text:
    WOAS, Appellant, v. ST. LOUIS TRANSIT COMPANY.
    Division Two,
    October 17, 1906.
    1. COMMON CARRIERS: Liability to Passengers: Criminal Trespass by Stranger. A common carrier is not liable for injury to a passenger caused by a criminal trespass upon the car by a stranger unless the officers or servants of the company knew or had opportunity to know that the trespass was threatened or by the exercise of prompt intervention could have prevented or mitigated the injury.
    2. -: -: -: Presumption of Negligence. The presumption of negligence on the part of the carrier which arises in favor of. a passenger from the mere fact of an accident, is applicable only when the injury to the passenger can he, reasonably attributed to some defect in the track, cars or machinery or to some negligence in the movement of the train or in the conduct of those responsible for its movement.
    3. -: -: -: Refusal to Stop Car for Passengers: Anticipating Injury. Plaintiff was a passenger on defendant’s street car, sitting on the second seat from the front, and as the car approached a crossing a person between the tracks (and not on the corner where persons contemplating passage were by ordinance required to be to stop cars) violently gesticulated, and as the car went by without stopping threw a stone at the motorman, which missed him, hut crashed through the window, broke plaintiff’s jaw and put out his eye, and he sues the railway company for damages. There was no mob or company of disorderly persons, and the assault was not aimed at plaintiff or other passenger, but at the motorman for not stopping the car. Held, that defendant, under the evidence, was not hound to anticipate the injury to plaintiff or that the stranger would commit the trespass.
    4. -: -: -: -: Evidence. Evidence that prior to the accident certain persons had thrown missiles at defendant’s cars on account of their failure to stop and allow passengers to hoard them, which has no limitations as to time and may refer to sporadic cases extending over years, is not competent as showing that defendant had notice that the trespass of the trespasser who threw the stone that injured plaintiff could, by the exercise of ordinary care, have'been anticipated. Such evidence is entirely too indefinite as to time, and does not tend to show such a state of affairs as would bring home notice to defendant that an assault was contemplated.

      Appeal from St. Louis City Circuit Court.— Hon. John A. Blevins, Judge.
    Affirmed.

      Warren D. 1sent erg' and F. B. Suits for appellant.
    (1) The petition states a good cause of action under the' law as laid down in the rule, and the proof supports the allegations. It is alleged that the defendant could have readily foreseen the danger they were subjecting plaintiff to and also that the defendant’s agents and servants took no steps to prevent the injury to plaintiff. The proof supports this allegation. Clearly these two allegations state a good cause of action against defendant. At another place in the petition it is alleged that the defendant’s own act induced the act which resulted in the injury to plaintiff, and the proof supports the allegation. If that be the case, then defendant must answer for the consequences. The authorities seem to support our contention that if defendant could have reasonably anticipated the throwing of the missile and failed to protect plaintiff from the consequences thereof it will be liable. 5 Am. and Eng. Ency. Law (2 Ed.), 554; Connell v. Railroad, 93 Ya. 44; Batton v. Railroad, 77 Ala. 501; Railroad v. Pillsbury, 123 111. 9; Dean v. Si. Paul Union Depot Co., 41 Minn. 360; Railroad v. McKenna, 13 Lea (Tenn.) 280 ; Hutchinson on Carriers (2 Ed.), secs. 551a, 595, 596; Eads v. Railroad, 43 Mo. App-. 542; Railroad v. Laloge, 62 L. R. A. 405; Spangler v. Railroad, 74 Pac. 607; Spohn v. Railroad, 87 Mo. 80; Sira v. Railroad, 113 Mo. 135; Sullivan v. Railroad, 133 Mo. 8; Jackson v. Railroad, 188 Mo. 200; Clark v. Railroad, 127 Mo. 208; Sweeney v. Railroad, 150 Mo. 385; Forbes v. Railroad, 116 Mo. 91; Meade v; Railroad, 68 Mo. App>. 100; Wright v. Railroad, 4 Colo. App. 102; Winegor v. Railroad, 85 Ky. 553; Railroad- v. Boyle, 42 S. E. 243; Bosworth v. Railroad, 55 Atl. 490 ; Fewings v. Mendenhall, 88 Minn. 336. (2) The court refused to permit plaintiff to show that, on account of the defendant’s refusal to stop in accordance with law for passengers, defendant’s cars had been repeatedly attacked and persons had been thereby injured; thus putting the company on notice of the danger it was subjecting its passengers to by reason of failure to stop. Railroad v. Dawson, 68 N. E. 910; Fewings v. Railroad, 55 L. R. A. 713; Exton v. Railroad, 56-L. R. A. 510; Ray, Neg. Imp. Duties, secs. 32-46; Railroad v. Baird, 54 L. R. A. 752; Seawell v. Railroad, 44 S. E. 610; Bosworth v. Railroad, 55 Atl. 490; Sanbuck v. Railroad, 71 Pac. 174.

      George T. Priest for respondent; Boyle & Priest and George W. Easley of counsel.
    (1) The court' committed no error in directing a verdict for defendant. To hold this defendant liable it must first be shown that the plaintiff was injured as the result of a direct assault upon him while a passenger upon defendant’s car; second, that defendant had reasonable grounds for anticipating that an attack would be made on plaintiff and had the means at hand to prevent it. We need look no further than the authorities in plaintiff’s brief for citations in support of .these principles. Connell v. Railroad, 93 Va. 44; Bratton v. Railroad, 77 Atl. 591; Railroad v. Pillsbury, 123 111. 9. (2) The liability of the defendant company in every instance rests upon grounds of negligence; that is, that its agents, foreseeing such circumstances and the probable result, would be negligent in failing to prevent it. (3) There is no evidence that the motorman or conductor in charge of the car in this case had any notice of an impending attack upon the plaintiff. There is no evidence that an attack was made upon the plaintiff, and that he was injured as a result of the said attack. The evidence is that the attack was made upon and directed against the motorman, hut its miscarriage resulted in an injury to the plaintiff. The verdict must he for defendant.
   GANTT, J.

On the 3d of March, 1903, plaintiff filed in the circuit court of the city of St. Louis an amended petition, which in substance stated that on the 14th of April, 1902, the defendant was a public carrier of passengers for hire, and as such controlled and operated a street railway along and over Easton avenue in the city of St. Louis, a street running in an easterly and westerly direction, and on said day plaintiff took passage on one of defendant’s east-bound cars at or near Clara avenue, and paid his fare,.and was accepted as a passenger on said car. While plaintiff was a passenger on said car, the defendant, its agents and servants, failed and neglected to exercise such care and vigilance and caution as was their duty to do towards plaintiff, and was negligently, improperly and unlawfully conducting itself; that the plaintiff became exposed to great danger and in consequence of such negligence and unlawful conduct on the part of defendant, its agents and servants, was greatly and permanently injured in and about his face and on the right side thereof; that before the said car reached King’s Highway; a street running in a northerly and southerly direction across said Easton avenue, some person took a position upon the track of the defendant upon which said car was running, and made violent and threatening motions at and towards the front of the car and at and towards the motorman in charge and running said car on which plaintiff was a passenger, and said motorman saw, or could have seen said person’s threatening motions, attitude and conduct, and could have reasonably anticipated, in view of the circumstances, that the car was in danger of being attacked, and the passengers thereon liable to be injured, but notwithstanding said threatened danger, the said motorman took no steps to prevent an attack upon said car and took no steps to protect the passengers thereon from said danger, but threw the power on said car in full force, and apparently tried to run over the said person on the track; that when the car was in close proximity to the said person on the track, the said person threw a rock or missile of some hard substance through the front of said car, and said missile struck the plaintiff in the face with great force and violence, permanently injuring the vision of his right eye and paralyzing some of the muscles on the right side of his face, whereby plaintiff has undergone and will undergo much pain and suffering, both mentally and physically, and caused plaintiff to pay out large sums of money for medicine, medical care and attention, and lose much time from his work; that there was in force and in effect at that time an ordinance which defendant was bound to obey, which provided that east-bound cars should be stopped on the east side of intersecting streets to take on passengers when requested, signaled or motioned by any person standing on said appropriate corner desiring to take passage on such cars. The petition sets forth the ordinance, section 1761 of article 6 of ordinance No. 19991 of the city of St. Louis, approved April 3, 1900, and it is further alleged that sections 1762 and 1772 of said ordinance provide a penalty for the violation of section 1761 for failing to stop said cars upon the request of persons desiring', to take passage thereon. It is then alleged that a number of people waiting on the east side of King’s Highway and on the south side of Easton avenue desiring to take passage on the car of which plaintiff was a passenger, signaled the motorman to stop said car so that they might take passage thereon, but the said motorman and servant therein in charge of said car failed, neglected and refused to stop the same; that the person who threw said missile was provoked thereto by the unlawful conduct of the defendant, its agents and servants, in failing to stop said car at King’s Highway; that the servants of the defendant then and there could have reasonably anticipated the happening of the said injury to the plaintiff; that at divers times and at sundry other occasions prior to the injury to the plaintiff, other persons had hurled missiles at the cars of the defendant on account of the failure of the servants of the defendant to stop said cars as required by said ordinance, and that such persons had been prosecuted for throwing missiles at said street cars; that plaintiff had been damaged in the sum of ten thousand dollars, for which he prayed judgment.

The answer was a general denial of each and every allegation in the petition. The cause was tried before the court and a jury on the 24th of November, 1903, and at the close of the evidence, the jury returned a verdict for the defendant. At the commencement of the trial the defendant objected to any testimony under the petition on the ground that it did not state facts sufficient to constitute a cause of action, and because the petition showed on its face that whatever injury was sustained by the plaintiff was due to the wrongful act of a stranger to the defendant, over whom defendant had no control whatever, and there was nothing in the pleading to render the defendant responsible for the wrongful act of the said stranger. The court overruled this objection and the defendant duly excepted. The plaintiff then offered to prove that prior to the 14th of April, 1902, missiles had been thrown at the cars of the defendant company on account of the failure of the defendant’s servants to stop its cars and allow passengers to board the same and also .to prove that prosecutions had been had against such persons for such unlawful conduct, all of which testimony the court excluded at the request of the defendant, to which action of the court the plaintiff excepted. Plaintiff next offered in evidence section 1761 of the Municipal Code of St. Lonis, which was pleaded in the petition, and also section 1762, providing a penalty for a violation of section 1761, and also the acceptance of the provisions of said ordinance by the defendant company.

