author: LAMM, J.

text:
    KATE FLAHERTY v. ST. LOUIS TRANSIT COMPANY, Appellant.
    Division One,
    November 27, 1907.
    1. EVIDENCE: Physical Facts: Position After Failing. The way a person would fall from a street car and the position she would occupy when prone upon the ground, while the wheel was on her foot, would depend too much upon the play of instantaneous and convulsive muscular energy to be predetermined or determined at all according to any known rule.
    2. EXCESSIVE VERDICT: $7,500. Plaintiff, a. young woman, thirty-three years old, working as a family domestic at five dollars per week, was injured by the wheel of a street car running upon and mashing her foot; blood-poisoning set in, which made amputation impossible for two months; parts of the foot, both flesh and bone, sloughed away, and the evidence shows that no skill can perform an amputation and adjust a mechanical appliance in such a way as to avoid a halting step; all the foot except the heel was amputated, and the leg is two inches short. Held, that a verdict of $7,500 was. not excessive.
    3. NEGLIGENCE: Instruction: Stopping Car. Where the issue in the case is whether the car had stopped at the time plaintiff attempted to enter, that issue is put to the jury by the general instruction intended to cover the whole case which requires the jury to find as a fact that “defendant’s servants in charge of said car received the plaintiff as a passenger on .said eár.” If they found that to be so, then, by necessary implication, they rejected defendant’s theory that she was forced under the moving car by a rushing crowd, or that she negligently strove to enter a moving car about to stop.
    4. -: -: -: Made Pointed by Others. And where the other instructions given unmistakably point out that in order for plaintiff to recover the car must have stopped to receive passengers before she attempted to mount the running-board, the instruction is not misleading or so lacking in definiteness as to justify a reversal.
    5. -: -: Assumed Perilous Position. Where plaintiff’s testimony placed her with one foot on the footboard and the other on the body of the car, and as she was thus balanced and poised, the car was suddenly started with a shock, an instruction which predicated her right to recover on the truth of these facts is not erroneous as assuming that she was at that time in a position of danger, for it it a misapprehension to say her testimony put her in a position of safety on the car.

      6. -: - — ;—: Refusal. The refusal of a proper instruction whose vital elements are embodied in others given, is not error.
    7. -: -: Nurses’ Services: Sister’s Services: No Objection. Plaintiff, was first taken to a general hospital and nursed for a few days, and then to her sisteir’s house, which was not her home, and nursed by her sister day and night for three or four months more. No contract was shown to exist between her and her sister for such services. She was permitted to show these facts and the value of nursing generally, without confining it to the particular hospital, without objection; and her instruction on the measure of damages told the jury to compensate her “for any expenses necessarily incurred for medicines, medical or surgical attention or nursing which the jury may believe from the evidence plaintiff has incurred,'’ etc. Held, that in this condition of the evidence, plaintiff was clearly entitled to an instruction including expenses for nursing, and if defendant wished to confine her recovery to the nursing at the hospital, it should have asked an instruction so limiting it. The instruction was mere non-direction, not misdirection, and defendant having stood mute, and there being evidence to sustain the instruction given, which is good as far as it goes, there was no reversible error, whether or not the jury might properly have been instructed not to consider the services of the sister.
    8. -: -: Medical Services in Same: Definitely Proved. And the fact that said instruction included expenses for medical services and medicines, for which the evidence fixed a definite liability, and did not limit the amount of her recovery on those items, was not error, the petition asking for no specific amount under any one head or item of damages, and the instruction praying for a general verdict covering them all. If defendant desired a more specific instruction, it should have asked it.
    Appeal from St. Louis County Circuit Court. — flow. John W. McElhinney, Judge.
    Affirmed.

      Glendy B. Arnold for appellant; Boyle & Priest of counsel.
    (1) The court erred in giving plaintiff’s first instruction, because the instruction assumes that plaintiff was in a position of danger at the time the ear is alleged to have been set in motion, when, under the pleadings and proof, that was a disputed and a contested fact. Instructions should not assume controverted facts. Maxwell v. Railroad, 85 Mo. 105; Koenig v. Railroad, 173 Mo. 722; Siegrist v. Amot, 10 Mo. App. 206. (2) The first instruction is also erroneous because, in authorizing a verdict for plaintiff, it fails to require the jury to find that the car had stopped to receive her as a passenger and was standing still at the time she got aboard same, and, contrary to the petition, authorized a verdict for plaintiff merely upon a finding that there were jerks or shocks in the motion of the car as it rounded the curve. Instructions purporting to cover the whole case should not ignore important issues raised by the pleadings and evidence. Sawyer v. Railroad, 37 Mo. 241; Sullivan v. Railroad, 88’ Mo. 182; Thomas v. Babb, 45 Mo. 386. (3) Plaintiff’s twelfth instruction is erroneous because it authorizes a recovery for any expenses incurred by plaintiff for nursing, while the evidence shows that no such liability was incurred by plaintiff. Gribney v. Railroad, 108 S. W. 48. (4) The court erred in refusing defendant’s requested instruction 17. (5) The verdict is the result of passion and prejudice and against the overwhelming preponderance of the evidence. Spohn v. Railroad, 87 Mo. 74; Gribney v. Railroad, 103 S. W. 48; Spiro v. Railroad, 102 Mo. App. 263. (6) Plaintiff’s twelfth instruction is erroneous because it does not limit the amount which plaintiff was entitled to recover on account of expenses incurred for medicines, medical and surgical attention and nursing, as all of these expenditures were definitely fixed in, her evidence. Smoot v. Kansas City, 194 Mo. 522.

      A. R. Taylor and Albert E. Hausman for respondent.
    (1) Instructions which are good as far as they go, but do not cover the entire case, amount in civil cases only to non-direction and not to error, and it is the duty of the other party to ask proper instructions to supply the shortcomings of those asked by his adversary. Bank v. Ragsdale, 171 Mo. 186; Drey v. Doyle, 99 Mo. 465; Cornwell v. Railroad, 106 Mo. App. 135, 174 Mo. 444; Railroad v. Randolph T. Company, 103 Mo. 468; Montgomery v. Railroad, 181 Mo. 477; Hall v. Hall, 107 Mo. 101; Wheeler v. Bowles, 163 Mo. 398; 11 Ency. PI. and Pr., pp. 217 to 224 and note; 2 Thompson on Trials, pp. 1693, 1697. (2) Plaintiff’s instruction 1 does not assume that plaintiff was in a position of danger at the time the car was set in motion, bnt submits that fact to the jury to be found from the evidence. (3) Plaintiff’s instruction 12 correctly authorized a recovery for expenses incurred by plaintiff for nursing, for the evidence shows that she was nursed for five days at St. John’s Hospital, by a Miss Agnes Kennedy, and that she was nursed at her sister’s home for four months by her sister, of whose family she was not a member. The mere fact that plaintiff was nursed by her sister would not raise a presumption that the sister was performing those services without expectation of compensation unless it were further found that plaintiff and her sister lived together, in a family relation, as members of the same household. Callahan v. Riggin, 43 Mo. App. 137; Moore v. Renick, 96 Mo. App. 208; Dillard v. Wilson, 178 Mo. 157. The Gibney case, cited for appellant, was where daughters living with the mother nursed her. (4) Plaintiff’s 12th instruction is not erroneous for plaintiff was not required to state the amount recoverable under each head of damage unless her petition set forth the amount asked under each head of damage. The petition in this.case does not set out the amount asked under each head, but asks a general verdict. Wbeeler v. Bowles, 163 Mo. 398; Browning v. Railroad, 124 Mo. 55; Mirrielees v. Railroad, 163 Mo. 483; Gorman v. Railroad, 113' Mo. 408.
   LAMM, J.

— Plaintiff had judgment, nisi, for $7,-500, in an action for negligence. From that judgment, the defendant appeals here.

The petition charges and the proof shows that defendant, on the 12th day of June, 1904, was a corporation operating a railroad and the cars running thereon to Creve Coeur Lake in St. Louis county. It is further charged, as follows:

That “whilst defendant’s inbound car was stopped at said place to receive passengers therein, the plaintiff was by defendant’s servants'in charge of said car received as a passenger thereon, and whilst she was on the run-board or step of said car, and whilst she was stepping from said run-board or step' of said car, up and into said ear, to a seat on said car or a place to ride in security on said car as a passenger, and before she had a reasonable time or opportunity to reach a seat or place to ride in security on said car, defendant’s servants in charge of said car negligently caused and suffered said car to start and move forward and to sustain a severe shock, whereby plaintiff was thrown from her said position on said car to the ground, and her left foot was. thereby thrown under the wheels of said car and so badly mangled as to require amputation of all the foot except the heel. Plaintiff was thereby otherwise injured both externally and internally.
“That by her injuries so sustained plaintiff has suffered and will suffer great pain of body and mind; has been and will be permanently disabled from labor, and has lost and will lose the earnings of her labor, and has incurred and will incur large expenses for medicanes and for medical and surgical attention ,and nursing; and has been permanently maimed and rendered a cripple for life, to her damage in the sum of twenty-five thousand dollars, for which sum she prays judgment.”

The answer was a general denial, and, further, “that plaintiff’s alleged injuries were caused by her own negligence directly contributing thereto, in attempting to board a moving car, before same had come to a stop for the purpose of receiving passengers.”

