text:
    VAN HORN v. ST. LOUIS TRANSIT COMPANY, Appellant.
    Division Two,
    July 3, 1906.
    1. STREET CAR: Security of Passengers: Conductor’s Duty. It is the duty of the conductor of an open street car to see that a passenger has a seat reasonably safe and secure; and where he knows her position to be unsafe, or the circumstances are such as to make his knowledge inferable, it is his duty to control the running of the car with a degree of care proportionate to the danger to which the passenger, by reason of her insecure position, is exposed.

      2. -: -: -: Open Car: Demurrer. The evidence upon the part of plaintiff tended to show that, owing to the crowded condition of the car in which plaintiff’s wife was a passenger, she was compelled to occupy a position at the end of a seat of an open car next to the foot-hoard, which the conductor must have known was unsafe, in that she had to sit upon the end of the seat in front of the upright stanchion and in front of the side support of the seat; that the car was being run 20 or 25 miles an hour; that her hat blew off, and that in reaching out suddenly to the left to recover it, she either fell off or was thrown off. Defendant’s testimony was that when her hat blew off she got down on the foot-hoard while the ear was running and jumped off. Held, that the court properly overruled a demurrer to the evidence.
    3. -: -: Reckless Speed: Allegation: No Proof. If the seat on the street car which the passenger occupied at the time of the accident was unsafe and insecure, owing to her exposed position near its end, the conductor will he presumed to know it; and it will not he held that there can he no recovery for her injuries because the evidence does.not sustain the charge that the car at the time was being run at a reckless rate of speed. When the primary cause of the accident was the insecure and dangerous position the passenger occupied on the car, when considered in connection with the swaying of the car while running at the rate of twenty miles an hour, or at the ordinary rate, it makes no difference whether the petition charges reckless speed or whether or not there is evidence to sustain that charge.

      4. -: -: Voluntarily Leaving Car: Proximate Cause. Notwithstanding the car was crowded and the conductor was negligent in not providing the passenger a safe and secure position on the car, yet if the passenger voluntarily left the car while it was in motion, and in consequence she was injured she was guilty of contributory negligence, and there can he no recovery. And an instruction presenting this clear defense should not he modified by the addition of a clause, “Unless said crowded condition of the car, or the rapid speed, or the rocking motion, was the proximate cause of her injury,” etc.
    Appeal from Gasconade Circuit Court . — Hon. Wm. A. Davidson, Judge.
    Reversed and remanded.

      Geo. T. Priest for appellant; Boyle & Priest and George W. Easley of counsel.
    (1) The court erred in overruling defendant’s demurrer, offered at the close of the plaintiff’s evidence and renewed again at the close of all the evidence. When a petition charges negligence specifically, the acts, or some one of them, constituting the charge of negligence, must be proven, and, unless proven, the verdict, for the plaintiff cannot stand, even though the petition be founded on the relation of carrier and passenger. Waldhier v. Railroad, 71 Mo. 514; Price v. Railroad, 71 Mo. 414; Ely v. Railroad, 77 Mo. 34; Current v. Railroad, 86 Mo. 66; Peary v. Railroad, 162 Mo. 75; Allen v. Railroad, 183 Mo. 411; McManamee v. Railroad, 135 Mo. 440. (2) The court erred in amending defendant’s instruction 5 offered, and in giving the instruction in its amended form to the jury. The error committed in amending this instruction destroyed absolutely any defense that defendant could have, and the defense it did have.

      A. B. Taylor for.respondent.
    (1) Appellant contended that, as respondent has specified the grounds of negligence of the carrier relied upon, he must be held to prove them without presumption. This is not precisely the law. If an injured passenger specifies negligence, and his proof shows different negligence, it has been held that he may not recover; whereas, if he alleges simply an injury by the giving away of the vehicle of the carrier, he makes a prima-facie case without more, and casts the burden of explanation on the carrier to show that the giving away of the vehicle, and injury thereby caused, was without the slightest negligence on its part. This principle does not touch or have application here. Every averment of negligent acts, contributing to this death, had substantial evidence to support it. If the two large men, occupying too much of the south end of the seat, so that deceased could not get secure sitting-room on the seat, needed looking after, the conductor should have attended to this matter. It was his duty to see that this lady had a seat reasonably safe and secure. He saw the situation, and he took her as a passenger on said seat, in the exposed position, and he, being the direct representative of the carrier, was bound in duty to control the running of the car with that high degree of care which the exposed position of deceased demanded. This is settled law. Willmott v. Railroad, 106 Mo. 543; Seymour v. Railroad, 114 Mo. 271; Luekel v. Century Co., 177 Mo. 628; Sweeny v. Railroad, 150 Mo. 397; Parks v. Railroad, 178 Mo. 116; Becker v. Lincoln Co., 174 Mo. 250; O’Brien v. Railroad, 185 Mo. 268. (2) The claim of appellant is that the court modified his fifth instruction and gave it. The court gave two instructions at the request of the defendant, each telling the jury that if the deceased “ voluntarily got off the car while it was in motion, then her own conduct was the direct cause of her death and plaintiff cannot recover.” The court gave in two instructions the same law asked in instruction 5 modified by the court and given. The court would have properly refused the instruction, because to give a multitude of instructions embodying the same law tends to mystify rather than enlighten a jury. The instruction iü. itself is harmless and only presents both sides of the issue, in effect telling the jury that if defendant’s predicate is true plaintiff cannot recover, but that-if plaintiff’s predicate is true — it would be different. We presume that the court, after giving the saíne propositions for defendant in instructions three and four, as cited above, concluded that it was as well that the jury should not lose sight - entirely of plaintiff’s side of the case. So that upon this complaint of appellant the record shows he had at least two instructions submitting the exact question for his side asked in the fifth. He had no right to more than one. He wanted three. Counsel contends that the “unless clause” destroys his “although clause.” The court would have been entirely justified in refusing the instruction bodily, because a repetition of two already given, and if this is true, he distinctly got more of the instruction than he was entitled to. Where the substance of a requested instruction has already been given, it is not error to decline to repeat such instruction, although in another form. Maxwell v. Railroad, 85 Mo. 105; State v. Thornhill, 177 Mo. 695; State v. Brown, 181 Mo. 220.
   BURGESS, P. J.

This is an action for five thousand dollars as damages for the death of plaintiff’s wife, caused through the alleged negligence of defendant’s servants whilst operating one of defendant’s cars in which the deceased was a passenger.

The cause was tried before the court and jury, and a verdict and judgment rendered in favor of plaintiff for the sum of five thousand dollars. After unavailing motions for new trial and in arrest of judgment, defendant appeals.

The petition, omitting the formal parts, is as follows :

“The plaintiff states that the defendant is, and at the times herein mentioned was, a corporation by virtue of the law of Missouri, and used and operated the railway and car herein mentioned as a carrier of passengers for hire. That on the 18th day of May, 1901, the defendant, by its servants in charge of its west-bound car at Hamilton and Delmar avenues, received upon said car, as a passenger thereon, the plaintiff’s wife, Mary Holmes Yan Horn, and for a valuable consideration, paid to the defendant by plaintiff’s said wife, the defendant undertook and agreed with the plaintiff’s said wife to carry her safely as such passenger on said car to her point of destination on defendant’s line of railway, to-wit, Delmar Garden, and to there stop said car and allow her a reasonable time and opportunity to alight in safety from said car. That said car was a public conveyance in charge of its drivers, its motorman and conductor thereon. Yet this plaintiff avers, that the defendant unmindful of its undertaking, and of its duty in the premises, did, whilst plaintiff’s wife was such passenger on said car and before she reached her said point of destination, to-wit, at a point in St. Louis county about 800 feet east of said Delmar Garden, so recklessly and carelessly run and conduct said car and did so carelessly cause said car to run at a violent and reckless speed, as to cause the plaintiff’s wife to fall and be thrown from said car, and to be so injured that she died from said injuries on the day aforesaid.
“And for a further assignment of negligence, the plaintiff avers that at the time the plaintiff’s wife was so received upon said car, she was received as a passenger on the end of a seat of said car, which seat was so crowded that plaintiff’s wife had no sufficient room to sit securely thereon, and was thereby exposed to the danger of being thrown from said car by any violent motion or shock to said ear. Yet the defendant’s servants, in charge of said, car, did, whilst plaintiff’s wife was so in said insecure position on said car, and without means adequate to secure her position on said car, cause said car to be run at a high and reckless speed and to sustain jerks and shocks, whereby the plaintiff’s wife was caused to fall and be thrown from said car as aforesaid, which negligence of the defendant and its servants directly contributed to cause the injury and death of the plaintiff’s said wife.
“And for another assignment of negligence the plaintiff avers that said car was an open car, with the seat on which his wife was so received as a passenger on said car extending to the side of said car without any sufficient guard or protection to prevent her, as such passenger, from falling, or being thrown from said car, by its violent motion or shock. "Which said insecure and defective condition of said car directly contributed to cause the injury and death of plaintiff’s wife as aforesaid.
“And for another assignment of negligence the plaintiff avers that at the time of said injury and death of his wife, defendant’s track on which said car was running was insufficiently ballasted and rough, and unsafe for the passage of vehicles, or ears thereon, by reasons of its causing the car to run rough, sway and sustain jerks and shocks, when the car attained high or even ordinary speed, which rendered the position of plaintiff’s wife upon said seat very dangerous, and made it probable that she would be thrown from said car by said ear running at a high or even ordinary speed. Yet with such condition of said track existing, defendant’s servants in charge of said car, received plaintiff’s wife as such passenger upon said seat, and, with gross negligence, caused said car to be run at a high speed and said car to sustain shocks and lurches, whereby plaintiff’s wife was thrown from said car and injured, and died as aforesaid.
“That by the death of his wife caused as aforesaid, an action has accrued to the plaintiff to sue for and recover the sum of five thousand dollars according to the statute in such cases provided, for which sum he prays judgment.”

