source: Caselaw Access Project

author: PER CURIAM:

license: Public Domain

text:
    PADGETT, by Guardian, v. SMITH, Appellant.
    Division One,
    November 27, 1907.
    PARTITION: Attorney’s Fee: Services for Appeal. The motion for the allowance of attorney’s fees for services rendered by them in plaintiff’s behalf in the appellate court should he made in the circuit court.
    Motion to Tax Pee for Plaintiff’s Attorney.
    Motion dismissed.
    STATEMENT BY THE REPORTER.
    Suit was brought by Ervine P. Padgett, a minor, by her guardian, against James H. F. Smith, to establish a resulting trust in certain lands in the minor’s favor, and for partition of said lands between her and defendant. At the trial plaintiff prevailed, and the court rendered judgment establishing the trust and decreeing partition, and on the coming in of the commissioners’ report confirmed the same, and allowed plaintiff’s attorneys a fee of $350. Prom that final judgment" defendant appealed to the Supreme Court. The appeal was energetically prosecuted, and plaintiff’s attorneys filed extensive briefs in support of their client’s judgment, which was affirmed. [Padgett v. Smith, 206 Mo. 303, 205 Mo. 122.] Thereafter plaintiff’s attorneys filed the pending motion for an allowance of an additional attorney’s fee for their services rendered in this court, on the theory that, while such fee is contemplated by section 4422, Revised Statutes 1899, (1) the trial court had lost jurisdiction over the cause by the defendant’s appeal, (2) the trial court, at the time it allowed the attorneys a fee of $350, could not have foreseen that an appeal would be taken and, even if it had, it could not have estimated what would be a reasonable valuation for such expected services; and (3) the appeal was not brought by plaintiff, but by defendant, who alone is responsible for the ■ fact that sneh services became necessary to a proper protection of plaintiff’s rights.
   PER CURIAM:

We are of the opinion that the motion for allowance to plaintiff’s attorneys for compensation for services rendered by them in this court should be made in the circuit court that tried the cause, that that court has jurisdiction to hear evidence as to the nature and extent of the services and their reasonable value and to make a proper allowance therefor to be taxed as costs. This motion is, therefore, dismissed without prejudice to the rig’hts of the plaintiffs to file such a motion in the circuit court.


author: VALLIANT, P. J.

text:
    WILLIAM F. HARTZFELD v. RUSSELL W. TAYLOR, Appellant.
    Division One,
    November 27, 1907.

    1. APPEAL: Judgment of County Court: Within Ten Days. Where the application for an appeal was filed and allowed eleven days after the county court rendered final judgment establishing a private road way, the circuit couirt had no jurisdiction to try the case. Such appeals must be taken within ten days after the judgment was rendered.
    2. -: -: -1 — : Record Entries: Certificate of Clerk to Contrary. Final judgment was rendered in the county court on January 18th, and the record shows that the application for an appeal 'was made and allowed on January 29th. Eeld, that this solemn record recital cannot be impeached or overthrown by a statement in appellant’s additional abstract that the affidavit and bond for appeal bear the indorsement of the clerk over his official signature, “Filed January 28th.” The county court acts in a judicial capacity in establishing a private roadway, and speaks by its record, and its record cannot be collaterally attacked. (Distinguishing Williams v. Kirby, 169 Mo. 622.)
    3. -: Jurisdiction. Where the circuit couirt which tried the case had no jurisdiction, the appellate court can have none.

      Appeal from Yernon Circuit Court. — Row. R. C. Timmonds, Judge.
    Appeal dismissed.

      W. R. Hallett and Scott & Bowlter in support of motion to dismiss appeal.
    In appeal cases from inferior courts to the circuit court the transcript is the authority of the appellate court to hear and determine the cause, and when the transcript shows the circuit court had no jurisdiction to try and determine the cause, it necessarily follows that the Supreme Court has no jurisdiction. R. S. 1899, sec. 4069; Devore v. Staeckler, 49 Mo. App. 547; Smith v. Chapman, 71 Mo. 217; Kelm v. Hunkier, 49 Mo. App. 664.

      M. T. January for appellant in reply.
    Respondent correctly quotes the transcript of the county clerk on the appeal from the county to the circuit court, but in quoting it, he states only a half truth. It is true the appeal was granted on the 29th day of January by the county court, but the affidavit and bond for appeal were filed with the clerk on the 28th of January and his indorsement so shows. The county court did not happen to be in session on the 28th and the matter of appeal was not acted on until the next day, the 29th. Respondent now urges the appeal was not taken in time. He made that same objection in the circuit court and moved to dismiss the appeal for that reason. No evidence was offered in support of the motion, which was overruled by the court. This ruling must necessarily be the result of a' finding by the trial court that the affidavit and bond for appeal were actually filed within the ten days. Conceding, for argument’s sake, that respondent has the right to print the clerk’s transcript as part of the record proper it was not offered in evidence on the hearing of the motion to dismiss. Appellant would have the same right to so print the affidavit and bond for appeal with the indorsement thereon. In that case the whole record is before this court on which to determine the jurisdiction of the circuit court on the appeal. Respondent contends that the transcript is the authority of the circuit court to try a ease on appeal, and when the transcript shows no jurisdiction, the appeal must fail. He cites on that proposition, section 4069, Revised Statutes 1899', and two decisions of the Courts of Appeals and one of this court. The section of the statute cited does not sustain the point, and the two cases from the Court of Appeals merely hold that “it should appear somewhere from the record that an appeal was granted in compliance with law.” The case cited from this court is not in conflict with the other two. It clearly appears in this case, from indorsements on the “original papers” which the clerk is required to send up to the circuit court, that the affidavit and bond were filed the 28th day of January, 1904, and within the ten days.

       Note. — Decided May 29, 1907. Motion for rehearing filed. Motion overruled Novembeir 27, 1907.

   VALLIANT, P. J.

Proceeding begun in the county court of Yernon county to establish what is denominated in the petition as “a private way of necessity” to connect with a public road- across the land of the defendant. The petition was in proper form, notice duly served, and after regular proceedings there was a judgment in the county court establishing the road as prayed and assessing the damages, which the petitioner paid to' the county treasurer for the use of the defendant. An appeal was taken to the circuit court where the cause was tried de novo and again a judgment was rendered establishing the road as prayed; from that judgment the defendant has prosecuted this appeal.

Respondent moves to dismiss this appeal for the reason that the circuit court acquired no jurisdiction on the alleged'appeal from the judgment of the county court and therefore this court acquires no jurisdiction through the appeal from the judgment of the circuit court.

The transcript of the record of the proceedings in the county court filed in the circuit court' shows that the final judgment of the county court was rendered January 18, 1904, and that the application for the ap>peal was made and was allowed January 29,1904, which was eleven days after the final judgment. When the cause reached the circuit court the respondent moved the court to dismiss the appeal on the same ground, hut the court overruled the motion and proceeded to the trial with the result above stated.

Section 1788, Revised Statutes 1899’, provides: “In all cases of appeal from the final determination of any case in the county court, such appeal shall be prosecuted to the appellate court in the same manner as is now provided by law for the regulation of appeals from justices of the peace to circuit courts,” etc. And section 4060, relating to appeals from a judgment rendered by a justice of the peace, says: “No appeal shall be allowed in any case unless the following requisites be complied with: First, the appeal must be made within ten days after the judgment was rendered,” etc.

Appellant has filed what he calls an “additional abstract” in which he makes the statement that the affidavit and bond for appeal bear the indorsement of the clerk over his official signature, “Filed January 28, 1904.” But the clerk’s memorandum of filing cannot overthrow the solemn record entry which expressly declares that the application for the appeal was filed, together with the bond, on the 29th, and was on that day examined, considered and approved, and the appeal granted” to the circuit court.

In a proceeding of this kind the county court acts in its judicial capacity and speaks by its record; when the record of a county court shows the facts conferring the jurisdiction and shows that the court acted within its judicial jurisdiction, its judgment is as safe from collateral attack and its record as safe from collateral impugnment as the judgment and record of a court of general jurisdiction. [Seafield v. Bohne, 169 Mo. 537; Bennett v. Hall, 184 Mo. 407.]

We cannot in the face of the record before us conclude otherwise than that the appeal from the judgment of the county court was not taken within ten days after the rendition of the judgment, and therefore the circuit court acquired no jurisdiction of the cause and its judgment is a nullity. [Smith v. Chapman, 71 Mo. 217; Devore v. Staeckler, 49 Mo. App. 547; Kelm v. Hunkler, 49 Mo. App. 664.]

The motion to dismiss the appeal is sustained.

All concur.

ON MOTION FOR REHEARING-.

Our attention is called to Williams v. Kirby, 169 Mo. 622, with which counsel think the original opinion in this case is in conflict. There was a dictum in the original opinion which was liable to be construed as conflicting with some of the language used in Williams v. Kirby, but that dictum was unnecessary to the decision of the point decided, and we have therefore erased it from the opinion.

In Williams v. Kirby the record showed that the affidavit and bond for appeal were filed in the office of the clerk of the county court within the ten days prescribed by section 6328', Revised Statutes 1889', now section 4060, Revised Statutes 1899, but there was no order of court made then or thereafter granting the appeal, although at a later date, beyond the ten days limit, there was a record- entry showing that the bond was approved by the county court; the papers in the case were sent to the circuit court, and the cause was there docketed; on motion, of the plaintiff the circuit court dismissed the appeal on the ground that the county court had never granted an appeal; from thaf order the defendant appealed to this court, where the order of the circuit court dismissing the appeal was reversed and the cause remanded for trial. This court in that case cited with approval Jester v. McKinney, 47 Mo. App. 62, holding that an appeal would be considered as having been allowed under section 6334, Revised Statutes 1889 (now sec. 4066, R. S. 1899), which says: “In all cases when the bond and affidavit required shall have been filed or deposited with the justice in due time, and the justice shall have returned such appeal to the appellate court, the same shall be considered as having been allowed by the justice, although no entry thereof shall appear in the record.”

The difference between that ease and the case at bar is that there the record showed that the affidavit and bond for appeal were filed within the ten days, but there was no order approving the bond or allowing the appeal, whereas in this case the record of the proceedings of the county court show that the affidavit and bond were filed and the appeal allowed by the court on January 29th which was eleven days after the rendition of the judgment.

