well informed as to how the discretion is to be used as the trial judge. It is only when it very clearly appears that a wise discretion has not guided his action that an appellate court should interfere. ’ ’

These cases indicate sufficiently the rule which has always governed this court when called upon to interfere with the discretion of the trial court in granting a new trial. It is not our province in this case to weigh the evidence and determine which of the respective parties should have recovered on the trial, but we are clear that there is nothing to indicate an unwise discretion on the part of the circuit court in setting aside a verdict for one dollar where the evidence tended to show such substantial injuries. The judgment of the circuit court in granting a new trial is affirmed.

All concur.


source: Caselaw Access Project

license: Public Domain

text:
    HARRISON, Appellant, v. POUNDS.
    Division Two,
    July 3, 1905.
    1. APPELLATE PRACTICE: Abstract: Sufficiency of Evidence. Where, on appeal, the appellate court is asked to pass upon a demurrer to the evidence, or to say whether there was any evidence to establish a fact, the appealing party must bring all the evidence before the appellate court.
    2. -: -: Plat: Ejectment. Where, in an action in ejectment, the case hinges on a question of fact as to where a river ran with reference to certain land, and that question is to be determined by plats of the land, and appellant does not preserve the plats for the inspection of the appellate court, the judgment of the lower court will be affirmed.
    Appeal from Jefferson Circuit Court. — Row. Frank R. Bearing, Judge.
    Affirmed.

      Byrns & Bean for appellant.

      Klemschmidt & Reppy for respondent.
    (1) Without the plats this court cannot intelligently decide this case, and will not place the trial court in the wrong unless all the evidence necessary to a complete determination of the cause has been preserved and incorporated by appellant in his abstract. The cause should be dismissed for the further reason that no assignment of error is made in their brief as required by Rule 15 of this court. Brand v. Cannon, 118 Mo. 595; Ely v. Coontz, 16 Mo. 371; Bowlin v. Creel, 63 Mo. App. 229. (2) Where an appellate court is asked to review the evidence, and determine its probative force, the whole of it, or so much thereof as presents the question at issue, should be set out in the abstract. Goodson v. Railroad, 23 Mo. App. 76; Nichols v. Nichols, 39 Mo. App. 291; Trimble v. Woolman, 62 Mo. App. 541.
   GANTT, J.

This is an action of ejectment originally brought to recover sixteen acres of land in the north part of United States Survey No. 872, in Jefferson county of this State, and was a tract of land between where Big River now runs and where it formerly ran according to the field notes of the United States Government Survey made by Philip Reilly, county surveyor, whose testimony discloses that he never found an original comer. After the evidence had been heard, plaintiff filed an amended petition, to conform, as he states, to the evidence, in which he sues for one acre, a part of United States Survey No. 872 and lying on the north side of said survey and bounded on the north by the old bed of Big River, on the west by a fence, on the east side of a tract owned by plaintiff and occupied by William May. Ouster was laid as of July 2,1893. The answer was and is a general denial. The cause was tried to the court without a jury and the finding and judgment was for defendant, to reverse which plaintiff prosecutes this appeal.

The court gave three declarations of law prayed by plaintiff and gave none for defendant. The sole ground of error alleged is that the circuit court erred in not rendering judgment for plaintiff upon the undisputed and uncontradicted evidence. This insistence places the burden on this court of investigating the evidence.

This controversy is between adjoining proprietors. Plaintiff owns land in Survey No. 872 on the south side of the Big River as it originally ran, and defendant’s lands lie in Survey No. 3195 on the north side of said river, that is to say, the plaintiff and defendant are opposite riparian owners. The evidence tends to establish that about twelve or thirteen years ago there was a sudden change in the course of the river caused by the falling of large trees in it, and cutting off what the witnesses called Harrison’s Island, which is north of the present bed of the river. Various, if not all the material, witnesses appear to have testified with reference to certain plats which were in evidence but which are not set forth in or attached to the abstracts of the record before us. As' far as we can glean from the evidence, one of the controlling facts necessary to determine this controversy was the location of the old line of the river. That there was a conflict as to this we think there can be no two opinions. The plats are not before us, and it is the settled rule of law in this court that, where we are asked fo pass upon a demurrer to the evidence or as to whether there is any evidence to establish a fact, the appealing party must bring all the evidence before this court; otherwise, we will not disturb the finding of the trial court. The assumption of plaintiff, that because counsel for defendant stated on the trial that defendant did not claim anything south of where the river used to run, and that plaintiff had established that the river formerly ran north of this_acre in dispute, all controversy ended, is not supported by the record.

The case hinged on that question of fact as to where the river ran with reference to this land, and the circuit court found against plaintiff on that point. To justify us in reversing that finding, clearly the plat should be before us to enable us to say, in connection with the other evidence, whether what the witnesses call “May’s Island” was any part of “Harrison’s Island.” Butz testified that he had known the river forty-four years before the trial and. prior to plaintiff’s deed from Harrison in 1864, and that at that time the river ran south of May’s Island and continued to do so up to 1878, and is now running with reference to May’s Island just as it was then, and that at that time the river ran north of Harrison’s Island, and that the old slough which is now there was the channel of the river at that time. The trouble appears to be that plaintiff insisted on treating the meander line as surveyed by Reilly as the old bed of the river. Plaintiff’s deed calls for Big River as the northern boundary of his tract. Reilly was a witness, and in answer to questions by the court said that what he called the meander line was the old river bed and not the line as run through there now, and that the land which he spoke of as south of the old river bed is the land lying south of the line he ran and yet north of the old slough, and the other witnesses made the old slough the old river bed. Mr. Gr. W. Harrison said the land the defendant has in possession and which plaintiff claims is north of the old river bed. Jas. S. Wilson testified to like effect. In view of this conflict with the claim of plaintiff, it is clear that the circuit court was in a much better position, with the plats before him and the witnesses, to pass upon this question than we possibly can be. It is not our province to settle the weight of conflicting evidence, even if we had all the testimony and evidence before us, and, as already said, this we have not, and we are not to put the trial court in error on a pure question of fact in the circumstances.

The judgment of the circuit court must he and is affirmed.

All concur.


author: BUBGESS, P. J.

text:
    THE STATE v. HUNT, Appellant.
    Division Two,
    July 3, 1905.
    1. INFORMATION: Arson: Place of Crime. An information for arson which, states that the “prosecuting attorney within and for the county of Douglas, in the State of Missouri, informs the court that” defendant, “in the said county of Douglas, did then and there . . . set fire to and burn a certain house of public worship there situate,” is sufficient to inform defendant that the burning was done in the State of Missouri, without repeating the words “in the State of Missouri.” The words “then and there” together with the words “there situate” clearly show that the offense was committed in Douglas county, Missouri, and the caption to the information shows that it was filed in said county and State.
    2. -: -: House of Worship: Location of Building. An information for arson of a church which alleges that it was a house of public worship, in said county, the property of the General Baptist Church, and erected for the public worship of God, charged all that was necessary in order to inform defendant of the particular church which he was charged with burning.
    3. -: -: -: Ownership: Unnecessary Allegation. A house of public worship does not belong- to the class of-buildings in respect of which it is necessary to allege ownership in charging arson of the same. And the allegation, in an information for the burning of a church, that it was “the property of the General Baptist Church” is immaterial and should be disregarded.
    4. INSTRUCTION: Limitation: Error Favorable to Defendant. Where, in order to authorize a conviction, the offense must have been committed within three years next preceding the filing of tile information, and the information was filed on the 8th day of September, 1904, and the court instructed the jury to convict if they found that defendant committed the offense within three years prior to the 26th day of September, 1904, the error, if such it can be called, was an error in defendant’s favor, of which he can not be heard to complain.
    Appeal from Douglas Circuit Court. — Hon. Jno. T. Moore, Judge.
    Affirmed.