The plaintiff in his own behalf testified that he was a linotype operator and that on the 14th of April, 1902, he took passage on an east-bound Easton avenue car about a quarter to six, to go to his work. He paid' his fare and took his seat- on the right side of the car fronting east on the second seat from the front of the car; that when the car approached King’s Highway he noticed a man standing in the middle of the street with something in his hand making violent motions towards the car. The motorman was standing on the platform in front of the car handling his motor. The next thing that the plaintiff remembered was he was on the operating table, and the doctor was taking the glass and broken bones out of his face and teeth. He testified to the wages he was earning before he was hurt and to the amount of his physician’s bills and to the length of time he lost from his work on account of the injury. He did not see the man throw anything, he only knew that when he came to his senses, he was on the operating table in I)r. Parker’s office.

Dr. Rice testified to the serious nature of the plaintiff’s injuries; that when he reached the plaintiff, at Dr. Parker’s office, Dr. Parker had already bandaged him up and sent him home. The cheek bone was fractured and the muscles were partially paralyzed, so he could not close his jaws.

John Jaeck testified that he was a member of the police force and saw a person throw something on the evening of the 14th of April, 1902, at an Easton avenue east-bound car near King’s Highway. He could not swear that it was a rock, but whatever the missile was, it struck the vestibule and broke the pane of glass in front of the vestibule, but whether it struck any person or not he could not say.

This was the substance of the plaintiff’s evidence. The court at the request of the defendant instructed that, under the pleadings and the evidence, the plaintiff was not entitled to recover, and thereupon the jury returned the verdict for the defendant. "Within four days plaintiff filed his motion for a new trial, alleging, among other things, error on the part of the court in refusing competent evidence on the part of the plaintiff and in sustaining the demurrer to the evidence, which motion was by the court overruled and the plaintiff excepted.

Two grounds are assigned for a reversal of the judgment, the principal of which is, that the court erred in not submitting the case to the jury upon the evidence, and the second is the refusal of the court to permit the plaintiff to show that on account of defendant’s refusal to stop' its cars in accordance with the ordinance various persons had made attacks upon the cars by throwing missiles at them.

I. In support of this first contention plaintiff invokes the law as to the duty of the carrier of passengers to protect its passengers.

A carrier of passengers is required to exercise the highest degree of care in respect to the equipment of its road and transportation facilities, in providing* suitable machinery in the operation of its cars, in the employment of competent and faithful servants and agents, and generally, as to all acts pertaining in any way to the conduct of its affairs in furtherance of its undertaking as a carrier. In respect to these matters, the rule in this State has always held such carriers to a strict accountability. It will be readily seen from the accompanying statement that both the petition and the evidence demonstrated that the act which resulted in the plaintiff’s injury, in this care, was not committed .by an employee or a fellow passenger, or by any one having any connection or relation whatever with the company, but by a stranger over whom the defendant had no control whatever. It is insisted by the plaintiff, however, that it was the duty of the defendant, in view of the fact that other persons had committed criminal trespasses by hurling stones at the cars of the defendant, to have exercised the utmost care and vigilance to guard and protect the plaintiff while a passenger on this car from acts of violence at the hands of evil-disposed persons, whether under the control of the defendant or‘ not, and that the act' of the man who threw the missile which struck the plaintiff could have been reasonably anticipated by the defendant’s motorman and could have been guarded against and prevented.

In Batton and Wife v. Railroad, 77 Ala. 591, it was held that while it is the duty of a railroad company as a common carrier to protect its passengers against violence or disorderly conduct on the part of its own agents or other passengers. and strangers when such-violence or misconduct may be reasonably expected and prevented, yet it is not liable in an action for damages for a wrong when it is not shown that the company had notice of any facts which justify the expectation that a wrong would be committed, and the court in its opinion says that all the cases upon the subject “impose the qualification that the wrong or injury done the passenger by strangers must have been of such a character as that it might reasonably have been anticipated, or naturally expected to occur.” And this statement of the rule has been approved by this court in Sira v. Railroad, 115 Mo. 1. c. 135 and 136, and in Connell v. Railroad, 93 Va. 44. And it is quite generally ruled by the courts of this country that the liability of the defendant carrier in such a case grows not out of the fact that the passenger was injured, but out of the failure of the carrier’s servants to afford protection after they have reasonable grounds for believing that violence to the passenger is imminent, and it is necessary therefore in all such cases to bring home to the conductor or other agent or officer of the company knowledge or opportunity to know that the injury was threatened and to show that by bis prompt intervention he could have prevented or mitigated it. [Railroad v. Burke, 53 Miss. 200; Britton v. Railroad, 88 N. C. 536.] It is clear in this case that the burden of showing negligence was upon the plaintiff and that the presumption of negligence which arises in favor of the passenger traveling on a train from the mere fact of an accident has no application to a case like this. Such a presumption only arises where the injury can be reasonably attributed to some defect in track, cars or machinery or the movement of the train or the conduct of the servants in charge thereof.

In Railroad v. Hummell, 44 Pa. St. 375, it was said: “If the law declares, as it does, that there is no duty resting upon any person to anticipate wrongful acts in others, and to take precaution against such acts, then the jury cannot say that a failure to take such precaution is a failure in duty and negligence. . . . "Were it worth while, abundant authority might be cited to show that the law does not require any one to presume that another may be an active wrongdoer. . . . . It is too well founded in reason, however to need authority. "We- act upon it constantly, and without it there could be no freedom of action. ’ ’ In Fredericks v. Railroad, 157 Pa. St. 103, a passenger was injured by the criminal action of certain parties breaking the locks of a switch and uncoupling cars which stood on a sidetrack and causing loaded coal cars to run out on the main track with which plaintiff’s car collided, and it was held by the Supreme Court of Pennsylvania that the company was not liable for these malicious acts of a stranger of which it had no notice. To the same effect is a decision in Deyo v. Railroad, 34 N. Y. 9, in which a train was thrown from the track through the culpable act of some unknown person who maliciously drew the spikes which fastened the chairs and the rails whereby a passenger was injured.

In Curtis v. Railroad, 18 N. Y. 534, it was said: “If obstructions are placed, by strangers, upon the road, either through accident or design, the company is not responsible for the consequences, unless its agents have been remiss in not discovering them.”

In Railroad v. MacKinney, 124 Pa. St. 462, it appeared that the plaintiff was a passenger on the defendant’s train and while reading a newspaper in his seat at an open window, was struck in the eye by a hard substance and seriously injured. On the trial, the court below instructed the jury that they should start with the presumption that the defendant was guilty of negligence from the mere happening of the accident, and that it therefore devolved upon the defendant to rebut that presumption and show it was not negligence. The Supreme Court held that this instruction was erroneous because the accident occurred from something extraneous to the railroad and the appliances of travel, and that it was necessary for the plaintiff to go further and affirmatively prove that there was negligence. The court pointed out the difference between an accident resulting from the mere operation of the road and one .which was the result of some extrinsic cause. In the former the presumption of negligence arose from the mere happening of the accident, in the latter no such presumption arose and the fact of negligence for which the defendant was responsible must be proven by different testimony, just as in any ordinary case between strangers.

The foregoing cases sufficiently indicate the principles which must govern in the decision of this case. It being conceded that plaintiff’s injury resulted from the unlawful wanton and wicked act of a stranger over whom defendant had no control, was there anything in the evidence which would justify the circuit court in submitting to the jury whether the defendant could have reasonably anticipated that this stranger would have hurled the rock or other missile into the car'where plaintiff was seated, in time for the defendant’s motorman to have taken steps to have prevented it? While plaintiff urges in his petition that the party who threw the stone stood on the track on which defendant’s car in which plaintiff was riding was moving, the plaintiff’s evidence clearly shows, that this party was not on the track, but stood between the east- and west-bound tracks, and not on the corner where a passenger was authorized to hail the car to stop. It is too plain for argument that the motorman was under no obligation to stop the car for a party not at the proper point. There is not the slightest pretense that this motorman had any reason to expect this party to be on the track at this place until his car approached him, nor is there the slightest evidence that he had any right to anticipate that this stranger would violate the law by throwing a deadly missile at the motorman.