The amended answer of defendant to the petition was a general denial, and a plea of contributory negligence on the part of the deceased:

(a) In that she voluntarily rose from her seat in the car while it was in motion, and while so voluntarily standing, and placing herself in a position of peril, fell or was thrown from the car.
(b) In that she voluntarily got off the car while it was in motion, and before defendant had time or opportunity to stop the same, and so sustained the injuries causing her death.

The evidence on the part of the plaintiff tended to show the following facts:

Plaintiff’s wife and three children, aged 9, 11 and 14 years respectively, were received on defendant’s west-hound car on Delmar avenue, at the intersection of Hamilton and Delmar avenues, in the city of St. Louis, on the 18th day of May, 1901, their destination as passengers on said car being Delmar Garden, about half a mile beyond the city limits, in St. Louis county. The car was crowded, and at about the fourth or fifth seat from the rear the deceased and her children were received as passengers. Two large men occupied the same seat with the deceased and her three children, and it would appear that either the seat was not sufficiently large to accomodate all six occupants, or that the two men appropriated a larger share of the seat than necessary, as the deceased, who occupied a position on the extreme end of the seat on the north side, could find support thereon for only about one-half of her body. This half-sitting posture she occupied in the presence of the conductor, and whilst so sitting, as the car was running at a speed of from 20 to 25 miles an hour, the hat of deceased blew off, there being a strong wind blowing, and as she turned about to catch her hat she lost her balance, because of her insecure position and the swaying of the car, and fell or was thrown from the car, sustaining injuries from which she died.

The car in which deceased and her children were passengers was an open summer car, with seats running cross-wise, the south side of the car as it ran west being closed and protected against ingress or egress, and passengers boarded the car by means of a foot-board attached to and extending along the side of the car. This car, it appears, had reversible seats, which' turned upon pivots about the longitudinal center of the seats, so that the seated passengers could face front when the car changed its direction. The pivot upon which the back of the seat turned was fastened to an upright stanchion which would be on the outside of and afford protection to a person occupying an ordinary position on the end of the seat, but it would appear from plaintiff ’s evidence that owing to the cramped position of the deceased she had not the advantage of the protection afforded by the stanchion but was compelled to sit with her back thereto, with nothing on the outside to protect her or prevent her falling off.

There was a dispute of fact as to the speed of the car at the time of the accident and as to how deceased left or fell off the car. Plaintiff’s evidence, as given by the three children who were with their mother, was that the hat of deceased blew off, and as she turned to the left to catch it she was thrown off by a lurch of the car. One of the children testified that there was a jolt at the time, as if the car ran over a rock. This evidence was corroborated to some extent by witness Bender, who testified that he heard an exclamation and instantly saw deceased fall from the body of the car. Another witness testified much to the same effect.

The evidence for the defendant tended to prove that deceased, after her hat fell off, got down on the step or foot-board, stepped or jumped off the car, and that she fell backwards, her head striking the ground, and was killed by the fall. There was no evidence that deceased made any complaint to the conductor of the car or to anybody else of her alleged insecure position on the car or made any effort to secure a better seat.

At the close of plaintiff’s evidence and again at the close of all the evidence, defendant asked an instruction in the nature of a demurrer to the evidence, which was refused, and defendant saved an exception. Defendant contends that the action of the court in refusing said instruction was error for which the judgment should be reversed, as there was no substantial evidence offered by the plaintiff to take the case to the jury. While the testimony was conflicting upon practically all of the material issues in the case, the evidence upon the part of the plaintiff tended to show that, owing to the crowded condition of the car in which she was a passenger, Mrs. Yan Horn was compelled to occupy a seat which the conductor of the car must have known was unsafe, in that she had to sit upon the end of the seat in front of the upright stanchion and forward of .the side support of the seat, so that there was nothing to prevent her from falling off the car. It was the conductor’s duty to see that the deceased had a seat reasonably safe and secure, and knowing, as he must have known, her position to be unsafe, it was his duty to control the running of the car with a degree of care proportioned to the danger to which deceased was exposed by reason of her insecure position on the seat prior to and at the time of the accident. As was said by Valliant, J., in Parks v. Railroad, 178 Mo. 1. c. 116: “In this case the carrier knew the position the passenger had taken and assented thereto, and undertook to carry him in that position. We say this because the motorman saw him there and warned him that it was a position of danger, and the conductor saw him there, and without warning and without remonstrance asked him for his fare and received it. If that had been a position of such danger that the carrier was unwilling to- assume the duty of carrying the plaintiff therein the carrier had the right to require the plaintiff to leave the car. It was an unusual position, one involving more than usual risk, and the carrier had the right to refuse to carry him in that position.”

We fully agree with the contention of defendant that when a petition charges negligence specifically, as in the case at bar, the acts, or some of them, constituting negligence must be proven, and unless proven a verdict for the plaintiff cannot be permitted to stand, even though the petition be founded on the relation of carrier and passenger; but we are unable to concur in the contention that there was a failure of proof with regard to the charge of negligence contained in the first assignment of negligence in the petition.

It is true that there was no evidence that the car was running at a violent and reckless rate of speed at the time of the accident, as alleged, but it is not necessary to plaintiff’s recovery thát such should have been the case. If the seat which deceased occupied at the time of the accident was unsafe and insecure, the conductor will be presumed to have known it, and it cannot be held that plaintiff is not entitled to recover because the evidence does not show that the cars at the time were running at a rapid and reckless rate of speed. The primary cause of the accident would seem to have been the insecure and dangerous position deceased occupied on the car, when considered in connection with the swaying of the car while running at the rate of twenty miles an hour, or at the ordinary rate of speed; so that it makes no difference, we think, that there was no evidence that the car was running at a high and dangerous rate of speed at the time of the accident, for an ordinary rate of speed was, under the circumstances, dangerous.

With respect to the second and third assignments of negligence in the petition, defendant contends that there was -no evidence to sustain them; but we are unable to concur in this view. Without setting out the evidence in detail, it was, we think, sufficient to take the case to the jury.

It is claimed for defendant that the court erred in refusing defendant’s instruction number 5, as asked, and then giving it in its amended form. The instruction is as follows:

“If the jury believes from the evidence that Mary Yan Horn while a passenger on defendant’s car of her own volition got off said ear while the same was in motion, and that in consequence of her own act in getting off of said ear while it was moving she was thrown to the ground and sustained injuries of which she after-wards died, then the verdict must be for the defendant, even though the jury may further believe that the car had not sufficient guards to the seats, or was unduly crowded, or was running" at an unusual rate of speed, or that the track was rough and caused jerks and shocks of the car run on the track of said railroad, unless you further believe from the evidence that the crowded condition of the car, or the insufficiency of the guards on the seats, or the running at an unusual rate of speed, or that the track was rough and caused jerks and shocks in said ccur, or all combined, was the proximate cause of the injury.”

The amendment by the court to this instruction consists of that part which is in italics.

This instruction, in its original form, presented the law of the defense correctly, and should have been given if the same theory of the defense was not embodied in instructions three and four given at the request of the defendant. If Mrs. Van Horn stepped off the car while it was running she was guilty of negligence contributing to her injury, and the plaintiff could not recover, notwithstanding the fact that the car may at the time have been running at a high and dangerous rate of speed. The court, however, took a different view of the matter, and neutralized the force and effect of said instruction by adding thereto the words, ‘ ‘ Unless you further believe from the evidence that the crowded condition of the car, or the insufficiency of the guards on the seats, or the running at an unusual rate of speed, or that the track was rough and caused jerks and shocks in said car, or all combined, was the proximate cause of the injury,” when neither one, nor all of the facts combined, justified deceased in leaving the car while it was running. Plaintiff, however, contends that the third and fourth instructions given on the part of defendant were substantially the same as that under consideration, and that, therefore, there was no error in modifying said instruction number five. Instructions three and four are as follows:

‘ ‘ 3. While it is the duty of a carrier of passengers to use the greatest care to prevent its passengers from sustaining personal injuries, and to protect their lives, yet the passengers are also bound to exercise ordinary care so as to not place themselves in perilous positions, or do any act which might endanger their safety; so, in this case, it was the duty of the defendant to use the greatest care to prevent the said Mary Van Horn from sustaining personal injury and to protect her life, yet if the jury believe that the said Mary Van Horn, without the knowledge of the conductor or motorman in charge of said car, or before they could interpose to prevent her doing so, voluntarily placed herself in a position of peril where she would be likely to be thrown from said car, or if she voluntarily got off of the said, car while it was in motion, before said conductor or motorman could interpose to prevent her from doing so, and that by reason of being thrown or getting off said car under such circumstances, she was thrown to the ground and sustained injuries of which she after-wards died, and that she would not have sustained such injuries had she not voluntarily placed herself in such perilous position, or voluntarily got off the car while it was in motion, then her own conduct was the direct cause of her death and plaintiff cannot recover.
“4. If the jury believes from the evidence that Mary Van Horn was seated on defendant’s car, and that, before defendant’s employees in charge of said car could interpose to prevent her, she voluntarily arose from, her seat while the car was in motion at a point on defendant’s railroad which was not a usual stopping place for said car, and voluntarily got off of said car before defendant’s said employees could interpose to prevent her, and in getting off of said car she was thrown to the ground and sustained injuries of which she afterwards died, and that she would not have sustained such injuries had she not attempted to leave said car while it was in motion, then such acts of said Mary Van Horn were negligent on her part, and plaintiff cannot recover.”

