text:
    In re Estate NANCY CLINTON; THOMAS P. CLINTON et al. v. JOHN M. CLINTON et al., Appellants.
    Division One,
    November 27, 1909.
    1. SUIT: To Discover Assets. A proceeding under Secs. 74 to 78, R. S. 1899, begun by one interested in the estate, by an affidavit filed in the probate court, alleging that the administrator has in his possession certain moneys and assets belonging to the estate which he has not inventoried, and praying that he be compelled to inventory them, is a suit or action, within the meaning of the law.
    2. -: -: Appellate Jurisdiction. And being a suit, the appellate jurisdiction from an order dismissing it, is fixed by the amount and value of the property alleged to he concealed or withheld by the administrator.
    3. -:-: Involves Property Rights. A suit against the administrator, begun in the probate court by affidavit and interrogatories to compel him to inventory certain assets of the estate, which the affidavit alleges he has concealed or withheld, involves property rights, and cannot be dismissed upon the filing of his answers to the interrogatories and his motion to dismiss. It cannot be dismissed while the issue as to the ownership of the property is undetermined.
    4. -: -: -: Pleading: Reply. A reply to the answers to the interrogatories in a suit to compel the inventory of assets filed in the probate court, should be permitted as sharpening and shortening the real issues.

      Appeal from Clay. Circuit Court. — Eon. J. W. Alexander, Judge.
    Reversed and remanded (with directions.)

      Sandusky é Sandusky, J. M. Callahan and D. C. Allen for appellants.
    (1) A clear perception of the attitude of the parties in this matter removes all difficulties as to parties and pleadings. Who are attacking? The appellants. Who are defending? The respondents. Pro hac vice, then, in real substance, as to all issues presented by appellants’ affidavit of concealment appellants occupy the attitude of administrators of the estate, and respondents that of concealers. On those issues, appellants are for the estate and respondents are against it. As a consequence, the relation of plaintiffs and defendants has existed between appellants and respondents from the moment the affidavit of concealment was filed. Pending the prosecution of those issues (and, within their scope) the function of administration was in appellants and not in the statutory administrator and administratrix. (2) Throughout the contest in this matter the administrator and administratrix have constantly claimed that, from the filing of their answer to the interrogatories, the case could not proceed further without their consent; that they refused to consent; and that, without their consent, neither the probate, nor circuit court had any jurisdiction to hear the matter. Under this claim, they moved a dismissal of the matter (and the motion was sustained) in each of those courts. This claim is manifestly repugnant to a fundamental maxim of the law —nemo debet esse judex in propria sua causa. Broom’s Legal Maxims (3 Am. Ed.), p. 109; R. S. 1899, sec. 75; In re Estate Huffman, 132 Mo. App. 44; Tygard v. Palor, 163 Mo. 234. (3) Section 78 is a remedy injected into art. 4, chap. 1, R. S. 1899; without adjustment with precedent sections. But it is a remedy —a most important one — and must be construed with reference to its meaning, force and breadth. The intent of the law is the pole-star of interpretation. We must give the section an equitable interpretation. It is a grant of right and power to persons interested— against the executor or administrator — and carries with it all modes and proceedings to make the grant effective. This is the universal principle of interpretation. The grant is intended to be efficacious and beneficial, and all incidental powers and remedies go with it. Construing section 78 upon this principle, any pretended right of the administrator or administratrix in this matter, to stop. the proceedings, at their own “sweet will,” is cut up by the roots. Eyston v. Studd, 2 Plowd., pp. 465, 466, 467; Springfield v. Railroad, 4 Cush. 63; Riddick v. Walsh, 15 Mo. 519; Potter’s Dwarris, 339 et seq.; Story on the Constitution (5 Ed.), see. 400, p. 305; Endlich on Interpretation of Statutes, secs. 1, 2, 8, 258, 295’. (4) The contest in this matter between appellants and respondents is an action or suit within the meaning of the statutes and common law of Missouri. T'ygard v. Falor, 163 Mo. 234; Ex parte Gfeller, 178 Mo. 248; Eckerle v. Wood, 95 Moj App. 378. This being a suit or action, under not only the statute law of Missouri, but of the common law of the State, appellants were entitled to be permitted to file their reply to respondents’ answers. Where there is an absence of directions as to pleadings under the Code, common law and equity govern in matters of pleading. Tucker et al. v. Insurance Co., 63. Mo. 588; Neenan v. St. Joseph, 126 Mo. 89. The probate court is a court of record. Constitution 1875, art. 6, sec. 34. The Revised Statutes 1899, sec. 288, say that probate courts shall be governed in all things by the provisions of chapter 1, “so far as they may be applicable to their jurisdiction and duties.” Our Code of Pleading (sec. 608) provides that if the answer of the defendant contains a statement of “new matter,” and the plaintiff fails to reply or demur to it, the new matter will he taken as confessed, and! the defendant have such judgment as he is entitled to upon such statement. Sections 74, 75, 76, 77 and 78, R. S. 1899, are silent as to a reply. Section 608 is not silent, but gives a penalty if there be no reply. Evidently the case, in right of action and pleadings, is made up of sections 74 to 78, both inclusive, plus section 608. Section 591, of our Code of Pleadings, says that the forms of pleading in civil actions in courts of record, and the rules of their sufficiency are to be determined by article 5, except as otherwise provided' by law. Sections 288, 591 and 608 are in pari materia, and must be construed together. Giving section 608 its effect in this union, it follows that a reply was necessary in this matter. The reply is plaintiffs’ avoidance or denial of the answer or defense, and takes issue with new matter in the answer. Good pleading requires a reply. Story’s Equity Pleading (6 Ed.), sec. 877. This procedure, in its general idea, is closely analogous to the old, equitable proceeding in discovery. A bill of discovery was a mode of ascertaining the truth or existence of facts when concealed by the opposite party. The analogy in pleading follows. Story’s Equity Pleading (6 Ed.), sec. 311. Appellants may, therefore, justly claim that manifest error was committed against them in both of the courts below in not allowing them to file their reply; and that no argument can be drawn from the fact that attorneys failed to make the point as to a reply in any case that may be cited.

      E. F. Simrdll for respondents.
    (1) The proceeding authorized by sections 74 and 75, R. S. 1899, is an extraordinary remedy which is not to be employed in other cases and for other purposes than those which are clearly within the act. It was intended in a summary manner, without expense of delay, to take from a person embezzling or concealing the effects of a deceased person, the articles actually in his possession, and turn them over to the representative of the deceased. Dameron v. Dameron, 19 Mo. 317; Stewart v. Glenn, 58 Mo. 481. (2) These sections provide a summary remedy for the recovery of specific articles of property owned by the decedent at her death. Under these sections no inquiry into transactions and business dealings with decedent years before her death can be had. Neither the affiant for citation nor the interrogatories propounded describe any specific articles of property, but seek to delve into minute business transactions carried on by decedent sixteen years prior to her death. In other words, appellants seek by this extraordinary remedy to establish a debt against these administrators. This was never intended and cannot be done. Stewart v. Glenn, 58 Mo. 481; Brotherton v. Spence, 52 Mo. App. 664; Dameron v. Dameron, 19 Mo. 317; Howell v. Howell, 37 Mo. 124. (3) Even if every one of the wrongful acts attributed to.these administrators by appellants’ interrogatories was true; only a court of equity, aided by a referee, could investigate and pass on the matter. The probate court has no equity jurisdiction. If anything of this kind has been done by these administrators during the lifetime of decedent, it is hopelessly mingled with their own property and these statutes were not intended for cases of this kind. Hook v. Dyer, 47 Mo. 214. (4) Even if this proceeding were the proper remedy the proceeding cannot be maintained unless the administrators consent. R. S. 1899, sec. 75; Brotherton v. Spence, 52 Mo. App. 664; In re. Estate of Stewart, 67 Mo. App. 61; Hochu v. Struttman, 71 Mo. App. 399. (5) Administrators waived nothing by answering the interrogatories. No oral examination was asked or had by court or appellants. The interrogatories were filed five days before the day administrators were cited to appear. The interrogatories were the first thing presented to the administrators. They were compelled to answer them or risk being committed to jail. R. S. 1899, sec. 76. Waiver can alone arise as the result of a voluntary act and not as the result of one which the law commands to be done as a means of procedure in court. Tygard v. Falor, 163 Mo. 223.
   GRAVES, J.

The appellants and respondents are the heirs at law of Nancy A. Clinton, who died intestate, August 22, 1903, in Clay county, Missouri. Mrs. Clinton seems to have left in land and other property an estate of considerable proportions. On August 28, 1903, respondents, Thomas F. Clinton and Mary A. Clinton, were appointed by the probate court of Clay county administrator and administratrix of said estate, and qualified as such. Respondents for years, as alleged, had lived with the mother and had been her agents in the transaction of business.

On April 16, 1906, J. M. Clinton, for himself and as agent for his co-appellant, filed in the probate court of Clay county an affidavit charging the respondents with the concealment of assets of the estate. The material clauses of this affidavit read:

“And affiant further says that Thomas F. Clinton, Administrator, and Mary A. Clinton, Administratrix, of the estate of said Nancy A. Clinton, deceased, as this affiant has good cause to believe, and does believe, have concealed and are now concealing, and have failed and refused, and are now failing and refusing, to inventory and account for, according to law, or are otherwise wrongfully withholding, certain goods, chattels, money, books, papers or evidences of debts of said deceased, and now have the same in their possession or under their control, to-wit:
“1. The sum, of nine thousand five hundred dollars (as this affiant verily believes), collected as rents at various times and in various amounts, and of various persons, from the farm in Clay county, Missouri, containing three hundred and twenty acres, commonly called the ‘Martin A. King Farm.’
“2. Rents on the home place in Liberty, Clay county, Missouri, or the reasonable value of the use thereof, during the period extending from Aug. 22nd, 1903, to this day, aggregating six hundred and forty dollars.
“3. Cash derived from various sources (but belonging to said estate), other than the rents above stated, but the amount of which affiant cannot definitely state, though he believes it to be a very considerable amount.
“4. Sundry items of personal property, consisting in part of a horse, cow, carriage, harness, and household and kitchen furniture, reasonably of the aggregate value of five hundred dollars.
“"Wherefore, affiant prays said probate court to issue its citation to said Thomas F. Clinton, and Mary A. Clinton, citing them to appear before said probate court, at its May term, 1906, then and there to true answer make to the interrogatories that affiant and said James H. Clinton, or any person or persons interested in said estate, shall exhibit to them, and file in said matter, and otherwise to make answer to such citation as the law provides.”