If, as respondent contends, the affidavit and bond bear the clerk’s endorsement of filing January 28th, then there is a conflict of evidence as to the fact; the solemn record says it was filed on the 29th and the clerk’s memorandum says it was filed on the 28th; which is the superior evidence?

The motion for a rehearing is overruled.

All concur.


author: GRAVES, J.

text:
    A. H. GARARD v. MANUFACTURERS’ COAL & COKE COMPANY, Appellant.
    Division One,
    November 27, 1907.
    1. MASTER AND SERVANT: Coal Mine Entry: Acceptance. The men who dug the entry-way In the coal mine had been paid therefor a month prior to the time plaintiff was employed and placed to work in one of the rooms opening upon the entry, and two or three days prior to the accident two of defendant’s employees weire at work in the entry propping! it up and clearing it up and repairing it, and were stopped by the foreman, who was notified by them of the danger of leaving, the rock which fell on plaintiff. Held,, that whether the entry-way had been taken over by defendant, was a question for the jury.
    2. -: -: -: — : Master’s Knowledge. And this evidence also shows that the master had knowledge of the defective condition.
    3. —i-: -: -: Direction to Plaintiff. Where defendant through its foreman directed plaintiff to mine in a certain room opening on to the entry, and to get his empty cars from a switch from the track in that entry, defendant had accepted, received and controlled the entry as to plaintiff, whether it had as to other miners or not.
    4. -: -: -: -: Instruction. And the instruction for plaintiff on the subject was based on the evidence, and was well enough.
    5. PERSONAL INJURIES: “Likely to Follow.” The use of the word “likely” in the question, “State what results are likely to follow?” is not error, since, in the connection in Which it was used it means “reasonably expected.” Besides, in this case, there was so much evidence of the character of the injury that it is apparent the use of this word did not prejudice the jury, and its use, even if otherwise of doubtful propriety, was harmless.
    6. MASTER AND SERVANT: Instruction: Measure of Master’s Duty: Modified by Subsequent Clause. The instruction told the jury “it was defendant’s duty to make and keep the entry in its mine, where plaintiff would have to pass, reasonably safe from the failing of overhanging rock, earth and debris in the roof of said entry and it was not plaintiff’s duty to examine said rock to see that it was. safe, but he had a iright to rely upon the defendant to see that said entry was kept reasonably safe, and that it had exercised all reasonable care and diligence in that regard”. Held, that, even if this part of the instruction states too broadly the measure of duty owing by the master to the servant, which is not conceded, that defect was cured by a subsequent clause therein which points out what omissions of duty would constitute a neglect to provide a reasonably safe place.
    7. -: -: Conflicting: No Evidence. The instructions given for plaintiff on the subject of the master’s duty to make the entry-wajy reasonably safe folr plaintiff to pass to' his place to mine, are not in conflict. Nor are they in conflict with on,e for defendant declaring it to be a miner’s "duty to place props under the roof of the iroom in which he mines as the mining progresses; and even if Jhey were, there is absolutely no evidence on which to base defendant’s said instruction, for he was in the entry when he was injured, and not in any of the rooms which opened out from the entry.
    8. EXCESSIVE VERDICT: $5000. Plaintiff, twenty-four years of age, earning four dollars a day, was a miner, and injured by the falling of rock from the roof of an entry-way to a coal mine. His leg was badly biroken, an'd as a result it is weakened and shortened, and the physicians say that the injury is permanent, and the probable result a “club-foot.” Held, that the court would not be justified in interfeiing with a verdict for $5,000.
    Appeal from Adair Circuit Court. — No». Nat. M. Shelton, Judge.
    Affirmed.

      Percy Werner and Campbell & Ellison for appellant.
    (1) Defendant was not guilty of the negligence charged. The rock fell in a new entry not yet taken over by defendant. The rule as to “safe place to work” does not apply to newly excavated portions of a mine. White’s “Personal Injuries in Mines,” sec. 401. (2) Plaintiff in unnecessarily lingering for several minutes under the overhanging rock in the roof of the entry, when he heard it “chipping,” knew that its fall was imminent, was warned by one fellow-servant and himself warned another, when he had ample time to get to a place of safety, and. had no business where he remained, was guilty of negligence which as a matter of law bars a recovery herein. Watson v. Kansas & Texas Coal Co., 52 Mo. App-. 366, citing Olsen v. McMullen, 24 Minn. 94; Walsh v. Railroad, 27 Minn. 367; Lent v. Kansas & Texas Coal Co., 80 Mo-. App. 374; Culver Const. Co. v. McCormack, 114 111. App-. 655; Kilroy v. Foss, 161 Mass. 138; Simmons v. C. & I. R. Co., 110 111. 340; Bunt v. Sierra Buttes Cold Min. Co., 24 Fed. 847, affirmed, 138 U. S. 483; Knight v. Cooper, 36 W. Va. 232; Evans v. Chessmond, 38 111. App. 615; Fowler v. Pleasant Valley-Coal Co., 16 Utah 348; Colorado Coal & T. Co. v. Carpita, 6 Colo. App. 248; “Personal Injuries in Mines,” White, secs. 263 and 264. (3) The court erred in admitting in evidence the opinion of a physician to the effect that “of permanent effects the only one that could happen would be club foot, what we call talapes foot.” Damages can only be recovered for injuries which are reasonably certain to ensue. 1 Joyce on Damages, sec. 244, citing: Covell v. Railroad, 82 Mo. App; 180; Chilton v. St. Joseph, 143 Mo. 192; Bigelow v. Railroad, 48- Mo. App. 367. See, also: Strohm' v. Railroad, 96 1ST. Y. 305; Tozer v. Railroad, 105 N. Y. 617; Atkins v. Railroad, 57 Hun 102 ; Briggs v. Railroad, 177 N. Y. 59; Collins v. Janesville, 99 Wis. 464. (4) Plaintiff’s first instruction was erroneous. The duty of a master to make a place reasonably safe is not absolute; he is only bound to exercise ordinary care to that end. Dunn v. Nicholson, 117 Mo. App. 374; Armour & Co. v. Russell, 144 Fed. 614; Orr v. Waterson, 228- 111. 138. (5) The verdict was excessive.

      Goode S Cooley and Higbee é Mills for respondent.
    (1) Defendant’s negligence is beyond question. The entry where the injury occurred had been driven by men employed by defendant for that purpose and paid for and received by tbe company from tbe entry-man, long before plaintiff was employed. It was and had to be used both by plaintiff and defendant, as well as other miners, as a passageway or roadway; defendant’s agents had assumed jurisdiction of it, its foreman himself telling plaintiff he would see to timbering a portion on beyond where the injury occurred; actual knowledge of the dangerous condition at the place of the accident two or three days before it occurred, was brought home to defendant. Defendant’s duty to maintain the entry in question, in a reasonably safe condition, and its negligence in not doing so, were abundantly shown. Plaintiff was not driving the entry, but was employed by defendant to open a room off this entry and had to use the entry as a roadway to his room. Wojtylak v. Kansas & Texas Coal Co., 188 Mo. 260; Boemer v. Lead Co., 69 Mo. App. 601; Bowerman v.' Lackawana Mining Co., 98 Mo. App'. 308; Smith v. Little Pittsburg Coal Co., 75 Mo. App. 177; Weston v. Mining Co., 105 Mo. App. 702; Wellston Coal Co. v. Smith, 65 O'. St. 70, 55 L. R. A. 99’; Tradewater Coal Co. v. Johnson (Ky.), 61 L. R. A. 161. (2) Plaintiff was not guilty of contributory negligence. The rock that fell upon him was not the one that had been heard chipping, nor was it connected with that one, being in another and different passageway. This question was properly submitted to the jury. Allen v. Railroad, 183 Mo. 426; Hamman v. Central Coal & Coke Co., 156 Mo. 243; Schroeder v. Railroad, 108 Mo. 322; Baird v. Railroad, 146 Mo. 280; Meyers v. Railroad, 99' Mo. App. 363; Buesching v. St. Louis Gas Light Co., 73 Mo. 219; Adams v. Kansas & Texas Coal Co., 85 Mo. App. 486; Bradley v. Railroad, 138 Mo. 293; Charlton v. Railroad, 200 Mo. 440; Butz v. Construction Co., 199 Mo. 287; Smith v. Little Pittsburg Coal Co., 75 Mo. App. 177; Thompson on Negligence, secs. 173, 188, 1891, 138, 198, 199; Dodge v. Mfg. & Coal & Coke Co., 115 Mo. App-. 501. Defendant’s demurrer to the evidence at the close of the ease was waived, and the question whether the case should have gone to the jury must he determined in the light of all the evidence. Fry v. Railroad, 200 Mo. 377. (3) There was no error in the admission of the evidence complained of. “Likely” is equivalent to reasonably certain. Besides, no harm could have resulted from the admission of that evidence, even if improperly admitted, and defendant .not having objected till after the question was answered and no motion to strike out being' made nor instruction requested withdrawing it from the jury, the objection is waived. Holden v. Railroad, 108- Mo. App. 672; 0¡’Keefe v. Railroad, 101 S. W. 1147; Reno v. Kingsbury, 39 Mo. App. 244; Wilkinson v. Ins. Co., 54 Mo. App. 664; Young v. Hudson, 99 Mo. 106; Julian v. Calkins, 85 Mo. 206; Hogan v. Railroad, 150 Mo. 50; Grocery Co. v. Smith, 74 Mo. App. 424; State v. Marcks, 140 Mo. 669; State v. Hope, 100 Mo. 347; Hollenbeck v. Railroad, 141 Mo. 105, citing Thompson on Trials, 715, 716; State v. Young, 153 Mo. 449; Roe v. Bank of Versailles, 167 Mo-. 472. (4) (a) The instructions given by the court fairly aud correctly submitted the case to the jury. Read together they fairly submitted all issues, and indeed were more favorable to defendant than it was entitled to. The instructions should all be- read together. P'andjiris v. Hartmann, 196 Mo. 539'; Moore v. Railroad, 193 Mo. 411; Deschner v. Railroad, 200 Mo. 333; Weston v. Mining Co., 105 Mo. App. 709; Gordon v. Burris, 153 Mo. 232. (b) Instruction 1, given for plaintiff, was not erroneous. Smith v. Fordyce, 190 Mo. 12; Bradley v. Railroad, 138 Mo. 307; Knight v. Sattler Lead & Zinc Co., 91 Mo. App. 574; Orr Nash v. Kansas City Hydraulic Pressed Brick Co., 109 Mo. App. 600; Schmitz v. Railroad, 119 Mo-. 279; Houts v. Railroad, 108 Mo. App. 692; O-’Mellia v. Railroad, 115 Mo. 217; Gardner v. Railroad, 1351ST. W. 96. (c) Plaintiff’s instruction 2 is a correct declaration of the law. Schmitz v. Railroad, 119' Mo. 269; Holden v. Railroad, 108 Mo. App. 665; Sidekum v. Railroad, 93 Mo. 406; Reynolds v. Railroad, 189 Mo. 408; Mitchell v. Railroad, 97 Mo. App. 417; Everly y. Railroad, 96 Mo. App. 371; Chaplin v. Railroad, 114 Mo. App. 256; 0'’Keefe v. Railroad, 101 S. W. 1144. (d) No complaint can he made as to instruction 3. It follows the testimony,' and is proper, even on the testimony of defendant’s witness, and much more on that of plaintiff’s. (5) The verdict is not excessive. It is not such as to shock the conscience, but is fair and reasonable, and having met the approval of the trial court, will not be interfered with by the appellate court. And appellant in its abstract does not set out the testimony of the physicians on this point, and is not in position to ask this court to review this question. Henderson v. Kansas City, 177 Mo. 492; O’Connell v. Railroad, 106 Mo. 482; Levoy v. Railroad, 19'2 Mo'. 197; Phippin v. Railroad, 196 Mo. 321; Nichols v. Plate Glass Co., 126 Mo. 55, a case similar to this; Perrette v. Kansas City, 126 Mo. 238.
   GRAVES, J.