These instructions are based upon the theory that if Mrs. Van Horn voluntarily placed herself in a position of peril; or voluntarily left the car, without the knowledge of the conductor or motorman in charge of the car, or before they could interpose to prevent her, the company was not liable, while the fifth instruction, as asked by defendant, told the jury that if Mrs. Van Horn, “of her own volition got off said car while the same was in motion, and in consequence of her own act in getting off said car while it was moving she was thrown to the ground and sustained injuries of which she afterwards died, then the verdict must be for the defendant, ’ ’ and this, too, whether or not the conductor or motorman knew or might have known that she was in the act of getting off the car, or whether they took any steps to prevent her doing so. That the instructions are bottomed upon different theories, and that the third and fourth instructions given at the instance of defendant do not clearly cover the point presented by the fifth instruction, as asked by defendant, is, we think, quite plain.

Defendant’s chief defense was contributory negligence on the part of Mrs. Van Horn, and it had the right to have that question sharply presented to the jury.

For the error of the court in refusing the fifth instruction asked bj^ defendant, the judgment is reversed and the cause remanded.

All concur.


source: Caselaw Access Project

author: GANTT, J.

license: Public Domain

text:
    MATLOCK, Appellant, v. WILLIAMSVILLE GREENVILLE & ST. LOUIS RAILWAY COMPANY.
    Division Two,
    July 3, 1906.
    1. NEGLIGENCE: Child: Emancipation. The right of the parent to recover damages for the negligent killing of his minor child in no sense depends upon the emancipation of the child by . the parent prior to the entering of the child into defendant’s employment. The parent’s right to recover is not dependent upon services which the deceased child might have rendered to his parent.
    2..-: -: Age: Misrepresentation. The fact that a minor applicant for employment untruthfully represented himself to be of age in order to. secure employment and that such misrepresentation was believed by his employer, will not bar the min- or servant from recovering for injuries which the employer negligently inflicted upon him.
    3. -: -: -: -: Transmitted Action. When a minor is negligently killed by his employer, the fact that the boy untruthfully represented himself to be of age in order to obtain employment, and ,that the employer accepted his employment relying upon his representation, will not bar a suit by the boy’s father to recover the damages allowed him by the statute for the negligent killing of a minor child.
    4. -: -: -: -: Estoppel. Nor is the action for damages by the boy or parent in such case barred by estoppel because of untruthful representations as to his age in order to obtain employment and because his employer relied thereon and would not have given him employment had he known he was a minor. The - action is one of tort, and does not arise out of a violation of contractual relations. The plea in estoppel in such case means that the employer would not have employed the boy had he known he was a minor because he could not then have negligently killed him.
    5. APPEAL: No Index to Abstract: Dismissal. Where the only objection to appellant’s abstract was a failure to index it, and that defect he supplied before the motion to dismiss the appeal was heard, and that motion was then overruled, subsequent assaults on the abstract are out of time.

      Appeal from Wayne Circuit Court. — lion. Frank R. Bearing, Judge.
    Reversed and remanded.

      O. L. Munger and G. M. Hay for appellant.
    (1) The case falls under section 2864, Revised Statutes 1899. Miller v. Railroad, 109 Mo. 361; Sullivan v. Railroad, 97 Mo. 113; Rinard v. Railroad, 164 Mo. 270. (2) The right to bring an action of this sort is founded upon the relation of parent and child and not that of master and servant; it is the right of the father and mother or father or mother to recover damages which the son might have recovered had he survived the injury. Hennessy v. Brewing Company, 145 Mo. 104; Crockett v. Transfer Company, 45 Mo. 564; Proctor v. Railroad, 64 Mo. 1.12; Sharp v. National Biscuit Company, 179 Mo. 553. (3) This section, as well as being compensatory, is of a penal or police nature, and can, without objection, subserve both purposes at one and the same time. Philpott v. Railroad, 85 Mo. 164; Marsh v. Railroad, 104 Mo. App. 583. (4) “The right to recover is, therefore, not made to depend upon the services which the deceased could have rendered to the persons suing. The emancipation of the son by the parent if alleged and proved constitutes no defense.” Philpott v. Railroad, supra.

      Gamble, Petherbridge 3 Taylor for respondent.
    The giving of the instruction complained of did not constitute error. 11 Am. and Eng. Ency. Law, 421, 427, 428, 431.
   GANTT, J.

This is an action brought by Jason L. Matlock against the defendant railway company for damages to the amount of $5,000, under section 2864, Revised Statutes 1899, for the killing of plaintiff’s minor son.

The deceased was at the time of his death eighteen years and eight months old, and unmarried. The plaintiff is his sole surviving parent. The defendant is a railroad company owning and operating a line of railroad in Wayne county, Missouri. Deceased at the time of his death and for two weeks prior thereto, was in the employ of the defendant company as a brakeman on a log train running out to the woods from Greenville. While at his post of duty on said train, on the 24th day of April, 1901, he was killed, and this action is instituted for the damages arising to his father from his death.

There was evidence tending to show that the death of the son of plaintiff was the result of negligence and unskillfullness of the defendant’s conductor in charge of the train, but it is unnecessary to set forth the evidence on this point for the reason that the only point alleged by plaintiff on this appeal is the alleged error of the court in giving the following instruction:

“The court instructs the jury that if you believe from the evidence that the son of plaintiff fraudulently represented himself to be twenty-one years of age in order to secure employment as a brakeman on defendant’s railroad, and further find from the evidence that prior to his employment on the railroad, plaintiff had permitted him to be employed by the lumber company at Greenville, and had permitted him to receive his wages for such work without objection, and if you further find the defendant’s superintendent believed the statement and representation of said son of plaintiff that he was of age, and further find that plaintiff learned of such before the death of his son and made no objection to said employment by defendant railroad company, then in that event, the plaintiff is not entitled to recover. ’ ’ -

There was evidence tending to prove that the deceased Jason Matlock did represent himself to be twenty-one years of age for the purpose of securing employment from the defendant railroad, and that this representation was believed by the defendant’s superintendent. There was also evidence that prior to his employment by the defendant, the deceased worked for the IIolliday-Klotz Land & Lumber Company, and received a greater part of his wages therefor without any objection on the part of his father, the plaintiff herein. There was evidence also that the plaintiff learned of his son’s employment as brakeman about four or five days before the latter’s death, and in the interim made no objection to the same.

This action is predicated on section 2864, Revised Statutes 1899, which provides that: “Whenever any person shall die from any injury resulting from or occasioned by the negligence, unskillfulness or criminal intent of any officer, agent, servant, or employee whilst running, conducting or managing any locomotive, car or train of cars . . . the corporation, individual or individuals in whose employ any such officer, agent, servant ... or employee shall be at the time such injury is committed, or who owns any such locomotive . . . at the time any injury is received resulting from or occasioned by any . . . unskillfulness, negligence or criminal intent above declared, shall forfeit and pay for every person so dying, the sum of five thousand dollars, which may be sued for and recovered . . . if such deceased be a minor and unmarried . . . by the father and mother, who may join in the suit ... or if either of them be dead, then by the survivor.”

I. It is obvious that by this instruction the court directed the jury to pass upon issues entirely separate from the question of negligence charged in the petition, and made it possible for the jury to reach a verdict against the plaintiff without taking into consideration any other testimony than that bearing directly upon the questions of misrepresentation as to his age by the deceased or his emancipation by the plaintiff. If the jury believed that the plaintiff had in legal effect emancipated his son, and that the deceased had falsely represented himself to the defendant superintendent to be twenty-one years old for the purpose of securing employment, then the plaintiff could not recover, whatever the jury might have found as to the defendant’s conduct towards the deceased. The issue of negligence was practically eliminated from the case. .That this instruction, in so far as it was predicated upon the emancipation of plaintiff’s son by the plaintiff as a defense to this action was erroneous, was settled by this court in Philpott v. Railroad, 85 Mo. 164. The right to recover is not made to depend upon services which the deceased could have rendered to his father. As said by Judge Black in the Philpott case, the statute as well as being compensatory is also of a penal and police nature. [King v. Railroad, 98 Mo. 235.]

