author:
WOODSON, J.
      PER CURIAM.

text:
    C. E. CLARK, Appellant, v. UNION IRON & FOUNDRY COMPANY.
    In Banc,
    May 9, 1911.
    1. Abstract: No Evidence: Instructions Alone for Review. Where the sole object of the appeal is to have the Supreme Court review the action of the trial court in giving and refusing instructions, it is not necessary to bring up the evidence in the case. In such case it is sufficient for the bill of exceptions to show that the evidence offered by plaintiff tended to prove all the allegations of the petition, that the evidence offered by defendant tended to contradict the evidence offered by plaintiff, and also tended to prove the allegations of the answer, and that plaintiff offered evidence tending to disprove the allegations of new matter contained in the answer.
    2. NEGLIGENCE: Master and Servant: Reasonably Safe Place. The unsafe place cannot be restricted to the very place where the servant is required to work. The danger may arise from a separate and independent place, yet so near thereto as to make it reasonably certain that persons while working there are liable to come in contact with such near-by danger and be injured thereby. The danger of the place may be the result of the acts of a third party and arise out of a condition over which the master had no immediate control, and yet the master be liable for his servant’s injury.
    3. -: -: -: Electric Wires: Master as Independent Contractor. A railway 'company was maintaining a pole, on the cross-arm of which electric wires, strongly charged with electricity, and badly insulated, though the insulation did not appear by casual observation to be defective, were strung. Defendant, an independent contractor, was employed to erect a coal lift or chute, and its foreman ordered plaintiff to mount said pole for the purpose of raising and adjusting a guy rope attached to a gin pole so as to have the guy rope above the feed wires; and while the plaintiff was on said pole, engaged in said work, the steel block of the rope came in contact with the uninsulated wire, and the electricity passed into his body, causing serious and permanent injuries. Held, that an instruction telling the jury that if the foreman of the defendant had no actual knowledge of the condition of the electric feed wire, with respect to its insulation and with respect to its dangerous condition, and had not been informed of the same, and had no better opportunity than the plaintiff to become acquainted with its condition, their verdict must be for the defendant, was error. It is not sufficient that the immediate place where the servant is required to work is within itself reasonably safe; it must be reasonably safe from all internal and external dangers which are liable to injure the servant. It was defendant’s duty to inspect the premises and ascertain whether or not there were any dangerous agencies connected with or about the place where plaintiff was required to work that would' render it unsafe. The duty to inspect for secret and hidden dangers rested upon the master.
    4. -; -: -: Hidden Dangers. .It is the master’s duty to inspect and ascertain if hidden and secret dangers are connected with the place in which the servant is required to work. He is not absolved from liability for injury to the servant by the mere facts that the dangers were hidden and he knew nothing of them and they were not of his making.
    5. -: - — : -: -: Independent Contractor. Tt is the duty of the owner of the premises to notify the contractor employed to repair them, of hidden dangers; but the contractor is not absolved from his duty to his servant to inspect and notify him of such hidden dangers by the owner’s failure to notify the contractor.
    Appeal from St. Louis City Circuit Court. — No». Daniel D. Fisher, Judge.
    Reversed and remanded.

      William MeNamee and A. R. Taylor for appellant.
    (1) The rudimental relation of master- and servant is that it is a duty incumbent upon the master that he use ordinary care to see that the place where he orders the servant to perform work or service is reasonably safe for the servant to perform that service. Dayharsh v. Railroad, 103 Mo. 576; Herdler v. Stove Co., 136 Mo. 16; Doyle v. Trust Co., 140 Mo. 10; Burk-hard v. Rope Co., 217 Mo. 481. (2) This duty, inherent in the master, was charged on the master’s vice-principal, the foreman, in this case, and his orders to appellant to ascend the pole and do the work were assurance that the place was reasonably safe for that purpose. Sullivan v. Railroad, 107 Mo.- 78; Bane v. Irwin, 172 Mo. 317. (3) Such being the-law of the relation between appellant and respondent, it was the duty of the respondent to exercise ordinary care in inspection and inquiry to ascertain whether the wires on the pole were in a reasonably safe- condition for appellant to come in contact with or work near whilst doing the work on the pole which he was ordered to do by respondent’s vice-principal. (4) In view of the above law of the relation between appellant, the servant, and respondent, the master, instruction 5, given at the request of the respondent, was prejudicial error. The vice of this instruction is that it absolves the master from the duty of inquiry and inspection to ascertain the condition of the wires, and places master and servant on the same plane,- with respect to ascertaining the condition of the place where the servant is required, to work. The servant, whatever he might have ascertained by inquiry or inspection as to the condition of the wires, and failed to do, had a right, when commanded by his master, to rely on his order to ascend the pole and do the work as an assurance that it was reasonably safe to do so. Sullivan v. Railroad, 107 Mo. 78; Bane v. Irwin, 172 Mo. 316. (5) Instruction 7, given at the request of respondent,-was prejudicial error. The vice of this instruction is that it predicates that it was dangerous for respondent to send its men and this appellant up among the feed wires mentioned in the evidence,, and to order them to pass its ropes and tackle over said wires, yet the instruction declares that if said danger was a hidden or secret one, and no warning had beeu given to the defendant or its foreman of such hidden or secret danger, and that said defendant had no knowledge, then the verdict should be for that defendant. This instruction remodels the law of the duty of the master to the servant, in that it absolves the master from his duty of inspection or inquiry by the simple fact that a danger is secret or hidden. (6) Instruction 8', given at the instance of respondent, was reversible error.

      Ellerbe S Brokaiv and Percy Werner for respondent.
    (1) Where the abstract does not contain the evidence essential to a consideration of the case, every presumption is in favor of the judgment as far as the face of the record permits. Miller v. Leeper, 120 Mo. 478; Flynn v. Neosho, 114 Mo. 572; Black v. Railroad, 172 Mo. 188; Hughes v. Gaslight Co., 168 Mass. 395. (2) An instruction may be erroneous when considered only as to the issues, but when, considered in the light of all the evidence its error may prove to be harmless, so as not to justify disturbing the judgment. (3) The law relative to the obligation of the master to furnish a safe place for his servant to work in refers only to places over, which the master has or exercises a control. Dickson v. Tel. Co., 71 Fed. 143; Channon v. Sanford Co., 70 Conn. 573; Whallon v. Sprague Elevator Co., 1 N. Y. App. Div. 264, 37 N. Y. Supp. 175; Huff v. Green, 168 Mo. 308; Dunlap v. Railroad, 81 Ga. 136; Hughes v. Gaslight Co., 168 Mass. 395. The criticised instructions are in accordance with the law as laid down in these cases.
   WOODSON, J.

— The plaintiff sued the defendants, Union Iron & Foundry Company and the St. Louis & Suburban Railway Company, for the sum of $30‘,000 damages sustained by him for personal injuries received through the alleged joint negligence of the said defendants. A trial was had in the circuit court of the city of St. Louis, which resulted -in a judgment for the plaintiff for the sum of $20,000 against the defendant Railway Company, and a judgment in favor of the defendant Iron '& Foundry Company, and against the plaintiff. The Railway Company appealed .to this court from the former judgment, and the plaintiff appealed from the latter.

Because of the condition of the record in this case, it is necessary, in order to properly understand the questions presented for determination, to set out the pleadings on which the case was tried. The petition is as follows:

‘ ‘ The plaintiff by leave of court files his amended petition. The plaintiff states that defendant, Union Iron & Foundry Company, is and at the times herein mentioned, was a corporation by virtue of the laws of Missouri. That at said times defendant, St. Louis & Suburban Railway Company, was and is now a corporation by virtue of the law of Missouri, and occupied the premises and used and operated the poles, wires and electric current herein mentioned, for the purpose of conveying electricity - to various wires as motive power. That electricity is a highly dangerous power when it has contact with a human body and very destructive to human life and limb, as defendants and each of them by their agents herein mentioned, well knew at the time herein mentioned. That on the 17th day of January, 1905, defendant, St. Louis & Suburban Railway Company, was maintaining on its premises at DeHodiamont and Maple avenues, on .or near the dividing line between the city of St. Louis and county of St. Louis, about 180 feet north of Maple avenue, and between said defendant’s power house and the tracks of the Wabash Railroad Company, a pole on which was strung five wires for the conveyance of large quantities of electric fluid as a motive power. That said feed wires were heavily charged with electricity; that said pole on which said feed wires were strung was so situated that persons were liable to be near them and liable to be in contact with them and to have objects with which they would work in contact with said feed wires.
‘ ‘ That on said day the plaintiff was in the service of the defendant Union Iron & Foundry Company, as a laborer; that on said day the Union Iron & Foundry Company was employed by the defendant S't. Louis & Suburban Railway Company, in the erection of a coal lift or chute on said premises, and was on said premises of said St. Louis & Suburban Railway Company engaged in said work at the invitation of said St. Louis & Suburban. Railway Company; that whilst the plaintiff was in the due discharge of his said employment he was ordered by the foreman of his employer, the Union Iron & Foundry Company, to go up said pole on which said feed wires were strung, for the purpose of raising and adjusting a guy rope attached to a gin pole so as to have said guy rope above said feed wires; that said foreman had authority from his said employer to command and control the plaintiff as to the work he was to do and the manner of doing the same, and to supply the means and appliances for doing said work; that whilst the plaintiff was on said pole engaged in said work the guy rope block came in contact with a feed wire and became charged with electricity from said feed wire, whereby said electricity so coming from said feed wire through said appliance shocked and burnt and permanently injured the plaintiff upon his hands, legs and body, both of his arms and hands, and the flesh, tendons, leaders and muscles thereof were so burnt and injured as to permanently destroy the use thereof. His left leg and the muscles,, flesh and tendons thereof were so burnt and injured as to permanantly destroy the use thereof. His right leg and the muscles, flesh and tendons thereof were so burnt and injured as to permanently destroy the use thereof; and plaintiff was otherwise burnt and injured upon his body, and his nervous system was shocked and wrecked, and he was injured internally. And plaintiff avers that said feed wires were defectively insulated; that the insulation thereof was old, burnt and rotten, and was wholly ineffectual to prevent the escape of electricity from said feed wires, and in such condition as to be a dangerous and de strnctive trap to persons working at and about them. That owing to said defective condition of said wires and their' insulation, said electricity escaped therefrom and injured the plaintiff as aforesaid. That defendant, St. Louis & Suburban Railway Company, was negligent in maintaining said feed wires in such dangerous condition where plaintiff was invited to be at and work about his said work by said defendant, which said negligence of said defendant directly contributed to cause plaintiff’s said injuries.
“And plaintiff further avers that defendant Union Iron & Foundry Company by its foreman so in control of the plaintiff was negligent in ordering the plaintiff to do said work at and about said dangerous and defective wires, when by the exercise of ordinary care he would have known of said danger and of said defective and dangerous condition of said wires, and could have averted said injury to the plaintiff by the exercise of ordinary care, yet neglected to do so, and thereby directly contributed to cause said injuries to the plaintiff.
“That by said injuries the plaintiff has suffered and will suffer great pain of body and mind; has been maimed and crippled for life; and permanently disabled from'labor; has lost and will lose the earnings of his labor; has incurred and will incur large expenses for medicines, medical and surgical attention and nursing; his health and strength is permanently impaired, to his damage in the sum of thirty thousand dollars, for which sum he prays judgment.”

To this petition defendant Union Iron & Foundry Company filed its answer as follows:

“Comes now the defendant Union Iron & Foundry Company by its attorneys, and for separate answer to plaintiff’s petition, admits that it is a corpration, organized as alleged in said petition, and admits that plaintiff was in its employ on the 17th day of January, 1905, but denies each and every other allegation in said petition contained.
“And for further answer defendant says that plaintiff received the injuries of which he complains by reason of his own want of ordinary care in allowing the block and tackle which he was hoisting at the time in question to come in contact with the electric feed wire of the defendant St. Louis & Suburban Railway Company, at the time and place in question.
“And for further answer defendant says that plaintiff knew, or by the exercise of ordinary care might have known, of the condition of said wire at the time and place in question, and was in a better position and had better opportunity to know of such condition than had this defendant’s said foreman, and that as far as this defendant is concerned plaintiff assumed the risk of injury therefrom in undertaking the work which he was then and there engaged in doing. "Wherefore, having fully answered this defendant prays to be dismissed hence.”

The defendant Railway Company filed its amended answer to said petition, which is as follows:

“Comes now the St. Louis & Suburban Railway Company, one of the defendants herein, and for his answer to plaintiff’s amended petition and the allegations therein contained, denies each and every allegation thereof.
‘1 And for further answer and defense to plaintiff’s amended petition and the allegations therein contained, this defendant ■ avers and charges that whatever injury, if any, plaintiff incurred .at the time and place mentioned in Ins petition, was the result of his own carelessness and negligence and not the fault of this defendant, the St.. Louis & Suburban Railway Company.
“And for further answer and defense to plaintiff’s petition and the allegations therein contained, this defendant avers and charges that whatever risk there was, if any, in doing the acts set forth by plaintiff in his amended petition as therein done by him and ordered to be done by the Union Iron & Foundry Company, the co-defendant herein, was then and there unknowingly assumed by the plaintiff, and said acts were unnecessary to be done in the discharge of plaintiff’s duties, if any.
And for further answer and defense this defendant avers and charges that the condition of the wire, if as described in plaintiff’s amended petition, was open, palpable and visible to, and well-known by plaintiff at the time and place where plaintiff did the alleged acts set up by him in his amended petition, and that said acts as alleged to have been done by plaintiff and as alleged to have been commanded to be done by the Union Iron & Foundry Company, co-defendant herein, were unnecessary acts, and were done without precaution on the part of plaintiff, if at all, and whatever injury, if any, was sustained by plaintiff growing out of the matters in his petition described, was the result of plaintiff’s assumption of risk, if any, therein assumed, and not the result in any measure of the negligence of the St. Louis & Suburban Railway Company, one of the defendants herein.
‘ ‘ Wherefore, having fully answered this defendant asks to be dismissed with its costs in'this behalf expended.”

The reply to the separate answer of Union Iron & Foundry Company was a general denial. And the reply to the separate answer of defendant St. Louis & Suburban Railway Company was a general denial.

The following statement of the case made by counsel for appellant is a brief, clear and correct statement thereof, as disclosed by this record:

“The action was to recover for personal injuries sustained by the appellant while on the premises of the St. Louis & Suburban Eailway Company, as an employee of the respondent Union Iron & Foundry Company, which was engaged in the erection of a coal chute or structure for the St. Louis & Suburban Eailway Company.
‘ ‘ On the premises of the owner St. Louis & Suburban Eailway, located in proximity to the structure so being erected, the St. Louis & Suburban Eailway Company at the time was maintaining poles and wires, the latter heavily charged with electricity used as the motive power for drawing street railway cars operated by said railway company. These wires so charged with electricity were located on cross-arms on poles about twenty feet above the surface of the ground. And in the work of the erection of this coal structure in question it was necessary to pass guy ropes over and under the wires so charged with electricity, and in the work of so passing guy ropes under and over the wires so charged with electricity it was necessary for the employees, including this appellant, as the servant of the Union Iron & Foundry Company, to be on said cross-arms on said poles, and haul said guy ropes up in close proximity to said wires so charged. Said wires so charged with electricity were insufficiently insulated to prevent the electricity passing thereon • from escaping therefrom upon contact with an object that would conduct the current of electricity.
“In this condition of the premises the plaintiff, in the employ of the respondent Union Iron & Foun- . dry Company, at and about the work of erecting said coal structure, was on said premises on the 17th day of January, 1905, when he was ordered by the foreman of Ms employer, Samuel Armstrong, to ascend a pole on which there were a number of wires charged with electricity, for the purpose of raising a guy rope over said wires to secure a gin pole used in the construction of said coal structure. In obedience to said order of said foreman Armstrong, this appellant climbed up said pole and stood upon the cross-arms and wires whilst engaged in the work of raising the guy rope for the purpose of passing it over the wires.
‘ ‘ The wires were covered with a material that appeared to be insulation, and with such appearance appellant assumed that they were properly insulated and that there was no danger from contact, either of his person or the guy rope therewith.
‘ ‘ The method of raising the guy rope was by lowering a line to the ground, and when the line was attached to the guy rope at the ground appellant was to raise the guy rope up to be passed over the wires.
“The guy rope had metal blocks, and as the appellant stood with his feet on the wires raising- the guy rope, a part of the guy rope, a block, came in contact with a wire and. the body of appellant thus formed a circuit through which the electricity escaping from one wire passed to the other wire, causing the plaintiff to sustain a terrific electric shock, whereby he was caused to fall upon the wires and to be shocked and burned so that both of his hands and wrists were virtually destroyed and his legs were so burned as to lame him for life. The injuries were such as to make him a helpless cripple for life, but, as in the case before the court on this appeal, the extent of the injuries is not in question, the above is deemed a sufficient recital thereof.
‘ ‘ The scene of this tragedy was at a point between the power house of the St. Louis & Suburban Railway Company and the Wabash Railroad Company, near DeHodiamont and Maple avenues, in the city of St. Louis, and near the division line between the city of St. Louis and the county of St. Louis.
“The hill of exceptions in this case concedes that there was evidence offered by the plaintiff tending to prove all the allegations of the petition as against this respondent.
“That there was evidence offered by respondent tending to contradict all the evidence offered by the plaintiff against the respondent, and also evidence tending to prove the affirmative allegations of its answer as to appellant, and that there was evidence offered by appellant-plaintiff tending to disprove all the-affirmative allegations of respondent’s answer, so that this canse stands before this court on this appeal upon the issues as to the correctness of the instructions given by the trial court, as between this appellant and respondent. ’ ’