The question at bar- has been so recently and ably discussed by the Supreme Court of Minnesota in the case of Fewings v. Mendenhall, 88 Minn. 336, that we quote from that ease the conclusions of law applicable to the facts before us. We premise our quotation, however, by remarking that in this case there was. no mob or other circumstances which characterized the Minnesota case. The defendant in that case was the receiver of the Duluth Street Railway Company and as such was operating the road: “On May 2, 1899, a general strike was inaugurated by the employees of the company, which was maintained until after the plaintiff was injured, as hereinafter stated. The defendant- procured other men. to take the places of the strikers, and continued to operate the street car lines. On Sunday evening, May 7, the plaintiff took passage in the car operated by defendant, at Superior, in the State of Wisconsin, for Duluth. While the car was going northerly along Garfield avenue in Duluth, and as it approached Michigan street, a young man, not in any way under the control or direction of the defendant, threw a stone at the car in which plaintiff was so riding, which passed through the window, and struck the plaintiff on the head, whereby he was seriously injured.” Plaintiff sued the receiver and based his right to recover on the alleged negligence of the defendant in failing to take proper precaution to prevent injury from acts of that kind. It was held that the defendant was not guilty of negligence in attempting to operate the cars during the strike. Said the court: “It is insisted that the act of the boy who threw the stone in question was such as the defendant might, from the circumstances and conditions of the strike, have reasonably anticipated, and could have guarded against and prevented. We have been cited to no case where the high degree of care essential as to matters within the control of the carrier has been extended and applied with all its force and strictness to acts of persons beyond its control, and for which it was in no way responsible, directly or indirectly. Some cases cited and relied upon by plaintiff do not sustain his position.” The court then reviewed a large number of cases and showed that they had no application to the question under discussion, and then proceeded as follows: “A number of other cases are cited and relied upon by counsel, wherein the general rule is stated substantially as contended for by him, namely, that a carrier of passengers is required to exercise the unmost vigilance to protect passengers from insult and injury from whatever cause arising; but an examination of them shows that they are all cases where the carrier had permitted third persons to enter upon its premises or cars, and thereafter failed to exercise a proper degree of care to restrain them from acts of lawlessness; and there can be no question as to their soundness. The question before us is whether this strict rule applies to the act of a stranger, such as here shown. That it does not is sustained by some very respectable authorities. [Tall v. Baltimore Steam Packet Co., 90 Md. 248, 44 Atl. 1007; Railroad v. MacKinney, 124 Pa. St. 462; Railroad v. Pillsbury, 123 Ill. 9.] In our opinion it would be unjust to require a carrier of passengers, either a steam or a street railway company, to exercise the utmost care and vigilance to guard and protect passengers from criminal acts of strangers, persons not under its control or subject to its orders, and for whose acts it is in no way responsible. And we hold, without further discussion, as respects the acts of such strangers, that carriers of passengers are liable for the exercise of oidinary care and prudence only. Such carrier is liable for all injuries resulting from the acts of strangers which are reasonably to be anticipated under the particular circumstances, and which ordinary care and prudence, had they been exercised, would have prevented. '. . . The familiar rule that evidence of an accident is prima-facie proof of negligence against the carrier can have no application to this case, because the act resulting in the injury did not arise from any act or omission of the defendant. The presumption of negligence in such cases arises only where the thing causing the-injury complained of was under the exclusive control of the carrier or its servants or employees. The act complained of here being that of a stranger, it was incumbent upon plaintiff affirmatively to prove that defendant failed to exercise proper care to prevent it. The question arises whether the evidence was sufficient to charge the defendant with negligence in this .respect.” The court then discussed' the two theories advanced by the plaintiff, one was that the defendant might have protected the plaintiff by stretching a heavy canvas over the windows outside of the car, or have caused its leather curtains to have been pulled down. The other was to have informed the plaintiff that violent and lawless acts were being committed by the strikers and their sympathizers. The court held that ordinary care did not require of the defendant to take doubtful or unreasonable precaution to guard against the lawless acts of strangers, and that, as to the duty to notify the plaintiff of the violent conduct of some of the strikers, plaintiff was bound to know of those things as much as the defendant and it was unreasonable to suppose that had defendant given plaintiff this warning it would) have had the effect of protecting him, and the court held that upon the whole record the evidence was insufficient to charge the defendant with actionable negligence.

Another leading case on this subject is that of Railroad v. Pillsbury, 123 Ill. 9. In that case a railroad company stopped at a place not a usual stopping place and took aboard laborers who had taken the place of some strikers. The police guarded the laborers until they entered the train. When the train stopped at a railroad crossing, a mile and one-half beyond, it was boarded by a mob, who attacked the laborers as scabs and shot the plaintiff, a passenger on the train at the time. Scott, J., speaking for the majority of the court, said: “With regard to' danger and hazard to travel arising otherwise than on the train, and not incidents of such travel, the degree of care to be observed to discover and prevent all danger to and consequent injuries to passengers, must depend in a large measure on the attendant circumstances. No doubt in many cases, if the carrier observes ordinary care and diligence to discover and prevent injury to passengers, such as any prudent person would do for his own personal safety, it will be exonerated from liability. In other cases and under other circumstances it will, no doubt, be the duty of the carrier to exercise the utmost care, skill and diligence to protect the passengers from danger and injury, so far as the same, by the exercise of such care and skill and diligence, could have been reasonably and practicably foreseen and anticipated in time to prevent injury.....Prior to the time the plaintiff was injured, the box cars containing these laborers had been assailed, and it might reasonably have been inferred that danger to passenger cars on the same account was imminent, and common prudence should have induced the taking of extraordinary precautionary measures. . . . Under the circumstances, the law would charge defendant with negligence in stopping a train filled with passengers, in the midst of a howling, revengful, lawless mob, to take on persons whom the mob were seeking an opportunity to maltreat.” . . . Defendant ought reasonably to have anticipated the mob might attack its train to reach the object of their vengeance, so soon as it had passed from the protection of the police, and precautionary measures should have been taken. . . . The verdict is a sufficient warrant for the conclusion that reasonable precautions were not observed.” Magrxtder, J., entered a most vigorous dissent from the conclusions reached by the majority. It is to be observed that in this case the opinion of the majority of the court is predicated upon the fact that the circumstances themselves charge the defendant with notice of the danger to its passengers from an attack of a moh of strikers, and the duty of the carrier under such circumstances to exercise that skill and diligence commensurate with the threatened danger.

In both of the cases last cited, it is to' be observed that the plaintiffs proceeded upon the theory that the carrier was advised of the danger to its passengers and failed to exercise the proper care for their protection. It is obvious that the facts of the case at bar are wholly dissimilar from those two cases, in that in this case there was a total absence of any mob or other public disturbance, which would of itself indicate to the defendant any danger to its passengers on the car on which plaintiff was riding. Here the act which caused the injury was the wanton unlawful act of one man who had assumed to himself the prerogative of punishing the motorman for not stopping the car where he thought it ought to be stopped.

In the Fewings case, and in the Pillsbury case, the assaults were aimed at the passengers on the cars and not merely at a motorman or engineer. It was the threatened injury to the passengers and notice thereof upon which those actions were grounded. In this case it is not pretended that the motorman had any notice of any impending attack upon the plaintiff or the other passengers, nor was any attack made directly upon the passenger, but the attack was directed solely against the motorman, and it was only because of its miscarriage that plaintiff was injured. All the evidence shows that the attack was made with the sole intention and purpose of injuring the motorman, and to hold that the defendant under this evidence was bound to anticipate injury to its passengers, would be contrary to reason and common sense. The motorman was standing alone in the vestibule controlling the action of his car, and it would be utterly unreasonable to hold that he could reasonably anticipate that a person attempting to strike him would inflict injury upon the passengers in the coach. As already shown by the authorities cited, the motorman was not bound to anticipate, that this stranger, who- was hailing his car, would be guilty of a criminal assault upon himself or upon his passengers. The circumstances in evidence did not indicate any purpose on the part of this lawless offender to maltreat the passengers on that car. That carriers of passengers are not liable for injuries caused by missiles thrown by strangers which they have no right to anticipate, is established by a large. number of well-considered cases. [Railroad v. MacKinney, 124 Pa. St. 462; Fewings v. Mendenhall, 88 Minn. 336; Thomas v. Railroad, 148 Pa. St. 180.] Knowledge of the existence of the danger or of facts and circumstances from which danger may be reasonably anticipated is necessary to fix the liability of the carrier for damages sustained in consequence of failure to guard against it.

In view of the foregoing legal principles and the evidence in this case, we think the circuit court correctly sustained the demurrer to the evidence, as the plaintiff wholly failed to bring himself within any rule of law which would render the defendant liable for the assault of the person made upon its motorman.

II. The only remaining ground is that the court excluded certain evidence offered by the plaintiff to show that prior to the 14th of April, 1902, certain persons had thrown missiles at the defendant’s cars on account of their failure to stop and allow passengers to board the car. It is obvious that the evidence sought to be adduced had no limitations whatever save that missiles were thrown at the defendant’s cars at sometime prior to April 14, 1902. The questions asked would have permitted the witnesses to have told of sporadic cases of the throwing of missiles at defendant’s cars during a period extending over years prior to the 14th of April, 1902. Moreover, the question did not indicate that such conduct was by any means general or of such frequency as to indicate that it would be repeated on the occasion on which plaintiff was hurt.

The evidence sought to be elicited was entirely too indefinite to be of any probative effect whatever. We are cited to the case of Railroad v. Dawson, 68 N. E. 909, from the Appellate Court of Indiana. The evidence offered in this case falls far short of the testimony which, was ruled competent in that ease. We think the court committed no error whatever in excluding the testimony for the reason that it was entirely too indefinite as to time and for the further reason that it did not purport to show any such state of affairs as to bring home notice to the defendant of any danger to the plaintiff of the assault by which he was injured.

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

Burgess, P. J., and Fox, J., concur.


source: Caselaw Access Project

author: BRACE, C. J.

license: Public Domain

text:
    RICE, STIX DRY GOODS COMPANY, Appellant, v. JAMES B. SALLY; SARAH H. SALLY, Interpleader.
    In Banc,
    October 19, 1906.
    1. PLEADING: Legal Conclusions. An allegation in the answer to the interplea that a writing signed by defendant “did not give to interpleader any right, title or interest in or to the property referred to in said writing, the same being null and void,” is a legal conclusion, and amounts to nothing more than a general denial.
    2. -: -: Estoppel. And so also is a mere allegation that “said interpleader is by her conduct estopped from claiming any right title or interest in or to said property, and estopped from claiming the existence of any indebtedness to herself from defendant.”
    3. ATTACHMENT: Conveyance of Property to Interpleader: Necessary Proof. To sustain the averment that prior to the date of the attachment the defendant had conveyed the property attached to interpleader by chattel mortgage it devolved upon interpleader to show, as against the attaching creditor, not only a duly executed and acknowledged mortgage, but that possession of the property had been delivered to and retained by interpleader thereunder, or that the same had been recorded in the county where defendant resided before the levy of the attachment writ.

      4. -: -: -: Possession. In this case, the chattel mortgage was not recorded in the county where the attachment debtor resided, but it is held that there was sufficient evidence that possession of the property had been delivered to inter-pleader, and that the possession was so open, notorious and unequivocal, to take the case to the jury.
    5. -: -: -: -: Proof that Possession was Notorious. Actual and unequivocal possession having been established by the evidence, that it was notorious can be shown by a sign board put up on the store with the interpleader’s name on it as owner, and by announcement, to persons in the store and to those who camp to trade and to the few visitors at the store in the little village where it was situated, that the goods had been conveyed to interpleader and the store was in her hands.
    6. -: To Hinder, etc.: Instructions. Where no issue is made by the pleadings that the conveyance made by the attachment debtor by chattel mortgage to his wife was made to hinder, delay and defraud his creditors, and no evidence was introduced tending to show any fraud on the part of the interpleader except that she was his wife, instructions on those subjects should not be given.
    7. -: Mortgage: Indebtedness. The consideration for a chattel mortgage given by the attachment creditor to interpleader is proven prima-facie by the instrument itself; and where the bona-fides of the indebtedness is not attacked by the pleadings, evidence tending to prove its amount and source is merely cumulative, and any error in its admission cannot do the attachment creditor harm.
    Appeal from Webster Circuit Court. — How. Argus Cox, Judge.
    Affirmed.

