text:
    AYERS, Appellant, v. WABASH RAILROAD COMPANY.
    Division One,
    July 1, 1905.
    1. PRACTICE: Cross-Examination of Witness: Affirmative Matters. When a witness has been sworn in chief by plaintiff to prove certain material facts, the defendant may not only cross-examine him in relation to the matters he was called to prove, but may examine him as to any matter embraced within the issues. Defendant may establish his defense by him without calling any other witness, yet as to those matters he is the defendant’s witness; his testimony is defendant’s, not plaintiff’s; and if plaintiff has, by other evidence than the affirmative matters brought out by defendant, made out a prima facie esise, the court can not take the case from the jury.

      2. NEGLIGENCE: Private Crossing: Whistle. It is not negligence per se to fail to sound the whistle or ring the hell of a railroad engine on approaching a private crossing. The statute does not so require. Whether-or not failure to do either is negligence depends on the circumstances of the case; and where plaintiff’s evidence shows that his condition was such that neither the sounding of the whistle nor the ringing of the hell would have had any effect upon his actions, the company’s failure to do either is not negligence.
    3. -: Footpath: Lying on Track. Where defendant railroad company knows that the public are in the habit of using its track as a footpath, it is the duty of engineers in charge of its trains to be on the lookout for persons using it there. But even then the engineer is not chargeable with notice that a man is lying on the track, and hence the fact that the engine strikes a man lying on the track is not itself sufficient to justify the inference that the engineer saw him or that he failed to use ordinary care to discover him in time to avoid killing him.
    4. -: -: -: Intoxicated Plaintiff. For a mile south of town the public were in the habit of using defendant’s track . as a footpath, and at the end of that mile was a private crossing. Plaintiff, in a state of intoxication, walked down the footpath to- the crossing, and just north of it sat down on the end of a cross-tie, and then all consciousness ceased and his memory of events ended, but later a north-bound train, running thirty or forty miles an hour, struck him. A witness who was approaching the crossing from the east saw the train coming and waited within about thirty-five yards of the track for it to pass, but did not see plaintiff. The day was clear, the engineer’s view unobstructed, and there was no evidence that he saw him in time to avoid hitting him, and he testified that he was at his post looking north, that he did not see plaintiff until he was within 150 feet of him, that plaintiff was then lying on the west side of the west rail, his body showing about five or six inches above the rail. Held, that the natural inference from plaintiff’s evidence is that he, as a result of the stupefaction, had fallen into a recumbent position, and there being nothing in the case to indicate that the engineer, after seeing plaintiff in the dangerous position, could, by the exercise of ordinary care, with the means at hand, have stopped the train in time to have avoided hitting him, the court properly sustained a demurrer to the evidence.
    Appeal from Carroll Circuit Court. — .How. J'no. P. Butler, Judge.
    Affirmed,

      John T. Barker and Gonklmg & Rea for appellant.
    (1) Notwithstanding appellant was a trespasser and guilty of contributory negligence, the railroad company is still liable for the injury, if it saw, or by the exercise of ordinary care could have seen, the dangerous position he was in, in time to have averted the calamity. The law is well settled in this State that the party who has the last fair opportunity of avoiding the accident is not excused by the negligence of any one else. Fearons v. Railroad, 180 Mo. 208; Scullin v. Railroad, 83 S. W. 760; Klockenbrink v. Railroad, 172 Mo. 678; Morgan v. Railroad, 159 Mo. 262; Chamberlain v. Railroad, 133 Mo. 587; Reardon v. Railroad, 114 Mo. 384; Guenther v. Railroad, 108 Mo. 18; Fiedler v. Railroad, 107 Mo. 645; Werner v. Railroad, 81 Mo. 368; Inland Co. v. Tolson, 139 U. S. 557; Railroad v. Ives, 144 U. S. 408; Meyers v. Railroad, 99 Mo. App. 363; McAndrew v. Railroad, 88 Mo. App. 97; Deans v. Railroad, 107 N. C. 686. (2) The Gates Crossing, and the railroad track of defendant from this crossing on into LaPlata, having been used for more than fifteen years by the entire public as a footpath, and having been used to a considerable extent by the public in riding bicycles over and along the track and driving stock thereon,defendant’s employees should have taken notice of such practices and might have reasonably anticipated that persons would be on the track at this point. It was, therefore, their duty to keep a careful lookout in order to discover such persons and prevent injuring them. If they failed to do so, and if the injury to Ayers resulted from such failure, then plaintiff was entitled to recover. Fearons v. Railroad, 180 Mo. 208; Scullin v. Railroad, 83 S. W. 760; Morgan v. Railroad, 159 Mo. 262; Chamberlain v. Railroad, 133 Mo. 587; Kries v. Railroad, 131 Mo. 533; Guenther v. Railroad, 108 Mo. 18; Fiedler v. Railroad, 107 Mo. 645; LeMay v. Railroad, 105 Mo. 361; Lynch v. Railroad, 111 Mo. 601; Powell v. Railroad, 59 Mo. App. 626; Gamer v. Trumbull, 94 Fed. 321; Cahill v. Railroad, 74 Fed. 288; Ash-worth v. Railroad, 116 Ga. 635; Bullard v. Railroad, 116 Ga. 655; Arrowood v. Railroad, 126 N. C. 629; Fleming v. Railroad, 106 Tenn. 374; Railroad v. Crosnoe, 72 Tex. 79; Railroad v, White, 84 Va. 498; Corbett v. Railroad (Utah), 71 Pac. 1065; Mason v. Railroad, 89 Wis. 151; Barry v. Railroad, 92 N. Y. 289; Railroad v. Wymore (Neb.), 58 N. W. 1120; Shearman & Redfield on Negligence, sec. 493. (3) It was a question for the jury to say whether such use of this track was of such long standing and of such a nature and extent, as to impose on the employees of defendant, on approaching this point, the duty of anticipating the probable presence of persons on the track. Garner v. Trumbull, 94 Fed. 321; Railroad v. Lowell, 151 U. S. 209; Hansen v. Railroad, 105 Cal. 379; Taylor v. Canal Co., 113 Pa. St. 162; Railroad v. Rogers, 100 Ya. 324; Troy v. Railroad, 99 N. C. 298. (4) It appears from the evidence of defendant’s engineer that he was looking up the track toward this crossing, continuously, from a distance of one-third of a mile south thereof, and as plaintiff was on the track at this point, and there were no obstructions of any kind from this point south to the approaching train, then the jury might reasonably have said that defendant’s engineer actually saw plaintiff for a sufficient distance within which to have stopped his train. And as plaintiff was sitting on the track, the presumption that' he would leave the track did not apply. (5) The following authorities show that we were not bound by the naked statement of the engineer, but were entitled to have the jury say, from all the facts and circumstances in evidence, whether or not plaintiff could have been discovered sooner. And especially so when we proved by numerous witnesses that plaintiff, could have been seen in this position for at least 2,000 feet: Campbell v. Railroad, 175 Mo. 161; State ex rel. v. Branch, 151 Mo. 642; Imhoff & Go. v. McArthur, 146 Mo. 371; G-annon v. Gas Company, 145 Mo. 502; Spurgin Gro. Co. v. Frick, 73 Mo. App. 128. (6) While plaintiff placed defendant’s eugineer upon the stand, he was only questioned as to the train’s being equipped with modern appliances, and the evidence regarding the distance within which plaintiff could have been seen was brought out by defendant on cross-examination. This being true, the witness was defendant’s witness as to the new matter brought out. Anderson v. Railroad; 161 Mo. 411; State ex rel. v. Branch, 151 Mo. 641; Hume v. Hopkins, 140 Mo. 65.