The uncontradicted testimony tends to show that defendant’s railroad runs from the city of St. Louis to Creve Coeur Lake, some distance in the country, via Delmar Garden; that there was an aggregation of so-called fetching allurements there, besides a possible pleasing prospect of land and water, to-wit, a scenic railroad or “switch-back:,” popcorn and peanut stands, etc.; that at the entrance of said switch-back defendant’s track makes a loop which outgoing cars pass around, and, when turned towards the town, become incoming cars. As we grasp it, the place for receiving and discharging passengers is at a platform after the cars have passed around this loop. There is evidence indicating this was a Sunday evening and so many as two or three thousand people were at Creve Coeur Lake for an outing. Plaintiff, an unmaried woman, in good health, was a domestic in the service of Mrs. Shannon at a weekly wage of $5. Late in the afternoon, at about 4 p. m., a Mrs. From, Mrs. Shannon and Miss Flaherty boarded one of'defendant’s cars and rode to Creve Coeur Lake. They remained there until about 9 p. m. The evening was fine and the locus in quo well lighted. So, too, there is no dispute as to the character of the injuries received by plaintiff. In that regard, the record shows she proved the allegations of her petition. She was permanently injured; her left leg, the injured one, is two inches shorter than the other, and her foot was amputated at the heel — the lower extremity of the tibia and fibula and calcaneum (heel bone) being sawed off. Her doctor’s bill is $500'. She was bed-ridden for several months, and is confessedly bound for expenses for medicines. Having remained for a few days at St. John’s Hospital, she was taken to the home of a. married sister, and there nursed day and night while helplessly bed-ridden. At St. John’s she was attended by one of the nurses' employed there. There is no testimony she was nursed at her sister’s home by anyone, save her sister, or members of her sister’s family. There is no testimony she had been a member of that family; to the contrary, she was thirty-three years old and living out at service earning her own living. In connection with her nursing, she offered to prove and did prove (without objection from defendant) that reasonable pay for a nurse rendering similar day and night service was $5 per day. But plaintiff tendered no proof of an express contract of pay. So, too, it was shown by all the testimony that these three ladies undertook to board one of defendant’s return . cars to go home. The car was an open summer car with a canvas roof, known as a moonlight car. It was about forty-seven feet long, its seats ran crosswise and would accommodate, say, ninety-six passengers. Along one side of it there was a “run-board” or “running board, ’ ’ about 19 inches above the rail. This run-board from end to end was the step used to enter and leave the car on its open side, and from this run-board there was a rise of a few inches to the main floor of the car.

So far, there is accord; but as to the incidents of the injury and the cause of it, the evidence is in irreconcilable conflict. Thus, on plaintiff’s part there was evidence tending to show that the car reached the- place designated by defendant for passengers to get on and off; that it stopped; that at the time plaintiff undertook to board the car it was standing still, and there were few, if any, passengers on the car; that there was no crowd about the car and no particular rush, it being practically empty at the time; that the three ladies were together and awaiting a car; that Mrs. From got on first and took a seat about the middle of the car; that Mrs. Shannon then followed her and seated herself in the same seat; that thereupon Miss Flaherty followed to get into the same seat; that she got’hold of an upright in the car and got on the run-board; that with one foot on the run-board and one on the floor of the car she was raising herself to get into the car to take a seat, and when in that ticklish fix, poised on balance, so to speak, the signal bell rang and the car suddenly started forward a distance of from two to six feet and threw her violently backward and caused her left foot to get on the rail, and either the forward or back wheels of the hindmost truck caught her foot, thereat the car again stopped, this time with the wheel resting on her foot smashed and pinned fast to the rail. Plaintiff introduced evidence tending to show, further, that there were three cars in a row, all standing still; that the car in question was the middle one; that the forward ear was moved ahead; and that the middle car then hitched up, following the forward one.

Defendant’s evidence was strongly contrary to the foregoing. For instance, it introduced testimony tending to show there was a rush to board the car before it stopped and as the car came round the loop; that the conductor and motorman were crying out to the people to stand back, to keep away and not get hurt or killed, and could not control the crowd; that there was a crowd' congregated there, eager to return to town; that the car came around the loop slowly, the motorman feeding his power gently by moving up a notch, now and then; that he did not stop the car at all. until it reached the platform; and that when he. stopped to allow passengers to enter the car, one of the rear wheels was found to be on plaintiff’s foot; tbat when notified of tbat fact, he backed tbe car off ber foot; tbat tbe movement off ber foot was tbe only movement tbe car made after it stopped; and that there was no signal bell to go on after tbe car stopped for passengers. Neither defendant’s motorman or conductor saw plaintiff or ber friends getting on tbe car, or anything of tbe accident until a halloo was raised tbat tbe car was on a lady’s foot.

One of defendant’s witnesses, however, did testify tbat tbe car, before smashing plaintiff’s foot, stopped a little while, a short ways off, and then started forward. To offset this, be further said tbat at tbe time tbe car stopped tbe first time plaintiff and ber companions were not close enough to it to get on. At least, tbe witness was at tbe spot and trying to keep tbe crowd back, and then went forward. We do not understand tbat be saw plaintiff at the time she was trying to board tbe car. No other eye-witness introduced by defendant testified to seeing plaintiff trying to board tbe car. Tbe broad and open inference from defendant’s testimony is that plaintiff was either pushed by tbe crowd on tbe rail while tbe car was moving, or, tbat in undertaking to unnecessarily and negligently mount a moving car, she met with ber mishap.

However, there seems to be little, if any, contradiction. as to tbe fact tbat when plaintiff fell she fell backwards, straight out from the car. It seems tbe run-board projects quite a distance beyond tbe rail and tbe wheels; and defendant’s learned counsel argue tbat tbe position in which she fell and ber awkward explanation of bow she fell into tbat position are “physical facts” destroying tbe theory tbat she was thrown in tbat way with ber foot on tbe rail by tbe movement of the car. It is allowable to say, possibly, tbat tbe way a person would fall and tbe position she would occupy when prone upon tbe ground would depend too much upon the play of instantaneous and convulsive mus- • cular energy to be predetermined, of determined at all, according to any known rule. It might be a physical fact that a person would fall and lie in a given way .under given circumstances; and it might also be a physical fact that the same person falling under the' same circumstances would lie or roll in an entirely different way. If the crowd rushed upon plaintiff and pushed her foot under the wheels, or if in a rush she carelessly got on a moving car, it is not any more apparent why she could fall backwards than that she should be thrown backwards out of a car by a forward jerk.

The court (among others) gave the following instructions :

1. “If the jury find from the evidence in this case, that the defendant on the 12th day of June, 1904, was operating the car mentioned in the evidence as injuring the plaintiff as a carrier of passengers for hire; and if the jury find from the evidence that on the evening of said day at or near Creve Ooeur Lake at the place men-' tioned in the evidence, defendant’s servants in charge of said car received the plaintiff as a passenger on said car; and if the jury find from the evidence that' whilst the plaintiff was oh said car and the running-board thereof, and’ before she had a reasonable time or opportunity to reach a seat on said car, or a place of safety on-said car, defendant’s servants in'charge-of said car negligently cansed or suffered said car to start and move forward and sustain a shock and that thereby plaintiff was thrown from said' car, and run upon, and her foot crushed and injured by the wheel of said car; and if the jury find from- the evidence that plaintiff was exercising ordinary care at the time of her injury, she is entitled to recover.”
2. ’ “The court instructs the jury that if they find from the evidence in this case that defendant was on the 12th day of June, 1904, operating the car mentioned in the evidence as injuring the plaintiff, for the purpose of carrying passéngers for hire; and if the jury find from the evidence that on the evening of said day, at or near Oreve Coeur Lake defendant’s servants in charge of said car stopped said car, at the platform mentioned in the evidence and that said place was one of the points where defendant usually received passengers on said car; then the court declares the law to he, that defendant’s servants in charge of said car were in duty • bound to keep said car stopped until all passengers intending to become passengers on said car had a reasonable time and opportunity to do so — and before starting said car (if they did so start said car) to use ordinary care to see that no passenger was in danger from a movement of said car. ”
3. “Plaintiff alleges as her cause of action in this case that on the 12th day of June, 1904, at Creve Coeur Lake, in St. Louis county, Missouri, while defendant’s car was stopped at said place to receive passengers thereon, the plaintiff was by defendant’s servants in charge of said car received as a passenger thereon, and that while plaintiff was on the running-board or step of said car, and while she was stepping from said running-board or step of said car up and onto said car to a seat in said car or to a place to ride in security on said car, and before she had a reasonable opportunity to reach a seat or place to ride in security on said car, defendant’s servants in charge of said car negligently caused and suffered said car to start and move foiward and to sustain a severe shock, whereby plaintiff was thrown from her position on said car to the ground, and that thereby she received the injury of which she complains,
“The act of negligence complained of and alleged in the petition, is that when plaintiff was on the running-board or step of the car the servants of defendant in charge of the car negligently caused or suffered said car to start and move forward and to sustain a shock, and that such negligence in causing or suffering said car to move forward and by such moving or suffering said car to move forward to cause a shock, threw plaintiff to the ground and caused the injury of which she complains.
“The burden is on plaintiff throughout the whole case to prove to the satisfaction of the jury by the greater weight of the evidence, that said alleged act of negligence caused the injury, if any, of which plaintiff complains, and unless the jury believes that plaintiff has proved by the greater weight of the evidence that defendant’s said servants were negligent in the manner alleged as aforesaid, and that- said alleged act of negligence caused the injury, if any, which plaintiff suffered, then the verdict must be for defendant. ’ ’
4. “Defendant in its answer denies the negligence alleged as the cause of plaintiff’s alleged injuries, and in addition thereto defendant alleges that said injuries, if any, were caused by plaintiff’s own negligence directly contributing thereto in attempting to board a moving car before the same had come to a stop* for the purpose of receiving passengers. While the burden is on defendant to prove the allegation of its answer to the purport that plaintiff was injured by her own negligence, yet that does not relieve the plaintiff from the burden of proving by the greater weight of the evidence that her injuries, if any, were caused by the negligence of defendant and its servants in the manner in which plaintiff charges it was done. In other words, plaintiff must prove to the satisfaction of the jury by the greater weight of the evidence that she received the injuries, if any, of which she complains, in the way she alleges she received them, and unless she has so done, then the verdict must be for defendant.”
7. “Before the jury can find for the plaintiff in this case they must believe from the greater weight of the evidence that plaintiff got onto the running-board or step of the car when it had stopped, and that while she was in that position the car was started forward and sustained a shock by which she was .thrown from the car and. received her injuries, and unless they so believe then she cannot recover in this case, although the jury may believe that defendant was negligent in some other way or manner.”
8. “If the jury believe from the evidence that when the car on which it is alleged plaintiff received her injury was approaching the stopping place, there was a crowd' of people trying to board the car before it stopped, and that plaintiff was in the crowd, and that the car was moving slowly and the conductor and others were warning the crowd to keep off or back from the car until it stopped, and that notwithstanding such warnings plaintiff attempted to board the car before it stopped, and that before it stopped she fell and her foot was caught under the car, and that she was not on the ear and was not thrown off the car by any sudden shock of the car in starting forward after she had got onto the car, then the plaintiff is hot entitled to recover in this case and the verdict must be for defendant.
9. “Although the jury may believe that plaintiff had not boarded the car but was trying so to do and that the pressure of a crowd about and around her combined with her attempt to board the car, threw her down and that thereby her foot was caught under a wheel of the car and injured, and that she was' not thrown from the car by its moving forward and said car sustaining a shock, then plaintiff cannot recover and the verdict must be for defendant.
10. “If the jury believe from the evidence that neither plaintiff nor defendant was guilty of negligence, as defined in other instructions, but that the injuries, if any, sustained by plaintiff were the result of an accident, then the jury should find for the defendant.
12. “If the jury find for plaintiff they should assess her damages at such sum as they may believe from the evidence will be a fair compensation to her—
“First, for any pain of body or mind which the jury may believe from the evidence she has suffered or will hereafter suffer by reason of her injuries and directly caused thereby.
‘ ‘ Second, for any loss of the earnings of her labor which the jury may believe from the evidence she has sustained or will hereafter sustain by reason of her injuries and directly caused thereby.
“Third, for any expenses necessarily incurred for medicines, medical or surgical attention or nursing which the jury may believe from the evidence the plaintiff has incurred by reason of her injuries and directly caused thereby.”