      Lyon S Stuarts for appellant.
    (1) Evidence of Mrs. Sally’s pecuniary condition at and prior to tbe time of the trial was erroneously admitted. Bice v. Sally, 176 Mo. 140; Bitter v. Bank, 87 Mo. 574; State v. Brassfield, 81 Mo. 151; Hold-berg v. Hahn, 76 Mo. App. 501; Gorham v. Auerswald, 53 Mo. App. 131. (2) Instruction 1, given for the interpleader, was erroneous: (a) Because it assumes the truth of a controverted fact. Wilkerson v. Filers, 114 Mo. 245; Robertson v. Drane, 100 Mo. 273; Fire Ins. Co. v. St. Mary’s Seminary, 52 Mo. 480; BlaslandParcels-Jordon Shoe Co. v. Hicks, 70 Mo. App. 301. (b) Because the element of good faith on the part of the interpleader is omitted therefrom. State to use v. O’Neill, 151 Mo. 67; Stewart v. Outhwaite, 141 Mo. 562. (c) Because it does not sufficiently define the character and change of possession necessary to the validity of the mortgage. Rice v. Sally, 176 Mo. 107; State to use v. O’Neill, supra; State ex rel. v. Goetz, 131 Mo. 675; Petring v. Chrisler, 90 Mo. 649'. (d) Because of the undefined use of the words “by a preponderance of evidence” in the connection in which they were used. Morton v. Heidorn, 135 Mo. 608. (e) Because of the omission of the statutory words “or defraud.” R. S. 1889, sec. 5170 (sec. 3398, R. S'. 1899); Burgert v. Borchert, 59 Mo. 80; Crow v. Beardsley, 68 Mo. 435; State to use v. Nauert, 2 Mo. App'. 295. (3) The court should have given the plaintiff’s instruction in the nature of a demurrer to the evidence. Rice v. Sally, 176 Mo. 107; Balz v. Nelson, 171 Mo. 682; Bank v. Winn, 132 Mo. 80; Riley v. Yanghan, 116 Mo. 176; Hite v. Railroad, 130 Mo. 132; Reichenbach v. Ellerbe, 115 Mo. 588; Jackson v. Hardin, 83 Mo. 175; Yietor v. Swisky, 200 111. 257; Lynch v. Mercantile Co. (Neb.), 96 N. W. 524.

      J. B. Harrison and J. P. Nixon for respondent; L. F. Parker of counsel.
    (1) The note and chattel mortgage read in evidence import a consideration, and being valid on their face are, if accompanied by actual possession, evidenced by such open and visible acts as to reasonably advise and inform the community of such change of title and possession, prima-facie evidence of title in the inter-pleader. R. S. 1899, sec. 894; Lindell v. Rokes, 60 Mo. 249; Taylor v. Newman, 77 Mo. 257; Ettlinger v. Kahn, Lehnhard, Interpleader, 134 Mo. 492. (2) The instructions of the court on the question of fraud and the necessity of proof of participation of the mortgagee in order to defeat the chattel mortgage are in accordance with repeated rulings of this court. Bank v. Winn, 132 Mo. 80; Crothers v. Busch, 153 Mo. 606; Wall v. Beedy, 161 Mo. 625; Alkire Grocer Company v. Ballenger, 137 Mo. 369.- (3) There was no evidence in the cause to overcome the prima-facie case made hy the introduction of the note and chattel mortgage, and proof of open and visible delivery of possession, and retention thereof, and all instructions asked by plaintiff, which were refused, concerning the law of fraudulent conveyances, were properly refused, and all those that were given on that subject might well have been refused. Ettlinger v. Kahn, Lehnhard, Interpleader, 134 Mo. 492; Crothers v. Busch, 153 Mo. 606; Bank v. Winn, 132 Mo. 80; Wall v. Beedy, 161 Mo. 625.
   BRACE, C. J.

This is an appeal from a judgment of the Webster Circuit Court in favor of Sarah H. Sally, Interpleader, in a suit instituted by Rice, Stix & Company, creditor, against James B. Sally, the husband of the said Sarah H., their debtor, in which certain goods, wares and merchandise, located at Lecoma, Dent county, Missouri, were seized by the sheriff on the 25th of October, 1897, under attachment process issued therein.

Mrs. Sally in her interplea claimed the property so seized, under and by virtue of a chattel mortgage, duly executed and acknowledged by the said James B. Sally on the 21st day October, 1897,' and recorded in Dent county on the 22nd day of October, 1897; given to secure the payment of a promissory note of the said J ames B. Sally of the same date for the sum of $10,500, payable to the said Sarah H., one year after date, with eight per cent interest; which, it was alleged in the interplea, was given by the said James B. Sally in part payment of the snm of $12,465.62 dne and owing by him to the interpleader on account of moneys received by him belonging to her as her separate estate. The mortgage and the several items of this indebtedness are set out in detail and at great length in the interplea. The answer to the interplea is as follows:

“Plaintiffs, Rice, Stix & Company, for answer to the interplea of Sarah H. Sally filed in this case, admit the allegations thereof that said interpleader is and was the wife of said defendant, James B. Sally, from September, 20, 1883, to the present time. Plaintiffs deny each and every other allegation of said interplea.
“For further answer, plaintiffs allege that if said defendant signed and executed the said writing, set forth in said interplea (and which is denied by plaintiffs), the same did not give to said interpleader any right, title or interest in and to the said property referred to in said interplea, the said writing, being null and void.
“For further answer to said interplea, these plaintiffs allege that said interpleader is by her conduct estopped from claiming any right, title or interest in and to the said property, and estopped from claiming the existence of any indebtedness from said defendant to herself.
“Wherefore, the plaintiffs pray judgment for the retention of said property.”

The reply was a general denial of the allegations of the answer, and, upon the issues thus joined, a trial was had which resulted in a verdict and judgment for the interpleader, from which the plaintiff appealed to this court, where the judgment was reversed and the cause remanded for new trial; and, in due course, the case was again tried on the same pleadings and from this second trial, in which the interpleader again obtained verdict and judgment, this appeal is taken.

The case on the former appeal is reported in 176 Mo. 10-7, et seq., and the elaborate statements contained in the opinions there reported obviate the necessity of a more extended statement here.

Since the case has been pending plaintiff has been substituted for Rice, Stix & Co., the original plaintiffs.

As will be observed the answer contains a general denial and two legal conclusions, with no facts stated upon which to base either of them; and the whole answer, so far as the facts are concerned, amounts to no more than a general denial of the material allegations of the petition. The material ultimate fact charged in the petition was that James B. Sally, under whom plaintiff claimed the property by virtue of the attachment process levied on the 25th of October, 1897, had, prior to that date, to-wit, on the 21st of October, 1897, by the chattel mortgage m question, conveyed the prop^erty levied upon to the interpleader. In order to sustain the averment it devolved upon the interpleader to show as against the plaintiff not only a duly executed and acknowledged chattel mortgage, but that possession of the property had “been delivered to and retained” by the interpleader thereunder, or that the same had been recorded in the county in which the said James B. Sally resided before the levy of the writ of attachment. [R. S. 1890, sec. 3404.]

James B. Sally resided in the county of Phelps. The chattel mortgage was recorded in the county of Dent, so that the only ground upon which the interplea could be maintained was that possession of the property had been delivered to and retained by Mrs. Sally as required by the statute; and, under the pleadings, that was the material issue of fact in the case. On this issue, in addition to the evidence on the first, much additional evidence was introduced by the interpleader on the second trial, now under consideration. It appeared from that evidence that for two or three years prior to the 21st of October, 1897, the said James B. Sally had been running a general country store in the village of Lecoma, in Dent county. The village is situate in the Northwest corner of Dent county, near the line between that and Phelps county, and distant about twelve miles from Rolla, which is the nearest railroad station. The village was a small one, the only business concerns being Sally’s store, a planing mill and a blacksmith shop. The trading of the neighborhood generally was done at the store, and it seems to have been the most public and important place in the village. It had no sign on it and needed none. Sally had three clerks in his employ, viz., John A. Sally, Pat Smith and George Martin. The chattel mortgage was executed at Rolla, Phelps county, on Thursday, October 21, 1897, between ten and eleven o’clock p. m., and early in the morning on Friday, the 22d, the interpleader and her attorney in fact, J. B. Harrison, appeared at the store house of J. B. Sally, in Lecoma, and took possession of the stock of goods, accounts, etc., therein contained and now in question, under the mortgage, as authorized by J. B. Sally so to do, in manner, as testified to by Mr. Harrison, as follows:

££Q. Who were the clerks, Mr. Harrison, of J. B. Sally in that store? A. George Martin, Pat Smith and John Sally. When they all came up there I announced to them the fact that Mrs. Sally had a chattel mortgage executed by James B. Sally to her on this stock of goods and he had placed her in possession of it. Mr. Sally, at that time, had driven that far with us and had told John Sally to deliver his key to us. We discussed the matter with the clerks; I told them everything that must be done in order to make everybody understand that we had possession of it. I told John Sally to go and have a sign painted the first thing. ... I then announced to a number of parties-there that we had possession of the store under the chattel mortgage and exhibited the chattel mortgage to them. I held it up- in my hand in that way (indicating) to the crowd.
“Q. Where were you at that time? A. I was standing right in the door of the store, in the south door of the store building.
“Q. Now, what did you do? A. Well, I exhibited the chattel mortgage and made that statement.
“Q. What did you say in connection with exhibiting the chattel mortgage, if anything? A. I said we had taken possession of the property for Mrs. Sally and in no event would she recognize any further claims of J. B. Sally and would not purchase goods in his name nor pay any of his debts; that the sales from now on would be conducted as much for cash as possible. I instructed Pat Smith, one of the clerks, to go with me to the books, and he did. I told him that all the accounts in the books belonged to Mrs. Sally. We had at that time these accounts made out in the nature of a statement, and they were endorsed on the back by Mr. Sally.
“By the Court: Q. What were those statements? A. They were itemized statements of the accounts, and on the back J. B. Sally’s name was endorsed — written on the back.
“Q. What became of those statements? A. There were ten or fifteen of them, may be twenty.
“Q. What became of them? A. I turned them over to John Sally to collect. . . . Witness continuing: I told Mr. Smith to balance all the accounts and run a red line under them.
“Q. That was the 22nd day of October? A. Yes, sir; that was the 22nd day of October, 1897. . . .
‘ ‘ Q. What did you tell him you wanted that done for? A. Well, I told hini I wanted to open up the aecounts in Mrs. Sally’s name, in the entire ledger; that those accounts all belonged to her.....
“Q. Then what took place? A. I then, went around over the building to see if I could see anything of any signs. I did not find J. B. Sally’s name on anything except it appeared on some goods boxes that had been shipped there; that was the only thing I noticed with his name on.
“Q. What did you do then? A. I went to destroying everything in the nature of signs with his name on. ... I destroyed everything in the nature of signs indicating that J. B. Sally owned-that stock of goods.
“Q. Now, if there was any arrangement made to retain the clerks, state about it? A. Yes, sir; I spoke to John Sally, Pat Smith and George Martin right there in the presence of Mrs. Sarah H. Sally, and asked them if they were willing to work for the same wages and on the same terms for Mrs. Sally as they had been working for Jim Sally, and they all said they were. I told them then to consider themselves employed.
“Q. For whom? A. For Mrs. Sally; I told them to announce that fact to everybody — to announce the change of possession to everyone.
“Q. Was there anything said about receiving more goods; if so, what was said and to whom about that? A. I instructed all the clerks not to receive any goods from Rolla or from any other place that had been shipped to J. B. Sally or bought by him, which were not already in the store.
“Q. Now, then, outside of the store, did you give notice as to the condition of the store, as to who was the owner of it? A. I did to everyone I met.
“Q. Do you recollect any of them? A. I did to everyone I talked with. I went from there to Salem.
“Q. When did you return now and what took place then! A. When I returned there was a crowd of customers in the store.
“Q. At what place? A. The store house at Lecoma.
“Q. How many were there then? A. There were ten or fifteen persons present.
“Q. What was done then? A. I stated there publicly and asked those parties that were there to notify others that a change had taken place, that Mrs. Sally had purchased that stock of goods, or had a chattel mortgage on it and was in possession of it and was running and operating it in her own name. I also announced that I had a power of attorney for Mrs. Sally and was in absolute-control of it for Mrs. Sally.”

He further testified that he was at Lecoma on the following Sunday and Monday and saw the sign which he had ordered, on the front of the store, the sign being a board about four feet long and six inches wide, on which was painted the words: “Mrs. Sarah H. Sally’s Store; ’ ’ that he could read it from the middle of the road.

Pat Smith testified as follows: That he was book-, keeper for J. B. Sally until the morning of the 22d of October, when Mrs. Sarah H. Sally and J. B. Harrison came to Lecoma and took possession of the stock of goods, including the books, which had theretofore belonged to J. B. Sally, being the same goods and books that were attached in the attachment proceedings of Rice-Stix Dry Goods Company against J. B. Sally. Under directions of J. B. Harrison, acting for Mrs. Sally, he sold goods for account of Mrs. Sally from the morning of the 22nd until the night of the 25th, when the goods were seized; that, under the direction of Mr. Harrison, he had drawn red lines under all accounts in the ledger and had opened new accounts for all customers to whom goods were thereafter sold; that during the entire time from October 22nd until the store was closed by the sheriff, it was the general talk there that the store belonged to Mrs. Sally, and that the clerks had to explain it all the time to customers asking questions, and that they told them it belonged to Mrs. Sally and was rnn in her name; that Mr. Sally had never had a sign on the store.

John A. Sally testified: That he was selling goods at Lecoma in October, 1897, for his brother James B. Sally, in the latter’s store; that Mr. Harrison and his brother’s wife, Mrs. Sarah H. Sally, came to the store early in the morning of October 22nd, 1897; that he would not be positive about the day of the week, but believed that it was on Friday; that the attachment was levied on the Monday after they came there on Friday; that the store was run two days after they came there until Sunday and therefore it must have been on Friday that they came there, in the morning, about seven o’clock; that after they got there Mr. Harrison gave them notice that the store and goods had been transferred to Mrs. Sally and said that everything had been transferred to her and to change all the accounts, etc., and to give all orders in her name; that Mr. Harrison said to him that the transfer had been made by chattel mortgage; that he was already at the store when Mr. Harrison and Mrs. Sally went there; that Mr. Harrison said that the business from that time on should be carried on in her name instead of in his brother’s name, and that they should not receive any goods shipped in his brother’s name, and that they should not do any more credit business than they could help, and if they sold anything on credit to open up the account with Mrs. Sally, and that the accounts were to be changed and kept in her name; that Mr. Harrison gave orders for the bookeeper to draw a red line under each account and he (the bookeeper) changed it in that way; that Mrs. Sally told him and several there that it was her store; that Mr. Harrison said that they should go ahead with the same clerks and that all the clerks that were there should stay there; that Mr. Harrison ordered all signs that were hanging on the wall to be taken down, these signs' being some shoe signs of the Hamilton-Brown Shoe Company or something like that, “sold by by James B. Sally,” or something like that, and that these signs were taken down, some of them by the witness himself, and that Mr. Harrison stated publicly to parties and customers around the store or anybody that happened to be there that the store had changed hands, and that it was her store and she had charge of it. He further testified that in pursuance of Mr. Harrison’s instructions to get and put up a sign with “Mrs. Sarah H. Sally’s Store” on it, he, on Friday, employed a Mr. Chamberlin to paint such a sign, but the sign not being finished Friday evening he procured ‘a temporary one to be made in Kolia by a Mr. Tucker, 'which he put up on Saturday morning by nailing it to the front of the store building on the south side of the door. The sign was a white board about four feet long and six inches wide with the words “Sarah H. Sally’s Store” in black letters painted thereon; that on the following Sunday and Monday he saw the sign up where he had placed it, and on the following Tuesday or Wednesday after the goods had been seized by the sheriff he saw it on Mr. Lenox’s porch just across the road from the store.

George W. Smith (the village blacksmith) testified : That he had considerable . dealings with J. B. Sally at the store and a,t the shop and all around; that he remembered Mrs. Sally coming there with Mr. Sally the latter part of the week, and knew that Mr. Harris-son was at the shop and that she was there in town; that the store was closed up> on Monday following the time he saw Mrs. Sally there the week before; that she was there Thursday or Friday and the store ran until the evening of the following Monday, about three days or something like that; that he heard she had taken possession of the store; that he was in the habit of going there every evening to settle np his bills; that they had pnt up a sign on the building near the door which read “Mrs. Sarah H. Sally,” “I believe it was;” that he saw it up Saturday evening and on Sunday.

E. E. Comstock (the miller)' testified: That in October, 1897, he was doing business with that store; that he had a lumber yard and mill and the store frequently gave orders on the mill, and that he also gave orders on the store for merchandise; that he recollected Mrs. Sally taking possession of the goods about October 22,1897, when he saw Mr. Harrison and Mrs. Sally about the store there; that he was notified by one of the clerks of that store “that if I should give any orders, to give them in the name of Mrs. Sally, and that if I received any orders, they were to be sent to me in her name, and my books were changed at the time. ’ ’

C. L. Taylor testified that he was to do the lettering on the sign which Chamberlin was preparing, but it was never finished; that in the meantime a sign was sent out from Rolla which he saw on the platform of the store leaning against the house on Saturday, October 23. The sign read “Sarah H. Sally’s Store.”

Mrs. Mary J. Pemberton testified that she went to the store to do her shopping on Saturday, the 23rd of October, directly after breakfast, and when stepping upon the step she saw a sign with the name of Mrs. Sarah H. Sally on it leaning against the wall.

P. M. Lenox testified that he saw the sign there on Sunday, the 24th of October; before that time he saw Mrs. Sally washing up the queensware and glassware in the store, and that was the first he knew of the store changing hands.

Ben Harrison testified • that he saw the sign on the front of the store Sunday evening and on Monday.

J. C. "Williams that he saw the sign Saturday morning south of the door going into the building; his attention was called to it by George A. Martin who was clerking there.

Mrs. Clara Lenox, who lived across the road opposite the store, testified that early Saturday morning she saw Mrs. Sally’s sign, from the porch of her house, resting on a bench on the porch of the store — “Mrs. Sarah H. Sally’s Store” was on the sign; that prior to the time Mrs. Sally took possession there was no sign on the store.

Mrs. Sally’s evidence on this issue was about the same as on the former trial, and George M. Tucker testified that he painted a sign for John Sally and that the substance of what was on it was “Mrs. Sally’s Store.” There was some other evidence corroborative and cumulative of the foregoing, but this is sufficient to show the interpleader’s case on this issue and for a ruling on plaintiff’s demurrers to her evidence.

On behalf of plaintiff several witnesses were introduced who testified that during the time they were respectively in Lecoma from Friday morning until Monday evening they saw no sign to indicate a change of ownership, but with this evidence we have no concern on this ruling.

