author: WOODSON, J. BLAIR, J.

text:
    FRANK LIGE v. CHICAGO, BURLINGTON & QUINCY RAILROAD COMPANY, Appellant.
    Division One,
    July 5, 1918.
    1. INTOXICATED PASSENGER: Constitutionality of Statute: Unreasonable Burden Upon Conductor. Sections 1 and 2, Laws 1909, page 438 (Secs. 4710 and 4711, R. S. 1909), making it unlawful for any person to enter a passenger train intoxicated or to drink intoxicating liquors on such train, and imposing a fine upon the person guilty of such offense, and making it the duty of the conductor to report to the prosecuting attorney the names of the person so intoxicated and of three witnesses, and subjecting him to a fine for his failure to do so within five days, are not directed to the railroad company, but are directed to the intoxicated or drinking passenger and the conductor; and hence the railroad company is not in a position to assert that they impose unreasonable and arbitrary duties upon the conductor and for that reason are violative of the due-process and equal-privilege clauses of the Constitutions.
    2. -: - — : Unequal Operation: Exception of Dining and Private Cars. The act of 1909, page 438 (Secs. 3710, 4711, and 4712, R. S. 1909), making it unlawful for any person to enter a passenger train or car intoxicated or to drink intoxicating liquor on said passenger train or car or to exhibit or carry exposed any intoxicating liquor while on said passenger train or car, but excepting dining cars or private cars from the act’s operation, does not operate equally and alike upon all subjects similarly situated, and is therefore clearly unconstitutional. There is no substantial or reasonable distinction between passenger and sleeping cars on the one hand and dining and private cars on the other, and as the statute has no reasonable basis for a separation of them into different classifications it violates those provisions of Section 53 of Article 4 of the Constitution of Missouri and of the Fourteenth Amendment of the Constitution of the United - States which prohibit the enforcement of any State law which denies the equal rights or abridges the privileges and immunities of citizens of the United States.
    3. -: -: Common Law Right of Action Nevertheless. Notwithstanding the fact that the statute • upon which plaintiff grounds his cause of action for personal injuries is unconstitutional, yet if the petition, independent of that plea, states a good cause of action at common law, a demurrer to the evidence should not be sustained, if it warrants a submission of the case to the jury upon the common-law theory.
    4. -: Injury to Fellow Passenger: Liability of Carrier. A common carrier is bound, to exercise the utmost practicable care for the safety of its passengers, to safely transport them, and to protect them while in transit from violence and insults from all persons on the train, including fellow-passengers, and any violation of this duty which results injuriously to a passenger renders the carrier liable in damages therefor; but the duty does net amount to/an absolute guaranty that a passenger will be transported with absolute safety or that he will not be insulted or injured by an intoxicated fellow-passenger. The rule means that the conductor and other trainmen must use the highest degree of care, consistent with the business, to ascertain and prevent such injuries, but the carrier is not liable for injuries inflicted by one passenger upon another, if in the exercise of that degree of care the assault or injury is not to be forseen.
    6. -: -: -: Sudden and Unexpected Assault. A common carrier is not liable in damages to a passenger for injuries resulting from a sudden assault by another intoxicated passenger, who, without any previous threat or verbal altercation, who was not previously boisterous or insulting in his talk or conduct and who gave no evidence that he was intoxicated except that he was talking generally and having a jolly good-time, suddenly seized an iron wrench and struck on the head the other passenger, who was a total stranger to hirfi.
    Appeal from Harrison Circuit Court. — Eon. G. W. Wanamaker, Judge.
    Reversed.

      E. J. Nelson, Barlow, Barlow & Kauts, J. A. Lyelick and M. G. Roberts /or appellant.
    (1) The instruction in the nature of a demurrer to the evidence should have been given for the reason that the act of June 8, 1909 (Laws 1909, p. 438; Secs. 4710, 4711, 4712, E. S. 1909), upon which the plaintiff specifically in his petition predicates a recovery, is void and unconstitutional for: (a) The act is an unreasonable and arbitrary exercise of power, in violation of the due-process clause of the Missouri Constitution (Sec. 30, art. 2) and the Fourteenth Amendment to the Federal Constitution, in that it requires a conductor of a train to report to the prosecuting attorney every passenger who is intoxicated or who takes a drink of intoxicating liquor, or who exhibits intoxicating liquor on his train, together with the names of three witnesses who have personal knowledge, and this he is required to do without regard to the question’ whether the conductor ' had any knowledge of the offense, (b) The statute is further invalid for the reason that it provides that a person may became intoxicated, or drink intoxicating liquor, or exhibit intoxicating liquor, on dining cars and private cars while penalizing the same offense in other cars on the same train, thus granting special or exclusive rights, privileges and immunities in violation of Section 53 of Article 4 of the Missouri Constitution and Fourteenth Amendment of the Constitution of the United States prohibiting any State from passing any law which abridges the privileges and immunities of citizens of the United States. State ex rel. Eolston v. Chicago, B. & Q. R. Co., 246 Mo. 515; Embree v. Kansas City & Liberty Blvd. District, 257 Mo. 616. (2) The instruction in the nature of a demurrer offered by the defendant at the close of plaintiff’s evidence and again at the close of all the evidence, should have been given for: A sudden and unanticipated assault by one passenger upon another does not render the carrier liable unless it is shown that its employees knew or could have known in time to prevent the assault from the wrongdoer’s act and conduct that he was contemplating injury to his fellow passengers. Galveston, H. & S. A. E. Co. v. Long, 36 S. W. 485; Putnam v. Railroad, 55 N. Y. 108; Brehony v. Pottsville Union Traction Co., 218 Pa. 123; Pittsburg, C. C. & St. L. Railroad Co. v. Vandyne, 57 Ind. 576; Milliman y. New York C. & H. Railroad Co., 66 N. Y. 643; 10 Corpus Juris, 905; 3 Thompson on Negligence, sec. 3093, p. 550, sec. 3087, p. 545; Thompson v. Manhattan Ry. Co., 75 Hun, 548, 27 N. Y. Supp. 608; Felton v. Chicago, R. I. & P. Ry. Co., 69 Iowa, 580, 29 N. W. 618; Spohn v. Mo. Pac. Ry. Co., 87 Mo. 74; Wo as v. St. Louis Transit Co., 198 Mo. 677.

