text:
    THE STATE ex rel. BROWN, Collector of Lincoln County, v. MIKE DUMPHY, Appellant.
    Division One,
    January 14, 1909.
    1. DRAINAGE DISTRICT: Assessment: Set-Off: Appropriation of Existing Levee. The value of an existing levee, belonging to a landowner and appropriated by the drainage district, cannot be set off and credited on the benefit assessment assessed against him, when he is sued by the county collector for the amount of the delinquent assessment. The collector has no interest in the taxes and can sue only as a trustee for the true owners, who, in reality, are the persons who performed the labor and furnished the materials that went into the levees and ditches.
    2. -: -: -: -: Under Agreement. An answer, to the collector’s suit to collect a delinquent benefit assessment assessed against a landowner of the legally incorporated drainage district, which pleads that he had at his own expense constructed a levee that fully protected his lands from overflow, and that the promoters of the new drainage district agreed with him that if he would sign the petition therefor they would allow him upon the benefits assessed against his lands for the construction of the new and larger levee the reasonable value of the old levee appropriated by the district, and that the commissioners made use of the old levee and being informed of the agreement ratified it and promised to ascertain such value and credit him with the amount thereon on assessments against his land, does not state a defense, and was properly stricken out.
    Appeal from Pike Circuit Court. — How. D. E. Eby, ■ Judge.
    Affirmed.

      Peter T. Barrett and Geo. W. Emerson for appellant.

      O. E. Avery, W. A. Dudley and J. D. Eostetter for respondent.
   WOODSON, J.

This is the second case mentioned in and tried with the case of this plaintiff v. A. C. Wilson, ante, page 215.

The petition is the same as in the other cases except as herein stated. The land sought to be charged with lien in this case is described as Lot 3, Dalton tract, Survey 1756, Township 49, Range 3 E., Lincoln county, Missouri, and five aeres S. E. Corner W. end Lot 6, Survey 742, same county and State. The total amount sued for being $335.49, with interest, penalties and costs. There is no count in this petition for the first and second installments of the first assessment. The amount sought to be recovered on the first count in the petition being $122.38 for both tracts, and being for the third installment of the first assessment, with interest from January 11, 1896. The second count being for the sum of $122.38, and being for the fourth installment of the first assessment, with interest thereon from July 1, 1896, and the third count being for $90.73, and being the first installment of the second assessment, with interest thereon from September 1, 1898. And in each of said counts the plaintiff also seeks to recover penalties and costs.

The answer filed in this case is the same in all respects as the one filed in that case, with this exception — the following additional allegations appear, in this and not in that answer:

“For further answer and defense to the - counts of said petition defendants says that long prior to the alleged establishment of the Cap-Au-Gris Drainage and Levee District, to-wit, about the year 1887, he and- other landowners along the Mississippi river built and erected at great expense to defendant along said river and the lands of defendant and others, a substantial and permanent embankment or levee, and thereafter-, and up to the taking and appropriating of the same by said Cap-Au-Gris Drainage and Levee District as hereinafter stated, kept up and maintained the same at great expense to defendant. That said levee and embankment so built and maintained by defendant and others on and over their said lands and along said river fully and perfectly kept back and off of defendant’s lands the water from said river, and was so constructed and maintained as to give to defendant ample security and protection to his said land from overflow and surface water and was so constructed that the maintenance thereof for a great number of years would have been but a trifling cost, and expense to defendant. That in the construction, building and maintenance of said old levee on and over his said land the defendant paid out and expended at least the sum of--— dollars.
“That at the time of the commencement of the proceeding in the county court of Lincoln county for the establishment of the said Cap-Au-G-ris Drainage and Levee District, to-wit, about the year 1893, the levee and embankment heretofore built and maintained by defendant and others, which is designated herein as the ‘Old Levee,’ was in good condition and fully protected defendant’s said lands from overflow and surface water and could have been maintained in that condition for a great number of years at a little or no cost to defendant. That outside of the lands, so protected by said old levee, and adjoining thereto, was a large body of low bottom lands subject to overflow and unprotected. That the owners of said low unprotected bottom lands became desirous of having their lands protected from overflow by levees, and wishing to appropriate for the benefit of their lands the old levees built by the defendant and others, became promoters in a scheme and plan to organize and establish a new Drainage and Levee District to be known as the ‘ Cap-Au-Gris Drainage and Levee District-,’ inclosing their lands by new levees, joined on to said ‘Old Levee,’ making said ‘Old Levee’ a part of the system by using and appropriating the same.
“That in order to. induce defendant and other landowners in said levee to consent to said scheme and plan, and consent to the use and appropriation of said ‘Old Levee’ by the proposed new district, it was stated and represented to them by said unprotected landowners, the promoters of said scheme and plan to form a new district, that if they would consent, the quantity of said ‘Old Levee’ on each owner’s land so used and taken by said new district would be ascertained and determined by measurement and the value thereof estimated and fixed, and the value to each of said ‘Old Levee’ owners when so ascertained, should be allowed to each and taken and accepted as a credit and payment on such assessments and benefits as should thereafter be made by said new district against the lands of defendant and other ‘ Old Levee ’ owners. That defendant at first refused to consent to have his lands included in'said proposed new district or to consent to the use and appropriation of said ‘Old Levee’ by said new district, but after repeated and positive assurances from the promoters of said new district that the value of said ‘Old Levee’ to defendant and each of the other landowners in said ‘Old Levee’ should be ascertained and determined and when so ascertained should be allowed and taken and accepted as a credit and payment on such assessments and benefits as should thereafter be charged against their lands by said proposed new district, and believing and relying upon such assurances, he did finally consent to the use and appropriation of said ‘Old Levee’ by said new district.
“That thereafter the commissioners acting and appointed for said Cap-Au-Gris Drainage and Levee District, and before .any assessments or benefits and damages were made, were informed and" made acquainted with the terms and conditions upon which defendant and other owners of said ‘Old Levee’ gave their consent to the nse of said ‘Old Levee’ by said new district, and being fully advised therein consented and agreed thereto, and then and there on behalf of said Cap-Au-Gris Drainage and Levee District promised and agreed with defendant and other owners of said ‘Old Levee’ that if they, the owners of said ‘Old Levee,’ would consent and agree for said commissioners to take, appropriate and use said ‘Old Levee’.as a part of the system of levees necessary to be built and erected for the new district, that they, the said commissioners, would ascertain the quantity of said ‘Old Levee’ and-allow and credit defendant and each of said ‘Old Levee’ owners on such assessments and benefits as should thereafter be made, the value thereof computed per cubic yard at the price the building of hew levees would cost said district.
“That defendant did consent thereto and that in pursuance of such consent and agreement, said commissioners did take, appropriate and use said ‘Old Levee’ as a part of the system of levees for said Cap-Au-Gris Drainage and Levee District.
“That upon the filing of the report of the said commissioners assessing benefits and damages to the lands in said new district, defendant filed no exceptions or objections thereon on account of said ‘Old Levee,’ for the reason that he relied upon the agreement so made and upon assurances then again given and made to defendant and other ‘Old Levee’ owners by said commissioners that the value of defendant and other"‘Old Levee’ owners interested in said ‘Old Levee’ would thereafter be ascertained in the manner aforesaid and when so ascertained each ‘Old Levee’ owner would receive, credit on his assessments for his share or part of such value.
“That frequently thereafter, and while the work of building levees for said new district was in progress, said commissioners promised to have the said ‘Old Levee’ measured and its value fixed, as agreed, and to credit defendant the proportionate part thereof according to length over and on his land. That such promises continued up to the year 1898, the defendant all the time insisting to said commissioners that they have said ‘Old Levee’ measured and its value fixed. That said commissioners instead of doing so delayed said measurement and valuation upon one pretext and another hut all the timé assuring defendant that they would do so; and defendant says that it has now been nearly four years since the completion of the work on said new levee; and that so far no measurement or valuation of said ‘Old Levee’ has been made and that their failure and neglect to so measure and value said ‘Old Levee’ after such a length of time amounts to a refusal now to do so. That all the available funds in the hands of said commissioners and all funds in prospect have been exhausted and expended, and that said commissioners have not now and cannot obtain by any legal proceeding the necessary funds to pay for said ‘ Old Levee, ’ and that by reason thereof the defendant has no remedy at law for the collection of the amount of the value of said ‘Old Levee’ so used and appropriated by said commissioners. That the value of said ‘Old Levee’ so belonging to defendant is the sum of -dollars.
“That P. D. Brown, collector of revenue of Lincoln county, Missouri, at whose relation and to whose use this suit is commenced, has no interest individually or as an officer in the subject-matter of the suit, and is made plaintiff herein only because of the requirements of the statute, but that all interest herein is in the alleged Cap-Au-Gris Drainage and Levee District.
“Defendant says that by reason of the failure and neglect of said commissioners to measure and ascertain the value of said ‘Old Levee’ and the defendant’s interest and property therein, he has fr'een deprived and denied credit on' said assessments so sued for in said----counts, and that it would now he inequitable and unjust to permit plaintiff to recover judgments on said - counts, and to have the same charged against defend'ant’s lands without first ascertaining the value of defendant’s interest and property in said ‘ Old Levee, ’ and when so ascertained to allow the amount thereof as a credit and payment on said assessments as agreed.
“Wherefore, defendant prays the court that if it should be found that defendant is indebted on said ■ — ■— counts, or either of them, that the court will also ascertain and adjudge the value of the defendant’s interest in said ‘Old Levee’ and will apply such value as a credit and payment on such assessments, and for such other relief as may be proper in the premises.”

The reply in this is the same as it is in that case.

The trial court on motion struck out the foregoing allegations from the answer, and defendant duly excepted; and notwithstanding the action of the court in so striking out that portion of the answer, defendant nevertheless offered to introduce evidence which tended to prove the same, which upon objection being made was excluded, and counsel duly excepted.

The findings and judgment of the trial court were for the plaintiff upon all the counts in the petition.

Defendant duly prosecuted an appeal to this court.

OPINION.

