text:
    HENRIETTA PETERSON, Administratrix of Estate of PETER L. PETERSON, v. METROPOLITAN STREET RAILWAY COMPANY, Appellant.
    Division One,
    April 13, 1908.
    1. EXCESSIVE VERDICT: $5,000: Accentuated Injury. Where plaintiff had had a bad leg for eighteen years prior to the accident, such as varicose veins below the knee and indolent and chronic sores and ulcers, at times swelling and suppurating, a verdict for $5,000, where, as a result of defendant’s negligence, for a long time he was bedridden and suffered much, the femur of the leg at its neck was broken, the leg shortened, the foot everted, and the result a halting and crippled walk, is not excessive.
    2. PLEADING: Amendment: At the Trial: Terms. The statutory right to amend a petition is not open to discussion. It can be amended at the trial — in this case by interlineations at the commencement of the trial upon objection by defendant to the introduction of any testimony on the ground that the petition did not state facts sufficient to constitute a cause of action. The only possible question when an amendment is proposed is one of the terms upon which the amendment may be made.
    3. -: -: Cause of Action: Stopping Car: Continuance. A petition which alleged that defendant’s Main street cars regularly stopped about ten feet north of Twelfth street for the purpose of permitting passengers to get off and on; that plaintiff on the 13th day of December, 1902, attempted to enter defendant’s car at said point to take passage, and that, while in the act of doing so, with his foot upon the step at the back end of the car, defendant’s servants carelessly and negligently started said car forward with a jerk, stated a cause of action* and while there was no specific averment that the car had stopped to receive passengers who might undertake to get on, yet it was implied, and the adding of that averment by amendment at the beginning of the trial, is no ground for complaint* or for a continuance.
    4. -: -: -: Surprise: Continuance. Whether or not the petition stated a cause of action before amendment, defendant is not entitled to a continuance, as of course, on that ground. A continuance is addressed to the sound discretion of the trial court, and every intendment exists in favor of the court’s ruling in regard thereto. Neither is an affidavit of surprise necessary, but it is significant that the affidavit does not state that defendant has a meritorious defense to the new matter brought in by plaintiff’s amendment to his petition, that the new matter is not true, that the affidavit does not point out- that the defendant could not be ready to meet the new matter at any time, or that it had not subpoenaed witnesses to meet.it.
    5. STREET CARS: Evidence: Usual Speed. Evidence of how long the particular street car stopped at the particular crossing in question and at what speed it moved across, is competent; hut testimony that it stopped for the ordinary length of time and that it moved across at the usual rate of speed, is incompetent. Usual time itself may be negligent.
    6. JURISPRUDENCE: Scientific Accuracy. Jurisprudence is not an accurate science in the sense of mathematical accuracy. It is an applied science, so adjusting itself to men’s affairs as to produce just results.
    7. NEGLIGENCE: Plea of Contributory: General Denial. A plea of contrihutory negligence, coupled with a general denial, would be, if the plea of contributory negligence is an admission of defendant’s negligence, self-destroying pleas, and would authorize an instruction telling the jury that defendant admits its own negligence. Plaintiff’s negligence, where there is an answer containing a general denial and a plea of contributory negligence, is, at bottom, in a case where defendant’s negligence is charged and proved, contributory negligence.
    8. -: -: Burden. Where plaintiff charges and proves negligence, and defendant’s pleas are a general denial and contributory negligence, the burden is on defendant to prove plaintiff’s contributory negligence.
    9. -: -: -: Aided by Defendant's Instruction. If error was committed in giving an instruction for plaintiff plac-. ing the burden of proving contrihutory negligence on defendant, it was cured by an instruction asked by and given for defendant telling the jury that if they find by “the evidence that plaintiff was guilty of negligence of any character which directly contributed to the injuries complained of” their verdict must be for defendant.
    10. -: Mounting Stationary Car: Mounting Moving Car. Plaintiff cannot sue on one cause of action and recover on another. He cannot state as his cause of action that he had been invited to enter a stationary car and had attempted to do so, and while he was on the steps of the car and while the relation of passenger and carrier existed the car started’ with a jerk and threw him off, and recover on the humanitarian doctrine that the car had started when he attempted to get on it, and that defendant’s servants knew that and hy the exercise of ordinary care could have stopped the car in time to avoid injuring him. Those are different causes of action, and an instruction embracing the latter theory was not authorized by his petition. And in this case the error was not harmless.
    Appeal from Jackson Circuit Court. — Now. 'W. B. Teasdale, Judge.
    Reversed and remanded.

      John H. Lucas, C. A. Loomis and Ben F. White for appellant.
    (1) The court erred in permitting plaintiff to amend his petition after going to trial. (2) The court erred in overruling defendant’s application for a continuance on account of the amendments to plaintiff’s petition. The amendments were material and made radical changes in the allegations of negligence. (3) The court erred in rejecting the testimony offered hy defendant, first, in regard to the length of time the car had stood stationary; second, the manner of starting the car, as to whether it started slowly or otherwise. (4) The court erred in the giving of plaintiff’s instruction 2, because the answer did not-plead contributory negligence. Zumault v. Railroad, 178 Mo. 311; Payne v. Railroad, 129' Mo. 418; Beach, Co-ntr. Neg. (2 Ed.) sec. 7; Shearman & Redfield on Neg., sec. 61; 7 Am and Eng. Ency. Law, 371. (5) The court erred in giving instruction 6 for plaintiff. This enlarged the issues by authorizing a recovery for a cause of action not in the petition — the Last Chance Doctrine. The cause of action alleged in the petition was starting the car with a “violent jerk and sudden movement so that plaintiff was thrown to the ground,” and not a failure to stop a moving car which they might have discovered plaintiff attempting to board. Nowhere in the petition is there any attempt made to hold defendant liable for any failure to stop a moving car; the only allegations are starting the car with a jerk, and that defendant could “by the exercise of ordinary care and diligence have known that plaintiff was in the act of entering upon said ear before starting said car, and thereby have avoided to plaintiff the above-said injuries.” Chitty v. Railroad, 148 Mo. 74; Yarnell v. Railroad, 113 Mo. 514; Hite v. Railroad, 130 Mo. 132; Orcutt v. Century Building Co., 99 S. W. 1062; Roscoe v. Railroad, 202 Mo. 576.