In obedience to this affidavit citation was duly issued on the same day and return thereof made for May 19, 1906, being the 6th day of the probate court of said county for the May term thereof. Later and within proper time thirty-eight interrogatories were duly filed with said court by appellants.

On June 18th and during said May term of said court respondents filed their written answers thereto. These written answers were fully denied, practically seriatim, in a reply tendered to the probate court by appellants and in which they renewed their claim in their affidavit contained, that defendants were secre.ting large credits dne to said estate, to-wit, from $12,000 to $15,000, and closed their denial or reply thus:

“And wherefore, plaintiffs pray the court for all such judgments, decrees, reliefs, proceedings and directions as are proper and warranted by law under the interrogatories, answers, this reply, and the evidence which shall be taken in said matter. And plaintiffs pray for all other reliefs in the premises.”

The probate court refused appellants the privilege .of filing this reply to the answer, and on motion of respondents they were discharged from said proceeding and permitted to go hence without day, with their costs therein expended.

By the judgment, execution was likewise ordered.

From this judgment, an appeal was granted by the probate court to the circuit court. In the circuit court, the appellants again tendered, by written motion, the same reply which the probate court had demied them the right to file.

Later in the circuit court, the present respondents moved said court to dismiss the appeal by motion couched in this language:

“1. Because the probate court had no jurisdiction to proceed any further after said administrator and administratrix had filed their answers to the interrogatories propounded to them.
“2. Because the said administrator and administratrix had never consented, and do not now consent, that any further proceeding in this matter be had after the filing of their answers to said interrogatories.
“3. Because neither the probate court nor this court on appeal therefrom has any jurisdiction to hear, try or determine the pretended issues attempted to be raised by appellants.”

This motion the circuit court sustained. Appellants then filed their motion in arrest of judgment, which was likewise - overruled.

An appeal was granted by the circuit court to the Kansas City Court of Appeals, from which court the appeal has been certified here, upon motion of appellants challenging the jurisdiction of that court on account of the amount involved. Respondents still contend that the jurisdiction is with the Court of Appeals.

We have therefore two questions, (1) as to our jurisdiction and (2) as to whether or not there was error in the action of the circuit and probate courts of Clay county in refusing to allow a reply to be filed, issues made and a trial upon such issues. Our first inquiry must be as to our jurisdiction and afterwards to the merits, if we find jurisdiction here.

This states the case sufficiently for a disposition of the question involved.

I. If this is a suit or action within the meaning of the law, then there can be no question that the Kansas City Court of Appeals was right in certifying the case here, for the amount involved in the inquiry exceeds ten thousand dollars. The statutes are not as plain as they might be, and those involved here are:

“Sec. 74. If the executor or administrator, or other person interested in any estate, file an affidavit in the proper court, .stating that the affiant has good cause to believe and does believe that any person has concealed or embezzled, or is otherwise wrongfully withholding any goods, chattels, money, books,, papers or evidences of debt of the deceased, and has them in his possession or under his dontrol, the court may cite such person to appear before it, and compel such appearance by attachment.
“Sec. 75. If the party so cited does not admit the allegations in the affidavit, he shall he examined under oath, after which, at the instance of the administrator or executor, other witnesses may be examined both for and against such party; but before such other witnesses shall be examined, interrogatories shall be filed in writing, to be answered also in writing by the parties cited.
“Sec. 77. The issue upon the interrogatories and answers thereto shall be tried by a jury, or if neither of the parties require a jury, by the court, in a summary manner, and judgment shall be rendered ac: cording to the finding and for costs, and if convicted the court shall compel the delivery of the property detained by attachment of his person for contempt, and the court shall commit him to jail until he comply with the order of the court.
. “Sec. 78. Like proceedings may be instituted on the affidavit of any person interested against executors, administrators, or surviving partners, and on conviction the court shall compel such executor, administrator or surviving partner to inventory the property and cause the same to be appraised as the property of the estate.”

In discussing the question whether or not a proceeding under these sections is an action or suit, Barclay, J., in the case of Eckerle v. Wood, 95 Mo. App. l. c. 385, after a thorough review of the cases, said: “In the case at bar, the statutes (Secs. 74-78, R. S. 1899) provide a distinct proceeding for the disclosure of assets of an estate in certain circumstances. The proceeding is special, no doubt; but it comprehends all the essential elements of a suit. It presents a moving party, an adverse party, and it requires a decision by a tribunal invested with jurisdiction to determine it. [Tygard v. Falor, 163 Mo. 234.] The proceeding is one wherein a trial by jury is expressly authorized. A grant of power implies a grant of all incidental authority necessary to make the principal grant effective. [State v. Ryno, 49 N. J. L. 603.] A trial by jury of an issue of fact may require the production of testimony by deposition. The provision made for such a trial implies that the Legislature regarded the inquiry as in the nature of an action. "We consider that it is within the scope of the intention of the Legislature in the use of the words ‘suit pending’ in section 2877, R. S. 1899.”

In the Eckerle case they sought to have depositions taken- upon issues made by interrogatories and answers, and the" St. Louis Court of Appeals was asked to prohibit the taking of such depositions, but the court denied the writ, holding as above indicated.

In Tygard v. Falor, 163 Mo. 234, Tygard filed an affidavit in the probate court of Vernon county charging' Palor, as executor of his father’s estate, with having concealed and having in his possession $2,700 or $2,800, and of having failed and refused to inventory it. Interrogatories were filed as were also answers thereto. On a trial in the probate court, the issues were found for the defendant, Palor. Upon appeal, a trial was had in the circuit court before a jury, which jury found thus: “We, the jury, find the defendant guilty of wrongfully withholding $2,783 from the estate of Elias Palor, as charged.” On this verdict, a judgment was entered in accordance with section 78, compelling the defendant to inventory the money thus found to be in his possession. Appellants in that case relied upon some of the Court of Appeals cases relied upon by the respondents in the case at bar. Of course, had those cases been good law, this court should have reversed the Tygard case, but instead the proceedings therein were affirmed, and we think properly so.

So, too, in the very recent case, In re Estate of Jacob Huffman, 132 Mo. App. 44, the St. Louis Court of Appeals holds such actions to be “suits” within the meaning of the law, and that court after full review of authorities approves of a trial of the issues made by the improvised pleadings before a jury.

We have no doubt that the pro ceding is a suit or action within the meaning of the law, and further that the jurisdiction is fixed by the amount and value of the property alleged to be in the possession of the parties defendant, and by them not inventoried. This amount exceeds the jurisdiction of the Kansas City Court of Appeals, even under the Act of 1909, raising such jurisdiction to $7,500. We therefore rule that there was no error in the Kansas City Court of Appeals certifying this cause to this court for final disposition.

II. Going to the second question suggested in our statement, an answer thereto is practically indicated by our holding in the first paragraph.

In the very recent case of In re Estate of Huffman, 132 Mo. App. 44, the St. Louis Court of Appeals through Goode, J., so thoroughly states our views that we shall borrow largely therefrom. The case is identical with the case at bar. It is a proceeding against an administrator and administratrix, instituted by heirs at law. Judge Goode with great patience and much labor has compared our statutes with those of other States. He has analyzed the decisions of other States and shown their inapplicability to cases under our statutes. On this subject he says:

“The Missouri statutes dealing with the subject-differ from those of all the other States we have examined in essential particulars; chiefly in providing for a trial by jury of the issues raised. This provision is not found in any of the statutes of other states cited infra, except Maryland; and text-writers derive the proposition that the right of property cannot betriedin a proceeding like this one, from cases in other jurisdictions. [2 Woerner’s Law of Administration (2 Ed.), pp. 671 to 682; Schouler, Exrs., sec. 270; 18 Cyc. 216, par. D and notés.] But those eases, so far as the decisions are based on the lack of a statutory provision for a trial by jury, should be eliminated in considering the effect of our statutes. The opinions usually treat this omission as the decisive reason for saying property rights cannot be determined. [Dins-moor v. Bressler, 164 Ill. 211, 232; In re Beebe, 20 Hun (N. Y.) 462, 464; Howell v. Fry, 19 Ohio St. 556; Gardner v. Gillihan, 20 Ore. 598, 601.]”