      Burkhead & Clarke for appellant.
    (1) The information does not charge that the alleged burning was done in the State of Missouri. This must be done, if for no other purpose than to show that the situs of the offense is within the jurisdiction of the court. Collins v. State, 6 Tex. App. 647; Robins v. State, 9 Tex. App. 663; State v. Conley, 39 Me. 78; Cook v. State, 20 Fla. 802; Thompson v. State, 51 Miss. 353; State v. Ames, 10 Mo. 743; State v. Walker, 14 Mo. 398. (2) The accused is not informed by the information of the particular act concerning which he must prepare his proof for defense. The information should identify the building by describing the particular location or by the name of the owner or occupant. State v. Wacker, 16 Mo. App. 417; State v. Kindrick, 21 Mo. App. 507; State v. Cassity, 49 Mo. App. 300; Wheat v. State, 6 Mo. 455; State v. Hogan, 31 Mo. 340; State v. Jones, 68 Mo. 197; McGary v. People, 46 N. Y. 153; Stratton v. State, 13 Ark. 688; State v. Welch, 28 Mo. 600; State v. Krueger, 47 Mo. 530; State v. Rockforde, 52 Mo. 199; State v. Maupin, 57 Mo. 205; State v. Rayrnoud, 54 Mo. App. 425; State v. Stegall, 65 Mo. App. 243; State v. Ellis, 71 Mo. App. 269; State v. Fugate, 66 Mo. App. 625 ; State v. Rector, 126 Mo. 328; State v. Hogan, 164 Mo. 654; State v. Skierauf, 167 Mo. 429; State v. Gassord, 103 Mo. App.’ 143. (3) The building is not identified by charging or averring ownership. State v. Pollock, 105 Mo. App. 273. (4) The information was filed on September 8, 1904, and the court instructed the jury to convict the defendant if they found that he had committed the act within three years prior to September 26, 1904, which was error. State v. Pollock, 105 Mo. App. 273.

      Herbert 8. Hadley, Attorney-General, and Frank Blake, Assistant Attorney-General, for the State.
    (1) The information sufficiently charges the fact that the crime was committed in the State of Missouri. E. S. 1899, sec. 2527; Kelley’s Crim. Law, p. 396; State v. Ames, 10 Mo. 460; State v. Goode, 24 Mo. 361; State v. Simon, 50 Mo. 370; State v. Dawson, 90 Mo. 149. (2) The information identified sufficiently the building which is alleged to have been burned by charging that it • is a house of public worship, the “property of the General Baptist church in said county, and erected for public use, to-wit, for the public worship of God.” The particular location of the building is not necessary to be alleged. (3) No prejudicial error was committed in instructing the jury to convict defendant if they found that he had committed the act within three years prior to September 26, 1904, the date when the amended information was filed.
   BUBGESS, P. J.

Onthe 8th day of September, 1904, the prosecuting attorney of Douglas county, Missouri, filed an information in the circuit court of said county charging the defendant with the crime of arson in setting fire to and burning a church building in said county on or about the 16th day of June, 1904. Thereafter, on September 26,1904, he filed an amended information by leave of court, charging the defendant with the same offense. Upon trial had, the defendant was convicted of the crime charged, and his punishment fixed at five years imprisonment in the State penitentiary. After unsuccessful motions for new trial and in arrest, the defendant saved his exceptions, and appeals.

On Thursday, the 16th day of June, 1904, a country Baptist church was destroyed by fire in the said county of Douglas, State of Missouri. It appears from the evidence that the defendant owned and had in his possession a horse, the right hind foot of which had some peculiarity, in that it seemed to turn in, or, rather, to one side, and when the horse walked or ran it made a ‘ ‘winding track.” The day before the building was burned there had been a rain, and witnesses for the State testified that the horse’s tracks were found leading from the direction of the town of Arnold up to the hitching place near the church, and back again toward Arnold. The defendant lived about three and one-half miles northwest from the church, and west of the town of Arnold, which was two and one-half miles from the church. . A witness for the State, by the name of G. P. Everhart, measured the foot of the defendant’s horse on one occasion when it was ridden to his house by a son of defendant, and he testified that the tracks leading up to and away from the church corresponded to and fitted the measurements of the horse’s foot. It seems that some time before the building was burned the defendant’s son had been arrested for disturbing religious worship at this church, and defendant made various threats about its destruction in the event the prosecution was not stopped. About two 'weeks before the fire .he stated to witnesses who testified in behalf of the State that if this was not done the church house would be burned to ashes, and said: “I will stop the Sunday school and prayer-meeting, both.” The prosecution was not dismissed, and about two weeks thereafter the church was destroyed by fire. There was other evidence as to the measurements of the horse’s foot and the correspondence thereof with the measurements of the tracks seen near the church, and also as to the threats made by defendant that the church would be- burned down if the suit against his son was not dismissed. The evidence also showed that the shoes of the horse had been removed before the burning of the building.

The defense was an alibi, and several members of the defendant’s family testified that he was at home on the night of the burning of the building, but the testimony was not exactly in accord as to the hour he went ■to bed.

The information upon which defendant was convicted was, in substance, as follows:

“In the circuit court of Douglas county, Missouri, September term, 1904.
“Fred Stewart, prosecuting attorney within and for the county of Douglas, in the State of Missouri, informs the court that J. W. Hunt, on or about the 16th day of June, 1904, in the said county of Douglas, did then and there unlawfully, wilfully and feloniously set fire to and burn a certain house of public worship there situate, of the property of the General Baptist Church, in said county, and erected for public use, to-wit, for the public worship of God; against the peace and dignity of the State.”

The information is assailed upon various grounds, but only such of them as seem to be worthy of consideration will be noticed. One of these is that the information does not charge that the alleged burning was done in the State of Missouri, and does not, therefore, show that the situs of the offense was within the jurisdiction of the court. After stating in the information that “Fred Stewart, prosecuting attorney within and for the county of Douglas, in the State of Missouri, informs the court that J. W. Hunt, on or about the 16th day of June, 1904, in the said county of Douglas, did then and there,” etc., it was wholly unnecessary to again repeat “in the State of Missouri.” By section 2527, Revised Statutes 1899, it is provided: “It shall not be necessary to state any venue in the body of any indictment or information; but the county or other jurisdiction named in the margin thereof shall be taken to be the venue for' all the facts stated in the body of the same.” The words “then and there,” together with the words ‘ ‘ there situate, ’ ’ clearly mean that the offense was committed in the county of Douglas, State of Missouri, as the caption to the information shows that the information was filed and the prosecution had in Douglas county, Missouri, and practically the same allegations appear in the first part of the information itself. Indictments similar in form have frequently been held valid by this court. [State v. Ames, 10 Mo. 460; State v. Goode, 24 Mo. 861; State v. Simon, 50 Mo. 370; State v. Dawson, 90 Mo. 149.]

Nor was it necessary that the particular location of the building, alleged in the information to have been burned, be set forth therein. The allegation that it was a house of public worship, situate in said county, the property of the General Baptist Church, and erected for the public worship of God, was all that was necessary in order to advise defendant 'of the particular church which he was charged with burning. The information alleges that the building was owned by the General Baptist Church, and it is contended by defendant that, as that church is not an individual or a corporation, the building is not identified by charging or averring ownership. This case, however, does not come within the range of defendant’s argument, in that the building referred to in the information does not belong to that class of buildings in respect of which it is necessary jn allege ownership. ■ The information in this case is drawn under section 1875, Revised Statutes 1899, which divides the buildings named therein into different classes. Following the first classification are the words “of another,” while the clause which refers to houses of public worship, colleges, schools and other public buildings is not followed by such words or words of similar import. It was not necessary, therefore, to the validity of the information that ownership should have been alleged, and the allegation that the church was “the property of the General Baptist Church” is immaterial and should be disregarded.

In State v. Moore, 61 Mo. 276, this court said:

“All that the ends of justice required was that the building should be sufficiently identified by the allegation of the indictment, and that those allegations should find support in the testimony adduced, and this was done. It would be as absurd as it would be impossible to require grand jurors in finding, and prosecuting attorneys in preparing, indictments, or courts, during the progress of a criminal trial, to go into nice and critical examinations as to the ownership of real property. Were this allowed, offenders would frequently 'go unwhipped of justice,' in consequence of the tangled intricacies of the title to a piece of land.” State v. Roe, 12 Vt. 93, is very much in point upon this feature of the case. The defendant in that case was indicted and convicted for burning a certain meeting-house belonging to the First Calvinistic Congregational Society, in Burlington, erected for public use, to-wlt, for the public worship of Almighty God, under a statute making it a felony to set fire or burn such a building with a felonious intent. 'It was held to be unnecessary to allege in the indictment that such building was of, or belonged to any particular person or persons or corporation, and that all that allegation was surplusage in the indictment.