Of the foregoing instructions defendant now complains of number 1 and number 12.

Defendant, among other instructions refused, ashed number 17, reading as follows:

“While it was the duty of defendant as a carrier of passengers to exercise a high degree of care, in receiving and protecting plaintiff if she sought to enter defendant’s car as a passenger, yet plaintiff ought on her part to exercise ordinary care when seeking to become a passenger, and if she entered or attempted to enter defendant’s car while it was in motion she did so at her own peril, unless the jury further believe that defendant’s servants in charge of the car by their conduct invited her to enter before the car stopped; and if the jury further believe that defendant’s conductor, and others, if any, acting upon the request of defendant’s servants publicly warned those seeking to become passengers to stay off the car until it stopped and that notwithstanding plaintiff entered or attempted to enter the car before it stopped, then plaintiff was not received as a passenger and was not exercising ordinary care on her part, and the verdict must be for defendant.”

On this record it is argued that the verdict is the result of passion and prejudice and against the overwhelming preponderance of the evidence. The further errors assigned relate to the giving and refusing of instructions. In that behalf, it is argued that:

(a) Instruction number 1 is erroneous because it assumes that plaintiff was in a position of danger at the time the car is alleged to have been set in motion, when that was a disputed fact on the foregoing record.

(b) That said instruction is further erroneous because it fails to require the jury to find that the car was standing still at the time she got aboard the same; and, contrary to the petition, it authorized a verdict for plaintiff merely upon a finding that there were jerks or shocks in the motion of the car as it rounded the curve and before it stopped to receive passengers at the platform.

(c) That the 12th instruction is erroneous in that it permitted a recovery for any expenses incurred by plaintiff for nursing — the evidence showing there was no such liability.

(d) That said instruction was further erroneous in not limiting the amount which plaintiff was entitled to recover on account of expenses incurred for medicines, medical and surgical attention and nursing — all these expenses being definitely fixed in her evidence.

(e) That there was error in refusing defendant’s instruction number 17 — the question whether plaintiff was received as a passenger being a material one (not submitted), and defendant’s evidence showing she was not so received.

On such assignment is there reversible error in the case?

I. The testimony shows that blood-poisoning set in presently after plaintiff’s injury; that her resulting physical condition made an amputation impossible for over two months; that parts of her foot (both flesh and bone) sloughed away; and that with an amputation of the kind finally rendered necessary in her case, no hand however cunningly it wrought can so adjust a mechanical appliance as to avoid a halting walk. That she suffered greatly in mind and body from her pains goes without saying. In the presence of such facts, we are not willing to say that a judgment of $7,500 of itself indicates such passion or bias in the jury as would poison it. Twelve very cool, dispassionate and just men (through no heat of passion or twist of prejudice and out of no flippancy in mere form or veneering of gallantry) put to it by their oaths and the facts, might well have rendered such a judgment as adequate compensation to a young woman handicapped throughout life, as Miss Flaherty is shown to be; for true it is the race is not always to the strong and the swift, and yet a happy mind at ease in a sound body is of the essence of good. Bunyan held this in mind when he made his immortal hero loosen and lose the burden weighing him down in his journey to the Celestial City and the Delectable Mountains; and, peradventure, Diogenes hinted at it when he waived Alexander’s princely offers to one side and asked him (and Bucephalus, too, maybe) to get out of his sunlight. The point is ruled against defendant.

II. Plaintiff’s testimony, as said, tended to show the car had stopped at the proper place to receive passengers ; that there was an implied invitation to enter the car as a passenger; that she, in the usual way and in the exercise of proper care, was mounting the car; and that while so mounting it, with one foot on the run-board and the other on the floor, there was a sudden car movement forward and she was cast off, thrown down and injured. Defendant’s testimony, to the contrary,' as said, tended to show one of two things — either that Miss Flaherty was forced against and under the car by a crowd vulgarly pushing and struggling to get on, without regard to the safety or personal rights of ladies present, or else that she negligently undertook to mount a moving car that had nearly reached its stopping place, and was injured by her own inadvertence; and that, in either event, defendant acquitted itself of fault by ■timely protests and careful conduct.

In this condition of the proof it must be held that plaintiff was entitled to an instruction on her theory, and defendant to instructions on its theory of the case. It is argued by learned counsel that, with the proof as it was, the question of whether the car had stopped to receive passengers was vitally material and that the proof looked both ways on that question. Therefore, they say, an instruction ought not to fail to put it to the jury, in some form, to find that the car had stopped when Miss Flaherty sought to enter. So far we agree with them. They say, moreover, that instruction numbered 1 did so fail to put that material and controverted fact to the jury to find; but we cannot agree this is so.

On the one hand, an instruction ought not to be read as if it stood solitary and alone, independent of every other instruction. On the other hand, a general instruction, covering the whole case, ought not to ignore essential elements of the case made. Applying these rules to instruction numbered 1, it will be seen it is a general instruction. It puts certain facts to the jury and tells them if they find the facts that way, then plaintiff is entitled to recover. It will be seen, also, that one of the facts put to the jury to find is that “ defendant’s servants in charge of said car received the plaintiff as a passenger on said oarIf they found that to be so, then, by necessary implication, they rejected defend ant’s theory that she was forced under the car hy a rushing crowd, or that she negligently strove to enter a moving car about to stop at the platform for the ingress and egress of passengers. The instruction, in effect, requires the jury to find that the plaintiff was invited to enter the car, had accepted the invitation, and was in the act of entering the car. Now, if the jury found this to be so, then Miss Flaherty was a passenger and entitled to a passenger’s care; for defendant had received her as a passenger in the eye of the law. [Devoy v. Railroad, 192 Mo. l. c. 210, et seq., and cases and authorities cited.]

Moreover, by its terms, the instruction required the jury to find she was on the run-board, had not had a reasonable time or opportunity to reach a seat, and that defendant’s servants threw her to the ground and injured her by a negligent act, to-wit, by causing or suffering the ear to move fonvard and to sustain a shock. It is argued that the instruction is so worded as to apply precisely as well to the fact that the car had not stopped at all when plaintiff tried to enter; that the forward movement referred to might be an accelerated motion given to the then moving car, and not to a forward movement following a standstill; that the state of the whole proof pro and con was of such a character as to make this a delicate, but turning, point in the caseq and, therefore, the instruction should have been guardedly rounded out with such precision as to confine plaintiff to her own theory as outlined in her petition, to-wit, that the ear had actually come to a stop at the proper place when plaintiff undertook to enter.

It may be conceded the instruction is in the shadow of a little vagueness, taken by itself and eyed critically. But in ordinary speech if A says B “moved forward,” there is a fair implication, at least, that A means that B was in a condition of repose when the movement began. If A was bent on expressing the idea that B was going at the time, but then and there began to hasten his pace, he would naturally have inserted some word to convey the accelerated motion. The absence of such modifying word, here; is not without significance. If, now, it be remembered that the instruction required the jury to find that plaintiff had been received as a passenger; and if, with that fact in mind, the other instructions are looked to, we think it sufficiently appears that the jury could not have been misled. The fair intendment of the whole body of the law delivered to the jury confined plaintiff to the case made in her pleading. Thus: By instruction 2 the jury were required to find that the car had stopped at one of the points defendant usually received passengers. Instruction 3 outlines the elements in plaintiff’s cause of action, and one of these elements was that the car had stopped when she entered. Instruction 4 outlined the elements in defendant’s answer. One of these elements was that the car had not stopped for the purpose of receiving passengers; and the instruction tells the jury that plaintiff must establish by the greater weight of the evidence that she received the injuries of which she complains “in the way she alleges she received them, and unless she has done so, then the verdict must be for the defendant.” Instruction 7 told the jury that before they found for plaintiff they must find she got on the run-board when the car has stopped, and that her injury must be found to be the result of a subsequent forward movement of the car. Instruction 8 put defendant’s defense to the jury as outlined in the answer; and they were told that if plaintiff was in a crowd of people who were trying to board a car before it stopped, that the car was moving slowly and the conductor and others were warning the crowd to keep back until it stopped, and notwithstanding such warning plaintiff attempted to board the car before it stopped, etc., and fell and was injured, then she' could not recover. Instruction 9' told the jury that if the pressure of the crowd, combined with her attempt to board the car, threw her under the wheels, and that she was not thrown there by a forward movement of the car, then she could not recover. Instruction 10 told them that if it was a mere accident, without fault on either side, she could not recover. ?