      Reed, Yates, Mastín 3 Harvey for respondent.
    (1) Applications for a continuance are always addressed to the sound discretion of the court, and the action of the court will not be interfered with unless it plainly appears that the discretion was abused and that wrong and injury resulted therefrom. Pie-fer v. Stanley, 57 Mo. App. 520. The affidavit was fatally defective in three respects: (a) It did not show that if the case was continued defendant could be ready for trial at the subsequent date; (b) it did not put in issue the truth of the amendment; (c) it did not allege that it had any defense to the amendment and, indeed, any defense to the cause of action, which would be sustained if a continuance were granted. Colhoun v. Crawford, 50 Mo. 460; Keltenbaugh v. Railroad, 34 Mo. App. 151; Dorsey v. Railroad, 83 Mo. App. 535. (2) Defendant indulges in “hair-splitting” argument to show that it did not actually plead contributory negligence, but that the effect of its plea was that the accident was due wholly to plaintiff’s negligence. This argument, however interesting it may be from a scholastic standpoint, draws a line which is rather too fine to have been discerned by a jury. Indeed, the differentiation is so microscopic that it required about four pages of defendant’s brief to point a distinction. But however entertaining the discussion .may be, it is' decidedly unimportant in view of the fact that this instruction 2 was offered on behalf of the plaintiff after the defendant had submitted its instruction 6. Plaintiff’s instruction 2 simply told the jury that'the burden of proving this defense expressly submitted by defendant’s instruction, was upon the defendant. Therefore, there can be nothing of merit in defendant’s complaint. Crumply v. Railroad, 111 Mo. 152; Schmidt v. Railroad, 149 Mo. 269; Forrester v. Railroad, 116 Mo. App. 37; McGuire v. Railroad, 103 Mo. App. 475; Underwood v. Railroad, 102 S. W. 1045; Edington v. Railroad, 204 Mo. 67. (3) Complaint is made of instruction 6. This instruction told the jury that if at the time plaintiff sought to get on the car it had started, but was moving at such a rate of speed that it was reasonably safe for plaintiff to attempt to get thereon, and that the servants of defendant in charge of the car knew, or by the exercise of ordinary care could have known, that plaintiff was about to attempt to get on said car, and by the exercise of ordinary care could have stopped the car in time to have prevented the injury, but negligently failed to do so, then there could be a verdict for the plaintiff. This instruction was bottomed upon defendant’s own evidence. The attempt to' help, plaintiff get upon the car under the circumstances made him a passenger, but the instruction did not require the strict measure of diligence imposed in the case of a passenger, but only the exercise of ordinary care, and clearly the company was liable under the state of facts shown. But it is argued that this instruction permitted a recovery upon a ground not stated in the petition. We cannot agree with this contention. The allegations of the petition clearly plead two things : (a) That the car was stopped or almost stopped, where plaintiff attempted to get thereon, and it was started, forward with a violent jerk, or (b) that defendant’s servants saw plaintiff in Ms position of peril, attempting to get on the car, in time to have avoided the injury, but failed to do so. The authorities we have heretofore quoted show that it was not negligence per se for the plaintiff to attempt to get on when the car was moving slowly, particularly at a stopping place, and.we maintain that it was the duty of the company, when it saw plaintiff attempting to get on, to either do one of two things: (a) To warn him not to get on, or (b) if it allowed him to attempt to get on and actually sought to assist him on, then to have used at least reasonable care to have avoided the injury. The conductor recognized the danger by giving the emergency signal; the gripman failed to respond to it and stop his car, and the injury resulted therefrom. Leu v. Railroad, 106 Mo. App. 329; Shanahan v. Railroad, 109 Mo. App. 228; McCarthy v. Railroad, 105 Mo. App. 596; Fultz v. Railroad, 111 Mo'. 340. Clearly in this ease, in any event, the Last Chance Doctrine applies. According to defendant’s theory plaintiff was attempting to get on and was in a position of peril. The conductor recognized this by giving a signal to stop, and further inviting the plaintiff to attempt to enter by undertaking to assist him. After all this had taken place, while the plaintiff was in this position, the motorman negligently failed to stop the car, although he had abundant time to do so.
   LAMM, J.

— Peter L. Peterson sued for damages —his cause of action the negligence of defendant’s servants manning one of its street cars in Kansas City, Missouri, on the 13th day of December, 1902. Defendant appeals from a judgment in favor of Peterson for '$5,000. Here, his death was suggested and proceedings had reviving the cause in the name of Henrietta, administratrix of his estate.

Instructions in the nature of demurrers were ;asked, nisi, and refused. As we see it, defendant’s learned counsel no longer predicate error of such refusal; hence, the case may proceed on the assumption that plaintiff was entitled to go to the jury.

For our purposes, it will be sufficient to say that Peterson’s injuries were permanent and serious. There was a fracture of the right femur at its neck, technically called an “impacted fracture,” the broken bone being driven into the upper piece at the hip joint and held firmly. He was bed-ridden for a long time and suffered much. His right leg was shortened. His right foot was everted. The hurt leg being weakened and its use impaired, the result was a halting and crippled walk. There was testimony that his right leg had been a bad leg for eighteen or twenty years prior to the accident. Below the knee it was afflicted with varicose veins and indolent, chronic sores and ulcers, at spells swelling and suppurating, and this condition continued after the injury.

It will be sufficient for our purposes to sum up- the facts of a long record as follows:

(a) The accident happened at the intersection of Main and Twelfth streets in Kansas City, between half past eight and ten o ’clock of the morning of December 13th, 1902. It is conceded that defendant had two tracks on Main street and two on Twelfth street, running its cars on all of them in its business of a common carrier of passengers for hire, as a street railway company. It is admitted these streets cut each other at an angle of ninety degrees. Main runs north and south. Twelfth approached Main on a sharp grade— making the intersection subject to danger in collision of cars. It is admitted that south-bound cars on Main stop before reaching the tracks on Twelfth for a dual purpose — first, to let passengers on and off; second, to see that the way is clear of cars running on Twelfth; and that when such cars cross Twelfth they again stop. Mr. Peterson was night clerk at Ferd Heim Brewery. At some time, before, he suffered from rheumatism in' the left knee and carried a cane because of that. On the morning in question he had the cane in one hand and a paper package containing a quart of oysters in the other and undertook to board a street car running south on Main to go to his home. It does not appear he was then lame. He says he carried the cane on that occasion from habit, and testified he was fifty-seven years of age. It is conceded that the car in question stopped at the usual point north of the tracks on Twelfth, and that Peterson was hurt in trying to get on. So much is’ certain, but from this on the testimony is in hopeless conflict.

(b) To sustain his case, Mr. Peterson took the stand and introduced one other witness on the incidents of the accident to-wit, Mr. Herzberg.

By Mr. Peterson, testimony was given tending to show that he arrived at the car'while it was stopped north of the Twelfth street tracks. That he reached its rear steps on the west side preparatory to entering as a passenger. That he waited for some passengers to get on and off. At that instant he held said cane and package of oysters in his left hand. That he was the last passenger to try to enter. There are two hand-rails at the steps — one to the front and the other to the rear, the forward one attached to the body of the car, the rear one attached to the dashboard. That while the car was standing still he seized the front hand-rail with his right hand, got one foot on the first step and one on the second and, while in that condition and before he had time to get on the platform, the cár started forward with a jerk and threw him off and broke his thigh. The usual signal for starting a car is two bells. Mr. Peterson says he heard no starting signal. He says the conductor was standing with his back to the dashboard, facing south, hard by the head of the steps.

By Mr. Herzberg, a printer, testimony was given tending to show that he had known Peterson for eighteen years. That witness was at the northwest corner of Twelfth and Main waiting to- take a Twelfth street car west, and saw Mr. Peterson come around the hack end of the south-bound Main street car, while it was standing still, and “get on” the car, which then “jerked” and threw him off. He explains. that by getting-on the car, he meant on the steps leading to the platform and that he was holding with his right hand to the rail. That when the jerk threw him off he fell at once on his right side. That a year or so afterwards he was talking to a man about the accident and Mr. Peterson came up and- heard what he said. Up' to that time he had not seen Peterson and had not told him what he knew. That he (witness) was going west on Twelfth street, got on his car and saw the accident after he got on, and as his car was moving off.

The foregoing is substantially plaintiff’s ease on the facts.