      Geo. S. Grover for respondent.
    (1) Upon the undisputed facts in this case, it was the plain and absolute duty of the judge below to direct, as he did, a verdict in the defendant’s favor. Zumault v. Railroads, 175 Mo. 288. (2) The cross-examination of the engineer is plaintiff’s evidence, and the engineer is plaintiff’s witness. This is the rule adopted by this court: Page v. Kankey, 6 Mo. 433; Railroad v. Silver, 56 Mo. 265; State v. Jones, 64 Mo. 391; State v. Soper, 148 Mo. 234. And the rule of the United States Supreme Court: Railroad v. Stimpson, 14 Pet. 448.
   VALLIANT, J.

Plaintiff was. struck by a locomotive on defendant’s railroad and suffered personal injuries; he brings this suit for damages. The negligence ascribed to the defendant in the petition is failure to sound the bell or whistle on approaching the point where plaintiff was, and failure of the engineer to use the appliances at hand to stop the train in-time to avoid striking the plaintiff after seeing him in a position of peril or after the engineer by ordinary care might have seen him. The petition states that defendant’s track was and had been for many years a well-recognized public path for pedestrians, with the knowledge and consent of defendant, and that plaintiff was on the track when he was struck, but it omits to say what he was doing or in what position he was. The answer was a general denial and contributory negligence.

The evidence for the plaintiff tended to prove as follows:

Defendant’s railroad runs north and south through the town of LaPlata. There is a well-beaten foot-path in the track, and for many years the people in that vicinity, men, women and children, habitually used the path in going to and from the town. About a mile south of LaPlata there is a private crossing over the railroad, called Grate’s crossing. From that point, looking south, the track for a half mile or more is level and straight, with nothing to obstruct the view. In the afternoon of a clear day, January 8, 1902, the plaintiff had been to town, became intoxicated and started home walking in the foot-path in the track, going south. When he got as far as Grate’s Crossing he sat down on the west end of a cross tie and then and there all consciousness ceased and his memory of events ended.

A regular north-bound' passenger train, running about forty miles an hour, came along and struck him, inflicting serious injuries. As the engine approached G-ate’s Crossing there was no signal given by bell or whistle; the train ran a quarter of a mile past the crossing before it stopped, then backed and took the plaintiff on. Grate’s Crossing was constructed by cross-ties laid lengthwise the track, with plank on the ties. The plaintiff was sitting on the west end of a cross-tie a few feet north of the crossing.

Sinnock, the only witness for the plaintiff near this crossing at the time of the accident, testified that he was approaching the track from the east, and when he got within about thirty-five yards of the crossing he saw the train coming from the. south and waited for it to pass; he did not see the plaintiff until after the accident.

There was evidence tending to show that this train running at the rate of thirty, thirty-five or forty miles an hour, as some of the witnesses thought it was, could have been stopped within three hundred or four hundred feet.

The plaintiff called as a witness the engineer who was operating the locomotive at the time of the accident, and interrogated him on two subjects, that is, asked him how the engine was equipped and what kind of a day it was; then the witness was turned over to the attorney for the defendant for cross-examination, and was examined in regard to the accident, in which examination he stated that when at his post on a level-straight track he could see from a half to three-quarters of a mile ahead, that this track was level and straight for about a quarter of a mile south of Gate’s Crossing, that on this occasion he was at his post on the east side of the cab, looking north, he was running a little over forty miles an hour, at that speed the train could not be stopped shorter than within six hundred or seven hundred feet, that he did not see the plaintiff until he was within one hundred and fifty feet of him, the plaintiff was then lying on the west side of the west rail, his body showing about five or six inches above the rail, as soon as he saw him he used every effort and means at hand to stop, but it was too late, it was then impossible to stop in time to prevent striking him, the position of the plaintiff on the track was such that the witness could not have discerned him sooner than he did.

At the close of the plaintiff’s evidence the court, at the request of defendant, gave an instruction to the jury to find for the defendant; the jury rendered a verdict accordingly and the judgment for defendant followed. The plaintiff has appealed.

The only question for decision is, was the plaintiff entitled to have his ease submitted to the jury under instructions authorizing a verdict in his favor under any view of the evidence?