With these instructions submitted in a series, consecutively, as one charge by the court, it cannot well be seen how the jury were misled as defendant fears. The point in hand is also ruled against defendant.

III. In this connection it is argued by defendant’s counsel that instruction numbered 1 is erroneous in assuming that plaintiff was in a position of danger at the time the car is alleged to have been set in motion, when that was a contested fact under the proof. It is pointed out that the petition does not allege that the act of starting forward was unusual Or different from the ordinary manner of starting ears with passengers aboard; that it is not alleged the jerk or shock was unusual ; that the precise and fair legal intendment of the allegations in the petition is that any starting of the car when plaintiff was in the^ position she says she was, to-wit, balanced and poised, with one foot- on the run-board and one in the body of the car, would be a negligent act; that the duty violated was the duty to keep the car still while plaintiff was getting on, and until she had reasonable opportunity to seat herself. It is conceded by counsel that if the plaintiff was in the very act of passing from the foot-board into the body of the car, then “any starting of the ear under her theory was negligence;” but it is argued that if she was on the car, then the mere starting of the same without any unusual motion or jerk would not be negligent. Based on the theory that plaintiff introduced testimony tending to show that she was on the body of the car at the time she was thrown off, it is contended that- the instructions erroneously assumed that she was in a place of danger. But we do not think there is any substance in this contention. It is a misapprehension to say that plaintiff’s testimony put her in a place of safety on the car. That testimony placed her in a situation of passing from the run-board to the body of the car and in a place where any sudden start of the car would unbalance her and did, especially if accompanied by a movement so sudden and pronounced as to be said to cause the ear to “sustain a shock,” as set forth in the instruction criticised. This point is also ruled against defendant.

IV. Instruction numbered 17, refused to defendant, was a proper declaration of law; and had the elements of that instruction not been given, in substance, to the jury in others, it would have been palpable error to refuse it. But, as we read it, its vital elements had been given to the jury in other instructions, and the assignment of error predicated of its refusal is disallowed.

V. Instruction 12, on the measure of damages, is criticised from two sides. It is argued that under the proof there is no liability resting on plaintiff to pay any nurse hire. In fine, that she was a member of her sister’s family, and that (without an express contract) there is no contract implied to pay for care and attention. It is assailed on another side, to-wit, that the evidence definitely fixed the liability for medicines, medical and surgical attention and nurse hire. Therefore, it is argued, the instruction should not have been general, but should have limited the amount of-her recovery on these items. Of these in their order.

(a) It is overlooked in the first assault on this instruction that there was evidence that plaintiff remained a few days in St. John’s Hospital and there was attended by a nurse, a stranger to her. There can be no question but the law raises an' implied contract to pay for services under such circumstances. True it is that the great body of her nursing was in her sister’s home. She was allowed to prove that nursing by her sister without objection. She was allowed to prove (without objection) the value of nursing generally, without confining it at St. John’s. In this condition of her proof, plaintiff was clearly entitled to an instruction including expenses for nursing; and if defendant desired to have the nursing limited to St. John’s Hospital, it should have asked an instruction so limiting the recovery. The instruction, as it was, was well enough. The complaint made is in effect a complaint of mere non-direction ; not misdirection. Therefore, it is without substance. Defendant may not stand by mute and ask no instructions on a given point, if there is evidence to sustain the instruction given, and if it is good as far as it goes. Shortcomings of that character do not constitute reversible error. [Browning v. Railroad, infra.]

It is contended by plaintiff’s learned counsel that under certain conditions the law raises an implied promise to pay for services rendered by one relative to another, and that these conditions are met with in this case. Counsel put their finger on a line of eases, telling under what circumstances the usual rule of “something for nothing” in the case of the care of one relative hy another does not obtain, viz.: Callahan v. Riggins, 43 Mo. App. l. c. 137; Moore v. Renick, 95 Mo. App. l. c. 208; Lillard v. Wilson, 178 Mo. l. c. 157. But it is not necessary in the disposition of this case to enter that - inviting field of exploration — the point being determined before that field is reached.

(b) Finally, it is insisted that instruction 12 is erroneous “because it does not limit the amount which plaintiff was entitled to recover on account of expenses incurred for medicines, medical and surgical attention and nursing, as all of these expenditures were definitely fixed in her evidence.” "We are cited to Smoot v. Kansas City, 194 Mo. l. c. 522, as sustaining this assignment of error. The reasoning of the Smoot case must be read in the light of the facts in that case. There the instruction allowed the jury to find that doctors’ and surgeons’ hire for the plaintiff did not exceed án amount of $350 — this in the face of a petition limiting the amount to $200: In that case, also, the petition “claims the sum of $250 for loss of time from his means of livelihood;” whereas the instruction quite took the bridle off of that item and told the jury that “if you further find and believe from the evidence that plaintiff had, on. account of said injury, if any, been compelled to lose time from his means of livelihood, you may also take that fact into consideration, and allow him therefor such an amount as, under the evidence, would reasonably compensate him for said loss of time, if any, etc.” It appears, therefore, in the Smoot case that a general instruction was not only given where the petition was specific on one item, but that in another item the petition alleged one amount and the instruction submitted another. The case does not sustain defendaut’s point. Here the petition asks no specific amount under any one head or item of damage. The elements of the damage are set forth with particularity and a general verdict is prayed covering them all. The instruction put the matter to the jury precisely as the petition did, and was not bad. If the defendant desired a more specific instruction, it should have asked it. [Browning v. Railroad, 124 Mo. l. c. 71, et seq.] The instruction questioned follows an approved precedent. [Mirrielees v. Railroad, 163 Mo. l. c. 483.]

There being no reversible error, the judgment must be affirmed. It is so ordered.

All concur.


source: Caselaw Access Project

author: WOODSON, J.

license: Public Domain

text:
    E. E. NAYLOR et al. v. CITY OF HARRISONVILLE et al., Appellants.
    Division One,
    November 27, 1907.
    1. BENEFIT ASSESSMENT: Sidewalk:. Private Way. If the street or alley is private property belonging to the adjoining property-owner, and not a public street or alley, the city has no power, under the provision of the Constitution saying “that private property shall not be taken or damaged for public use without just compensation,” to tax it with the cost of a sidewalk.
    2. -: -- — : Alley. The fact that the witnesses and counsel designate the narrow street as “alleys” is of no significance in determining whether they are streets or alleys,
    3. -: Public Street or Alley. The recorded plat shows-that the land on which the city is built was laid out into squares, numbered 1 to 236, averaging in size two hundred feet square; that these squares face in four directions upon strips of ground, unnamed eitheir streets or alleys, varying in width, but the marginal notes refer to the squares as blocks, and to the strips as streets; and that there are twelve strips running north and south and the same number east and west, and two in each direction through the centeir of the. town are forty feet wide, while all other - strips are fifteen feet wide. All the squares had been sold according to the plat, as facing on the strips, and residences have been built thereon. Many years ago the city took charge of the strips and improved them as streets, and on one of these fifteen-foot strips in front of the squares owned by plaintiffs there has been for over twenty years a board sidewalk. The public school building is on a square one block south of plaintiffs’ property, and there is no other way for school children to reach the school, or for the public generally to reach their homes and various portions of the city, except by traveling over the strips indicated on the plat, and they have been so used ever since the plat was filed. The plat does not appear to have been signed or acknowledged by any one, -but in the upper right hand corner are the words: “Western Boundary of Cummins & Simm’s Addition to the City of Hairrisonville.” Held, that, first, that the intention of the owner, whoever he was, was to dedicate the strips to public use, is manifest by the reference to them as streets in the marginal notes, by filing the plat for recoird, and by then selling the blocks of ground according to the plat; second,
      tlie fifteen-foot strips were not private alleys, but public streets; and, third, being public streets, tbe city has authority to construct a concrete sidewalk in place of the board sidewalk, and to charge the cost thereof as a benefit assessment against the adjoining property.
    4. -: Alley: Public Street. Whether or not a city of the fourth class has authority to construct sidewalks along its alleys is not for determination if the highway is not an alley but a public street. A city of that class has express authority to construct sidewalks along its public streets.
    5. -: Without a Hearing. The statute which directs the assessment of the costs of a sidewalk against the abutting property, without a hearing as to the benefits thereto, is not unconstitutional.
    Appeal from Cass Circuit Court. — Row. W. L. Jarrott, Judge.
    Reversed (with directions).

      G. W. Sloan, G. W. Hight and John A. Davis for appellants.
    (1) When the officers of a city do some act evidencing an intention to assume jurisdiction or control-over a street or public highway, then the obligation of the city arises, and it must keep same in proper and safe condition for travel or respond in damages for injuries sustained thereon. Conner v. Nevada, 188 Mo. 160; Ely v. St. Louis, 181 Mo. 723; Downend v. Kansas City, 156 Mo. 68; Baldwin v. Springfield, 141 Mo. 205; Bachman v. St. Louis, 121 Mo. 536 ; Johnson v. St. Joseph, 96 Mo. App. 699; O^Malley v. Lexington, 99 Mo. App. 700; Stealey v. Kansas City, 179 Mo. 407, approving O’Malley case, supra. In the case at bar the city had assumed control, both for vehicles and pedestrians; and the actual possession and long use of the public highway or alley in controversy, as shown by the evidence, was sufficient to show á vested right in the city, without any formal dedication at common law. Maus v. Springfield, 101 Mo. 613; Meniers v. St. Louis, 130 Mo. 284; McGinnis v. St. Louis, 157 Mo. 197; Longworth v. Sedevic, 165 Mo. 221; Railroad v. Railroad, 190 Mo. 253. (2) This street is not an “alley,” as the term is used to express a narrow way set apart, first, for the use of abutting property, the second, for the use of the public. Bailey v. Culver, 12 Mo. App. 183; Corby v. Railroad, 150 Mo. 457. (3) The city had the right and authority to assess the parts set out in petition as the smallest subdivision abutting on the way in controversy. Sparks v. dark, 57 Mo. 58; Roth v. Gabbert, Í23 Mo. 30; Weaver v. Grant, 39 Iowa-296. (4) It is now too late for plaintiffs to urge — as they do in their bill for injunction — that the acts of the Legislature authorizing cities of the fourth class to compel the building of sidewalks is unconstitutional. The courts have uniformly upheld said acts. Farrar v. St. Louis, 80 Mo. 379; State ex rel. v. Kansas City, 89 Mo. 34; Estes v. Owens, 90 Mo. 113; Dennison v. Kansas City, 95 Mo. 430; St. Joseph v. Owen, 110 Mo. 445; Clinton to use v. Henry Co., 115 Mo. 565; Moberly v. Hogan, 131 Mo. 23; Morrison v. Morey, 146 Mo. 564; Kansas City v. Bacon, 147 Mo. 282; Barber A. P. Co. v. Ftench, 158 Mo. 538; Meier v. St. Louis, 180 Mo. 408. '