I. The only questions presented by this record for determination are propositions of law, involving the action of the trial court in giving certain instructions at the request and on behalf of the respondent

Counsel for respondent makes some criticism of the record for not preserving and bringing up the evidence of the case. In answer to that criticism, it is sufficient to state that according to rule six of this court it is not necessary to preserve the evidence where the object of the appeal is to have this court review simply “the action of the trial Court in giving and refusing instructions.” In such cases it is sufficient for the bill of exceptions to show that the evidence offered by the plaintiff tended to prove all -the allegations of the petition; and that the evidence offered by the defendant tended to contradict all the evidence offered by the plaintiff, and also tended to prove the allegations of the answer; and that plaintiff offered evidence tending to disprove all of the allegations of new matter contained in the answer, etc. The bill of exceptions as disclosed by this record complies almost literally with this rule. We, therefore, pay no fuurther attention to the criticism made.

II. The first error assigned by counsel for appellant assails the soundness of the legal proposition stated in instruction numbered five given by the court on behalf of the respondent. That instruction reads as follows:

“The court instructs the jury that if you find from the evidence that the foreman, Armstrong, of 'the defendant, the Union Iron & Foundry Company, had no actual knowledge of the condition of the electric feed wire, with respect to its insulation and with respect to its dangerous condition, and had not been informed of the same, if you find from the evidence such was the condition, and had no better opportunities than had plaintiff himself to acquaint himself with its condition, then your verdict should be for the defendant, the Union Iron & Foundry Company.”

Counsel for appellant contend that this instruction is erroneous, in that it ‘absolves the master from the duty of inquiry and inspection to ascertain the condition of the wires in question, and places the master and servant on the same plane with respect to ascertaining the condition of the place where the servant is required to work. ’ ’

There is no question but what this instruction imposes the same degree of duty upon the master, the respondent in this case, and the servant, the appellant, in ascertaining the condition of the wires which caused the latter’s injury.' Is that the law?

The petition alleges that while acting within the scope of his employment and under the orders of respondent’s foreman, he ascended the pole in question for the purpose of passing a guy rope over the wires strung thereon, and while so doing he received the shock of which he complains. ‘While the petition does not state that the pole and wires in question constituted a part and parcel of the premises on which he was required to work, yet it does state that they were owned by and maintained upon the premises of the Railway Company, who was having the chnte erected so near thereto that persons working on the said chute, as well as the instrumentalities with which they were working, were liable to come in contact with those wires and be injured thereby. There was evidence introduced tending to prove those allegations of' the petition.

Under that state of the record, while said pole and wires constituted no part of the physical place where appellant' was required to work, yet it was so close thereto as to constitute a menace thereto, and rendered the place unsafe and dangerous to all persons who might work there. Under those conditions we held in the case of this same plaintiff against said Railway Company, on the latter’s appeal (opinion just handed down, ante, page 396), that it was its duty to have notified both this appellant and respondent of the dangerous condition of those wires, and that it owed to both of them the highest degree of care to keep said wires in a safe condition.

If we were right in that holding, then necessarily when the Railway Company let the contract to build the coal chute to an independent contractor, he and his sub-contractor stepped into the shoes of the Railway Company and were required to construct the chute menaced with the same attending dangers that would have surrounded the Railway Company had it erected the chute itself instead of the contractor and sub-contractor.

With these preliminary observations, we return to the consideration of the instruction in question. Restating the question, did the master and servant in this case stand upon the same plane with respect to ascertaining the condition of the place where the servant was required to work?

It is elementary law, that it is the duty of the master to exercise ordinary care to furnish the servant a reasonably safe place in which to work. [Dayharsh v. Railroad, 103 Mo. l. c. 576; Herdler v. Buck’s Stove Co., 136 Mo. l. c. 16; Doyle v. Trust Co., 140 Mo. l. c. 10; Burkard v. Rope Co., 217 Mo. l. c. 481.]

It is equally academic that this duty of the master was imposed upon its vice-principal, Armstrong, the foreman in charge of the work, and whose orders appellant was obeying in ascending the pole and adjusting the guy ropes. And the foreman’s order to the appellant to ascend the pole and do the work designated was an assurance that the place was reasonably safe for that purpose. [Sullivan v. Railroad, 107 Mo. l. c. 78.] There, it is said: “And having given the plaintiff the original assurance that the staging was safe, the fact that Prather was present and ordered and superintended the removal of the last section of the roof when the accident occurred was tantamount to a tacit assertion that it was safe for plaintiff to proceed with the removal of that section, and plaintiff was not bound to search for danger, but had a right to rely upon the judgment and discretion of the defendant’s foreman that he would fully perform the measure of his duty towards him. The plaintiff, indeed, knew to a certain extent of the defect in the tie-beam, but he did not know of the danger to which he was' subjected by reason of the defect, which Prather did or would have known, had he discharged his duty in this regard. These principles aré recognized in the somewhat recent case of Bowen v. Railroad, 95 Mo. 277, although they were not directly involved. See the cases there cited, especially Arkerson v. Dennison, 117 Mass. 407; also Wood, Mas. & Ser. (2 Ed.), secs. 354, 376.”

And in Bane v. Irwin, 172 Mo. l. c. 316, this court said: “The plaintiff did not assume the risk to which he was exposed by the negligent order, of his forman. The plaintiff’s evidence tended to prove that the foreman had lighted the third shot, but had toid the plaintiff he had not done so; that plaintiff left the foreman in the immediate vicinity of the third shot, and that plaintiff had every reason to rely upon what Gibbs, the foreman, told him, and that the' foreman, without waiting for the shot to explode, ordered plaintiff back into the dangerous place. As said by Judge Sherwood in Sullivan v. Railroad, 107 Mo. l. c. 78, the fact of the presence of the ground foreman and his order to plaintiff was tantamount to an assurance that it was safe for plaintiff to go back into the mine, and plaintiff had a right to rely on the judgment of the foreman that he would perform his duty to him, and especially is it applicable in this case, where plaintiff knew there were only three shots prepared and two had. exploded. When he received the assurance of Gibbs, who was last at the shots, that he had not fired the third, it was entirely reasonable for him to act upon the assumption that it was safe to return and fire the shot as directed by the foreman. Plaintiff did not assume the risk of this danger which his foreman was bound to know, and which he did not know. The two men were not on equality either in service or opportunity to know the hazard of the undertaking.”

The same principle is restated in the case of Herdler v. Buck’s Stove & Range Co., supra, page 17.

We do not understand counsel for respondent to controvert the correctness of the law as before stated, but insist, as we understand them, that the rule as there announced is not applicable to the facts of this case — their contention being that, because the record discloses the fact that the pole and wires were not on the premises where appellant was required to work, the respondent had no authority or control over the same, and consequently had no right to go upon the ' pole and wires for the purpose of -making an inspection of them.

This contention in our opinion is unsound, for the reason that the dangers which make the place where the servant is required to work unsafe need not constitute a part and parcel of the place itself, but the danger may, as is often the case, be separate and independent of the place itself, yet so near thereto as to make it reasonably certain that persons while working there are liable to come in contact with said near-by danger and be injured thereby.

The test is not that the place within itself is reasonably safe, but it must be reasonably safe from all internal and external dangers which are liable to do injury to the servant. It might be that the building, for instance, in which the servant is required to work is unusually strong and has no inherent defects or dangers whatever, yet who would for one moment contend that the same building would be a reasonably safe place for people to work if on the adjoining lot there stood a much larger and taller building so weakened by storm or fire that it was on the very verge of falling on the smaller? Certainly not, and this court has so held, if my memory serves me correctly, in a case that came from St. Louis, but I have been unable to lay my hands on it at the present time.

The same principle underlies this class of cases that underlies all others where reasonable care must be exercised in furnishing reasonably safe places for the use of the public- and for all persons who have the right to be upon the premises.