The plaintiff insists that the testimony of the engineer to the effect that he was at his post and looking, yet he did not see him until it was too late and that as soon as he discovered him he did everything possible to avert the injury, is not the plaintiff’s evidence, and did hot justify the court in giving the peremptory instruction. The proposition is that the engineer was the plaintiff’s witness only in reference to the subjects on which he was examined by plaintiff and as to the rest he was defendant’s witness.

The question of latitude allowed in cross-examination of an adversary’s witness has led to the adoption of one rule in some jurisdictions and a different one in others. A distinguished text-writer on this subject calls one the orthodox rule, and the other the Federal rule (3 Wigmore on Evidence, sec. 1885, et seq.), and quotes for the orthodox rule, Fulton Bank v. Stafford, 2 Wend. 483-485: “When a witness has been sworn in chief, the opposite party may not only cross-examine him in relation to the point which he was called to prove, but he may examine him as to any matter embraced in the issue. He may establish his defense by him without calling any other witness. If he is a competent witness to the jury for any purpose, he is so, for all purposes.” For the Federal rule the same text-writer quotes from Judge Story in Railroad v. Stimpson, 14 Pet. 448, 461: ‘ ‘ The answers in controversy were inadmissible upon the broader principle (now well established, although sometimes lost sight of in our loose practice at trials) that a party has no right to cross-examine any witness except as to facts and circumstances connected with the matters stated in his direct examination. If he wishes to examine'as to other matters, he must do so by making the witness his own, and calling him, as such,, in the subsequent progress of the cause.” "What is there called the orthodox rule has always been the rule in this State. [Page v. Kankey, 6 Mo. 433; Railroad v. Silver, ,56 Mo. 265; State v. Jones, 64 Mo. 391; State v. Soper, 148 Mo. 234.] The learned author above named, after an exhaustive discussion of the subject, says, in section 1895: “The rule under consideration is concerned solely with the order of presenting evidential material; the assumption is that, the fact may be proved on direct examination at a later stage, and the only question is whether it may be elicited during the earlier stage.” That is really the only essential difference in effect between the two rules. Under what is called the Federal rule the defendant may cross-examine the plaintiff’s witness on the subject of his examination in chief and afterwards when defendant comes to introducing his evidence he may recall the witness and examine him on other subjects, making him as to those matters his own witness. Under our rule the defendant need not wait until the time for introducing his evidence has come, but may examine the witness before he leaves the stand on other subjects, yet as to these other matters he is the defendant’s witness; the testimony is the defendant’s and not the plaintiff’s. [Hume v. Hopkins, 140 Mo. 65; State ex rel. v. Branch, 151 Mo. 622 l. c. 641; Anderson v. Railroad, 161 Mo. 411.] In such case if the plaintiff had by other evidence made out a prima facie case, the court could not take it from the jury on account of testimony brought out by defendant in the examination of the plaintiff’s witness touching matters that had not been referred to in the direct examination. Such testimony would be the same in effect as if the witness had, as in conformity with the Federal rule, come down from the stand and been recalled by the defendant after the plaintiff had closed his case. The only difference, as the text-writer above quoted says, is in the order in which the testimony is introduced. Involved in this subject is the question of the right of the plaintiff to cross-examine the same witness on the new subject on which the defendant has examined him, and the right of the plaintiff after having closed his case in chief, to bring out testimony not strictly in rebuttal by examining defendant’s witnesses on subjects upon which defendant had not examined them. Those questions, however, are not in this case, but they are scientifically discussed by the text-writer above quoted, citing and reviewing numerous decisions on the subject.

It is not clear, however, from the record in the case at bar that the plaintiff did not make this engineer his witness on the disputed point; he asked him if his engine was equipped with modern appliances and if it was not a bright day. The only significance of the modern appliances was the facility for stopping the engine and the only point to be attained in proving that the day was clear was to show that the engineer must have seen the man on the track if he was at his post and doing his duty.

¥e have thus discussed the subject of the examination of an adversary’s witness, not because it is a vital question in this case, but because the counsel on both sides have discussed it in their briefs, for even if all that the plaintiff claims on that point be conceded, and if we disregard entirely the evidence the engineer gave on cross-examination, the plaintiff made out no ease for the jury.

There is no statute requiring the defendant to give a signal by bell or whistle on approaching a private crossing; its duty to do so depends on the circumstances of the case. There was, therefore,- no negligence per se in failing to sound the bell or whistle. The plaintiff was guilty of negligence in placing himself in the position of danger. And taking the plaintiff’s own account of his condition it leaves little room to infer that the sound of the bell or whistle would have had any effect on him. This reduces the case to a question of whether the engineer, after seeing the plaintiff in the position of danger, or after he could have seen him if he had been looking, could by the exercise of ordinary care, with the means at hand, have avoided the accident.

The evidence showed that although this occurred on defendant’s right of way and where there was no public crossing, yet it was where the defendant knew that the public was in the habit of using the railroad track for a footpath and therefore it was the duty of the engineer to be on the lookout for persons so using the track. If this man had been walking or standing on the track he could have been seen by the engineer in time at least for a danger signal to have been given, but lying as he was on the west side of the track he was not as conspicuous as a person walking or standing would have been.

The engineer was not chargeable with notice that a man was liable to be found lying on the track, and therefore the fact that the engine struck the plaintiff in that position is not in itself sufficient to justify the inference either that the engineer saw him or that he failed to use ordinary care to discover him in time. The plaintiff’s testimony, aside from that of the engineer, does not undertake to expressly show his attitude. He sat down on the west end of a cross-tie and there the stupefaction of intoxication overcame him, and there the plaintiff’s evidence leaves the result to inference. The natural inference is that he fell into a recumbent position.

Some of the plaintiff’s witnesses said that from a standpoint a quarter or half mile south on a clear day one could see a‘‘ small object” at Gate’s Crossing. The term “small object” in that connection is indefinite and means nothing. Besides, unless the witness is giving the result of an actual experiment or experience, the evidence is incompetent; given a straight, level track and a clear day, the jury were as competent as the witnesses to say how far a given object could be seen. The only witness of plaintiff (not counting the engineer) who was near enough to the accident to have seen the plaintiff on the track if he had been visible to ordinary observation said he did not see him until after the accident, although he saw the train coming and waited for it to pass.