To authorize a conviction the offense must have been committed within three years next preceding the filing of the information, and as the first information in the case was filed on the 8th . day of September, 1904, and the court instructed the jury to convict the defendant if they found that he had committed the offense within, three years prior to the 26th day of September, 1904, the day upon which the amended information was filed, it is contended that the court committed reversible error in giving such instruction. We are unable to appreciate the force of this contention, because if an error at all, it was in favor of the defendant, in that it gave him the benefit of eighteen days in time that he would not have gotten if the instruction had told the jury that in order to convict the defendant it devolved upon the State to show that the offense had been committed within three years prior to the time of the filing of the information on the 8th day of September, 1904, and the defendant cannot be heard to complain of such error, if such it was.

The instruction upon reasonable doubt is in the form often approved by this court, and the objection urged against same is without merit. [State v. Duncan, 142 Mo. 456; State v. Garrison, 147 Mo. 548; State v. Cushenberry, 157 Mo. 168; State v. Smith, 164 Mo. 579.]

Finding no reversible error in the record, we affirm the judgment.

All concur.


text:
    HENRY MAHONEY, Appellant, v. MOLLIE NEVINS et al.
    Division Two,
    July 3, 1905.
    1. WIDOW’S PORTION; No Administration: Equitable Estate; Contribution. The widow has an equitable estate in the personal property left by her deceased husband in her possession, if its value does not exceed $400; and where all his personal estate amounts to less than that sum, and there has been no ' administration upon decedent’s estate, and no order of the probate court declaring no administration was necessary, and she has used a part of it to pay off a mortgage on the homestead created by decedent, she can in equity compel the heirs thereto to contribute to her their share of the money by her paid on the debt.
    2. -: -: -: -: Crops: Subrogation. The widow is likewise entitled to the crops growing on her deceased husband’s homestead at the time of his death, and if she uses the proceeds thereof in buying up a mortgage thereon she is subrogated to the rights of the mortgagee and the purchase inures to her benefit so far as to keep the encumbrance alive against decedent’s heirs, and to compel them to make contribution to her of their share of the money advanced by her in purchasing the mortgage.
    Appeal from Carroll Circuit Court. — Horn. Jno. P. Butler, Judge.
    Affirmed.

      Lozier & Morris and 8. J. J ones for appellant.
    (1) It is the well-settled law of this State that one tenant in common cannot purchase an outstanding title or encumbrance and thereby acquire title to the whole against his cotenants. The purchase of such outstanding title by one tenant in common will be deemed to have been made for the benefit of all the cotenants. Therefore, the act of Mollie Nevins in purchasing from Siegel the encumbrance against the land in controversy will be held to inure to the benefit of her cotenants. ,Jones v. Stanton, 11 Mo. 333; Picot v. Page, 26 Mo. 399 ; Hickman v. Link, 97 Mo-. 482; Hinters v. Hinters, 114 Mo. 26. (2) No letters of administration having been granted on the estate of Patrick Mahoney, deceased, and no order having been made by the probate court refusing to grant letters of administration upon his estate, upon the grounds that the personal estate of said Patrick Mahoney, deceased, did not amount in quantity and value to more than that allowed by law to the widow, his personal property became the joint and common property of his heirs,and ifthesamewassoldandusedin payment of the deed of trust held by Siegel, then it inured to the benefit of his heirs. R. S. 1899, sec. 2; Adey v. Adey, 58 Mo. App. 408; Becraft v. Lewis, 41 Mo. App. 546; State ex rel. v. Moore, 18 Mo. App. 406; Griswold v. Matrix, 21 Mo. App. 282; Hastings v. Meyers, 21 Mo. 519; McMillan v. Wacker, 57 Mo. ' App. 220; Smith v. Benny, 37 Mo. 20. (3) It is only through the probate court that she could obtain title to the same. The probate court possesses exclusive and original jurisdiction to determine the value of the personal property to which a widow is entitled and to adjudge and set the same off to her. The circuit court can obtain jurisdiction of such questions only on appeal from the probate court. The question as to whether or not a widow is entitled to an appropriation of four hundred dollars in personalty cannot be raised for the first time and adjudicated by the circuit court. R. S. 1899, sec. 2; Adey v. Adey, 58 Mo. App. 408; Griswold v. Mattix, 21 Mo. App. 282; McMillan v. Wacker, 57 Mo. App. 220; Heilman v. Wellenkamp, 71 Mo. 107. (4) In no event under the facts in this case would Catherine Mahoney, the widow, be entitled to the growing crop of wheat, under sections 2 and 107 of the Administration Act. Dower had not been assigned to her in her husband’s estate, hence under the laws of this State, the growing crops would pass to the administrator and not to the widow, and as there was no administration, and the money derived from the sale of the crop of wheat having been applied to the payment of the deed of trust on the land, it inured to the benefit of the heirs, and they should not be called upon to make contribution to a fund which in law belonged to them. Whaley v. Whaley, 51 Mo. 36; Morris v. Thompson, 51 Mo. 160; Woerner on Administration, sec. 185.

      Gonkling & Rea for respondents.
    (1) The purchase of an outstanding title by one tenant in common will be deemed to have been made for the benefit of all the cotenants, unless the cotenants had agreed that the outstanding title should be bought by one of their number' and held absolutely, to the exclusion of the other cotenants. But if one cotenant did buy an outstanding title, without such an agreement, then the other cotenants are bound to contribute their respective proportions of the consideration paid for the outstanding title or incumbrance. Dillinger v. Kelley, 84 Mo. 561; Allen v. DeGroodt, 105 Mo. 442; Hinters v. Hinters, 114 Mo. 26; Cockrill v. Hutchinson, 135 Mo. 67. (2) The legal title to personal property of an intestate decedent passes to the administrator, but the equitable title descends to the heirs or legatees who are entitled to distribution. Richardson v. Cole, 160 Mo. 372; M'cCraken v. McCaslin, 50 Mo. App. 85. (3) (a) Upon the death of Patrick Mahoney the widow was entitled absolutely to $400 worth of personal property, and the equitable title vested in, her upon such death,. Secs. 107, 108, R. S. 1889; Hastings v. Myers, 21 Mo. 519; Comerford v. Coulter, 82 Mo. App. 362. (b) The legal title to the $400 is in the administrator, but the equitable title is in the parties entitled to distribution. Richardson v. Cole, 160 Mo. 372; McDowell v. Orphans ’ School, 87 Mo. App. 386. (4) (a) The premises sued for constituted the homestead of Patrick Mahoney and upon his death the homestead rights vested in the widow; and (b) she is entitle^ to all rents, issues and profits arising therefrom during the homestead period, (a) Sec. 5439, R. S. 1889; West v. McMullen, 112 Mo. 405; Hufschmidt v. Gross, 112 Mo. 649; Phillips v. Presson, 172 Mo. 24; Elstroth v. Young, 83 Mo. App. 253; State ex rel. v. Hull, 99 Mo. App. 703. (b) Orrick v. Robbins, Adm., 34 Mo. 226; Roberts v. Nelson, 86 Mo'. 21; Agan v. Shannon, 103 Mo. 661; Gentry v. Gentry, 122 Mo. 202; Harold v. Orf, Admr., 8 Mo. App. 574; Tincher v. Phillips, 37 Mo. App. 621; Bealey v. Blake, Adm., 70 Mo. App. 229; Lyons v. Lyons, Admr., 101 Mo. App. 494.
   GANTT, J.

This is an appeal from a decree in equity by the circuit court of Carroll county, setting aside a trust deed to the homestead of Patrick Mahoney, deceased, and adjudging contribution by the plaintiff and the other heirs of Patrick Mahoney to defendant, Catherine Mahoney, on the ground that the said deed of trust and note secured thereby were acquired by said Mollie Nevins as a tenant in common with plaintiff and the other heirs of Patrick Mahoney to the exclusion of plaintiff and said heirs.