(c) Defendant introduced a mass of testimony from an array of witnesses, some of them disinterested, tending to show a radically different state of things.

By a Mr. Stewart, a merchant, proof was put in tending to show that he was a passenger and remembered the accident, although not seeing it. The first thing he knew of it, the car stopped suddenly when just-over and clear of the Twelfth street tracks. The first thing he saw after that was the conductor helping Mr. Peterson on the car. After Mr. Peterson came in and sat on a rear seat a little while, he made the remark that he “ought to know better than to try to get on a car while it was in motion. ’ ’ That at the time the car suddenly stopped it was going- a “pretty good gait,” that, is, as fast as they could attain speed from the time they had started — that they had only started, after a stop in front, (north) of the tracks.

By Mr. Stevens defendant put in proof tending to show that he lived at Junction City, Kansas, and was working on a farm. That at the time of the accident he lived in Kansas City. That he was standing at the northwest corner of Twelfth and Main and saw the car Peterson tried to hoard. That at the time Peterson tried to get on it had started up, and he came around from the east side of the car behind it and got hold of it and fell. That the car had gone fifteen feet when he grabbed hold. Witness went over to him and saw the conductor get off and come and pick him up. That the car was running slowly when Peterson took hold. That he did not get on the platform and that he did not see him get on the steps but fell more towards the back of the car than anything else. As witness saw it, Peterson took hold of the hand-rail at the back end of the car with his left hand and at that very time he (Peterson) was “stepping along pretty good.”

By Mr. Belles defendant put in proof tending to show that he was the conductor in charge of the car, but was not working for defendant at the time of the trial. That when the car stopped north of the Twelfth street tracks a few passengers got off. That there were only four or five passengers on the car after starting. That (though there may have been others) he definitely remembers of only one passenger getting on, •and he a Mr. Speas, another conductor — at the time off duty. Witness was standing at his proper place on the platform at the car door and Speas was standing to his left. Witness was in plain view of the steps, and the car stood there a minute or a minute and a half. A car never starts without a signal given by the conductor. On this occasion witness saw no passengers at the steps or approaching at the time he gave the usual signal bells to go ahead and the car started. After the ear was going, Mr. Peterson appeared from the back end around the corner of the car and grabbed the rear hand-bar, witness didn’t know with which hand. When he grabbed the hand-bar it became at once apparent he was going to fall, and witness instantly grabbed hold of him but could not manage him, and he fell out of witness’s grasp to the ground and witness gave the emergency bells to stop. The car drifted on over the tracks on Twelfth street, stopping clear of them. He- had hold of Mr. Peterson when he fell and was trying to protect him from' falling by assisting him on the car. He fell about six or eight feet north of the Twelfth street tracks. That the car was running slowly while he had hold of Peterson and ran slowly on across the Twelfth street tracks after he lost his hold of him and he fell, and that the car did not start with a jerk. At the time witness thought the proper thing to do was to take hold of Peterson by boosting him on. That after clearing the tracks so as to avoid any collision the car stopped three feet south of them. Witness knew nothing about the number of points the motorman put on — he was busy with Mr. Peterson.

By Mr. Dickson, a commercial traveler, defendant put in proof tending to show he was on board the car, getting on at Twelfth and Main at the rear steps. He stepped forward and seated himself about one-third of the way towards the front. The car started immediately after he seated himself or just as he was seating himself. He saw no one else at the steps trying to get on. Witness’s attention was then attracted by two other passengers glancing back and, himself looking in that direction, saw the head and shoulders of a man “bobbing up and down.” Whether the man was trying to get on the steps or was on the ground, witness could not say. He saw this motion as though he was walking or climbing and slipping back until he disappeared. The car stopped when it crossed the Twelfth street tracks. Witness then stood up and saw the conductor helping a man towards the oar and assisted him on. Witness saw no one, and knew of no one, waiting to get on the car when he got on, and did not see Peterson pass around the rear of the car. It was two or three seconds after he sat down before his attention was called to the rear by two passengers opposite him looking that way. This was after the car had started. The conductor got off before the car stopped south of the tracks. The car was half way across the tracks or very near that when he saw the head of the man moving up and down at the rear. Witness did not think the man was holding on to the tail end of the platform. He seemed to be up in front of the steps or opposite to them and he seemed to get partly up and either fell off or slipped off or was thrown off.

By Michael Crowley, a policeman, defendant put in proof tending to show that he was at the southwest corner of Twelfth and Main talking to defendant’s flagman. He had just reported from a police box at that point and, facing north, he saw Mr. Peterson start from the curb stone, trying to move “pretty fast” across Main street to the west. There was a car there just starting up going south slowly. Mr. Peterson got behind the car and the rear end of the car got between him and the witness. The next thing witness saw was Mr. Peterson lying on his- face in the street. Peterson did not walk and did not run — “might be a trot.”

By Charles Speas, defendant put in proof tending to show that he was in its employ as conductor and got on the car to report for work. Witness was standing on the curb on the west side of Main, the car stopped, some passengers got on and witness stepped up and got on the car last. Nobody else was standing there at the time ready to get on. Witness had waited for all passengers to get on and followed them, remaining in the hack vestibule with Belles, the conductor. No one-else entered after witness, and he took said position and the car started. Witness had plain view and was looking right out. Belles reached up and gave two bells, as soon as witness took position at his side. The car.: started off slowly. Mr. Peterson came running from behind the car somewhere and reached up and grabbed the gate rod with his left hand. He fell back and the-conductor grabbed and gave three bells and the motorman stopped. In witness’s opinion the car had moved very nearly its length (forty feet) when Peterson grabbed for the car. Peterson did not get on the steps of the car but seized hold of the rail around the vestibule-of the car. There is a rod at the tail end of the car and Peterson grabbed that. The car was not going over-three or four miles per hour.

By Mr. Wilcox, the motorman, defendant put in proof tending to show that the car stopped with its front end ten or fifteen feet north of the Twelfth street tracks and remained standing there- the usual time. Witness received a signal from the conductor to go-ahead and did so. He put the power on one point to ■ start and then about two more points to- cross the crossing, and threw off the current to- get the car-stopped. The first thing witness knew of the accident was he got three bells — an emergency stop-. Was. right on Twelfth street crossing and he looked around to see the trouble, cleared the ■ tracks and stopped. When witness got three bells and glanced back he saw Mr. Peterson had fallen in the street.

The foregoing is substantially defendant’s case on the facts.

At the commencement of the trial, defendant’s counsel objected to the introduction of any testimony, because the petition did not state facts sufficient to constitute a cause of action. Thereupon plaintiff’s counsel amended- by interlineation. The petition as amended (amendments in parentheses) is as follows:

“The plaintiff, Peter L. Peterson, says, that the defendant now is and was at all of the dates hereinafter mentioned a corporation duly organized and existing according to the laws of the State of Missouri, and engaged in running and operating lines of street railway over various streets in the city of Kansas City, Jackson county, Missouri, and especially over and along Main street and Twelfth street, streets of said city.