There is no room for the application of the humanitarian doctrine in this case. The learned trial judge had the right view of the subject. The judgment is affirmed.

Brace, G. J., concurs; Marshall and Lamm, JJ., concur in the result, but are of the opinion that the engineer put on the stand by plaintiff was plaintiff’s witness throughout and all his testimony in chief, as well as on cross-examination, was to be taken as part of plaintiff’s case.


source: Caselaw Access Project

author: MARSHALL, J.

license: Public Domain

text:
    VANDEVENTER v. GOSS, Appellant.
    Division One,
    July 1, 1905.
    1. APPEAL: Dismissal: Abstract. Where appellant wholly fails to file an abstract of the record and the purported complete transcript does not contain all the evidence adduced before the referee and the trial court, the appeal will be dismissed for failure to comply with Rules 13 and 14.
    2. -: -: Transcript: Books. In a suit for an accounting between partners, if the complete record does not contain the books and documentary evidence introduced at the hearing before the referee, the appeal will be dismissed.
    3. -: —;-: -: Abstract. Even though there were a complete transcript a failure to comply with Rules 12 and 13 which require appellant to prepare an abstract of the record in which is set forth so much of the record as is necessary to a full understanding of all questions presented to this court for decision, will result in the dismissal of the appeal. Appellant cannot proceed upon the theory that the Supreme Court will read the complete transcript when no abstract of the record has been furnished it.

      Appeal from Monroe Circuit Court. — líon. D. H. Eby, Judge.
    Appeal dismissed.

      J. H. WMtecotton, Thos. P. Bashaw and W. W. Barnes for appellant.

      R. N. Bodine and W. T. Ragland for respondent.
   MARSHALL, J.

This is a proceeding in equity for the appointment of a receiver and an accounting between the parties in their relation of co-partners.

The petition alleges that the partnership was formed in 1870 for the purpose of farming, merchandising and milling, and that it continued to exist until March 14, 1893, when it was dissolved by mutual consent, and that during its continuance the defendant received $25,000 more than he was entitled to out of the partnership funds and assets. The answer admits the formation of the partnership, hut denies the other allegations of the petition, apd asserts that the plaintiff received $30,000 more than he was entitled to out of the funds and assets of the partnership. The case was referred, on the twenty-sixth of December, 1896, to a referee. The referee heard the case and made a report on the twenty-ninth of July, 1901, during the vacation of the court. Thereafter, on the twenty-ninth of August, 1901, the defendant filed exceptions to the report of the referee, specifying thirty-one grounds of exception. The court overruled the exceptions and approved the finding of the referee, and entered judgment for the plaintiff for $5,073.94. After proper steps the defendant appealed.

I.

The appeal in this case must he dismissed on account of a total failure by the defendant to comply with rules 12 and 14 of this court. The defendant filed what purports to be a complete transcript, but he has wholly-failed to file any abstract of the record, much less such an abstract as is required by rule 13. The purported complete transcript covers six hundred and eighteen typewritten pages, but even this does not contain all of the evidence that was adduced before the referee, and that the trial court had before it.

It does not contain the contents of the books and documentary evidence that were introduced in evidence before the referee, and therefore this court is not placed in a position to intelligently determine the various exceptions and errors saved and relied on, and even if the court could or would look into and examine the complete transcript, it would still be compelled to affirm the judgment of the trial court for this reason alone. [McCullough v. DeWitt, 163 Mo. 306.]

In addition to this, however, the plaintiff has not made any attempt whatever to comply with Rules 12 and 13 of this court, which require an abstract of the record to be prepared by the appellant, where the case is brought up on a complete transcript, and which require that the abstract shall set forth as much of the record as is necessary to a full and complete understanding of all the questions presented to this court for decision.

The appellant has filed what is styled on the cover as, “Appellant’s Abstract of the Record, Statement and Brief, ’ ’ but outside of such statement on the cover, there is nothing contained therein which bears any resemblance whatever to an abstract of the record. The pleadings, the order appointing the referee, the report of the referee, the exceptions to the report of the referee, the judgment of the court and the motions for new trial and in arrest, together with a recital of the rulings of the court thereon, and the asking of the appeal, are all that are set out. In the brief appellant claims that the referee erred in allowing some thirty-four different items against him, and asserts that there was either no evidence whatever to support the finding, or that the finding was against the weight of the evidence, and as this is a proceeding in equity, he asks this court to review the evidence and reverse the finding of the referee and the judgment of the trial court.

Even in his brief, appellant does not set forth the evidence bearing upon the items of account complained of, but refers the court to some of the pages of the complete record, where testimony bearing upon the exceptions may be found, and in other instances claims that there is no testimony in the record to sustain the finding, and in still other instances contends that an examination of all the entries in all of the books of account that were in evidence before the referee, will show that the referee erred in the respects set out. The appellant does not even undertake to state the substance of all of the evidence or the names of the witnesses who testified in the case. In short, appellant proceeds upon the theory that this court will read the complete transcript when no abstract of the record has been furnished it.