I. Whatever may be thought of the action of the court in refusing to sustain the demurrer to the evidence of interpleader on the first trial, it seems beyond question that the court did not err in overruling the demurrers to her evidence on the second trial. While it is true, as was ruled on the former appeal, that it devolved on the interpleader to show that the possession of the mortgaged goods was ‘ ‘ delivered to and retained” by her before the seizure by the sheriff; that such change of possession was open, notorious and unequivocal, such as to apprise the community or those accustomed to deal with the party that the goods had changed hands, regard being had to the situation and character of the property; it is also true in this case that nothing in regard to the change of possession was done in a comer. It was made with wide open doors and hy public proclamation, and according to inter-pleader’s evidence the indicia of former ownership was wiped out, and that of the new owner installed as obviously and with as much expedition as the nature of the case would admit.’ That it was open and unequivocal is beyond question. Was it so notorious as to apprise the community and those accustomed to deal at the store that the goods had changed hands'? The sign, which, according to interpleader’s evidence, after an early hour on Saturday morning, might have been seen by all persons entering the store or passing along the public highway in front of it, proclaiming that this was “Sarah H. Sally’s Store,” would seem to have afforded sufficient notoriety. But if that were wanting, can anyone, familiar with life in a small village like this, doubt for a moment that everything that transpired in that store on Friday morning was known throughout the community trading there in the shortest possible time? It was the business and news center of the community. The change was doubtless the most important village event of the season. Thoroughly canvassed, the news spread from store to mill and blacksmith shop and thence throughout the entire community before the sun went down on the day it happened. Who doubts it, knows little about the pervasive celerity with which village news was wont to Spread from house to house in the adjoining neighborhood even before the days of the telephone. Under the circumstances it is difficult to see how the change of possession could have been made more open, notorious or unequivocal than it was, and the court committed no error in sending the case to the jury.

II. The instructions upon which this issue was submitted to the jury are not complained of. But it is contended that the court committed error in instructions given for the interpleader, and in refusing instructions ashed for the plaintiff, on the issue of whether the chattel mortgage was given by James B. Sally for the purpose of hindering, delaying or defrauding his creditors, and whether the interpleader participated in his fraudulent act and purpose. While the instructions on this subject may be obnoxious to some verbal criticism, as a whole, they presented that issue to the jury fairly and much more favorably to the plaintiff than it was entitled to, for two all-sufficient reasons: first, because there was no such issue made by the pleadings, and the same ought not to have been submitted to the jury at all; and, second, because whatever James B. Sally’s intention may have been, no evidence was introduced tending to show any fraud on the part of Mrs. Sally, except that she was his wife.

III. It is also contended that the court committed error in the admission of certain evidence tending to prove the amount and source of .the indebtedness for which the note secured by the chattel mortgage was given —■ principally, admissions of James B. Sally; but as the bona-fides of the indebtedness was not attached by the pleadings and the consideration for the chattel mortgage was proven primaffacie by the instrument duly executed, this evidence was merely cumulative and any error in the admission thereof could have done the plaintiff no harm.

Finding no error in the record calling for a reversal, the judgment of the circuit court is affirmed.

All concur except Gcmtt, J., absent, and Graves, J., not sitting.


author: VALLIANT, J.

text:
    ST. LOUIS, MEMPHIS & SOUTHEASTERN RAILROAD COMPANY, Appellant, v. CONTINENTAL BRICK COMPANY.

      In Banc,
    October 19, 1906.
    1. CONDEMNATION: Just Compensation: Evidence. The words of the Constitution declaring that “private property shall not be taken or damaged for public use without just compensation” have the same meaning they have when used in every-day business transactions between man and man. All evidence is guarded by the rules of evidence, but those rules are designed to elicit the truth, to guard the minds of the jury, and to lead them, in a condemnation case, to a just and intelligent conclusion as to what is just compensation.
    2. -: -: Opinion. An assessment of damages in a condemnation case is the result of opinion, and the evidence on which it is based is opinion evidence. And the weight that is to be given the witness’s opinion depends, in part, upon the experience he has had in connection with the subject-matter and his opportunity for knowing .what he is talking about.
    3. -: -: -: Business Men: Qualified to Give Opinion. Men who have had experience in the same kind of business as that in which defendant is engaged, who say they know the value of property devoted to that business, and know the effect the construction and operation of a railroad through that property will have upon the value of the property, but do not know the value of such property for farming or other purposes, are qualified to give their opinion in the condemnation ease as to the damages defendant has sustained.
    4. -: -: Extension of Plant: Instruction. The witnesses stated that among the elements which entered into the depreciation of defendant’s brick-making plant was the location of the railroad so close to the kilns as to cut off the only means of extending the plant, and that but for the railroad the capacity of the plant could be doubled at comparatively small expense; and in an instruction given by the court for defendant specifying the elements of damages that might be taken into consideration, the jury were told to consider “the hindrances, if any, to the extension or enlargement of defendant’s plant.” Bold, that both the evidence and the instruction were proper, and were not erroneous as authorizing an estimate of damages based on future possibilities, but related to a destruction or depreciation of the then present value of the property.

      5. -: -: Cross-Examination of Commissioner: Award in Other Cases. A cross-examination of a commissioner by defendant, in which, for the purpose of showing his inconsistency in estimating defendant’s damages, he is asked if he had not as commissioner awarded a large named sum to another land-owner as his damages for a like appropriation, is not irnproper.
    6. -: Switch: Instruction. The railroad was constructed through a part of defendant’s property used for manufacturing brick, and plaintiff offered evidence, by way of offsetting the damages, on the feasibility of constructing a switch to defendant’s kilns as a useful appurtenance to defendant’s property. An instruction given for defendant told the jury that in considering the question they should consider that 'to obtain a switch the defendant would either have to obtain the consent of the railroad company or convince the Railroad Commissioners that the defendant’s business was such as to justify it, and if the Railroad Commissioners should allow it the defendant would have to bear the cost of building and maintaining it. Held, that the instruction correctly expressed the law.
    7. --: New Country. The opening up of new country by the construction of a railroad is not a special benefit to the defendant in a condemnation proceeding.
    8. -: Fires. A present depreciation in the value of a manufacturing property because of its added peculiar liability to fire due to the construction of the railroad, notwithstanding the railroad may be ultimately liable for damages incurred from fire if one should occur, is a proper element of damages to defendant in the condemnation proceeding.
    9. -: Offering Materials to Defendant. Evidence that plaintiff railroad had offered to give to defendant brick-manufacturing company the clay excavated out of the land in the construction of the road, and that defendant declined it, should be excluded. Damages in condemnation proceedings are to be paid in money.
    10. -: Instruction: Peculiar Location. “Peculiar location” used in an instruction in the sense of special or particular, does not mean that there was something peculiar in the location of the road, and is not an erroneous or offensive use of the word “peculiar.”
    11. -: Effort at Compromise. A witness should not be permitted to determine whether or not a negotiation was in the nature of a compromise, and a question which leaves with him that right should be excluded.

      Appeal from St. Louis County Circuit Court. — Eon. John W. McElhinney, Judge.
    Affirmed.

      L. F. Parker and John G. Egcm for appellant.
    (1) It is error to admit testimony of a witness as to the value of land taken, or the amount of damages to the land not taken, where it appears that the witness does not know the market value of the land in question. Railroad v. Stewart, 50 Kan. 33; Gorgas v. Railroad, 114 Pa. St. 1; Railroad v. Gilchrist, 4 Wash. 509; Railroad v. Easley, 26 Pac. 731; Railroad v. Pearson, 35 Cal. 260. (2) It is error to admit testimony of the value of clay in land considered separately from the value of the land itself. Railroad v. Balthaser, 119 Pa. St. 472; Searle v. Railroad, 33 Pa. St. 64. (3) It is not competent to admit testimony as to possible damages that might arise in the contigency that the brick plant should be enlarged by constructing additional kilns. Spring City Gas Light Co. v. Railroad, 167 Pa. St. 6; Railroad v. Knapp. Stout & Có., 160 Mo. 409; Dorian v. Railroad, 46 Pa. St. 520; Fleming v. Railroad, 34 Iowa 358; Tallman v. Railroad, 121 N. T. 119; Burt v. Wigglesworth, 117 Mass. 302. (4) It is not proper to permit, on cross-examination of plaintiff’s witness, to be brought out what amount was allowed on the condemnation of the right of way for this railroad, over another tract of land. City of Springfield v. Schmook, 68 Mo. 394. (5) Under the Missouri Absolute Liability Fire Statute, 1111, Revised Statutes 1899', it is not proper to permit the jury to take into consideration the danger from fires being set out by locomotives, as affecting the market value of the land. Railroad v. Donovan, 149 Mo. 103; Railrqad v. Shoemaker, 160 Mo. 433; Railroad v. North, 31 M. C. 350. (6) In States where there is no Absolute Liability Fire Statute as to fires set out from locomotives, the true rule is that only such, damages can be allowed to the market value of the land as are caused by danger from fires not negligently set out, and the danger from fires negligently set out should not be considered. Mundorf v. Railroad, 62 Hun 467; Railroad v. Freeman, 210 111. 270; Railroad v. Gilchrist, 4 Wash. 509 ; Railroad v. Kregelo, 32 Kan. 613; Setzler v. Railroad, 117 Pa. St. 56. (7) The opportunity to obtain transportation facilities for this brick yard by the construction of a spur track connecting with the line of the plaintiff, constituted a special benefit, which should have been considered by the jury. Railroad v. McElroy, 161 Mo. 586; Railroad v. St. Louis Union Stock Yds. Co., 120 Mo. 564; Railroad v. Fowler, 142 Mo. 683; Railroad v. McGrew, 104 Mo. 291. (8) It is wrong to single out particular facts and instruct the jury to consider them. Railroad v. St. Louis Stock Yds. Co., 120 Mo. 564.