“Plaintiff further says that on the 13th day of December, 1902, the defendant was engaged in running one of its electric cars over and along Main street at a point about ten feet north of Twelfth street, in said Kansas City, Missouri ; that said cars regularly stopped at said point about ten feet north of Twelfth street on Main street for the purpose of permitting passengers to get off and on said cars; that on the said 13th day of December, 1902, the plaintiff attempted to enter (one of defendant’s) said electric car at said point, about ten feet north of said Twelfth street, on said Main street (while said car was so stopped or almost stopped for the purpose of permitting passengers to get thereon), and in so attempting to get on said electric car as a passenger the plaintiff had caught hold of a brass rail on the back part of said electric car with one of his hands and had placed one of his feet upon the step at the back end of said car, and was in the act of entering therein for the purpose of becoming a passenger thereon; that while plaintiff was so entering upon said car as above said, the defendant, by its agents, servants and employees, carelessly and negligently started said car'forward in a (southerly) northerly direction, and with a violent jerk and sudden movement so that plaintiff was violently thrown to the ground, and so that his right hip struck upon the street, and was thereby broken and fractured, and so that ■ plaintiff thereby sustained an impacted fracture of the neck of the right femur, and plaintiff further says that the hack of his head struck upon said street and was thereby cut, bruised' and contused, and plaintiff was thereby greatly jarred and shocked.

“Plaintiff further says that defendant, by its agents, servants and employees, carelessly and negligently started said car, as above said, before plaintiff had time to enter thereupon, and that defendant, its agents, servants and employees knew that plaintiff was in the act of entering upon said car, as above said, or by the exercise of ordinary care and diligence could have known that plaintiff was in the act of entering upon said car before starting said car and thereby have avoided to plaintiff the above said injuries.

“(That it was the duty of defendant to stop said car long enough to permit plaintiff to safely get thereon and reach a place of safety, but defendant as above said carelessly and negligently failed to do so.)

“Plaintiff further says that on account of his said injuries he has become disabled, -lame and crippled, and has ever since been confined to his bed, and that plaintiff can never be cured of his said injuries. That plaintiff has been compelled to lay and expend large sums of money in his efforts to' be cured of his said injuries, and become liable to pay out large sums therefor, to-wit, the sum of one hundred and fifty dollars.

“Plaintiff further says that he has suffered great bodily pain and mental anguish on account of his said injuries, and will continue in the future to suffer great bodily pain and mental anguish therefrom.

“Plaintiff further says that by reason of his said injuries he has been damaged in the sum of ten thousand dollars.

“Wherefore plaintiff prays judgment against defendant for the sum of ten thousand one hundred and fifty dollars, for which, he asks judgment and for his costs herein.”

The case was tried on the following answer:

“Now comes defendant and for answer to the petition of plaintiff filed herein denies each and every allegation in said petition contained.

“And for further answer defendant says that if plaintiff received any injuries at the time mentioned in said petition, the same were caused by plaintiff’s own fault and negligence.

“Wherefore defendant prays to be dismissed with its costs.”

When the petition was amended as shown by matter included in the parentheses, defendant asked for a continuance for reasons stated in the following application, verified by affidavit:

“Comes now defendant and prays the court to continue the above cause because the plaintiff has amended his petition upon the trial of said cause against the objections of defendant; that said amendments are material, and said amendments so made against the objection of defendant allege new, different and material issues, and charge new, different and material acts of negligence not alleged or contained in the original petition, and that defendant is surprised by said amendments, and that defendant cannot safely proceed to trial at this time on account of said amendments.

“Chas. A. Loomis,

“Attorney for Defendant.”

Defendant assigns error: (1) On the amendment of the petition; (2) in overruling the application for a continuance; (3) in rejecting testimony offered by defendant; (4) in giving instructions for plaintiff; (5) and in refusing two instructions for defendant.

Other questions are discussed; for instance, defendant’s learned counsel say, arguendo, that the verdiet is so excessive as to show prejudice and passion in the jury. It is said, arguendo, by plaintiff’s learned counsel that we may not consider the bill of exceptions.

The scope of the instructions given and complained of, those refused, and any additional facts necessary to determine questions raised, will appear in connection with the discussion of them.

I. As pointed out, Mr. Peterson’s right leg had been a bad leg, under the proof, for eighteen or twenty years gone. But the proof does not show, nor do counsel argue, that the leg, bad as it was, did not fill a useful and necessary office to Mr. Peterson. Clearly, defendant had no right to negligently break the neck of the thigh bone of a bad leg any more than of a good leg. A leg might be so very bad, that to break the bone of it would cause little damage, but here considering the permanency of the injury in resulting deformity and weakness and pain of body and anguish of mind following and attending the injury, we are of opinion that, if defendant is responsible therefor and that responsibility was determined by a fair trial, a verdict of $5,000 is little enough. The point is disallowed to defendant.

II. Plaintiff’s counsel claim fatal omissions in the record pertaining to filing the affidavit for appeal, to perfecting the appeal at the term the motion for a new trial was overruled, to the extension of time for filing a bill of exceptions and to the filing of it within the time granted. It is not necessary to elaborate these contentions. They have been looked into for substance and are without real merit. The record is not as plain as it might be. But, given a liberal interpretation, it seems to show all essential facts in the particulars questioned. The point is disallowed to plaintiff.

III. Did the court err in allowing amendments; and err again in refusing a continuance? We think not; because:

(a) The statutory right to amend a petition is not open to discussion. The right of a court to permit a petition to be amended is nothing more than plain, everyday, hard-headed sense. The right to act with good sense may (modestly) be assumed to be inherent in any court, and (it is likely) would exist without written law. Counsel make the point that plaintiff had no right to amend the petition at the trial, but they give no reason or cité no authority. All things, says Coke, are confirmed or impugned in one of two ways— by reason or authority. The point should not have been made; for the only possible question is one of terms on which the amendment may go and that question is not raised.

(b) The principal proposition under this head is the refusal to grant a continuance after amendment. It is argued that prior to the amendments the petition stated no cause of action because there was no averment that the car had stopped to receive passengers who might undertake to get on; that the amendments supplied that omission; that after amendment the petition for the first time stated a cause of action; and that amendments of .that character, made at the commencement of a trial, entitling the defendant to a continuance as of course, much more should one go in view of the application and affidavit filed in this instance.

But we can agree neither to the premise, nor to the conclusion if the premise were true. The petition did state a cause of action. It alleged that defendant’s Main street cars regularly stopped about ten feet north of Twelfth for the purpose of permitting passengers to get on and off. That plaintiff on the 13th day of December, 1902, attempted to enter defendant’s car at said point to take passage and that, while in the act of doing so with his foot upon the step at the back end of the car, defendant’s servants carelessly and negligently started said car forward with a violent jerk.

The allegation that the car “started” was by necessary implication an allegation that the car was stationary at the time. A thing can’t start without a stop. The one includes the other, ex vi termini. We had occasion to discuss a similar contention in Flaherty v. Railroad, 207 Mo. l. c. 335, where it was said: ‘ ‘ But in ordinary speech, if A says B ‘moved forward,’ there is a fair implication, at least, that A means that B was in a condition of repose when the movement , began. If A was bent on expressing the idea that B was going at the time, but then and there began to hasten his pace, he would naturally have inserted some word to convey the accelerated motion. The absence of such modifying word, here, is not without significance. ’ ’

What was said in the Flaherty case, though in discussing an instruction, applies here. If the petition had said that the car started forward “more rapidly” that would convey the idea it was moving at the time, but there is no such word used and the petition is only subject to the criticism that it defectively or obscurely stated a cause of action — not that it stated none whatever. It would have been good after verdict.