Action for personal injuries occurring about the 23rd day of September, 1903. Plaintiff is a coal miner and on that date had an experience in the business of about five years.. Defendant is a Missouri corporation engaged in mining coal. Some three days prior to the injury, plaintiff was employed by the defendant to mine coal in its mine in Adair county. From the evidence it appears that the main entries in this mine run north and south from the shaft. From this north main entry there had been driven at least two entries running towards the east. David Shaw was defendant’s mine foreman and put the defendant to work. At the same time he also employed and put to work one Scrivens. These parties were placed to work on the second east entry off from the north entrance. From this second east entry rooms were being “turned” or driven and worked to the north. When plaintiff was employed and placed to work, there had been three or four of these rooms “turned” or driven north, and either a fourth or fifth started. Some of the witnesses say that there were three rooms being worked and some say four. They all agree that one Hamilton was working in the last opened room to the east and that the plaintiff was placed to work in the room being opened just east of Hamilton, and that Scrivens was working in the room being opened just east of the plaintiff. The petition is exceedingly lengthy and verbose, but the negligence charged therein is thus stated:

“Plaintiff further states that defendant, wholly unmindful of its duties, had carelessly and negligently failed to trim the roof of said entry in which plaintiff was working as aforesaid, so as to work out loose boulders and rock therein, and failed to remove such loose boulders and rock, and carelessly and negligently left unsupported the walls and roof of said entry where plaintiff was working and passing to and from his work, and the roof over and above said entry, tramway and car tracks, thereby leaving the same in a defective and unsafe condition,' and by reason thereof the same were not reasonably safe, and said entry, tramway, and car track were not reasonably safe for the passage of plaintiff, in going to and from his said place of work, and in tbe performance of his duties as aforesaid, and defendant carelessly and negligently failed to support the walls and roof of said entry with timber and props, or other suitable materials of sufficient quantity and strength, as to prevent the same from falling and caving in on the plaintiff while at work and while engaged in the performance of Ms duties, and to prevent rock, coal, earth and boulders from falling upon him, and carelessly and negligently failed to adopt any means to render said walls and roof reasonably safe, but on the contrary, allowed said walls and roof to become and remain in a dangerous and defective condition, by reason of rock and boulders and earth and coal therein becoming loosened and remaining loosened and liable to fall; by reason of all which said careless and negligent acts and conduct of defendant, the defendant’s said mine and said entry and the walls and roof thereof, and said tramway and said car track, were not reasonably safe, but were dangerous and defective; and that said dangerous and defective condition of said mine and said entry and the walls and roof thereof, and of said tramway and car track, as hereinbefore set forth, was then and there known by defendant, or could have been known by the defendant, by the exercise of ordinary care and prudence on its.part, in time to have fixed and' repaired the same, so that the said walls and roof, and said entry, and said tramway and car track, would have been reasonably safe; and when plaintiff was engaged in the discharge and performance of his duties as the employee of defendant, under his aforesaid contract, and was in line of his duty and at a point at which it was the duty of defendant to keep and maintain said walls and roof, entry, tramway, and car track, and its said mine in a reasonably safe condition for the protection of plaintiff while coming and going to his said place of work, and while he was in the performance of his duties as aforesaid, and without fault or negligence on Ms part, the wall and roof of said entry, which was above and over said tramway and car track, suddenly and without warning to plaintiff gave way and fell and caved in, and a great rock and mass of earth and coal, constituting a part of said wall and roof, fell on . the plaintiff, strildng him on the body and legs, and brrnsed and crushed the flesh of his right leg, foot and ankle, and broke and crushed the bones of his right leg, and bruised, broke and crushed the bones of .right ankle and foot.”

By paragraph one of its answer, the defendant admits its corporate capacity and denies each and every other allegation of the petition. The second paragraph is a plea of contributory negligence, thus stated: “And for further answer defendant says that whatever injury plaintiff sustained at the time and place stated in said petition, was occasioned by and resulted from his own fault and negligence directly contributing thereto in voluntarily placing himself or remaining in a position of danger after notice and warning thereof. ’ ’

Upon a trial, plaintiff was awarded a verdict by a jury in the sum of $5000', upon which judgment was, entered. After unsuccessful motion for new trial, defendant appeals.

Both .defendant and plaintiff file abstracts of the evidence. A comparison of the two with the record shows that the one filed by plaintiff was fully authorized owing to omissions and othe'r inaccuracies in the one prepared by defendant, appellant.

Points made by defendant, together with the evidence bearing thereon, will be noted and stated in the opinion.

I. Defendant’s first contention is that its instruction in the nature of a demurrer to the evidence should have been sustained, and this for two reasons: (1) because the rock which fell upon and injured the plaintiff was “in a new entry not yet taken over by the defendant,” and (2) because plaintiff was himself negligent “in unnecessarily lingering for several minutes under the overhanging rock in the roof of the entry, when he heard it ‘chipping,’ knew that its fall was imminent, was warned by one fellow-servant and himself warned-another, when he had ample time to get to a place of safety, and had no business where he remained, was guilty of negligence which as a matter of law bars á recovery herein.”

To properly discuss this, a statement of the facts shown becomes necessary. It was shown that plaintiff was placed to work in the room above indicated by Shaw, representing the defendant; that this east entry had been driven beyond this room and beyond the room where Scrivens was placed to work; that the entry or -roadway was made by men who w;ere, employed for that purpose and who were paid differently from the regular miners; that this entry had been paid for by defendant a month or more before plaintiff was employed; that in driving or making entries or roadways in mines, the men' doing the work put in temporary tracks, upon which to run the little cars in taking out the coal, as well as the debris resulting from such work; that afterwards, as the rooms were opened, there was placed in the entry or entry-way, more permanent tracks and a switch at each room; that at this time the permanent track had been completed at least as far as to the front of Hamilton’s room, and a switch had been placed there; that in doing his work the plaintiff had been directed to get his empty cars for the purpose of loading his coal, at the switch in front of Hamilton’s room; that to do so he had to go back and forth in this entry and use the track therein; that he also had to use it in going to and from the place of his work; that employees of the company, employed for that purpose, were at work fixing up this entry several days prior to the accident, but were directed by Shaw to quit that work and to go and clean up the air-course, as he was expecting the mine inspector; that these-men had sounded the rock which fell upon plaintiff and knew that it was loose, and so told David Shaw, when he directed them to quit their work upon the entry and go to the air-course; that they then told him of the dangerous condition of the entry, which was several days prior to the plaintiff’s injury.

Now, at the time of the accident, the evidence of the plaintiff substantially shows this state of facts: plaintiff went down to the switch in front of Hamilton’s room to get an empty car; Hamilton was cleaning up his roadway (the roadway leading from the entry in his, Hamilton’s room); that plaintiff heard a cracking or “chipping” of a rock in the neck of Hamilton’s room,- and told him, Hamilton, to look out, there was danger; that not finding a car, he started back to his room, and when six or eight feet back from Hamilton’s room, a rock from the roof of the entry fell and caught him; that he heard and saw no indications of danger in the entry, but did see and hear this “chipping” and cracking in the neck of Hamilton’s room. Suffice it to say that plaintiff is corroborated by Ira Shott and other witnesses as to where the rock was which fell, and by Ira Shott as to what occurred at the time. Defendant’s abstract gives Shott’s testimony thus:

“Ira Shott: Was working at defendant’s mine at the time of the accident in question. Was employed by David Shaw, who was mine foreman or pit boss. I was in the entry, close to plaintiff, when the rock fell. I should judge, fifteen or twenty feet from him. I was with him just a while before the rock fell. I had told him I would get a car pushed in the switch and he could get it. After I moved from, the position up> by the mouth of Mr. Hamilton’s room, I noticed the prop being loose there and told him to watch out, the rock was loose — the rock over Hamilton’s roadway. It was in the room neck. Garard was standing out on the main track, upon the entry track, right in front of the door, I judge five or six feet out from the neck. The rock I mention was one over Mr. Hamilton’s roadway, and I knew nothing of the rock being loose that struck Mr. Garard. I did not have any reference to the rock that hit Mr. Garard. If Mr. Garard had stayed where he was when I cautioned him about that roof in Hamilton’s neither rock would have touched him. I told him I would get a prop and put in there. I left him and went 100 feet past looking for a prop and found none. When I got back he had moved his position. He had moved towards his room. When I saw him I addressed Mr. Hamilton to watch — the roof would fall. As soon as I spoke I think he started to turn around. The rock struck him on the shoulder. He had moved six or eight feet east from where he was standing. I saw the rock ■ strike him on the shoulder. I was about fifteen feet from him. I assisted in getting him out, with the other men.”