      J. G. Wilson and Garland Wilson for respondent.
    (1) The Act June 8, 1909 (Laws 1909, p. 438), the same being Secs. 4710, 4711, 4712, R. S. 1909, is constitutional. Jones v. Yore, 142 Mo. 38; Simon v. Craft, 182 U. S. 427; Moore v. Missouri, 159 U. S. 673; State v. Miller, 209 Mo. 389; Giozza v. Tieman, 148 U. S. 657; Ohio ex rel. Lloyd v. Dollison, 194 U. S. 445; Gladson v. Minnesota., 166 U. S. 427; State ex rel. Rolston v. Railroad, 246 Mo. 512; State ,v. Swagerty, 203 Mo.. 523; Brady v. Mattern, 125 Iowa, 163; Embree v. K. C. & L. B. D., 257 Mo. 593; Corrigan y. Kansas City, 211 Mo. 608. (2) A carrier who permits a drunken man to become and remain a passenger on its train is liable for damages caused by an unprovoked assault upon another passenger. R. S. 1909, sec. 4710, 4711, 4712; .Spohn v. Railroad Co., 101 Mo. 452; Westcott v. Seattle Railway Co., 41 Wash. 619; Jackson v. Boston El. Railway Co., 217 Mass. 515. (3) Plaintiff’s instructions that the defendant was bound to exercise that high degree of care that a careful railroad would employ in conveying its passengers safely, under the circumstances, announces the correct rule. Hudsenhamp v. Citizens’ Railway Co., 37 Mo. 537; Lemon v. Chanslor, 68 Mo. 340; Dougherty v. Missouri Railway Co., 81 Mo. 325; Furnish v. Mo. Pac. Ry. Co., 102 Mo. 438; Clark v. Chicago & A. Ry. Co., 127 Mo. 197; Porch v. Southern Electric Railway Co., 76 Mo. App. 601; Choquette v. Southern Electric Railway Co., 80 Mo. App. 515; Young v. Mo. Pac. Ry. Co., 93 Mo. App. 267; Spohn v. Mo. Pac. Ry. Co., 101 Mo. 417; Redmon v. Metropolitan St. Ry. Co., 185 Mo. 1; Gardner v. Metropolitan St. Ry. Co.,' 223 Mo. 389; Stauffer v. Met. St. Ry. Co., 243-Mo.'305; Powell v. Union Pae. Railway Co., 255 Mo. 420; Wentz v. C. B. & Q. Railway Có., 259 Mo. 450;
   WOODSON, J.

This is a suit brought by the plaintiff against the defendant, in the circuit court' of' Harrison County, to recover .damages for personal injuries sustained by him while a passenger upon one of its trains, by being assaulted by Bert Burke, another passenger thereon, while in a drunken or intoxicated condition. The plaintiff recovered judgment for one thousand dollars, and the defendant timely and properly appealed the cause to this court.

Omitting unessentials the petition reads:

“Plaintiff further states that the defendant wholly disregarding its duties towards its said passengers, and especially towards this plaintiff, and while plaintiff was so riding on the said ticket purchased as aforesaid, negligently and carelessly by and through its servants and agents, to-wit, its conductor and brakeman in charge of said train, permitted one Bert Burke, while drunk and in a condition dangerous to the property and lives of its passengers, to enter its said train at St. Joseph, Missouri, and to become a passenger on the same train on which defendant was carrying this plaintiff to Blythedale, Missouri,' as aforesaid. And that the defendant by its said conductor and brakemen negligently and carelessly permitted and suffered said Bert Burke, through the negligence and carelessness of its servants, to remain on its train as a passenger, while said Burke was drunk and in a condition dangerous to the property and lives of defendant’s said passengers, traveling on said train as aforesaid — all of which was in violation of Article 7, Chapter 36, Revised Statutes of Missouri, as aforesaid.

“Plaintiff further states that while so traveling as a passenger as aforesaid on the railroad of the defendant as aforesaid, from St. Joseph, Missouri, to Blythe-dale, in Harrison County, Missouri, on said 30th day of November, 1912, at a point on defendant’s railroad between Bethany, Missouri, and Ridgeway, Missouri, and without any fault on the part of this plaintiff, the said Bert Burke aforesaid, while drunk and in a condition dangerous to the lives and property of the other passengers on said train, while he was being carried by defendant, who had knowledge of his condition, unlawfully, wrongfully, and feloniously assaulted this plaintiff by striking him upon the head with a large iron T. wrench or stove key, giving to him a dangerous wound, thereby wounding, injuring and permanently disfiguring the plaintiff and causing him great pain, suffering and humiliation. ’ ’

Then follows an allegation as to the extent of' the injuries; that they were caused by the wrongful acts of Burke and • said negligence of the- 'defendant, and a prayer for judgment for $2500. The statutes referred to in the petition read as follows:

“Section 1. It shall be unlawful for any person in this State to enter a passenger train or car kept for the conveying of passengers, intoxicated, or drink intoxicating liquor on said passenger trains or car, or to exhibit or carry exposed any intoxicating liquor while on said passenger train or car, and every person or persons so doing shall be guilty of a misdemeanor and fined not less than five dollars or more than .twenty-five dollars for said offense.

“Section 2. It shall be the duty of the conductor on every passenger train or car in this State to report to the prosecuting attorney of the counties in which any such offense is committed-, together with the name of the person so intoxicated, the date thereof, and the names of three witnesses who have personal knowledge of the commission of said offense, and upon failure to do so within five days thereafter he shall be guilty of a misdemeanor and fined for each 'and every offense not less than five dollars or more than- twenty-five dollars.

“Section 3. Provided nothing in this act shall be so construed to apply to dining cars or private cars.” The answer of defendant was as follows:

“Now comes the defendant in the above entitled cause and 'denies the allegations in plaintiff’s petition contained.