Did the misrepresentation that the plaintiff’s son was twenty-one years old bar the father’s action? The established rule in this State is that the act under which this suit is brought was designed to transmit a right of .action which but for the section would have ceased to exist or would have died with the person; that is, when a person dies from one of the acts defined in the statute which would have entitled such person to sue had he lived, such cause of action may be maintained by certain representatives of the deceased notwithstanding the death of the party receiving the injury. [Proctor v. Railroad, 64 Mo. 1. c. 119 and 120.] The right to bring an action of this sort is founded upon the relation of parent and child and not that of master and servant. It is the right of the father in this ease to recover damages which his son might have recovered had he survived the injury. [Hennessy v. Bavarian Brewing Co., 145 Mo. 104.] The large question then involved in this proposition is, would the plaintiff’s son have bgen barred from recovery had he survived the accident; in other words, will the fact that a minor applicant for employment untruthfully represents himself to he of age in order to secure employment and such representation is believed by his employer, bar him from recovering from any and all injuries which his employer negligently may inflict upon him? Will the employer be heard in a court of justice to say that his negligence only injured the boy when he thought he was injuring a man? It may be conceded for the sake of argument that the boy owing to his representation that he is a man is only entitled to a man’s protection and not to the higher duty which his employer would owe to a minor, but surely it cannot be said that the boy, despite his misrepresentation, is not entitled to some protection. Upon what principle can it be said that if the master on account of his negligence would be liable to his servant if he was a man, he should entirely escape all liability because his servant was only a boy, and had represented himself to be a pian? If the defendant had no right negligently to kill a man, certainly it had no right to kill a boy by the same negligence because it believed him to be a man. But the contention is that if the plaintiff’s son had been an adult, the statute would give no right to the plaintiff, his father, to recover, and owing to the misrepresentation, the plaintiff is estopped from asserting that his son was a minor. Bluntly stated then this contention would amount to this: if the defendant had known that plaintiff’s son was a minor it would not have employed him, because it could not then have negligently killed him without being liable over to his parent.

The exemption claimed rests only on a plea of estoppel. To constitute an estoppel in pais there must be, first, a representation inconsistent with the evidence proposed to be given or the claim offered to be set up; second, action by the other party upon such statement; third, an injury to the party acting upon the representation by allowing tbe representation to be disproved. All that tbe misrepresentation of tbe deceased led defendant to do, was to employ Mm as a servant. It is not asserted that the boy in any way did not faithfully perform his contractual duties. No breach of his contract is involved in this case. It is an action of tort. At common law, “even the fact that the other party was induced to enter into the contract by the infant’s misrepresentation that he was of age, would not estop the infant from afterwards repudiating it though he might be liable in tort for Ms fraud.” [16 Am. and Eng. Ency. Law (2 Ed.), 291, 292.] Conceding that defendant would not have employed plaintiff’s son if he had not misrepresented his age, and. that it acted upon his representation and employed him and put him to work as an adult, still this will not meet the contention of defendant or justify the instruction, because defendant can only assert that relying upon the minor’s misrepresentation it proceeded to do some act which was lawful for it to do, not that it proceeded negligently to kill the boy, as it would have no right to kill a man servant negligently. Moreover, this is the father’s action and he did nothing to estop him.

We are of opinion that the instruction was bad on both propositions, that of emancipation and of misrepresentation. Neither affords defendant any exemption for the negligence alleged if it was guilty of it. It follows that the giving of this instruction was an error for which the judgment must be and is reversed.

The defendant’s brief is devoted almost wholly, if not entirely so, to the insufficiency of the plaintiff’s abstract. We ruled on those matters orally. We repeat that the only objection made by defendant to the abstract in the first instance was the failure to index it. Plaintiff supplied that before the motion was heard and that motion was overruled. Plaintiff then of hi's own motion supplied other defects. The subsequent assaults on the abstract were wholly out of time and we see no reason for changing onr rulings on the sufficiency of the abstract, though we in no manner approve of the style of it.

Judgment reversed and cause remanded.

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


author: BITRGESS, P. J.

text:
    KLAUBER v. SCHLOSS et al., Appellants.
    Division Two,
    July 3, 1906.
    1. FRAUDULENT CONVEYANCE: Insolvent Vendor. If a sale of property is made with the intent to either hinder or delay creditors, it is fraudulent as to them whether the vendor be solvent at the time of the sale or not.
    2. -: Vendee as Party. Where the debt to secure which a deed of trust was made, was pretended and not bona-fide, the vendee knew that, and by accepting the provisions of the deed of trust the vendee became a party to its fraud.
    3. -: -: Adequate Consideration. Where the deed of trust was, made with the actual intent on the part of the maker to hinder, delay or defraud his creditors, especially the plaintiff, and the eestui que trust knew the purpose of the transaction and was a party thereto, the deed of trust is void as to such creditors; and it makes no difference, in such case, what the consideration for the deed of trust was, or whether it was adequate or inadequate.
    4. -: How Shown. Fraud is never to be presumed, but it is not necessary that it be proved by direct testimony. It may be shown by facts and circumstances.
    5. -: -: Circumstances. The cestui que trust, who lived in the same house with the mortgagor and worked in what was claimed to be his store, testified that she was to receive $10 per week for her services and that he owed her $280 on that account; and that besides, she had, at times she could not fix, given him $50, $75, $100 and $25, but that she kept no memorandum of her account with him and kept no record of any kind. She further testified that she kept what money she received in the store, and the mortgagor kept what money he received, and they put the money together at the end of the day, and she took it to her room. He made her a note for $5,000 and a deed of trust to secure the note, and she testified that she relied on the deed of trust as security for what he owed her. He at divers times stated that the property was his, and that he could get it back at any time; that the deed of trust was only a matter of form, and that he had executed it only to keep the creditor whose judgment the plaintiff as his surety had to pay, from getting anything from him. Held, that these were sufficient facts upon which to base a finding that the deed of trust was fraudulent, that it was made to hinder or defeat creditors, and that the cestiá que trust knew that to be its purpose.
    6. -: Fictitious Consideration. If a part of the consideration for a conveyance is fraudulent or fictitious, the entire transaction is fraudulent as against creditors.
    7. -: Action in Case of Mortgaged Property: Sold and Excess Adjudged to Creditors: Alternative Prayer. S. owned real estate worth $3,500 or $4,000 and mortgaged it to H., trustee, to secure a valid indebtedness of $1,300. Thereafter judgment for $227.20 was recovered against S. in a justice’s court, and he appealed, and plaintiff, at his request, became surety on his appeal bond. Thereupon, S. made a second fictitious deed of trust on the property for $5,000 to B., and thereafter plaintiff was compelled to pay the judgment against S., and then sued him for the amount so paid, and recovered judgment, and execution issued, and nulla dona was returned. Then H. foreclosed the first deed of trust, and B. bid in the property for $3,800, and demanded that, after paying the $1,300 note and costs, the balance of her bid be credited on her note of $5,000. Plaintiff brings suit in equity, asking that the $5,000 deed of trust be held to be fraudulent, that either B. be compelled to pay the $3,800 to H., and that H., after satisfying the $1,300 note and costs, be directed to first pay plaintiff’s judgment and costs and the costs of this suit, or if B. will not perform her bid, that the sheriff sell the property, satisfy the first deed of trust, then pay plaintiff, and distribute the balance according to the interest of the parties. The decree was according to the prayer of the petition. Held, that the decree should be upheld.
    Appeal from St. Louis City Circuit Court. — Row. Jesse, A. McDonald, Judge.
    Affirmed.

      Christian K. Schneider for appellants.
    (1) The court below having found that the deed of trust to defendant Braske was given to secure a bona-fide debt, it was error to set it aside unless actual fraud on part of defendant Braske was shown. Nat. Tube Works v. Ring, 118 Mo. 365; Bank v. Worthington, 145 Mo. 99; Ridge v. Greenwell, 53 Mo. App. 479; Runbolds v. Parr, 51 Mo. 592; Steinwender v. Creath, 44 Mo. App. 363; Peering v. Collins, 38 Mo. App. 90; State v. Gritzner, 134 Mo. 525; Bank v. Russey, 74 Mo. App. 656; Schawacker v. Ludington, 77 Mo. App. 415. (2) It being necessary to prove actual fraud on part of the defendant Braske to invalidate her deed of trust, a petition which fails to charge such fraud against her, and which fails to charge that the grantor of such deed at the time was insolvent, fails to state a cause of action against her. This is elementary. (3) The burden of proving fraud is on the party alleging it. Authorities under point 1; Bank v. Worthington, 145 Mo. 100. (4) Statements made by the grantor in a deed assailed as fraudulent, after the delivery of the deed, in the absence of the grantee, is incompetent evidence against her. Stam v. Smith, 183 Mo. 464; Mueller v. Weits, 56 Mo. App. 36. (5) A deed of trust for part present indebtedness and part future advances its valid. Smith v. Wallace Shoe Co., 63 Mo. App. 326; Foster v. Reynolds, 38 Mo. App. 553; Mapes v. Burns, 72 Mo. App. 411.