But, if it were conceded that the petition stated no cause of action before amendment, defendant would not be entitled to a continuance, as of course, on that ground. The canonized rule is, and all the cases hold, that a continuance is addressed to the sound discretion of the trial court — a discretion to be soundly exercised. It is trite law that every intendment exists in favor of the trial court’s action on an application for a continuance. The statute under which these particular amendments were allowed is Revised Statutes 1899, section 688, reading: “When a party shall amend any pleading or proceeding, and the court shall be satisfied, by affidavit or otherwise, that the opposite party could not be ready for trial in consequence thereof, a continuance may be granted to some day of the same term, or to the next regular term of the court.”

It will be seen from that statute that an affidavit is not essential. The court may be satisfied “by affidavit or otherwise” that the opposite party could' not be ready for trial in consequence of the amendment.

There was no attempt, except by the affidavit, to satisfy the court that the defendant could not be ready for trial; attending to that affidavit, it does not show defendant had not subpoenaed witnesses on the issues made by the amendments. Subsequent events showed it had — and all it knew of. It does not state that the allegations, as amended, are not true, or that it had a meritorious defense to the new matter, nor does it point out that defendant could be ready to meet those allegations at any other time. Hence, we find no fault with the court’s ruling on the application. It is fully sustained by the following cases cited by counsel construing section 688, supra: Colhoun v. Crawford, 50 Mo. 458; Keltenbaugh v. Railroad, 34 Mo. App. 147; Pifer v. Stanley, 57 Mo. App. 516; Keeton v. Railroad, 116 Mo. App. 281.

The point is ruled against defendant.

IV. It is next contended that reversible error was committed in excluding testimony offered by defendant relating to the length of time the car stood stationary north of the 'Twelfth street tracks and to the manner of starting the car, whether slowly or otherwise. To grasp the contention intelligently more of the record is necessary, viz.: "When the conductor was on the stand defendant’s counsel sought to prove by him the “usual time” that cars stopped to let passengers on and off. The conductor was allowed to testify to the time this car stood stationary at the time and place in question, but was not allowed to testify as to the usual or customary time cara stopped. "When Mr. Dickson, the commercial traveler, was on the stand he .was asked: “Now, did the car start np, and how did it move across the tracks there with reference to speed?” He answered: “Well, the same as usual, I would think.” That question was stricken out as a comparison and a conclusion and defendant excepted. It was then sought to qualify Mr. Dickson. To that end, he testified he had frequently .ridden on cars in Kansas City on defendant’s lines and had occasion to- notice and know how cars moved as they started across intersecting tracks. He was then asked to state (based on his experience) how this car moved in its starting and speed as compared with the way cars usually moved at such crossings. The question was objected to- and ruled out —defendant excepting. He then testified, in answer.to questions, that the car started with enough speed to get across and stopped on the other side of Twelfth street twelve feet or such a matter from the tracks, and that he remembered no jerk. He was further asked whether he noticed “it was going at a rate of speed?” His reply was: “It was going the ordinary rate of speed of a car crossing a crossing, stopped on both sides.” This answer was stricken out on motion of plaintiff’s counsel and defendant excepted.

Did the court commit error in its rulings on the exclusion of testimony? We think not. Counsel were allowed full swing to establish how long this car stood north of Twelfth street for passengers to enter and leave. Evidently in order to show no negligence in a given stop, by way of comparison, the stops the stop itself is compared to, must be shown to be themselves not negligent; for one stop compared with others merely setteth the matter at large. It proves nothing. If there were no passengers to enter or leave at all it could- not be held negligent to make no stop at all. If there were many passengers to enter or leave due care would require a longer time than if there were few. Furthermore, “usual” time might he negligent time, and such issue only confuses a jury. The same remarks apply to the “usual” rate of speed with which cars pass over intersecting tracks. The vital question (if any) was not the usual hut the actual rate of speed, and on that question there was no limit put on the investigation.

There is no merit in the point and it is ruled against the defendant.

Y. For plaintiff was given the conventional instruction on contributory negligence, which said there was such a defense, and put upon defendant the onus of proving the facts constituting it. Counsel argue this was reversible error. They say there was no plea of contributory negligence in the case and point to their answer, containing a general denial coupled with an averment that if plaintiff was injured “the same was caused by plaintiff’s own fault and negligence,” to maintain that position. If we grasp the argument it is that a plea of contributory negligence, as such, in strict logic necessarily imports an admission that defendant was negligent, but, as plaintiff’s negligence contributed to the injury, defendant’s negligence was not actionable, and that the answer in this case was not a plea of that sort.

In disposing of the point it is not amiss to say that counsel have a foot to stand on; for by refinement in technical reasoning the contention is academically sound. [Payne v. Railroad, 129 Mo. l. c. 418; Zumault v. Railroad, 175 Mo. l. c. 311.]

But it may be said again, as often before, that jurisprudence is not an accurate' science in the sense of mathematical accuracy. It is an applied science, so adjusting itself to men’s affairs as to produce just results. When we come to apply counsel’s theory to a concrete case the logic of it would be that, whenever a defendant pleads contributory negligence, it thereby admits its own guilt out of hand. Further, that if defendant in one breath denies its guilt and in the next breath asserts it (for example, by a plea of contributory negligence), it lays itself open to a charge of making contradictory and self-destroying allegations. It has not been hitherto supposed by the common thought of the profession that the stereotyped answer of defendants in negligence cases was subject to such novel construction. Let us see how that would work. Indulging an hypothesis, suppose under a plea of contributory negligence, coupled with a general denial, plaintiff would ask and receive an instruction telling the jury that by such plea defendant admitted its own negligence, would learned counsel contend such instruction was good law? Hardly, though it might do, if defendant stood-alone in its answer on contributory negligence as a defense. The question in hand may be disposed of by holding, as we do, that the pith and sense of it all is this: Defendant’s answer in this case denied its own and pleaded plaintiff’s negligence. Now, plaintiff’s negligence in a case where (as here) defendants negligence is charged and proved is at bottom “contributory negligence” and nothing else. There is nothing in a name — the thing to be got at is the substance.

Moreover, defendant asked and was given an instruction, as follows:

“The court instructs the jury that if you find and believe from the evidence that the plaintiff was guilty of negligence of any character which directly contributed to the injuries complained of, then there can be no recovery in this case, and your verdict will be for the defendant.”

In the presence of that instruction, even if we were to concede that plaintiff’s was erroneous, we must hold such error cured under the doctrine of aider.'

The point is ruled against defendant.

VI. Plaintiff asked and received the following instruction:

“The court instructs you that if you find from the evidence that the car in question had started at the time plaintiff attempted to get thereon, but was moving at such a rate of speed that under the circumstances it was reasonably safe for plaintiff to attempt to get thereon, and that the servants of defendant in charge of said ear knew or by the exercise of ordinary care and caution could have known that plaintiff was about to attempt to get on said car and by the exercise of ordinary care could have stopped said car in time to. have prevented the injury complained of, if any, but carelessly and negligently failed to do so, and by reason thereof plaintiff was injured, then your verdict will be for plaintiff.”