“Defendant, further answering, states that-Sections 4710, 4711 and 4712 of Article 7 of Chapter 36 of the Revised Statutes of Missouri for the year 1909, to which law reference is made in plaintiff’s petition, are unconstitutional, invalid and of no effect for the reason that said law exempts from its provisions dining cars and private cars, and for the further reason that said law, when passed during the session of 1909 by the Legislature of Missouri (Laws 1909, p. 438) did not have the subject-matter clearly expressed in the title as required by Section 28 of Article 4 of the Constitution of Missouri; and for the further reason that said alleged law is in violation of the 14th Amendment to the Constitution of the United States, in that it abridges the privileges and immunities of citizens of the United States, and denies toi persons within the jurisdiction of the State of Missouri the equal protection of the laws; and for the further reason that the said alleged law is in violation of Section 53 of Article 4 of the Constitution of Missouri; and for the further reason that the said alleged law is in violation of Section 30 of Article 2 of the Constitution of Missouri; and for the further reason that said alleged law is in violation of Section 23 of Article 2 of the Constitution of Missouri.

“Wherefore defendant having fully answered asks to be discharged with its costs in this behalf expended.”

The following facts are undisputed:

Prank Lige, the plaintiff, and Bert Burke, who assaulted him, were perfect strangers and were passengers on defendant’s train from St. Joseph, Missouri, to points in Harrison County, on November 30, 1912. Both of them sat in the smoking car of the train. The train left St. Joseph about 10 a. m. It passed through the towns of Crosby, Helena, Union Star, King City, Ford City, Darlington, Albany, New Hamton, Bowman and Bethany. Somewhere between Bethany and Ridge-way, Burke picked np an iron T wrench near a stove in the smoking car and struck Lige op the head, causing a. painful wound. The assault was committed without any warning whatever, without any prior threat or any previous verbal altercation.

Several witnesses for the plaintiff testified that Burke was under the influence of liquor while on the train. Some described him as being intoxicated, others as being drunk, and still others as being under the influence of liquor. One said: “I thought he was intoxicated.” Others testified that “he was,under the influence of liquor;” “he was a little bit intoxicated;” “well, think he had some whisky on him;” “I would judge he was under the influence of liquor;” “I would call him intoxicated;” “he looked to me like he had been on a spree;” “I thought he was pretty drunk;” “he was feeling pretty good, I thought;” “he looked a little full to me;” “he looked like he was intoxicated;” “my opinion was at the time he was rather under the influence of liquor to some extent.”

In short, the testimony of all the witnesses, including the conductor and brakeman on the train, was that Burke was in an intoxicated condition; the attention of the witnesses, some of them strangers to Burke, were attracted to him by his “joshing” and talking and intoxicated appearance. The evidence also tended to show that Burke was intoxicated when he boarded the train at St. Joseph, with his shirt slightly torn, and that his condition appeared to some of the witnesses to grow worse as the train moved on.

That independant of Burke’s intoxication, joshing and talking as previously mentioned, Burke was guilty of no improper conduct whatever while in the train until he suddenly and without cause assaulted the plaintiff as before stated; he did not know, nor had he addressed or threatened plaintiff prior to that time, but was conversing pleasantly with other parties and having a jolly time.

• I. The first contention advanced by counsel for the defendant is that the trial court erred in refusing the demurrer asked by them to the plainevjc|ence- This contention is divided by counsel into two subdivisions and each discussed separately upon wholly different grounds. The first contends that the act of the Legislature mentioned in the pleadings is violative of Section 30 of Article 2 of the Constitution of Missouri and Section 1 of the 14th Amendment of the Constitution of the United States, known as the due-process clauses respectively thereof, in that it is unreasonable and arbitrary in requiring a conductor of a train to report to the prosecuting attorney every person who is intoxicated or who takes a drink of intoxicating liquor, or who exhibits intoxicating liquor on his train, together with the names of three witnesses who have personal knowledge of the-facts; and the second contention is that said act of the Legislature violates Section 53 of Article 4 of the Constitution of Missouri, and the 14th Amendment of the Constitution of the United States, which respectively prohibit the enforcement of any law of the State denying equal rights, or abridges the privileges and immunities of the citizens of the United States.

We will dispose of these propositions in the order • stated.

Attending to the first: No authority is cited in support of this contention, and in our opinion for the reason that none exists, and if the act is given a reasonable construction, which is one of the fundamental rules of statutory construction, no other authority will be necessary. The evident intention of the Legislature was to impose a duty upon the conductor to report to the prosecuting attorney all parties who to his knowledge had been intoxicated or drinking or exhibiting intoxicating liquors on his train, for the purpose of having him punished for being guilty of such conduct upon the cars of a common carrier, in the presence of fellow passengers and thereby deter all persons from indulging in such misconduct on all such trains. We' state this for the. reason that the accomplishment of no other object seems to have been in the mind of the Legislature; had it also been the design to afford immediate protection to the passengers from the abuse, insults and assaults of such persons, then it would seem that the Legislature would have used some appropriate language requiring the conductor to prevent such persons entering the train and to remove all such therefrom and make the company liable in damages for all injuries sustained by any passenger by reason of such misconduct on the part of any such person. But an examination of the act which we have copied in full in the statement of the case will reveal the fact that no such idea is expressed by the language used therein, nor is reasonably inferrable therefrom, but the design, as previously stated, was not to affect the company, but to make it unlawful for any intoxicated person to ■enter a passenger train, or to drink or exhibit intoxicating liquors thereon, and thereby deter them from the commission of all such crimes in the future. The duty of the company to prevent such persons from entering its trains, remove them therefrom and protect its passengers from their insults and injury is well defined and regulated by the common law, which we suppose had much to do with influencing the Legislature in the passage of the act in the form we find it. This common law duty of the carrier will receive careful consideration hereafter in a more appropriate- place.

For the reason stated, the act is not applicable to defendant company, but to the conductor and intoxicated passenger, etc., only, and therefore the defendant is in no position to 'question the constitutionality of the act.