      J. L. Minnis for respondent.
    (1) (a) Defendant’s witnesses were qualified to express their opinions as to the value of the ground taken and the depreciation of the remainder. Railroad v. Norcross, 137 Mo. 432; Railroad v. Calkins, 90 Mo. 543; Railroad v. DeLissia, 103 Mo. 130; Railroad v. St. Louis Union Stock Yards Co., 120 Mo. 550 ; Mc-Revnolds v. Railroad, 110 Mo. 492; Warren v. Mayer M'fg. Co., 161 Mo. 125; Union Elevator Co. v. Railroad, 135 Mo. 375 ; Railroad v. Dawley, 50 Mo. App. 488; 2 Lewis on Eminent Domain (2 Ed.), sec. 437, p. 953, and sec. 478, p. 1048; Railroad v. Warren, 137 U. S. 348. (b) Plaintiff waived its objections to the qualifications of defendant’s witnesses by showing by them on cross-examination that additional railroad facilities would be advantageous to defendant’s property. Nichols v. Nichols, 147 Mo. 402; Hume v. Hopkins, 140. Mo. 75. (e) Plaintiff cannot complain of the qualifications of defendant’s witnesses, because it pursued the same course and adopted the same theory in its own behalf. Lohman v. Stack, 94 Mo. 677; Schroder v. Michel, 98 Mo. 50; State v. Dettmer, 124 Mo. 432. (2) ' (a). Where two kinds of ground used in connection with each other but for different purposes and differing in value and in their relation to what remains, are taken for a right of way, it is proper for the witnesses to state the value of each kind separately and the depreciation resulting from taking each kind in' giving their estimates of the just compensation. In other words, it is proper for witnesses to give the elements which enter into their estimates of such compensation. And especially in a case where such method is the most intelligent and accurate. ‘ ‘ Arbitrary and lumping methods should not be resorted to in assessing damages in condemnation proceedings.” Railroad v. Fowler, 113 Mo. 470; Railroad v. Story, 96 Mo. 622; Railroad v. McGrew, 104 Mo. 289; 1 Sutherland on Damages, pp. 800-802; Railroad v. Donovan, 149 Mo. 102. (b) Plaintiff cannot complain because it pursued the same method in examining its witnesses. Railroad v. Donovan, 149' Mo. 102. (c) Plaintiff’s objections were technical and even if well taken the judgment should not be reversed. Railroad v. George, 145 Mo. 49; McReynolds v. Railroad, 110 Mo. 492. (d) No evidence was offered by defendant as to “the value of clay in land considered separately from the value of the land itself. ” (3) (a) No evidence was offered by defendant “as to possible damages that might arise in the contingency that the ■brick plant should be enlarged by constructing additional kilns. ” (b) The taking of the only part of the factory site available for extending and enlarging the factory was a proper element to be considered in determining the depreciation in value of the ground not taken. The rule is, “what is the decrease in value of the remaining portion in view of the uses to which it may be pnt, and not simply in reference to its productiveness to the owner in the condition in which he has seen fit to leave it.” Mississippi River Bridge Co. v. Ring, 58 Mo. 496; Railroad v. McGfrew, 104 Mo. 290; Webster v. Railroad, 116 Mo. 114; 2 Lewis on Eminent Domain (2 Ed.), sec. 478-9, pp. 1048 to 1056; Mills on Eminent Domain (2 Ed.), sec 173; Boom Co. v. Patterson, 98 TT. S. 403; Railroad v. Warren, 137 U. S. 348. (4) (a) Defendant did not bring out “on cross-examination of plaintiff’s witness what amount was allowed on the condemnation of the right of way for this railroad, over another tract of land.” (b) The cross-examination of plaintiff’s witness Wilkins with respect' to what he as a commissioner allowed an adjoining land-owner, was proper as tending to contradict his statement that defendant’s property, even if considered as a farm, was not damaged by the taking of the right of way. Where a witness has expressed an opinion as to value, the limit of cross-examination is within the discretion of trial judge. Thompson on Trials, sec. 413, pp. 312-3; 1 Rice on Evidence, p. 483; Muller v. St. Louis Hospital Assn., 5 Mo. App. 401, affirmed in 73 Mo. 242; Ardevance v. Arnot, 31 Mo. 471; State v. Robb, 90 Mo. 30; State v. Nelson, 101 Mo. 464. (5) Defendant’s instruction 7, which authorized the jury to consider possible danger from fire in so far as it might affect the value of the ground not taken, was proper. Railroad v. McGrew, 104 Mo. 294; Matthews v. Railroad, 121 Mo. 338. (6) Defendant’s instruction 2, which authorized the jury to consider the various elements in determining the decreases, if any, in the value of the remaining land, was proper. Railroad v. Shoemaker, 160 Mo. 430; Railroad v. George, 145 Mo. 45; Smith v. Kansas City, 128 Mo. 28; Railroad v. Shambough, 106 Mo. 569; Railroad v. Clark, 121 Mo. 187. (7) The offer of plaintiff to show that he tendered the clay excavated on the right of way to defendant and that defendant declined to accept it,' was properly refused. Defendant is entitled to he compensated in money. Railroad v. McGrew, 104 Mo. 299. (8) Plaintiff’s offer to show his conversation with defendant’s president while endeavoring to agree with him on the compensation, was properly refused. Railroad v. McGrew, supra; Railroad v. Eby, 152 Mo. 606.
   VALLIANT, J.

Plaintiff in this proceeding is condemning a right of way for its railroad through a tract of land owned by defendant, near the city of St. Louis, containing 153.13 acres. The defendant is a brick manufacturing concern and has, located on this tract of land, its brick-making plant, consisting of machinery, kilns, houses and appurtenances. A branch of the Missouri Pacific Railway passes near the defendant’s works and there is a switch track into its premises. The plant had been built about ten years before the trial, during three years of which time it had not been operated. It was purchased by defendant in 1900 at a foreclosure sale under a mortgage for $50,000 and accumulated interest, and had been operated by defendant ever since. According to defendant’s testimony the machinery, kilns, buildings, etc., constituting the plant, would cost to construct at the date of the trial $75,000 to $100,000.

On the filing of the petition commissioners were appointed by the court who made their report awarding to defendant the sum of $2,750; exceptions to the report were filed by defendant and a trial by jury was asked and granted. At the trial the jury assessed the defendant’s damages at $14,000, and a judgment for that sum less $2,750, the amount of the commissioners award which had been paid to the defendant, was rendered in defendant’s favor, and the plaintiff appealed.

The record contains in minute detail a description of defendant’s property, and the course of the proposed railroad through it, hut it is unnecessary to repeat that description here. Appellant’s assignment of errors relate chiefly to evidence of defendant admitted over plaintiff’s objection, and evidence offered by plaintiff and excluded on objection of defendant. The giving and refusing of instructions is also assigned.

I. D. A. Marks, president of the defendant brick company, a witness for defendant, after giving a description of the property and the course of the railroad through it, stated that it was property particularly valuable for brick-making purposes; being asked to state the elements going to make it valuable for that purpose he said, the quality and quantity of clay, the cheapness of fuel, the possibility of marketing brick at a low rate of freight, the abundance of water, the lay of the land so that the clay can be moved to the plant at the least expense. “Q. Do you know the market value of clay lands located in that vicinity? A. There are no other brick plants in that vicinity and there has been no transfer of property for that purpose in a good many years around there.” He was then asked to state the market value of the fifty feet of clay land of defendant taken by the railroad, to which plaintiff objected on the ground that he had not shown himself competent to answer. Thereupon in answer to questions by the court he said that he knew of no sales in that neighborhood, or nearer than four or five miles, and of them he only knew from hearsay, but that he knew the value of clay land generally over the United States, he had talked with his competitors who had estimated the value of such lands, he knew that clay lands adjacent to the manufacturing end of the plant were more valuable than those distant. The court ruled that witness might answer the question and he answered placing the value of that part of the condemned right of way embraced in the strip fifty feet wide across the flat near the kilns, without reference to the other property, at $2,500, and to further questions he said that the other clay land taken by the railroad company was worth $1,375 an acre. The witness was then asked to state how much in his opinion the taking of the strip of the railroad company would decrease the market value of the property as a whole, to which the plaintiff objected as incompetent, irrelevant and immaterial and not the proper measure of damages, and because the witness has not shown himself qualified to testify; the court overruled the objection and the witness answered that he estimated the depreciation in value of the whole plant at $40,000. He was asked to state what elements he took into account in making that estimate, to which he answered that the largest element was that the location of the road made it impossible to extend operation of the plant. In further explanation of this point he said that the only practicable way of extending the plant with profit was to build more kilns to the east of those now in operation, which could not be done with the railroad where it is. "Witness also stated that the danger to the plant from fire from the trains passing on the trestle thirty-eight feet high over the works depreciated the market value of the plant. On the whole he estimated defendant’s damage at $50',000'.

Mr. Elliott, vice-president, secretary and treasurer of the Hydraulic Press Brick Company, a witness for defendant, stated that he had been in the business thirty years, his company owned fifty-eight plants, none in St. Louis county; they had bought fifty acres of clay land within a mile of defendant’s plant but had not worked it, they paid $105 to $125 an acre for it, it would be valued as farm land only until a brick yard is established on it. He knew defendant’s property and how it was worked; in his opinion the running of the railroad through it depreciated its value $40,000. In explanation of his estimate he said that but for the railroad, located so close to the kilns, the defendant could double the capacity of its plant, without increasing the machinery it now has, by building six more kilns to the east of those now there. This testimony was objected to on the same grounds as to that of Mr. Marks. On cross-examination the witness was asked: “What was the value of that 153 and a fraction acres on the 12th day of last November — brick plant and all? A. I am sure I could not answer that question. Q. Do you know what its value was at that time? A. No, sir. Q. What was its value when the railroad was located there at that time? A. I do not know.”

Mr. Ittner who had been in the brick manufacturing business forty years and knew the defendant’s property, had examined it in reference to the effect of the running of this railroad through it as located, gave it as his opinion that the value of the property was depreciated to the extent of $20,000 to $40,000.

On the part of the plaintiff the testimony tended to show that the market value of land of that kind in •that neighborhood ranged from $100 to $150 an acre. The commissioners who were farmers living in the county and familiar with the value of lands in the neighborhood of defendant’s property testified as witnesses for the railroad company, and estimated the total value of defendant’s whole property, the 153 acres, brick plant and all, at from $13,000 to $28,000, and estimated the damages a.t the amount of their award, $2,750. In the opinion of plaintiff’s witnesses the defendant’s property would derive an increased value by the location of the railroad through it, in the increased facilities for reaching the markets with its products.

There was quite a conflict in the opinions of the witnesses for the plaintiff and those for the defendant on the question of the feasibility of putting a switch track from the plaintiff’s railroad into defendant’s premises, owing to the topography of the country and the peculiar structure and course of the railroad.