I. It is insisted by defendant that the trial court erred in striking out portions of his answer and in not permitting’ him to show the terms of. the 'contract alleged to have been made by and between him and some of the promoters of the organization of the drainage district. He alleges in his answer that prior to the organization of the Cap-Au-Gris Drainage and Levee District he had at a cost of several hundred dollars constructed an old levee along a part of the present route of the present levee, which practically protected his lands from the overflows complained of, and that in order to induce him to sign the petition the promoters of the present organization agreed with him that if he would sign the petition they would allow him upon the benefits assessed against his lands for the construction of the new levee the reasonable value of the old levee previously constructed, and that relying upon that promise and agreement he signed the petition asking for the improvements. Defendant offered evidence tending to prove those allegations, which was on objection made by plaintiff excluded. To that action of the court defendant duly excepted.

None of the cases cited by counsel for defendant sustain their contention regarding the question in hand. Those cases authorize the defendant when sued on a special tax-bill to set off a debt due him from the owner of the tax-bill. [Kansas City to use v. Ridenour, 84 Mo. 253.] The facts of that case are so different from the facts of this we are unable to see in what way it lends support to defendant’s contention.

In the case at bar neither the collector of revenue of Lincoln county, nor the Cap-Au-Gris Drainage and Levee District, is the owner of the taxes sued for in this case. It was not organized for gain or profit for itself, has no capital, and does not assess or collect the tax in question for its own use or benefit, but for the purpose of paying for the labor done and materials furnished in constructing the improvements. The taxes sued for, in reality, belong to the persons who performed the labor upon and furnished the materials which went into the levees and ditches, or to persons who advanced the money with which the labor and materials were paid for. If, therefore, we should allow the set off contended for by defendant in this ease, then the owner of the taxes and not the parties who made the contract with defendant would have to pay for the old levee. In other words, we would he making one man pay the debt of another. No court should tolerate or sanction so unjust a proposition.

It is useless for us to attempt to point out in this case how defendant should have proceeded in order to have protected his rights under the contract while the district was being organized, and the assessment made, or to suggest what his remedy now is, if any, for the breach of that alleged contract. It is. sufficient for us here to say that his present attempt to set off his damages against the collector who has no interest in the taxes and is only suing as a trustee for the true owner of the taxes, cannot be done in this case.

All other questions involved in this case are determined in the Wilson case, supra.

We are, therefore, of the opinion that the judgment was for the right party, and should be affirmed. It is so ordered.

All concur.


source: Caselaw Access Project

author: WOODSON, J.

license: Public Domain

text:
    THE STATE ex rel. BROWN, Collector of Lincoln County, Appellant, v. A. C. WILSON et al., Appellants.
    Division One,
    January 14, 1909.
    1. TAXES: Return of Delinquency: Limitations. It is not a prerequisite step to the bringing of a suit for back taxes (or delinquent benefit assessments levied by a drainage district), that the taxes be returned and certified as delinquent. If the levy was properly made and the taxes have not been paid, the suit can be maintained at any time within'five years after the date upon which the taxes should have been returned delinquent, whether actually returned delinquent or not.

      ‘ 2. -: -: Prima-Facie Case. If the suit is brought after the date upon which the taxes should have been returned delinquent, the only effect a failure to so return them has upon the suit is to destroy the taxbill as prima-facie evidence that the taxes are past due and payable. It does not impair the lien or the right of the State to collect the taxes by suit.
    Appeal from Pike Circuit Court.— Eon. D. E. Eby, Judge.
    Reversed and remanded (with directions).

      O. E. Avery, W. A. Dudley and J. D. Eostetter for plaintiff-appellant.

      Peter T. Ba/rrett and Geo. W. Emerson for defendants-appellants.
   WOODSON, J.

This is one of the cases referred to and tried with the case of this plaintiff v. A. C. Wilson, ante, page 215.

The petition in this case is the same in all respects as the one filed in that case, except additional parties are made defendants and different lands are sought to be charged with taxes levied against it by the same assessments involved in that case. The answer was substantially the same as is the answer in that case, and the evidence in this did not materially differ from what it is in that case. The only question in this case not decided in.that one regards the taxes assessed against Lot 8, Survey 1653, Township 49', Range 2 E., Lincoln county.

The amount of the assessment was $650, divided into four installments. The amount sought to be recovered in the. first four counts was $162.50 each; and that in the fifth count $68.40. The court found for plaintiff on the first four counts, but on the fifth count the court found that the taxes were only due on 101.4.1 acres, the east side of said Lot 8, and found for the defendant as to the balance of the’ lot, the same being sixty acres.

The court found that the levy had been properly made, and that the taxes have not been paid. While the record fails to show that the taxes on that sixty acres had not been returned and certified as delinquent, yet .that was not a prerequisite step which should have been taken before suit could have been properly instituted. The suit may be instituted any time within five years after the date upon which the taxes should have been returned delinquent, whether actually returned delinquent or not. If that date is passed and suit is brought without the return of delinquency haying been made, the only effect that failure of duty has upon the suit is to destroy the tax-bill of its primafacie effect as evidence that the taxes are past due and payable, but in no manner impairs the lien or the right of the State to collect the taxes by suit. [State ex rel. v. Hurt, 113 Mo. 1. c. 96; State ex rel. v. Bank, 144 Mo. 1. c. 384; Thomas v. Chapin, 116 Mo. 1. c. 399; State ex rel. v. Bank, 120 Mo. 161; State ex rel. v. Harper, 83 Mo. 670.]

The record in this case, notwithstanding the absence of that certificate of delinquency, abundantly shows that the taxes were duly levied, that the return day of delinquency had passed, and that they have not been paid. Those facts are not disputed and authorized a recovery by plaintiff.

The trial court erred in not so holding; and the judgment is reversed and the cause remanded, with directions to enter judgment for plaintiff on all the counts for the amounts sued for, together with interest, attorney fees and costs, as is provided by statute.

All concur.


author: LAMM, P. J.

text:
    ELDRIDGE G. RIGGS v. METROPOLITAN STREET RAILWAY COMPANY, Appellant.
    Division One,
    January 14, 1909.
    1. NEGLIGENCE: Ordinance Regulation: Issue Eliminated. Where a violation, of a street car fender ordinance is one of the specifications of negligence pleaded, but the cause was not put to the jury on that issue, that phase of the case is thereby eliminated.
    2. DEMURRER TO PLAINTIFF’S CASE. Where defendant offered a demurrer to plaintiff’s evidence, but did not stand upon it when it was overruled, but went on and put in its own evidence, that demurrer is afield, and the case must be viewed as a whole.
    3. NEGLIGENCE: Bridge in Street: Anticipating Persons on Track: Duty to Look. • Where a bridge, in the center reserved for railway tracks, on each side of them a driveway for wagons, and next to the driveways a sidewalk for pedestrians, is to all intents and purposes a continuation of a public street, it was the duty of defendant, although at the end of the bridge across the central part two-by-four slats projecting slightly above the surface were nailed to the floor to prevent wagons from passing on the track, to anticipate the presence of pedestrians on the track at one o’clock at night and to keep a lookout for them. Those slats filled no office of warning to pedestrians of exclusive railroad use. Resides, the primary user in a public street is in the public at large, and both pedestrian and railway company having a mutual and correlative right to use the street, or the bridge which is a continuation of the street, their relative rights and duties are regulated by the exercise of due care, and due care on the part of a railway company requires it to keep a lookout ahead to prevent injury to a footman.
    4. -: -: -: -: Theory at Trial. Where both parties tried the case on the theory that it was defendant railway company’s duty to keep a lookout for the presence of plaintiff footman on the track at the point of the accident, defendant will not be heard on appeal to contend that, under the circumstances, it owed plaintiff no such duty. Common error is not reversible error.
    5. -: -: -: -: Nighttime. The fact that the time of the accident was after midnight did not relieve the railway company of its duty to look ahead for a man on the track, in running its street car. Due care is care according to time and circumstance, and the gauge of duty and due care rises precisely as the degree of danger rises. A degree of darkness, whether from the absence of sunlight, or from the presence of shadows cast by columns on a bridge, or from the fact that the curve in the street throws the rays of the car’s headlight away from the locus, may create an inability to see well, but does not relieve the motorman from his duty to look; if anything, it increases it.
    6. -: Experimental Tests: Reproduction of Situation. Experiments and their results are admissible in evidence when it is first shown that causal conditions and circumstances are substantially reproduced at the experiments. But where a reproduction depends for its facts upon a plaintiff who at the time of the accident and for a time prior thereto was unconcious, it cannot be said to be a reliable reproduction of the situation. So that where plaintiff testifies that he was struck by a west-bound street car, was knocked onto the east-bound track and rendered unconscious and remained in that condition until his leg lying over the rail was crushed by an east-bound car, photographs made in an experiment to reproduce the situation one year later, showing him to be situated four feet away from the column of the bridge in whose shadow he was found after the accident, are not admissible, if his location at the time of the accident is made to depend on his testimony alone.
    7. -: -: -: Situation of Injured Party. And where all the evidence shows that the injured plaintiff was lying down at the time of the accident, experiment photographs of a man sitting upright at the same place are not admissible.
    8. -: -: -: -: Stopping Cars. And photographs showing human figures sitting upright close to the rail and at a place where headlights from cars forty feet distant fell upon them in time for the motormen to stop the cars, whereas the motorman whose car injured plaintiff saw, when his car was six or eight feet away, in the shadow of the bridge column the dim outlines of what turned out to be an unconscious man apparently lying down, do not reproduce the situation; and inferences drawn from them, and the results of experiments made in connection with them, namely, that plaintiff was not in the shadow of the bridge column, that the headlight 'fell upon him when the car was forty feet away, and that the car could have been stopped with due care in time to avoid hitting him, are not reasonable inferences, and do not tend to prove defendant’s negligence.
    9. -: Man on Track: Humanitarian Doctrine. Where by plaintiff’s own evidence he was unconscious at the time of the accident and had been for a time prior thereto, and for that reason could not fix the point of his location on the track where the car struck him, and the only other eye-witness, the motorman, testifies that he did not see plaintiff until he was within six or eight feet of him, that he was then lying in the shadow of the bridge column where the headlight from his car did not fall upon him, and that he was looking and did not and could not sooner see him, and that he stopped the car in the shortest time and space possible after discovering him, a peremptory instruction to, find for defendant should be given.
    Appeal from Jackson Circuit Court. — Hon. Hermann Brumback, Judge.
    Reversed.