The appellant has not brought himself within either the letter or the spirit of the rules of this court. In Brand v. Cannon, 118 Mo. l. c. 597, this court, per Gantt, J., said, in speaking of a record that was in like condition:

“It is shown that there were one thousand and sixty-five pages of typewritten matter of the evidence alone. Among other grounds for reversal appellants urge that the verdict was contrary to the evidence; that the court committed error in giving and refusing instructions; and error in permitting medical experts-to answer the hypothetical questions propounded by respondents because said questions assumed matters not in the evidence. It is apparent that it is important to respondents that the substance, at least, of all the evidence shall be before ns to enable ns to rule upon the propriety of some of these questions. By the issue thus raised we have been driven to an examination of this abstract to determine its sufficiency. The first seven pages contain a seemingly fair and clear statement of the pleadings. Then follows about four hundred pages of extracts from the evidence. No attempt is made to state the substance, nor is it stated in a narrative form, nor are there any explanatory headings or words to indicate the object of the evidence, but it consists wholly of literal excerpts of the questions and answers, as they appeared in the bill of exceptions. Many omissions occur, but it is not explained whether the omitted matter is material or immaterial. . . . Bespondents have with great care filed a comparative list, showing how much of the evidence is omitted. To the suggestion of respondents, appellants reply that if they desire the omitted record, they could file it in an additional abstract. But it is apparent at once that this is not the spirit of our statute, or of our rules. When a party obtains a judgment of a court of competent jurisdiction in his behalf, the presumptions are all in favor of its validity, and the correctness of the means by which it was obtained, and the burden is . on one who alleges error to show it.
‘ ‘ The law of this State has east upon the appellant, not the respondent, the onus of preparing a printed abstract of the entire record of the cause, which he shall serve upon his opponent, and file in this court. [E. S. 1889, see. 2253.] If a party relying upon the provision that his opponent, if not satisfied, shall file a further abstract, can cast the burden on his adversary, by filing a wholly insufficient and garbled abstract, it can readily be seen that the burden will be on the respondent to maintain his judgment, and not on the appellant to reverse it.
“Moreover, after the respondents have successfully prosecuted their suit to a judgment, there is no principle of justice that would require them to incur the labor and expense of furnishing, this court with the information necessary to a proper determination of this appeal. . . . Our laws are liberal in providing for reviews of the judgments of lower courts by this court, and it ought not to be considered onerous if we require of one who seeks to set aside a judgment, of a circuit or other court, that he should conform to the mode of procedure prescribed for that purpose. "When the failure has been occasioned by accident, or honest oversight, we have always been ready to condone it; but, where it is palpable, the course followed generally has been to affirm the judgment or dismiss the appeal.”

And accordingly the appeal was dismissed.

In Halstead v. Stone (147 Mo. l. c. 652), it was said: “We have every disposition to be lenient in construing questions of compliance with these rules and with this statutory provision, but under the most liberal construction possible the appellant in this case can not be held to have complied with them. There is, in fact, no semblance of an abstract in the case, and except for that word appearing on the cover and at the beginning of the printed matter inside, no one would have imagined that it purported to be an abstract. The testimony of the witnesses is not set forth in narrative form or otherwise. . . . It is not only the right of the respondent to insist upon a substantial and reasonably fair compliance with the rules, but it is a duty which the appellant owes to the court to bring himself within their requirements. . . . These rules are not mere arbitrary requirements. They are founded upon experience, and when fairly observed facilitate the transaction of the business of the court, and expedite the determination of litigation.” Accordingly the appeal was dismissed.

These principles were again affirmed in Western Storage & Warehouse Co. v. Glasner, 150 Mo. 426; Murrell v. McGuigan, 148 Mo. 334; Clements v. Turner, 162 Mo. 466; Smith v. Baer, 166 Mo. l. c. 404; and Whitehead v. Railroad, 176 Mo. l. c. 479.

In the last case cited it was said: “There is no effort to abstract the evidence at all, and that of only three witnesses is mentioned, whereas eleven other witnesses testified. The pertinency of this observation will be seen when we note that plaintiff says the circuit court directed a verdict for the defendant and the jury returned a verdict. Now it is evident that if we are to review the action of the circuit court on a demurrer to the evidence we are entitled to an abstract of the testimony of all, not merely three, witnesses. Moreover, it often happens that a fragment of testimony standing alone appears to be incompetent, or was erroneously excluded, but when viewed in the light of all the testimony and the rulings of the court it is entirely proper or at least harmless. We have been very conservative in the enforcement of these rules, but a number of cases will show that when the appellant disregards the rules to such an extent that his so-called abstract will necessitate the preparation of one by this court, or the burden and cost of so doing will be entailed on the respondent, we have enforced them by dismissing the appeal. ’ ’

The appellant herein by failing to file any abstract whatever, and by simply referring the court to the complete, or rather incomplete, transcript, would thereby, shift onto the court the necessity of making an abstract of the complete record before it could intelligently pass upon the exceptions relied on by the appellant. This is a burden that this court has always refused to bear. Counsel, who have grown up with a case, are necessarily familiar with the facts adduced upon the trial thereof and can more easily and readily abstract the record and bring out the salient facts in the ease than the judge of the appellate court can do. For the matter to such judge is wholly new matter. This is one of the reasons underlying the rules of this court. Another reason equally cogent is, that counsel are employed by litigants to do such work, and the people of the State have not imposed that duty upon the judges of this court, and do not expect them to spend so much of their time in the performance of such labor.

From the foregoing it appears that the appellant has not presented his ease in such shape that this court can intelligently pass upon the questions presented by him for adjudication. For these reasons the appeal in this case is dismissed.

All concur.