For instance, in the case of Bassett v. The City of St. Joseph, 53 Mo. 290, this court held that municipal corporations were bound to keep their streets in a reasonably safe condition, and, failing to do so, they would be liable for all injuries resulting from their negligence. In that case the defect was not in the street, but consisted of an excavation adjacent thereto, the close proximity of which to the street made it dangerous for persons passing along there. The court said that the liability of the city “for damages caused by excavations is not restricted to cases where they actually extend into the street; if travel is thereby rendered dangerous, the authorities are equally bound to protect the public, whether they encroach on the highway or not.” That case has been followed in a long list and in a great variety of cases. The city in that case had no more control over the excavation there in question than the respondent here had over the pole and wires. In fact, not so much, for the reason that when the Railway Company made the contract with Stewart & Son to construct the coal chute, by implication it agreed that the contractors and sub-contractor, the respondent, and their employees, might go upon its premises and do all things that were necessary to accomplish that purpose. And the law imposed the duty on the Railway Company to use no dangerous agencies in or about the premises that would injure or kill such employees while so engaged within the scope of their employment.

In discussing this question this court in the case of Ryan v. St. Louis Transit Co., 190 Mo. l. c. 633, said: “It is to be noted that there were no contractual relations between the deceased husband of the plaintiff, and the defendant Transit Company, but it is undisputed that the deceased was upon the premises of the company with its knowledge and consent, and to do a work for which the company had contracted with the employer of the deceased. When the defendant company made its contract with the Cullen & Stock Heating and Ventilating Company to install the oil system in the defendant’s power house upon plans and specifications prescribed by itself, it knew and was bound to anticipate the necessity under which the Heating and Ventilating Company rested of sending its employees upon its premises for the purpose of installing the pipes upon which the deceased was working when he was killed, and hence the duty devolved upon the defendant of keeping the electrical wires, near which the deceased was required to work in the performance of Ms duty in installing the oil pipes, so insulated and protected as to be safe for the deceased to work in their vicinity.'”

The same ruling was also made in the case of Geismann v. Missouri-Edison Electric Co., 173 Mo. 654, l. c. 674, and in Clark v. St. Louis & Suburban Railway Company, just handed down by this court, and reported at page 396 of this volume.

Under this contract with the Railway Company it became the legal duty of both the contractor, Stewart & Son, and the sub-contractor, the respondent, to make inquiry of the Railway Company and to inspect the premises and ascertain whether or not there were any such dangerous agencies connected with or about the premises as would render them unsafe for their employees while working in or about same. If they-failed to do this, and there existed such dangerous agencies which rendered the premises unsafe, then they were guilty of negligence toward their employees, and would be liable in damages to any one of them who might be injured thereby. This is elementary, and is but another way of stating the rule, that the master must use reasonable care to furnish a reasonably safe place for his servants to work. [See -ease cited under former part of this paragraph.]

We are, therefore, of the opinion that the appellant and respondent did not stand on an equal footing regarding the. duty to inspect the premises for secret or hidden dangers. That duty clearly rested upon the master, the respondent in this case, yet the instruction under consideration told the jury that respondent was under no greater duty to inspect the premises than was. the appellant. That was clearly an erroneous declaration of the law, and the court erred in so stating it to the jury.

III. The next insistence of counsel for appellant is that instruction numbered seven given by the court on behalf of the respondent is erroneous. That instruction reads as follows:

“The court instructs the jury that even though you may believe from the evidence in this case that it was dangerous for the defendant, the Union Iron & Foundry Company, to sep.d its men up amongst the feed wires mentioned in the evidence, and to order them to pass its rope and tackle over said feed wires, still, if you believe from the evidence in this case that said danger was a hidden or secret one, and that no warning had been given to the defendant or its foreman, Armstrong, of such'hidden or secret danger, and that said defendant, the Union Iron & Foundry Corn-pan, had no knowledge of such danger, then your verdict should be for the defendant, the Union Iron & Foundry Company.”

The vice of this instruction consists in the declaration that the danger was a hidden or secret one, and that no warning had been given to respondent or its foreman of such hidden danger, and that respondent had no knowledge of such danger, then the jury should find for the respondent. It will be observed by reading this instruction that it absolves respondent from all liability provided the danger in question was hidden and respondent had no personal knowledge thereof, and had not been informed of its existence, thereby totally ignoring all duty that rested upon respondent, or its foreman, to make an inspection of the premises and to inquire regarding all hidden or secret dangers that might be in or about the place where respondent’s servants were required to work. This duty to inspect the premises by the master was quite fully considered in the previous paragraph, and what was there said need not be here repeated.

We are, therefore, of the opinion that this instruction was erroneous and should not have been given..

IY. The final contention of counsel for appellant is, that the court erred in giving for respondent instruction numbered eight, which reads as follows:

“The courts instructs the jury that a master in í sending his servants to work upon the premises of another over which said master had no control, but said premises remain under the control of and in the possession of the owner, does not assume the responsibility to the servant for secret and hidden dangers, and that it is the duty of the owner of such premises to warn said master and his servants of such hidden dangers, and if the said owner does not warn the master or his servants of said danger, and if the master has no actual knowledge of said hidden or secret danger, then said master is not responsible or accountable for injuries to his servant or servants arising solely from said hidden and secret dangers.”

As an abstract proposition of law the rule stated in this instruction may be sound, but when applied to the facts of this case it does not correctly declare the law applicable thereto, as has been repeatedly announced by this court.

"We discussed this question fully in the second and third paragraph of this opinion, where it is held that where the danger is so near the place where the employees are required to work as to menace their lives or limbs, the duty rested upon the Railway Company to notify the contractor, and for the contractor or subcontractor to inspect and notify appellant of all secret or hidden dangers that might be known or discovered thereby. This instruction exempts respondent of that duty, and is for that reason erroneous. [Ryan v. Railroad, supra, l. c. 633; Geismann v. Missouri-Edison Electric Co., supra, l. c. 674; Clark v. Railroad, supra.]

W.e are, therefore, of the opinion that the judgment should be reversed and the cause remanded. It is so ordered.

All concur, Graves, J., in result.

PER CURIAM.

— The foregoing opinion of Wood-son, J., written in Division One of this court, is adopted by the Court in Banc.

All concur.


source: Caselaw Access Project

author: FERRISS, J.

license: Public Domain

text:
    T. S. COLLIER et al. v. ASENATH GAULT et al., Appellants.
    Division Two,
    May 23, 1911.
    1. LIMITATION: Against Co-tenants. One co-tenant cannot claim adverse possession against her co-tenants unless she shows that she has not only been in the open, notorious possession of the land, but also that her possession was adverse to her co-tenants and under a claim of exclusive ownership. The rule is much more strict in the case of one co-tenant claiming against others who are co-tenants by inheritance from a common .ancestor, than it is as to strangers to their title. The co-tenant claiming adversely to other co-tenants must establish exclusive ownership and use.
    2. -: -: Graveyard: Reforming Deed. The owner of land deeded it to his two daughters, reserving therein one acre for a family graveyard, but did not describe the graveyard then existing on the land and inclosed by wall. In the north side of this wall was a gate, and just opposite across a half acre was a gate to the public road, and these gates were the only means of access to the graveyard, and it could be entered from the public highway only by passing over the intervening half acre, on which prior to the conveyance was an orchard. The evidence is clear and conclusive that there was a mistake in the deed, and that it was the intention of the maker not to convey the half acre or the plot inclosed by the wall, in which were about twenty graves. Held, first, that the ■ deed should be reformed so as to reserve the half acre; se.oord, the defense of limitations as to the half-acre is not available to one of the daughters, who bought from the other, unless she has been in open possession adverse to the other heirs under a claim of exclusive ownership and use; and, third, her admission, up to a certain time of common ownership, and the use thereafter of the half-acre by the other heirs in going to and from the burial ground, show that her claim of ownership or'possession was not exclusive, and the suit is not barred by limitations.

      3. LACHES: Co-tenants. Mere delay in bringing an action does not constitute laches, where the other party has suffered nothing by the delay. Where the premises remained substantially in the condition they were when defendant took possession, and she has made no expenditures thereon over and above the benefit she received from their usfe, her co-tenants are not barred by laches in asserting their legal title thereto, or in having the deed so reformed as to reserve the land as a burying ground.
    Appeal from Platte Circuit Court. — lion. Alonso D. Burnes, Judge.
    Affirmed.