      John H. Lucas, Frank G. Johnson and Halbert H. McCluer for appellant.
    (1) The court erred in refusing defendant’s instruction in the nature of a demurrer to the evidence requested at the close of plaintiff’s case and renewed at the conclusion of all the evidence. Zimmerman v. Railroad, 71 Mo. 477; Sweeny v. Railroad, 101 Allen 372; Carr v. Railroad, 195 Mo. 225; Feeback v. Railroad, 167 Mo. 215; Eppstein v. Railroad, 197 Mo. 733; Williams v. Railroad, 96 Mo. 282; Barker v. Railroad, 98 Mo. 53; Riñe v. Railroad, 88 Mo. 399; Carrier v. Railroad, 175 Mo. 470; Frye v. Railroad, 200 Mo. 405; Slate ex rel. v. Bank, 120 Mo. 169; State ex rel. v. Williams, 99 Mo. 302; Mathias v. O’Neil, 94 Mo. 528; Lenox v. Harrison, 88 Mo. 491. (2) The court erred in admitting the testimony in relation to experiments on the stopping of cars and the distance within which a party in the position plaintiff claims himself to have been could have been seen. Goble v. Kansas City, 148 Mo. 475; Doud v. Reid, 53 Mo. App. 559; Rose v. Bank, 91 Mo. 402; Columbus Construction Co. v. Crane Co., 98 Fed. 957.

      Henry Latshcw and Ralph 8. Latshaw for respondent.
    (1) Appellant says respondent was a trespasser. This is a new and novel theory in this case, a theory advanced now for the first time — a theory advanced in this court contrary to the theory upon which respondent tried this case in the circuit court. See appellant’s instructions, especially its instruction No. 5. It has long been the law of this State that appellant must stand or fall by the theory or postion assumed by it upon the trial. Merriclees v. Railroad, 163 Mo. 486; Campbell v. Railroad, 175 Mo. 161; Chinn v. Naylor, 182 Mo. 595; Meyer B. D. Co. v. Bybee, 179 Mo. 354; Kennefick v. Ins. Co., 103 S. W. 957; Glaser v. Rothschild, 106 Mo. App. 418; Sock v. Co., .112 Mo. App. 476; Mitchell v. Co., 122 Mo. App. 50; Fuess v. Kansas City, 191 Mo. 692; Bragg v. Railroad, 192 Mo. 331. (2) But respondent was in no sense a trespasser. The bridge where he was run over was a public street, Bluff street, in Kansas City; it was one of the populous thoroughfares in Kansas City; it was the only street for vehicles and pedestrians to use going to and from the Union Station.. Appellant has much to say aboiit the bridge being divided into separate rights of way for vehicles, cars and pedestrians. The fact is it was divided exactly like all streets in Kansas City, the street railway tracks in the center, wagon roadways on each side thereof, and sidewalks on the outside of the roadways; there is no significance in such division of a public street, it is the usual division. But where is the evidence in this record of any right, title or special interest of appellant in this bridge? Where is the evidence that appellant has or had any right or power to declare the public trespassers for being on this bridge, or any part thereof? There is no such evidence — not one word. Where plaintiff is a trespasser and defendant had reason to believe people were liable to be, appellant owes said trespassers exactly the duty which appellant (and respondent too) stated in their instructions to the jury, viz., it must exercise ordinary care to discover the presence of plaintiff. Everett v. Railroad, 112 S. W. 486; Scullin v. Railroad, 184 Mo. 695; Eppstein v. Railroad, 197 Mo. 720; Frye v. Railroad, 200 Mo.- 377; Hoegill v. Co., 181 Mo. 379; Fearsons v. Railroad, 180 Mo. 208; Burde v. Co., 123 Mo. App. 629; Siles v. Knott,. 197 Mo. 684. (3) A demurrer to the evidence should not have been sustained. When the car ran over plaintiff it shoved or dragged .him four or five feet (both plaintiff and defendant swear to this), and after having thus shoved or dragged him, plaintiff then lay about three feet on the bridge and also he then lay in the shadow of the bridge column. In other words, when he was first struck by the car that ran over him he was lying off of the bridge and in the full glare of the arc light. Appellant’s motorman stopped his car within ten or eleven feet. But said motorman did not see plaintiff until after the front end of his car had passed plaintiff — the headlight had passed plaintiff — the fender was above plaintiff — so that if witness then dropped the fender it would drop on top of plaintiff. The motorman looking out of the side window of his vestibule and looking over his right shoulder saw plaintiff lying at the side of his car. These facts are all sworn to by appellant and undisputed by respondent. They are admitted facts. (4) The experiments were made one year from the date of plaintiff’s injury. They were made at the exact place where plaintiff had been run over. The tracks, the bridge, the street and all the surrounding locality were the same then as on said date of the accident. The cars were the same, and the number of passengers therein were in no instance a less number than upon the car that ran over plaintiff. The headlights were all the same kind and the same size as upon the ear that ran over plaintiff. The lights both natural and artificial were the same, and the nights the same kind of nights as the night of the injury. The cars were all traveling at about the same rate as the car that ran over plaintiff. All the conditions surrounding the experiments were exactly like those surrounding the accident. The value of an experiment depends upon reproducing actual conditions identical with the case in question, but identical need not be carried so far as to cover conditions not causal as to the result. 12 Am. and Eng. Ency. Law (2 Ed.), 408; Cox v. Railroad, 126 N. C. 106; State v. Graham, 74 N. C. 646; Gilbert v. Co., 54 N. Y. Super. Ct. 274; Hayes v. Co., 17 Utah 99; Railroad v. Champion, 9 Ind. App. 510; County v. Stofen, 125 Cal. 38; Fein v. Co., 60 111. App. 278. If conditions are substantially the same, the result of the experiments would ordinarily be proper. People v. Phelan, 123 Cal. 551; Beckett v. Assn., 67 Minn. 298; Witcher v. Railroad, 70 N. H. 248; Byers v. Co., 94 Tenn. 345; Columbus C. Co. v. Crane Co., 98 Fed. 946; Brook v. Railroad, 81 Iowa 504; Burg v. Railroad, 90 Iowa 106; Railroad v. Reese, 70 111. App. 466; Railroad v. Logue, 47 111. App. 292; Nosier v. Railroad, 73 Iowa 268; Railroad v. Legg, 32 111. App. 218; Wilson v. State (Tex. Crim. App.), 36 S. W. 587; Railroad v. Mugg, 132 Ind. 168.
   LAMM, P. J.

Defendant appeals from a judgment of the Jackson Circuit Court for $6,000 damages in favor of plaintiff for personal injuries, whereby his left leg and foot were so mashed and mangled that amputation between the knee and ankle followed as a sequence.

The petition counts on the negligence of defendant’s servants in running one of its cars in Kansas City, in that (to quote) “said servants in charge of said car saw plaintiff upon said track and his perilous position upon said track, or by the exercise of ordinary care and caution could have seen plaintiff on said track, and in his perilous position on said track, in reasonable time to have stopped said car before injuring plaintiff as above set forth, but said servants of defendant carelessly and negligently failed to do so.”

There was yet another specification of negligence, viz.: the violation of a fender ordinance in force in Kansas City, but the case was not put to the jury on that issue — whether from indisposition or lack of evidence is immaterial. Either view eleminates that phase of the case on review.

The answer, besides raising the general issue, averred plaintiff’s contributory negligence.

The trial was long, the witnesses many, the evidence voluminous. Fortunately, the assignments of error do not call for the details of testimony witness by witness. Its tendency pro and con will do on some assignments; and where the point up seeks a closer and fuller statement of facts they will be stated in connection with the determination of the point itself.

Defendant assign error in overruling demurrers, in giving instructions and in ruling on the admission of evidence.

I. Of the demurrers.

(a) Counsel argue that it was error to overrule a demurrer to plaintiff’s evidence. But while offering such demurrer, defendant did not stand on it. It went on and put in its own proof. With the whole case in, the demurrer to plaintiff’s part of it fills no sensible office in procedure. On appeal the case must be viewed as a whole; and whether plaintiff make a case in law to go to the juiy is to be ruled, not only on view of his evidence in chief, but as well on view of defendant’s and plaintiff’s in rebuttal. Hence, this demurrer is afield.

(b) But defendant at tbe close of all the evidence asked and was refused a peremptory instruction in its favor. This challenge in the nature of a demurrer, nisi, is kept alive and pressed with vigor here. Attending to it, it will be seen that the specification of negligence charged in the petition proceeds solely on the humanitarian doctrine. The charge is that defendant’s servants running the car saw or might have seen plaintiff in peril in time to have prevented his injury, and negligently failed to prevent it. In a nutshell, the theory of defendant on this assignment is that at the time and place of plaintiff’s injury the facts raised no duty to keep a lookout for him, ergo, there was no actionable breach of such duty. It insists that the full measure of its duty was not to negligently injure him after its motorman actually saw him in peril; moreover, that the proof fails to show the motorman was negligent in stopping the car after he discovered plaintiff’s peril, hence (counsel argue) it must be ruled as a matter of law that plaintiff was not entitled to go to the jury at all.

Without burdening the case by producing the testimony on the issue as to whether plaintiff’s peril was discovered in time to have stopped the ear with the appliances at hand and with safety to its passengers and those manning it, it is sufficient to say there is no evidence tending to show that the motorman failed to stop the car as soon as possible after his actual discovery of plaintiff’s peril. It is all the other way. The only eye-witness was the motorman himself. As presently seen, plaintiff’s left leg lay across the defendant’s track, he, plaintiff, knowing nothing of that fact. His testimony sheds no light on the distance the car was away at the time- the motorman saw the leg in that plight. There were no by-standers or onlookers. There were five or six passengers in the car but neither they nor the conductor saw plaintiff in peril before he was hurt. The testimony of the motorman is to the effect that he was keeping an outlook ahead and when he first discovered plaintiff’s danger he at once used all diligence in reversing his power and stopped the car within a few feet, hut not in time to save the exposed leg. With the case in this fix, plaintiff was not entitled to go to the jury on the pleadings and evidence unless two things are true, vis: (1) unless defendant’s motorman owed a duty to keep an outlook ahead and see plaintiff’s peril if possible, and (2) unless he was able by due care to discover his danger in time to stop the car before injuring him.