Then, after a full review of further cases and statutes, he says:

’ “It will be seen from the foregoing summary of statutes and cases, that the adjudications in other jurisdictions can lend little assistance in the attempt to ascertain the object and effect of our statutes, in consequence of the wider scope of the procedure these provide and the use of materially different language-language suggestive of an intention to create a new' method of both discovery and recovery. It is worthy of note that in the Statutes of 1845, where the proceeding was first authorized and presumably the policy of the Legislature put into effect, it is said if the defendant appears and in his answer to the interrogatories denies the right' of the executor or administrator to the goods, chattels, money, etc., ‘the right thereof shall be tried by a jury; or, if neither party require a jury, by the court, in a summary manner, and judgment shall be rendered according to the right and for costs.’ This language imports a purpose to provide a method for determining the right of property as between the estate and the person accused of concealing or embezzling assets. The Statutes of 1855 (Sec. 10), instead of saying the right shall be tried, say the issue shall be tried; meaning the issue of whether the property is concealed or embezzled. The present statutes cover assets concealed, embezzled or otherwise wrongfully withheld, and sections 77 and 78 say the issue upon the interrogatories and answers filed, shall he tried by a jury, etc., and if the defendant is convicted, the court shall compel him to deliver the property detained; or, if he he an executor or administrator, compel him to inventory it. In oiir opinion, this legislation was not enacted merely to provide a method of investigating the good faith of a person who detains assets, hut to provide also a remedy by which detained assets could be brought quickly into tbe course of administration. The notion that tbe only object was to facilitate tbe discovery of bidden assets, preliminary to an action to recover them, is fallacious and founded on tbe decisions of jurisdictions where statutes, enacted only to assist discovery, prevail; and which do not take care of tbe constitutional right of trial by jury in cases involving property rights, because no property rights are involved under said statutes, but only information. In this State a jury trial of tbe issues is allowed and also an appeal; thus preserving to a defendant all tbe rights he would enjoy in any other form of action. It is unlikely that this elaborate procedure was devised simply to discover assets. Tbe purpose was broader— to expedite tbe administration of estates by affording a new and speedy remedy for collecting assets. Tbe same policy led to the creation by tbe administration statutes of other extraordinary remedies; for instance tbe allowance of small demands (R. S. 1899, sec. 200) or tbe redemption, sale and conveyance of real estate (Ch. 1, art. 8). In order to bring tbe administration of estates under tbe control of courts of probate as much as possible, and to hasten tbe proceedings therein those matters may be disposed of by novel procedures.
“We turn from tbe foregoing argumentation to consider tbe effect of tbe decisions rendered by the Supreme Court on tbe statutes in question. In Eans v. Eans, 79 Mo. .53', an administrator proceeded against tbe widow of his decedent to get possession of assets of great value alleged to belong to tbe estate. Tbe widow claimed them under a marriage' settlement, and on the first hearing, which was before the law embraced assets wrongfully withheld, the circuit court held the question was whether tbe widow had concealed or embezzled the property; and held, also, if the court found the property was kept by her undei color or claim of right as a separate estate, it had no jurisdiction, but the administrator must resort to the proper action at law or in eqnity. On this view of the law the court dismissed the cause for want of jurisdiction in the probate court to entertain it. On appeal the Supreme Court reversed the ruling and said that, under the statutes, the probate court had jurisdiction to hear and decide the question of whether the property in controversy remained the separate property of the widow under the marriage contract, and. that the circuit court had committed error in dismissing the complaint for want of jurisdiction. The case was retried in the lower court, again appealed, and the second appeal is reported as Gordon v. Eans, 97 Mo. 587. By reading the instructions copied in the opinion, it will be perceived that on the second trial, the circuit court tried the entire question of ownership under the marriage settlement, as affected by various circumstances tending to show a reduction of the' property to possession by the husband with the assent of his wife. Meanwhile, before the second trial, the law had been amended so as to make the proceeding applicable, not only to cases of concealment and embezzlement, but to those of wrongful detention of property. Several opinions were rendered on the second appeal. The judge who wrote the opinion on the first appeal and the main one on the second, so explained and modified, in a rehearing opinion, what he had previously said, that it is difficult to discern the theory of law on which the ease was decided. But the judgment was affirmed, and this involved a decision that- the trial court had not committed error in adjudicating the right of property. One concurring* opinion upheld this course by virtue of the amendment of March 16, 1881, extending the remedy to cases of assets wrongfully withheld. The opinion said the administrator had submitted the issue of wrongful withholding ‘based on the question of actual title,’ and the court, by virtue of the amendment, had power to hear and determine such an issue. A judge or two dissented from the proposition that the probate court could determine the right of property. If the precise point decided in Gordon v. Eans is dubious, there can be no doubt about what was decided in Tygard v. Falor, 163 Mo. 242, a case identical with the one at bar. Falor was executor of his father’s estate, and Tygard, as trustee, instituted a proceeding in the probate court against him on the statutes for the purpose of compelling him to inventory a certain asset. The affidavit charged Falor with having in his possession $2,800' in money belonging to the deceased which had not been inventoried; with receiving the money as agent of the deceased and never accounting for it. Interrogatories were propoundedinthe probate court which indicated the money had been collected by the executor from sales of cattle belonging to his father. His answers to the interrogatories admitted that he had sold and collected the money for the cattle and had deposited part of it in certain banks in his own name, but set up that the money thus deposited was not turned over to his father because the latter had given it to him and told him to keep it; that for the same reason he had not charged himself as executor with the money. He denied having concealed it or any other property belonging to the estate. On the trial in the probate court judgment was for the defendant and the plaintiff appealed. In the circuit court there was a tiial de novo on the interrogatories and answers, and the jury found the defendant guilty of wrongfully withholding $2,738 from the estate, as charged. Among other instructions the defendant requested the court to inform the jury that, if his father had given him the money, he was not required to inventory it as part of the estate and the verdict should he in his favor; that the proceeding was criminal in its nature, and if the jury believed the defendant had refused to inventory the money in good faith as a gift from his father, and in no way had tried to conceal it, the verdict should he for defendant; further, that the sole and only question presented was the guilt or innocence of the defendant in concealing the money as charged. These instructions were refused and on the appeal error was assigned for their refusal. Error was assigned, too, on an instruction given hy the court which told the jury to find the defendant guilty of wrongfully withholding the money from the estate, unless they found his father had given it to him to keep' and hold as his own personal property and that the burden of proof as to this issue was on the defendant. The Supreme Court affirmed the judgment in said cause; thereby affirming the proposition that the right of property may be tried in a proceeding like this. The opinion dealt with the alleged error of the trial court in refusing to instruct that, if the defendant had omitted to inventory the money in question because he claimed it openly as a gift from his father, the verdict should be for the defendant. The court said the instruction given for the plaintiff was correct, the two instructions asked by the defendant were properly refused, and that the substantial issue to be tried was the question of whether or not Falor had given the money in dispute to his son. The very proposition invoked by appellant in the present case was raised in said cause by the executor, to wit, that the inquiry must be restricted to the question of good faith; and some of the authorities now cited in support of this proposition were cited in the executors’ brief in said cause, viz: Cardwell v. Stuart, 67 Mo. App. 61; Stewart v. Glenn, 58 Mo. 489; Hoehn v. Struttmann, 71 Mo. App. 399. Though the Supreme Court did not expressly overrule. those cases, it ignored them and decided against their doctrine. The opinion in Tygard v. Falor cannot be reconciled with the prior decisions of the appellate courts and, of course, we must follow the Supreme Court. Its opinion is decisive against- both of appellant’s main contentions, namely, that interrogatories cannot be exhibited against an administrator and evidence heard on them, and that the right of property cannot be tried. It is also decisive that the issues to be tried are made up by the interrogatories and the answers, and that the probate court and the circuit court on appeal, have jurisdiction. Therefore, we overrule the contrary contentions of appellant.”

"We concur in all that he has said in this opinion. We believe that property rights are to be tried in such cases. It is a summary and quick method of bringing-property into the estate. The probate court is a court of record, and in practice, when not otherwise provided, may borrow from the Code. Whilst perhaps in the case at bar it was not necessary for a reply to be filed to the answers of the interrogatories, and the cases seem to indicate that the issues to be tried were upon the interrogatories and the answers thereto, yet we- are of opinion that to sharpen and shorten the real issues a reply should be permitted.

The opinion of Judge Goode, supra, recedes from the position formerly taken by the two Courts of Appeals, and we think rightfully. The opinion of Barclay, J., of the St. Louis Court of Appeals, in effect receded from the position of several of the cases named in the opinion of Goode, J.

The circuit court was in error in dismissing the appeal in this case. It was likewise in error in refusing the filing of the replication. The replication should have been filed, and the issues thereby sharply defined, and then if desired by either of the parties, sneh issues should have been tried before a jury as in Tygard v. Falor, supra, and as in the Huffman case, supra.

The cause is therefore reversed and remanded with the directions hereinabove indicated.

All concur.


source: Caselaw Access Project

author: WOODSON, J

license: Public Domain

text:
    ALFRED G. GARDNER, Appellant, v. METROPOLITAN STREET RAILWAY COMPANY et al.
    Division One,
    November 27, 1909.
    1. EVIDENCE: Inequality in Height of Rails: Non-Expert. Testimony of non-expert.witnesses, who with a yard-stick, straightedge and tape line, had measured the railway tracks at the point of accident, to the effect that the top surface of the rail on the side of the accident was one inch lower than the rail on the opposite side, was competent. Such testimony should not be excluded on the ground that the witnesses were not experts, or that the measurements were not taken with the assistance of a spirit-level.
    2. -: -: -: Excluded When Offered by Defendant. Unless the jurors know positively what evidence is to be considered by them they are in no position to properly consider the case or to return an intelligent verdict. And. where the court’s rulings upon the admission of proper evidence offered by plaintiff as to the height of railway rails at the point of the accident, were indefinite and uncertain, an announcement by the court when defendant, who is the appellant, offered similar testimony, that he had ruled “it was no evidence” and “there is no issue on that,” makes the uncertainty definite, and it should be held that plaintiff’s evidence was excluded.
    3. -:" -: -: -: By Instruction. And all uncertainty as to the court’s ruling is removed by the refusal of an instruction taking from the jury the issue which the proffered testimony tended to support.
    4. -: Exclusion: Not Assigned in Motion for New Trial. The exclusion of proffered testimony will not be considered on appeal unless its exclusion was assigned in the motion as a ground for a new trial.