But, assuming that we are mistaken in the foregoing views, and assuming that the act is applicable to the defendant, then the second contention mentioned would be of a more serious character. Section 1 of the act in question makes it unlawful for any person in this State to enter a passenger train or car kept for the conveyance of passengers while intoxicated, etc., and imposes a fine of not less than five dollars nor more than twenty-five dollars for said offense,, while Section 3 thereof provides that nothing therein contained shall he so construed as to apply to dining cars or private cars. In other words, that section makes it unlawful for any person to go upon a passenger train or enter any car thereof while intoxicated or to drink intoxicating liquors or exhibit the same while thereon, excepting therefrom dining and private cars.

This act in our opinion is clearly unconstitutional, violative of both the State and United States Constitutional provisions before mentioned, in that there is no substantial and reasonable distinction between passenger and sleeping cars on the one hand and dining and private cars upon the other; the primary purpose of the first named is for the occupancy by the public while traveling thereon and incidentally they are constantly used by many for eating and sleeping purposes also; the second are chiefly designed for traveling and sleeping purposes, yet they are also constantly used by many for eating places; the diner is intended for eating places for all aboard the train who desire to avail themselves of the privilege, yet they are incidentally used for travel while the passengers are dining therein, and the private car is designed for all of said purposes, for those aboard them. But after all, all of them, with the engine and tender, constitute the means of transportation of the traveling public, the paramount object of their creation, and while all of them serve a useful purpose in accomplishing that end, yet some of them in addition contribute to the pleasure and comfort of the passengers while en route, and even to their necessities while on through trains on long journeys, but, nevertheless, each and all of them constitute a link in the train of transportation and are so closely commingled and inseparably connected in their common purpose that there can be no reasonable separation or classification made of them without disturbing the comforts and necessities of all on board the train, and subjecting all to the insults and injuries which the act was designed to prohibit. Under' these conditions the law would not and could not operate equally and alike upon all,similarly situated. That being true the act is clearly unconstitutional, as previously stated and as shown by the following authorities: State ex rel. v. Chicago, Burlington & Quincy Railroad Co., 246 Mo. 512, 1. c. 514 and 515; Embree v. Kansas City & Liberty Blvd. Road District, 257 Mo. 593, 1. c. 616.

But notwithstanding the unconstitutionality of this act for the reasons stated, yet the demurrer to plaintiffs evidence could not be properly sustained on that ground only because the petition, independent of thé plea of the act mentioned, stated a good cause of action at common law and the cause should have been submitted to the jury upon that theory of the case,, if the evidence introduced upon that branch of the case warranted a submission, which we will consider in the next paragraph.

II. Regarding the common law cause of action: The petition in substance stated that the defendant was a common carrier of passengers; that the plaintiff was a passenger upon one of defendant’s trains going from St. Joseph, Missouri, to Ridgeway; that one Burke was also a passenger upon said train and was riding in the same car with plaintiff between said points; that at the time said Burke entered said car he was intoxicated and remained so during the time the train ran from St. Joseph to Ridgeway, which fact was well known to the agents and servants of defendant in charge of said train and car, and that they knew that said Burke was liable to insult and injure its passengers on said train and especially the plaintiff; that it was the duty of the defendant to use the highest degree of care to safely transport plaintiff between said points and to protect him from insults and injury at, the hands of other passengers on - the train, and that in violation of said duty the defendant through its said agents and servants negligently and carelessly permitted said Burke, without cause or excuse, to assault and strike plaintiff with an iron rod over the head, and thereby greatly injure him, etc.

The plaintiff’s evidence tended to show the truthfulness of all of said allegations except as hereinafter stated; and all the evidence for both parties showed that Burke prior to the assault complained of was not boisterous or insulting in his talk and conduct, but was talking generally and having a jolly good-time, disturbing no one, until the train neared Ridgeway, when he suddenly and without Warning picked up the poker and struck the plaintiff with it. The evidence also failed to show that the conduct of Burke prior to the assault was such as to warn the conductor in charge of the train or any one else on the car that he was in a bad humor or that he ■ intended to insult or to do violence to any one.

Upon this state of the record counsel for the defendant contend that the court erred in refusing the defendant’s demurrer to the plaintiff’s evidence on the common-law theory of the case, and state their reasons therefor in this language:

“A sudden and unanticipated assault by one passenger upon another does not render the carrier liable unless it is shown that its employees knew or could have known in time to prevent the assault from the wrongdoer’s act and conduct that he was contemplating injury to his fellow passengers. In this case, it appears beyond any question that Burke made no threats, used no profanity, was not abusive to anyone, had no trouble, and conducted himself properly until he suddenly picked up the wrench and quickly assaulted the plaintiff. Under such circumstances the carrier is not liable. The fact that he was under the influence of liquor or even intoxicated, but otherwise not guilty of any misbehavior, will not subject a carrier to liability for an injury caused by his act in assaulting a fellow passenger.”

The following authorities are cited in support of this contention: Galveston H. & S. A. Ry. Co. v. Long, 36 S. W. (Tex.) 485; Putnam v. Railroad, 55 N. Y. 108; Brehony v. Pottsville Union Traction Co., 218 Pa. 123; Pittsburgh, C. C. & St. L. Railroad Co. v. Vandyne, 57 Ind. 576; Milliman v. New York C. & H. R. Railroad Co., 66 N. Y. 642; 10 Corpus Juris, 905; 3 Thompson on Negligence, sec. 3093, p. 550, sec. 3087, p. 545; Thomson v. Manhattan Ry. Co., 75 Hun, 548, 27 N. Y. Supp. 608; Mills v. Atlantic C. L. R. Co., 90 S. E. (N. C.) 221; Felton v. Chicago, R. I. & P. Ry. Co., 69 Iowa, 577, 29 N. W. 618; Spohn v. Mo. Pac. Ry. Co., 87 Mo. 74; Woas v. St. Louis Transit Co., 198 Mo. 664, 1. c. 677.