(1) The first question for our determination, then, is: Did the motorman, time and place considered, owe a duty to plaintiff to lookout for him'? This question seeks vital facts. Attending to them, the record shows that at the time of the accident the city was as near fast asleep as a city gets. It was the rise of an hour after midnight cock-crowing. All street cars except owl cars had ceased to run. The place was the Bluff Street bridge, close to the Union Depot in Kansas City. There Union and St. Louis avenues join and come into Bluff street over the bridge. Prom said depot to the heart of the city an elevated railroad runs. Pedestrians (not taking the elevated railroad) and teams, wagons and vehicles passing from the city proper to the- depot and from it to the city proper use the most direct route, to-wit, the Bluff Street bridge— Bluff street as well as Union and St. Louis avenues being paved public streets of the city. The bridge is an iron structure about one hundred and twenty feet long from east to west and sixty-five feet wide from north to south divided into sections. It does not stand true with the cardinal points'of the compass but, for thé purposes of the case, its width may be taken as from north to south and its length as from east to west. Defendant has double tracks laid on Bluff street and across the bridge — one for east-going and the other for west-going cars. Its tracks (from the west) approach the bridge on an upgrade of three or four per cent and they are laid in the central section of the bridge. North of its tracks is a section of the bridge devoted to driveways for teams, wagons, etc. South of the tracks is a section similarly used. South and north of these traveled ways are two other sections devoted to foot-travelers. Cars do not stop to take on or let off passengers on or close to the bridge. On said central section at its west end, slats are nailed diagonally across the tracks. These slats are two-by-fours projecting above the surface and are cut so that the rails may pass through. They are intended to fill a similar office to a cattle-guard at a railroad crossing, i. e., to prevent teams and wagons from passing on the tracks. The railroad section of the bridge is fenced off from the roadways on either side by iron posts and railings. The accident was at the west end of the bridge, and an idea of the locus may be got from tw photographic exhibits (No. 1 and No. 2) put in evidence, which we here reproduce. The letter “R” by the foot of the right-hand column of exhibit No. 1 is the spot (or near the spot) plaintiff puts himself as lying when struck by an owl car going east.

Exhibit No. 2.

The arrangement of the bridge passageways is not inaptly likened by plaintiff’s counsel to that usual in city streets, viz: a center for car tracks; on either side of them, a driveway where teams and wagons may freely come and go; and, at the verges of the street, paved sidewalks for footmen. The only difference seems to be the iron columns and rails fencing off the car tracks from other sections of the bridge and the slats nailed across the entrance to the car section.

There is nothing in the record to show whether the city or defendant company built this bridge nor to show how defendant acquired the right to use it. Absent a record showing, the presumption would be that the bridge is a part of the public street and that defendant’s user is based on its franchise right to use the street itself.

On such record briefly outlined, it is argued that the slats, iron columns and railings show the railroad section of the bridge to be a place where, time considered (to-wit, the dead hour of the night), defendant, entitled to a clear track, had no reason to anticipate the presence of persons and therefore lay under no duty to look for them. But we take that argument as unsound, because:

In the first place the bridge, being to all intents and purposes a continuation of the street, the primary user in it, as in the street, is in the public at large. Street railways hold easements in public streets somewhat subservient to the public user. [Deschner v. Railroad, 200 Mo. 1. c. 329, et seq.] In that case it was held, in effect, that a vigilant watch ordinance was within the scope of a common law duty. It was there said:’ “To hold that a motorman, driving a killing machine on iron rails in the people’s highway, should keep a vigilant watch for everyone moving towards the track, especially children, is as much as (and no more than’) to say that humanity and common sense dictate such course; and to hold such to be a duty, even in the absence of an ordinance, would not strain, let alone break, the common law applicable to crowded cities and the use of a highway, common not only to street railways under their easement but, primarily, to all travelers. Indeed, if an elder equity is held to be a better equity, why may not an elder, a primary and a necessary use (a use that is the prime condition precedent — the raison d’etre — to any street) be held to be somewhat superior to -a subsequent one created by easement and carved out of the common people’s common inheritance, to-wit, their right to safely come and go on a public thoroughfare? Showing the pre-existing, dominant idea of public use, it has been held that a city council has no authority to establish a street for the use of a business corporation or an individual, but that the right to establish a street is traced back to the need of the public at large. [In re Twenty-first Street (Kansas City v. Hyde), 196 Mo. 498; see, also, Scullin v. Railroad, 184 Mo. 1. c. 704, et seq., and cases cited].”

We do not mean to say that under its police • power, or as a trustee holding title to its streets for the benefit of the public, a city may not temporarily withdraw a portion of a street from public use by railings, danger lights and danger notices, Or might not on due steps vacate a part of a street. We do not mean to rule that the slats on this bridge did not fence off its railroad section from use by teams, wagons, carts, drays, etc. What we say is those slats filled no office of warning to pedestrians of exclusive railroad use. They were of no more significance to footmen than were the rails of defendant’s tracks. All sections of this bridge were floored and these slats may have tended to show that cars ran there, but the rails of the tracks did that and more effectually. Nor do we mean to rule that, in a certain sense, the rights of the general public are not subordinate to the rights of the street railway in the portion of the street on which the tracks were laid. Therefore, there is nothing in our ruling contrary to what was said in Zimmerman v. Railroad, 71 Mo. 1. c. 489, on which stress is put by counsel. What this court there said was, in effect, that the citizen had no right to quietly pursue his stroll on the tracks of a railroad laid in the public streets, that he was under an obligation to get out of the way of a passing train, and that the railroad company was not obliged to run its cars to suit the mere convenience of pedestrians, who for pleasure or otherwise strolled along its tracks. We agree to that doctrine now, when interpreted by the facts in judgment in the Zimmerman case.

But the question here is deeper and different. It is, Did the Railroad Company owe a duty to lookout for pedestrains on its track laid in a public street, including in that term the bridge? There ought to be but one answer to that question in law or in ethics, and this court holds a single and no uncertain voice in answering it in the affirmative. [Scullin v. Railroad, 184 Mo. 1. c. 704, and cases cited; Beier v. Railroad, 197 Mo. 215; Schafstette v. Railroad, 175 Mo. 142; Oates v. Railroad, 168 Mo. 1. c. 544.]

The sum of the right doctrine being that both a street railway company and the citizen on foot have a right to use the street, and neither having an exclusive right, it results that their relative rights and duties are regulated by the exercise of due care, and due care on the part of the street car company requires an outlook ahead to prevent injury to the citizen.

Again, in the second place, the case at bar is' relieved from all embarrassment on the point because the case was tried by both parties litigant on the theory, nisi, that defendant owed a duty to- use due care to look ahead and see the danger to Riggs, if possible. “Hindsight” may be better than foresight, but “hindsight” is not allowable in the sober administration of justice where to permit it involves a change on appeal from the trial theory of - a case. [Kenefick-Hammond Co. v. Ins. Co., 205 Mo. 294.]

Inch by inch during the days of this drawn-out trial, defendant contested its ability to see Riggs sooner than he was seen by the motorman, and did not contest his duty to see him as soon as possible by the exercise of a care adjusting itself to the circumstances; and, finally, without asking an instruction on any contrary theory, it persuaded the court to declare the law to be as set forth in its instruction number 5, viz:

“The court instructs the jury that if you find and believe from the evidence that plaintiff was. sitting or lying in a position on or near the defendant’s tracks, and that a passing car ran upon or over him while in such position, he cannot recover in this action against defendant, unless you further find and believe from the evidence that while plaintiff was in such position defendant’s motorman either saw him, or by the exercise of ordinary care could have seen him, in such position in time, by the exercise of ordinary care, to have stopped his car in time to have prevented' said car from running over plaintiff, and the burden is on plaintiff to prove this to your reasonable satisfaction by the greater weight of the- credible evidence, and if he has failed to do this your verdict must be for the defendant.”

The duty to look ahead is assumed .in that instruction. Its theory was the theory of plaintiff’s instructions. Hence if error at all, it was common error. That common error is not reversible error is not to be gainsaid.

Moreover, in the third place, we are unable to agree with defendant’s counsel in their insistence that the hour of night was a factor tending to relieve defendant from its duty to look ahead in running its owl car. This, because due care is a care according to time and circumstance. It adjusts itself automatically to the circumstances of a case. What is due care in one case might be negligence in another. While a degree of darkness, whether from the absence of sunlight, or from the presence of shadows cast by columns on the bridge, or from the fact that the curve in the street threw the rays of the headlight away from the locus (all of which elements are present here) may create an inability to see well, yet it does not tend to show an absence of duty to look. If anything, it increases that duty. The gauge of duty and due care rises precisely as the degree of danger rises.

The premises all considered, we hold that at the time and place the facts raised a duty to keep a lookout, and this is so whether Riggs lay on the bridge when first struck as contended by defendant, or off the bridge as contended by plaintiff.

The point is, therefore, ruled against defendant.