text:
    ST. LOUIS & SUBURBAN RAILWAY COMPANY, Appellant, v. LINDELL RAILWAY COMPANY et al.
    Division One,
    July 1, 1905.
    1. PUBLIC HIGHWAY: How Established. A public highway may be acquired over property of a private individual by, first, a grant or deed; second, a dedication by plat or deed; and, third, by acts in pais which in law amount to a dedication.
    2. -: -: Dedication in Pais: Street: Right of Way of Railroad. The dedication by acts in pais need not necessarily be of the whole right to the property. The fact that a street railway company before and since the eighty-foot street was laid out owned and used a right of way thirty feet wide across the street does not prevent by its acts in pads a dedication by it of the thirty feet to street uses. It is within the power of the city to lay out, establish, condemn or acquire a street to cross the right of way of an existing railroad. A street thus acquired is subject to the paramount right of the existing railroad company, but the two uses of the land for, first, a right of way of the railroad, and, second, for street purposes, are consistent, compatible and legal uses.
    3. -: -: -: -: -: Acceptance: Facts in Evidence. The evidence shows that the city for twenty years treated that part of a previously existing railroad’s right of way included in a street as a part of the street, assessing benefits against the railroad for the street’s improvement, opening and grading the street across it, laying water pipes thereon beneath the surface, constructing sewers thereunder, building sidewalks, and in all respects treating it as much a part of the street as any portion thereof, and that the railroad company knew of such use by the city, consented thereto, and paid its benefit assessments taxed against it. Held, that the conduct of the railroad company amounted to a dedication ki pais of that portion of the right of way included in the street, and the acts of the city constitute an acceptance of the dedication.
    4. -: -: -: Limitation. Where the right of way of a railroad company has been dedicated to the public use by its acts in pais, the defense of the statute that property dedicated to public use can not he acquired by adverse possession, is not available.
    5. -: Dedication in Pais: City’s Authority Over: Railway: Condemnation. Where a street has been dedicated to public use by a pre-existing railroad’s acts in pans, the city has authority to authorize another railroad company to construct and maintain street car tracks on the same. Such railroad company can not condemn a right of way in or across the street, but the city’s authority to authorize it to construct and maintain its tracks in the street does not rest on the law of eminent domain, hut on the constitutional provision which expressly reserves to a city the right to say whether or not a railway shall he operated on any of its streets.
    Appeal from St. Louis City Circuit Court. — How. Franklin Ferriss, Judge.
    'Affirmed.

      Jefferson Chandler for appellant.
    (1) No one can gain title to plaintiff’s property through, or because of a lack of defendant’s diligence in protecting it. Adverse possession of it gives no title to it. Railroad v. Totman, 149 Mo. 657. Plaintiff can not dedicate its railroad ground to the city and keep it at the same time. A dedication of the whole system would be void. Plaintiff can not change its route, or give up its ground, in whole or in part, without the consent of the State, acting directly. Plaintiff has no power to impair its own usefulness by giving away part of its ground to the city. If one railroad company desires to cross the tracks of another railroad corporation, such corporations may agree directly among themselves and not indirectly through the city. If the railroad corporations cannot agree then the law prescribes the exclusive conditions, and the processes through which the crossing can he made. The city is not a factor in the conditions or processes. The power of the plaintiff to operate a railroad, and the limitations upon its power then existing now continue. Plaintiff had no power to consent to the laying of sewers, gas pipes, and other mentioned improvements, in the country highway, and no such power existed in the country highway itself. (2) The court will not hold plaintiff beyond the legal effect of the facts upon which the alleged dedication is predicated. One may dedicate land for a street and reserve the right for a railroad on the same street. Noblesville v. Railroad, 30 Ind. 1; Railroad v. Waycross, 91 Ga. 575 ; Railroad v. Larson, 40 Kan. 301. (3) The law of dedication in pais has no application to the construction of a railroad crossing by a public street; no record is made of a dedication in pais. The city in-opening public streets is required • to proceed in so. doing by ordinance. It is not comtemplated in law that the title to city streets shall rest in parol license. What occurred between the plaintiff and the city or'persons in the absence of defendants, is not evidence in favor of defendants at all. Green-leaf Evidence, sec. 305. (4) There are only two ways known to the law of Missouri to effect a crossing of one railroad’s company’s track by the tracks of another railroad company: (a) It may he done by agreement of the parties, (h) It may be done by condemnation. There is no such thing known to the law as that such right arises in pais. The courts are the judges of the public welfare. Railroad v. Kansas City, 110 Mo. 510; 2 Tucker on the Constitution, 870; Monongahela N. Co. v. United States, 148 U. S. 312; Loan Assn. v. Topeka, 20 Wall. 655; Railroad v. Nebraska, 164 U. S. 403. ■ (5) The Legislature having provided who shall determine .the questions arising out of an effort of one railroad company to cross another, no other person or tribunal can substitute its judgment for that of the tribunal appointed. Mills, Eminent Domain, see. 84; Springfield v. Whittock, 34 Mo. App. 649.
    Boyle, Priest é Lehmcmn for respondent.
    (1) The strip of land in question is a public highway and a part of Hamilton avenue, becoming such: ■First. — By prescription through use as a public highway for more than ten years. Schenck v. City of Butler, 50 Mo. App. 106; Heitz v. St. Louis, 110 Mo. 618; Meniers v. St. Louis, 130 Mo. 274; Albert v. Railroad, 2 Tex. Civ. App. 664. Second. — By dedication in pais, made both by the owners of the fee and by the owners of the railroad right of way. City of Eureka v. Armstrong, 22 Pac. 928; Ellsworth v. Lord, 40 Minn. 337; Kellogg v. Malin, 50 Mo. 496 ; Chouteau v. Railroad, 122 Mo. 375; Hannibal v; Railroad, 49 Mo. 480; Railroad v. Brownell, 24 N. Y. 345; Railroad v. Greenbanlc, 52 N. Y. 510; Lewis on Eminent Domain, sec. 491; Railroad v. Chicago, 29 N. E. 1109; Railroad v. Railroad, 66 Mass. 605; Railroad v. Chicago, 166 U. S. 226; 3 Elliott on Railroads, sec. 1135; City v. Railroad, 29' N. E. 484; Lade v. Shepherd, 2 Strange 1004; Gamble v. St. Louis, 12 Mo. 618; Stevens v. Nashua, 46 N. H. 192; Moffett v. South Park, 138 111. 620; Witter v. Donitz, 81 Wis. 385; Manderschid v. Dubuque, 29 la. 73; Dillon on Mun. Corp., sec. 631; Rosenberger v. Miller, 61 Mo. App. 422. (2) Formal acceptance by the city was not necessary to its establishment ás a public highway. Boyd v. Springfield, 62 Mo. App. 456; Brown v. Railroad, 20 Mo. App. 427; State v. Wells, 70 Mo. 635. (3) The city has accepted the strip of land in question as a part of Hamilton avenue. Gibson v. Zimmerman, 27 Mo. App. 90; Mans v. Springfield, 101 Mo. 613; Hill v. Sedalia, 64 Mo. App. 494; Golden v. Clinton, 54 Mo. App. 100. (4) A public highway or crossing may be established over a railroad right of way by user. Easley v. Railroad, 113 Mo. 236; Railroad v. Crownpoint, 50 N. E. 741; Railroad v. Ft. Branch, 49 N. E. 2; Railroad v. Britt, 74 N. W. 933; Railroad v. Greensburg, 35 Atl. 122; Kelly v. Railroad, 9 N. W. 589; Railroad v. Kaufman Co., 42 S. W. 586; Soward v. Railroad, 33 la. 386; Railroad v. Jordan, 10 A. & E. R. R. C. 301; Railroad v. Boswell, 36 N. E. 1103; Railroad v. Waycross, 13 S. E. 835; Village v. Railroad, 46 Minn. 50'5. (5) The question involved is to be determined, in so far as it depends upon the intention of the proprietors of the land, by past acts evidencing that intention, rather than by present testimony concerning it. Columbus v. Dahn, 36 Ind. 330; McCain v. Des Moines, 174 U. S. 168. (6) A street or highway, however established, whether by prescription or dedication, may be put to any public use consistent with its use as a highway. Railroad by Whitham, 155 111. 514; Railroad v. Stephens, 29 S. W. 14; Julia Building Ass’n v. Bell Co., 88 Mo. 258; Elliott on Roads and Streets, 133; Cincinnati v. White, 6 Peters 431; State v. Walters, 69 Mo. 463; State v. Wells, 70 Mo. 635; State v. Proctor, 90 Mo. 334; Railroad v. Railroad, 97 Mo. 457. (7) A street once established is such for all the public, and the original owner may not exclude any from its use. Atty.-General v. Farr, 19 N. E. 358; Penny Pot Landing v. City, 16 Pa. St. 79; 9 Am. and Eng. Ency. Law, 23.
   MARSHALL, J.