Patrick Mahoney and defendant, Catherine Ma-honey, his wife, on the 15th of December, 1890, executed to Gus Siegel a deed of trust to secure payment of a note for $360, bearing interest at eight per cent per annum, on 45.96 acres off of the south half of the southwest quarter of section 18, township 55, range 21, Carroll county, Missouri, which land was worth about $1300, and at that time was the homestead of said Patrick Mahoney. On the--day of February, 1891, while the deed of trust was still a lien on the land, Patrick Mahoney died intestate, leaving no other debts, still owning and residing on this land as his homestead. He left surviving him his widow, Catherine Mahoney, who was entitled to a homestead in the land; Henry Mahoney, a son; the defendant, Mollie Nevins, a daughter; and Cora, Mary, William and Jesse Rinehart, grandchildren, being the children and sole heirs in law of a deceased daughter named Kate Rinehart. Catherine Mahoney, the widow, was entitled to use and occupy all the premises, upon the death of her husband, as her homestead and she was also entitled, by reason thereof, to all rents, issues and profits arising therefrom. Catherine'Mahoney was the mother of Henry Mahoney and Mollie Nevins, and the grandmother of the Rinehart children, and continually resided on the homestead until shortly before the suit.

Patrick Mahoney at his death owned personal property, consisting of a team of horses, five cows, twelve hogs, some grain and hay and farm machinery, worth less than $300. The twelve hogs were soon sold by the widow and delivered by Henry Mahoney, the son, and all the money arising therefrom nsed to pay the funeral expenses.

At the time of Patrick Mahoney’s death, there was also growing on this homestead a crop of wheat which was afterwards harvested and sold hy his widow for $238 gross. Henry Mahoney hauled this wheat to market at the request of his mother and she paid him for his work.

No letters of administration were ever granted on the estate of Patrick Mahoney hy the prohate court of Carroll county, nor was there any order or judgment of said court refusing to grant letters of administration upon the ground that the personal assets of the estate were less in quantity and value than allowed the widow by law, but the evidence conclusively shows that in reality the value of the personal property would not exceed the amount allowed the widow by law.

This is a suit in equity growing out of the deed of trust and note executed by Patrick Mahoney to said G-us Siegel. In December, 1891, Catherine Mahoney furnished Mollie Nevins with $295 with which to buy said note, which at that time amounted to $388, Mollie Nevins furnishing the balance of the money to buy the note. The portion of the money paid of Catherine Ma-honey for the note was derived by her from the sale of the wheat and personal property left by her husband. The note was assigned to Mollie Nevins who, on the 13th of November, 1900, had the deed of trust securing the same foreclosed in accordance with the terms and conditions thereof. At such foreclosure a life estate was conveyed to Catherine Mahoney and the remainder in fee to Mollie Nevins; whereupon the plaintiff instituted this suit to cancel the deed of trust, in which suit Mollie Nevins, Catherine Mahoney and the Rinehart children were all made defendants.

The amended answer of defendants Mollie Nevins and Catherine Mahoney states that the purchase of said note “was made with the full knowledge and consent of plaintiff and not in fraud or prejudice of his rights, and that for a period of almost ten years, although knowing said: facts, he failed and neglected to maké any objection thereto or to make any contribution on his part on account of the purchase of said incumbrance,” and “if the court should find that plaintiff and the other defendants herein are yet entitled to make contribution on account of the amount paid by these defendants for said incumbrance, then these defendants pray that judgment may be rendered in their favor or in favor of defendant Catherine Mahoney against the other parties herein for the amount which may be found due from them in contribution ' on account of the purchase of said incumbrance and for all other and further relief that may be just and equitable.”

The trial court found that the purchase by Mollie Nevins was not in fact a purchase but a payment of the Siegel note, and that Henry Mahoney, the- Rinehart children and Mollie Nevins should contribute to Catherine Mahoney their respective proportions of the consideration paid for the note. The court found that the personal property which Patrick Mahoney left at the time of his death did not amount to more than that allowed the widow by law and that in equity she was entitled to all of it. The note, at the time of the suit, amounted to $465.45, and the court found that Henry Mahoney should pay his mother $155.15, that the Rinehart children should pay the same amount, and that Mollie Nevins should pay $12, from which judgment the plaintiff has appealed.

I. There is practically but one question left in this appeal. The circuit court found, and the evidence abundantly supports its decree, that the purchase of the Patrick Mahoney note by Mrs. Nevins was a payment thereof by two of the cotenants, and that one cotenant could not buy in an outstanding incumbrance on the joint property and thereby acquire title against her cotenants. Respondents concede this statement of the law, hut assert that if one cotenant does buy in an outstanding title or incumbrance without any express agreement then the other cotenants are bound in equity to contribute their respective proportions of the consideration paid for such outstanding incumbrance or title, and of this there can be no question. [Cockrill v. Hutchinson, 135 Mo. 67; Dillinger. v. Kelley, 84 Mo. 561; Allen v. De Groodt, 105 Mo. 442.]

So that the contention is narrowed down to the question whether Mrs. Mahoney’s contribution to the payment of the deed of trust was with her own means or with moneys belonging to the heirs of her deceased husband. There is no dispute as to the facts. At his death Patrick Mahoney left less than $300 worth of personal property, and the homestead on which he resided. No administration was had in his estate and he owed no debts except the one secured by the deed of trust on his homestead. Mrs. Mahoney sold a portion of the personal property and out of the proceeds paid the funeral expenses.

Th contention now is that because there was no administration Mrs. Mahoney had no title to the personal estate left by her husband, though it was in her possession as his widow and was less than the amount to which she was absolutely entitled at the time. [Secs. 107, 108, R. S. 1889.] That the widow was in view of the amount of personal.property left by her husband absolutely entitled to all of it, there can be no doubt whatever.

This provision of our administration law was construed in Hastings v. Myer’s Admr., 21 Mo. 519. In that case Jacob Myers died leaving a widow, Margaret Myers, who died leaving children before she had received from her husband’s estate the sum of two hundred dollars in property as a part of her dower allowed by the administration law. The administrator on a settlement showed he had $195.08 in his hands. The creditors claimed this sum, but her'children demanded it. The county court adjudged it should be applied to the debts and the children appealed. Judge Scott, for this court, held the widow was entitled to the fund to the exclusion of creditors, but that it should be paid to her administrator. In McFarland v. Baze’s Admr., 24 Mo. 156, Judge Leonard held that the $200 of personal property allowed as a part of her dower, vested in the widow immediately upon her husband’s death, discharged of the lien of the debts and would pass by her assignment of dower.

In Cummings v. Cummings, 51 Mo. 261, it was held the $400 to which the widow is entitled is hers absolutely; is a part of her dower and does not depend on her election. [Comerford v. Coulter, 82 Mo. App. 362.]

Conceding that regularly the legal title to this personal property left by Patrick Mahoney and less than $400 in value would have been in his administrator had one been appointed, it is clear that the equitable title thereto was in his widow and a court of equity would not go through the formula of enforcing an administrator’s mere naked legal right that he might uselessly distribute it to her. [Richardson v. Cole, 160 Mo. 372.]

She had this property in possession and of her own accord devoted a portion of it to the funeral expenses, and we have no hesitancy in this equitable proceeding by the heirs in holding she had the equitable title thereto as against them, and when she devoted it to the relief of their homestead she was entitled to exoneration and contribution from them before they could share in the estate which her payment relieved from the incumbrance thereon. The decision in Adey v. Adey, 58 Mo. App. 408, and McMillan v. Wacker, 57 Mo. App. 220, were both replevin suits in which the legal title only was involved, and in no manner conflict with the conclusion we have reached in this case which is a suit in equity and the equitable title to the absolute property in possession of the widow is involved.

II. The next inquiry is as to the widow’s right to the growing wheat crop on the homestead at the time of her husband’s death. It is conceded it was growing on the homestead at the time of her husband’s death and was afterwards harvested by her and sold for $238. There were no minor children of the deceased Patrick Mahoney at the date of his death. Consequently the widow was entitled to the exclusive possession of the homestead. It is obvious that the homestead was the superior right and the assignment of dower has no place in the determination of the question as to the ownership of the growing wheat. As the owner of the homestead, Mrs. Catherine Mahoney was entitled to all the rents, issues and products during the existence of her homestead estate and consequently to the wheat growing thereon. [Ailey v. Burnett, 134 Mo. 321; Gentry v. Gentry, 122 Mo. 202.] By the purchase of the mortgage debt Mrs. Mahoney was subrogated to the rights of the mortgagee and the purchase inured to her benefit so far as to keep the incumbrance alive against the plaintiff and the other heirs in remainder.

The foregoing were the grounds upon which the circuit court based its decree and we concur in the view taken by our learned brother on the circuit, and accordingly the decree is in all things affirmed.