      James 8. Briefly and Allen Glenn for respondents.
    (1) No power is given to cities to take the streets or alleys or other highways without compensation. Secs. 21 and 30, art. 2, Constitution; Zoeller v. Kellogg, 4 Mo. App. 163; St. Louis v. Hill, 116 Mo. 527; St. Louis v. Dorr, 145 Mo. 466; DeGofrey v. Merchants’ Bridge & Ry. Co., 179 Mo. 701; McCormick v. P'atchin, 53 Mo. 33; Shively v. Lankford, 174 Mo. 549'. (2) Obstructions preventing the free use of the alley is damaging, as contemplated in Constitution aforesaid. Spencer v. Railroad, 120 Mo. 154; Lockwood v. Railroad, 122 Mo. 86;, Lumber Co. v. Railroad, 129 Mo. 455. (3) Streets are held by the public authorities in public trust, primarily for the free and common use of the whole traveling public, and. secondarily for the benefit of the owners of abutting property to afford access to their property; while the alleys are held in trust for'the special and particular benefit of the property in the block which abuts the alley and are intended to afford rear accesses to said property. C'orby v. Railroad, 150 Mo. 468; St. Louis v. Juppier, 16 Mo. App. 557. (4) There is a distinction between a street and its uses, and an alley and its uses, and the right of the abutting owner in each. DeGeofrey v. Railroad, 179 Mo. 698; Brownell v. Puller, 60 Neb. 558; 2 Am. and Eng. Ency. Law (2 Eld.), 149; 1 Words and Phrases, p. 341; Beeche v. People, 38 Mich. 291; In re Woolery, 95 N. T. 140; Paul v. Detroit, 32 Mich. 108; Bagley v. People, 43 Mich. 355; Horton v. Williams, 99 Mich. 427; Praigg v. Supply Co., 143 Ind. 358; Winston v. Johnson,-42 Minn. 398; Pace v. Iona, 90 Mich. 104; Dodge v. Harte, 113 Iowa 685; Gaynor v. Bauer, 144 Ala. 448; Hickok v. Plattsburg, 41 Barb. 130; Van Whitten v. Gutman, 24 L. R. A. 405; Hunter v. Watson, 111 Mo. 177; Corby v. Railroad, 150 Mo. 468.
   WOODSON, J.

— This suit was instituted' in the circuit court of Cass county by the plaintiffs, seeking to enjoin the defendants from the construction of a concrete sidewalk, four feet in width, along a nameless street, avenue, alley or public highway, on the west side of blocks 220 and 217, in the city of Harrisonville, a city of the fourth class.

There was a trial before the court, and the findings and decree were for plaintiffs, permanently enjoining the defendants from constructing the walk. In due time and in proper manner the defendants appealed the cause to this court.

The facts are few and undisputed, and are as follows :

A copy of a plat bearing the heading, “Plat of the City of Harrisonville,” and recorded in the recorder’s office of that county, was introduced in evidence, and shows that the land upon which the city is built is laid out into squares, numbered from one to two hundred and thirty-six inclusive, and average in size about two hundred feet square; these squares face in four directions upon open spaces or strips of ground, unnamed, whieh vary in width, and run north and south and east and west through the entire length and breadth of the city, thereby giving the plat the appearance of a plat of a townsite, laid out into streets and blocks; but there are no statements appearing upon the face of the plat which show that the squares are blocks or that the spaces or strips of ground are streets. There are, however, various marginal notations on the plat explaining the plat, which refer to the squares and spaces as blocks and streets. The witnesses also refer to these squares and spaces as blocks and streets or alleys, and we will hereafter refer to them in the same manner.

There are twelve streets running north and south, and the same number running east and west. The two streets running north and south and the two running east and west through the center of the city are forty feet in width, while all the balance of them are only fifteen feet wide. The record discloses the names of but five or six streets in the entire city.

The witnesses refer to the four broad streets as “streets” in contradistinction to the narrow ones, which they call “alleys;” but the plat shows no alley running through any of the blocks in the entire city.

The pleadings and oral testimony also show that comparatively all of the blocks which appear upon the plat have been subdivided into lots, and have been sold to various persons, who have constructed houses and made other, improvements thereon, and that they occupy them as homes, and use all the streets in the ordinary manner in going to and departing from their homes; and the record discloses no other means of access thereto.

The exact time when this plat was filed does not definitely appear, but it was sometime between the years 1869 and 1880. These streets have been constantly used by the public as streets ever since the plat was filed; and the street proposed to be improved, and for the prevention of which this suit was brought, was accepted by the city on or before the year 1880, and it had a board sidewalk laid along same and in front of blocks 217 and 220, the property of plaintiff. That walk is still there and has been used by the public ever since its construction. The walk now proposed to be constructed is to replace that old board walk.

The public school is located near the southeast corner of the city, and one block south of the south end of the property of plaintiff. There is no way for the school children to reach the school and for the public generally to reach their homes and the various portions of the city except by traveling over the streets indicated upon the plat.

I. The respondents resist the construction of the sidewalk in question upon three grounds, as follows:

First. They contend that all of the fifteen feet, or narrow streets in the city, which includes the one upon which the walk in question is proposed to be constructed, are alleys and not streets belonging to the public, but are private ways belonging to the adjacent property-owners, and cannot be taken or damaged for public use without just compensation first having been paid therefor.

Second. That under the charter of cities of the fourth class, Harrisonville has no power or authority to have sidewalks constructed along an alley of the city.

Third. That the city has no authority to make such improvements and assess the costs thereof against’ the abutting property without first giving the property-owners a hearing, and after it is ascertained that the property would be benefited by the improvements.

We will dispose of the legal propositions thus presented in the order mentioned.

Section 21 of article 2 of the Constitution of 1875 provides “that private property shall not be taken or damaged for public use without just compensation. ’ ’

Under this provision of the Constitution it cannot be gainsaid that if the street or alley in question is not a public street or alley, but is private property belonging to the adjoining property-owners, then the city has no power to take or damage the same without first paying just compensation therefor; but if, upon the other hand, it is a public street belonging to the city, then the power of the city to have it improved, we presume, will not be questioned. So, this brings us to the vital question presented by this record, and that is, is the street which is proposed to be improved public or private property?

’ We might observe in the first place that the mere fact that most of the witnesses and counsel have referred to the narrow streets appearing upon the plat as “alleys,” has but little or no significance in the determination of the character of the strip of ground upon which the sidewalk is proposed to be laid. This is one of the cases where ‘ ‘ there is nothing in a name; a rose by any other name would smell as sweet.”

Coming directly to the question in hand. It should be observed that the plat of Harrisonville introduced in evidence in no manner indicates that the narrow streets appearing thereon are alleys, nor that the broad ones are streets. It is perfectly silent upon those matters, except some marginal notes which will be later mentioned. The four broad streets appearing thereon are indicated to be forty feet in width by the figures “40” printed at each end thereof, while the width of all the rest is indicated by the figures “15” also printed at each end thereof.

The plat also shows that all of the blocks appearing thereon have their four sides facing upon these streets, and that none of them run through or bisect any of the blocks. The blocks of ground numbered in the plat were sold to various persons, according to the plat, as facing upon these streets, and they have been built upon and otherwise improved as residence and business property by the purchasers.

The evidence shows that many years ago the city took charge of these streets and improved many of them, the one in question being among the number, and threw them open to the traveling public. Besides this, the plat and the oral testimony in the case conclusively show that there is no other way or means by which the property-owners and the public generally can obtain access to and from their homes and properties and from one portion of the city to another, except by passing over these streets; and.the evidence is equally conclusive that they have been so used by the public ever since the plat was filed, more than twenty-seven years ago-, and, judging from some of the statements of some of the witnesses, it appears to have been sixty or seventy years ago. This plat, however, does not appear to have ever been signed or acknowledged by any one, but the following words ap<pear on the margin thereof,. in the upper right-hand corner, “Western Boundary of Cummins & Simm’s Addition to the City of Harrisonville.”

This court has held that “any act by the owner of property setting apart to the public a portion of his property, clearly showing that snch was his intention, vests the nse of snch property in the public for the purposes indicated; and if actually thrown open,the public may take possession. The usual course is to make a plan of a town or of an addition, setting apart streets, alleys, public squares, etc., and file a plat thereof with the recorder. [Rose v. St. Charles, 49 Mo. l. c. 511.]

In the case just cited there was no plat filed but an unrecorded contract was shown between a former owner and purchasers of contiguous property, to dedicate certain streets of which the city had taken possession. This court there held that the dedication was complete.

In the case of Heitz v. St. Louis, 110 Mo. 618, the owner of the land failed to acknowledge the plat as required by the statute prior to filing it for record. This p-lat, however, showed upon its face that the land had been subdivided into lots and blocks, and streets and alleys; and thereafter the owner sold the lots according to the plat as filed for record. Subsequently, the original owner of the platted land quitclaimed all of his right, title and interest to certain of the streets named in the plat to the plaintiff, and he took possession of them and proceeded to close them up. The city of St. Louis interfered and plaintiff brought an injunction suit against the city to restrain it from interfering with his possession of the streets. His contention was that because the plat was not properly acknowledged, there was no dedication of the streets to the city or to the public.