      James W. Boyd and James H. Hull for appellants.
    (1) The grantor, in the deed complained of, specified the ground which he was willing to give for a family burying ground, at the time he signed the deed. If the deed does not contain a description of the reservation of the then contemplated burial ground, no power exists in this court, or elsewhere, to compel him to make a new deed, or give something which did not go in the deed. Hamilton v. Armstrong, 120 Mo. 597; Brownlee v. Fenwick, 103 Mo. 428; Anderson v. Scott, 94 Mo: 637; Ford v. Unity Church Society, 120' Mo. 508; Partridge v. Partridge, 220 Mo. 321. (2) There were no grantees as to the reservation of the private family graveyard, which the respondents now contend should be written into the deed in question. No deed of conveyance has ever been, or can ever be, changed, or modified, or reformed by the court, unless at the time it was executed there was a mutual misunderstanding in reference to the land to be conveyed, or .reserved, by and between the grantor and grantee. No power exists to compel a man to give. A man may agree to give, think he will give, but unless he makes his gift irrevocable, executes a deed, the contemplated donation is dead. For more than twenty years before this-suit was brought, Mrs. Gault was in the open, exclusive, notorions, adverse possession of all parts of said tract of land, except that included within the said stone wall; and her title thereto by adverse, possession has become perfect and complete. Her adverse possession is fully shown by the evidence; is admitted by all the parties; and the circuit court, in its findings of facts, in reference thereto made the following specific find ing: ‘ ‘ That at said time, and ever since said time the north part of said acre was lying out in the pasture and orchard, and has been in the open, adverse, notorious and continuous possession of said defendant Gault up to the present time.” The alleged cause of action is barred by the Statute of Limitations. K. S. 1899, sec. 4262; Franklin v. Cunningham, 187 Mo. 196.

      Wilson & Wilson and George W. Dug for respondents.
    (1) ' The case presented by the plaintiffs justified the decree entered, reforming the deed. Henderson v. Beasley, 137 Mo. 199 ; Harding v. Wright, 138 Mo. 11; Hunter v. Patterson, 142 Mo. 310'; Castleman v. Castleman, 184 Mo. 432; Williamson v. Brown, 195 Mo. 313. (2) The acre intended to be reserved for a graveyard was appropriated to a pious use; hence it was excepted from our Statute of Limitations. R. S. 1899, sec. 4270; 2 Perry on Trusts, sec. 706; 6 Cyc. 918. This burial acre was set apart for the family burial ground of the Collier heirs and their posterity forever. We are not quite willing to concede that this was not an appropriation of the land to a public use, in the sense in which “public” is used in the section of the statute above cited, and that this case does not fall within the authority of Tracy v. Bittle, 213 Mo. 302. But, passing that question, we call attention to the use in that section of the words “public, pious or charitable use. ’ ’ The disjunctive “ or ” indicates that lands granted, sequestered or appropriated to either of said uses, are beyond the operation of our Statute of Limitations. (3) If the doctrine of pions uses is not applicable to the facts in this case, then the title which Simeon Collier reserved to himself devolved, at his decease, upon his heirs — one of whom is the defendant Gault. Being a cotenant with her brothers and sister, she could not divest them of their title, by anything less than a claim of exclusive ownership, known to them, or so notorious that they must be presumed to have known of it for the statutory period. Hamilton v. Boggess, 63 Mo. 233; Campbell v. Gas Company, 84 Mo. 352; Coberly v. Coberly, 189 Mo. 117; Estes v. Long, 71 Mo. 605; Comstock v. Eastwood, 108 Mo.. 41. (4) Defendants never have had possession of the half acre enclosed by the stone wall; therefore, the possession of that part of the acre outside the enclosure, even if adverse for the statutory period, will not prevent reformation of the deed to correspond with the intention of the parties. If this deed is reformed, it must be reformed so as to conform to the intention of the parties at the time it was written. There cannot, we think, be a reformation of it as to the half acre which is inclosed by the stone wall, and no reformation as to the other half acre. (5) Defendants have suffered nothing by the delay in bringing this action, and they are, therefore, not in a position to invoke the aid of the Statute of Limitations, or the doctrine of laches. Epperson v. Epperson, 161 Mo. 577; Sicher v. Rombousek, 193 Mo. 113; Lipscomb v. Adams, 193 Mo. 530.
   FERRISS, J.

— Simeon Collier, now deceased, on the 17th day of February, 1885, conveyed to his two daughters, Amelia Collier and Asenath Gault, a tract of land in Platte county, Missouri, by the following deed:

“This indenture, made on the seventeenth day of February A. D., one thousand, eight hundred and eighty-five, by and between Simeon Collier, of the county of Platte in the State of Missouri, party of the first part, and Amelia Collier and Asenatli Gault, of the county of Platte in the State of Missouri, parties of the second part.
“Witnesseth, that the said party of the first part, in consideration of the sum of three thousand and two hundred and no hundredths dollars, to him paid by the said parties of the second part, the-receipt of which is hereby acknowledged, do by these presents, grant, bargain and sell, convey and confirm unto the said parties of the second part, their heirs and assigns, the following described lots, tracts or parcels of land, lying, being situate in the county of Platte and State of Missouri, to-wit:
“All of the northeast quarter of section number seven in township number fifty-four, and range number thirty-five, containing 160 acres.
“Conditional, however, that the.family burying ground is excepted, which said burying ground is designated as follows, to-wit: Commencing at a corner on the west line of said quarter section, and about one hundred and fifty yards, more or less, from the northwest comer of said quarter section, thence running south 140 yards to a corner, thence running east 35 yards to a corner, thence running north 140 yards to a corner, thence west 35 yards to place of beginning, containing one acre, which is reserved and set apart for the family burying ground of Collier heirs and their posterity forever.
“To have and to hold the premises aforesaid, with all and singular the rights, privileges, appurtenances and immunities thereto belonging or in any wise appertaining, unto the said parties of the second part, and unto their heirs and assigns, forever; the said Simeon Collier hereby covenanting that he is lawfully seized of an indefeasible estate in fee in the premises herein conveyed; that he has good right to convey the same; that the said premises are free and clear of any incumbrances done or suffered by him or those under whom he claims, and that he will warrant and defend the title to the said premises unto the said parties of the second part, and unto their heirs and' assigns forever, against the lawful claims and demands of all persons whomsoever.”

When this deed was executed and delivered there was located on the property, on the west line thereof, a family graveyard containing about twenty graves. This graveyard is not included in the acre described in the deed and reserved for a family burial ground. Plaintiffs state in their petition,' and contend, that it was the intention of Simeon Collier, and so understood by the grantees at the time, to. reserve an acre of the same dimensions and for the same purpose designated in the deed, said acre to be carved out of the northwest comer of the quarter section, so as to include the graveyard as then existing. The burial ground proper was inclosed within a wall some time after the death of Collier, and continued to be used as a family burial ground, some five or six graves having been added after his death. The wall inclosing this lot of graves has an opening or gate to the north. At the northwest corner of the quarter section is a gate opening on a public road which runs east and west. The only access to the burial ground is through this gate, so that a person desiring to enter the burial ground from the road must pass through said gate and proceed south through a half acre of ground lying between the road and the burial ground inclosed by the stone wall, in which there was an opening to the north. Collier, the grantor in the deed, lived at the time in a house located to the east of the burial lot, and used the above-mentioned entrance from the road as a means of access to his premises, thus necessarily traversing the land lying immediately between the burial lot and the road.

It will be perceived that the deed describes an acre commencing at a point on the west line of said quarter section, about 150 yards, more or less, south of the northwest corner; thence proceeding south, etc. The point mentioned in the deed is 150 yards south of the road mentioned, and is south of the burial lot proper. Consequently, the acre described does not include said burial lot inclosed by the stone wall. It was the intention of Simeon Collier, as appears from the testimony, without dispute, to reserve the burial ground already in use, together with the land lying between it and the road on the north, as a family burial ground. By mistake of the scrivener this acre, in the shape of a parallelogram, lying in the northwest corner of the section and along the west line thereof, was not described, but an acre lying south of it was described in the deed. The property described in the deed was owned by Asenath Glault at the time this suit was brought, she having acquired the interest of her sister, Amelia Collier. All of the heirs of Simeon Collier, excepting Mrs. Gault and a grandson, Eugene Downing, defendants herein, joined in the petition filed in the Platte Circuit Court, at the August term, 1906, asking to have the deed reformed so as to comply with the intention of the parties, and reserve in lieu of the acre described in the deed the acre in the northwest corner. The defense was a general denial and plea of the Statute of Limitations.

It appeared in evidence that the defendant Asenath Gault took possession of the premises under the deed, and for some time after her father’s death lived in the house located on the quarter section. She and her son-in-law, her tenant, occupied the acre described in the deed for agricultural purposes, and also the half' acre north of the burial lot, on which was planted an orchard at the time of the grantor’s death and which continued in use as an orchard by the defendant.. In 1894 it was agreed between the Collier heirs, including the defendant Mrs. Gault, that there had been a mistake in the deed and that the same should be corrected. Two quitclaim deeds were prepared by an attorney, one from the Collier heirs to Mrs. Gault, conveying the acre described in the deed, and one from Mrs. Gault to the heirs, conveying the acre in the northwest corner, and which it was agreed was intended to be reserved in the original deed. The quitclaim deed from the heirs to Mrs. Gault was signed by all of the heirs, including Mrs. Gault. When it came to an exchange of the deeds, Mrs. Gault refused to deliver the deed from herself to the other heirs, giving’ as her reason that such deed would cut off her way to the road. The court below entered a decree reforming the deed as prayed.