All concur.


author: MARSHALL, J.

text:
    DRAKE v. KANSAS CITY, Appellant.
    Division One,
    October 11, 1905.
    1. SIDEWALK: Latent Defects: Coal Hole: Discovery. A loose iron lid over a coal hole in a sidewalk, too light, rising above the surface of the walk and liable to turn and become displaced by persons stepping upon it, is not a latent defect. An inspection made from the surface would have discovered such defect, and if it had so existed from the time of its construction, the city was negligent, and is liable for injuries to pedestrians stepping thereon in the exercise of ordinary care. (Distinguishing Carvin v. St. Louis, 151 Mo. 334; Baustian v. Young, 152 Mo. 317; and Buckley v. Kansas City, 156 Mo. 16.)
    2. -: Coal Hole: Duty of City. The presence and nature of coal holes in sidewalks, constructed for' the accommodation of abutting property-owners, necessarily call for greater care and closer inspection by the city than ordinary sidewalks demand where no such conditions exist.
    3. -: Construction: Notice. If the construction of a coal hole in a sidewalk is such that it is improper and unsafe, and the cover is liable to be displaced by pedestrians stepping on„it, the city is not entitled to notice of its defective condition, for it has constructive notice from, the beginning.
    4. -; Latent Defect: Discovery. It is no part of the duty of persons passing along a sidewalk to discover latent defects therein.

      5.-: -: Instruction. Where the cover of the coal hole in the sidewalk was loose and protruded above the surface, and its defective construction could easily have been discovered and ascertained from an inspection made from the surface, there is no room in the case for an instruction on the subject of latent defect.
    6. -: -: -: Notice. It is the duty of the city from the beginning of the construction of a coal hole in a sidewalk, to see that it is 'a reasonably safe construction, and its liability, where the defect is in the construction, does not depend on actual notice. And an instruction which tells the jury that if they find “that such defective construction could not have been discovered by a person exercising ordinary care and prudence in walking over the sidewalk,” should not be given.
    7. -: Acts of Third Persons: Defense: Erroneous Modification of Erroneous Instruction. The plaintiff based his case on the defective construction of a coal hole in the sidewalk, in that the lid was loose, did not fit and was liable to be displaced by one stepping on it. Defendant introduced as a witness the abutting property-owner who testified that she had raised and propped up the iron lid over the coal hole on the morning of the accident and had done so every morning for six weeks or two months preceding the-accident, and asked an instruction to the effect that it was not liable, for defects caused by third persons, and this the court modified so as to tell the jury that plaintiff could not recover if the defect was obvious and plaintiff failed to observe it. Held, that the instruction as asked was erroneous, and under the circumstances the court would have been justified in refusing it without modification. Held, also, that the modification was erroneous, and under the . circumstances should not have been given, but it was not reversible error.
    8. VERDICT: Passion and Prejudice: Conflict in Evidence. Although plaintiff alone may have testified that the lid to a coal hole in the sidewalk was lying fiat' in its place when he stepped upon it, it is the' right of the jury to believe him and to disbelieve numerous other witnesses who testified that it had been propped up and that he was looking across the street, and such conflict in the testimony is not sufficient to support the charge that the verdict was the result of passion and prejudice on the part of the jury.
    Appeal from Carroll Circuit Court. — Hon. Jno. P. Butler, Judge.
    Affirmed.

      L. A. Laughlin and B. J. Ingraham for appellant.
    (1) The court erred in refusing to sustain the demurrer to the evidence at the close of plaintiff’s case. Garvin v. St. Louis, 151 Mo. 334; Baustian v. Young, 152 Mo. 317; Buckley v. Kansas City, 156 Mo. 16; Matthews v. New York, 78 App. Div. 422; Hanscom v. Boston, 141 Mass. 242; Rushton v. Allegheny, 192 Pa. St. 574; Cooper v. Milwaukee, 97 Wis. 458. (2) The court erred in modifying and giving defendant’s instruction 5. (3) The court erred in modifying and giving defendant’s instruction 8. Christian v. Ins. Co., 143 Mo. 460; Bank v. Armstrong, 62 Mo. 59; Mason v. Railroad, 75 Mo. App. 1; Chitty v. Railroad, 148 Mo. 64. (4) The verdict of the jury was the result of passion and prejudice. Spohn v. Railroad, 87 Mo. 74; Garrett v. Green-well, 92 Mo. 120; Whitsett v. Ransom, 79 Mo. 258.

      Frank P. Walsh, Virgil Gonkling and E. B. Morrison for respondent.
    (1) By the exercise of reasonable care the appellant could have known of the defects complained of in time to have remedied the same prior to the injury complained of. Barr v. Kansas City, 121 Mo. 22; McGaffigan v. Boston, 149 Mass. 289; Benjamin v. Railroad, 133 Mo. 289; Buckley v. Kansas City, 156 Mo. 16, 75 Mo. App. 188; Joliet v. Walker, 7 111. App. 271; Tiedeman on Mun. Corp., sec. 350A; City of La Salle v. Porter-field, 138 111. 119; Norton v. St. Louis, 97 Mo. 541; Jones, Neg. of Mun. Cor., secs. 94, 95; City of Atchison v. Jansen, 21 Kan. 575; Roe v. Kansas City, 100 Mo. 190; Vanderslice v. Philadelphia, 103 Pa. St. 107; Jegglin v. Roeder, 79 Mo. App. 435; Hembling v. Grand Rapids, 99 Mich. 294; Kuntsch v. New Haven, 83 Mo. App. 180; Snyder v. City of-Albion, 113 Mich. 275. (2) The city had ample time and opportunity to have discovered the defective condition of the sidewalk at this point. Mans v. Springfield, 10.1 Mo. 617; Young v. Webb City, 150 Mo. 340; McKissick v. St. Louis, 154 Mo. 588; Reedy v. Brewing Assn., 161 Mo. 541; Carrington v. St. Louis, 89 Mo. 208; Beauvais v. St. Louis, 169 Mo. 505; Barr v. Kansas City, 105 Mo. 550; Post v. Boston, 141 Mass. 189; Milledge v. Kansas City, 100 Mo. App. 490; 2 Shear-man & Redfield on Negligence, sec. 369; Sweeney v. City of Butte, 15 Mont. 274; Chapman v. City of Macon, 55 Ga. 566; Smith v. Leavenworth, 15 Kan. 81. (3) The coal hole and cover form a part of the sidewalk and the city is charged with notice if they are defective in construction. Barr v. Kansas City, 105 Mo. 557; Brake v. Kansas City, 100 Mo. App. 614; Swenson v. City of Lexington, 69 Mo. 167; Wendall v. Mayor, etc., of Troy, 39 Barb. 337; Weber v. City of Crestón, 75 Iowa 16. (4) Appellant’s instruction 5 was properly modified by the trial court. Buckley v. Kansas City, 95 Mo. App. 201; Squires v. Chillicothe, 89 Mo. 232; Mitchell v. City of Plattsburg, 33 Mo. App. 560. (5) The trial court did not err in modifying appellant’s eighth instruction.
   MARSHALL, J.

This is an action for $25,000 damages for personal injuries received by the plaintiff on the 24th of May, 1900, in consequence of stepping into a coal hole in the sidewalk on the south side of Thirteenth street, between Tracy and Forrest Avenues, in Kansas City, and in front of house No. 1211 East Thirteenth street. There was a verdict and judgment for the plaintiff for $15,000, and after proper steps the defendant appealed.

TUB ISSUES.

The petition alleges that Thirteenth street is a public highway of the defendant city and that at the time of the accident the sidewalk, as maintained by the defendant, was in an unsafe and dangerous condition, in this, “that a certain coal hole therein, being a circular aperture from one to two feet in diameter, was improperly, unskillfully and negligently constructed, maintained, suffered and permitted to be and remain in the sidewalk; that the cover of said coal hole was too light for the purposes for which it was used; that the rim around the under side of said cover was too shallow and not of sufficient depth for the purpose for which it was used; that the said rim was too small in diameter, causing the said cover to be in a loose condition when put in its place; that a certain iron frame upon which said cover rested was at or near the level of the balance of the sidewalk, so that when the covering was placed in position, said iron cover protruded above and over the balance of the sidewalk; so that said cover and frame were defective, unsafe, dangerous and insecure and said cover did not'sit firmly over said hole; and was thus liable to turn and become displaced by persons stepping upon or against the same, thus opening said hole, and entrapping and affording an unsafe and insecure footing to persons passing over the same;” that the defendant knew, or by the exercise of ordinary care could have known, of the unsafe, dangerous and defective condition of the sidewalk, which condition existed for a length of time reasonably sufficient for the defendant to have ascertained and corrected the same; that while plaintiff was walking upon said sidewalk and exercising ordinary care, and was ignorant of the defective and unsafe condition thereof, he stepped on the cover of said coal hole, which, in consequence of the defects stated, turned in said frame and plaintiff’s leg dropped into said hole, and plaintiff fell violently upon the edge of said cover and upon the sides of said coal hole, and was injured in a manner, and to a permanent extent, which, it is only necessary to say, was of the most painful and serious character that could be inflicted upon a man.