In that ease this court held that the principal matter to be determined in an incomplete or defective dedication is the intention to dedicate the streets to the public, and that where that is clearly manifested the dedication is a complete common law dedication. That case also held that accepting, improving and using one or more of the streets so platted must be regarded as an acceptance of the whole tract platted and not merely snch portion as it improved. And that the rights acquired by purchasers under a common law dedication inure not only to their benefit but the benefit of all who have occasion to use the streets laid down, in the plat, and the sale of lots according to the plat carries with it the covenant that the streets shall forever remain open to the public use. '

And in the case of the City of Hannibal v. Draper, 15 Mo. 635, one Glascock filed in the office of the recorder of deeds a duly acknowledged plat of the town of Hannibal. Among other memoranda on the map was the following: “Lots numbered 2, 3, 4 in block 26 is intended for church grounds;” and across the lots were written the words “church grounds.” This court held in that case that the dedication was sufficient to vest the fee in the county for public use.

Now, do the facts of the case at bar bring it within the operation of the doctrine announced in the- foregoing cases? We believe they do.

Some years ago some one filed- an unsigned and unacknowledged “Plat of the City of Harrisonville” in the recorder’s office of Cass county, by which he subdivided a certain tract of land into what the marginal entries and the witnesses in the case refer to and denominate streets and blocks; that those blocks fronted upon the streets and were sold to various parties according to the plat on file; that the city took possession of the streets, threw them open for public use, and improved some of them, including the one upon which the sidewalk is proposed to be constructed; that they are'the only means of access to the various blocks, and they have been used by the public as streets ever since the plat was placed of record.

The intention of the owner of the property to dedicate the streets to public use is manifested by referring to them as streets in the marginal notes of the plat, by filing the. plat for record, and then selling the blocks of ground fronting on the streets according to the numbers appearing upon the plat. This intention is made more clear by the fact that there were no other means or way by which the property could be reached.

In pursuance to these acts of the owner of the platted ground, and with no objection from him or any of the property-owners, the city took possession of the streets, improved them and opened them up for public use, and the public have been using them as public streets ever since.

Every fact and circumstance in the case from the beginning to the end refutes the proposition that the strip of ground upon which the walk is proposed to be constructed is a private alley; and upon the other hand they point with an unerring finger to the intention of the owner of the ground to dedicate the streets to the city for public use. Not only this, they are not located as alleys are; they do not run through the blocks of ground and in the rear of houses and property as alleys generally do-, but they are located in front thereof, just as all streets are, with the four fronts of all of the blocks fronting on them.

None of the streets mentioned in this case were intended to perform the purposes of an alley, and have never been used for such purposes.

The different purposes for which streets and alleys are established and used are clearly pointed out by this court in the case of Corby v. Railroad, 150- Mo. 1. c. 468, where- it is held that streets are held by the city in trust, primarily for the free and -common use of the whole traveling public, and secondarily for the benefit of the owners of abutting property to afford access to their property; while the alleys are held in trust for the special and particular benefit of the property in the block which abuts the alley-and are intended to afford rear accesses to said property.

According to the doctrine announced in the Corby case, these streets are public ways, because they were opened up- by the city and improved for public use, and have been used by the public as such for many years, and not simply by the property-owners which abut upon them.

We know of no city in this country but what has streets and most of them have alleys, but this is the first time we have ever heard of one having alleys in four-fifths of it, with no streets, and the other fifth having streets but no alleys. There is no evidence in this case which would justify any court in reaching any such conclusion, but, upon the other hand, we think the evidence clearly shows that the strips of ground called alleys by witnesses and counsel for respondents are nothing more nor less than public streets, held and owned by the city of Harrisonville for the public use.

We must,, therefore, hold against respondents on the first proposition presented, for the reason that they do not own the street in question, nor is their property being taken or damaged for public use within the meaning of the Constitution.

H. The second proposition presented for our consideration is that the. city of Harrisonville has no authority under its charter to construct sidewalks along the alleys of the city.

Under the conclusions reached by us in paragraph one of this opinion, the so-called alley, along which the city proposed to construct the sidewalk, is not, in fact, an alley, but is a public street. ' The question' presented, therefore, is not properly before us, and for that reason we decline to express any opinion upon the proposition.

- It is sufficient to state that sections 5979 and 5981, in express terms, grant to cities of the fourth class the power to construct and repair sidewalks along the streets, alleys, avenues and public highways within the city limits.

III. The last proposition contended for by respondents and upon which they ask an affirmance of the judgment is, that section 5981, Revised Statutes 1899, which directs the assessment of the costs of constructing the sidewalk against the abutting property fronting upon the improved street, without a hearing as to the benefits thereto, is in violation of section 30 of article 2 of the Constitution of 1875, and is therefore null and void. Said section provides “that no person shall be deprived of life, liberty or property without due process of law.”

This is no longer an open or a debatable question in this State, nor in the United States. There is an unbroken line of decisions of this court, extending from the case of Lockwood v. St. Louis, 24 Mo. 21, down to the case of Ross v. Gates, 183 Mo. l. c. 346, 347, holding such statutes are valid, and are not violative of the constitutional provisions before mentioned, nor of the 14th Amendment of the Constitution of the United States. The Supreme Court of the United States has. also held the same way and put at rest that question in that court. [French v. Barber Asphalt Paving Co., 181 U. S. 324; Eyerman v. Blaksley, 78 Mo. 149; Springfield to use v. Weaver, 137 Mo. l. c. 672; Meier v. St. Louis, 180 Mo. 391.]

It must, therefore, follow from what has been said that the decree of the circuit court enjoining the city of Harrisonville from constructing the sidewalk in question must be reversed, with directions to that court to dismiss plaintiffs’ bill; and it is so ordered.

All concur.


author: VALLIANT, P. J.

text:
    THE STATE ex rel. PARKER-WASHINGTON COMPANY, Appellant, v. CITY OF ST. LOUIS et al.
    Division One,
    November 27, 1907.
    1. NUISANCE: City Improvement: Mixing Material in Street. A city is not estopped to declare the mixing and making of a material in the public street or elsewhere in the city to be a nuisance, or to abate it as such, by the fact that the material when mixed and made is to be used by its contractor in improving the street under a contract with the city calling for the material.
    2. -: Committed by City. A city cannot itself commit a public nuisance or authorize any person to' do so, that is, commit an act destructive of the comfort of the people residing in the vicinity and injurious to the public health.
    3. -: -1 — : Governmental Capacity. A city in the exercise of its police powers to protect life and health acts in its governmental capacity, and is not estopped to exercise those powers by its administrative acts, such as its contracts for improving its streets. It can declaire the acts of a contractor who holds a contract with it to use a certain materiel in improving a street, to be a nuisance, and stop him from mixing the materials, to> be so- used, in such a way . as to be injurious to the public health or destructive of the comfort of the inhabitants of ’the vicinity. Neither can it abandon its duty in that respect, even if it willed to do so.
    4. -: Authorized by City. The Municipal Assembly of St. Louis cannot by ordinance authorize persons who hold city contracts for improving streets to carry on an operation destructive of public health or loading the atmosphere with offensive odors, to the serious annoyance of the surrounding inhabitants.
    5. -: Certiorari: Evidence. A writ of certiorari brings up only the record proper of the tribunal to which it is addressed. Therefore, the court Cannot know whether or not the evidence justified the conclusion of the Board of Health that relator’s act constituted a nuisance; but where the record shows that the board was dealing with a subject within its peculiar province and that its proceedings were regular, the court must be satisfied with its decision. :

      6. -1 — : Disqualified Commissioner. The fact that the Health Commissioner, before the meeting of the Board of Health, of which he was a member, had stated in the written notice to relators that in his opinion their works as operated constituted a nuisance and were detrimental to the public health, did not disqualify him from sitting as a member of the board, although without him there was no quorum of its members at the hearing.
    7. -: -: Ordinances. The ordinances of St. Louis make it the duty of the Health Commissioner, when a matter injurious to public health is brought to his notice or comes under his observation, to declare it a nuisance by force of his own official judgment, and to give notice to the offending party to appear before the Board of Health and show cause why the offense should not be abated; but they ' do not mean that he must in every case declare the thing a nuisance before the board can pass judgment of condemnation upon it, nor does he by discharging that duty disqualify himself from sitting on the board that passes such judgment.
    8. -- — : Due Process of Law: Impairment of Contract. The proceeding of condemnation by the Board of Health, declaring the relators’ plant, as then being operated, a menace to public health and a nuisance, and ordering them to abate it, and admonishing them that they will he liable to prosecution and a fine if they do not abate it, where the city has not laid its hands on them or their property, does not so deprive them of their property without due process of law or so impair the obligation of their contract with the city to improve its street as to make the board’s action illegal; hut their constitutional rights, in those respects, will be considered when they are prosecuted for not obeying the judgment of the board.
    Appeal from St. Louis City Circuit Court.— Eon. Walter B. Douglas, Judge.
    Affirmed.

      Barclay & Fauntleroy for appellant.
    (1) A process of preparing material for street construction, in conformity to ordinances and under contract with the city, cannot properly be declared, by the city itself, to be a nuisance. Trans. Co. v. Chicago, 99 U. S. 635.; Clemens v. Ins. Co., 184 Mo. 46; Van de Vere v. City, 107 Mo. 83; Payne v. Railroad, 112 Mo. 17; Casey v. Hoover, 114 Mo. App'. 61; 1 Ency. Law (2 Ed.), 90, note; Railroad v. Brown, 67 Ind. 45; Railroad v. Joliet, 79 111. 25.; Clark v. Syracuse, 13 Barb. 32; Vason v. Railroad, 42 G-a. 631; Weeks v. Milwaukee, 10 Wis. 269; Hannibal v. Richards, 82 Mo. 336; Randle v. Railroad, 65 Mo. 325. (2) The final decision or order of the board should have been quashed by the trial court as beyond the jurisdiction of the board, both as' to form and substance. The whole chapter of the city charter, creating the office of Health Commissioner and the Board of Health, severs their powers and duties in regard to declaring and abating nuisances. The commissioner is a member of the board, yet he has no> right to adjudge as to nuisances, because the charter declares: “All condemnations must first be approved by the Board of Health, whose action thereon shall be final.” R. S. 1899, sec. 3, p. 2523. This language means that the commissioner shall not act in the board: in declaring nuisances.. It severs the Health Commissioner from the board, in dealing with this particular phase of city powers.