Counsel insist the foregoing instruction put to the jury a ground of recovery not contained in the petition. Is there merit in this view? We think there is. Undoubtedly the instruction was good law if it had put to the jury an issue within the petition, and had not got away from the line of plaintiff’s case as therein chalked out; because it but formulates the humanitarian or last clear chance doctrine. If a person intending to become a passenger on a street car attempts to mount a moving car under circumstances given in the instruction, it needs no citation of authority to sustain the self-evident proposition that those manning and operating the car who see him in peril at the time, or should have seen him in peril, may not with that notice and knowledge thereafter negligently continue running the ear and thereafter cause loss of life or limb to one so putting himself in peril, when they could have avoided it by exercising due care. But if a plaintiff desires to recover on that theory, he must state such ground of action and couple it with other elements of negligence upon which he desires to predicate recovery.. In this case, there is no sneh cause of action set forth in the petition. To the contrary the particular negligence explicitly alleged, and referred to more than once, is not the failure to stop a going car which Mr. Peterson without invitation was attempting to board while in motion. It is the very opposite to that, to-wit, the negligent starting of a car which he was mounting under defendant’s invitation at a place where passengers were let off and taken on. In other words, plaintiff states a cause of action based on the theory that he had been invited to enter the car and had so far accepted the invitation that by necessary inference the relation of passenger. and carrier sprang into existence, and that defendant violated its duty to him under such‘circumstances. The instruction on the' other hand does not predicate recovery on the relation of passenger and carrier. It allows a recovery under the humanitarian doctrine and without the relation of passenger and carrier necessarily existing’. It would serve no judicial purpose to cite authority to sustain the proposition that a plaintiff may not sue on one cause of action and recover on a different one.

That the error was not harmless is further shown from the state of the proof. The clear preponderance of the testimony was to the effect that Mr. Peterson negligently undertook to board a car that was pursuing its journey after those manning it had performed their full duty in stopping it at the usual place to receive passengers. That he was not expressly or impliedly invited to enter the car as a passenger. That the conductor, on seeing his peril, instinctively sought to save him from injury by seizing hold of him. There is no call for hair-splitting in weighing the conductor’s acts in such crisis. He could not well give an emergency stop and rescue a man in imminent peril at the self same instant of time. He had to think and act quickly and with singleness of purpose. The drama was played out in a moment. There is nothing to show that he fell short of his duty. Complaint is made that the car was allowed to drift over the Twelfth street tracks without stopping after the emergency bells were given; but the testimony also shows the emergency bells were not given until Mr. Peterson had already fallen. In this view of the case, the onward movement. of the car across the Twelfth street tracks could not be held negligence. The motorman, under such circumstances, did but his duty in clearing those tracks to avoid the danger of a collision with the Twelfth street cars. The case then went to the jury on the testimony of Mr. Peterson and Mr. Herzberg. It was entitled to go to the jury, but was only so entitled under discriminating care in the instructions of the court. In this case there is no room for saying the error was harmless error.

VII. Counsel complain of other instructions given plaintiff. The gist of it is that they were not closely confined to plaintiff’s theory of the case in putting to the jury the issue as to whether the car had stopped or slowed down to receive passengers and Mr. Peterson had accepted the invitation to enter and was entering it. We do not hold there is reversible error in this regard. There is obscurity in the instructions on the score mentioned and if the case under existing statutory law can be tried again, and is tried without amending the petition, the instructions should be cleared up in those particulars.

In view of what has been said alleged error in refusing certain of defendant’s instructions needs no consideration.

The cause should be reversed and remanded. It is accordingly so ordered. .

All concur.


source: Caselaw Access Project

author: GRAVES, J.

license: Public Domain

text:
    FRUIN-BAMBRICK CONSTRUCTION COMPANY v. ST. LOUIS SHOVEL COMPANY, Appellant.
    Division One,
    April 13, 1908.
    1. CONSTITUTIONAL LAW: Special Taxes: Midway Line. Section 14 of article 6 of the charter of St. Louis, fixing the boundary line of a taxing district midway between the street to. be improved and the next parallel or converging street, is not in conflict with that part of the Federal Constitution which prohibits a State from denying to any person within its jurisdiction the equal protection of the laws.
    2. SPECIAL TAX: Parallel Street. To be a parallel street within the meaning of section 14 of article 6 of the charter of St. Louis it is not necessary that the street be one which parallels the street to be improved for the whole length of the improvement. Where the boundary lines of the taxing district are irregular by reason of short parallel streets which are of different distances from the street being improved, the special tax bills are not void because said short streets do not parallel said street the full distance of the improvement.
    3. -: -: Next: Within Six-hundred Feet. The taxing district, under section 14' of article 6 of the charter of St. Louis, may be established by drawing a line midway between the street to be improved and the next parallel or converging street, without reference to whether or not the next parallel street is within six hundred feet of the street to be improved. The term parallel street as used in the charter does not mean a street six hundred feet from, or within six hundred feet of, the street to be improved.
    Appeal from St. Louis City Circuit Court. — How. Moses N. Sale, Judge.
    Affirmed.

      Powell & Zumbalen for appellant.
    (1) (a) The provisions of the amended charter making three-fourths of the cost of street improvements a charge upon all the property in a district defined and established according to certain general rules therein laid down, are to be construed in the light of the general principles underlying and limiting the power to levy special taxes for local improvements. Newby v. Platte County, 25 Mo. 271; Kansas City v. Bacon, 157 Mo. 463; Kansas City v. Baird, 98 Mo. 215; 2 Dillon’s Mnn. Corp. (4 Ed.), see. 761. (b) By the phrase “parallel or converging street,” as used in said provisions, is'meant a parallel or converging street not over 600 feet distant from the street to be improved, and which parallels or converges to the street to be improved for the entire length of the improvement. Asphalt & Gran. Const. Co. v. Haeussler, 100 S. W. 14; Louisville v. Asphalt Co., 102 S. W. 806. (2) Said charter provisions, as construed by the lower court, are in violation of the first section of the fourteenth amendment to the Federal Constitution in that they deprive defendant of its property without due process of law, and deny to defendant and its property the equal protection of the laws. Norwood’ v. Baker, 172 TJ. S. 269; Spencer v. Merchant, 125 U. S. 345; Davidson v. New Orleans, 96 H. S. 97; Hagar v. Eeclamation District, 111 U. S. 701; Walston v. Nevin, 128 U. S. 578; Construction Co. v. Haeussler, 100 S. W. 14; 2 Dillon, Mun. Corp. (4 Ed.), sec. 761.