(2) The final question on the demurrer is: Is there any substantial evidence tending to show that defendant’s motorman could have seen Riggs’ danger in time to have stopped the car before his injury’? This question seeks other facts, vis:

There are two broad theories running through the case. One, defendant’s, is that plaintiff was drunk and in a drunken stupor lay down close to its track on the bridge and put his left leg over the rail. The other, plaintiff’s, is that he was a stranger in Kansas City, stopping a few days in a distant part of the town with his brother; that, having in mind going to the Southwest for work as a carpenter or iron-molder, he left his brother’s house and by easy stages stopped here and there, vis: to get a, lunch, to visit saloons where he drank a glass of beer, and to visit a Salvation Army post. Midnight found him on Union avenue close to the depot and far from home. There he took a belated lunch and interviewed agencies holding forth in that region, whether to get work or to get transportation to where work could he found is not quite clear. Making no headway in that line, one o’clock found him sober (he says) and of mind to go home and to bed. On Union avenue he met a man by the name of Joseph Brandt. Brandt was a laborer and had been at work in a sewer in Independence. This twain were strangers up to that time but, striking an acquaintance, had their midnight lunch together. Brandt’s object in being abroad so late was to find a person by the name of ‘ ‘ Charlie Eoss. ’ ’ Eoss (the record tells us) was not the poor lad whose mysterious disappearance aroused sympathy a generation ago, but was a party for whom Brandt had gone security for a board bill. Unfortunate (but not unusual) results followed that assumed contractual obligation. The tongue of rumor coming to Brandt on that cold night located Eoss in the regions about the Union depot, and in sauntering in his search for him, Brandt left Eiggs. A few minutes later we find Mr. Brandt at the open window of a lunch counter on Union avenue. There he ordered a dish of beans and mustard, yclept “chilli,” — time, about 1:15 a. m. This homely illustration of a light nocturnal lunch in a great city recalls a trait of John Gilpin’s good wife, of whom it was said:

“That though on pleasure she was bent, She had a frugal mind.”

While eating his beans and mustard a car passed him going towards the Bluff street bridge. It turns out this was the car that crushed Eiggs’ leg. Brandt threw his eye casually over his shoulder, noted the rate of speed of the car and testifies it was going about five miles an hour. He did not know at the time Eiggs was hurt, but heard it weeks afterwards when they met by chance on the street and compared notes. Going back a little, when Eiggs left Brandt his intention was to walk up town but changed his mind when he got to the bridge, inquired of two passing men where cars stopped to take on passengers, and, obeying their directions, he undertook to 'Cross defendant’s tracks to reach the point indicated, when he was run down by a car going west. He was then, as we understand it, on the bridge. He jumped to avoid this car but in the leap was struck by it on the body and was thrown so that his head hit a rail of the bridge with such violence that he was knocked insensible. The next thing he knew was that a car coming from the west smashed his left leg. Doubtless the great weight of the reliable testimony shows that Riggs, in a stupor from overindulgence in liquor and lunches, with the idea of going to bed filling his muddled mind, wandered on the bridge and straightway sank into a drunken slumber close to the track with his leg over the rail. We say doubtless this was so, because there is evidence indicating that his coat was off. The motormen who ran west-bound cars were on the stand and none of them saw him in their westward trips. No such accident was reported by any of them. No wounds or contusions were found on his head telling of contact with the rail, nor any wounds or contusions on his body indicating a blow from a moving car; and while plaintiff says he was sober, yet there was a mass of evidence pointing to his drunkenness from those familiar with the effects of liquor.

But this phase of the case is not a controlling one. It would seem to matter little in the law whether plaintiff negligently lay down to a drunken sleep with his leg on the track (as argued by defendant) or whether he negligently crossed the track so close before a car that he was knocked against an iron rail and became unconscious from the blow (as argued, contra). Either event accounts for the predicament he was in. Defendant was to blame for neither, but, in either, had no right to afterwards negligently crush his leg.

In this condition of things it was vitally material to plaintiff’s ease to show that he was nnconscions, did not know of his leg being on the track and was unable to move it from the track. As said, he tried to make a ease by showing he was unconscious, thus avoiding his contributory negligence and bringing himself within the humanitarian rule.

Now, if plaintiff was unconscious it follows that any evidence of his attempting to reconstruct the transaction and draw a verbal picture of how he lay after his fall, or of when his leg got on the track, or of how the trunk of his body reclined, whether partly bolstered up or prone, is of not a particle probative force. It may not be amiss to quote from plaintiff’s testimony on that score. At one place he says, speaking of his head striking the railing of the bridge: “I don’t remember much of anything after that, until I was run over by the east-bound car.” At another place he says: “After I fell and hit my head against the rail of the bridge, I don’t know anything until I was hit by the second car.” At another place he says: “I have a slight recollection of this car approaching [the car that crushed his leg], it seems I saw the light of the car and made an effort to get up but I couldn’t, and after the wheel had passed over me of course I tried to get up; I guess I got up of my own account and more than the others helping me up.” He was then asked by his counsel: “Q. Then the first thing that you recollect after you were knocked unconscious was what — after you were knocked unconscious by striking your head there — what was the first thing you recollect after that?” The answer was: “The first thing I remember I was run over by this car and then picked up.” On cross-examination he testified as follows:

“Q. Do you know where your left foot was after you had been knocked over in that position? A. No, sir, I didn’t know anything at that time; I was unconscious after I fell.
“Q. You don’t know what position you were in? A. No, sir.
“Q. You don’t know what position your right foot was in? A. No, sir.
‘ ‘ Q. The only way you can tell your left foot was on the track is that the car ran over it? A. The car ran over both feet.
“Q. But it crushed your left foot? A. Yes, I was laying with my left side towards the track and left foot over the track with my head towards the west and my feet towards the northeast.
‘ ‘ Q. "What I want to get at, Mr. Riggs, is whether you know, after you were knocked unconscious into that position, of your own knowledge, at that time, where your feet were, or are you just assuming they were in that position because the car ran over them? A. When I fell, I didn’t know; I ivas unconscious after I hit the bridge, but after 1 was run over it was an evident fact that my feet were both over the track.
“Q. So the first time you knew you were in that position was after the car had run onto you? A. Yes, sir, I had no knowledge of it before.
“Q. You were completely dazed up to that time? A. I was.
“Q. But the car running over you roused you up some, so you knew what position you were in? A. Just before it hit me I heard the rumbling of the car, and saw the light and made an effort to get up, but I was dazed then. •
“Q. Did you know then that your feet were on the track? A. I didn’t.
“Q. And you didn’t know, as I say, that your feet were on the track until the car ran onto them? A. After the car passed over me I knew I was badly hurt and that the car ran over both feet.
“Q. From that time on were you perfectly conscious? A. I was unconscious for a little while; I was hurt so had that I couldn’t tell how bad I was hurt; my left limb pained me considerably. ’ ’

The object in so fully setting out Riggs’ testimony is this: Plaintiff’s ingenious counsel conceived the plan of reconstructing the transaction by going to the spot in the nighttime a year after the event and making experiments in stopping cars. To this end he had plaintiff locate himself in the position he claims to have been in when first struck by the car. During a series of experiments Brandt was also so located. Both of these men were seated as if on the floor of the bridge, the trunks of their bodies practically upright, their heads slightly inclining forward and their left legs (plaintiff having got an artificial one) over the rail. In that condition photographs were taken and put in evidence, a sample of which we here reproduce, vis:

Objections were made to these photographs which were at first sustained but finally overruled. The objections may as well be considered on the demurrer, because if the photographs were properly in evidence as true representations, then they materially bear on the ruling on the demurrer. There was a mass of evidence pro and con on the question whether the electric, the star, moon and other lights, the condition of the clouds and other causal incidents were the same at the taking of the photographs as at the event. Defendant contends they were not; but, allowing to plaintiff the most favorable view of the testimony, we conclude the circumstances under which photographs were taken were so nearly like those surrounding the event itself that the photographs were admissible, provided we determine that plaintiff was located at the spot he was hurt and the position of his body and leg was the same as at that time. In that view of the case, we are constrained to hold that plaintiff’s own evidence was without any probative force in reconstructing his place and position. It would be a dangerous and daring innovation to permit a man made unconscious by a blow on the head to locate the position of his limp body and limbs during the time he was temporarily dead.

We find no fault with plaintiff’s proposition of law, viz: that experiments and their results are admissible proof when it is first shown that causal conditions and circumstances are substantially reproduced at the experiments. That view they maintain by an array of authority cited in their brief (q. v.). The true rule seems well put in 17 Oyc. 285, viz.: ‘1 The conditions of a relevant occurrence may be artificiallycreated in an experiment. Where the material facts bearing on a particular issue are precisely duplicated in the experiment the result may be received in evidence, the burden being on the proponent to show the correspondence in essentials.”

Holding that the evidence of plaintiff himself was without value in reconstructing his position and location when struck by the car, as we do, there is left to him only the testimony of the eye-witness, the motorman McPhail, to which we will presently advert. Before doing so, we observe that the significance of the experiments appears when (assuming plaintiff puts himself in the right place and position in the pictures) it was demonstrated by them and shown by the experimental evidence that the rays from a headlight of a car from the west fell full on him at least forty feet away. That, when so located, he became visible to a motorman that far away; and further demonstrated in sundry instances that a motorman, knowing nothing of the experiments but believing during' them that he saw a person in danger, commenced to check his car (loaded, going at a rate of, and with the same appliances as the car doing the harm) from twenty-five to forty feet away and brought it to a standstill before it reached the danger point. In this connection it is well to state that it is undisputed there was an arc electric light on the southeast corner of the Bluff Street bridge. This light threw shadows from the columns of the superstructure of the bridg’e, and it is practically admitted by plaintiff that if he was on the track at the exact spot his leg was crushed, then he lay in the shadow of the bridge column or behind it. Several witnesses for defendant who were on the car saw the postition of plaintiff after the car had run over his leg and they unanimously put him at that time in the shadow and hid by the pier. We say plaintiff practically concedes that fact — witness one of several such statements in his brief: “When first struck by the ear that ran over the plaintiff he was not lying in the shadow of the bridge column, but was lying in said shadow after he had been shoved or dragged four or five feet, and the car stopped.”

Now, if plaintiff was lying four or five feet further to the west when first struck he would then be out of the shadow under the experimental testimony, the whole situation would change and he would be visible as much as forty feet away. Plaintiff contends, as pointed out, that he was struck by the car and shoved four or five feet in the shadow or behind the column before his leg was crushed. He so testified, he says he was shoved into the dark by the car. But (as said) for the purposes of justice evidence establishing a fact should come from the quick and not from the dead — from conscious, not unconscious men.