      Charles W. Bates and Charles P. Williams for respondents.
    (1) In cases other than the one at bar, where it is simply a question of deciding whether in effect a nuisance condemned by law and identified by law does exist, the Board of Health could be empowered to make a valid and conclusive finding. Heath v. Wallace, 138 U. S. 573; Public v. Coyne, 194 U. S. 508; Buttfield ■ v. Stranahan, 192 U. S. 470; Long Island Co. v. Brooklyn, 166 U. S. 685'; Hibben v. Smith, 191 U. S'. 310; Aldrich v. Yates, 95 Fed. 78; Passavant v. U. S'., 148 U. S. 214; U. S. v. Ju Toy, 198 U. S. 253; Gardner v. Bonesteel, 180 U. S. 362; Bates v. Payne, 194 IT. S. 106; Reetz v. Michigan, 188 U. S. 505. (2) Onr writ of certiorari is strictly the common law writ of that name; by virtue of this writ only the record of the inferior court is caused to be brought up, and the function, duty and power of the reviewing court is limited to the examination of that record. Sholar v. Smith, 3 Mo. 294; Hicks v. Merry, 4 Mo. 355; Railroad v. State Board, 64 Mo. 308; State ex rel. v. Teasd'ale, 101 Mo. 174; State ex rel. v. Walbridge, 62 Mo. App. 162; State ex rel. v. Walbridge, 60 Mo. App. 666; State ex rel. v. Meyer, 57 Mo. App. 198; Ward v. Board of Equalization, 135 Mo. 319; State ex rel. v. Bland, 168 Mo. 1; State ex rel. v. Baker, 170 Mo. 390. (3) No authority is shown to- appellants to maintain a nuisance. The city, under its charter, has no power to license a nuisance; and appellants neither allege that their business was a nuisance per se nor that they were conducting it with any care whatsoever to avoid its becoming a nuisance. (4) The Health Commissioner was not disqualified by reason of interest or otherwise. State ex rel. v. Lupton, 64 Mo. 415; State ex rel. v. Slover, 113 Mo. 202; Mayor of Lexington v. Long, 31 Mo. 369; Foote v. Stiles, 57 N. Y. 399; In re Ryers, 72 N. Y. 14; People v. Diehl, 53 N. Y. (App. Div.) 645, 165 N. Y. 643; People v. Police Commissioners, 10 Hun 108; People ex rel. v. Common Council, 85 Hun 601; Puller v. Ellis, 98 Mich. 96; Andrews v. King, 77 Me. 224; Conklin v. Squire, 29 Weekly Law Bulletin, 157; City Council v. Township Board, 22 Mich. 341; Planet v. Everest, 29 Mich. 19; Township Board v. Holihan, 46 Mich. 127; State v. Crane, 36 N. J. Law 394; State v. Board, etc., 36 N. J. Law 404; Ayers v. Newark, 49 N. J. Law 170; State ex rel. v. Common Council, 96 Wis. 612; Grundy County v. Tennessee, 94 Tenn. 294.
   VALLIANT, P. J.

The relators sued out a writ of certiorari in the circuit court, against the defendants, the city of St. Louis, the Board of Health and the Health Commissioner of the city, the aim of which was to quash the record of the Board of Health declaring a certain plant, which relators were operating in the city, a nuisance, inimical to the public health. Upon the final hearing the court quashed the writ of certiorari and from that judgment the relators have taken this appeal.

From the record it appears that the relators had contracts with the city for the improvement of certain streets which required the use of a material called “binder,” in the composition of which melted asphalt-urn at a high degree of temperature mixed with other material was used, which process of melting and mixing was being conducted by relators within- the city limits, when a written complaint was filed with the Health Commissioner by twenty-eight resident taxpayers in the vicinity saying that the operation ‘ sends out, fills and permeates the surrounding atmosphere in and about our homes and the streets fronting the same with a most offensive, obnoxious and foul smelling odor which is a constant source of annoyance and makes life in and about the neighborhood in which we live intolerable.” And besides the discomfort it was charged that the fumes and gases were injurious to health. Four days after receiving that complaint the Health Commissioner caused to be served on the relators a written notice that in his opinion the business, as they were conducting it, was a nuisance and injurious to public health and would be so reported to the Board of Health on the 23rd day of July, 1903, and notified them to appear before the board on that day and show cause why the nuisance “should not be abated, discontinued or removed.” The relators appeared before the board and were represented by counsel; a trial was had, proof pro and con, documentary and oral, was introduced and the result was that on August 17th, 1903', the trial was ended and the Board of Health entered on its record an order declaring that: “As operated at present the vapors evolved hy the plant are offensive to the residents of the vicinity, impair the reasonable and comfortable enjoyment of their homes, are prejudicial to health, and, therefore, constitute a nuisance as defined by section 617 of the Municipal Code,” and the Health Commissioner was directed to order the abatement, discontinuance or removal of said nuisance within such time as he might deem reasonable.

Four days thereafter the Health Commissioner issued a notice in writing to the relators, reciting the order of the board and notifying them to remove, abate or discontinue the operation of the plant or by making such additions, alterations and improvements as would prevent the escape of the odors, noxious fumes, gases and dust, etc., within twenty days from the service of the notice and that on failure to do so they would be subject to prosecution and fine not less than twenty nor more than five hundred dollars according with the charter and ordinances of the city.

The following provisions of the city charter are discussed in the briefs as bearing on the merits of the cause: Art. Ill, sec. 26, clause 6, p-. 2486, R. S. 1899 (defining the powers of the legislative department of the city government): “. . . . and to regulate or prevent the carrying on of any business which may be dangerous or detrimental to the public health, or the manufacturing or vending of articles obnoxious to the health of the inhabitants; and to declare, prevent and abate nuisances on public or private property, and the causes thereof.” Clause 14, same section, p'. 2488, is: “Finally to pass all such ordinances, not inconsistent with the provisions of this charter, • or the laws of the State, as may be expedient, in maintaining the peace, good government, health and welfare of the city, its trade, commerce and manufactures, and to enforce the same by fines and penalties not exceeding five hundred dollars, and by forfeitures not exceeding one thousand dollars.”

Article XII relates to the Health Department. Sec. 1 of the article creates the office of Health Commissioner and Board of Health.

Sec. 2. The board to consist of the mayor, the president of the council, a commissioner of police, two physicians and the Health Commissioner. Three members to constitute a quorum.

“Sec. 3. The Health Commissioner shall have general supervision over the public health of said city, and see that its regulations, and the laws and ordinances of said city in relation thereto, are enforced and observed, and for that purpose he is authorized and empowered to make such rules and regulations, with the approval of the board, not inconsistent with this charter or any city ordinances or law of this State, as will tend to preserve and promote the health of said city; to appoint such employees, with the approval of the Board of Health, as may be necessary for the execution of his orders; to enter into or authorize and require any employee or police officer to enter into and examine, in the day time, all buildings, lots and places of every description within the city, and to ascertain and report to him the condition thereof, so far as the public health may be affected by it; to declare and abate nuisances in such manner’ as may be provided herein, or by ordinance; but all condemnations must first be approved by the Board of Health, whose action thereon shall be final. He Shall obey all orders not inconsistent with this charter and city ordinances, emanating from the Board of Health, and shall annually report to the mayor the general operations of his depart-merit during the year then ended, with such suggestions for the improvement of the same as he shall consider expedient.”

Section 6 is in part as follows: “In order to effect the abatement of .nuisances or removal of accumulated filth, the Health Commissioner shall have power whenever in his opinion such nuisance or filth exists, and after officially so declared of record by the Board of Health to notify the owner or owners thereof, or his or their agents to abate or remove the same. ... If the owner shall fail within the time . . . to comply with such order, or shall fail to show good cause to said Health Commissioner why he cannot or ought not to comply with such order, for which purpose he shall be entitled to be heard before said Health Commissioner and Board of Health, if he so request it, he shall be deemed guilty of a misdemeanor, and on conviction shall be fined not exceeding five hundred dollars, and the nuisance shall be abated and special tax bills rendered against the property in the same manner as against non-residents, except that notice by advertisement shall not be necessary.”

The following city ordinances are also discussed in the briefs:

“Sec. 616. It shall not be lawful for any person, corporation or firm to erect any building for the purpose of manufacturing or producing any article, or to manufacture or produce any article, the manufacture of which is injurious to the public health, or which in the manufacture thereof emits an offensive odor to the extent of creating a nuisance to the surrounding inhabitants, without first having obtained the permission so to do from the Municipal Assembly by proper ordinance.
“See. 617. Every act or thing done or made, permitted, allowed or continued on any property, public or private, by any person or corporation, tbeir agents or servants, to the damage or injury of any of the inhabitants of this city and not hereinbefore specified', shall be deemed a nuisance.
“Sec. 631. It shall be the duty of the Health Commissioner, whenever he has any knowledge, or when any complaint has been made to said Health Commissioner by any citizen, that any business, trade or profession carried on in the city, by any person or persons or corporations, agents or managers, is detrimental to public health, or whenever any nuisance or filth exist on the property of any person or corporation, to notify such person or persons or corporation, agent or manager to show cause before the Board of Health at a time and place to be specified in such notice, why the same should not be abated, discontinued or removed, which notice of the Health Commissioner shall not be valid unless served on the party to whom it is directed at least five days before the time specified in such notice (except in case of epidemic or pestilence, when the Health Commissioner may, by general order, direct a shorter time).
“Sec. 632. Such notice shall be served upon said persons, corporation, agent or manager in the same manner as writs of summons are required to. be served in civil cases.
“See. 634. At the time fixed in such notice for the parties to appear before the Board of Health, said parties may appear in person, by attorney, or cause may be shown by affidavit.
“Sec. 635. After hearing all the facts in the case, if, in the opinion of the Board of Health, no good and sufficient cause be shown why said nuisance, business, trade, or profession should not be abated, discontinued or removed, said board shall direct the health commissioner to order the parties to abate, discontinue or remove the same within such time as the Health Commissioner may deem reasonable.
“Sec. 636. Any person or persons failing or refusing to obey the order or orders of the Health Commissioner relating to the abatement of nuisances shall be deemed guilty of a misdemeanor, and upon conviction thereof shall be fined not less than twenty nor more than five hundred dollars; and such person or persons shall be subject to like fines for each and every day he, she or they shall continue such nuisance, business, trade or profession after the expiration of the time specified in the order of the Health Commissioner for the abatement, removal or discontinuance of the same. The fines mentioned in this article shall be collected as other fines paid into the city treasury.”