Further corroborating plaintiff as to the fact of his having spoken to Hamilton about the rock in his (Hamilton’s) room, upon examining the transcript we find these questions and answers in the testimony of Shott, which hardly fully appears in the abstract of it.

££Q. Directly after you mentioned about the roof what else was said? [This question referred to the roof in the neck of Hamilton’s room.] A. I told him directly that I would get a prop and put in there. I left him and went a hundred feet past looking for a prop and found none — when I got back he had moved his position.

££Q. Where was he going? A. He had moved toward his room.

££ Q. How was he going? A. WTien I saw him he addressed Mr. Hamilton to watch, the roof would fall.

1 ‘ Q. What rock did he refer to ? A. The one in Hamilton’s room. ’ ’

(a) The learned counsel for defendant contends that this was a new entry and had not been taken over by the defendant and for that reason it was not liable for the injury occasioned by the fall of a rock therein. This contention is not sustained by the evidence. The men- who dug the entry had been paid therefor a month prior to plaintiff’s employment. Two men in the employ of defendant, and who testify in the case against the contention of defendant, were at work in this identical entry and at the identical place of injury, propping up and fixing the same. They were there just a few days, two or three, prior to the date of injury. They were not engaged in mining but engaged by defendant to clean up and repair the mine. They were stopped by Shaw, the foreman, and over their protest, sent to another portion of the mine, after they had notified Shaw of the danger there was in leaving this identical rock in its then condition. Under the facts this entry was under the control of the defendant at the time. It had been paid for and received and defendant’s men in the actual possession thereof.

But aside from that, it stands undisputed in the record that defendant, through Shaw, directed plaintiff to occupy the room he was in and to get his empty cars at the Hamilton switch. Whether defendant had accepted, received and controlled this entry as to others, it certainly had as to plaintiff. It was the only means he had of going to his room therefrom. In other words, it was the place furnished him in which to work. That defendant was required to furnish a reasonably safe place is unquestioned law. That it was not reasonably safe is unquestioned fact, and that defendant had knowledge of its condition, and plaintiff did not, is abundantly shown. Under such circumstances the question of defendant’s negligence was properly submitted to the jury, and its demurrer to the testimony properly overruled.

(b) The next reason assigned is that plaintiff was guilty of negligence such as would preclude a re¡covery, because he lingered near Hamilton’s room several minutes after he heard the “chipping” of a rock. This contention like the other has no foundation in fact. The position of defendant is that plaintiff heard the rock that struck him and then remained there several minutes. The contention is based upon a false assumption of the facts. Both plaintiff and Shott saw nothing wrong with the rock in the entry, which was several feet to the east of Hamilton’s room, but it was the rock in Hamilton’s room which they heard, and each notified Hamilton. This question was therefore properly submitted to the jury and the demurrer properly overruled on this point.

Upon the whole the ruling of the court nisi on the instruction was pre-eminently correct, and we perhaps should add that the great mass of the testimony was against the defendant upon both of its contentions with reference to this peremptory instruction.

II. Dr. F. P. Young, witness for the plaintiff, had testified substantially as follows:

“He had a multiple fracture, that is, it seems the point of both bones, the fibula or outer bone, was broken where he had been, and it was broken below, and there was what you call a comminution, that is, the bones were both fragmented. Little fragments broken off. At that time he had an open sore that would discharge pus; I think that was about a month or six weeks after he was hurt as well as I remember. This is an exceptionally bad fracture, about the worst kind he could have in this place. I do not know of any worse, it is an exceptionally bad fracture. The subsequent inflammation as a result of the injury involved all the muscles and tendons popularly called leaders. That is what caused the stiffness. He is very fortunate to have the result he has.
“Q. What do you say as to whether or not the injury is likely to be permanent?
“By Mr. Campbell: What injury?
‘ ‘ By Mr. Cooley : I mean the effects of it; whether it is what you would understand as permanent?
“A. Oh, yes, it is a permanent injury. Anybody can see that that looks at it. That will continue. Probably it may be worse. That is one probability only. It may he it will get worse; it won’t get better. It is probably as well now as it will ever he. There is had apposition of the hones and that causes an extra amount of what is called callous material that welds the hones together. There is an extra amount of course involved and the surrounding bones and tendons, as I could put it, contract, get worse, ankylosis and a worse deformity is the result. I might say that in a case like this I amputated one foot to relieve the deformity. I say so it may he in twenty years from now you could tell---.”

After he had thus testified, and just after the last answer quoted above, then the following testimony was given by the witness, which is urged here as error:

“Q. State what results are likely to follow?
‘‘ By Mr. Werner : I object.
“By Mr. Cooley: Q. What in your opinion? A. The worst to my opinion would he club-foot.
“By Mr. Werner: I object to what results are likely to happen.
“By the Court: I think he is entitled to give an opinion as an expert as to the permanent effect.
“By Mr. Werner: Not to what is simply likely.
“By the Court: I think you are wrong. Motion overruled.
“Defendant excepts and saves exceptions.
“A. Of permanent effects the. only one that could happen would he club-foot, what we call talapes foot. That could he the only from these causes.”

The objection urged is to the use of the word “likely” in the question, “State what results are likely to follow?” It is no doubt the rule in this State and elsewhere that, upon the admeasurement of present damages for the future consequences of an injury, such damages should be such as are reasonably certain to result from the injury. The question has been up several times in instructions given as to measure of damages. Usually it has come up in instructions using such clauses as, “may hereafter suffer, if any, in consequence of such injuries.” We have held that the giving of such an instruction was not reversible error. [Reynolds v. Railroad, 189 Mo. l. c. 421; Dean v. Railroad, 199 Mo. l. c. 395; Caplin v. Railroad, 114 Mo. App. 256; O’Keefe v. Railroad, 124 Mo. App. 613.]

In the Reynolds case, decided by this court, the use of the word was held proper in the light of the facts of the case and not as a general principle. Usually the use of the word “may” in such instructions has been condemned, and we think correctly so.

In the Dean ease, supra, Lamm, J., held the instruction not reversible error “under the circumstances in judgment and with the restrictive limitations of the context.”

The term “likely” we find discussed in but one Missouri case, Holden v. Railroad, 108 Mo. App. 665. In that case, Bland, P. J., reviews the authorities from State and Federal courts, and approved the instruction. He closes his review of the law with this comment: “Among other definitions of the term ‘likely,’ given by some of the lexicographers, are the following: ‘Worthy of belief.’ [Webster’s Dictionary.] ‘Reasonably expected. ’ [Standard Dictionary.] ‘As may be reasonably, supposed.’ [Century Dictionary.] Of course the term has other significations less definite than the foregoing, and for this reason it should not be used in an instruction to a jury when plainness and definiteness of direction are required, but we do not think the jury understood by the instruction that they were commissioned to estimate the damages irrespective of what they might believe from the evidence would reasonably result in the future from the consequences of the injury, but did understand that the future losses for which they might assess present damages were such losses as were reasonably certain to- accrue- from the injury. It was in this sense the- learned trial court understood tbe term as used in the instruction, and there is nothing in the record to induce us to believe that the jury had a different understanding. We think a fair construction of the term, as used in the instruction, means, and was understood by the- jury to mean, such losses as were reasonably certain to accrue in the future as the result of the injury complained of.”

As said by Judge Bland, one- of the definitions of the word “likely” is “reasonably expected,” and there is but a slight shade of difference- between “reasonably expected” and “reasonably certain.” Should we substitute the- words “reasonably expected” for the word “likely” in this question, we think it would, meet the requirements of the- law, which says that future damages and results must be such as are reasonably certain to follow. The objection is not well taken.

But if it were, there is so- much other evidence in this record on tbe' character of this injury, that it does not appear that ibis little scrap of testimony could have prejudiced the jury, and it was therefore harmless.

III. The first instruction given for the plaintiff is vigorously assailed by defendant. This instruction reads:

“1. If the jury find from the evidence plaintiff was in defendant’s employ mining coal on or about September, 1903, you are instructed it was defendant’s duty to make and keep the entry in its mine, where plaintiff would have to pass, reasonably safe- from the falling of overhanging rock, earth and debris in the roof of said entry, and it was not plaintiff’s duty, to examine said roof tc see that it was safe-, but he had a right to rely upon the defendant to see that said entry was kept reasonably safe, and that it had exercised all reasonable care and diligence in that regard.
“If, therefore, you believe from the evidence the defendant or its agent in charge of said mine, knew, or by the exercise of reasonable diligence would have known, that the roof of an entry in its mine where plaintiff would have to pass was unsafe from overhanging rock, earth or debris, and negligently failed to remove such earth, rock or debris, or to make same reasonably secure, and. plaintiff, while in discharge of his duties, and in the exercise of reasonable care and caution on his part, was injured and had his leg and ankle bruised, crushed and broken by the fall of overhanging rock, earth and debris in the roof of such entry, then your verdict should be for the plaintiff in such sum as you may believe from the evidence will fully compensate him for all the pain and injuries he has sustained or will sustain in the future, if any, caused by the falling of such roof upon him, not to exceed $15,000.”

The contention is that this instruction states too broadly the measure of duty owing by the defendant to the plaintiff. In other words, defendant says that this instruction makes it the absolute duty of defendant to furnish plaintiff a reasonably safe entry, whereas the law only requires the defendant to use ordinary care to keep the entry way in a reasonably safe condition. The criticism is directed to the first paragraph of the instruction. This court upheld a verdict in a case where a very similar instruction was given. [Smith v. Fordyce, 190 Mo. l. c. 12.] The first part of the instruction in the Smith case, supra, was fully as strong as the instruction now in question. But aside from this, when the whole instruction is read together, we think the law was properly declared. The broad statement of general principles is modified by the second paragraph of the instruction.

In the case of Bradley v. Railroad, 138 Mo. l. c. 308, where there was under consideration a very similar instruction, upon this point, that is, as to the modification of the broad general statement in the first part of the instruction by a second and subsequent clause, where the application of the law is made to the facts, we said: “It seems to us that this part of the instruction explains, qualifies and renders harmless what precedes it. It points out what omissions of duty on the part of defendant will constitute a neglect to provide a safe place for plaintiff to work in the circumstances in this case.”

So, in this instruction: The broad statement of duty contained in the first paragraph is modified by the explanatory language of the second paragraph. The instruction will not be condemned for the reason urged first by defendant.