Attending to the testimony of the motorman: In his examination in chief he gives this version of what happened:

“Q. And, as you were approaching the bridge, and as you got out of the principal part of the curve, I will ask you to state what, if anything, took place after that? A. After I got out of the curve, I noticed some object laying there right behind the pier of this bridge.
‘ ‘ The Court : Mr. McPhail, you will have to talk louder; the jury cannot hear what.you are saying.
“Q. How far away from that object were you— was your car — the front end of your car, when you first saw this object there you speak of? A. I was probably six or eight feet from it, I should judge.
“Q. State what happened — what you did — as soon as you saw that object? A. As soon as I saw this object I immediately threw off the power and reversed the car. I stopped as quick as possible. . . .
“Q. And did you afterwards, or at any time, find out what the object was there that you speak of? A. Yes, sir.
Q. "What was it? A. It was a man.
‘Q. Where was he, describe the position he was in as you saw him? A. Why, he was laying down when I seen him.
“Q. Which, way was his head? A. His head was towards the pier of the bridge.
“Q. Would that be west or east? A. It would be towards the west.
“Q. And where was his feet? A. His feet were towards the east.
“Q. And where were his feet with reference to the rail of the track? A. One foot was on the rail and the other one was close to the rail.
“Q. Where did your car stop with reference to this man? A. Why, he was laying by the rear wheel when the car stopped.
“Q. In front of the rear wheel or back of the rear wheel? A. In front of the rear wheel.”

Further along he said that as he left the Union Depot and approached the bridge he was “looking straight ahead up the track” — was “keeping a general lookout' to see if there was anything on the track. ’ ’ Asked about his headlight and how it cast its rays, whether it would cast them on the persons lying there on the bridge, he answered: “No, sir, the headlight didn’t strike any object on that side of the track.”

On cross-examination he said he made a written statement to plaintiff and his counsel and some accompanying parties, about three months after the event. Shown exhibit No. 1 and having his attention called to the letter “R,” he testified that plaintiff was lying a little east of the letter “R.” Further along this occurred :

“Q. Now, Mr. McPhail, when this car struck this man, how far did it shove him before it run over him; about how far? A. I couldn’t say how far it moved him.
“Q. It moved him four or five feet, didn’t it? A. I couldn’t tell whether it moved him or not.
“Q. Well about four or five feet? [Witness makes no answer to this question.]
“Q. It shoved him the way the ear was going four or five feet didn’t it? A. It probably shoved him that far.”

In effect he further testified that he recognized plaintiff as a man on that night by looking over his right shoulder and glancing down out of the vestibule window when the nose of the car was over him or “just about that;” that he stopped his car so quickly that the rear wheels did not pass over his leg — say, in ten or eleven feet. During his cross-examination and for the purpose of impeachment his signed statement, made to Mr. Latshaw, plaintiff’s counsel, was put in evidence. It contains the following: “I didn’t notice whether Mr. Riggs was laying straight out or sort of bunched up. When the car struck Mr. Eiggs the car shoved him along on the track about four or five feet from where I first saw him — shoved him in the same direction which the car was going.” Counsel then presented two photographs similar in outline and detail to exhibit No. 5. And it was from testimony then delivered hy him that the photographs went to the jury. Asked if he recognized “that [Exhibit 5] as a good picture of that bridge and the way things were there at the time you approached that bridge just before you ran over that man,” he answered: “It is a good picture of the bridge. The man was lying down as I approached here.” Reminded by counsel that he had stated in his said written statement that he “didn’t know whether he was lying down or not,” he answered that he “didn’t notice whether Mr. Riggs was lying straight out or sort of bunched up when the car struck Mr. Riggs.”

We infer from the context in the record that the foregoing answer was a part of what counsel read from the statement instead of being a reply by the witness on the stand, because the following appears:

“Mb. Johnson: This is not his testimony now.
“The Cotjbt: Don’t interrupt his examination.
“Mr. Johnson: I think I have a right when he makes a statement of that sort to make an objection and state the contrary.
“The Court: I think not, Mr. Johnson, when he reads the exact words of it; if he doesn’t state the exact words that would be different.
“To which ruling of the court the defendant duly excepted at the time.
“ Q. Let me read you this Mr. McPhail: ‘ I didn’t notice which way his head was, but think it was towards the west, with one leg on the track; he was laying about three feet from the first pillar on my right as I was going; that is to say he was towards the bluff from the pillar about three feet.’ Then I read you this statement: ‘I didn’t notice whether Mr. Riggs was laying straight out or sort of bunched up’— now isn’t it a fact that you didn’t notice whether he was laying straight out or bunched up?
“Mr. Johnson: I object to that as assuming that he was bunched up and it doesn’t show anything of the kind.
“Objection overruled; to which ruling of the court the defendant at the time duly excepted.
“Q. Was he laying straight out or bunched up when you saw him first? A. He was laying straight out.”

Further pressed, the witness testified that plaintiff “was lying — I couldn’t tell whether he was bunched up or not.”

Then the following occurred:

“Q. That picture shows him bunched up, doesn’t it? A. That looks a little as if he was sitting up.
“Q. Don’t you see his head there?
“Mr. Johnson: I object to his arguing to the witness.
“Objection overruled; to which ruling of the court defendant at the time duly excepted.
‘ ‘ Q. Don’t you see Mm leaning against that pillar with Ms shoulder and neck?
“Mb. Johnson: I object to that, as the picture shows for itself how it is.
“Objection overruled; to which ruling of the court the defendant at the time duly excepted. •
“Q. You don’t know whether that man was lying down straight or bunched up, like that in the picture when you first saw him? A. I couldn’t say whether he was sitting up as much as the picture shows.
“Q. You couldn’t say whether that photograph— the figure in that photograph is setting up a little more or less than he was when you struck him? A. No, sir.
“Q. Now it is a good, fair representation of everything there; just exactly as it was at the time you came up there just before you ran over him; is that a g’ood, fair, accurate representation of that place and the conditions around there at that time?
“Mb. Johnson: I object to that for the reason that the witness has not shown himself qualified to speak about that.
“Objection overruled, to wMeh ruling of the court the defendant at the time duly excepted.
“Q. Is it, Mr. McPhail? A. It is not very dark there.
“The Court: Answer that question ‘yes’ or ‘no.’ A. No, sir, 1 don’t think it is.
“Q. What is the matter with it? A. It shows up a little plainer than the object did as I seen it.
“Q. Any other objection to it? A.- No, sir.
“Q. With the exception that it looks to you now as though the object looks plainer to you than it did then, is it all right with that exception? A. It appeared so sudden.
“Q. I don’t ask you how sudden it appeared.
“Mb.. Johnson : I think the witness has a right to make his answer.
“The Court: Finish the answer.
“To which ruling of the court the plaintiff at the time duly excepted.
“A. (Continuing.) The object appeared so sudden that I couldn’t see just exactly how it was laying there.
“Q. Is that a true and fair picture; a true picture of just the way that thing looked there at the moment you saw him just before you ran over him? A. Yes, sir, I think it is.
“Mr. Latshaw: We offer that picture in evidence.
“Mr. Johnson: I object to its introduction,.for the reason that the picture shows itself that the object is sitting up, while every witness who has testified to the position the plaintiff was in at that time testified that he was lying down.
‘ ‘ The Court : Is that your only objection?
“Mr. Johnson: And it is not shown that this picture was taken under the conditions that existed at the time plaintiff was run over.
“The Court: Objection overruled. Show it to the jury.”

Such was the evidence. Giving to plaintiff what is mete on demurrer, viz.: the full force of his own competent testimony, even if contradicted, giving bim the benefit of all the uncontradicted testimony including the most favorable inferences to be rationally deduced from all the evidence, yet we .are of opinion that McPhail did not testify and never intended to testify on the stand that the dummy figures looming up in the pictures were a true representation of plaintiff’s position on the night of this unhappy accident. Nor, as we see it, is there any evidence that plaintiff was shoved four or five feet from the light into the darkness in which he lay when the car went over his leg. McPhail’s admission made off the stand to plaintiff’s counsel in that behalf might discredit him as a witness, bnt would not prove tbe fact or bind defendant. Tbe last general question propounded to tbe witness and his general answer lends a little countenance to the notion that McPhail there inferentially admitted what he had repeatedly denied. He had over and over again repudiated the picture in certain vital details, while conceding its correctness as to the bridge, including in that description tracks, slats, columns and railings. In giving life to his mental attitude on the stand, a just interpretation of his general answer must be referred to his specific denials of correctness in certain details and his specific admissions of correctness in broad outlines. It will not do to twist any other meaning out of it inferentially. If, now, it is sought to make him say that Riggs was sitting conspicuously upright as shown in the picture and five feet away in the light as shown by the experimental evidence then the witness should have been asked plumply and specifically if he desired to change his former testimony, or if the upright position of the figure in the picture'was a true representation of Riggs’ position on the track. So radical a change should not be hid away under the cloak of a general question and general answer and got at by inference. On this view photographic exhibits five and three should have been excluded.

It results unavoidably that experiments and results of the experiments based on locating dummy figures as seen in exhibit five tended to mislead the jury. Defendant’s motormen stopping cars on the nights of the experiments, did not stand in the shoes of McPhail on the night of the accident. They saw human figures prominently displayed sitting upright close to the rail and at a place where their headlights struck them in time to see and to stop. McPhail saw in the shadow of the column the dim outlines of what turned out to be an unconscious man apparently lying down. When he grasped the danger, he seems to have acted with due diligence.

We conclude it was error to refuse the peremptory instruction.

II. The conclusion reached in paragraph one renders useless the consideration of other assignments of error.

The judgment is reversed.