The evidence is clear and conclusive that a mistake was made in the deed. The defendants relied chiefly on the defense of adverse possession. It seems jthat the defendant, Mrs. Gault, had been in possession of all the premises excepting the burial lot which was inclosed by a wall, and to which she made no claim. It is contended by the plaintiff's that this acre of ground is dedicated to a pious use, and that therefore the Statute of Limitations could not run against it. The defendants also claim that the plaintiffs have been guilty of laches. As to these various propositions, we hold that the evidence establishes mistake. The defense of the Statute of Limitations could be invoked only on the theory that the deed is reformed. If the deed is not reformed, of course the defendant’s ownership and possession of the half acre in the northwest corner cannot be disturbed. She says in effect, however, “If the deed is reformed, then I hold that northwest-corner half acre by adverse possession.” So we must discuss the question of adverse possession as if the deed described the acre in the northwest corner.

Assuming, now, that the reservation in the original deed applied to the acre in the northwest corner, the title to that acre, reserved from the operation of the deed, remained in Simeon Collier, and, upon his death, went to his heirs as tenants in common. Mrs. Gault cannot claim by adverse possession against her co-tenants, unless she shows that she not only has been in the open, notorious possession of said acre, but also that such possession was adverse to her co-tenants and under a claim of exclusive ownership. On this point the evidence fails to sustain the defendants’ contention. While it is true that Mrs. Gault had the possession and use of the land in controversy, it does not appear that her possession was exclusive as against the other heirs, or that she claimed to own it. On the contrary, up to 1894 she admitted the common ownership, and went so far as to sign a deed conveying the acre in controversy to the heirs, and during all the time, both before and subsequent to 1894, it is evident that the half acre in the northwest corner was used by all of the heirs in going to and from the burial ground. New graves, presumably of deceased relatives, were added. The opening in the north wall of the burial lot was substantially opposite the gate into the public road, and it is fair to conclude that the entire family used the half acre between the inclosed burial ground and the public road for purposes of access to the burial ground, and this without objection on the part of the defendants.

One co-tenant cannot gain title by adverse possession against the others by anything less than a claim of exclusive ownership and use. The rule is far more strict in such cases than in an ordinary case of adverse possession against the world at large. [Golden v. Tyer, 180 Mo. 196; Comstock v. Eastwood, 108 Mo. 41.] So we must hold, without regard to the character of the use impressed upon this acre reserved from the operation of the deed, that there has been no adverse possession as against the heirs.

Upon the question of laches, the law is equally plain that mere delay in bringing an action does not constitute laches, where the other party has suffered nothing by the delay. [Sicher v. Rambousek, 193 Mo. 113; Lipscomb v. Adams, 193 Mo. 530.] The premises remained substantially in the original condition. There has been no expenditure made by the defendant, Mrs. Gault, upon the premises over and above the benefit which she has received from their use. She has taken possession of and used the acre described in the deed, and has thus ’received the full amount of the property which the deed from her father calls' for. The record shows no claim on her part of exclusive ownership of the acre in dispute, and fails to show any reason for her seeking to defeat this claim of the heirs other than a desire to secure the use of a way across the property in controversy.

The judgment is for the right party, and is affirmed.

Kevmish, P. J., and Brown, J., concur.


text:
    CAPE GIRARDEAU & CHESTER RAILROAD COMPANY v. LOUIS BLECHLE, Appellant.
    Division Two,
    May 23, 1911.
    1. CONDEMNATION: Damages to Other Lands. In tlie trial of tlie question of damages- to defendant’s lands caused by the construction of a railroad through them, testimony of a witness that he owned land similar to defendant’s in the same general neighborhood, and that it had been injured by the building of a railroad through the same a few years previously,is not competent. .
    2. -: Expert Witness. Witnesses who state they are acquainted with defendant’s land and know its value are qualified as experts on the question of value in the condemnation case.

      3. -■: Special Benefits: No Evidence: Instruction. Where there was some substantial evidence of special benefits to defendant’s land other than the general benefits common to other lands in the neighborhood, the court does not err in refusing an instruction asked by defendant telling the jury that there is no evidence of special benefits and directing them not to take into consideration any benefits in estimating his damages. And testimony that the railroad has added to the value of defendant’s land for building purposes because of its proximity to- the town, that there is an increase of value in his land for town-lot purposes, and that the railroad has a regular stopping place on the public road which runs along the land and that it is a proper place for a station, though no station is. yet there, is evidence of special benefits, and authorizes an instruction directing the jury to deduct the value of the special benefits from the amount of special damages.
    4'. -: Liability of Injury to Persons or Animals. An instruction telling the jury that they should not allow any damages because of liability of injury to persons or stock by reason of the construction and operation of the railroad, where there is no evidence whatever of any peculiar danger of the kind, is not of itself objectionable. The jury cannot allow damages for occurrences which may never happen. If defendant wished to have the jury take into consideration any depreciation in the present valúe of the land due to a peculiar danger to his ■ property by reason of risks to persons and animals, he should present evidence to the jury of such peculiar danger or risks and ask an appropriate instruction on the subject.
    5. -: Right to Open and Close: Reversible Error. After exceptions have been filed to the report of the commissioners by either party in a condemnation proceeding, the issue becomes one of the amount of damages, and the land-owner (the defendant) has the right to open and close the case, both in the presentation of evidence and in the argument to the jury. But the matter is within the discretion of the court, and in the absence of any showing of injury to the defendant the denial of that right to him does not constitute reversible error.
    Appeal from St. Francois Circuit Court. — Hon. Charles A. Killian, Judge.
    Affirmed.-

      John V. No ell for appellant.
    ' (1) The testimony of Popp, that he owned land in the same general neighborhood with defendant’s land, and similar to it in its availability for town or residence lots, and that its availability for said purpose was destroyed by the building- of the Chester, Perryville and Ste. Genevieve Railroad through the same a few years before, was competent and relevant evidence and should not have been stricken but by the court on plaintiff’s motion. In re Establishment of' Boulevard, 127 Mo. 417; Railroad v. Brick Go., 198 Mo. 698>. Collateral facts and circumstances tending to prove a fact in issue are always admissible. Longree v. Mfg. Co,, 120’ Mo. App. 494; Duerst v. St. Louis Stamping Co., 163 Mo. 622; Golden v. Railroad, 84 Mo. App. 59; Budd et al. v. TIoffheimer, 52 Mo. 305. (2) The witnesses, Layton, Anderson and Hazelbud, offered by plaintiff, were incompetent to express an opinion on the market value of defendant’s .land and the amount of his damages. Neither of, these witnesses knew anything- about the market value of land in the neighborhood of defendant’s land. Railroad v. Brick Co., 198 Mo. 698; Campbell v. Railroad, 175 Mo. 177; Fountain v. Railroad, 114 Mo. App. 681. (3) There was no evidence in the case on which to base instruction 2, given by the court at the request of plaintiff; but the giving of the same tended to mislead the jury into the erroneous opinion that they should take int'o consideration benefits to defendant’s land by way of reducing his damages. The giving of an instruction with no evidence on which to base it, has repeatedly been condemned by this court. Doyle v. Railroad, 113 Mo. 2901; Wilkerson v. Eilers, 114 Mo. 253; State v. Tice, 90 Mo. 1.12. (4) The court should have given instruction 5 asked by defendant. There was no evidence in the cause of any special or peculiar benefit to defendant’s land from the building* of plaintiff’s railroad, and the jury■ should have been plainly told so by the court. Champagne v. Harney, 189 Mo. 729; Gilpin v. Railroad, 197 Mo. 325; Warner v. Railroad, 178 Mo. 125; Purber v. Bolt & Nut Co., 185 Mo. 301. (5) If the liability of persons and stock to being killed or injured in consequence of the building and operation of plaintiff’s railroad depreciated the market value of defendant’s land, then such liability could and should have been taken into consideration, in so far as it affected such market value. Under instruction 8 the jury could not in any event take such liability to being killed or injured into consideration. Railroad v. Mendonsa, 193 Mo. 525; Railroad v. Brick Co., 198 Mo. 713. (6) The only benefits which the law allows the jury to take into consideration by way of reduction of damages in a condemnation proceeding are those which are peculiar to the lands of the defendant in the suit, and are not shared in common with the lands of other persons in the neighborhood not taken by the plaintiff. General benefits common to all of th'e lands in the neighborhood, such as a general rise in the market value of all the lands in the vicinity, are not to be considered by the jury in assessing damages. Bridge Co. v. Ring, 58 Mo. 491; Spencer v. Railroad, 120 Mo. 154; Daugherty v. Brown, 91 Mo. 26; Railroad vi Mendonsa, 193 Mo. 529. (7) The opinions given by Layton and Tucker, that if a depot were located on defendant’s land it would confer special benefits on the same, were not a sufficient basis on which to found an instruction authorizing the jury to consider special benefits. These witnesses testified to no fact or circumstance tending to show that a depot on defendant’s land was ever contemplated, much less located. On the contrary, they both admitted that no land for depot purposes had been bought or negotiated for in the vicinity of defendant’s land. Hook v. Railroad, 133 Mo. 321; Hickman v. Kansas City, 120 Mo. 110’. (8) The party upon whom rests the burden of proof, or who holds the laboring oar, is entitled to the open and close of the case before the jury. In this case there was but one issue, namely, the amount of defendant’s damage. On this issue the defendant held the affirmative, and the burden of proof was upon him to establish his damages. The right to open and close was a vital and important right, and the denial to defendant of that right by the trial court was undoubtedly an abuse of discretion and reversible error. Grant Quarry Co. v. Construction Co., 72 Mo. App. 534; Railroad v. North, 31 Mo. App. 349'; Porter v. Jones, 52 Mo. 403; Railroad v. Donovan, 149 Mo. 101; Bank v. Metcalf, 29 Mo. App. 396; Bates v. Forcht, 89 Mo. 128; 1 Greenl. Ev. (Redf. Ed.), sec. 74.