      5. REMARKS OF COURT: Not Assigned in Motion. Remarks of the judge made during the progress of the trial, in the nature of comments upon the evidence and mild criticisms of counsel-for appellant, cannot be considered on appeal, unless the attention of the court was called thereto in the motion for a new trial.
    6. EVIDENCE: Ex parte Report of Motorman: Admission to Show Date. The admission in evidence of the written report of the motorman of the company detailing the facts of the accident, is not competent, is prejudicial, and there being no dispute as to the date of the accident it cannot be admitted for the purpose of showing its date. But the judgment cannot be reversed because of its erroneous admission unless appellant complained thereof in his motion for a new trial.
    7. NEGLIGENCE: Instruction: Arm Out of Window: Degree of Care. A cross-beam was bolted to one of the poles which supported the wire which supplied the feed wire which furnished electricity to the trolley wire, and the arm of plaintiff, a passenger, slipped through the open window and was struck by this cross-beam. Held, that the same duty of care, caution and prudence to protect the passenger from injury from said crossbeam, it being a part of the operative equipment, rested upon defendant, as rested upon it in the operation of the car itself, and the court erred in refusing an instruction that so declared.
    8. -:-:-:-: Contradictory. An instruction should not in one clause tell the jury that a railway company must exercise the highest degree of care to avoid injury to passengers, in constructing a cross-beam near its tracks, and in another tell them it was required to exercise only ordinary care. Such an instruction is contradictory.
    9. -: -: Inequalities in Track. Where the petition charges that the rail of the track was lower on the side next to the cross-beam than its mate on the opposite side, and that in consequence thereof the car was caused to lurch or lean so near to the cross-beam as to injure the passenger’s arm as it slightly protruded out of the open window, the evidence tending to prove those facts should be admitted, and it is error to so modify plaintiff’s instruction as to withdraw that issue from the jury.
    10. -:-: Burden: General Charge. Where the petition of the passenger charges specific acts of negligence, and is not a general charge, instructions that the burden of proof rests upon plaintiff to prove his case and continues throughout the trial, are proper. In such case the passenger does not make out a primafacie case for damages by showing he was a passenger, was injured by a collision, and was himself free from negligence.

      11. -: Contributory: Pleaded in General Terms. A plea of contributory negligence in general terms is, like a charge of neg- .. ligence in 'general terms, sufficient after verdict.
    12. -: -: Evidence: Protruding Arm. Evidence tending to show that the passenger’s arm was protruding through the car’s open window, and that it was injured while in that position, is sufficient to justify the court in submitting to the jury the issue of his contributory negligence.
    18. -: Instruction: Injury at Different Place: Variance. Where plaintiff’s evidence tends to show he was injured on a south-bound car on the west side of the viaduct, it is not error to give defendant’s instructions telling the jury plaintiff cannot recover if he was injured on a north-bound car on the east side of the track some distance from where plaintiff claims the accident occurred, there being evidence to support said instructions. - If defendant’s version of the facts were true, the proof was not a mere variance, but a departure from the pleadings.
    Appeal from Jackson Circnit Court. — Hon. Jno. G. Parle, Judge.
    Reversed and remanded'.

      Theoph. L. Carns for appellant.
    (1) A carrier is held to the exercise of that high degree of care, caution and foresight for the safety of its passengers that a very careful and prudent person would exercise under like circumstances. And this rule applies not only to the construction of the car, used by a street railway company, but to a trolley pole placed . at the side of the track and a cross-beam placed thereon, said pole and cross-beam being both used as a part of the operative equipment of the line. Och v. Railway, 130 Mo. 51. (2) A witness who carefully examines the two rails of a street car track, with reference to their relative height, and lays a straight-edge across said rails and measures from the floor of the viaduct on which the track is laid, up to the wearing surface of the rails, is competent to testify as to the relative height or level of the rails, even though he does not use a spirit-level, and even though, he is not an experienced railroad man or track man. Indeed a witness would be competent to testify as to such fact, even though he had only made ocular inspection of the rails. 17 Cyc., 102 and 104; Eyerman v. Sheehan, 52 Mo. 221; Heman Construction Co. v. O’Brien, 81 Mo. App. 639; McPherson v. Railroad, 97 Mo. 253; Charlton v. Railroad, 200 Mo. 413; Hovey v. Sawyer, 87 Mass. 554; Eastman v. Amoskeag, 44 N. H. 143; Vermillion v. Do, 6 S. D. 466; Morrisette v. Railway, 76 Vt. 267; Posachane Water Co. v. Standard, 97 Calif. 476; Railroad v. Pord, 22 Tex. Civ. App. 13; Olson v. Railroad, 24 Utah 460; Lightfoot v. Tract, 123 Wis. 479. (3) It is competent to show the conditions a short time before and a short time after the accident, as bearing upon the conditions at the time. Swadley v. Railroad, 118 Mo. 268. (4) Remarks by the trial court to counsel for the plaintiff, and in the presence of the jury, such as: “Yes, that suggestion is very improper,” or, “No, no, your remark is improper and will not be considered by the jury,” or “I am not going to allow you to parade any incompetent testimony here before the jury,” have a tendency to discredit counsel before the jury, and to cause the jury to suspect that the plaintiff, through his attorney, is seeking some unfair advantage, and thus to prejudice the jury against the plaintiff and thereby weaken his case. (5) It is not competent for the defendant, in a personal injury case, to introduce in evidence the written report of the motorman or conductor of .the car on which the injury occurred, said report being made on the same evening and after the accident occurred, and giving the version of said motorman or conductor as to how the accident occurred. (6) After the plaintiff, in a personal injury case, has shown that he was injured while riding along as a passeng'er on the defendant’s car, by being thrown against an obstruction near the track, and without any negligence on his part, the burden of proof shifts to the defendant to explain the injury by showing that it resulted from some unavoidable cause or from the contributory negligence of the plaintiff. And, under such circumstances, an instruction to the effect that “the burden of proof continues and abides with the plaintiff throughout the entire trial” is erroneous. Olson v. Railroad, 152 Mo. 456; Och v. Railroad, 130 Mo. 51; Wilkerson v. Railroad, 26 Mo. App. 152. (7) An instruction to the jury to find for the defendant, “unless you believe and find from the evidence . . . that the plaintiff has proven by a preponderance of the testimony, ”... the acts of negligence essential to recovery, is too exacting upon the plaintiff, and is erroneous. Grant v. Rowe, 83 Mo. App. 560; Murray v. Railroad, 101 Mo. 236; Williams v. Watson, 34 Mo. 95. (8) It was error for the court to instruct the jury to find for the defendant, unless they found from the evidence that the plaintiff was injured on the west side of the track by being brought into contact with said cross-beam. And, hence, the defendant’s instructions 9 and 10, are erroneous. If all the evidence were to the effect that the plaintiff was injured at the place and in the manner stated by the defendant’s witnesses, still there would not be a total failure of evidence, and neither would there be a fatal variance. Murdock v. Brown, 16 Mo. App. 549; Brown v. Railroad, 14 Mo. App. 580; Lesinsky v. Railroad, 14 Mo. App. 598; Ridenhour v. Railroad, 10'2 Mo. 207; Hansberger v. Railroad, 82 Mo. App. 566; Stalzer v. Dold, 84 Mo. App. 565; Hurlbut v. Railroad, 130 Mo. 657; Dickson v. Railroad, 104 Mo. 491; Neir v. Railroad, 12 Mo. App. 35; Girard v. Car Wheel Co., 46 Mo. App. 79; Harley v. Railroad, 57 Mo. App. 675; Werner v. Railroad, 81 Mo. 372; Robertson v. Railroad, 152 Mo. 382; Olmstead v. Smith, 87 Mo. 607; Carroll v. Paul, 16 Mo. 226; McGrew v. Railroad, 87 Mo. App. 250; Buck v. Railroad, 108 Mo. 179. (9) There is no evidence in this case that plaintiff’s arm was protruding from the window. But, if it had been so protruding, that fact •would not constitute contributory negligence per se. Germantown, etc., v. Bropliy, 105 Pa. 83; Murphy v. Railroad, 115 Mo. Ill; Winters v. Railroad, 39 Mo. 468; Miller v. Railroad, 5 Mo. App. 471; Carroll v. Railroad, 107 Mo. 663; Husenkamp’v. Railroad, 37 Mo. 537; Sweeney v. Railroad, 150 Mo. 385; Farlow v. Kelley, 108 U. S. 288; Quimm v. Railroad, 29 S. C. 381; Summers v. Railroad, 34 La. Ann. 139; Kreimelman v. Jourdan, 107 App. 64; Langan v. Railroad, 72 Mo. 392; Parks v. Railroad, 178 Mo. 108; Seymore v. Railroad, 114 Mo. 226. (10) It is not negligence per se for a passenger to rest his elbow on the window sill of a trolley car. Schneider v. Railroad, 54 Fed. 466 ; Dahlberg v. Railroad, 32 Minn. 404.