The chief insistence of appellant is that the court erred in admitting the testimony of Marks, Elliott and Ittner giving their opinions as to values and the amount of depreciation of value to the whole plant.

The grounds of the objections were that the testimony was incompetent, irrelevant and immaterial and not the proper measure of damages, and that the witnesses did not show themselves qualified to testify. Those grounds, except the last one, were too general to give the trial court an idea of the real point they were intended to cover; the only point of the objection sufficiently specific was the last, that is, that the witnesses were not qualified to give an opinion.

We have, in the witnesses for the plaintiff and those for defendant, two classes of experts, each class viewing the subject from a different standpoint. The one class is proficient in knowledge of the value of such lands in the neighborhood as farm lands, but it has no knowledge of the value of such lands when their character is changed by the erection of costly machinery and thereby being made the field of operation for a brick-manufacturing purpose; the other class is proficient in knowledge of the value of such property when converted into a brickmaking plant, but has no knowledge of its value as farming land.

Our State Constitution ordains: “That private property shall not be taken or damaged for public use without just compensation,” [Sec. 21, art. 2.] What is “just compensation1?” Those words as used in the Constitution mean exactly the. same that they mean when used in every-day business transactions between man and man; they are not circumscribed by any technical definition that places them beyond the comprehension of men of ordinary intelligence. The evidence that goes to the jury impanelled to make the assessment is guarded by the law of evidence and the duty is on the court to see that only legal evidence is given, but the rules of evidence are aimed to elicit the truth, to guard the minds of the jury from false light and lead them to a conclusion which their common intelligence and sense of justice unite in saying is “just compensation.”

An assessment of damages in a condemnation case is the result of opinion, and the evidence on which it is founded is opinion evidence, even what is deemed as well-known market value of property has its foundation in opinion.

In weighing opinion evidence one of the criterions by which it is to be valued is the experience that the witness has had in the subject and his opportunity of knowing what he is talking about. The rules of evidence in regard to expert testimony are drawn from the same reason that actuate intelligent laymen in their business affairs. In the case at bar the defendant after having invested a large amount of money and established its manufacturing business was compelled to yield up a portion of its property to the plaintiff who came armed with the power of eminent domain and defendant now asks the court to award it that just compensation which the Constitution has promised. How shall we ascertain that sum? On the one hand, we have the opinions of men who have spent the best part of their lives in the same kind of business as that in which the defendant is engaged who say they know the value of such property when equipped for that business and they know the effect that the construction and operation of the railroad through it will have, but do not know the market value of such lands in that vicinity for farming or other purposes; and on the other hand, we have the opinions of men who knew the general market value of such lands hut knew nothing of its value as the site of a brick plant. To which set of witnesses shall we listen? Suppose a company of intelligent business men should be organized to go into the brick-manufacturing business and aimed to buy such a plant, but before investing their capital they wanted information as to the value of the property to be purchased, to which -set of these witnesses would they turn for advice? If common business sense would lead them to seek the advice of men experienced in that business so the reason and common sense upon which' our rules of evidence are founded require us to seek information from the same source. These men may not know the market value of land in that vicinity, not even of clay grounds unconnected with a brick-making plant, but they do know the value of such a property as that of defendant as a whole located within four or five miles of a great and growing city, whether it be St. Louis, Chicago or other city, and that knowledge is exactly what is needed in order to arrive at an intelligent estimate of the “just compensation” called for in a case like this.

The court did not err in ruling that those witnesses were qualified to give expert evidence, and if the jury credited their testimony they could not have awarded less damages than they did.

II. The defendant’s expert witnesses were asked to state the elements which entered into their calculation of the depreciation of the value of the property, and among those elements they stated that the location of the railroad close to the Mins on the east cut off the only means of extension of the defendant’s plant, and that but for the railroad the capacity of the plant could be doubled at comparatively small expense. In an instruction given by the court at the request of the defendant specifying the elements of damages that might be taken into consideration the jury were authorized in making their award to take into account among other things “the hindrance, if any, to the extension or enlargement of defendant’s plant.” Appellant complains of this evidence and instruction as authorizing an estimate of damages based on “possibilities of the future.” We do not so understand it. The witnesses were estimating the value of the property as it was in November, 1902, when the.railroad company invaded it. In estimating its then value they took into account its capacity as a brick-making concern, not only as then developed, but also as it was then capable of being further developed, and if it was true, as they said it was, that without increasing the machinery and equipment as then existed, except to build other kilns in a line to the east of those already there, the capacity of the plant could be doubled, that was a then present existing fact which gave a then present value to the property, and a destruction of it was a depreciation of its then value. [Boom Co. v. Patterson, 98 U. S. 403; Mississippi River Bridge Co. v. Ring, 58 Mo. 491, 1. c. 496.]

There was no error in the court’s ruling on that point.

III. A witness for plaintiff, Wilkins, a farmer living in the neighborhood, testified that in his opinion the construction of the railroad through defendant’s property did not damage it to any extent. It is complained by appellant that on cross-examination the witness was allowed to say what the commissioners had allowed to Mrs. Chrismer, whose farm- was near defendant’s property, for her damages for the location of this railroad through it. That complaint seems to be founded on a misunderstanding' of the evidence-brought out on the cross-examination of this witness. He had been one of the commissioners who had assessed Mrs. Chrismer’s damages, and had agreed with the other commissioners in awarding her $1,650 for about two acres of her laud taken in the right of way, and the cross-examination only tended to show the inconsistency of his low estimate of .defendant’s damages with his own estimate of the widow’s damages. We find no error in that.

IY. There was a good deal of testimony pro and con on the question of the feasibility of constructing a switch from plaintiff’s railroad into defendant’s premises so as to make it a useful appurtenance to defendant’s property. That subject was presented very favorably for the plaintiff in a series of instructions given at the plaintiff’s request. The evidence, even for the plaintiff, left it not clear, whilst that for the defendant was to the effect that the peculiar construction of the railroad and the topography of the country made it practically impossible to construct a serviceable switch from plaintiff’s railroad into defendant’s premises. But the court submitted the question to the jury and plaintiff has no right to complain if the jury came to the conclusion that the defendant could gain no benefit from that source. In instruction 5 given for the defendant the court instructed the jury that in considering the switch question they should consider that to obtain a switch the defendant would either have to obtain the consent of the railroad company or convince the Railroad Commissioners that the defendant’s business was such as to justify it, and if the Railroad Commissioners should allow it the defendant would have to bear the cost of building and maintaining it. That instruction is complained of, but we think it expresses the law correctly. The plaintiff complains also that the court nullified the instructions given at its request on this subject by the following instruction given for the defendant:

“The court instructs the jury that in arriving at their verdict they should not consider the benefits, if any, that mav accrue to defendant by reason of the construction of said road which are common to other land-owners in the vicinity- of said road, parts of whose lands are not taken, nor should the jury consider the opening.up of new country hy the plaintiff as a special benefit to the defendant.”

The meaning of that instruction was that the opening up of a new country was not a benefit special to the defendant that Was not shared in by the public in general. We find no error in that.

Y. One of defendant’s witnesses testified that among the elements considered by him in estimating the damage of the defendant was the danger from fire caused by the trains passing on the trestle thirty-eight feet high over the works of defendant; when on cross-examination his attention was called to the fact that the railroad company was liable under the statute for damage by fire set out by one of its locomotives, he said that was so, but the fact that a manufacturing plant was thus exposed to destruction by fire was an element of depreciation in its value even if the owner knew that he was entitled to recover damages from a railroad company at the end of a lawsuit. An instruction given at the request of defendant informed' the jury that the railroad company would be liable under the statute to pay for property destroyed by fire set out by one of its engines, and that therefore the jury should not include in their estimate of defendant’s damages the possible damages that might be caused in that way, but that if the jury should find that defendant’s property was specially exposed to fire from that cause, different from other property in the same neighborhood, and that thereby defendant’s property was depreciated in value they should allow for such depreciation.

The opinion of the witnesses that there is a present depreciation of value in manufacturing property because of its peculiar liability to destruction by fire notwithstanding a railroad company may be ultimately liable for the damages incurred if the fire should occur, is not unreasonable. A prudent business man would generally prefer to purchase property in which to conduct his business which is not peculiarly liable to destruction by fire even though the menacing party may be solvent and liable to respond in damages. There was no error in that instruction.

VI. Plaintiff offered evidence to show that it had offered to give the defendant the clay excavated out of the land in the construction of the road and that defendant had declined it; the testimony on objection of defendant was excluded. There was no error in that ruling; in the first place there might be a question as to whether clay quarried as that was in a general excavation for the purpose of railroad construction was of any practical value to the defendant, but even if it was, the law is not satisfied with the payment of damages in “'chips and whetstones,” but requires it to be paid in money.

VII. In one of the instructions given at the request of defendant, after enumerating various items to be considered in assessing the damages, it was said: “and generally all matters, owing to the peculiar location of the railroad over defendant’s land as may in the judgment of the jury a,ffect the convenient and future enjoyment of the same considered as a whole,” etc. Appellant complains of the word “peculiar” as there used, as an intimation to the jury that in the opinion of the court there was something peculiar in the location of the road. Whilst the word “peculiar” sometimes has an offensive meaning, yet its natural and usual meaning is particular or special, and that is the sense in which it was used in this instruction.

VIII. • A witness for the plaintiff who had been the plaintiff’s right of way agent, and had, before the commencement of this suit, with a view of obtaining a right of way by agreement, talked with Mr. Marks, the president of the defendant, was asked if in that conversation the subject of a switch was mentioned and what was said, but the defendant objected on the ground that it called for what was said in an effort at compromise and the court sustained the objection.

In. the question propounded to the witness the counsel for the plaintiff stated that he did not ask for what may have been said in an effort at compromise, but only for what was said in the negotiation for the right of way. That form of the question left the right of way agent to judge whether or not the negotiation was in the nature of an effort to compromise, and if in his legal opinion it was not then he could tell all that was said. The court ruled correctly on that point.

We find no error in the record. The judgment is affirmed.

Brace, C. J., Gantt and Lamm, JJ., concur; Burgess, Fox and Graves, JJ., dissent.