Defendant further contends that this instruction is in conflict with instruction three given for the plaintiff. Instruction numbered 3 reads:

“3. If the jury find from the evidence the entry or roadway had been opened for some sixty or seventy feet beyond the last room, or the room in which Hamilton was mining, and had been paid for and ‘received’ from the entry-man by defendant, before plaintiff was employed to open a room off said entry beyond Hamilton’s room, and that plaintiff was so employed by defendant, then you are instructed it was the duty of defendant to use reasonable diligence to make and keep said entry in a reasonably safe condition where plaintiff would have to pass. ’ ’

Taking both paragraphs of instruction numbered 1 and giving it the modified meaning which paragraph two places upon paragraph one thereof, there can be no conflict between these two instructions. They both announce the same law.

It is then urged that plaintiff’s instruction numbered 1 is in conflict with defendant’s instruction numbered 2. Defendant’s said instruction reads:

“2. The court instructs the jury that there is no obligation on the part of the operator of a coal company as an entry therein is being driven, to remove all loose rock and earth, and coal and other substances from the walls and roof of the entry, and to place props and timber therein to support the walls and roof, as the opening up of said entry proceeds; but the protection of the miners who do the work of opening up such entries, devolves on the miners themselves as the work proceeds, and the matter of securing such entries, and keeping them free from obstructions, only devolves upon the operator when such entries are received by the operator from the miners, and made into roadways.”

We hardly see where the conflict is between these two instructions, but if there was such a conflict, there is absolutely no evidence in this record upon which to base defendant’s instruction number 2. All the evidence shows that this entry-way where plaintiff was hurt'had been made and paid for by defendant a month before plaintiff was employed. The entry-way had been driven away beyond the plaintiff’s place of work, and we find no evidence abstracted and before us that the defendant was, at the time, even working upon the eastern end of the entry. It was under the undisputed evidence being used as an entry and working rooms being “turned” or opened up on the north side thereof.

There are some other objections which we do not deem necessary to mention. Suffice it to say that in our judgment they are.without merit.

IV. Objections are made to plaintiff’s instruction three. We have set out the instruction in our paragraph three. We have given a pretty full detail of the facts in onr statement. To onr mind the instruction is predicated upon the evidence and is not subject to this and the other criticisms made thereon by counsel for defendant. Nor is there any merit in the criticism up- . on other instructions given for the plaintiff. Counsel criticise in detail but utterly fail to cite any authority in support of samé. We think the instructions given were as favorable to defendant as it was entitled to under the facts.

Y. Lastly it is urged that the verdict is excessive. We have set out a part of the testimony of one of the physicians who testified as to this injury, in connection with another point hereinabove discussed. This testimony we took from respondent’s abstract, after comparing it with the transcript. Appellant has failed to abstract all the testimony as to the character of the injuries, and we might have been justified in the conclusion that it had evidently abandoned the point. Under the medical testimony the plaintiff sustained a very serious fracture, which has resulted in loss of motion, as well as the weakening and shortening of the limb. The physicians say his injury is permanent and the probable result is a club-foot. He was a young man, twenty-four years of age, and was earning four dollars per day. We are not prepared to say that this verdict is excessive or at least so excessive as to authorize interference therewith by this court.

This disposes of all the contentions of defendant.

By thus disposing of the case upon its merits which we have'done for reasons appearing to us in tills proceeding, we in effect overrule the plaintiff’s motion to affirm for failure to file in this court a proper abstract of the record. For this reason we desire to add that we in nowise intend by this action, called for by the peculiar situation of this case, to modify the views, as. to our rules and the law, as ánnounced in the recent cases of Harding v. Bedoll, 202 Mo. 625; Stark v. Zehnder, 204 Mo. 442; Pennowfsky v. Coerver, 205 Mo. 135; and other similar cases. These eases properly declare our yiews and the law as we understand it, as to what should he in an abstract of the record.

From what has been said, it follows that the judgment should be affirmed, and it is so ordered.

All concur.


author: LAMM, J.

text:
    CORNOVSKI et ux. v. ST. LOUIS TRANSIT COMPANY, Appellant.
    Division One,
    November 27, 1907.
    1. NEGLIGENCE: Danger Line: Curb: Assumed in Instruction: Child: Danger to a four-year-old. child and the duty on the motorman’s part to keep a vigilant watch began the very instant the child left the cuirb line and started towards the car track over the twelve intervening feet of the street; and an instruction which assumed that the danger line for such a child began at the curb line and was continuous from there to the track is not erroneous, for it is a fact about which in the minds of all reasonable men there is no controversy.
    2. - — : -: -: -: Not Assumed. But in this case the instruction did not assume that the curb line was the danger line and the intervening space of twelve feet between it and the car track a danger zone, by referring generally to the child’s “crossing said street and in a position of danger of being struck by said car”, for that meant that the place of danger was wherever the jury should locate it.
    3. -: Instruction: Proximate Cause. The use of the words “proximate cause” in an instruction is not to be commended. If in fair logical intendment the instruction puts to the jury the causal connection between the negligence of defendant and the injury of the injured party, the omission of the .words “proximate cause”, etc., is not error.
    4. -: -: -: Aided by Defendant’s. An instruction for plaintiff which only feebly or obscurely or impliedly puts the question of causal connection or proximate cause to the jury is cured by one for defendant on the same subject which clears up all obscurity and removes all doubt.
    5. -: Omission of Duty: Proximate Cause. Where the failure of defendant to discover the child’s danger was the result of the lack of the due care required by the law, and where a due observance of that duty would have avoided the injury by the use of reasonable care, such omission of reasonable care is in law the proximate cause of the. injury.
    6. —-: Injury to Child: Contributory Negligence of Parents: Use of Words “In Their Circumstances in Life” In Instruction. Plaintiffs’ child four years old attempted to Gross the street in -front of a car and was killed. There was sufficient evidence to support the charge that .the motorman was not keeping a lookout for peirsons about to cross the track and did not see her until after she was struck. One of the defenses was that her parents (the plaintiffs) were guilty of contributory negligence in permitting her to be on the street after dark unaccompanied by any person of inature years. The employments and duties of her parents at the immediate time she escaped to the street were before the jury. Held, that an instruction for plaintiffs on the subject of the contributory negligence of her parents which required the jury to “consider whether or not they exercised that degree of care, caution and watchfulness over their said child which was reasonable and proper for parents in their circumstances of life as shown by the evidence”, was not erroneous, and if erroneous the error was harmless, although in the opinion of two of the judges the words “in their circumstances in life” ought not to have been used, and in a close case would invite serious consideration.
    Appeal from St. Charles Circuit Court. — Row. R. W. Johnson, Judge.
    Affirmed.

      Edward T. Miller and T. E. Francis for appellant; Boyle & Priest of counsel.
    Instruction 1, given for plaintiffs, is erroneous, (a) It is so worded as to direct the jury to find for plaintiffs if they believe the car could have been stopped after the deceased child started to cross the street and before she was struck, thereby assuming that she was in a position of danger the moment she started to cross, instead of leaving that question to the jury to determine as an issue of fact, (b) It did not require the jury to find that defendant’s negligence was the proximate cause of the injury. Harper v. Terminal Co., 187 Mo. 586. (2) Plaintiffs’ instruction 3 is erroneous. (a) Because it directed the jury, in determining the issue of plaintiffs ’ contributory negligence, to take into consideration their circumstances in life. Pox v. Railroad, 118 Cal. 55; Mayhew v. Burns, 103 Ind. 339'; Railroad v. Pitzer, 109 Ind. 179; Railroad V. Etomelmann, 108 Ind. 530; Hogan’s Petition, 5 Dill. (U. S.) 96; Hinds v. City of Marshall, 22 Mo. App. 215'. (b) Because there was no evidence tending to show what plaintiffs’ circumstances in life were. “An instruction which submits issues to the jury without any evidence upon which to found it is erroneous. ’ ’ Hinds v. City of Marshall, 22 Mo. App. 214; Evans v. Railroad, 106 Mo. 594.

      Wm. L. Bohnenlcamp and Wm. B. Gentry for respondents.
    (1) The instruction does not authorize the jury to find that plaintiffs’ child was in a position of danger the moment she started to cross the street. It requires the jury to find that the motorman saw, or by keeping a vigilant watch could have seen, her crossing said street and in a position of danger of being struck by said car. Under the wording of this instruction, the motorman was not obliged to attempt to stop his car until the child was actually in a position of danger, and it was left with the jury to find where that position of danger was. As a matter of fact, we do not see how two reasonable minds could differ upon the proposition that at the very instant when a three-year-old child started to toddle across the street, following an older child who crossed the track ahead of her, the little child was in danger, for the car was approaching rapidly toward the very point toward which the little child was moving. The instruction is practically identical in wording with instructions approved in the following cases: Livingston v. Railroad, 170 Mo. 452; Hilz v. Railroad, 101 Mo. 40; Klockenbrink v. Railroad, 686; Rapp v. Railroad, 190 Mo. 160; Fiedler v. Railroad, 107 Mo. 645; Gill v. Railroad, 101 Mo. App. 61. (2) . The third instruction is a literal copy of an instruction approved in cases decided by the Supreme Court of the State of Missouri. They are as follows: Levin v. Railroad, 140 Mo. 624; C'zezewzka v. Railroad, 121 Mo. Defendants have frequently been shocked by the use of such expressions as “conditions in life,” “circumstances in life ’ ’ and ‘ ‘ situation in life, ’ ’ but it has- been held again and again that it was not error to use such expressions. See the following personal injury cases in which such expressions are used in the measure of damages and in which the judgments are upheld: Thomas v. Railroad, 20 Mo. App. 485; Russell v. Columbia, 74 Mo. 480; Smith v. Butler, 48 Mo. App. 663; Mitchell v. P’lattsburg, 33 Mo. App. 555.; Ward v. Steffin, 88 Mo. App: 576. But, say appellant’s counsel, even if it is correct to give such an instruction in a proper ease, there is no evidence in this case on which to base it. We submit that there is all the evidence in this record which it would have been proper to offer tending to enlighten the jury on that subject. But plaintiffs were entitled to recover in the case at bar under the humanitarian doctrine, even if they had been guilty of negligence in the care of the child. C'zezewzka v. Railroad, 121 Mo. 201; Levin v. Railroad, 140 Mo. 624; Isabel v. Railroad, 60 Mo. 480; Frick v. Railroad, 75 Mo. 595.
   LAMM, J.