This is a bill in equity to enjoin the defendants from crossing the tracks of the plaintiff on Hamilton avenue, in the city of St. Louis. Upon final hearing the trial court dissolved the injunction and dismissed the bill, and the plaintiff appealed. This being a proceeding in equity, the facts will be stated in the course of the opinion.

I.

The decisive question in this case is, whether Hamilton avenue is a public highway or street in the city of St. Louis. All other questions are subsidiary to this main question and the solution of the main question carries with it the determination of the greater portion of the contention of counsel for plaintiff in this case.

All the parties hereto are street railway companies in the city of St. Louis, organized under the laws of this State. . The plaintiff is a successor or grantee of the old St. Louis & Florissant Railway Company. In 1870, the St. Louis & Florissant Railway Company was a steam railway, operated upon a narrow-gauge track. The eastern terminus was at a point almost midway between Grand avenue on the east, Vandeventer on the west, Olive on the south, and Washington avenue on the north. Its western terminus was Florissant in St. Louis county. Defendant acquired its own right of way, which, at the point here involved, was thirty feet wide. At that time nearly the entire route of said railway lay outside of the city of St. Louis. When the city and county of St. Louis were separated and the limits of the city were extended, the locality involved in this case became a part of the city. At that time, and for many years afterwards, there were no streets in that portion of the city where Hamilton avenue now is, and very few houses of any character or description, About 1875- the owners of the property in the neighborhood of Hamilton avenue subdivided their land and platted it, laying it off into city lots and making them abut the right of way of the old railroad company. Thereafter, the locality rapidly increased in population and importance.. At a time, not definitely stated, but which all the evidence shows to have been about eighteen years before the institution of this suit, streets were projected, running north and south and crossing the right of way of said railway company. Among them was Hamilton avenue. That street was laid out as a public highway eighty feet wide. It ran north and south and crossed plaintiff’s right of way at right angles. The plaintiff and its predecessors never dedicated by deed or plat the portion of the right of way as a part of Hamilton avenue, nor was the same ever condemned for street purposes. But the city of St. Louis opened and graded the street for its full width.across the plaintiff’s right of way; laid water pipes thereon beneath the surface; constructed sewers thereunder; built sidewalks, and in all respects made it, so far as appearance and use was concerned, as much a part of the street as any other portion thereof. Electric wires were strung on and over the same, and the city, every year, sprinkled it just as it did other public streets. The cost of construction of the street and sidewalk and of the sprinkling was assessed against plaintiff or its predecessors as an abutting owner, and it was paid by the plaintiff and its predecessors. On each side, to the east and west of Hamilton avenue, the plaintiff, or its predecessors, placed signs on the right of way lying to the east and west of Hamilton avenue which read: “Private right of way — Keep off the tracks.”

During all said period of eighteen or twenty years, while the city was so using and treating it as a part of the public highway, Hamilton avenue, including the portion of the plaintiff’s thirty-foot right of way, aforesaid, was opened to public use, and was used generally by citizens for all the purposes for which streets are commonly used. During all that time neither the plaintiff nor its predecessors objected to such use or claimed that it was not a public highway. On the contrary, the plaintiff and its predecessors paid all of the charges, special taxes, and assessments which were levied against the remaining part of its private right of way, and which were levied by the city for the improvement of Hamilton avenue, including the portion of said thirty-foot strip. Originally the track of the plaintiff and its predecessors, at said point, was a T rail, and plaintiff and its predecessors placed a hoard crossing thereat, but subsequently the plaintiff removed the T rail from within the limits of what is claimed to be Hamilton avenue and substituted therefor a girder rail, such as the city ordinances require shall be used by street railroads. The remaining portions of the plaintiff’s track, outside of Hamilton avenue, and other streets that are in the same condition as to being public highways, and which portions lie entirely within the limits of the plaintiff’s right of way, still have T rails thereon. At no time until shortly before the institution of this suit had the plaintiff or its predecessors claimed or asserted that Hamilton avenue did not include the portion of said thirty-foot strip aforesaid. In fact the plaintiff does not. now claim that it is not a public highway for all the uses to which a public highway can be legitimately applied or devoted, except for the construction of a rival street railway thereover;

A public highway may be acquired over property of a private individual by, first, a grant or deed; second, a dedication by plat or deed, and, third, by acts in pais, which in law amount to a dedication. [Heitz v. St. Louis, 110 Mo. 618; Meiners v. St. Louis, 130 Mo. 274; Buschmann v. St. Louis, 121 Mo. 523.]