      John H. Lucas and Ben F. 'White for respondent.
    Complaints of errors in regard to the admission and exclusion of evidence; and also of certain remarks of the court were not called to the attention of the trial court in the motion for new trial, and hence they are not before this court for review. This court will not convict the trial court of an error which was not called to its attention in the motion for new trial. Coffey v. Carthage, 200 Mo. 629; State v. Miles, 199 Mo. 530; State ex rel. v. Trust Co., 209 Mo. 494. (2) Appellant complains of the action of the court in modifying and giving his instruction number two as to the degree of care due to plaintiff. This instruction, in the very first paragraph, tells the jury that if plaintiff was its passenger “then it was the duty of the defendant to' use and exercise that high degree of care,- caution and foresight for the safety of the plaintiff that a very careful and prudent person would use and exercise under the circumstances.” We think that properly describes the duty of the defendant. This portion of this instruction is not what is complained of: but it is in the instruction and we call attention to it so that this court can see whether, on the whole, the jury were not properly directed. Complaint is made that the court modified a portion of this instruction. But the part quoted from above is as it was given to the jury. The portion of this instruction to which objection is made is that where it is said that it was the duty of the defendant “if it knew, or by the exercise of ordinary care might have known” of the close proximity of the cross-beam to the track to have changed it. It will be noticed that the term ordinary care refers solely and alone to the distance this crossbeam was to the track. Nothing else is included in its scope. The duty which defendant owed to plaintiff as its passenger, was properly set out in this instruction. The only matter to which this ordinary care refers is to whether or not, by the use of such care, defendant might have discovered the situation of this cross-beam and so have changed it, if it needed changing. But this could not have misled or even affected the jury in the remotest degree, for the good and sufficient reason that the testimony shows that the defendant put that cross-beam there when the bridge was rebuilt, six months or so before the accident, and actually knew its condition all the time. If this be true, then how could a jury be affected by an instruction in regard to the “degree of care” which the law imposes upon it to make the discovery? So that this modification of this instruction could not possibly have made any difference in the verdict of the jury. (3) The action of the court in striking from plaintiff’s instruction 2, that portion authorizing a recovery for plaintiff if the jury should find that there was an inequality in the height of the two rails, and that this caused the car to lean toward the west, was fully justified, and for two reasons: (a) There was no competent evidence that the east rail was the higher and, (b) no evidence of any character that even if the east rail had been shown to be one inch higher than the west that this in any way tended to produce the injury. Neither the square, the stick nor the 50-foot measure would enable a layman to make even a guess as to which of two rails was the higher. It is preposterous to say that two men, wholly without experience as railroad track men, can take a square, a 50-foot tape line and a stick and tell anything at all as to whether the one or the other of two rails is the higher. Counsel insists that this is not a matter for expert testimony, and cites cases to the effect that a layman who has used a square may testify that the distance between a post and a rail on the track is so much. But can it be possible that counsel overlooks the fact that a square is an instrument made especially for measuring distances, while a spirit level is an instrument made to ascertain levels? A square, even in the hands of a lawyer or a layman, is all that is necessary to measure the distance between a post and a car track. But to áscertain which rail of a track is highest, nothing short of a spirit level or the judgment of an experienced track man would be any more than a mere guess, and, of course, incompetent. But there is still another reason why this feature should- have been eliminated frQm the instruction: There is no evidence anywhere in the record that even if it had been shown by competent evidence that the east rail was “about” one inch higher than the west one that this would have tended to cause the accident. Both were susceptible of proof and were alleged in the petition to have caused the accident. This instruction was properly modified. (4) Plaintiff must recover, if at all, upon the specifications of negligence in his petition. McGrath v. Railroad, 197 Mo. 97; Orcutt v. Century Building Co., 201 Mo. 424. Appellant also complains that the court submitted the question as to whether plaintiff had his arm outside the window, first because the answer did not allege that he had his arm out, and second, because there was no evidence that he did so. As to the first, the answer pleaded contributory negligence, which was sufficient. As to the second point, we cite the testimony. Counsel cites many cases which he contends hold that to put the arm out of a window is not negligence per se. We have not looked them up, because the instruction criticised did not make it negligence per se, but left that question to be found by the jury. ‘ ‘ The very act of negligence alleged must be proven, if a specified act is alleged.” Spiro v. Transit Co., 102 Mo. App. 261; McCarty v. Hotel Co., 144 Mo. 397; Fuchs v. St. Louis, 167 Mo. 620; Hite v. Railroad, 130 Mo. 132; ’Bartley v. Railroad, 148 Mo. 1. c. 139; F'eary v. Railroad, 162 Mo. 75; Chilty v. Railroad, 148 Mo. 74; Hamilton v. Railroad, 114 Mo. App. 509; Grany v. Railroad, 157 Mo. 666; Yarnell v. Railroad, 113 Mo. 570; McMananamee v. Railroad, 135 Mo. 447. Appellant had a fair trial. His story was contradicted by six eye witnesses and the jury very naturally decided that he was either mistaken or not telling the truth. The verdict was for the right party and should be sustained, without regard to technical errors. R. S. 1899, sec. 865; Bushey v. Glenn, 107 Mo. 331; Heny v. Grand Ave. Co., 113 Mo. 526; Burns v. Liberty, 131 Mo. 372; State v. Jennings, 134 Mo. 281; Carr v. Railroad, 195 Mo. 214; Wabash v. Sloop, 200 Mo. 198.
   WOODSON, J

The plaintiff was a passenger upon one of defendant’s street ears, and while being carried as such he sustained the injuries complained of. He brought this suit in the circuit court of Jackson county to recover the sum of $5,000 damages for those injuries. The trial resulted in a judgment for the defendant, and the plaintiff appealed.

The petition upon which the cause was tried, formal parts omitted, was as follows;

“For his cause of action plaintiff states that each of the defendants is a corporation, duly incorporated, and existing according to law; and that fendants have their general offices in KansaíHJity, Missouri.
“That at all the times hereinafter mentioned or concerned the defendants owned, controlled and operated a street railway in Kansas City, Wyandotte county, Kansas, extending from Fifth and Central streets in said Kansas City, Kansas, in a southwesterly direction to the northern approach of a viaduct, extending northward and southward over certain railway tracks, on Seventh street in said city, and thence southward over said viaduct, and thence southward and eastward in said Kansas City, Kansas, and finally to the stockyards which are located in both said Kansas City, Kansas, and Kansas City, Missouri. That at all said' times said street railway was what is known as an electric railway; that is to say, the motive power which propelled the cars thereon was electricity and was applied by means of what is known as a trolley wire running along above the tracks and over the center of the cars, together with what is known as a trolley pole extending upward from the cars and fitting with a grooved pulley to the underside of said wire. That, in constructing said railway, the defendants placed a pole or log about one foot in diameter on the west side of said viaduct and about three or four feet west from the west rail of the western track of said railway and about forty feet south from the north end of said viaduct, and stretched a cross-wire from the upper end of said pole across and over said railway for the purpose of supporting said trolley wire, which trolley wire ran lengthwise with said railway. That the defendants also placed a cross-beam upon said pole, extending horizontally eastward and westward, for the support of two heavy cables which rest upon the west end of said crossbeam. That said cross-beam is of hard wood and is about four or five inches square and four or five feet narj and is placed upon said pole about five and onejbove the car track.
“ThaF/the defendants negligently and carelessly placed said cross-beam upon said pole in such a way that the east end thereof extends about two and one-half feet eastward from said pole, and at all times, mentioned herein, has extended so near to the north rail of said railway that it almost scrapes upon the cars as they pass along toward the south in crossing said viaduct.
“That the defendants negligently laid the tracks of said railway, on the west side of said viaduct, in such a manner that the east rail of said western track, at the point opposite to said cross-beam, was, at all times herein concerned, about one inch higher than the west rail thereof, and in that manner caused the cars— as they passed said point — to lean or pitch over to the westward; and, when said cars were running rapidly said inequality in said rails caused them to lean or pitch further toward the west than when running slowly. That said railway, where it crosses said viaduct, is a double track railway, and at all times herein concerned the cars ran southward on the west track and northward on the east track thereof.
“That the defendants negligently ran their cars (including the car on which plaintiff was injured, as hereinafter mentioned) along said west track and passing said dangerous cross-beam, without placing the proper guards to the windows thereof for the protection of passengers upon said cars.
“Plaintiff states that on the 19th day of June,. 1904, he boarded one of defendants’ cars at said Fifth and Central Streets, Kansas City, Kansas, for the purpose of being carried as a passenger to said stockyards, and paid his fare, to-wit, five cents, to defendants’ conductor in charge of said car. That said car had one seat on each side thereof running lengthwise with said car; and that the seat on the west side did not extend fully to the rear or north end of the car, but that there was a space of about two feet between the end of the seat and the end of the car.
“That, when plaintiff entered said car, he found that both of the seats therein were fully occupied by passengers, and plaintiff was obliged to stand; and that the most convenient and comfortable place that plaintiff saw in which he could stand was in said space between the end of the seat, on the west side of the car, and the rear or north end of the car, and that plaintiff accordingly took his position in said space. That plaintiff stood in said space with his face toward the front of said car and with his right elbow and lower arm resting upon the window sill of the rear window on the west side of the car, and that said, window was pushed down from the top thereof until the top of said window was about even with the window sill.
“That, through the negligence of the defendants, there was no guard or other protection to said window except that there were-two or three bars placed horizontally across the window about four or five inches apart; and that the lower rod or bar was about eleven inches above the window sill. That plaintiff did not know of said dangerous cross-beam or of said inequality of said rails.
“That as said car approached said cross-beam, the servants of the defendants in charge of the same, negligently ran said car at a rapid rate of speed, so that, when the car struck said point where said rails were unequal as aforesaid, the car leaned or pitched over toward the west and thus caused plaintiff’s elbow to slip upon said window sill toward the west and slightly outside of the car, whereupon said cross-beam struck plaintiff's arm over the ulna bone and just below the elbow and cut plaintiff’s arm to said ulna bone and bruised and fractured the same, and thus forced plaintiff’s arm backward and against the rear frame of said window and broke the bone of plaintiff’s arm just above the elbow and forced the ends of said broken bone through the flesh and muscles of plaintiff’s arm, and greatly bruised, wrenched and dislocated plaintiff’s elbow.
“Plaintiff states that by reason of said injuries he has suffered and still continues to suffer great physical pain and mental anguish; and was confined to his house about six weeks; and has not been able to perform his usual labor since said injury occurred; and was obliged to expend and to obligate himself to expend about $130 for the services of physicians; and about $10 for medicines ; and was obliged to be nursed and eared for by his wife and children, and that their services in so doing, were of the reasonable value of $75. That said injuries have resulted in a stiffening and malformation of plaintiff’s right elbow joint, and in weakening plaintiff’s entire right arm, and that said elbow and arm are thus permanently injured.
“Plaintiff states that he is a tailor by trade and has been such all his life, and has no other trade or calling by which to support himself and family; and that, by reason of the injuries aforesaid he is permanently disabled from pursuing said trade; and has lost and will lose his earnings in said trade, during the remainder of his life. And that all said injuries have resulted from the negligence of the defendants in placing said cross-beam too near said car tracks and permitting it to remain so; in permitting said rails to be laid unequal in height and to remain so; in failing to protect the window of said car in the proper manner as above mentioned; and in running said car at too great a speed at said dangerous place. And that the defendants knew of the dangerous condition of said cross-beam and said car and said tracks, or by the exercise of reasonable diligence could have known of the same.
“Plaintiff states that by reason of said injuries, resulting from the defendants’ negligence as aforesaid, he has been damaged in the snm of five thousand dollars,” etc.