      Lee W. Grant and Pierre B. Kennedy for respondent.
    A conveyance may be for a valuable consideration, and yet fraudulent and void as to creditors. Murray v. Cason, 15 Mo. 378; Johnson v. Sullivan, 23 Mo. 474; State ex rel. v. Purcell, 131 Mo. 318. A consideration wholly disproportionate to the value of the property and paid to give color to the transaction is not a valuable consideration. Lionberger v. Baker, 88 Mo. 447; Imhoff & Co. v. McArthur, 146 Mo. 371. Although it devolves upon a party alleging fraud to prove it, yet the requisite proof need not be of a direct or positive character, but may be gathered from surrounding circumstances indicative of a design to hinder, delay or defraud creditors. Burgert v. Borchert, 59 Mo. 80; Albert v. Besel, 88 Mo. 154; Alberger v. White, 117 Mo. 361; Gordon v. Ismoy, 55 Mo. App. 323. Where a party makes a conveyance in alleged payment of a very vague and indefinite claim, it is a fair circumstance to be considered in determining the bona fides of the conveyance. Mason v. Perkins, 180 Mo. 709. Neither insolvency of the'vendor nor knowledge thereof by the purchaser is a necessary ingredient in a fraudulent sale. Rupe v. Alkire, 77 Mo. 641.
   BITRGESS, P. J.

On the 24th day of December, 1902, there was filed in the office of the clerk of the circuit court of the city of St. Louis, a petition by plaintiff, which, leaving off the formal parts, is as follows:

“Plaintiff for cause of action states that heretofore, to-wit, on or about the 9th day of November, 1899, he signed and executed as surety for Stephen Schloss, defendant, a certain appeal bond in an appeal from a judgment rendered against said Stephen Schloss by Frederick A. Cline, a justice of the peace in and for the Ninth district of the city of St. Louis, Missouri; that by reason of said contract of - suretyship plaintiff was compelled to pay and did pay said judgment and costs, all amounting to $227, for which said amount he recovered judgment against the said Stephen Schloss on or about the 10th day of May, 1902, in the justice court in and for the Fifth Justice District of the city of St. Louis, Missouri, before James T. Spaulding, justice.
“Plaintiff further states that heretofore, to-wit, on or about the 27th .day of January, 1896, defendant Schloss was the owner in fee simple of the following described real estate, situated in the city of St. Louis, Missouri, to-wit: A lot of ground in block No. 38, beginning at the intersection of the north line of Valentine street with the west line of a public alley running' north and south through said block; thence north along the west line of said alley 86 feet; thence west and parallel with Valentine street 42 feet 6 inches to the east line of a private alley, thence south along the east line of said private alley 86 feet to the north line of Valentine street; thence east along the north line of Valentine street 42 feet 6 inches to place of beginning, together with all buildings, appurtenances, etc.
“That on or about the said 27th day of January, 1896, the said Stephen Schloss conveyed said property as hereinbefore described to defendant August Gehner, in trust, to secure an indebtness of $1,300, to one Frank Hiemenz; that thereafter, to-wit, on or about the 16th day of July, 1901, said Stephen Schloss executed a. second deed of trust to the Missouri Trust Company, to secure an alleged indebtedness of $5,000 to defendant Veronicka Braske.
“Plaintiff further states that on or about the 18th day of September, 1902, defendant August Gehner, acting under and by virtue of said first deed of trust, sold the said property at public sale and said property was bid in by defendant Veronicka Braske for the sum of $3,800; that said Veronicka Braske has failed and refused and still refuses to complete said sale by paying the full sum of $3,800 to said August Gehner, unless she can get credit for the amount of the surplus of said $3,800 over and above so much as may be required to pay off the indebtness of $1,300 on said first deed of trust, together with such costs and interest as may have accrued, on her second deed of trust.
“Plaintiff further alleges that said second deed of trust on said property herein before described executed to secure an alleged indebtedness to defendant Yeronicka Braske, was fraudulent and without consideration and given by defendant Sehloss for the purpose of avoiding liability on said judgments of Justice Cline and the appeal bond executed therein, and for the purpose of defrauding the plaintiff in that said case, to-wit, the Drayage Transfer Company, and defeat the payment of said judgment by him, and for the further purpose of defrauding this plaintiff by compelling him to pay the said judgment of Justice Cline against said Sehloss.
“Plaintiff further states that both defendant Sehloss and Veronicka Braske are insolvent; that he is without remedy at law and except by the interposition of a court of equity he must remain totally remediless in the premises and his said judgment must remain wholly unpaid.
“Wherefore, plaintiff prays for a decree directing that in the event that defendant Yeronicka Braske completes said sale and pays said Gehner said sum of $3,-800 said Gehner be required, after paying such amount as may be required to discharge the indebtedness of said first deed of trust and expenses of the sale, to pay into court so much of the surplus as may be necessary to pay plaintiff’s judgment and costs, as well as the costs of this suit, or, should said Yeronicka Braske fail to complete said sale and pay said sum of $3,800 to trastee August Gehner, then plaintiff prays for a decree declaring said second deed of trust inoperative and void as fraudulent and without consideration, and for an order that said property be sold by order of this court, subject to the first deed of trust and the proceeds of said sale, or so much thereof as may be necessary to be applied to the payment of plaintiff’s said judgment and costs, as well as the costs of this suit and such other and further relief as the court may deem meet and just in the premises and the circumstances of the case may require. ’ ’

By his amended separate answer defendant Schloss denied generally the allegations of plaintiff’s said petition.

The answer of defendant August Gehner is as follows:

“That on or about the 27th day of January, 1896, the property mentioned, referred to and described -in the petition, was conveyed to him, as trustee, to secure an indebtedness of $1,300 to one Frank Hiemenz, and duly recorded in the office of the recorder of deeds for the city of St. Louis, Missouri.
“Further answering, this defendant denies each and every other allegation in said petition contained. ’ ’

Defendant Veronicka Braske answered, admitting that on the 27th day of January, 1896, the property in question was conveyed to her co-defendant, August Gehner, in trust, to secure an indebtedness of $1,300 to one Frank Hiemenz; that thereafter, to-wit, on or about the 16th day of July, 1901, said property was conveyed to the Missouri Trust Company as trustee, to secure to her the sum of $5,000, as per negotiable promissory note in said deed of trust mentioned and described. This answer charges that both said deed of trust and the indebtedness secured thereby remain due and unpaid and are a lien on said property. It then denies all other allegations in the petition.

Upon the hearing of the cause the court made a finding of facts and rendered the following judgment and decree:

“Now upon this nineteenth day of May, A. D., 1903, this cause having come on for hearing on the pleadings and proofs adduced, parties plaintiff and defendant appearing, and the court having been duly advised in the premises, and having duly considered the same, doth find the issues joined in favor of the plaintiff ; and the court doth further find that defendant Stephen Schloss is indebted to plaintiff on his said judgment as alleged in his bill in the sum of $227.20', and costs in said case accrued, amounting in all to $269.40, none of which has been paid, and the court doth further find that said deed of trust executed and recorded by defendant Stephen Schloss, on or about-the 16th day of July, 1901, to secure a pretended indebtedness of $5,000 to defendant Veronieka Braske was fraudulent and void as against this plaintiff.
“ Whereupon, it is by the court ordered, adjudged and decreed, that the said deed of trust executed aforesaid be set aside and for naught held and the same is hereby declared nugatory and of no effect, and it is further- ordered, adjudged and decreed that in the event that the defendant Veronieka Braske fully perform the contract of purchase of said property heretofore made with defendant August Gehner, trustee, by paying the full amount'of the purchase price to said defendant Gehner within ten days from the date of the entry of this decree, said Gehner after satisfying the indebtedness secured by the first deed of trust, together with the costs incident thereto, is hereby directed and ordered to apply the surplus remaining in his hands, first, to the payment of plaintiff’s said judgment and costs, together with the costs of this suit, and the remainder of said purchase price, if any there be, to be disposed of by said defendant Gehner as the parties in interest may direct.
“It is further adjudged, ordered and decreed that in the event said defendant Veronieka Braske fails to fully perform the said contract of purchase made with said defendant August Gehner, within ten days from the entry of this decree, then said purchase by Veronieka Braske, be and hereby is declared abandoned, forfeited and nugatory, and the sheriff of the city of St. Louis is hereby ordered and directed to sell said property at the court house door, in the city of St. Louis, after giving twenty days notice in some newspaper published in said city, said property to be sold subject to the first deed of trust, executed to defendant Gehner; and the said sheriff of the city of St. Lonis is further ordered and directed to apply the proceeds of said sale to the payment of plaintiff’s said judgment and costs, together with the costs of this suit and dispose of the residue of said proceeds as the parties in interest may direct.”

In due time defendants filed motions for a new trial and in arrest, and both being overruled, they appeal.