      Edward A. Rosier for respondent.
    (1) The court ruled properly in refusing to permit the witness Popp to testify as to the effects the building of another railroad had upon some property belonging to the witness. It would be bringing in extraneous facts for the jury to pass upon. Railroad v. Stock Yards, 120 Mo. 551; Chamberlain v. Missouri Electric, 158 Mo. 1; Coale v. Railroad, 60 Mo. 227; Watson v. Columbia, 77 Mo. App. 267. (2) Layton, Anderson and Hazlebud all qualified as having knowledge of values of property adjoining land of defendant, were experienced business men, and therefore had a right to express an opinion as to the value of the land and the effect of the taking of the strip for railway purposes. Railroad v. Donovan, 149 Mo. 102; Railroad v. Stock Yards, 120 Mo. 550; Union Elevator v. Railroad, 135 Mo. 375; Railroad v. Calkins, 90 Mo. 538; Railroad v. DeLisa, 1Ó3 Mo. 125; Railroad v. Fowler, 113 Mo. 470. (3) There was ample testimony for the court to give the instructions as to benefits. Railroad v. Stout, 1601 Mo. 412'; Bridge Co. v. Ring, 58 Mo. 491; Railroad v. Waldo, 70 Mo. 629; Railroad v. Story, 96 Mo. 611; Railroad v. Baker, 102 Mo. 553; Railroad v. Shoemaker, 160 Mo. 425'. (4) Instruction 8 for plaintiff was in proper form and declared the law correctly. There was no evidence that the liability of persons and stock being killed would affect the market value of defendant’s land. • Railroad v. Brick Yard, 198 Mo. 698; Railroad v. Donovan, 149 Mo. 103; Railroad v. Shoemaker, 160 Mo. 433. (5) The court did not err in refusing to award defendant the right to open and close the case. Such matter is largely discretionary with the court, and no reasons having been given by defendant, the action of the court is not open for review. Railroad v. Donovan, 149 Mo. 93; Railroad v. North, 31 Mo. App. 345'; Railroad v. Eby, 152 Mo. 606; Parsons v. Railroad, 94 Mo. 291; Holmes v. Braidwood, 82 Mo. 610'.
   FERRISS, J.

— The plaintiff filed a petition in ordinary form, on November 8, 1906-, to condemn a right of way through defendant’s farm in Perry county. Commissioners were duly appointed by the court to view the land, and assessed defendant’s damages at $1415. This sum was paid into court by the plaintiff, and was received by the defendant, and plaintiff took possession of the land for its railroad. Afterwards plaintiff filed written exceptions to the report of the commissioners, alleging that the amount awarded was excessive and demanding a trial by jury. Said trial was had, resulting in a verdict assessing the damages at $740. Defendant appeals.

The following instructions given for plaintiff are objected to:

“2. In estimating the damages in this case the jury should take into consideration the actual value of the strip of land sought to be condemned by plaintiff, and benefits, if any, and the disadvantages, if any, resulting to the remainder of the lands of defendant not taken by plaintiff, from the appropriation by plaintiff of the strip of land in question for the purpose of its said railroad. The benefits to be considered and allowed by the jury are the direct and peculiar benefits, if any, which result to the remainder of the lands of defendant not appropriated by plaintiff, not the general benefits which defendant derives, in common with other landowners in the vicinity, from the building of the road. Neither should the jnry, in estimating the damages in this case, take into consideration such inconveniences and disadvantages to the defendant as are consequences of the lawful and proper use of the railroad, in so far as the same are common to the other landowners in the neighborhood, portions of whose land are not taken.
“8. The court instructs the jury that they are not authorized to allow any damages because of the liability, if any, to persons or any stock being injured or killed by reason of the construction and operation of plaintiff’s railroad.”

The. following instruction offered by defendant was refused.

“5. As there is no evidence in this case proving, or tending to prove, that the lands of defendant derive any peculiar or special benefit from the location and building of plaintiff’s railroad thereover, other than the general benefit common to other lands in the neighborhood not taken by plaintiff, the jury will not be authorized in estimating the damages in this case, to take into consideration, in diminution of defendant’s damages, any benefits to his land.”

Defendant filed no exceptions to the report of the commissioners. When the cause came on for trial before the jury the défendant demanded the right to open and close, both as to the introduction of testimony and argument .of counsel, which was denied.

The assignments of error filed in this court will be considered in their order:

I. Defendant offered to prove by a witness, one Christopher P'opp, that the witness owned land similar to defendant’s, in the same general neighborhood, and that its availability and value for residence lots had been injured by'the building of a railroad through the same a few years previously. Defendant also offered to prove similar facts on cross-examination of one of plaintiff’s witnesses, S. S. Tucker. The court sustained objections to this testimony, and in this the court was clearly right. The witnesses were giving their opinions as to the damages to defendant’s land. It was not competent for them to relate facts concerning property situated elsewhere. It does not follow that- similar results would ensue in the present situation.

II. It is claimed that plaintiff’s expért witnesses, Layton, • Anderson, and Hazelbud, did not properly qualify as witnesses on value. The transcript of the evidence shows in each case the -witness stated that he was acquainted with defendant’s land, knew its value, and was otherwise qualified.

III. The third and fourth assignments of error may be considered together. The defendant complains of instruction numbered 2 given for plaintiff, directing the jury to take into consideration the special benefits, if any, to defendant’s land, and of the refusal of the court to give instruction numbered 5 asked by defendant, which told the jury that there was no evidence of special benefits to defendant’s land, other than the general benefit common to other lands in the neighborhood and directed the jury not to take into consideration in estimating defendant’s damages any benefits to his land. The evidence as to said benefits to defendant’s land is slight, but there is some evidence of a substantial character to the effect that there was some benefit. Witness Hazelbud testified, without objection, that the railroad had added to the value of defendant’s land for building purposes on account of its proximity to tbe town. Witness Tucker also, without objection, testified that there was an increase of value in the land of defendant for town-lot purposes. It also appeared in the evidence that the railroad had a regular stopping place on the public road which ran along defendant’s land, but that there is no station there; but inasmuch as it is a regular stopping place, the witness assumed that it was a proper place for a station, and that the building of such station would add to the value of defendant’s land.

We think the jury would be justified in taking these facts into consideration, and weighing them against the testimony of defendant’s witnesses to the effect that the value of defendant’s land would be injured. There was evidence tending to show that a point right at defendant’s land was the only place for a permanent railroad station. Instruction numbered 2 was proper, and the court committed no error in refusing defendant’s instruction numbered 5.

IY. Objection is made to instruction numbered 8 given for plaintiff, which told the jury that they should' not allow any damages because of liability of injury to persons or stock by reason of the construction and operation of the railroad. We think this instruction was not objectionable, for two reasons: (a) There was no testimony whatever tending to show that there was any peculiar danger of this kind to defendant’s land other than that incidental to any land through which the railroad might run. There was no testimony at all on this subject. This court has pointed out in several cases the distinction to be observed with regard to risk of danger from fire and injury to persons and animals. The jury cannot allow damages for occurrences which may never happen. It is to be presumed that the railroad will operate according to law, and the law makes provision for recovery against a railroad for damages caused by fire, killing stock, etc. At tbe same time, where there is evidence of peculiar danger to defendant’s property by reason of such risks, it is proper for the jury to take into consideration such risks as affecting the present value of the land. [Railroad v. Continental Brick Co., 198 Mo. 698; Railroad Co. v. Mendonsa, 193 Mo. 518; Railroad v. McGrew, 104 Mo. 282.] The instruction does not tell the jury that they may not take into consideration any depreciation in the value of the land by reason of apprehended injury to cattle or persons, but it does tell them that they are not authorized to give any damages because of such liability. Strictly speaking, this is correct. No damages should be allowed for injuries which might or might not happen. If the defendant desired to have the jury take such risk into consideration in fixing the present value of the land, he should have asked for an instruction to that effect. We are of the opinion that, under the evidence in this case, this instruction was, to say the least, harmless.