      Hamilton Grover for respondent.
    (1) It is not necéssary under section 14 of article 6 of the charter, that the street parallel to the street to be improved must necessarily be the next parallel street throughout the whole length of the improvement to be made, but the district line must deflect accordingly as the street to be improved is paralleled its whole length or partly by one street and partly by another. Sec. 14, art. 6, amended charter; Collier Estate v. Western Paving & Supply Co., 180 Mo. 362. (2) It is not necessary that the next parallel or converging street, within the meaning of section 14 of article 6, should he-within 600 feet of the street to be improved, hut the words “next parallel or converging street” mean the next street which parallels or converges to the street to he improved, although said next parallel or converging street may he more or less than 600 feet from the street to he improved. Sec. 14, art. 6, amended charter; Collier Estate v. Western Paving & Supply Co., 180 Mo. 362. (3) Section 14 of article 6 does not violate the “equal protection of the laws” clause of the fourteenth amendment to the Constitution of the United States. Collier Estate v. Western Paving & Supply Co., 180' Mo. 362; Meier v. St. Louis, 180 Mo. 391; Cotting v. Godard, 183 U. S. 79'; Bell’s Gap R. Co. v. Pennsylvania, 134 U. S. 232; Bank v. Pa., 167 U. S. 461; Davidson v. New Orleans, 96 U. S. 97; Ins. Co. v. Connecticut, 185 U. S. 364; Giozza v. Tiernan, 148 U. S. 657; Henderson Bridge Co. v. Henderson, 173 U. S. 616; Walton v. Nevin, 128 U. S. 578; Spencer v. Merchant, 125 U. S. 337; Pryor v. Construction Co., 170 Mo. 439 ; Cooley on Taxation (3 Ed.), 254; Barber Asphalt Pav. Co. v. French, 158 Mo. 534; French v. Barber Asphalt Pav. Co., 181 U. S. 345. (4) Section 14 of article 6, of the amended charter does not violate the “due process of law” clause of the fourteenth amendment to the Constitution of the United States. Meier v. St. Louis, Í80 Mo. 391; Pryor v. Construction Co.; 170 Mo. 439; Davidson v. New Orleans, 96 U. S. 97; Barber Asphalt Pav. Co. v. French, 158 Mo. 534; French v. Barber Asphalt Pav. Co., 181 U. S. 345.
   GRAVES, J.

— The statement of the issues of this case is so succinctly made by learned counsel for the respondent, that we borrow his language as far as it goes, thus:

“This is a suit on a special tax hill issued by the city of St. Louis for the proportionate cost of paving Sarah street, a thoroughfare running north and south in said city. The respondent is the contractor who did the work and the appellant is the owner of the property against which the tax bill is issued. No question is involved as to the passage of the ordinances, letting of the contract, doing of the work, and the issuance of the tax- bill to the respondent. The sole issues grow out of the establishment of the taxing district under section 14, article 6, of the St. Louis charter. The taxing district was established by drawing a line midway between the street to be improved and the next parallel or converging street, without reference to whether or not the next parallel street was within 600 feet of the street to be improved, and without reference to whether or not the next parallel street was parallel to the street to be improved the whole length of the improvement. The appellant claims that the district established in this way is erroneous, on the theory that for a street to be the next parallel street within the meaning of the St. Louis charter, it must be the next street which parallels the street to be improved the whole length of the improvement, and upon the further theory that for the street to be the next parallel street within the meaning of the St. Louis charter, it must be within 600’ feet of the street to be improved.

“The appellant further contends that section 14, article 6, of the charter, otherwise construed, would violate that clause of section 1 of the Fourteenth Amendment to the Constitution of the United States which prohibits a State from denying to any person within its jurisdiction the ‘ equal protection of the laws.’

“The lower court held that the district as established by the city authorities was properly laid out and that it was not necessary that a street to be a parallel street should be the next, street parallel to the improvement the whole length of the improvement, nor that it should be within 600' feet of the street to be improved. The lower court further held that the charter provision was not in violation of the ‘equal protection’ clause of the Fourteenth Amendment to the Federal Constitution.

“Judgment was entered for the respondent on the special tax bill, from which judgment, after the usual motions, defendant has appealed to this court. ’ ’

The pertinent portions of the city charter involved, section 14, article 6, are as follows:

“Special taxes for the improvement of streets, avenues and public highways shall be levied and assessed as follows:

“ The total cost . . . shall be ascertained and one-fourth thereof shall be levied and. assessed upon all property fronting upon or adjoining the improvements, in the proportion that the frontage of each lot, so fronting or adjoining, bears to the total aggregate of frontage of all lots or parcels of ground fronting upon or adjoining the improvement, and the remaining three-fourths of the cost so ascertained shall be levied and assessed as a special tax upon all the property in the district to be defined and bounded as hereinafter provided, in the proportion that the area of each lot or parcel of- ground, or the part of such parcel of ground lying within the district bears to the total area of the district, exclusive of streets and alleys.

“The district herein referred to shall be established as follows:

“A line shall be drawn midway between the street to be improved and the next parallel or converging street on either side of the street to be improved, which line shall be the boundary of the district, except as hereinafter provided, viz.:

“If the property adjoining the street to be improved is divided into lots, the district line shall be so drawn as to include the entire depth of all lots fronting, on the street to be improved. If the line drawn midway, as above described, would divide any lot lengthwise, or approximately lengthwise, and the average distance from the midway line so drawn to the nearest boundary line of the lot is less than 25 feet, the district line shall in such case diverge to and follow the said nearer boundary line.

“If there is no parallel or converging street on either side of the street to be .improved, the district line shall be drawn three hundred feet from and parallel to the street to be improved; but if there be a parallel or converging street on the one side of the street to be improved to fix and locate the district line, then the district line on the other side shall be drawn parallel to the street to be improved and at the average distance of the opposite district line so fixed and located.

“Provided that if any property in a district established as herein provided is not liable to special assessment, the city shall pay the proportion of cost of the improvement which would have been assessed against such property. All of the property in the lots, blocks or tracts of lands lying between the street to be improved and the district lines established as above specified, shall constitute the district aforesaid.”

The property of the defendant did not abut Sarah street, the street which was improved, but was 253 feet or more to the east thereof. Counsel for appellant correctly describes the metes and bounds of the district thus:

“On the eastern side of said Sarah street between Duncan avenue and Clayton avenue the district line was drawn midway between said Sarah street and Vandeventer avenue, and at a distance of 731 feet, 10 inches, from said Sarah street in blocks 2585 and 3952, so as to include the whole of defendant’s said property, and in blocks 2582, 3960 and 3963 at a distance of 601 feet 5-|- inches, or more, from said Sarah street; in City Block 3959' between Clayton avenue and Gratiot street and in the north part of Block 3958 (south of Gratiot street) the district line was drawn midway between said Sarah street and Hawk avenue at a distance of 244 feet, more or less, from said Sarah street; in the southern part of Block 3958, the' district line was drawn midway between said Sarah street and Manchester avenue at a distance of 406 feet, more or less, from said Sarah street; in the northern part of Block 3957A the district line was drawn midway between Sarah street and Manchester avenue, at a distance of 394 feet 5-| inches, more or less, from said Sarah street; in the southern part of said Block 3957A, the district line was drawn 266 feet, 6 3-8 inches east of said Sarah street; in Block 3957B, the district line was drawn 35 feet east of said Sarah street:

“On the west side of said Sarah street, between Duncan avenue and Clayton avenue, the district line was drawn midway between said Sarah- street and Boyle avenue, at a distance of 630 feet 5 inches from said Sarah street; between Clayton avenue, and Gratiot street, in Block 3962 and 3963 the district line was drawn midway between said Sarah street and Boyle avenue, at a distance of 547 feet 7 inches from said Sarah street; in the northern part of Block 3964 the district line was drawn midway between said Sarah street and Boyle avenue at a distance of 546 feet 71-inches from said Sarah street; in the southern part of Block 3964, and the northern part of Block 3965> the district line was drawn 91 feet 9|- inches from said Sarah street and midway between said Sarah street and an alleged street in said Block 3964 and 3965; in the southern part of Block 3965 the district line was drawn midway betwen said Sarah street and Boyle avenue at a distance of 546 feet 9 inches, more or less, from said Sarah street; in the northern part of Block 5114A the district line was drawn midway between said Sarah street and Boyle avenne at a distance of 547 feet 3 inches from said Sarah street; in the south part ■ of said Block 5114A, the district line was drawn midway between said. Sarah street and Gibson avenue, at a distance of 364 feet 10 inches from said Sarah street.”.