The salient facts as disclosed by the record are substantially as follows:

Sometime in November, 1899, defendant Stephen Schloss was involved in a lawsuit with the Drayage Transfer Company, which suit was tried before a justice of the peace, who rendered judgment against Schloss. He appealed from the judgment, and Klauber, the plaintiff herein, at the request of Schloss, became his surety on the appeal bond required by the justice; but after the appeal was perfected Schloss abandoned the case, the consequence being that Klauber was compelled to make the best settlement he could with the said Drayage Transfer Company. Klauber sued Schloss for the amount paid out by him in the settlement of said suit, and Schloss filed a counterclaim for a certain sum growing out of former business transactions between them, but Klauber recovered judgment against Schloss for $227 and costs, upon which judgment execution was issued and returned nulla tona.

On July 16, 1901, Schloss executed to defendant Veronicka Braske a deed of trust on certain property on Valentine street, St. Louis, to secure an alleged indebtedness of $5,000 and this suit is for the purpose of attacking and having declared as fraudulent, as against plaintiff, said deed of trust.

It also appears from the evidence that there was a prior deed of trust for- $1,300 on said property, and that the property was worth approximately $3,500 or $4,000. The testimony of defendant Braske was very vague and indefinite with respect to what Schloss owed her. In fact she could not fix any amount, saying that she gave Schloss, at different times, $50, $75, $25, and $100; total, $250.' She still said she gave him ‘ ‘ over $900,” hut that she made no memorandum of it and kept no record, but relied upon the deed of trust as security. Testifying further, she said that the understanding was. that she was to get the property ultimately, and would not be required to account to Schloss for any sum; that she kept no account whatever, could not tell what amounts had been loaned, and that if it came to a settlement between them, she would have no record of what was due her. It appears further in the evidence that Schloss had been using this property so as to secure credit on an apparent asset, and when he wished to avoid liability he transferred or mortgaged it. In 1882 he conveyed the property to his wife, and they subsequently executed a deed of trust thereon to defendant Gehner. His wife having died, he then executed a deed of trust on the property to secure the $5,000 indebtedness alleged to be due defendant Braske.

It also appears that Schloss at divers times stated that the property was his, ^and that he could get it back at any time; that the deed of trust was only a matter of form, and that he had executed it to keep the man Henzler (president of the Drayage Company) from getting anything from him; that the note was signed to keep people from running after him, but that the property was his own. Defendant Schloss was in the scrap iron business at No. 117 Valentine street, and he and defendant Braske lived at that place, and, according to Braske’s story, she kept the store for him, and he was to pay her $10 per week. She testified that she had $1,500 which she had received from the old country; that she had sold a store in Chicago and got about $1,200; but when closely examined, she could not tell how much she had given Schloss; and it appears, also, that she ran the business, and when she sold anything from the store she kept the money, and when he sold anything he kept the money, and they put it together at the end of the day, and she would take it to her room up-stairs.

The evidence of defendant Schloss bore principally upon his alleged claim against Klauber through a dispute in the sale of some iron. The evidence of witness Jacob was to the effect that Schloss had said a number of times that the property was his; that he simply put it in the name of defendant Braske to keep the Drayage Company and other parties from running after him; that he could get the property back whenever he wanted it, and that he promised a number of times to begin paying Klauber the money he owed him. Witness Klauber testified to much the same thing, and witness Grirardi corroborated both of them relative to this statement of Schloss.

It is claimed by defendant that the petition does not state a cause of action in that it does not allege that defendant Schloss, at the time the deed of trust was given to defendant Braske, was insolvent, nor that Braske procured said deed of trust by fraud on her part. It was ruled by this court in Rupe v. Alkire, 77 Mo. 641, that if a sale of property be made with the intent either to hinder or delay creditors, it is fraudulent as to them whether the vender be solvent at the time of such sale or not. With respect to the other contention, it is only necessary to call attention to the allegations of the petition, which substantially allege that the deed of trust executed for the benefit of defendant Braske was executed for the purpose and with the intent to defraud the creditors of Schloss.

The court found that the deed of trust given by Schloss was given to secure a pretended indebtedness of $5,000 to defendant Braske, and was fraudulent and void as .against the plaintiff. There was evidence which justified that finding. The debt being pretended and not bona-fide, she, of course, knew it, and by accepting the provisions of the deed, she became a party to the fraud. In passing upon this question, it will be noted that Schloss and Braske lived in the same building and practically operated the store together, the proceeds of each day’s sales being taken charge of by her. According to her own testimony she never received a dollar from Schloss on account of salary or her alleged loan. Under the facts disclosed by the evidence, there can be no conclusion other than that the deed of trust under consideration was made with the actual intent on the part of Schloss to hinder, delay or defraud his creditors, and especially this plaintiff, and that Braske knew all about the transaction and was a party thereto. Such being the case, the deed is void as to said creditors, and it makes no difference what the consideration really was, or whether it was adequate or not.

While fraud is never to be presumed, it is not necessary that it be proved by direct testimony, but may be shown by facts and circumstances, if sufficient; and the facts and circumstances connected with and surrounding the transaction may be inquired into and .taken into consideration by the court in passing upon the question as to whether the transaction was in fact fraudulent.

At the time the deed of trust was executed defendant Braske had worked for Schloss six or seven months, at $10 per week, the wages thus earned amounting to about $280, while the deed of trust was given to secure a pretended indebtedness of $5,000. But conceding that Schloss owed her $280 for labor, as wéll as the various sums which she claims in her evidence to have loaned him at different times, and of which she kept no memorandum, the whole falls far short of $5,000. Her story with respect to Schloss’s indebtedness to her, the manner in which it accrued, and the amounts and times, seems so improbable that it is not entitled to much consideration. Moreover, it is clear from the evidence that at least part of the claim attempted to "be secured "by the deed of trust under consideration was fictitious, as Schloss’s indebtedness to Braske at no time approximated $5,000, and it is well settled that if a part of the consideration for a conveyance of property is fraudulent or fictitious, the entire transaction is fraudulent as against creditors, and will be vitiated. [State ex rel. v. Hope, 102 Mo. 429; National Tube Works Co. v. Machine Co., 118 Mo. 365; Boland v. Ross, 120 Mo. 208; Gleitz v. Schuster, 168 Mo. 298; National Bank of Plattsburg v. Fry, 168 Mo. 492; Imhoff & Co. v. McArthur, 146 Mo. 371; Bates County Bank v. Gailey, 177 Mo. 181.]

Finding no reversible error in the record, the judgment is affirmed.

All concur.


text:
    LENNON v. ST. LOUIS & SUBURBAN RAILWAY COMPANY, Appellant.
    Division Two,
    July 3, 1906.
    1. NEGLIGENCE: Perilous Position: Stepping on Track: Stopping Car: Vigilant Watch. Plaintiff’s wife had purchased some vegatables from q, huckster’s wagon which stood from three to five feet from the street railway track, in the middle of a block, and turning to leave the wagon took one or two steps towards the track and was struck by a car running eight miles an hour. There was no obstruction between the car and her, none between her and the track, the time was daylight, and she did not look for the ear. Other cars had passed while persons were standing between the wagon and the track. It is admitted that if she had remained where she was before turning away from the wagon she would not have been struck by the car. Held, that she was not in such a perilous position as required the car to stop before reaching the huckster’s wagon; and there being no showing that the car was not stopped in the shortest time possible after the danger was discovered or could have been discovered, the company is not liable.

      2. -: -: -: -: Humanitarian Doctrine. Where the adult pedestrian was not on the track, nor so close to. it as to be in a perilous position until she suddenly stepped in front of the moving car only a few feet away, at a place where persons did not usually cross, namely, near the middle of a block, and the motorman did all he could to stop the car after her movement toward the track was begun, there is no room in the case for the humanitarian doctrine, and the company is not liable.
    Appeal from St. Louis County Circuit Court. — No». Jno. W. MeElhinney, Judge.
    Reversed.

      Jefferson Chandler, John Lionberger Davis and T. M. Pierce for appellant.
    (1) The court erred in refusing to give defendant’s instruction in the nature of a demurrer to the pleadings and evidence, which was offered by defendant at the close of plaintiff’s evidence, and again at the close of all the evidence in the ease. Davies v. Railroad, 159 Mo. 1; Payne v. Railroad, 136 Mo. 581; Zumault v. Railroad, 175 Mo. 288; Ries v. Railroad, 179 Mo. 1; Petty v. Railroad, 179 Mo. 666; Reno v. Railroad, 180 Mo. 469. (2) The court erred in submitting the last chance or humanitarian doctrine by instructions given by the court itself and by plaintiff’s instructions. Boyd v. Railroad, 105 Mo. 372; Petty v. Railroad, 179 Mo. 666; Reno v. Railroad, 180 Mo. 469; Rissler v. Railroad, 87 S. W. 578. (3) The court erred in instructing the jury that the motorman must keep a vigilant watch for people “likely to come into danger.” This instruction was too broad and is not the law. Boyd v. Railroad, 105 Mo. 372; Petty v. Railroad, supra.