Plaintiffs, husband and wife, the parents of Esther Cornovski (the said Esther having been run over and killed by one of defendant’s cars on the evening of the 18th of March, 1903, in the city of St. Louis), sued defendant for statutory damages as for her wrongful death, and recovered a judgment for $5,-000. Perfecting an appeal on due and seasonable steps, defendant brings the cause here for review.

One of the charges of negligence related to a negligent failure to put in motion and drop the fender on the car, as provided in a city ordinance. This charge was taken from the jury by instruction. Another charge of negligence was a failure to sound the gong or give any other warning to the deceased of the danger from an approaching car. That charge also was taken from the jury by instruction.

Esther was a minor of tender years. She was killed on Eleventh street, and the ground of negligence charged in the petition and put to the jury was a violation of an ordinance of the city of ■St. Louis known as the Vigilant Watch Ordinance, in that defendant’s motorman “negligently and carelessly failed to keep a vigilant watch for all persons on foot, and especially the daughter of these plaintiffs, moving towards the track or upon the track, and that said motorman failed •on the first appearance of danger to the daughter of these plaintiffs to stop the said car within the shortest time and space possible. ’ ’ >

The defense interposed was a general denial and a plea of contributory negligence, viz., that the child’s death was caused by the negligence of her parents in that she was of immature years and they allowed her to be upon a street after dark where they knew street cars were being operated, unaccompanied by a person of mature years.

Defendant demurred to the evidence at the close of plaintiffs ’ case and again at the close of the whole case. These demurrers were overruled and defendant saved an exception, bnt does not assign error here on said rulings.

The case is presented, to us on the theory that plaintiffs made a case for the jury, and the errors assigned pertain to the way it was put to the jury. In this condition of things, the determination of the case may proceed understandingly by fetching a small compass on the facts. Thus:

Esther was two or three months short of four years old. She was struck and literally cut to pieces on the evening of March 11th, 1903, between half past six and seven o’clock by a street car manned by defendant’s employees. Defendant had a single track on Eleventh street, used for south-bound cars. Plaintiff, Hymen Cornovski, kept a grocery store on the east side of that street — the wife helping in the store. They lived back of the store, at least they ate there, and possibly had their living and sleeping rooms over the store. There was a little, narrow yard, so called by courtesy, between the cooking and eating apartments and the store proper, or back of all of them, and this yard was connected with Eleventh street by a passageway shut off from the street by a gate.

On the evening in question some of the plaintiffs’ children had been upstairs taking a music lesson. The music teacher, passing out on the street, saw Esther sitting quietly on a box in front, and the child threw her a kiss. It seems she had been in the kitchen with her mother, who had just washed her face, combed her hair and given her her supper and then told her to tell the other children to come to the table. The mother, busy and preoccupied with her evening household cares, for the instant forgot the child, who went out the back door and into said yard. Soon the -mother, hearing screaming in the street, ran out and learned her daughter was dead. She testified the family were new and strange on the street; Esther wasn’t used: to it; they had moved there in January past, in the winter time; and that when she played out doors it was always in the little yard. The mother did not know she had gone on the street. The father said, in substance, that he was busy in the store waiting on customers and vending his wares; that glancing out of the front window or door he saw Esther sitting on a little box, hard by the door, a few minutes before she was killed. This was the last time he ever saw her alive, and then she was alone. He did not see her in the street that evening, and never saw her cross it before at any time. It appears, as of course, that both parents knew that defendant’s cars ran on a schedule of short intervals on Eleventh street.

There was a fire-engine house opposite, or nearly opposite, Cornovski’s place. Its door was open, the evening was mild and bright. What lured the child across the street is unknown; but she did cross it and was seen on the west side by the engine-house, going along the sidewalk with another girl aged about seven — a neighbor’s. Prom the west curb to the nearest rail of defendant’s track was twelve feet. Presently these children left the west sidewalk and ran from the curb, somewhat diagonally, east toward Esther’s home. The elder girl, being in advance, crossed the track and escaped the oncoming car, but Esther was caught and killed at the west rail.

On plaintiffs’ side it was shown that, when the children left the curb and passed towards the track, the car was about sixty feet away. Contra, there was evidence on defendant’s side that it was only about twelve or fifteen feet away. No witness placed the speed of the car in excess of seven miles an hour. There was a very small grade, if any, at the place of the accident — a very slight dip down. The car was equipped with an “ordinary goose-neck hand-brake, an ordinary controller and an ordinary reverse.” The street was in good condition, the track dry; and in this condition of track, grade and appliances, the car, according to plaintiffs’ experts, conld have been stopped within fifteen feet. According to defendant’s experts, it could not have been stopped within less than forty or forty-five feet. On plaintiffs’ side there was evidence tending to show that for a little while before the child was struck, and up to the very instant, the motorman was inattentive to his duties. He was at his post, possibly, but did not have a hand on the brake of controller, was not looking in front and did not see Esther at ail. One of plaintiffs’ witnesses, riding on the front platform with the motorman, said that employee was looking back “as if he was looking back to see something just before the accident happened.” Then there came a halloo or a scream, and the motorman “made a sudden dash for the brake.” As he grabbed the brake, he asked the witness “what was the matter, what was the trouble, and wanted to know if he had run over somebody, was somebody hurt?” Two of plaintiffs’ eye-witnesses said the motorman seemed to be looking sideways towards the engine-house, west, and not to the front or towards Esther. Contra-, on defendant’s side it was shown that the motorman was at his post of duty, was keeping a vigilant watch ahead of him at the time, and that at the instant the children left the sidewalk he saw them and at once applied the brake, reversed his power and did everything possible to stop without avail.

There was undisputed evidence that the immediate place was “thickly populated, and of a pleasant evening there were always large crowds of children around there.” On that particular evening it was as usual.

Plaintiffs were allowed three instructions (number one and number three being excepted to), viz.:

1. “If the jury find from the evidence that on the 18th day of March, 1908, the defendant was using the ear mentioned in the evidence; and if the jury further find from the evidence that on said date the plaintiffs were husband and wife and were the father and mother of the child Esther Cornovski, and that said E'sther was then a minor and unmarried; and if the jury further find from the evidence that at said time Eleventh street, at the point mentioned in the evidence, was an open public street in the city of St. Louis; and if the jury further find from the evidence that on said day, while the plaintiffs’ said child, Esther, was attempting to cross Eleventh street, she was run over and killed by the car mentioned in the evidence, which was being operated by the defendant, St. Louis Transit Company, through its motorman; and if the jury further find from the evidence that the said motorman in charge of said car, saw, or by keeping a vigilant watch, would have seen the plaintiffs’ said child, Esther, crossing said street and in position of danger of being struck by said car, and by stopping said car within the shortest time and space practicable, under the circumstances, with the means and appliances at hand, by the exercise of ordinary care consistent with the safety of said car and of the persons on said car, could have avoided running over and killing said child, and neglected to do so, then plaintiffs are entitled to recover of the defendant the sum of five thousand dollars unless you further find from the evidence that the plaintiffs, or either of them, were guilty of negligence in the care and custody of their child, which contributed to cause the death of said child.”
2. “By the term ‘ordinary care’ as used in these instructions, is meant such care as would be exercised by a reasonably prudent person under the same or similar circumstances. ’ ’
3. “The court instructs the jury that in determining whether or not the plaintiffs contributed by their negligence in the custody and care of their child, Esther, to her injury and death, you are to consider whether or not they exercised that degree of care, caution and watchfulness over their said child, Esther, which was reasonable and proper for parents in their circumstances in life as shown by the evidence:
“You are further instructed that the burden of proving contributory negligence on the part of the plaintiffs, rests upon the defendant.”

The defendant prayed twelve instructions — all of them, allowed. Of that series, those numbered 4, 5 and 6 bear somewhat on the contentions made here. They run as follows:

4. “The mere fact, if true, that the said Esther Cornovski was injured and killed by a car of defendant, gives plaintiffs no right to sue defendant and recover damages. Before, under any circumstances, plaintiffs are entitled to a verdict, you must find from the evidence that the injuries and death of the said Esther were actually caused by the negligence of defendant in the manner submitted to your consideration in these instructions. If her injury and death were not actually caused by such specified negligence, then plaintiffs have no case and cannot recover, even if the said Esther was injured and killed by being struck or run over by defendant’s car. But even if you find that the said Esther was injured and killed by such negligence, still plaintiffs cannot recover if, by their own act or conduct, as specified in instruction numbered 1 given on behalf of defendant, they negligently contributed to her injury and death.”
5. ‘ The court instructs the jury that they cannot infer negligence from the fact that the plaintiffs’ child was injured by the defendant’s car, but that the negligence charged against defendant is a fact which must be proved and the burden of proving same by the greater weight of the evidence is upon the plaintiffs.”
6. “While the burden of proof is upon the defendant to establish the contributory negligence of plaintiffs, yet, this does not relieve plaintiffs of the burden of proving that the injury and death of the said Esther were solely caused by the negligence of defendant as set out in other instructions. The burden of proving that fact rests upon the plaintiffs throughout the whole case, and if the jury find that the negligence of plaintiffs, as set out in the other instructions, either in whole or in part, caused, or directly contributed to cause the injury and death of the said Esther, then your verdict must be for the defendant.”

On the foregoing record, defendant assigns error, viz.:

Error in giving instruction one, for that (a) it assumes the child was in a position of danger the moment she started across the street, instead of leaving that question to the jury to determine as a fact, for that (b) the instruction did not require the jury to find that defendant’s negligence was the proximate cause of the injury.

And error in instruction three, in that (c) it directed the jury in determining the issue of contributory negligence to take into consideration plaintiffs’ “circumstances in life.” And (d) if that were proper, then there was no evidence tending to- show what plaintiffs ’ circumstances in life were, ergo, there was no testimony in support of the instruction.

Of these seriatim.