It is no longer a debatable question in this country that a common carrier of passengers for hire is bound to exercise the utmost practicable care, to safely transport its passengers and to protect them while in transit from insults and violence at the hands of all on the train, including fellow-passengers, and any violation of this duty which results injuriously to a passenger renders the carrier liable in damage therefor; but that duty does not amount to an absolute guaranty that .a passenger will be transported absolutely safely to his destination or that he will not be insulted or injured by a fellow-passenger while in transit. It simply means that the conductor and those in charge of the train must use the highest degree of care, consistent with the business, to ascertain and prevent such injuries, but the carrier is not liable for an injury to a passenger caused by an impending danger, if not discernible by the exercise of that degree of care.

In the case at bar Burke had neither said nor done anything indicating to an ordinarly prudent person engaged in that class of business that he had any evil design against any one, or that he intended to do violence to anyone, much less the plaintiff, whom he did not know and had never met.

The conductor and all of the passengers who testified stated that they did not see or hear Burke say or do anything prior to the assault that led them to believe that he intended to strike the plaintiff or do violence to any one. Even the sheriff of the county, who was a passenger on the same car with plaintiff and whose duty it was to preserve the peace, did not see or hear the latter do or say anything to cause him to apprehend any trouble whatever on the part of Burke.

In discussing a similar case the Supreme Court of Pennsylvania in the case of Brehony v. Pottsville Union Transit Co., 218 Pa. St. 123, clearly announced- the facts and law of a similar case, which are substantially' stated in the syllabus of the case, as follows:

“In an. action by a woman passenger against a street railway company to recover damages for personal injuries sustained as the result of a kick of an intoxicated passenger, where the only negligence alleged was the action of the conductor in admitting into the car the man who inflicted the injuries, when visibly intoxicated, it is reversible error to submit the case to the jury where the evidence shows that there was nothing in the appearance or the conduct of the man as he entered the car to attract attention,. or excite suspicion, and that he did not become violent until an altercation arose between him and the conductor as to the fare.”

In the case of Galveston, Houston, San Antonio Railway Co. v. Long, 36 S. W. 485, where a passenger on a railway train, who was somewhat intoxicated and who passed a number of times through the train, apparently looking for some one, without' offense toward any one, accidently stumbled over some baggage, and a revolver fell from his pocket, which was discharged and wounded another passenger, the Civil Court of Appeals of Texas held that the defendant had no reason to anticipate such an accident and therefore was not liable for the injury sustained by the plaintiff.

In the case of Putnam v. Broadway & Seventeenth Avenue Railroad Co., 55 N. Y. 108, the plaintiff’s intestate, with two ladies, took passage upon one of defendant’s cars. Shortly thereafter one Poster, who was intoxicated, got on the front platform of the car and after riding there a short distance opened the car door and insulted and annoyed the ladies. Putnam asked the conductor to make him be quiet; the conductor directed him to sit down and behave himself. He sat down near Pntnam and after the conductor returned to the rear platform he addressed to the former abusive and threatening language, in a low tone, not audible to the conductor. After remaining a short timé he returned to the front platform where he remained quietly until Putnam left the car, when he jumped therefrom with the car hook, and as Putnam was assisting the ladies to alight, Foster struck him with the hook, causing death. In an action against the company, to recover damages the court held that there was no evidence of neglect of duty on the part of the conductor, or want of proper care and vigilance on the part of the servants of defendant; certainly none connected with the attack upon Putnam, or to which it could be legally or logically traced, and that defendant was not liable.

In the case of Pittsburg, Cincinnati and St. Louis Railway Co. v. Vandyne, 57 Ind. 576, the Supreme Court of Indiana held that slight intoxication of the defendant, such as would not seriously affect the safety of the passengers aboard the train, would not justify a railroad company in refusing to receive and carry him.

In the case of Milliman v. New York Central and Hudson River Railroad Co., 66 N. Y. 642, the Court of Appeals held that the fact that a man is intoxicated does not alone deprive him of the right to ride upon a railroad car, nor does it free the company from its duty to render to him, as a passenger, due care.

On page 905 of 10 Corpus Juris, it is said:

' “It is the duty of the carrier’s employees to protect passengers from the acts or conduct of an intoxicated fellow passenger, and, where there is reason to apprehend injury or annoyance from him to other passengers, they should eject him from the train or other vehicle, or require him to remain seated and behave himself; and, where by reason of the employees’ negligent failure to afford such protection a passenger is injured by an intoxicated fellow passenger, the carrier is liable. But it is not liable where there has been no reasonable opportunity to discover such passenger’s condition and intent; and failure to eject a passenger merely because he is drunk, if otherwise well behaved, will not alone subject a carrier to liability for an injury caused by his acts or conduct.”

And Judge Thompson in the discussion of this question in volume 3, page 545, section 3089, of his work on Negligence says:

“If the conduct of a railway passenger is such as to excite reasonable apprehensions that'his presence will result in injury or annoyance to other passenger's, it is the right and duty of the conductor to expel him, without waiting for any overt act of violence. .Nor is it enough for a railway carrier to protect his passengers against actual violence from other passengers, but such a carrier is liable in damages, even in favor of passengers riding in a second-class car, for suffering them to be subjected to annoyances, not necessarily or ordinarily incident to such travel, such-as hearing rough, profane and obscene language, and witnessing acts of violence and drunkenness, which the company, by the exercise of proper care and due regard for the welfare of its passengers, could prevent. For stronger reasons, such a carrier is liable in damages to a peaceable passenger who is injured in consequence of a quarrel between drunken passengers on the carrier’s vehicle, where the carrier, in the exercise of the degree of care imposed upon him by the law, might have prevented the injury. But it was well held that a railway carrier was not liable to a passenger for abuse and violence from an intoxicated fellow-passenger who demanded from him money which he claimed was due him, and who threatened to take his life unless he paid it, where the conductor quieted the person intoxicated, and. remained between the two during a subsequent difficulty, and delivered the intoxicated person to a policeman on reaching the next station.”