      A. R. Taylor for respondent.
    (1) The evidence makes a clear case for the jury’s determination. Not only was there evidence in support of the verdict but there was strong evidence of the negligence of appellant’s motorman on appellant’s evidence. For if he saw the deceased, as he says he saw her, so near the track as to endanger her life, and also saw that she did not heed his danger signals, as he says he did, then if he ran his car without abating his speed until the instant he struck her, as he admits — and as defendant’s witness Killoren testifies —then he was negligent on the evidence given for defendant; certainly a fair-minded jury might with intelligence draw this inference. Klockenbrink v. Railroad, 172 Mo. 688; Scullin v. Railroad, 184 Mo. 707; Riska v. Railroad, 184 Mo. 192; Eekhard v. Railroad, 190 Mo. 618. (2) If the jury should believe from the evidence that she was standing engaged in bargaining for vegetables, where she must be struck by the car during all the time the car was running the 150 to 200 feet from Seventeenth street to the place of collision and in plain view of the motorman, and he did, nevertheless, run his car down upon her and kill her, then, under the general trend of judicial decision in this country, at least, the humane doctrine was properly applied. Inland Seaboard Co. v. Tolson, 139 U. S. 558; Railroad v. Ives, 14.4 U. S. 429; Keely v. Railroad, 75 Mo. 140; Kelly v. Railroad, 95 Mo. 284; Guenther v. Railroad, 95 Mo. 295; Kellny v. Railroad, 101 Mo. 75;. Reardon v. Railroad, 114 Mo! 406; Schlereth v. Railroad, 115 Mo. 101; Chamberlain v. Railroad, 133 Mo. 599; Morgan v. Railroad, 159 Mo. 275; Klockenbrink v. Railroad, 172 Mo. 687; Scullin v. Railroad, 184 Mo. 707; Rapp v. Railroad, 190 Mo. 161.
   GANTT, J.

The petition in this case in substance states that the defendant is and was at the times herein stated, a street railway company, under the laws of Missouri, operating street railway cars for the transportation of persons from one point to another in the city of St. Louis; that Wash street was one of the open pub-lie streets of the said city; that the defendant operated its street cars on said Wash street; that plaintiff was the husband at the time of her death, of Mary Lennon herein mentioned; that on the 10th day of November', 1900, at or near a place on Wash street opposite house number 1621 Wash street, plaintiff’s wife, the said Mary Lennon, was standing between a wagon on the south side of defendant’s track and the defendant’s track, engaged in buying vegetables from a huckster and in danger of being struck by defendant’s east-bound car if it should pass her; that as the plaintiff’s wife was passing from said position, the defendant’s east-bound car struck and killed her. That plaintiff’s wife was so struck and killed through the negligence and unskillfullness of the defendant’s motorman and conductor in charge of said car, in this, that they failed to keep a vigilant watch ahead of their car, and failed to stop said car in time to prevent it from striking and killing plaintiff’s wife, and in failing to give any signal by bell or otherwise to plaintiff’s wife of the approach of said car and the danger therefrom; and for another assignment of negligence, plaintiff states that at the time of the said killing of his wife, there was within the city of St. Louis an ordinance of said city, by which it was provided that motormen and conductors of said cars should keep a vigilant watch for persons on foot, either on the track or moving towards it, and upon the first appearance of danger to such person, the car' should be stopped in the shortest time and space possible, and the plaintiff avers that defendant’s said motorman and conductor before and at the time of the killing of his wife, failed to keep such vigilant watch and failed to stop said car in the shortest time and space possible, which violation of said ordinance directly contributed to cause the death of his wife as aforesaid. That by the death of his wife caused as aforesaid an action accrued to the plaintiff to recover the sum of five thousand dollars, according to the statute in such cases, for which he prayed judgment.

The answer of the defendant was, first, a general denial; second, that the injuries sustained by Mrs. Lennon were directly and proximately caused by her own thoughtlessness, carelessness and negligence, in this, that although she was then living and for a long time had lived on a street, where are laid double street car tracks, over which cars propelled by electricity constantly run in both directions, and knew that cars might be expected to pass that point at any moment, she carelessly and negligently attempted to cross- the street and street car tracks immediately in front of the approaching car in the middle of the block where it is not usual or customary for persons to cross without looking or listening for approaching cars and thoughtlessly, suddenly, negligently and unexpectedly stepped in front of the approaching car, when if she had looked or listened or had used ordinary care she could have avoided being struck thereby. The reply was a general denial.

The evidence on behalf of the plaintiff established that Mrs. Mary Lennon was the wife of Lawrence Lennon, the plaintiff, and that she was killed by a street car of the defendant’s street railway on November 10,1900; that her home was with her husband and daughter at 1621 'Wash street; that the defendant company owned and operated double tracks of its street railway on Wash street. Miss Mary Lennon, the daughter of the plaintiff, 'testified that it was not more than ten feet from the south rail of defendant’s track to the curb on the south side of Wash street and that the defendant’s cars projected about two feet outside of the rail. She testified that she had made no acutal measurements as to the projection of the street cars over the rail or the width of the street; that 1621 Wash street was about the middle of the block. She testified that she had two brothers under age at the time her mother was killed, one thirteen and the other nineteen.

Joseph Behan testified that he was a police officer of tlie city of St. Louis, and saw the accident in which Mrs. Lennon lost her life; he was standing across the street on the north side; Mrs. Lennon was buying vegetables from a peddler whose wagon was standing between the south rail of the east-bound car track and the curb, close to the curb; Mrs. Lennon was standing between the wagon and tracks; the track was from eight to twelve feet from the curb there, I cannot state exactly, I do not think it was over twelve feet, if it is that much. “Q. How far was she from the rail of the track when she was standing there talking to that man?” A. “Well, I should say that it would be a pretty close call there for anybody— a car passing and anybody standing by the side of the wagon, there would not be much room there.” “I saw the car at the top of the hill on Eighteenth street; I saw the car coming down the incline from Eighteenth street down, the car was coming down pretty fast, and there was some party on Seventeenth street put up his hand for the car to stop and it kept on going, and the old lady stepped to the left and as she did, it hit her, the fender did, and rolled her about twenty-five or thirty feet and ran over her; the car got stopped when she was in between the two trucks. The front wheel had passed over her and she was in be-teen the two trucks. I never heard any signal or anything — never heard no bell even ring. The car was coming at a pretty good clip. I cannot tell how fast it was coming, but it was coming pretty fast, faster than' an ordinary gait. The motorman started to throw on the brake or air-brake, I could not tell which it was, before it hit her. I heard the racket as the woman stepped out. I heard the thing twisting, I suppose it was the brake.” On cross-examination he stated that he had been standing there, some ten or fifteen minutes before the car struck Mrs. Lennon, having a buggy repaired; the huckster had been there about ten minutes on the south side of the street, and he had noticed a lady purchasing something from the huckster just before the accident and she had started down the street, and he first noticed Mrs. Lennon when she was at the peddler’s wagon and when the huckster had finished waiting on the first lady, he came around and was waiting on Mrs. Lennon. While he was waiting on the first lady she was standing between the front wheel and'the hind wheel on the north side of the wagon, she was facing the wagon, and as she turned away from the huckster, she turned to the northeast and just as she was stepping over the south rail, she had not made a second step, she had only to make the one step, when she was struck by the car. He did not give her any warning because he did not think she was going to get struck until the car hit her: Just before that she had been standing talking to the huckster; it looked to him as though she was purchasing something from the huckster though he did not notice whether the huckster had given her anything or not.

Walter Hast testified that he was a passenger on the rear platform of the car when it struck Mrs. Lennon, and did not see her before she was killed; his attention was called to the accident when the car made a sudden stop, he had heard no bell ring, but he had paid no attention to that; when he got off of the car he did not notice the huckster wagon.

H. C. Montgomery testified that he had been in the insurance business, but had been a motorman for the suburban street railway and was acquainted with the track of the Suburban from Eighteenth to Sixteenth street; it was down grade. He was asked, “Going at an ordinary rate of speed down that grade — you are familiar with these cars?” He answered, “Yes, sir.” “Within what distance can they stop?” and he answered, “It could be stopped in about fifty feet with the brakes or in about thirty feet with the reverse.” On cross-examination, he stated that he knew nothing whatever about the accident, did not know at what speed the car was running, what kind of a car it was, how heavily loaded or any other of the conditions surrounding the accident. It would make some difference whether the car was heavily loaded or not; a car heavily loaded would take a little bit longer to stop, not a great deal; it would take a very large car a little longer to stop than an ordinary one. He had not worked for the Suburban since 1896, he had worked for the company from about the first of May until the 15th of June, he had not acted as a motorman on any other line since then, except to run a relief on the St. Charles & Southern, one night. His experience as a motorman was confined to a little over a month in 1896.

The plaintiff also offered in evidence the ordinance known as the Vigilant Watch ordinance, article six, chapter 1760, subdivision four of the ordinances of St. Louis, which provides: *‘ The conductor, motorman, gripman, driver or any other person in charge of each car, shall keep a vigilant watch for all vehicles and persons on foot, especially children, either on the track or moving towards it, and on the first appearance of danger to such persons or vehicles, the car shall be stopped in the shortest time and space possible.”