The answer of the Metropolitan consisted of a general denial and a general plea of contributory negligence.

The cause was dismissed as to the Kansas City Elevated Railway Company.

The reply was a general denial.

Plaintiff’s evidence tended to prove all of the allegations of the petition; and that of the defendant tended to prove that the plaintiff was injured while a passenger on one of its cars, on the day and at the hour, as shown by plaintiff, and on the same viad.nct; but that the injury occurred while the car was going north, on the east side of the viaduct, instead of on the west side of the viaduct, while the car was going south, as alleged by plaintiff. Defendant’s evidence also tended to show that the injury occurred about one hundred and fifty yards south of where plaintiff claims it occurred, and that the injury was caused by plaintiff’s arm coming in contact with a trolley pole, which stood on the west side, some ten or twelve inches from the line of the ear, as it passed, instead of coming in contact with a cross-beam which stood on the east side, about the same distance from the line of the car, as plaintiff’s evidence tended to show. In other words, there was no question raised as to the fact that plaintiff was a passenger and that he was injured by defendant while he was being carried as such; the difference between them being as to when and where the injury occurred, and the question of negligence and contributory negligence.

The plaintiff asked the court to instruct the jury as follows:

“1. The court instructs the jury that if you find from the evidence that the plaintiff was a passenger on one of the cars then being operated by the defendant in Kansas City, Kansas, on or about the 19th day of June, 1904, and that said car was at that time being rnn southward over a viaduct which passes over certain railroad tracks on Seventh street in said city; and if you further find from the evidence that there was at said time a pole standing on said viaduct, and just west of the track on which said car was so running, and that there was a cross-beam bolted on to said pole in such a way that the east end of the same was very close to and within a few inches of said car as it was so passing along; and if you further find from the evidence that at said time, and while said car was so passing said cross-beam the plaintiff’s elbow or lower arm was brought into contact with said cross-beam, and that plaintiff was injured thereby, and if you further find from the evidence that at said time and place, the defendant was guilty of negligence, such as is defined in other instructions given you by the court, and that said injuries to plaintiff, if any, resulted from such negligence, then your verdict must be in favor of the plaintiff, unless you further find from the evidence that the plaintiff was guilty of negligence on his own part which directly contributed to said injuries.
“2. The court instructs you that if you find from the evidence that the plaintiff was a passenger on a car which was being operated by the defendant, at the time and place referred to in other instructions, then it was the duty of the defendant to use and exercise that high degree of care, caution and foresight for the safety of the plaintiff that a very careful and prudent person would use and exercise under like circumstances.
“And if you find from the evidence that at said time and' place there was a post or pole standing at the west side of the track on which said car was running, and that there was a cross-beam bolted on to said pole in such a way that the east end of the same extended near enough to said track to endanger passengers on said car, and nearer to said track than a very careful and prudent person would have permitted under like circumstances, and that defendant knew of said condition of said cross-beam or by the exercise of said high degree of care and caution might have known the same in time to have changed said cross-beam and thereby prevented the injury to plaintiff, if any, then the defendant was negligent in said particular.
[“Or, if you find from the evidence that at said time and place the window of .said car at which the plaintiff claims to have been standing was not as well guarded or protected for the safety of passengers as a very careful and prudent person would have guarded or protected the same under like circumstances, and that defendant knew of such condition of said window, or by the exercise of said degree of care and caution might have known the same in time to have changed the same and thereby prevented the injury to plaintiff, if any, then the defendant was negligent in said particular.]
“ Or if you find from the evidence that at said time and place the east rail of said track was higher than the west rail thereof, and that said inequality of the rails caused the ear to lean or pitch over toward the west as it was passing said point, and thereby endanger passengers on said car, and that such inequality was greater than a very careful person would have permitted under like circumstances, and that defendant knew of said condition, or could have known the same by the exercise of said degree of care in time to have repaired said track and prevented such injuries to plaintiff, if any, then defendant was negligent in said particular.
“3. The court instructs you that the defense of contributory negligence, which is set up and charged by the defendant in this action, is an affirmative defense which must appear from the evidence; and that you cannot find a verdict against the plaintiff on this ground alone, unless it has been shown in the evidence that the plaintiff was guilty of.some negligent act or acts on his own part which directly contributed to the injuries complained of. And such negligent acts or acts must be such as a reasonably prudent person would not have been guilty of under like circumstances.
“In determining whether or not the plaintiff was guilty of contributory negligence, as herein defined, you will take into consideration all the facts and circumstances, shown in the evidence, and, unless it has been shown in the evidence that the plaintiff was guilty of some act or acts of negligence which a reasonably prudent person would not have been guilty of under like circumstances, and that such act or acts directly resulted in the injuries complained of, you will not find a verdict against the plaintiff upon the ground of contributory negligence alone.
“4. You are further instructed that if you shall find a verdict in favor of the plaintiff, you may assess his damages at such a sum, not exceeding five thousand dollars, as you may believe from the evidence will be a fair and reasonable compensation to him:
“First. For such pain of body and mind, if any, as you may believe from the evidence that he has already suffered, and such bodily pain, if any, as you may believe from the evidence he is reasonably certain to suffer hereafter, as a direct result of the injuries complained of.
ready suffered, and such bodily pain, if any, as you may believe from the evidence that he has sustained, or is reasonably certain to sustain hereafter, as á direct result of the injuries complained of.
“Third. For such permanent injuries to plaintiff’s body, if any, as you may believe from the evidence that he has sustained as a direct result of said injuries.
“Fourth. For such expenses for doctor’s bills, if any, not exceeding $100, as you may find from the evidence that he has necessarily incurred and expended as a result of the injuries complained of. ’ ’

The court gave said instructions numbered one, three and four, but refused to give two as asked, but modified it by striking out the words “said high degree of care and caution,” and inserting in their stead the words “ordinary care,” and by detaching and eliminating therefrom the following clauses: “Or, if you find from the evidence, that, at said time and place the east rail of said track was higher than the west rail thereof, and that said inequality of the rails caused the car to lean or pitch over toward the west as it was passing said point, and thereby endanger passengers on said car, and that such inequality was greater than a very careful person would have permitted under like circumstances, and that defendant knew of said condition or could have known the same by the exercise of said degree of care in time to have repaired said track and prevented such injuries to plaintiff, if any, then defendant was negligent in said particular.” The court gave instruction numbered 2 in its modified form.

To which action of the court the plaintiff duly excepted.

The defendant, upon its part, prayed the court to instruct the jury as follows:

“1. The court instructs the jury that the burden of proof is on the plaintiff to prove to your satisfaction by the preponderance of the credible testimony, that defendant was guilty of negligence as submitted to you in these instructions, and this burden of proof continues and abides with the plaintiff throughout the entire trial and unless you believe and find from the evidence in this case that the plaintiff has proven by a preponderance of the credible testimony to your reasonable satisfaction that the defendant was guilty of negligence as defined in these instructions, and that such negligence was the proximate cause of the injuries complained of, then your verdict must be for the defendant.
“By ‘Preponderance of the evidence’ is meant the greater weight of credible testimony.
“2. The court instructs the jury that you are the sole judges of the credibility of the witnesses and the weight and value to be given to their testimony, and in determining what weight and credit you will give to the testimony of any witness you should consider his or her conduct and demeanor on the stand, his or her interest in the case on trial; his or her opportunity to know and be informed as to the facts which they undertake to give testimony; and their ability to clearly remember and to clearly state such facts; their willingness or unwillingness to testify to any facts of which you may believe they have knowledge.
“3. It was the duty of the plaintiff to exercise ordinary care for his own safety, and if he failed to do so and such failure on his part directly contributed to the injuries complained of, then he cannot recover in this case, and your verdict will be for the defendant, even though you may find that the defendant was also negligent as defined in these instructions. By ordinary care as used in this instruction is meant such care as would be exercised by an ordinary prudent person under like circumstances.
“4. The court instructs the jury that there is no evidence that the car of defendant was run at a negligent rate of speed at the time and place of the accident.
“5. The court instructs the jury that this case should be considered by you the same as if it was a contest between two persons of equal standing in the community; the fact that one of the parties is a corporation should not and must not affect your minds in any way in the consideration of the case; the rights of the parties should be and must be determined upon the evidence introduced and the instructions given to the jury, which are the law and the only law to guide you in your deliberations.
“6. The court instructs the jury that i£ you find and believe from the evidence that the plaintiff knew or by the exercise of reasonable and ordinary care and diligence might or could have known that if he put his arm out of the window, or through the bars upon the side of the car, there was danger of his arm being struck and injured, and that he negligently put his arm out of the window or through the bars, and was thereby struck and injured, then your verdict will be for the defendant.
“7. The court instructs the jury that unless you find and believe from the evidence that the plaintiff has proven by a preponderance of the testimony to your satisfaction that he was struck by a cross-beam on the west side of the viaduct about eighty feet south of the north end thereof, while riding south upon defendant’s car, your verdict must be for the defendant.
“8. If you find from the evidence that plaintiff was injured on a north-bound car and on the east side of the viaduct, and not on a south-bound car on the west side of the viaduct, your verdict will be for defendant.”