The answer admits the character of the defendant city, denies every other allegation of the petition, and pleads contributory negligence of the plaintiff. The case was taken on change of venue from Kansas City to Carroll county, Missouri.

The case made is this:

It was admitted that the place where the coal hole was located was in a sidewalk of a public street of the defendant city. The coal hole apparatus was produced in court and by stipulation of counsel it was admitted to be in the same condition that it was in at the time of the injury except that the rim had been surrounded by cement by the defendant. The plaintiff was a man fifty-five years of age at the time of the accident and was engaged in the advertising business, earning from twelve to fifteen hundred.dollars a year. He lived at 1306 Michigan avenue, which was east of the place of the accident. On the day of the accident, at about 9:15 o’clock a. m., he was proceeding west on Thirteenth street on his way down town to his business, and while so doing he fell into the coal hole and received the injuries complained of.'

The plaintiff says that thecoalholewasinthemiddle of the stone sidewalk, and that the top thereof was lying flat, and that he stepped upon it and that it gave way or slipped, so that his foot went into the coal hole and he fell astride of the cover. He says he saw the coal hole before he stepped on it, and that the cover was lying perfectly flat in its place.

Mrs. Max Cohn, whose testimony was taken by the defendant, but read by the plaintiff, testified that she boarded at 1215 East Thirteenth street, the house next door to the premises in front of which the coal hole in question was located; that she occupied the third-story front room, and was sitting at the front window, and first saw the plaintiff standing in front of her boarding house, and the next she saw he was in the coal hole; that Thirteenth street, at that point, is thickly built up; that she had seen the cover over the coal hole slightly raised before the day of the accident, and sometimes it was not in its regular position.

Luther B. Keebaugh, a witness whose deposition was taken by the defendant but read by the plaintiff, testified that he lived at 1215 East Thirteenth street, that he passed the coal hole six or eight times a day for several years before the accident and had frequently seen the cover of the coal hole out of place, with some obstruction placed over the top of the coal hole; that he had often heard the cover over the coal hole rattle when persons stepped onto it; that the cover over the coal hole stood a little above the level of the walk; that that portion of the city was thickly built up and the street was a much-traveled street.

Albert Stedman, a witness for the plaintiff, testified that he was hauling brick for the building of some flats on the other side of the street; that just before the accident he noticed that the cover to the coal hole was a little off of the hole and one side tipped down about an inch and a quarter or two inches; that it was in such condition about five minutes before the accident; that he did not see the accident but saw the plaintiff in the coal hole immediately after he had fallen into it, and assisted him to get out of it; that the cover of the coal hole tipped towards the west and did not rest on the rim of the coal hole.

J. O. Hogg, a witness for the plaintiff, testified that he was an architect and had experience in providing for coal holes and covers thereon; that he examined the coal hole in question after the accident; that there’is an iron frame about a quarter of an inch thick that is put in a coal hole cut into the stone sidewalk; that the cover was between fifteen and sixteen inches in diameter and was about nine-sixteenths of an inch thick; that there was a rim below the underpart of the cover; that the same extended about one-fourth of an,inch above the sidewalk, that the cover did not fit tight in the frame; that the rim was too shallow, so that the cover projected above the sidewalk; that when a person stepped upon the cover it would fly up out of the frame; that the cover should have been heavier, and the rim should have been deeper to prevent the cover from slipping.

Hugh Matthews, a witness for the plaintiff, testified that he was engaged in the business of manufacturing coal holes, covers and rims, and was a practical machinist and moulder; that the coal hole, cover and rim in question were not properly constructed, the rim being too shallow, and that it should have had lugs on the end or side of it to keep it from slipping; that when the cover is too light, it tips easily when a person steps on it.

The witness, in the presence of the jury, gave a practical demonstration by stepping on the cover of the coal hole, which had been produced in court, and the cover would tip or slip when stepped on. That he had never seen a coal hole like the one in question before, and that it was unlike the other coal holes used in Kansas City.

M. Gleason, a witness for the defendant, testified that he wa,s a member of the police force, and at the time of the accident his beat covered the place of the accident, and that he was at that time on duty; that he did not see the accident but he met the plaintiff as he was being carried away; that he examined the coal hole and found the cover in position and stepped upon it and found that it was solid; that he had never seen the cover out of place before; that he passed the coal hole six or seven times a day and frequently stepped on it, and that it did not tilt or slip.

Jacob' Miller, a witness for the defendant, testified that he lived at 1301 East Thirteenth street, and had lived there for about four years prior to the accident, and had passed by the coal hole many times; that in passing he frequently saw the coal hole open, but that there was always a chair or some kind of a guard to warn people; that he had frequently walked over the Coal hole cover and that it never slipped or gave way.

Nora Miller, a witness for the defendant, testified that at the time of the accident she was living at 1211 East Thirteenth street; that the house was a four-story house and had fourteen rooms, and that she kept boarders there; that she knew the coal hole in question; that on the morning of the day of the accident, she propped up the cover of the coal hole, from beneath, with a board, so that the cover tilted or was raised at the western side thereof, the cover resting on the rim on the north and south sides; that the east side of the cover did not rest on the rim; that she so propped it up about six o’clock in the morning to let fresh air into the coal cellar; that she was not at home at the time of the accident, having left the house about half past seven, and did not return until about nine o’clock, and when she returned she learned of the accident, and found the cover in its proper position resting on the rim; that for six weeks or two months before the accident she had been in the habit of so propping up the cover over the coal hole so as to ventilate the cellar.

Mrs. Miller Samuels, a witness for the defendant, testified that at the time of the accident she boarded at 1215 East Thirteenth street; that she was standing at the front window and saw the accident; that when she first saw the plaintiff he was walking slowly towards the west looking, she supposed, at the building in the process of construction across the street; that the cover of the coal hole at that time was lifted, and was raised about six to ten inches above the rim; that she could not see what held it up; that when plaintiff reached the coal hole, be stumbled or fell, she could not tell which; that she could not see where the cover went as he fell, but after his fall she saw it lying on the opposite side of the hole; that she had never observed the cover to the coal hole before that time.

Mrs. Le-lah Keebaugh, a witness for the defendant, testified that at the time of the accident she lived at 1215 East Thirteenth street; that she did not see the accident; that on the morning of the accident she had observed the cover to the hole; that it was raised up¡; that it was propped up with a stick, which left an opening of quite a space in the top of the coal hole; that she had seen the cover ont of place prior to the day of the accident; had seen it raised or tilted up, and had also seen it lying on the side of the coal hole; that when one stepped heavily on the top of the coal hole, it would move slightly to one side, and if the person did not step off of it, his leg would go down in it; that the coal hole in front of her house was like the one in question here, and that when a person stepped on one end of it, the other end would fly up.

M. S. Howell, a witness for the defendant, testified that the rim of the coal hole was about flush with the sidewalk.

At the close of the plaintiff’s case, the defendant demurred to the evidence, the court overruled the demurrer, and the defendant excepted.

I.

The first error assigned by the defendant is the action of the trial court in overruling the demurrer to the evidence at the close of the plaintiff’s case.

Defendant admits that the general rule of law is that it is the duty of a city to keep the sidewalks in a reasonably safe condition for public use, and that it is liable for injuries from defects therein, of which it had actual notice or which had existed for such a length of time, prior to the accident, as, “by the exercise of ordinary care, it could have ascertained, and which it had a reasonable time to remedy. ’ ’ But defendant contends that the defect complained of in this case was a latent defect, which by an inspection of the sidewalk from the surface thereof, such as a person of ordinary care would have made, under similar circumstances, would not have been discovered, and therefore this case falls within the principles announced by this court in Carvin v. St. Louis, 151 Mo. 331; Baustian v. Young, 152 Mo. 317; and Buckley v. Kansas City, 156 Mo. 16.