With this evidence the plaintiff rested, and the defendant prayed the court to instruct the jury that plaintiff was not entitled to recover, which instruction was refused by the court and the defendant excepted.

The defendant on its part called the deputy clerk of the circuit court of the city of St. Louis and proved by him that the petition in this case was filed on the 10th day of May, 1901, at 1:16 p. m.

Mr. John Killoren, Jr., testified that he boarded the car that struck Mrs. Lennon at Seventeenth and Wash streets; that the car came to a full stop; that prior to getting on the ear, he noticed a huckster wagon and several parties standing in the vicinity of it. The huckster wagon was about two hundred feet east of Seventeenth street, on the south side, right along the side of the curb stone. After he got on the ear, he stood on the rear platform. When the accident hap-pended, he got off of the rear platform and the huckster wagon was about five or ten feet back of where the motorman stands. The horse was facing he thought towards the west; there was a space between the car and the wagon, he would judge, of about three or four feet; he passedbetween the wagon and the car when he went around to see Mrs. Lennon while she was under the car; her body was under the front truck. He described the stop of the car in this way: “I heard the clanging of the front bell and the car came to a sudden stop, and kinda pushed me to the rear of the car, the body of the car; I was thrown forward.” The car was running perhaps eight miles an hour before it stopped, the speed had increased until the power was suddenly shut off; the car was stopped.

Mr. O. B. Weisman testified that he was a passenger on the car and was seated three or four seats from the rear of the north side, and he noticed the motorman’s face was as white as a sheet; he jumped off of the car, went around to the front, and found Mrs. Lennon under the trucks. The huckster wagon was on the south side of the street immediately next to the curbing and between the curb and the car about five or six feet from the car. It was towards the back end of the car. On cross-examination he stated that the car stopped in about twenty-three or twenty-four feet, he thought. He heard the gong ring two or three times after the car left Seventeenth street. Other witnesses testified to the sudden stopping of the car, and to the position of the wagon being abreast of the car when it stopped.

John Hartwig testified that he was the huckster in charge of the wagon mentioned in the evidence; that his wagon was right up against the curb' stone; he had had several lady customers before Mrs. Lennon came; that she stood on the sidewalk at first on the south side of the street waiting her turn; when her turn came, she asked him for some onions, and then bought some rutabagas. She was standing at the rear of his wagon when he gave her the rutabagas and when he gave her her change; that he then turned to the sidewalk and just as he started up on the curb, he heard the brake of the car. Saw the lady must get hurt; that he ran around and saw her under the car. He testified that the space between the car track and the wagon was about five feet. He stated that when he finished giving Mrs. Lennon her change he stepped briskly to the sidewalk, and just as he stepped on the sidewalk he heard the gong and turned around and rushed right back; he ran between his wagon and the car when he went to see what had become of Mrs. Lennon. The car track was about five feet from his wagon; there was nothing between Mrs. Lennon and the ear when he turned his face to the curb; the sounding of the gong and the rattling of the brake were about the same time, he would judge; the car ran, after the brake was applied, about 25 feet; the car stopped opposite his wagon and he had to back up his horse to get out.

The motorman testified that he stopped his ear at Seventeenth street, and that when he started the track to the east was clear; the huckster wagon was standing south of the tracks nest to the curb with the horse to the east; as he approached the wagon, he rang his bell; he saw Mrs. Lennon at the back end of the wagon apparently getting her change. He had no idea of any danger until the car got within about 25 feet of Mrs. Lennon, who walked straight on the track and was struck before he could stop, his car with the hand brakes and the reverse. He did all he could to stop the car the moment he saw Mrs. Lennon step towards the track; supposed she had heard the bell he had rung; she was in no danger until she stepped on to the track immediately in front of the car. She paid no attention, but walked right in front of the car; he made a good stop.

This was the evidence substantially.

I. It is conceded by the plaintiff and established by all eye-witnesses that Mrs. Lennon was not exercising ordinary care in watching and listening for a car when she stepped on the defendant’s track. There can be no donbt whatever of the contributory negligence of Mrs. Lennon. All the testimony shows that the accident happened in broad daylight, and there was no obstruction whatever between Mrs. Lennon and the car which struck and killed her. But the contention of the plaintiff is that notwithstanding the negligence of Mrs. Lennon, the plaintiff is entitled to recover and the case was properly submitted to the jury on the theory that Mrs. Lennon in her position at the huckster wagon was in a position of imminent danger of being struck and the defendant’s motorman operating said car saw, or by keeping a vigilant watch for persons in danger or likely to come into danger would have seen, her danger in time to have avoided striking and killing her, by stopping the car in the shortest time and space practical with the means and appliances at hand.

The real question in this case is, conceding all that the witness Behan testified to, notwithstanding he was contradicted by Hartwig, the huckster, and others, as to the position which Mrs. Lennon occupied, was she in such a place of peril as to require the motorman to have stopped his car before reaching the huckster’s wagon? On this point the witnesses all agree Mrs. Lennon was standing close to the wagon for the purpose of buying some vegetables. They all agree the wagon was standing east and west and close to the curbstone. Plaintiff assumes as a substantial basis for Ms position, that the curb stone was only eight feet from the south rail of the south track of the defendant’s railroad. The burden was on the plaintiff to show that the place was one of dangerous proximity to the track and when his witnesses stated, one, Miss Lennon, that it was about ten feet, and the other, Mr. Behan, that it was between eight and twelve feet, he was not certain, but “not.over 'twelve feet, ’ ’ we think there is no fair basis for his contention that it was only eight feet. Certainly we may assume it was not less than ten feet. Conceding that the car projected two feet over the rail, and that was mere surmise, there was still an eight-foot space for the wagon and Mrs. Lennon. Now there is not a scintilla of evidence as to the width of the wagon, and we are left to the uncertain recollection of the witnesses as to the space between the wagon and the south rail, but not one of them says Mrs. Lennon would have been struck had she remained still at the point where she bought and paid for her vegetables. Behan does say it would have been a pretty close call, he thinks, but he was on the opposite side of the street and all the disinterested passengers say that there was no trouble whatever to pass between the wagon and the car, and they did so after the accident. The evidence discloses other cars had passed that wagon just before this car and the huckster’s customers were buying from him without any thought of danger. To hold that Mrs. Lennon was in a position of peril up to the time she started to recross the street after purchasing her vegetables would be a strained and unwarrantable conclusion from the evidence, and one which under the testimony we cannot accept as a predicate for our opinion. We think on the contrary the evidence establishes she was in a place of safety until she started across the track. What then were the relative positions of Mrs. Lennon and the motorman? It was broad daylight. The motorman is not charged with having run his car in excess of the ordinance, and had he been the record shows he was not running over eight miles an hour. He had come to a full stop not over two hundred feet west of the place of collision. Counsel for plaintiff concedes that the evidence preponderates -that the motorman sounded his gong at Seventeenth street. As he came down to Sixteenth street he saw the huckster wagon and Mrs. Lennon, but she was an adult in a place of safety. She was in or near the middle of the block where he would not expect people generally to he crossing the street. Seeing that Mrs. Lennon was an adult he had not the slightest reason to anticipate that, without looking or listening, she would suddenly start to cross the track in front of the approaching car. Until she did evince such a purpose there was nothing to call for the motorman to check his car or to sound his gong. When she heedlessly did start, to cross without showing any knowledge of the approach of the car, the motorman sounded his gong or danger signals and reversed his car and stopped it so suddenly that it stood right by the huckster wagon after it was at a standstill.

In this case there is no presumption that Mrs. Lennon looked or listened before she started to cross the track. Counsel for plaintiff concedes that she was not exercising ordinary care for her own safety. This concession takes this case out of the class with Riska v. Railroad, 189 Mo. 183, and Eckhard v. Railroad, 190 Mo. 618. That the deceased was guilty of such contributory negligence, as will preveut a recovery by her husband in the circumstances is conceded unless the ease can be brought within the humanitarian doctrine or the Vigilant Watch ordinance of St. Louis. We think it falls within neither. Mrs. Lennon was not on the track nor in a place of peril and the motorman had the right to presume that an adult would not step immediately in front of his car. When she did suddenly and not over twenty-five feet therefrom step in front of the car, all the evidence concurs in showing that the motorman did all in his power to save the unfortunate lady. His car came to a full stop opposite the huckster’s wagon. The motorman met the full requirement of the expert witness as to the time and space within which the car ought to be stopped and all the demands of the Vigilant Watch ordinance. We have maintained and will continue to maintain the right of trial by jury of contested facts, but this right at common law and in this State has always been construed to mean that the verdict of the jury must be based upon substantial evidence. The learned circuit court, in our opinion, erred in submitting the case to the jury on the humane doctrine. The motorman neither saw nor by the exercise of due care could he have seen Mrs. Lennon on the track, for she was not there; neither could he have seen her in a position of peril until she suddenly placed herself there, and the evidence of physical facts shows that the motorman did all he could to avert the death of the unfortunate lady.

We think the evidence failed to show any negligence whatever on the part of the motorman, but did show a clear case of contributory negligence on the part of Mrs. Lennon, which bars any recovery by her husband, and that the judgment must be and is reversed.

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