All concur.


author: VALLIANT, C. J.

text:
    THE STATE ex rel. ANNIE BROWN v. BROADDUS et al., Judges.
    In Banc,
    February 2, 1909.
    1. ABSTRACT: Record Facts. It is unnecessary to set out in the abstract record, facts in literal copy, but it is sufficient and preferable to set them out in abbreviated narrative form. When so stated they are to be taken as conclusively true, unless brought into question by a counter abstract.
    2. -: -: Affidavit. A recital in the abstract that “said defendant filed its application and affidavit for an appeal from said judgment, which application . . . was allowed and said appeal granted” sufficiently shows that an affidavit was filed.
    3. APPEAL: Affidavit: Jurisdiction of Appellate Court. Conceding that the circuit court has no jurisdiction to grant an appeal unless the statutory affidavit is filed, it does not follow that the order granting the appeal is to he treated in the appellate court as void because the affidavit does not appear in the record, in the face of the fact that the order of the circuit court says on its face that an affidavit for an appeal was filed.
    4. -: -: -: Insufficient Abstract: Collateral Attack: Certiorari. Insufficiency in an abstract may justify an appellate court in dismissing an appeal, but cannot rob it of its jurisdiction if there is otherwise sufficient in the record on file to give it jurisdiction. If the appellate court has jurisdiction of the cause, it has jurisdiction to pass upon the sufficiency of the abstract, and even if its Judgment on that question is wrong it is only error. Neither its judgment on that point nor its judgment on the merits is open to collateral attack. The Supreme Court cannot, in a cause brought to it on a writ' of certiorari, quash the record of a Court of Appeals if it had jurisdiction of the cause, on the ground that there is error in its judgment.
    5. JURISDICTION: Circuit Court: Presumption of Regularity: Affidavit for Appeal. A circuit court is a court of general jurisdiction, and whenever its act is drawn in question it is supported hy a strong presumption of its regularity. And that presumption prevails to sustain its jurisdiction to perform any act which the statute imposes upon it. So that where the record recites: “Now comes the defendant and flies affidavit for appeal in this cause and the same being by the court examined and deemed sufficient an appeal is granted in this case,” the presumption is, nothing to the contrary being shown, not only that the affidavit was filed, but that it was in substantial statutory form.
    •6. APPELLATE JURISDICTION: How Determined. Sometimes it may be determined from the short transcript (the certified copy of the judgment and order of appeal) whether the Court of Appeals or the Supreme Court has jurisdiction; but cases often arise where the jurisdiction is to be determined from the abstract. For instance, if the appeal was from a monetary judgment of less than $4,500, the short transcript would indicate that the appeal was to the Court of Appeals, but the abstract might reveal that a constitutional question was involved, in which case the appeal would be to the Supreme Court.
    Certiorari.
    Whit quashed.

      H. W. Gurrey, Geo. V. Farris and W. J. Owen for relator.
    (1) An affidavit complying, substantially, with Sec. 808, R. S. 1899, is a jurisdictional prerequisite to taking an appeal in any case. Sebested v. Kansas City (Mo. App.), 68 S. W. 1068; State ex rel. v. Broaddus (Mo. Sup.), 108 S. W. 504; Greenwood v. Parlin & Orendorff Co., 98 Mo. App. 407; Railroad v. Powell, 104 Mo. App. 362. (2) Tbe record which is provided for by section 813 must show that the affidavit for appeal filed contained the statement “that the appeal prayed for was not made for vexation or delay, but because appellant was aggrieved by tbe judgment and decision of the court,” otherwise, tbe appellate court has no jurisdiction to review tbe proceedings of tbe trial court. (3) Tbe statement of appellant contained in the record cannot be considered the “Abstract of Record” required by section 813. Nolan v. Johns, 126 Mo. 167; Everett v. Butler, 192 Mo. 564.

      John A. Eaton and E. E. McVey for respondents.
    (1) Tbe Kansas City Court of Appeals bad jurisdiction of tbe subject-matter and of tbe parties. Tbe questions raised in tbe appellee’s argument before tbe Kansas City Court of Appeals concerning tbe steps taken to appeal tbe cause were as much in tbe case as any other questions, and the action of tbe Kansas City Court of Appeals is final. State ex rel. v. Broaddus, 207 Mo. 122; Sublette v. Railroad, 198 Mo. 192; State ex rel. v. Smith, 173 Mo. 421. (2) Tbe abstract of record filed in the cause, is sufficient under tbe statutes. Harding v. Bedoll, 202 Mo. 630'; State ex rel. v. Smith, 172 Mo. 455; Badger Lumber Co. v. Knights of Pythias, 157 Mo. 380; Ricketts v. Hart, 1501 Mo. 68, 73 Mo. App. 648; Brown v. Root, 108 S. W. 922; Inks v. Brakebill Bros., 119 Mo. App. 162; Leach v. Bond, 108 S. W. 596. (3) Where tbe abstract of record recites in narrative form tbe steps taken to appeal tbe cause and tbe opposing party questions tbe truth of tbe narration, bis remedy is tbe filing of an additional abstract wherein be may set out in full tbe defects be desires to urge. Failing so to do, tbe recitals in tbe abstract are conclusively presumed to be true. There is no rule for tbe dismissal of tbe cause under tbe facts presented in this record. Badger Lumber Co. v. Knights of Pythias, 157 Mo. 380; Ricketts v. Hart, 73 Mo. App. 648, 150 Mo. 68; Brown v. Root, 108 S. W. 25; Inks v. Brakebill Bros., 119 Mo. App. 162.
   VALLIANT, C. J.

In a suit in the cirenit conrt of Jasper county, wherein the relator herein was plaintiff and the Consolidated Light, Power and Ice Company, a corporation, was defendant, the plaintiff recovered a judgment for $4,000, and the cause was carried by the defendant’s appeal to the Kansas City Court of Appeals, where the judgment was reversed and the cause remanded. Relator then filed her petition in this court praying for a writ of certiorari to bring up the record in that cause, to the end that the proceedings in the Court of Appeals might be quashed. The writ issued as prayed and in obedience to its exigency the record in that cause is now before us.

From that record it appears that the cause was carried to the Court of Appeals on what we call a short transcript, that is, a certified copy of the judgment and order granting the appeal, as prescribed in section 813, Revised Statutes 1899', which was supplemented by a printed abstract of the record as that section also requires. But it appears that the abstract did not contain the affidavit for the appeal or a statement of its contents, and that is the sole point on which the relator relies to sustain the proposition that the Court of Appeals acquired no jurisdiction of the cause. The abstract does show that on the face of the' record proper it appears that an affidavit for appeal was filed and that on it the order granting the appeal was founded.

We copy the following from the relator’s statement of what is shown by the abstract:

‘‘ The record proper filed by the appellant in said cause contained the following relating to the appeal, printed record, page 18:
“ ‘Thereafter, and on December 14,1906, the same being the 23d judicial day of the November term' of said circuit court, said cause came on for trial upon the plaintiff’s amended petition, as amended, the answer of the defendant and the reply. A jury was duly empaneled, the testimony was offered by the parties, after which the court duly charged the jury, and said jury, on the 15th day of December, 1906, returned into court their verdict in favor of the plaintiff and against the defendant therein in the sum of four thousand dollars.
“ ‘At the same term of said court, at which said verdict was returned, and within four days thereafter, to-wit, on the 19th day of December, 1906, the defendant duly filed herein its motions for a new trial and in arrest of judgment which motions are set out in full in the bill of exceptions hereinafter printed, which said motions for a new trial and in arrest of judgment were, at the same term of said court, and on, to-wit, December 28, 1906, overruled by the court, and within ten days after the overruling of said motions and at the same term of said court the said defendant, The Consolidated Light, Power and Ice Company, filed its application and affidavit for an appeal from said judgment, which said application, within said ten days, during the same term, and on said 28th day of December, 1906, was allowed and said appeal granted to the Kansas City Court of Appeals, and said defendant was granted and given leave to file an appeal bond, within ten days thereafter, in the-sum of eighty-five hundred dollars, and said defendant, within said time,' and on the 3d day of January, 1907, filed its appeal bond, which said bond was duly approved and filed. And on said 28th day of December, 1906, said defendant was, by leave of court, granted and given until the 6th day of the February term, 1907, within which to file its bill of exceptions herein, and afterwards, and within the time so allowed for that purpose, and on, to-wit, the 18th day of February, 1907, the court, by an order of record in term time, extended the time for filing said bill of exceptions until on or before March 7, 1907, and on said 7th day of March, 1907, the said defendant, The Consolidated Light, Power & Ice Company, duly filed and presented its.bill of exceptions to the court, which was, on that day, by the judge of said court, duly allowed, signed and sealed and ordered filed with the papers in this cause, and the same was on March 7, 1907; duly filed as a part of the record in this cause. Said bill of exceptions is in words and figures as follows, to-wit: ’ ” Then the relator in her petition continuing says:
“And this is all of the said record proper relating in any way to the appellant’s appeal and affidavit. The bill of exceptions, printed as part of the said record in said cause, contains the following, relating to the appeal and the affidavit for appeal.”

Then follows a statement by relator of what the bill of exceptions contains which we deem unnecessary to repeat, because the question of the jurisdiction of the Kansas City Court of Appeals in that cause must rest on what the record proper shows. Upon that showing the relator moves this court to quash the record of the Kansas City Court of Appeals and contra the respondents move to quash the writ of certiorari.