This case is easily distinguishable from the three cases relied on by the defendant. In the Carvin ease there was no defect in the construction of the water meter which caused the accident. The cause of the accident in that case was the accumulation of a small amount of dirt around the flange of the rim of the water meter, on which the cover rested, which raised the cover thereof out of its proper position, and caused it to slip when the plaintiff stepped on it. There was no structural defect in the water meter and it did not appear that the dirt had been allowed to remain on the flange for so long a time as to impute notice to the city.

In the Baustian case, the sleepers under the sidewalk were rotten, the rain had washed the earth away from below the sidewalk, arid when the plaintiff stepped on the plank sidewalk, it gave way and he fell. The condition of the sleepers and the gully, so washed beneath the sidewalk, were latent defects, which an inspection from the surface of the sidewalk would not have disclosed.

In Buckley v. Kansas City, supra., the defect was a crack in the flange, which supported the glass covering over the area-way, and so far as then appeared to this' court, the cracks were latent defects, which could not have been discovered from an examination from the surface of the sidewalk.

In the case at bar, however, the defect could have been discovered from an examination or inspection of the coal hole and its cover made from the surface of the, street. The plaintiff tried the case upon the theory of the petition, that the cover to the coal hole was too light; that the rim around the bottom of the cover was too shallow and too small in diameter, causing the cover to be loose when in its place, and that the iron frame-work upon which the cover rested was at or near the level of the sidewalk, so that the cover, when placed in position, protruded above and over the walk and did not fit firmly over the hole, but was liable to turn and become displaced by persons stepping upon or against the same, thereby opening the hole and causing the person to fall into it.

The contention of the plaintiff is that the defect complained of was a structural defect and could have been discovered by an examination or inspection made from the surface of the sidewalk, and that it had existed from the beginning.

Thus it easily appears that this case does not fall within the principles laid down in the three cases relied on by the defendant.

There was ample evidence offered by the plaintiff to support the allegations of the petition and the theory upon which the plaintiff tried the case in the court below.

The question, therefore, only remains whether or not the city is liable for such defects in its sidewalks.

Roe v. Kansas City, 100 Mo. 190, was an action for damages caused by the plaintiff falling in a trap door on the sidewalk. It appeared that the hinges of the door had been broken and that it was in such condition that by stepping upon some parts of it, it would tip up, and. that the accident to the plaintiff occurred in that way. The defect in the door had existed for some months before the accident. The plaintiff recovered in the trial court and the judgment was affirmed by this court.

Barr v. Kansas City, 105 Mo. 550, was an action for damages caused by the plaintiff falling into a sewer, the cover or grating over which had been improperly constructed and of such a character as to make it too short and too narrow to properly cover the opening. The trial court instructed the jury that it was the duty of the city to provide a reasonably safe and sufficient covering for the hole and that it was liable if it failed so to do. This court said: “If the city officers had actual knowledge of the displacement of the cover and failed to securely cover it within a reasonable time before the accident, they were guilty of negligence. If the hole was open and patent for such a length of time before the accident as that the city officials by the exercise of ordinary care and diligence could have discovered it, and they did not, they were guilty of negligence. . . . The hole could have been securely covered within the hour of the discovery of its condition; besides the displacement was not the result of an accident or the wrongful act of another, but the natural consequence of defects in its original construction by the city, of which it was charged with notice from thei beginning, and which it was under a continuing duty to repair.”

This case was again before the court, 121 Mo. 22, and it was said: “The case was submitted to the jury on two grounds of negligence of the defendant: First, a failure to provide a reasonably safe covering for the man-hole; second, negligence in leaving the hole uncovered. It is now insisted on behalf of the defendant that there was no evidence of negligence in failing to provide a suitable covering, and hence the issue was improperly submitted to the jury.” The opinion then describes the character of the man-hole and the grating or cover over the same, and then concludes as follows: ‘ ‘ This evidence gives a perfect and complete description of the casting and the cover, and it was not necessary to call witnesses to testify in terms that the cover was too small and therefore dangerous. Had such evidence been introduced it would doubtless have been objected that it was not a proper case for expert evidence. The casting and its cover being described, it was for the jury to say whether the cover was reasonably safe. This casting and cover were placed on the surface of a street where it was subject to jars from vehicles, and the conclusion that the cover was too small or not properly supported is a reasonable one — one which the jury could draw from the evidence. There was therefore no error in submitting this issue to the jury. ’’

Benjamin v. Railroad, 133 Mo. 274, was an action for damages for injuries received from falling into a coal hole, in front of the defendant’s premises, located on a sidewalk. The plaintiff stepped on the cover over the coal hole which turned and slipped out of place, by reason of which her foot went into the hole and she was injured. The negligence charged was the improper construction of the coal hole and cover, and in all essential respects the defect complained of was as serious as that here involved. There, as here, a third person had been permitted by the city to construct and maintain the coal hole for private benefit and use. This court said: ‘ ‘ The principle is well settled that a city, which authorizes excavations in its streets, is not entitled to notice of the dangerous condition in which they have been left, in order to hold it liable for injury to third persons occasioned thereby. ’ ’

The theory of the plaintiff’s petition and case is, that the casting constituting the top and cover of the coal hole was necessarily a dangerous construction, in this, that the cover was too light; that the rim around the under side of the cover was too shallow and too small in diameter, which caused the cover to fit loosely into the iron frame-work; that the iron frame-work was at or near the level of the sidewalk, so that the top of the cover, when placed in position on the top of the iron frame-work, protruded over the edges thereof, and prevented it from fitting firmly over the hole and rendered it liable to turn and become misplaced by persons stepping upon it. The evidence shows that the construction was an unusual one and such as is not in common use in Kansas City. From the description contained in the petition and disclosed by the evidence, it is apparent that it was unlike coal holes and their covers such as are described in other cases, where there is a flange projecting from the inside of the iron frame-work on which the cover rested, and where the cover fits entirely inside of the iron frame-work and is so constructed as to be on the level with the sidewalk. Thus it appears that in this case the construction was that there was a rim underneath the cover, and that instead of the cover fitting into the iron frame-work it rested on the top thereof, and the edges of the cover extended over the iron frame-work. From which it is apparent that if the cover was not of sufficient weight, or if the rim underneath it was not deep enough, as the evidence shows was the case here, the result would he that when a person stepped on one edge of the rim it would necessarily cause the opposite side of the cover to rise up, the rim on the bottom of the cover to become disengaged from the iron frame-work and the lid to slip so as to allow persons to be precipitated into the hole. The defects complained of were shown by the testimony of the experts to be such as would likely produce results such as happened in this case, and in addition thereto-, the practical demonstration made by the witness, Matthews, clearly showed that the construction was liable to result just as happened in this case.

It thus appears that this case is wholly unlike the three cases relied on by the defendant, and that there was sufficient evidence to take the case to the jury upon the allegations and proofs made by the plaintiff.

The necessities and convenience of abutting owners may be such as to warrant a city in authorizing such owners to construct and maintain coal holes in the sidewalks, but their presence and nature necessarily call for greater care and closer inspection by the city and its officers than ordinary sidewalks demand where no such conditions exist. Where such permission is granted by the city, the duty immediately arises, both as to the city and the persons constructing the same, to use ordinary care to see that they are so constructed as to- be reasonably safe for public use. If the construction is such that it is improper or unsafe and the cover is liable to be displaced, the city is not entitled to actual notice, for it has constructive notice from the beginning. [Barr v. Kansas City, 105 Mo. 557; McGaffigan v. Boston, 149 Mass. 289; Tiedeman on Municipal Corporations, sec. 298; Roe v. Kansas City, 100 Mo. 190.]

There was therefore no error in overruling the defendant’s demurrer to the evidence.

II.

The second error assigned is, the action of the trial court in modifying and giving defendant’s instruction number five. That instruction as asked was as follows: “The court instructs the jury that there is no evidence in this case of actual knowledge upon the part of any official of the defendant city of the alleged defective construction of the coal hole, rim and cover. [And though you may find and believe from the evidence that said coal hole, cover and rim were defectively constructed, yet, if you further find that such defective construction could not have been- discovered by a person exercising ordinary care and prudence walking over said sidewalk, then your verdict should be for the defendant city.] ’ ’ The court modified this instruction by striking out the portion in brackets. It is contended that by so striking out such portion, the court authorized a verdict for-the plaintiff, or refused to direct a verdict for the defendant, even though the defect was a latent one.