The court, over the objections of plaintiff’s counsel, gave to the jury the foregoing instructions. To which action of the court in giving same, the plaintiff at the time duly excepted.

The errors assigned by counsel for appellant relate to the admission and rejection of testimony, and to the giving and refusing instructions. "We will mention such parts of the evidence and such of the instructions during the course of the opinion as may be necessary for a proper determination of the questions presented for our consideration.

I. We will first consider the errors assigned regarding the rulings of the court as to the rejection of testimony offered by the appellant.

Appellant offered the testimony of some two or three witnesses who had; observed and measured with a yardstick or straight-edge and a tape line the tracks of respondent just opposite, the cross-beam, mentioned in the evidence, to the effect that the top surface of the east rail of the west track was one inch higher than the west rail thereof. This evidence was offered for the purpose of proving that when the car passed the cross-beam in rapid motion it was thereby caused to lurch or pitch to the westward until the line of the car passed so near to said beam as to throw appellant’s arm against the same and thereby inflicted the injury complained of

This evidence was by the court excluded, for the reasons that it was not shown that the witnesses who took the measurements were experts in such matters, and because it was not shown that the measurements were made with the assistance of a spirit-level.

The exclusion of that evidence was clearly erroneous, as will appear by reading the following authorities : 17 Cyc. 102 and 104; Eyerman v. Sheehan, 52 Mo. 221; Heman Const. Co. v. O’Brien, 81 Mo. App. 639; McPherson v. Railroad, 97 Mo. 253; Charlton v. Railroad, 200 Mo. 413; Hovey v. Sawyer, 5 Allen 554; Eastman v. Amoskeag, etc., 44 N. H. 143; Vermillion v. Vermillion, 6 S. D. 466; Morrisette v. Railroad, 76 Vt. 267; Posachane Water Co. v. Standart, 97 Cal. 476; Railroad v. Ford, 22 Tex. Civ. App. 13; Olson v. Railroad, 24 Utah 460; Lightfoot v. Traction Co., 123 Wis. 479.

The rule respecting measurements is stated as follows, in 17 Cyc. Prac. & Proc. at p. 102: “An observer may state his estimate of size, including height, depth, breadth, thickness and width, and any change in these or other dimensions. The statement is merely one of fact as to which any person who has applied the measurements may testify, with weight proportionate to his age and experience.” And on page 104 of same volume, it is said: “In the absence of accurate measurements, a person of adequate knowledge and judgment may state the grade of a ditch, hill or railroad track. ’ ’

In Hovey v. Sawyer, 5 Allen 554, the Supreme Court of Massachusetts said: “As to where the highest point of a hill is, is a question upon which one man could not have any more or better means of forming an opinion than any other person of ordinary intelligence ; and it is not a question for expert testimony. ’ ’

In Eastman v. Amoskeag, 44 N. H. 143, the Supreme Court said: “In questions relating to heights and distances, and as to the number, quantity and dimensions of things, a witness may not be able to testify without an implied expression of opinion; but this is no objection to the testimony upon such points and subjects.”

It has also been held competent for a witness to testify as to the height to which a stream of water was thrown, when his only criterion was the height of a house near by, and he did not know the height of the house. [Vermillion v. Vermillion, 6 S. D. 466.] And for a witness to testify as to the size of a lantern, simply upon inspection. [Morrisette v. Railroad, 76 Vt. 267.]

So also held competent for a witness to testify that the grade of a ditch was not more than five feet to the mile. Here the appellant contended that, since the grade was a matter susceptible to exact measurement, the judgment of the witness was not competent. But the court held otherwise, and stated that, although this evidence might be overcome by a showing of the exact measurements, still the evidence was competent. [Posachane Water Co. v. Standart, 97 Cal. 476.]

It has been held competent for a witness to testify that there was a sharp curve and a sharp grade on the railroad at the point of accident. [Railroad v. Ford, 22 Tex. Civ. App. 131; Olson v. Railroad, 24 Utah 460.]

It is competent for a witness to estimate the height of a wood wagon. [Lightfoot v. Traction Co., 123 Wis. 479-.]

In this State a witness was permitted to give his estimate of the depth, or thickness, of broken stone. And the court further held that the witness might add his opinion, under certain circumstances. [Eyerman v. Sheehan, 52 Mo. 221.] This court also held that it was competent for a witness to give his estimate of the distance of a crane from a passing train, from his observation alone. [Charlton v. Railroad, 200 Mo. 413.]

Counsel for respondent do not contend said evidence was not competent; but their insistence is that said evidence was in fact admitted by the court and not excluded as contended for by counsel for appellant.

By reading page 56 of the abstract of the record, it will be seen that witness Cams testified as follows: ‘ The east track was about an inch higher than the west track at that point; the east rail of the west track was about an inch higher than the west rail at that point, and when Mr." Gardner and Mr. Gilley went over it, the track was in the same condition that it was when I first went there.” And on page fifty-nine appellant testified: “Well, we measured the east track, and we found it about an inch higher than the west one, that is, on the curve.”

While the record shows that Cams and appellant made the foregoing statements accredited to them, yet the ruling of the court is not clear and definite upon their admission, until we reach the ruling of the court upon the admission of the testimony of the witness Bullock. On pages 109 and 110 of the abstract, the following occurred: “Q. State to the jury what was the condition of the track over the viaduct, Mr. Bullock, with reference to its being either rail level with the other along the other side. A. The track was perfectly level. Mr. Cams: ‘I object to that question until it is shown that the witness had knowledge at that particular time.’ The Court: ‘Yes, and unless he put a level to it. ’ Mr. Loomis: ‘ The other gentlemen did not.’ The Court: ‘I held it was no evidence; there is no issue on that?’ ”

This ruling of the court made definite and certain that which was before indefinite and uncertain.

The rulings of the court should always be unequivocal and so definite in character as to leave no room for doubt in the minds of the jury, as to what evidence is admitted and as to what is excluded!. Without the jurors know positively what evidence is to be considered by them they are in no position to properly consider the ease, or to return an intelligent verdict. Even without the last ruling of the court, its previous rulings were so indefinite and uncertain as to afford just grounds for complaint on the part of appellánt; and with the last added, there can be no doubt but what the effect thereof was to exclude all the evidence which tended to show the rails of the track were uneven at the place of the accident.

This is also made clear by the action of the court in striking out of appellant’s second instruction all reference to his right to a recovery on account of the uneven condition of the rails.

This instruction will receive further consideration presently.

The exclusion of this evidence was error. The exclusion of that evidence virtually took from the jury the charge of negligence regarding the throwing of appellant against the cross-beam.

II. Counsel for appellant also complains of the action of the court for excluding various offers of testimony; but by an examination of the motion for a new trial, as suggested by counsel for respondent, we find! that none of those rulings was assigned as a ground for a new trial. This court will not reverse a judgment of the trial court for error which was not called to its attention in the motion for a new trial. [Coffey v. Carthage, 200 Mo. l. c. 629; State v. Miles, 199 Mo. 530; State ex rel. v. Trust Co., 209 Mo. l. c. 494.]

III. Certain remarks of the judge made during the progress of the trial, in the presence and hearing of the jury, in the nature of comments upon the evidence and mild criticisms of counsel for appellant, constitute the basis of this complaint.. Whatever merit there might have been in this assignment, appellant is in no position to complain, for the reason that the attention of the court was not called to those matters in the motion for a new trial. See authorities cited under the preceding paragraph.

IY. The same is true with regard to the objection lodged against the testimony of the witness, Ithry Pitzhugh, giving his opinion as to appellant’s condition at the time the injury was inflicted. The motion for a new trial did not call the attention of the court to this alleged error, consequently the court had no opportunity to correct its ruling regarding the admission of that testimony.

Y. Over the objection of counsel for appellant, the court admitted in evidence the following written report of the injury, made by Joseph Ploerke, motorman, who was in charge of the car which injured appellant :

“Office of Metropolitan Street Railway Company. Kansas City Elevated Railway Company, 621 Temple Block, Kansas City, Missouri, 6-20, 1904.
“No. 49656.
“Mr. Jas. Plosnke, 1512 North 19. Ks.
“Your name having been returned to us by a conductor as one of the several witnesses to an accident which is said to have occurred on our line at 7th and Kansas — 4:30 p. m. June 19', we therefore ask you, as a favor, to answer the following questions, in order to have as complete an account as can he obtained.
“Respectfully,
“Bernard Corrigan, President.
“Questions. : Answers.
“What is your full name? Joseph Floerke.
Address? 1999 Dora Ave. K. C. Mo.
Occupation? Junk Dealer.
Did you see the accident? Give-date and time. June 19th, 4:30 p. m.
Where did it occur? 7th St. Wydock, K. C. Ks.
Where were you when the accident ■ took place? In front platform.
Was the train in motion? Yes.
Was the hell ringing? Not necessary at the point.
Do you know anyone else that saw the accident? No.
If so, give name and address.
Who in your opinion is to blame for the accident? The injured man.
Please give full account of the accident as witnessed by you, showing no favor to either side. I have seen the man leaning or resting white his arm in raling or window protachen on car and the first post came in contact and the man got sick.
Date June 19th, 1904.
Joseph Floerke.
“Address, 1999 Dora Avenue, Kansas City, Missouri.”