In the petition of relators for the writ of certiorari they aver that the order of the board declaring their plant a nuisance and ordering its abatement was void because the board had no jurisdiction to make such an order and that its execution would deprive them of their property without due process of law and violate their rights under article 2, sections 30 and 21, Constitution of Missouri, and amendment 14, section 1, U. S. Constitution. And in their motion to quash the proceedings of tbe board they aver the infringement not only of their constitutional rights above mentioned but also of section 10, article 1, Constitution United States, and section 15, article 2 of the State Constitution.

Defendants in obedience to the writ of certiorari sent the record of the Board of Health relating to this matter to the circuit court and moved the court to quash the writ.

After the record was lodged in the circuit court the relators suggested a diminution in that the record as sent up omitted to show that certain proof offered by relators was rejected by the board and they moved that the defendants be required to amend the record by supplying that omission. Thereupon the defendants admitted that the evidence was offered as claimed and that it was rejected, but insisted that evidence was no part of the record called for by a writ of certiorari.

That evidence was to the effect that relators were operating this plant to make material to be used in the construction of the streets under their contracts with the city and that the city ordinances required that material to be used.

As already said, the circuit court on final hearing quashed the writ of certiorari and dismissed the defendants without day.

I. Appellant’s first proposition is that since what they were doing was in the line of the performance of their contract with the city and was in the making of the mixture which their contract with the city called for and the city ordinance required, it did not comport with the city’s attitude in the situation to declare the operation a nuisance and order its abatement.

We do not gather from the record that either their contracts with the city or the city ordinance under which it was made required the process of melting and mixing to be done in the streets that were to be improved, or that it was. to be done as and where it was done; but even if that were so it would not justify the committing of an act destructive of the comfort of the people residing in that vicinity and injurious to the public health. The city itself could not lawfully commit such an act or authorize another to do’ so. The city has a dual character, administrative and governmental. In its contracts for street improvements it acts m its administrative capacity, and, to some extent, is on a plane with any other party to a business contract. But in the exercise of its police power to protect life and health it acts in its governmental capacity and is not estopped by its contract, it conld not abandon its duty in tbat respect even if it willed to do so.

We are referred in the brief for appellants to cases tbat hold that what the law authorizes to be done cannot be declared a nuisance, but that well-known principle has no application to the facts of this case, because there is no law authorizing the act here in question to be done.

Authorities are cited to show also that the city cannot create a nuisance on the .property of a citizen and compel him to abate it, but that is foreign to this case.

Randle v. Railroad, 65 Mo. 325, is cited to show that odors, smoke and cinders emitted from locomotive engines in a street were held not to be a nuisance for which an action would lie against the railroad company by an abutting property-owner. But that case was submitted to the court with the express admission on the part of the plaintiff that the defendant had lawful authority to run its engines and trains through that street, and the court said that that admission ended the controversy.

Appellants also refer to section 616 of the general ordinances which says that it shall be unlawful “to manufacture or produce any article'the manufacture of which is injurious to the public health, or which in the manufacture thereof emits an offensive odor to the extent of creating a nuisance to the surrounding inhabitants, without first having obtained permission so to do from the Municipal Assembly by proper ordinance.”

If appellants mean that the Municipal .Assembly could by ordinance authorize them to carry on an operation destructive of public health or loading the atmosphere with offensive odors to the serious annoyance of the surrounding inhabitants we cannot agree ■with them. There might arise an imperative necessity when, to prevent a greater calamity, some act temporarily offensive might be authorized, but no such a case is now before us. The record does not show that the city by ordinance or otherwise authorized the act which the Board of Health in this instance condemned as a nuisance, to be done as and where it was being done. The record shows that there were a large number of witnesses examined on both sides and the conclusion of the board was that the relators’ works “as operated at present” were prejudicial to the public health and were a nuisance.

A writ of certiorari brings up only the record proper of the tribunal to which it is addressed; it does not bring up the evidence (Sholar v. Smyth, 3 Mo. 416; Hicks v. Merry, 4 Mo. 355; Railroad v. State Board, 64 Mo. 294; State ex rel. v. Teasdale, 101 Mo. 174; Ward v. Board of Equalization, 135 Mo. 309; State ex rel. v. Baker, 170 Mo. 383); therefore, the court does not know whether the evidence justified the conclusion of the board or not, but the record does show that the board was dealing with a subject within its peculiar province and that its proceedings were regular; therefore, with its decision we must be satisfied.

II. Appellants contend that the Health Commissioner was disqualified from sitting as a member of the Board of Health, and that since without him there was no quorum when the board acted in this case there was no lawful condemnation of the relators ’ works.

The alleged disqualification of the Health Commissioner was, in the opinion of appellants, caused by the fact that before the board met to consider the case, to-wit, in the written notice issued by the Health Commissioner to relators, calling them to. appear before the board to answer the charge, he stated that in his opinion the works as operated constituted a nuisance and were detrimental to the public health. It is contended that in a proceeding of this kind the party to be affected is entitled to the same degree of impartiality and freedom from preconceived opinions in the members of the board as the law prescribes for a juror who is to try a cause in court of justice, and we are referred to section 3785, Revised Statutes 1899, relating to jurors challenged for cause. "We do not agree to that proposition. Proceedings of this kind from necessity must be conducted with less strictness than the trial of a law suit in a court of justice. Such proceedings must be conducted honestly and fairly and with good common sense, but not necessarily with judicial strictness. If a juror has formed or expressed an opinion in a cause to be tried, we put him aside and call another, but if we put the Health Commissioner aside whom will we call in his place, and if several other members of the board have seen the object complained of and have formed the opinion that it was a nuisance and said so, how is the city to proceed to condemn it?

The Health Commissioner is a city officer exercising duties appertaining to his office alone, independent of his membership in the Board of Health. [Sec. 3, art. 12, charter.] But he is also a member of the Board of Health and in addition to his duties as Health Commissioner he has the duties of a member of the board to perform. In that respect he is like the Mayor, who besides being Mayor and charged with the duties of that office, is also a member of the Board of Health and charged with duties appertaining to that function. In the absence of the Mayor the charter provides that the Health Commissioner shall preside at the meetings of the Board of Health.

By section 3, article 12, the Health Commissioner is required to enter into premises and examine their condition as affecting public health, and “to declare and abate nuisances in such manner as may be provided herein, or by ordinance.”

Then comes section 631 of the general ordinances, above set out, making it his duty, “whenever he has any knowledge,” or when a citizen complains to him, that a business is being conducted in a manner injurious to public health or constituting a nuisance, to notify the person so conducting the business to appear before the Board of Health at a time and place to show cause why the nuisance should not be abated. Thus he is required to issue the notice on his own knowledge or on the complaint of a citizen. If complaint is made and instead of issuing the notice at once he should deem it more prudent to visit the premises him-» self to see if there is reasonable ground for the complaint, it would be within the line of his duty to do so, and if, after inspection, he was satisfied that the thing was a nuisance it would not be improper for him to so inform the proprietors. The charter provision above quoted does not authorize him to abate the nuisance on his own judgment of condemnation, but after saying that he shall declare and abate nuisances, adds: “but all condemnations must be first approved by the Board of Health, whose action thereon shall be final.” Thus the law in express terms authorizes the Health Commissioner “to declare” the nuisance, but requires his condemnation to be approved by the Board of Health before it is put into execution. Sec. 3, art. XII of the charter does not mean that the Health Commissioner must in every case first declare the thing a nuisance before the board can pass judgment of condemnation on it, but it does mean that it is the duty of the Health Commissioner, when a matter injurious to public health is brought to his notice or comes under his observation, to declare it a nuisance by force of his own official judgment and give notice to the offending parties to appear before the board and show cause why the offense should not he abated, and he does not by discharging that duty disqualify himself from the performance of other duties imposed by law in furtherance of the same subject.

III. Appellants, complain that by the proceeding of condemnation before the Board of Health, if it is permitted to stand, they are deprived' of their property without due process of law; that the State is impairing the obligation of their contract with the city and denying them the equal protection of the law in violation of their rights under the State and Federal constitutions.

Appellants’ complaint on these points lies more in their apprehension of what may hereafter occur than what in fact has occurred. The city has not, so far as this record shows, laid its hands on the property of relators or on the relators themselves. The Health Commissioner and the Board of Health have, in the exercise of their authority under the city charter and city ordinances, declared the relators’ plant, as it was then and there being operated, a menace to public health and a nuisance, and have notified relators to either abate it or remove it or so alter the mode of operation as to obviate the offensive character of the plant, giving them twenty days in which to do so, and admonishing them, that if they neglected to do so they would be subject to a prosecution under the city ordinance wherein they were liable to a fine not less than twenty nor more than five hundred dollars. That is the extent of the injury, if any, relators have suffered. If hereafter they should be prosecuted the courts in which the trials may be had, or through which they may pass on appeal, will take care of relators’ constitutional rights.

We find no error in the record.

The judgment is affirmed.

All concur.'