The same general rule of law is announced in all of the other cases cited by counsel for the defendant; while upon the other hand, counsel for plaintiff have cited no case involving an injury to a passenger inflicted by an intoxicated, passenger which holds the carrier liable therefor, but all of them are based -upon the broad general rule that the carrier is liable to a passenger for injuries inflicted by any cause if it could have been prevented by the exercise of the highest degree of care usually exercised by very cautious persons engaged in similar business, and cite in support thereof the following cases: Spohn v. Missouri Pacific Railway Co., 101 Mo. 417, 1. c. 452; Westcott v. Seattle, Renton & Southern Railway Co., 41 Wash. 618; Jackson v. Boston Elevated Railway Co., 217 Mass. 515.

There is no doubt about the correctness of that general rule, but that rule does not absolutely bar an intoxicated man of his right to ride upon the railroads of the county, nor authorize a carrier of passengers to exclude him its trains without his conduct is such as to cause the agents and servants of the company in charge thereof to apprehend danger from him to his fellow passengers.

We are, therefore, clearly of the opinion that the court erred in refusing defendant’s demurrer to the plaintiff’s evidence.

III. The views stated in paragraphs one and two of this opinion render it unnecessary to pass upon the other legal propositions presented by the record and briefs of counsel.

'The judgment of the trial court, for the reasons stated, is reversed.

All concur; Bond, P. J., in paragraph two and the result.

BLAIR, J.

(concurring). It is unnecessary to pass upon the constitutionality of the Act of 1909. Further, I am far from convinced that the Act is unconstitutional. With, these qualifications I concur in the opinion.


source: Caselaw Access Project

author: BLAIR, J.

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    MINA M. OAKLEY v. ERNEST E. RICHARDS et al., Appellants.
    Division One,
    July 5, 1918.
    1. MOVING PICTURE THEATER: Duty of Owner to Patrons. It it the duty of the owners and operators of a moving-picture theater to see that the place to which they invite their patrons is reasonably safe for use for the purposes for which it was designed.
    2. -: S'tep-Off in Floor: Absence of Light. It is a matter of common knowledge that a four-inch depression in a floor is sufficient to cause one to fall who, in the absence of light and knowledge of the depression, steps into or upon the edge of it. So that where the floor upon which were the seats of the moving picture theater was four inches above the aisle, which fact plaintiff did not know, and there was not sufficient light to enable her to see the depression, which brought about her fall, the concurrence of the two' constituted negligence, and the jury was warranted in finding that her fall was due to her inability to see the step-off on account of the darkness.
    3. -: -: Contributory Negligence. Patrons having been invited to enter and leave the moving-picture theater at will during performances, it cannot be said, as a matter of law, that a patron, seeing others using the aisle, which was four inches below the floor on which the seats rested, was guilty of contributory negligence in failing, in the absence of knowledge of the step-off and of sufficient light to enable her to see it, to apprehend that the usual path of exit contained an unsafe place or pitfall. The question was one for the jury.
    4. -: Amending Petition After Proof: Changing Defense: Permissive Ordinance. Where the petition charged that a designated ordinance prohibited inequalities in the floor levels of a theater and a violation thereof, and the answer set up another ordinance containing a like prohibition but subject to exception on written permission of named officials and contained an averment of such-permission, and defendant’s own evidence totally failed to show any such permission, it was not error to permit plaintiff, after the evidence was in, to amend her petition by interlineation to conform to the proof by adding a charge that the ordinance pleaded by defendant had been violated. The amendment to the pleading did not change the defense, and was right.
    B. -: Floor . Level: Inequalities Upon Permission: Inspection. Where the ordinance declared that “no steps shall be permitted in any aisle or in any part of the auditorium floor” of a theater “except by written permission” of named officials, permission cannot be implied from a mere inspection by such officials.
    6. -: Validity of Ordinance: Steps in Aisle: Permission of Officials. An ordinance prohibiting steps in the aisle or on any part of the auditorium floor of a moving-picture theater “except by written permission” of designated officials does not vest an arbitrary power in said officials and is not for that- reason invalid. In case a city may prohibit a particular thing, it validly may prohibit it except in case a permit is procured from a designated official; and a city may lawfully prohibit absolutely inequalities in floor levels in darkened theaters, and matters of detail in enforcing ordinances otherwise valid may be left to designated official's.
    7. DEMURRER: Refusal Of Leave to File. It was not error to refuse leave to defendant to file a demurrer to the petition if the filing of' it could not have availed him anything.
    8. MOTION .TO ELECT. A refusal to permit defendant. leave to file a motion to compel plaintiff to elect between certain causes of action stated in her petition is not error, if she announced that she elected to stand on certain allegations, and the instructions were based on them, and another was ‘given withdrawing all’ the others from the jury.
    9. PICTURE THEATER: Step-Off in Aisle: Assumption of Risks. Where the petition charged that the aisle of a moving-picture theater was four inches lower than that part of the floor on which the seats rested, that such step-off was in violation of a designated ordinance, that such construction was negligence, that plaintiff had no. knowledge of such step-off and that there was not sufficient light to enable her to see it, an instruction on the assumption of risks which ignores such allegations is properly refused.
    10. -: -: Custom: Contrary to Ordinance. Custom is no defense to a violation of positive law. Where plaintiff was injured by falling' as she attempted to leave her seat in a moving-picture theater, whose aisle was four inches below the auditorium floor, and which construction was in violation of a city ordinance, it was not error to instruct the jury that the fact that the owners of other theaters • permitted similar inequalities in the floor constituted no defense.
    11. -: -: - — : Proof. Evidence that about one out of ten theaters in the city had steps from the auditorium floor to the aisle does not prove a customary construction.
    12. JUROR: Impartiality. Where the talesman testified that his business relations with defendants were such that they might affect his verdict, that he preferred not to sit, that he felt embarrassed to sit as a juror against them', but that he would endeavor to do his duty and would exercise his judgment in returning a verdict according to the law and the evidence, the. court did not act arbitrarily in rejecting' him.
    13. THEATERS: Difference in Floor Levels: Practicable Construction: Expert Testimony. It was not error to permit an expert to testify that it was practicable to overcome differences in floor leveis in theaters by gradients and inclined planes. It cannot be said as a matter of law that such methods -.of construction are so practicable that a jury are as capable of drawing correct conclusions on the subject as is an expert,

      Appeal from Jackson Circuit Court. — Hon. Clarence A. Burney, Judge.
    Affirmed.