The question in this case is, whether or not the conduct of the plaintiff and its predecessors amount to a dedication by acts in pais, and whether or not the acts of the city constitute an acceptance of the dedication.

The testimony clearly and conclusively shows that the city treated the said portion of said strip as a part of Hamilton avenue for nearly twenty years before this suit was instituted and that it used it for all the purposes for which a street on, under and above the surface, is commonly used. The plaintiff knew of such use by the city, consented thereto, and paid the assessments for the improvement of it as a street in like manner and degree that any other abutting owner pays for the improvement of a street. There is scarcely an act that could be performed by a city with reference to a street that has not been performed by the city with reference to Hamilton avenue, including the strip in controversy.

The plaintiff, however, contends that a dedication, whether by deed, grant, plat or acts in pais must be and necessarily is of the whole right to the property, and that there is, and can be, no dedication in this case because the plaintiff and its predecessors have always used it as a part of - its right of way. This contention is untenable. It was, and is, clearly within the power of a city to lay out, establish, condemn or acquire a street to cross a right of way of an existing railroad company. The street thus acquired is subject to the paramount right'of the existing railroad company, but the two uses of the land for, first, a railroad right of way, and second, for street purposes, are consistent, compatible and legal uses . [Railroad v. Chicago, 166 U. S. 233; Railroad v. Gordon, 157 Mo. l. c. 77.]

This is necessarily.true, for otherwise a street could never be projected across a railroad, nor could the city acquire the right of way to have a street cross a railroad even though it sought to do so by condemnation. Tet section 4 of article 12 of the Constitution expressly reserves the power and right of eminent domain in such cases, and authorizes a proceeding by a city to condemn the right to construct and maintain a street across the right of way of an existing railroad. In fact the plaintiff concedes the city could have acquired such a right in this case if it had proceeded by condemnation. If it had proceeded by condemnation, it would have acquired only the same right it did acquire by a dedication, by the plaintiff, by acts in pais. Such a dedication did not in any manner impair the plaintiff’s right to use the property as a right of way, nor did it amount to a breach of trust by the railroad of its right to the land covered by the right of way.

The plaintiff, however, contends that under the decision of this court in Railroad v. Totman, 149 Mo. 657, title to railroad property can never be acquired by adverse possession under the statutes of this State where such possession began since the taking effect of the General Statutes of 1865. That case held that a railroad right of way constituted property devoted to a public use, and, therefore, the statute of limitations did not run against the railroad and in favor of one who had taken possession of a portion thereof. In other words, that such a possession, under our statutes, does not constitute adverse possession and can never ripen into a title by limitation. The conclusion, reached in that case met with the approval of this division of this court, and nothing has appeared since to cause the court to change the conclusion then announced. But the doctrine there announced in no manner determines the question here involved. The question here is, not whether the city acquired title by limitation, but whether the plaintiff and its predecessors dedicated the thirty-foot strip, aforesaid, to public use as a street, by acts in pais. A dedication by acts in pais may be a perfectly valid dedication, although the city has not been in the possession and enjoyment thereof for a period of time necessary to constitute title by limitation. In other words, the two legal propositions depend upon totally different principles. The conclusion is irresistible that the plaintiff and its predecessors. dedicated that portion of its thirty-foot strip, lying within the limits of Hamilton avenue, to public use as a street, subject to its right to maintain and operate its railroad thereon. Being dedicated as a public street it passed at once to the control of the public authorities for all purposes for which any pub-lie street may lawfully be used. [Elliott on Roads and Streets, p. 133.]

II.

The next question in this case is, whether Hamilton avenue being a public street, the city of St. Louis had a right to authorize the defendants to construct and maintain street car tracks on the same.

The plaintiff contends that the question of the necessity for the acquisition of a right of way for a railroad is a judicial question, and must be decided by the courts, and is beyond the power of a municipality or of the Legislature to determine. In the abstract, where a railroad company seeks to condemn private property for a railroad right of way, the use to which it is to be devoted is a judicial question. But this rule of law is not determinative in this case, for the defendants are not seeking to condemn plaintiff’s property for a right of way, but are claiming a right to run over the streets by virtue of an ordinance duly enacted by the city of St. Louis authorizing them to do so.

Given the premise that Hamilton avenue is a public street, it follows that the defendants could not condemn a right of way over the same, for section 20 of article 12 of the Constitution expressly reserves to a city, town or village the right 'to say whether or not a street railroad shall be operated on any of its streets. Street railroads constitute a legitimate use of a public street. [Julia Building Assn. v. Bell Telephone Co., 88 Mo. 258.] Such railroads are simply another method of transporting citizens over the streets, and it has been held that they may not only be legally authorized on the street, but that their presence thereon does not constitute an additional servitude.

The infirmity of the plaintiff’s whole contention upon this branch of the case consists in its failure to differentiate between an ordinary acquisition of a right of way over private property by means of the exercise of the right of eminent domain, and the construction of a street railroad on an existing street under, and hy virtue of, the authority and permission of the city. Under the facts in judgment here it is impossible to escape the conviction that the plaintiff and its predecessors intended to dedicate the portion of its right of way lying within the limits of Hamilton avenue to public use as a street, subject to its right of way thereover, and being a public street it was within the power of the city to permit the defendants to construct, maintain and operate a street railway over the same, and that the plaintiff is not now in a position to claim that such a street railway, even though it be a rival railway, could only be constructed across plaintiff’s right of way after a right so to do had been acquired by condemnation.

The judgment of the circuit court is right and is affirmed.

All concur.