From this description will appear the irregular boundary lines of the taxing district both upon the east and west of Sarah street. Other plats of taxing districts were introduced in evidence,' showing even more pronounced irregularity than the one involved, here, hut likewise showing the construction placed by the city authorities upon the charter provisions in question. From these it appears that the first parallel or converging street is ofttimes at a very much greater distance than in the ease before us. In some instances the streets were a very great distance apart. For the legal questions involved, more definite statement would he hut to encumber the opinion. Such are the issues.

I. It is first urged that the charter provisions herein above set out are violative of the Federal Constitution. If this were the first time that the question had been before the court, we would feel that a more extended discussion of the question was required. But the'identical question has been here before, although not in a case so pronounced in terms as is the one at bar. [Meier v. St. Louis, 180 Mo. 391.] In that case this court In Banc said of this same charter provision:

“It is now the settled law in this court that special assessments for local improvements are referable to the taxing power. [Garrett v. St. Louis, 25 Mo. 505; Heman v. Allen, 156 Mo. 534; Barber Asphalt Co. v. French, 158 Mo. 534; Ibid v. Ibid, 181 U. S. 324.]

“It is within the power of the Legislature to create special taxing districts, and to charge the cost of a local improvement, in whole or in part, upon the property in said districts, either according to valuation or superficial area or frontage. [Webster v. Fargo, 181 U. S. 394; Prior v. Construction Co., 170 Mo. 439; Asphalt Co. v. French, 158 Mo. 534; Spencer v. Merchant, 125 U. S. 345 ; Egyptian Levee Co. v. Hardin, 27 Mo. 495.]

“It has also been ruled that the provisions of article 10 of the Constitution of Missouri in regard to taxation, are applicable only to taxation in the ordinary acceptation of the term, and are inapplicable to these special assessments. [Farrar v. St. Louis, 80 Mo. 379, and cases cited.] And the same rule is held as to sections 3, 4 and 11, as to the uniformity of taxation. [Farrar v. St. Louis, supra; City of St. Joseph to use v. Owen, 110 Mo. 445.] The objections to the charter amendments on the ground of unconstitutionality are not, therefore, tenable.

“II. As to the contention that the special assessments amount to a taking of plaintiff’s property without due process of law, it may be .said that no notice is required by the Constitution to be given property-owners respecting those matters which the Legislature itself determines, or delegates to the municipal authorities. [Spencer v. Merchant, 125 U. S. 345; Williams v. Eggleston, 170 U. S. 304; St. Louis v. Ranken, 96 Mo. 497.] Publication of notice to the property-owners, and opportunity to be heard before the tribunal upon which is devolved the duty of ascertaining facts and acting therein in the special assessment procedure, satisfies the constitutional requirement, and is due process of law as to those matters to be passed upon by such tribunal.

“We think section 14 of article 6 of the amended charter of St. Louis complies with this requirement.

“When the taxing district has been fixed by valid legislation and when the apportionment of the cost of the improvement upon the property in the district has been so fixed, tbe owner of tbe property in tbe district cannot be heard to contend in tbe court that bis property was not in fact benefited, or to tbe amount assessed in accordance witb such apportionment. [Prior v. Construction Co., 170 Mo. 439.]

■ ‘ ‘ Tbe charter of St. Louis adopted by a vote of its people in obedience to an express grant by tbe Constitution of tbe State, has, witb respect to municipal matters, including special assessments for local improvements, all tbe force and effect of an act of tbe Legislature. [City of St. Louis v. Fischer, 167 Mo. 654; Prior v. Construction Co., 170 Mo. 439; St. Louis v. Gleason, 15 Mo. App. 25; Ibid v. Ibid, 93 Mo. 33; Kansas City v. Oil Co., 140 Mo. 468.]”

At tbe same term at wbicb tbis opinion was rendered were tbe eases of Collier Est. v. Western Pav. & Supply Co., and Kauffman v. Western Pav. & Supply Co., 180 Mo. 362, in wbicb in tbe brief of counsel tbe same question was in a way urged. Tbe two opinions were written by Gantt, J., and evidently banded down contemporaneously. These cases all recognize tbe constitutionality of tbis charter provision and under these decisions no doubt tbe parties proceeded in tbe case at bar. These cases are practically rules of property in tbe case at bar and we would be loth to depart from them, were our views to tbe contrary. However, our views are in harmony witb those therein expressed. Those cases were well considered and reviewed tbe case law of tbe subject and we see no good reason to depart therefrom at tbis time. It is true that in tbis case we have much evidence tending to show tbe extreme irregular boundary lines of different districts in tbe city wbicb have been fixed under tbe strict letter of tbe city charter. Some of'the districts may be more pronounced than tbe one at bar, but in tbis one, at tbe point where tbe property in dispute lies, tbe district line is over 700 feet east of tbe street improved, whilst at another point, on the same side, it only lies 35 feet. But in each instance the line was feed midway between the street improved and the next parallel or converging street, as such parallel or converging street was found and determined by the city authorities. Whether they determined them aright under the charter is another question to be presently discussed.

The constitutionality of this charter provision having been determined by this court In Banc and the views so expressed being in full accord with our views, this point will be ruled against the defendant.

II. A further contention is that a street to be a parallel street within the meaning of the charter provision must be one which parallels the street being improved for the whole distance of the improvement. This is not a new question in this court. In the Meiers case, supra, the taxing district was laid out by taking into consideration what proved to be a private way. This private way was between the street being improved and another street, and we held among other things that the district line should have been established midway between the street being improved and the next parallel street, and not midway between the street being improved and this private way. But in addition to this question the further question of what was considered a parallel street was discussed. In the Collier case, 180 Mo. l. c. 390, the court said: “We do not think it is necessary that the street parallel to the one to be improved must necessarily be parallel throughout the full length of the improvement to be made, but the district line may and must deflect accordingly as the street to be improved is paralleled its whole length or partly by one street and partly by another. It results that for this additional reason the district was improperly defined and created, and the taxbills are illegal and void.”

In the case at bar the city authorities followed to the letter the charter provisions as the same had been construed by this court. The boundary lines of the district are exceedingly irregular by reason of short parallel streets, which are of different distances from the street being improved, and which do not parallel said street for the full distance of the improvement. But this question was before us in the Meier case, and there ruled against the present contention. To that ruling we adhere.

III. It is next urged that inasmuch as the charter provides that if there are no parallel or converging streets, the district line shall be drawn 300 feet from the street being improved, the term “parallel street” as used in the charter would therefore mean a street six hundred feet from, or within six hundred feet of, the street being improved. An extremely plausible argument is made by learned counsel in urging this construction. To give the charter such a construction would be to nullify the terms thereof. To give it such a construction would be to give it a meaning not contemplated by the framers of the instrument. The language of the charter is plain and unambiguous. In such case the court has a plain rule of construction to follow. So that whatever may be the rulings in other jurisdictions we deem the questions involved in this case settled in this State. A discussion of cases from other jurisdictions will therefore be omitted. To depart from the Collier case at this time would be ex-' tremely harsh toward the rights of parties relying thereon.

Prom what has been said it follows that this case should be affirmed, and it is so ordered.

All concur.