I. The abstract of the record filed by the appellant in the Court of Appeals conforms, as far as it goes, to the requirements of the statute, section 813, Revised Statutes Í899, Ann. Stat. 1906, p. 783, as interpreted by this court in many cases, among which the more recent are: Harding v. Bedoll, 202 Mo. 625; Stark v. Zehnder, 204 Mo. 442; Pennowfsky v. Coerver, 205 Mo. 135; Gilchrist v. Bryant, 213 Mo. 442; Thompson v. Ruddick, 213 Mo. 561. It properly distinguishes between those matters which ought to appear in the court record proper and those which ought to appear in the bill of exceptions. It sets out those record facts, not by literal copy, which would be unnecessary, but in abbreviated narrative form, which is sufficient and preferable, [McDonald & Co. v. Hoover, 142 Mo. 484; Ricketts v. Hart, 150 Mo. 64; Martin v. Castle, 182 Mo. 216.] In those cases it was also held that the statements in the abstract were to be taken as conclusively true unless brought into question by a counter abstract. Thus the record proper shows the judgment rendered, shows that a motion for a new trial was filed and overruled, and shows that after that and during the same term the defendant against whom the judgment was rendered filed an affidavit for an appeal and that thereupon the court granted the appeal, but neither the affidavit nor a statement of what it contained is set out in the abstract, and for that omission, relator says, the order granting the appeal was absolutely void and conferred no jurisdiction on the Court of Appeals. There is no common law right of appeal from a judgment of a court of original jurisdiction, the right is created only by statute, and can be exercised only by conforming to the terms prescribed by the statute. One of those terms is that “the appellant or his agent shall, during the same term, file in the court his affidavit, stating that such* appeal is not made for vexation or delay, but because the affiant believes the appellant is aggrieved by the judgment or decision of the court.” It has been held that the filing of such an affidavit or one substantially to the same effect is essential to the authority of the court to grant the appeal and that without it the appeal is void. See the cases on this point referred to in State ex rel. v. Broaddus, 210 Mo. 1. But conceding that the circuit court has no jurisdiction to grant an appeal unless the statutory affidavit is filed, does it follow that the order granting the appeal is to be treated in the appellate court as void because the affidavit does not appear in the record when the order of the circuit court on its face says that an affidavit for an appeal was filed? Relator in her petition for this writ of certiorari says that no affidavit for an appeal was filed, and she also says that in her brief in the Court of Appeals that court was asked to dismiss the appeal because there was no affidavit. Yet in her brief in this , court she sets out in full a copy of the order granting the appeal as the same appears in the record in the circuit court and in the short transcript in the Court of Appeals, which is in these words: “Now comes the defendant and files affidavit for appeal in this cause and the same being by the court examined and deemed sufficient an appeal in this case is granted to the Kansas City Court of Appeals.” We do not see how the relator can reconcile her statement in the petition that there was no affidavit with the positive statement in the court record to the contrary, unless it was intended to mean that there was no sufficient affidavit, in which event her opinion as to its sufficiency is in conflict with that of the circuit court, which, after examination, judged it sufficient, or else that she means that the abstract failed to set out the affidavit, in which event her motion to quash the record must rest on the ground that the Kansas City Court of Appeals had no jurisdiction of the cause because of insufficiency of the abstract. Insufficiency of an abstract may justify an appellate court in dismissing an appeal, but cannot rob the court of its jurisdiction if there is otherwise sufficient in the record on file to give it jurisdiction. If the appellate court has jurisdiction of the cause it has jurisdiction to pass judgment on the question of the sufficiency of the abstract and even if its judgment on that question should be wrong it is only error, neither its judgment on that question nor its judgment on the merits of the cause is open to a collateral attack. In the cause in question the short transcript of the circuit court record filed in the Kansas City Court of Appeals showed that a judgment for $4,000 had been rendered in favor of the plaintiff against the defendant, that in due time a motion for a new trial had been filed and overruled, that on the same day and during the same term an affidavit for appeal was filed “and the same being by the court examined and deemed sufficient an appeal in this cause is granted to the Kansas City Court of Appeals.” If that short transcript contained everything that was essential to give the Court of Appeals jurisdiction, then the question of the sufficiency of the abstract was for that court h> decide and if its decision was wrong it was only error. In a cause brought here on a writ of certiorari this court cannot quash the record of the Court of Appeals in a cause of which it had jurisdiction, on the ground that there is error in the judgment.

By virtue of the provisions of section 813, Revised Statutes 1899, above mentioned, an appellant, in lieu of a full transcript of the record of the circuit court, may'file in the appellate court “a certified copy of the record entry of the judgment, order or decree appealed from in said cause, showing the term and day of the term, month and year upon which the same shall have been rendered, together with the order granting the appeal, and shall thereafter within the time and manner as is now or may hereafter be prescribed by the rules of such appellate court, file printed abstracts of the entire record of said cause,” etc. Thus we see that the only requirements of the statute for the short transcript are the judgment and the order granting the appeal. When a short transcript containing those essentials is filed in the appellate court that court is possessed of the cause and has jurisdiction of it, provided the judgment shows on its face that it is such a judgment as the appellate court has jurisdiction of, and provided the order granting the appeal shows on its face that the circuit court had jurisdiction to make it. If these facts, essential to the jurisdiction of the appellate court, do not appear on the face of the judgment and order as shown by the short transcript, they may be supplied by the abstract. For example, if a short transcript filed in this court shows that the judgment appealed from is a money judgment for more than $4,500, it shows that the judgment is one within the appellate jurisdiction of this court, but if it shows a money judgment for less than that sum, then something else must be shown to give this court jurisdiction; that something else may be shown by the abstract, for example, that a constitutional question is involved. And so also a short transcript filed in one of our Courts of Appeals may show on its face a judgment within the appellate jurisdiction of that court, yet the abstract filed may show that the cause should be transferred to this court.

Thus we see that a short transcript filed may be sufficient, prima-facie, to give the court jurisdiction or it may not.

In the case at bar the short transcript shows a judgment for $4,000 and an order made at the same term reciting that an affidavit for an appeal was filed which the court examined and found sufficient and on it granted the appeal. And the abstract filed in the Court of Appeals says the same.

The circuit court is a court of general jurisdiction and whenever its act is in question it is supported by a strong presumption of its regularity. Service of process on the defendant is essential to the jurisdiction of the court to render a personal judgment against him by default. If the summons is not what the law requires, or the service such as the statute prescribes, the judgment by default against him is void, but if the circuit court renders such a judgment it will be presumed to have been founded on a lawful return of a lawful writ and that presumption will prevail until the record is produced showing either that the writ or the service was not what the law requires. That doctrine is clearly recognized by this court in numerous cases. In McClanahan v. West, 100 Mo. 309, one of the grounds on which the judgment in question in that case was assailed was that -it was silent as to the acquisition of jurisdiction by service of process, there was no recital that the party complaining of the judgment had been served with process, but this court said: “A domestic judgment, rendered by a court of general jurisdiction, cannot be impeached by the parties to it merely because the record is silent as to the acquisition of jurisdiction.” And in support of that doctrine a number of decisions of this court are there cited, It has also been held in a case tried by a special judge wherein the record was silent on the question of whether or not he had duly qualified by taking the oath prescribed by the Constitution, that the presumption must be indulged that he did what the law required to qualify him to try the case.

In Adams v. Cowles, 95 Mo. 501, a judgment in another case was in question wherein the order of publication stated that it was stated' in the petition that the defendants were non-residents, but on examination of the petition it was found that there was no such statement in it, and there was no affidavit of non-residence in the record that came to this court. Yet in the judgment of the circuit court it was recited that the defendant had been duly notified by publication, and this court said that we would presume that there was an affidavit in the record in the circuit court in spite of the fact that the order of publication made by the clerk did not purport to be founded on an affidavit, but on an alleged statement in the petition which the petition itself contradicted. There was also oral evidence in that case tending to show that a search had been made among the papers for such an affidavit but none was found; that search was made some ten years after the judgment in question was rendered. In the opinion in that ease per Black, J., the court quoted with approval from Freeman on Judgments: “Hence, though the existence of any jurisdictional fact may not be affirmed upon the record, it will be presumed, upon a collateral attack, that the court, if of general jurisdiction, lias acted correctly, and with due authority, and its judgments will he as valid as though every fact necessáry to jurisdiction affirmatively appeared. The decisions to this effect, are very numerous. If a statute required a certain affidavit to be filed prior to the rendition of judgment, it will be presumed, in the absence of any statement or showing upon the subject, that such affidavit was filed.” [Freeman on Judg., sec. 124.]

There are many other decisions in our books to the same effect, but it is unnecessary to multiply cases to support so plain a proposition. The authorities hold that even when the record is silent as to the jurisdictional facts the judgment of a court of general jurisdiction will be upheld by a presumption that the facts existed until the contrary is made to appear by an exhibition of the whole record, and a fortiori that presumption will be indulged when the judgment in question recites that the jurisdictional facts did exist.

If that presumption prevails to sustain the jurisdiction of the court to render the judgment in the case, why should it not prevail to sustain the jurisdiction to perform any other act which the statute imposes on the court? Granting that the filing of an affidavit substantially in the form prescribed by the statute is essential to the jurisdiction of the court to grant the appeal, yet it is no more essential to that end than is the summons and service to authorize the court to render a personal judgment by default against the defendant. Where process has not been served, the defendant may, if he sees fit, enter his appearance, and thus give the court jurisdiction over him; in such case the voluntary entering of appearance is essential to the jurisdiction of the court, yet if the judgment contains a recital to the effect that the appearance was entered and nothing to the contrary shown, the presumption will prevail that the appearance was entered in dne and legal form. Why then, when the circuit court by its solemn record says that an affidavit for an appeal was filed and there is nothing shown to the contrary, shall we say that no presumption shall be- indulged to sustain the order granting the appeal, that nothing will satisfy us but the production of the affidavit? Why hedge in the order granting the appeal with more care than we do the judgment appealed from? We presume, in order to sustain a judgment by default, not only that there was a summons and service, but also that the summons was in due form and the service as the law requires; therefore, why should we not presume, not only that there was an affidavit, but that it was as the statute requires? In this matter of granting an appeal the duty is imposed on the circuit court to examine the affidavit and judge whether it complies with the statute, and that is really the only thing in that matter that is left to the judgment of that court. Section 808 prescribes what the affidavit shall state and when such an affidavit is presented within the time prescribed section 809 says the court “shall make an order allowing the appeal.” Therefore when the affidavit is presented in due time and the court has examined it and adjudged it sufficient, its discretion is ended and it must make the order. And when we come to review the action of the court we must presume, until the contrary is shown, that there was an affidavit and that it was in substance as the statute requires.

It being conceded that in all other respects the record is sufficient, and there being no counter abstract filed, we hold that the statement in the abstract to the effect that the record proper of the circuit court shows that during the same term in which the motion for new trial was overruled the defendant filed an affidavit for an appeal and that on that affidavit the court made the order allowing the appeal to the Kansas City Court of Appeals, is sufficient to confer appellate jurisdiction of the cause on that court, notwithstanding neither the affidavit for the appeal nor a statement of its contents appears in the abstract.

Relator’s motion to quash the record of the Kansas City Court of Appeals is overruled and respondent’s motion to quash the writ of certiorari is sustained. Writ quashed.

All concur.