It was stated by the court that this report was admitted for the purpose of showing the date of the injury.

Clearly, the admission of this report was erroneous. There wa,s no dispute as to the date of the injury. The petition stated that it occurred on June 19th, 1904, and all of the evidence hearing upon that point which was introduced by both appellant and respondent showed the injury occurred! upon that date.

If the date of the injury had been in dispute, then the motorman could have refreshed his memory from the report, but the report itself was not competent and should have been excluded. By its admission the jury was permitted to hear read the ex parte account of the injury made by the motorman, not under oath, nor was he cross-examined by any one on behalf of appellant. That evidence was highly prejudicial to him, and should have been excluded. [Sharp v. Railroad, 213 Mo. 517.] But notwithstanding this error was committed, we cannot reverse the judgment therefor, for the reason that appellant did not complain of that error in his motion for a new trial. Consequently, he cannot avail himself of it. [Coffey v. Carthage, supra.]

VI. The action of the court in refusing to give for appellant instruction numbered two, as asked by him, and in modifying it, and giving it in said modified form is complained of as error by counsel for appellant.

There are two errors assigned to that ruling. It is first insisted that it was the duty of the respondent to use and exercise that high degree of care, caution and foresight for the safety of the appellant that a very careful and prudent person would have used and exercised under like circumstances. And that the court should have told the jury that if they believed said cross-beam was placed nearer to the track in question than a very careful and prudent person would have permitted under like circumstances, and that respondent knew of said condition of said cross-beam, ór by the exercise of said high degree of care and caution might have known the same in time to have changed it and thereby prevented the injury, and that it failed to do so, then appellant was entitled to. a recovery. This is clearly the law of this State, as has been held by this court in scores of cases. [Lemon v. Chanslor, 68 Mo. 340.]

This cross-beam was bolted to one of the poles which supported the wire which supplied the feed wire which furnished the electricity for the trolley wire. The pole, cross-beam and wire were all necessary parts of the equipment furnished and uséd in furnishing the motive power for the cars. And the law imposed the same degree of care upon respondent in providing and furnishing that equipment as it did in furnishing safe cars in which passengers were to ride.

In discussing this question, this court in the case of Och v. Railroad, 130 Mo. l. c. 51, said: “While carriers of passengers are not insurers of their safety, and are not responsible when all reasonable care, skill and diligence, prudence and foresight have been employed, the law imposes upon them the utmost care and skill in selecting and furnishing safe means of transportation, and to that end to provide safe coaches and appliances, necessary for that purpose, including every part and parcel thereof, which very prudent men would exercise under like circumstances, and when the injury to the plaintiff was shown to have been occasioned by the falling upon her head of a ventilating window from the coach in which she was riding, then it devolved upon the defendant to show by a preponderance of the evidence that the injury was caused by something not under its control, and not from any fault, want of care, or watchfulness upon its part. The same degree of care was required of defendant as to-all parts and all kinds of its property used in the transportation of its passengers, as compared with its liability to cause injury to them. The same rule applies when the injury is caused by the want of diligence or care by those employed by the carrier. In Meier v. Railroad, 64 Pa. St. 225, it was said: ‘Prima facie, where a passenger, being carried, on a train, is injured without fault of his own, there is a legal presumption of negligence, casting upon the carrier the onus of disproving it.....This is the rule when the injury is caused by a defect in the road, cars, machinery or by a want of diligence or care in those employed, or by any other thing which the company can or ought to control as a part of its duty, to carry the passengers safely; but this rule of evidence is not conclusive.” See also Clark v. Railroad, 127 Mo. 197; Dougherty v. Railroad, 81 Mo. 325.

The refusal of the court to give appellant’s instruction which so declared the law was. error.

But counsel for respondent insists that the court so instructed the jury. In a sense that is true, but it is also true that in the same instruction at another place the court told the jury that respondent was only required to use ordinary care in that regard. So the most that can be said of this instruction is that the two clauses mentioned are inconsistent with and contradictory of each other. Such an instruction is erroneous. The jury had no means of knowing which of the two properly declared the law of the case, and we have no means of knowing which of the two the jury did follow.

And the second error urged against the ruling of the court relates to its action in striking therefrom the paragraph submitting to the jury the question of respondent’s negligence in constructing and maintaining the east rail of the track in question higher than the west rail thereof, and that in consequence thereof the car was caused to lurch or pitch so near to the crossbeam as to injure appellant’s arm. The evidence which tended to prove those facts should have been admitted, as before stated, and this clause of this instruction should have been given, submitting that question to the jury.

This' question came before this court in the case of Gage v. St. Louis Transit Co., 211 Mo. 139; and at page T56 this language was used: “Plaintiff complains of the action of the court in refusing to permit her to prove that street cars while in motion will rock and sway from side to side, on account of the inequalities of the track. We are of the opinion that said ruling was not error, for the reason that it is common knowledge that a car being propelled by steam or electricity over a railroad track will be swayed by inequalities of the track. [Geitz v. Railroad, 72 Wis. 307; Railroad v. Smith, supra, l. c. 271.] The juror’s knowledge of those facts is equal to that of any witness who might testify upon the subject. The swaying of the car is caused by the operation of the law of gravity and the mechanical forces used in. propelling the car. When a wheel of the car comes to a low place on the rail, the law of gravity carries it to the lowest point, and the mechanical forces operating upon the car, in turn, raise it to the highest point of the rail. This motion of the car will cause the car to rock from side to side where there are inequalities in the surface of the two rails; and if there are no inequalities, but both rails are depressed alike, then the motion of the car will be from end to end and not from side to side. All men of ordinary intelligence and observation know those facts; and the testimony of witnesses explaining those motions and their causes would shed no additional light upon the question. It is proper, however, to show whether or not the surface of the rails and tracks at the point of the injury were even or uneven at the time of the accident.”

We are, therefore, of the opinion that the court erred in excluding said evidence and in refusing appellant’s second instruction as asked; and also in modifying it and giving it in its modified form.

VII. Instructions numbered one and seven given on behalf of respondent are complained of by counsel for appellant. They, in effect, told the jury that the burden of proof was upon appellant to prove his case; and that said burden continued with him throughout the case.

Appellant invokes the doctrine that a passenger makes out a prima-facie case of damages against a common carrier for personal injuries when he shows that he was injured by a collision and was himself free from negligence. [Olsen v. Railroad, 152 Mo. 426; Orcutt v. Building Co., 214 Mo. 35.]

This rule only applies where the petition charges negligence in general terms, and does not apply where it specifically pleads the negligent acts which caused the injury, as the petition in this case does. [Beave v. Railroad, 212 Mo. 331; Klebe v. Distilling Co., 207 Mo. 480; Kirkpatrick v. Railroad, 211 Mo. 68.]

We, therefore, hold under the pleadings in this case there was no error in giving the instructions complained of.

VIII. It is the next insistence of counsel for appellant that the court erred in submitting to the jury the question of contributory negligence.

It is first claimed the court erred in that regard, for the reason that contributory negligence was not pleaded. Counsel is in error in this. The answer pleads contributory negligence in general terms, which, like a plea of negligence in general terms, is good after verdict.

The second contention is that there was no evidence which tended to show appellant was guilty of contributory negligence. Counsel is also in error in this matter. The evidence tended to show that appellant was riding with a portion of his arm protruding through the car window. This alone was sufficient to justify the court in submitting to the jury the question of contributory negligence. [Gage v. Railroad, 211 Mo. 139.]

There was no error in submitting the question of appellant’s contributory negligence to the jury. But the court should not have told the jury that such act constituted negligence per se and would prevent a recovery. [Gage v. Railroad, supra; Murphy v. Railroad, 115 Mo. 111; Seymour v. Railroad, 114 Mo. 266.]

• IX. The final insistence of counsel for appellant is -that instructions numbered seven and eight given by the court on behalf of appellant are erroneous.

They, in effect, told the jury that if they found from the evidence that appellant was struck by a crossbeam on the west side of the viaduct about eighty feet south of the north end. thereof, while he was riding south upon one of respondent’s cars, then their verdict .should be for respondent.

. [The petition charged and appellant’s evidence showed that he was injured on a south-bound car and on the west side of the viaduct; while the evidence of respondent tended to show that he was injured on a north-bound car and on the east side of the viaduct.]

Appellant contends that if it be conceded the respondent’s version of the facts was true, still that was not such a total departure between the allegations of the petition and the proof as would prevent a recovery, but was simply a variance which was not fatal to a recovery.

We are unwilling to lend our assent to this insistence, but are in full accord with the following views expressed by counsel for respondent upon that subject:

“It was charged that a certain combination of circumstances produced the injury. These were: A cross-beam placed too close to the west track, about' 80 feet south of the north end of the viaduct; that the east rail of the west track, at that particular point, was an inch higher than its mate; that this car was run over this spot at an excessive rate of speed, which caused the ear to lurch or lean toward this cross-heam, and the injury was thus produced. Plaintiff can only recover by proving that he was hurt by some one or all of these acts. No law is better settled than this. ’ ’

There ; is no pretense that" these-same conditions existed at the place where respondent’s evidence showed the injury occurred; but-concede that the same condition did exist, still they were not the same as those' charged in the petition, and which appellant’s evidence showed did exist in fact, and which caused the injury. “The very act of negligence alleged! must be proven, if a specified act is alleged. ’ ’ [Spiro v. Railroad, 102 Mo. App. 261; McCarty v. Hotel Co., 144 Mo. 397; Fuchs v. St. Louis, 167 Mo. 620; Hite v. Railroad, 130 Mo. 132.]

The court properly gave said instructions.

The judgment is reversed for-the errors before pointed out, and the cause is remanded to the circuit court for a new trial.

All concur.