I. Assuming for the nonce that the instruction itself assumed the curb line was the danger line, then, to say whether an assumption is erroneous, the state of the proof in the identical case made is a prime prerequisite to correct judgment. Where the evidence is undisputed, is one way, and of such brand of cogency that but one just conclusion can be drawn from it by any rational mind, or where the thing proves itself, the court may deal with it as a matter of law. Why, indeed, frame an issue for a jury in a practical tribunal, administering the laws of a practical people in a practical way, requiring that jury to find and solemnly determine a fact not a fit subject of controversy and which can be determined only one way by all just men? If Esther had been an adult in the possession of mature judgment, or had passed the years of infancy and was arriving at years of judgment and sense, then, unless the motorman saw she was bent on crossing the track and was oblivious to her danger, it would have been error to have assumed that she was in danger from the very time she left the curb until she reached the track. Where the danger-line would lie (with reference to the running of street cars) for an adult, or for one possessed of some years and some discretion, in crossing the street, might very well be a matter of difference between good average men, and therefore, a question for the jury. 'Now, the sidewalk of a street is for foot travelers — children and grown. Between the curbs is for traffic; there, horses, wagons, vans, carts and cars pass to and fro and the wheels of commerce go clattering and roaring round and round in a confusion as bewildering as the wheels in Ezekiel's vision. Our very instincts teach us that when a four-year-old child, unattended, leaves the curb of a sidewalk — that is, leaves a place of comparative safety — and. heads across a street devoted to traffic in a great city, with a car track twelve feet away on which a car is approaching (as here) the little one as surely and instantaneously plunges into danger as that the square of the hypotenuse of a right-angled triangle equals the sum of the squares, of the other two sides, i. e., speaking broadly, it is axiomatic. Danger to the child and duty on the motorman’s part began the instant such a child left the sidewalk, bound headlong for the track. [Cytron v. Railroad, 205 Mo. l. c. 720. See, also, Livingston v. Railroad, 170 Mo. 452.]

The finding of twelve men in the box on that quesr tion under this record would not instruct any court, or subserve any purpose of the law. And this is so because the thing speaks for itself, and in speaking it says, as well before as after a jury’s finding, that as for Esther the curb was the danger-line. It would be no more sensible to put that question to the jury than it would be to put to them to find where the danger-line in firing a barn was chalked out when a burning brand was cast into a mow of tow, or where such line lies when an infant is in a den of asps or rattlesnakes. If, then, the learned counsel for defendant are right in their contention that plaintiffs’ instruction numbered one assumes Esther Cornovski entered the danger zone when she left the curb and ran towards defendant’s track, there was no error.

However, that contention is not right. The instruction assailed did not assume the curb was the danger-line and the entire street the danger zone. It says nothing about “curb” but refers the jury generally to the child’s “crossing said street and in a position of danger of being struck by said car.” That is, wherever the danger-line lay the jury should locate it and consider it. Hence, it is not open to the criticism leveled at it. The point is ruled against defendant.

II. It is urged that vice lurks in instruction one because it did not directly put it to the jury to find that the negligence of defendant was the “proximate cause” of the injury to plaintiffs’ child. It is true the instruction does not use the phrase “proximate cause.” That phrase is one of a large and learned terminology, and it involves a refinement in mental processes and reasoning not of the essence of a good instruction, provided the thing to be got at is put to the jury in another way and within easy, everyday comprehension. The phrase “proximate cause” is not an everyday or hearthstone phrase. The average men who compose the body of the county, from which jurors are drawn, daily and shrewdly reason well from cause to effect, and doubtless not one in a thousand of them in so reasoning use that formidable and bookish phrase. They use other expressions from their mother-tongue meaning the same thing.

It is elementary that there must be a causal connection between the negligence and the injury in order for the negligence to be actionable. [Harper v. Terminal Co., 187 Mo. 575.] Here the jury were told that if they found from the evidence the motorman saw or by keeping a vigilant watch would have seen Esther crossing said street and in a position of danger of being struck by said car, and by stopping said car within the shortest time and space practicable, under the circumstances, with the means and appliances at hand, by the exercise of ordinary care consistent with the safety of said car and of the persons on said car, could have avoided running over and killing said child, and neglected to do so, then plaintiffs are entitled to re-' cover, unless they found plaintiffs were guilty of negligence in the care and custody of the child directly contributing to cause its death.

Now, the case at bar is one in which it is not contended the deceased child was of age to be guilty of contributory negligence. [Holmes v. Railroad, 190 Mo. l. c. 106.] That, then, is out of the case.

Nor is it one in which there is an iota of testimony that any other cause produced death expept the act of the motorman in running his car over the child. With so much assumed, the issue to be tried is separable into three elements: First, the contributory negligence of the parents. That was put to the jury fairly by instruction one, and by other instructions for defendant. Scernid, the negligence of defendant. There was ample evidence to show that, and the question was submitted properly. Third, the causal connection between the negligence and the death. As to this element, the jury were told, in substance, that if defendant’s motorman could have avoided billing tbe child by the use of ordinary care, after it was seen or might have been seen in peril, and neglected to exercise such care, then defendant is liable. It might have been better to have inserted in the instruction some such clause as this: “And if the jury further find that such failure, if any, to exercise ordinary care directly caused the injury and death of Esther,” or “was the proximate cause of her injury and death, then the jury should find, etc.” But though no such phrase, totidem verbis, is used, yet in fair logical intendment the instruction must be held sufficient to put to the jury the causal connection between the negligence of defendant and the death of the child — i e., that one was caused by the other. Thus, if A kill B and it is once determined that he could have avoided killing B by the exercise of due care, it would seem that, in the domain of reason and in ultimate analysis, the connection is made between the killing and the failure to exercise due care, that the two things bore the relation of cause and effect. An instruction in similar form has been sustained by the reasoning of this court. For example: Rapp v. Railroad, 190 Mo. l. c. 154, et seq.; Hilz v. Railroad, 101 Mo. l. c. 40, et seq.

In the 'latter case (p. 54) it was held that where the failure to discover decedent was the result of the omission of the measure of duty required by the law, and where a due observance of 'the duty would have avoided the injury by the use of reasonable care, then such omission and want of reasonable care is under the law held the proximate cause of the injury.

But we need not allow the foregoing reasons to be alone determinative of the point. In this case the doctrine of aider may be invoked, for if it be admitted there be doubt as to whether plaintiffs’ instruction squarely put the causal connection to the jury, or if that causal connection was put feebly or obscurely or only impliedly to them, yet defendant’s own instructions turned on full light, cleared up' all obscurity and removed all doubt, if any existed on that question. By defendant’s instruction number four the jury were told that before they found for plaintiffs they must find that the injuries and death of Esther were actually caused by defendant in the manner submitted to them by the instructions; and that if her death was not actually caused by such specified negligence, then plaintiffs have no case, even if Esther was killed by being run over by defendant’s car. By instruction 5 they were told that they could not infer negligence from the fact that the child was injured by the car. By instruction 6 they were told that though the burden was upon defendant to establish the contributory negligence of plaintiffs, yet that did not relieve plaintiffs of the burden of proving that the injury and death of Esther were solely caused by the negligence of defendant. The same point was under exposition in Deschner v. Railroad, 200 Mo. l. c. 332, et seq., and was ruled as herein indicated. The instructions must be read as one body of law and the assignment of error is, therefore, disallowed.

III. It is next argued that plaintiffs’ instruction number three was erroneous in form and unsupported by the testimony. That instruction follows approved precedents. [Czezewzka v. Railroad, 121 Mo. 201; Levin v. Railroad, 140 Mo. 624.] It is of the essence of good sense that if an appellate court has got on the wrong track it should get on. the right track — the sooner, the better. Nevertheless, it is no light thing for a court to have persuaded litigants into the belief that a certain instruction announces a correct rule of law and is applicable to a given state of facts, then, when that belief has crystalized into action in a concrete case, to face the other way and destroy a judgment the product of its own teaching.

Much might be said and well said against the use of the phrase “circumstances in life” in measuring the duty of a parent to a child where the question hinges ■ on the parents ’ contributory negligence; and appellant’s counsel have not been amiss or remiss in saying it. At first blush, the use of that phrase seems to involve a question of poverty or riches, of high or low social status, and to invite (or squint at the invitation of) proof of the fact, in one case, that the parents are poor and needy, downcast and humble, and in another case that they are opulent and exalted, lolling in the lap of wealth and seated in a high place. Such a field of exploration in a jury trial in a negligence case is full of pitfalls and snares, insidiously appeals to class prejudice, and runs counter to the broad proposition that there is but one rule of law for the high and the low, for the rich and the poor. Doubtless the courts would shut the door on such proofs, if offered.

Nevertheless, it may be said that those who of necessity are preoccupied with the toil of their own hands to earn their daily bread might not in a given case be guilty of negligence in allowing a little child to escape to the street of a city, when other persons because of other circumstances and conditions might be found by a jury to be remiss in a given case — due care being a care that adjusts itself automatically to the circumstances of the case. [Dean v. Railroad, 199 Mo. l. c. 408.]

Contributory negligence is bnt negligence with an expletive. Negligence is but the absence of due care. Due care is ordinary care. Ordinary care is defined as the care that would be exercised by a reasonably prudent person under the same or similar circumstances. That definition is a landmark of the law. “The old way is the safe way,” says Chancellor Kent in Manning v. The Executors of Manning, 1 Johns. Chan. *530. “The beaten way is the safest,” says Lord Coke. [10 Coke, 142.] That definition may well he taken as both the old way and the beaten way. To try to improve on it is bnt to add “wasteful and ridiculous excess;” is but “to gild refined gold, to paint the lily.” [King John, Act. IV, sc. 1.] If a close case were here we would be disinclined to follow the Czezewzka and the Levin cases. If such case were here involving a consideration of "the phrase “circumstances in life,” we would deem it our duty to consider the question of its use open and serious; but in the case at bar its use must be held harmless error, if error at all. Here there was no proof of plaintiffs ’ social or financial condition in life, as such. The evidence pictured to the jury the business and surroundings of'plaintiffs and their home. In the evidence, the jury were told the facts upon which to base their verdict on the issue of contributory negligence. The employment and duties of the father and mother at the immediate time the child escaped to the street were before the jury. The evidence went no further than this, and we think was entitled to go as far as it did; and it would be audacious to say that the phrase “circumstances in life” produced any effect on their verdict.

There being no error affecting the merits, the judgment is affirmed.