      Park <& Brown for appellants.
    (1) The court erred in not taking the case from the jury at the end of plaintiff’s evidence, (a) There was no common-law negligence proved. Peck v. Amusement Co., 195 S. W. 1033; Ware v. Evangelical Society, 181 Mass. 285; Bell v. Bank, 28 App. D. C. 580; Hoyt v. Woodbury, 200 Mass. 343; Lord v. Dry Goods Co., 205 Mass. 1. (b) The seats and lights were arranged in the customary manner. Latest devices and methods are not required. Peck v. Amusement Co., supra'; Brands v. Car Co., 213 Mo. 708; Chrismer v. Telephone Co., 194 Mo. 208; Bohn v. Railway, 106 Mo. 434; Smith v. Railroad, 69 Mo. 40; Dunning v. Jacobs, 36 N. Y. Supp. 453. (e) The risk was assumed by plaintiff. Pointer v. Mountain Ry. Cons. Co., 209 Mo. 127; Peck v. Amusement Co., 195 S. W. 1033; Lumsden v. Railroad, 114 N. Y. Supp. 421. (2) The court erred in not taking the case from the jury at the end of all of the testimony and in not instructing the jury to find for defendants, (a) There was no common law negligence proved, (b) Ordinance 7667 was complied with. “Written Permission” means merely assent, or acquiescence with knowledge of the facts, evidenced by writing. Warberton v. Woods, -6 Mo. 12; Cowley v. People, 83 N. Y. 471, 38 Am. Rep. 464; McHenry v. Winston, 105 Ky. 310, 49 S. W. 4; Gregory v. United States, 10 Fed. Cas. 1198, 17 Blatchf. 325; State v. Abrahams, 6. Iowa, 122, 71 Am. Dec. 399; Unted States v. Bridge Cov 88 Fed. 893. Municipal license need not be in writing. Boston v. Shaffer, 9 Pick (Mass.) 415; 2 Dillon on Mun. Corp. (5 Ed.), sec. 561n. A written license is merely evidence of- the permission and if permission has in fact been given, absence of writing is immaterial, if the applicant has done everything in his power and has been treated as the holder of a license. Prather v. People, 85 111. 36; Zonone v. Monnd City, 11 111. App. 339. (c) Section 2 of Ordinance 7667 contains no standard of safety,' hut makes the lawfulness of the structure depend upon the whim or caprice of the superintendent of buildings and fire warden. It is unconstitutional. Hays v. Popular Bluff, 263 Mo. 516; St. Louis v. .Cons. Co., 244 Mo. 489; Baltimore v. Radake, 49 Md. 217; In re Frazee, 63 Mich. 396; State v. Dering, 84 Wis. 585; State v. Mahner, 43 La. Ann. 496; Yick Wo v. Hopkins, 118 U. S. 356. (d) Under her own testimony plaintiff was guilty of contributory negligence as a-"'matter of law, precluding recovery. Pattison v. Amusement Co., 141 N. Y. Supp. 588, 156 App. Div. 368; Rohrbacher v. ■Grillig, 203 N. Y. 413; Brugher v. Buchtenkirch, 167 N. Y. 153; Piper v. Railroad, 156 N. Y. 224; Hilsenbaeh v. Ouhring, 131 N. Y. 674; Diamond v. Kansas City, 120 Mo. App. 189; Border v. Sedalia, 161 Mo. App. 633. (3) The juror Caldwell was not disqualified and the court erred in sustaining plaintiff’s challenge and excusing him from panel. Joyce v. Railway, 219 Mo. 351, 361. (4) It was incompetent, for the witness Smith to give his opinion as to the possibility and. practicability of a certain method of construction. St. Louis, etc., Co. v. Stock Yards Co., 120 Mo. 550; Koenigrs Railroad, 173 Mo. 720; Benjamin v. Railway, 133 Mo. 289. (5) The court' erred in permitting plaintiff to fundamentally change her cause of action by amending her Second Amended Petition. At this stage every amendment is prohibited which substantially changes the cause of action. R. S. 1909, sec. 1848; Pruett v. Warren, 71 Mo. App. 86; The change made was substantial and not permissible. Ingwerson v. Railroad, 205 Mo. 328; International Harv. Co. v. Lanpher, 183 S. W. 1105; Bliss on Code Pleading (3 Ed.), 396; Peery v. Railroad, 122 Mo. App. 182; Ray v. Dodd, 132 Mo. App. 444; Compton v. Railroad, 147 Mo. App. 421; Riley v. Railroad, 124 Mo.' App. 278. (6). The court erred in refusing to discharge the jury and- to grant defendants a continuance after such radical amendment. McDonald v. Construction Co., 183 Mo. App. 429. (7) The court- erred in refusing to allow defendants to withdraw answer and file demurrer. The amendment ipso facto withdrew the petition. Ingwerson v. Railroad, 205 Mo. 335. (8) The court erred in overruling defendants’ motion to require plaintiff to elect. Authorities under Point 5. (9) Plaintiff’s Instruction 2% erroneous. Ordinary usage hy others in the same line of business is a defense. Peck v. Amusement Co., 195 S. W. 1033; Brands v. Car Co., 213 Mo. 708; Chrisman v. Telephone Co., 194 Mo. 208; Bohn v. Railroad, 106 Mo. 434; Smith v. Railroad, 69 Mo. 40; Harrington v. Railroad, 104 Mo. App. 671. Presumptively other operators had obtained permission to 'operate their theatres as they were being operated. Hence the instruction violates at least two constitutional principles, (1) that no -State shell deny to any person the equal protection of the laws, and (2) the prohibition of special privileges and immunities. Hays v. Poplar Bluff, 263 Mo. 516; St. Louis v. Cons. •Co., 244 Mo. 489; Yick Wo v. Hopkins, 118 U. S. 356, 30 L. Ed. 220.