V. Upon the return of the verdict of the jury assessing defendant’s damages at $740', the court entered judgment that the plaintiff recover from the defendant the sum of $675, being the difference between the $1415 received by the defendant, as aforesaid, and the amount of damages awarded by the jury.

Section 2362, Revised Statutes 1909', provides for the appointment of commissioners upon the filing of the petition for condemnation and due notice thereof, to assess damages; that upon the report of such commissioners being filed, the railroad company shall pay the amount of damages so assessed to the clerk of the court, and on making such payment “it shall be lawful for such company to hold the interest in the property so appropriated for the uses aforesaid.”

Section 2364 provides that, upon the filing of exceptions by either party, the court may order a new appraisement to be made by a jury, “as in ordinary cases of injury of damages;” but that notwithstanding sucb exceptions, the company may proceed to construct its road, “and any subsequent proceedings shall only affect.the amount of compensation to be allowed.”

These statutes have been nnder construction by this court on numerous occasions, and some propositions of law material to the present case have been settled. It is the law that the payment of the money into court, upon the award of the commissioners, satisfies the requirements of section 21, article 2, of our Constitution, which provides that property shall not be taken without just compensation. [Railroad v. Aubuchon, 199 Mo. 352; Rothan v. Railroad, 113 Mo. 132; Railroad v. Moldenhauer, 130 Mo. App. 243.]

In a case such as this it is the duty of the court, and it is the universal practice, to sustain exceptions filed by either party, and order an inquiry of damages by a jury. The question now arises, what effect' does the sustaining the exceptions have upon the situation? This question has been decided by this court. In State ex rel. v. Fort, 180 Mo. 97, this court decided that the sustaining of the exceptions vacated the award of the commissioners, wiped out all rights under it, and left matters in the same shape as if no such assessment had been made. This is also the conclusion in the case of Railway v. Roberts, 187 Mo. 309, where the court says that the jury in such ease tries the question of damages de novo. We have then this situation when the cause comes on for trial before the jury: The award of the commissioners has been vacated, and it is as if no such award had ever been made; 'the case is to be tried de novo, and such trial is to be, in the language of section 2364, Revised Statutes 1909; “under the supervision of the court, as in ordinary cases of inquiry of damages.” In such case, it would seem that the burden of .proof is upon, and the "right to open and close belongs to, tbe one who claims damages. All other issues having been settled, the only question remaining to be determined is the amount of damages. If, when the case is called for trial before the jury, ■either party should put in no testimony, what would be the result? There is at the time no ascertainment of damages; that is to say, no damages have'been established. Under the rule that the party is entitled to begin who would suffer defeat if no evidence should be given on either side, it is clear that the defendant, being such party, is entitled to open and close. The cases which have been decided in this court indicate that the practice in the circuit courts has not been uniform. In the case of Ry. Co. v. Knapp-Stout & Co., 160 Mo. 397, the defendant opened and closed in the trial before the jury; also in the case of Railroad v. Roberts, 187 Mo. 309. On the contrary in the Aubúchon case, above cited, the plaintiff opened and closed. In the case of Railroad v. Donovan, 149 Mo. 102, this court held that the defendant had the right to open and close, because he alone was insisting upon exceptions, and that upon him was the burden of proof to sustain the allegation of his exceptions. The phraseology of this decision would suggest that in the mind of the court the real point of attack before the jury was the award of the commissioners, but we are satisfied that the. court did not intend to convey such impression. It has been held that the award of the commissioners cannot properly be read to the jury; that it would be as improper as to read the verdict of a former jury; also that “the only proper matter for the jury to consider or include in their verdict is the amount of damages the defendant is entitled to.” [Railroad v. Roberts, supra] So also in the case of Railroad v. Eby, 152 Mo. l. c. 610, where exceptions were filed by the defendant only, it was held that he had the right to open and close. We apprehend, however, that the right under consideration is not dependent upon whether the exceptions are filed by the one party or the other. The general rule is that the right to open and close goes to the one on whom the burden of proof lies in the first instance. [Porter v. Jones, 52 Mo. l. c. 403.] So it has been held that where there is no dispute as to the execution of a note sued on, but an affirmative defense is made, the opening and close belong to the defendant. [Bates v. Forcht, 89 Mo. 128; Grant Quarry Co. v. Construction Co., 72 Mo. App. l. c. 534.] In Thompson on Trials, sec. 247, based upon an Illinois decision, the author lays down the proposition that the right to open and close in a case such as this goes to the petitioner. The Illinois case, however, is based on a constitution different from ours, and, therefore, we think is not in point. Under that Constitution, the land cannot be acquired without just compensation to be ascertained by a jury. Under our Constitution, the railroad acquires the land before the question of damages is submitted' to the jury. Our decision must turn upon the question whether the point of attack in the trial before the jury is the assessment made by the commissioners, or whether it is the original question of the amount of damages which the landowner has sustained. If the former, then the burden of proof would be upon the plaintiff, the only ex-ceptor. If the latter, the burden is upon the landowner. "VVe think, inasmuch as the award of the commissioners is vacated, that it becomes before the jury simply an inquiry of damages, as if no award had ever been made, and that the burden is upon the landowner to establish his damages.

This brings us to the next question — whether the refusal of the court to permit defendant to open and close is prejudicial error. The defendant, of course, contends that he was seriously prejudiced by this action of the court. Plaintiff contends that the matter is within the discretion of the court, and that this case shows no abuse of such discretion. There was much testimony introduced on both sides on the question of damages. Several witnesses placed on the stand by the plaintiff testified that the damages were small, their estimates running from $50 to $800, whereas the witnesses for the defendant fixed the damages at from $1400 to $1500. If the defendant had the right to place his evidence before the jury first, and open and close the argument, was he injured by the denial of this right? Counsel for defendant cites several cases to establish the proposition that the right to open and close belongs to the party who has the laboring oar, which general proposition is clear enough. On the question whether the denial of that right is reversible error counsel cites cases from Massachusetts and New York which hold that it is error. He also cites 1 Thompson on Trials, section 226, to the effect that it is the law in England and most American jurisdictions that the deprivation of this right to open and close is substantial error. He seems to have overlooked the fact that the author, in a note to said section, states that such doctrine is not held in Missouri, but that the Missouri doctrine is that the denial of such right is reversible error only when it appears that injury or prejudice has resulted from such denial. That this court must be satisfied that injury resulted to the defendant because he was denied the right to open and close is established as the law of this State. There are many cases in this State which hold that the right to open and close goes to him who has the affirmative of the real issue in controversy, but we find no decision of this court reversing a case because of the failure to recognize this right. On the contrary, all the cases hold that this matter is within the discretion of the trial court, and that such discretion will not be reviewed unless it is apparent that it has been abused to the injury of the party complaining. [Harvey v. Heirs of Sullens, 56 Mo. 372; Farrell v. Brennan, 32 Mo. 328; Richard v. Manhattan Life Ins. Co., 31 Mo. l. c. 520; Coombs Co. v. Block, 130 Mo. l. c. 683.] An Iowa statute provides that “the party having the burden of the issue shall have the opening and closing.” Yet the Supreme Court of that State has held that, even under said statute, there must be shown a clear case of prejudice before the court will reverse for refusal to recognize this right. [Preston v. Walker, 26 Iowa, 205; Fountain v. West, 23 Iowa, 9.]

After a careful inspection of the record in this case, we are unable to find that the defendant was in any way injured by the ruling of the court. It is to be presumed that the jury did its duty, and decided the case according to the evidence and the instructions of the court. We are satisfied that, under the testimony, the verdict of the jury was fair to the defendant and that he was allowed all the damages which he had suffered. Our Statute of Jeofails, section 1850, Revised Statutes 1909, forbids this court to reverse a case for any error that does not affect the substantial rights of the adverse party. After a case has been fully and fairly tried, and such trial hgs resulted in a fair decision giving the parties substantial justice, this court will not reverse the ease and protract litigation because of technical errors- which do not affect the substantial merits of the case.

Let the judgment be affirmed.

Kennish, P. J., and Brown, J., concur.