ValUcmt, P. J., and Woodson, J., concur in the result and in all of the opinion except the criticism of the Levin Case and the Czezewzka Case; Graves, J., concurs in the result and in all of the opinion except paragraph three. He holds that the instruction discussed in that paragraph is bad, but under the facts of the case harmless.


author: WOODSON, J.

text:
    GEORGE H. BELL v. J. BROOKS JOHNSON et al., Appellants.
    Division One,
    November 27, 1907.
    SPECIAL TAX SUIT: Description: Land Bounded by “Seif”: Void. The - common source of title was Charles Kuhn, and defendant claims title through an execution sale founded on a judgment rendered in a proceeding against Charles Kuhn to recover the amount of a special tax bill, in which the petition described the property as: “A certain lot of ground in the city of St. Louis, being in City Block 4484, having a front of fifty feet on Euclid Avenue by a depth of one hundred and ten feet, and being lot-- — in City Block 4'484, and bounded north by Sanders and self, east by self, south by self and west by Euclid Avenue.” Nellie Saunders owned a lot lying just north of the unnumbered lot in controversy, in City Block 4484. Held, first, that it is impossible to determine from the words “Sanders and self” how the lot was bounded on the north, and equally impossible to determine how it was bounded on the east and south, for it would be mere conjecture to hold that “self” refers to Kuhn, and even if it does the description would still be wholly insufficient since the evidence fails to show that Kuha had any land on the north, east or south; second, the circuit court acquired no jurisdiction over the subject-matter, and the judgment by default wasi void, and the sale of land under execution passed no title to the purchaser.
    Appeal from St. Louis City Circuit Court. — How. Warwick Hough, Judge.
    Affirmed.

      Henry H. Denison for appellants.
    The requirements of the law will be met if the description informs the owner and the public with reasonable certainty what property is to be sold. Doherty v. Real Est. Title, etc., Co., 85 Minn. 520; Kelly v. Sanders, 90 IT. S. 441; French v. Patterson, 61 Me. -203; Cooper v. Holmes, 71 Md. 20; Smith v. Messer, 17 N. H. 420; State, Allen, Pros. v. Woodbridge, 42 N. J. Law 401.

      Kinealy é Kinealy for respondent.
    (1) The judgment in the case of City v. Kuhn, under which appellant Johnson claims title, is void, because the order of publication which was published is not the one which was made by the court. Feurt v. Caster, 174 Mo. 289; Adams v. Cowles, 95 Mo. 501; Kelly v. Murdagh, 184 Mo. 377; Land & M. Co. v. Land & Cattle Co., 187 Mo. 420; Stewart v. Allison, 150 Mo. 344; Milner v. Shipley, 94 Mo. 106; Evarts v. Lumber & M. Co., 193 Mo. 433. (2) Said judgment is also * void because the petition, taxbill, order of publication and judgment fails to describe the land on which a lien is sought, so as to identify it. Winningham v. Trneblood, 149 Mo. 572; Long v. Higginbotham, 56 Mo. 245; Jones v. Carter, 56 Mo. 403.
   WOODSON, J.

This case originated in the circuit court of the city of St. Louis, and was brought under section 650, Revised Statutes 1890; whereby plaintiff seeks to have the court adjudge that he has the fee, and that neither of the defendants has any title in and to the tract of land described in the petition, which is as follows: “A certain lot of ground in City Block 4484 of the city of St. Louis, State of Missouri, having a front'of fifty feet on the east line of Euclid avenue by a depth of 195 and 64-100 feet between parallel lines, and bound as follows: Beginning at a point in the east line of Euclid avenue distant 314.16 feet south of said south line of Labadie avenue, thence eastwardly 195.64 feet to a point 313.46 feet south of said south line of Labadie avenue, thence northwardly and parallel to Euclid avenue fifty feet to a point, thence westwardly 195.64 feet to a point in the east line of Euclid avenue, and thence southwardly along said east line of Euclid avenue fifty feet to the point of beginning.”

Charles Kuhn is the common source of title.

The plaintiff claims title by purchase under execution sale, on September 9,1902, under a personal judgment rendered against said Kuhn in favor of the Thomas Realty and Building Company, on December 17, 1896.

The defendant Johnson claims title to the lot of ground in controversy through a purchase on August 8, 1902, under an execution sale founded upon a judgment rendered in a proceeding brought by the city of St. Louis against Charles Kuhn on a special taxbill, issued for benefits assessed against the lot in the matter of the opening of Terry avenue.

The petition in that case stated that said benefits were assessed against a certain lot of ground in the city of St. Louis in City Block 4484, having a front of fifty feet on Euclid avenue by a depth of 110 feet, bounded north by Sanders and self, east by self, south by self and west by Euclid avenue, and alleged that same was owned by the said Charles Kuhn. Summons was duly issued for defendant and directed to the sheriff of the city of St. Louis, and was by him returned with indorsement thereon, defendant not found. Subsequently an affidavit of non-residence was filed, and the court made an order of publication wherein it was stated that the object of the suit was to obtain a special judgment against the real estate described, and which was claimed to be charged with a lien for said special taxbill. The affidavit of P. J. Gordon, publisher of the St. Louis Chronicle, in which the order was directed to be published, was filed, accompanied by a copy of the advertisement, from which it appeared that the notice which was actually published stated that the general nature of the suit was to obtain a judgment on a special taxbill which was a special and first lien upon “a certain lot of ground in the city of St. Louis, being in City Block 4484, having a front of fifty feet on Euclid avenue by a depth of 110' feet, bounded north by Lcmders and self, east by self, south by self and. west by Euclid av§nue.” On December 23, 1901, a default was entered against defendant and in which it was recited that the defendant “though duly summoned and called, comes not but makes default.” On January 6, 1902, a final judgment was rendered in favor of the plaintiff in said tax proceeding, in. which nothing was said about the order of publication or service upon the defendant, but merely recites that “the court having fully considered the pleadings, proof and evidence, and being fully advised in the premises doth find for plaintiff,” etc.

In the case at bar the finding and judgment of the court were for the plaintiff, and the defendants excepted and have duly appealed the cause to this court.

The defendant, St. Louis Press Brick C'o., has not filed an abstract of record, statement br brief in this court as required by the rules thereof, and for that reason its interest will not be discussed in this opinion.

I. There is but one question presented by this record which calls for a ruling by this court. It is contended by the appellant, Johnson, that the description of the land in question was properly described in the petition, order of publication and proof of publication in the case of the city of St. Louis against Charles Kuhn, a non-resident, based upon the special taxbill therein mentioned, and that the publication was in conformity to the requirements of section 575, Revised Statutes 1899', and for that reason he claims the service on Kuhn was valid, which gave the circuit court jurisdiction over him and the real estate described in the petition filed in that cause, and that the judgment rendered therein-was valid, and that the execution sale thereunder passed and vested the title thereto in him; but, upon the other hand, the respondent contends that the judgment is void because the petition, taxbill, order of publication and judgment fail to describe the land against which it was sought to foreclose the lien of the special taxbill.

The petition described the land as follows: “A certain lot of ground in the city of St. Louis, being in City Bloch 4484, having a front of fifty feet on Euclid avenue by a depth of 110 feet, and' being lot :--in City Block 4484, and bounded north by Sanders and self, east by self, south by self and west by Euclid avenue.” The description in the order of publication is the same as that given in the petition, but the description in the proof of publication uses the name Landers instead' of the name Sanders, and in all other respects it is the same as the description found in the petition and order of publication.

The question is now presented, was that description sufficient to give the court jurisdiction over the subject-matter of that suit? In order to correctly answer that question, we will have to analyze the words used in describing the land.

The word “Sanders” used in the petition and order of publication, viewed under the light of a deed introduced in evidence, we take to be the name of a person who owned a lot of ground adjoining and lying just north of a portion of the land in controversy.

The 'deed above mentioned was from the Baker Edwards Building Company to Nettie Saunders, dated May 16, 1893, and the land conveyed thereby was de1scribed in the following words and figures, to-wit: “A lot of ground in City Block 4484, beginning at a point in the east line of Euclid avenue 224.08 feet south of Labadie avenue, extending eastwardly for a distance of 110.59 feet to a point 223.5 feet south of Labadie avenue, thence southwardly in a line parallel with said Euclid avenue for a distance of 40.09 feet, thence westwardly to a point in the east line of said Euclid avenue 264.17 feet south of said Labadie avenue, thence northwardly along the east line of said Euclid avenue to point of beginning.” But when we look at the words “Sanders and self” found in the description, as a phrase, their meaning is not so clear, and we can only conjecture that the pronoun “self,” in the absence of evidence, stands for and represents some one, whose name is not disclosed, who also owned a tract of land adjacent to and lying just north of the land' in question, and that the two tracts belonging to Sanders and self taken, together constitute the northern boundary of the lot of ground sued for; but as stated, this is purely a conjecture as there is no evidence contained in the record which bears out that conjecture or throws any light upon the meaning- of the word “self.” Again, the allegations in the petition and the order of publication that the property is bounded on the north, east and south by ‘£ self ’ ’ are absolutely meaningless. Mr. Web~ ster defines the word “self” as “a person as a distinct individual; a being as having a personality,” and that “ ‘self’ is united to certain personal pronouns and pronominal adjectives to express emphasis or distinction.” "With these definitions borne in mind it is impossible to tell to whom “self” refers in the description of the property. If the word refers to Sanders, then the ground would be described as fifty feet on Euclid avenue by 1101 feet deep, bounded north, east and south by Sanders, but there is no evidence to be found in this record which tends to show Sanders had any land lying on the east and south of the land in question, and it would, therefore, be no description of the property whatever. "While upon the other hand, if the word “self” refers to Kuhn then the description would be fifty feet on Euclid avenue by 110' feet deep', bounded north, east and south by Kuhn, but the record' also fails to show that Kuhn owned any land north, east or south of the property involved in this suit. So, looking at the description in the most favorable light and from every conceivable view point, it absolutely fails to point out any land which an engineer could locate by the description given. That being true the circuit court acquired no jurisdiction over the subject-matter, and the judgment by default in the case of the City of St. Louis against Kuhn is void and of no force or effect, and the sale of the land on execution thereunder passed no title thereto to Johnson. [Winningham v. Trueblood, 149 Mo. 572; Long v. Higginbotham, 56 Mo. 245; Jones v. Carter, 56 Mo. 403.]

n. There are several other points made and discussed in the briefs of counsel for both appellant and respondent, hut as the ruling contained in paragraph one of this opinion completely bars appellant’s right to the relief prayed for, it becomes unnecessary to pass upon them.

Finding no error in the record, the judgment of the trial court is affirmed.

All concur.