The contention is untenable. The first instruction given for the plaintiff covered the whole theory upon which the plaintiff’s ease was predicated, and declared that the defendant was liable if the original construction was necessarily a dangerous one, and if the coal hole in such condition had existed for a sufficient length of time for the defendant to-have discovered and corrected the same. The theory of the defendant’s instruction number five, as asked, was that if the defect was such that it could not have been discovered by a person exercising, ordinary care and prudence while walking over the sidewalk, the defendant was not liable, even though the original construction may have been a dangerous one.

The instruction, as asked, did not correctly state the law. Persons passing along a sidewalk may or may not discover latent defects in the sidewalk, but it is no part of their duty to look for them. It is the duty of a city and its officers to look for defects. Fór this reason, the court properly struck out that portion of the instruction. But aside from this, there is really no question of latent defect in the construction. The construction, such as it was, could have been easily detected and ascertained from an inspection of the coal hole and its cover made from the surface of the sidewalk. It did not even require the removal of the cover to the coal hole for an inspector to see that it was both an unusual and a dangerous construction. The fact that the top of the coal hole extended over the rim of the iron framework instead of fitting firmly into the iron frame-work, was of itself sufficient to attract the attention of an inspector exercising ordinary care, and to cause him to examine it more closely and to condemn it.

Moreover, the liability of the city in this case did not depend upon an actual notice, for it was the duty of the city from the beginning to see that the coal hole it permitted to be placed in one of its sidewalks was a reasonably safe construction.

There was, therefore, no error in modifying the instruction, but on the contrary, the instruction as given was more favorable to the defendant that it was entitled to under 'the plaintiff’s theory of the case. The defendant’s theory of the case was that the coal hole, as originally constructed, was a safe construction, but that it was rendered unsafe by the act of Mrs. Miller, who occupied the house abutting that portion of the street, in raising the coal hole and propping it up early in the morning of the day of the accident, for the purpose of admitting air to the cellar, and that such condition had not existed long enough before the accident to impute notice to the city. This idea was expressed in defendant ’s instruction number eight, which was modified and given by the court, and which instruction will be presently considered.

III.

The third error assigned is, the ruling of the court in modifying and giving defendant’s instruction number eight.

That instruction as asked was as follows: “The court instructs the jury that though you may believe from the evidence that said coal hole, rim and cover were defectively constructed so that the cover would slip out of place when stepped upon, yet, if you find that said coal hole had been raised up or displaced by someone before plaintiff fell, and that because said cover was raised up or displaced, it slipped when plaintiff stepped upon it, and caused plaintiff to fall into the hole, then your verdict should be for the defendant city.”

The court modified this by adding, “provided, you further believe and find from the evidence that such displacement was obvious; that is, that it was of such character that an ordinarily prudent person in passing over such walk could have observed and avoided the same.”

The instruction, as asked, was manifestly predicated upon the theory that Mrs. Miller had raised and propped up the cover over the coal hole on the morning of the accident, and that the city had not had time to be charged with notice thereof, and was not liable for the wrong of the witness in so doing. The criticism of the ruling of the court in this regard is, that it permitted the plaintiff to recover, though the cover was so propped up, provided the position was obvious to a passer-by, and thereby broadened the issue and authorized a recovery upon an issue not raised by the pleadings, and that the liability of a city for defects in a sidewalk, caused by the acts of a third person, does not depend upon whether the defect was obvious to the person injured or not; and counsel illustrate their position by saying that the instruction as modified would authorize a recovery where the defect was latent, but would not authorize a recovery where the defect was patent or obvious, and that the city is not liable for latent defects, but is only liable for defects which could be observed by the exercise of ordinary care.

The plaintiff did not seek to recover because of defects that were caused by the acts of a third person, and which had not existed long enough to impute notice to the defendant. In other words, the plaintiff did not ask to recover upon grounds or theories not raised by the petition. The instruction was'based upon a theory of the case which was raised by the defendant and not by the plaintiff.

This case, therefore, does not come within the rule laid down by this court in Chitty v. Railroad, 148 Mo. 64, and cases of like character. The instruction, as asked by the defendant, declared the law to be that the defendant was not liable for defects caused by the act of a third person. The instruction was too broad, for a city is liable for defects in a street caused by third persons, if it permits them to remain after it has constructive notice thereof. And the case made by the defendant in this regard was not simply an isolated instance of a defect in a sidewalk caused by the act of a third person, but that defect, according to the witnesses who testified to its existence, had continued every day for six weeks to two months before the date of the accident. [Carrington v. St. Louis, 89 Mo. 208; Fehlhauer v. St. Louis, 178 Mo. 635.]

The city therefore, was chargeable with notice of such continuing act of the third person in raising and propping up' the cover over the coal hole, and by-the exercise of ordinary care could have remedied it. The theory of the modification by the court was, that the plaintiff was not entitled to recover if the defect caused by the third person consisted of an obvious defect. If the defect was obvious and the plaintiff failed to observe it and was injured, he could not recover from anyone, for his act would have been the proximate cause of the injury. The act creating the defect, in such instance, would have been a remote cause.

The general rule of law is, that when a third person causes a dangerous condition to exist in a highway, the city is not liable for injuries resulting therefrom, unless the condition existed for such a length of time as to impute notice to the city, or unless the city had actual knowledge thereof. If the facts in this case had showed such to be the case, the court should have instructed the jury in the language of the instruction asked. But the same witness who afforded the basis of the instruction, by testifying that she had raised the cover on the morning of the accident, also testified that she had done the same thing every day for six weeks to two months before the date of the accident. Under such a state of facts the court would have been fully justified in refusing instruction number eight entirely, and this being true, the modification of that instruction made by the court did not injuriously affect the defendant at all.

IV.

The defendant next contends that the verdict was the result of passion and prejudice.

The gist of this contention is, that the evidence is so overwhelmingly in favor of the defendant that the court must necessarily find that the jury were guilty of passion or prejudice. The argument is, that the plaintiff is the only witness who testified that the cover was lying flat in its place over the coal hole at the time he stepped on it, and that his testimony is contradicted by that of Mrs. Miller, who says she propped it up on the morning of the accident; by that of Mrs. Keebaugh, who says she saw it so propped up; by that of Mrs. Cohn and Mrs. Samuels, who said that the plaintiff was looking across the street at some houses in process of construction when he stepped on the cover; and by that of Albert Stedman, a witness for the plaintiff, who testified that he saw the cover about five minutes before the accident and that it was slightly out of position.

If it be conceded that the testimony was just as stated, nevertheless, it would not be sufficient to establish the charge that the verdict was the result of passion and prejudice. For it was the province of the jury to believe or disbelieve any of the witnesses who testified in the case, and it was the privilege of the jury to believe the testimony of the plaintiff if the jury were satisfied that his version of the case was the correct one.

Aside from all this, however, there is no necessary and irreconcilable conflict between the testimony of the plaintiff and the .other witnesses. It may be true that Mrs. Miller had propped up the cover over the coal hole, and that Mrs. Keebaugh had seen it so propped up on the morning of the accident, but neither of them testified that it was so propped up at the time of the accident, and Mrs. Miller testified that she was not at home when the accident occurred. Likewise, it may be true, as stated by Mrs. Cohn and Mrs. Samuels, that the plaintiff was looking across the street at the moment he stepped on the cover, yet, this would not establish that the cover was lying flat or was propped up or was slightly out of position. It may be true, as stated by Mr. Stedman, that five minutes before the accident the cover was slightly out of position, and yet it may likewise be true that the cover was lying flat and, so far as the plaintiff could see from the position he was in before he stepped on it, that it was apparently in place.

This analysis, however, is not intended as a comment upon the weight of the evidence, but simply to show that there is nothing in the testimony to induce a fair conclusion or belief that the verdict of the jury was the result of passion or prejudice.

A careful examination of the testimony, and of the instructions given and refused, compels the conviction that the case was fairly presented to the jury; that there is substantial evidence to support the verdict; that, in view of the serious and painful and permanent character of the injuries inflicted upon the plaintiff, the damages assessed cannot fairly he said to he excessive, and therefore there is no legal ground upon which this court can interfere with the finding of the jury and the judgment of the circuit court. The judgment is affirmed.

All concur.