      M. T. Prewitt and Eogsett & Boyle for respondents.
    (1) The plaintiff made a case for the jury upon the common-law allegations of negligence in the petition. 38 Cyc. 268; Hollis v. Merchants Ass’n, 205 Mo. 508; 1 Thompson on Neg., secs. 994, 995; Crane v. Exhibition Co., 168 Mo. App. 304; Edling v. Exhibition Co., 181 Mo. App. 327; Murrell v. Smith, 152 Mo. App. 95; Nephler v. Woodward, 200-Mo.'179;-Andre v. Mertens, 88 N J. L. 626; Branch v. Klatt, J31 N. W. (Mich.) 107; Valentine Co. v. Sloan, 101 N. E. (Ind.) 102; Dalton v. Hooper, 168 S. W. (Tex.) 84.; Noack v. Wosslick, 182 111. App. 425; Currier v. Boston Music Hall Assn., 135 Mass. 414; Camp v. Wood, 76 N. Y. 92, 32 Am. Rep. 282; New Theater Co. v. Hartlove, 123 Md. 78; Butcher v. Hyde, 30 N. Y. Supp. 1073. (2) Plaintiff made a case for the jury under Ordinance No. 7667. (a) The violation of .an ordinance is negligence per se. Johnson v. Railroad, 203 Mo. 400; Holland v. Railroad, 210 Mo. 350.; Laun v. Railroad, 216 Mo. 578; King v. Railroad, 211 Mo. 1;' Stotler v. Railroad, 200 Mo. 120; Wendler v. House Furnishing Co., 165 Mo. 527; Hirst v. Real Estate Co., 169 Mo. 194; Purcell v. Shoe Co., 187 Mo. 289. (b) The superintendent of buildings did not approve the construction of the step-off in question;, but even if he had done so, this would have been no defense. 29 Cyc. 439; Pitcher v. Lennon, 42 N. Y. Supp. 156; Simpson v. Iron Wks. Co., 249 Mo. 388; McRickarh v; Flint, 114 N. Y. 222; Carrigan v. Stillwell, 97 Me. 247, 61-L. R. A. 163; Willy v. Mulledy, 78 N. Y. 310; Arms v. Ayer, 192 111. 601, 58 L. R. A. 277; Rose v. King, 49 Ohio St. 213,15 L. R. A. 160. (3) Defendants, by having pleaded and relied upon the Picture Show Ordinance as a defense in their former answer, are now estopped to challenge the constitutionality of said ordinance, (a) The courts do not with patience consider shifting attitudes of litigants. St. Louis v. United Rys. Co., 263 Mo. 426; Lilly v. Menke, 143 Mo. 145; Bensieck v. Cook, 110 Mo. 173; Bigelow on Estoppel’(5 Ed.),. 673, 717; McClanahan v. West, 100 Mo. 309; Brown v. Bowen, 90 Mo. 184; Smiley v. Cockrell, 92 Mo. 105; Knoop v. Kelsey, 102 Mo. 291; Tower v. Moore, 52 Mo. 118; Choteau v. Gibson, 76 Mo. 39; McGuire v. Nugent, 103 Mo. 161; Coney v. Laird, 153 Mo. 435; McClure v. Clement, 161 Mo. App. .29; Davis v. Wackerle, 156 U. S. 689. (b) Constitutional rights may be voluntarily waived by a litigant, and when waived they cannot be reasserted. Fiedler v. Construction Co., 178 S. W. 765; Roper v. Greenspon, 198 S-.- W. 1108. (e) Constitutional questions must be timely raised, at the first opportunity possible; and unless so raised they cannot avail a litigant. Hanks v. Hanks, 218 Mo. 674; Lohmeyer v. Cordage Co., 214 Mo. 689; Speer v. Railroad, 174 S.‘ W. 381. (4) The Picture Show Ordinance is no£ unconstitutional, (a) The ordinance has for its object the safety of theater patrons, and falls within the police power. Ewing v. Chase, 37 App. Cas. (Dist. of Col.) 53; District of Columbia v. Brooke, 214 IT. S. 138; Barbier v. Connelly, 113 U. S. 31; Health Dept. v.. Trinity Church, 145 N. Y. 32. (b) The ordinance does not delegate legislative power to the superintendent of buildings and fire warden, but only authorizes them as ministerial officers to exercise a discretion on a matter of safety dependent upon their inspection. State v. Vickens, 186 Mo. 106; Arms v. Ayer, 192 111. 601, 58 L. R. A. 277; Block v. Chicago, 239 111. 251; Waldo v. Christman, 130 N. Y. Supp. 260; Railway Co. v. Lyons, 155 Ky. 396; United States v. Rorqard, 89 Fed. 156; Spiegler v. Chicago, 74 N. E. (111.) 718; Eubank v. Richmond, 110 Ya. 749; Plinklewisch v. Light & Power Co., 115 Pac. (Ore.) 151; Commonwealth v. Maletsky, 203 Mass. 241; Centraba v. Smith, 103 Mo. App. 440; Welch v. Swasey, 193 Mass. 364. (c) The ordinance does not deprive defendants of due process of law. Hulett v. Railway Co., 145 Mo. 35; State v. Shepard, 177 Mo. 243; State v. Mercantile Co., 184 Mo. 183; St. Joseph v. Truckenmiller, 183 Mo. 16; Homes v. Murray, 207 Mo. 418; Matthews v. Railway Co., 121 Mo.. 298; Railroad Co. v. Zernecke, 183 U. S. 582; Clark v. Russell, 97 Fed.' 900. ' (d) The ordinance does not deprive defendants of the equal protection of the laws. State v. Brodnax, 228 Mo. 44; Magoun v. Bank, 170 U. S. 293; Hayes v. Missouri, 120 U. S. 68; Barbier v. Connolly, 113 U. S. '32'.' (e) The ordinance does not provide for the irrevocable grant of special privileges and immunities. State v. St. Louis, 207 Mo. 354. (f) A municipal ordinance is presumed to be legal and valid and will be held unconstitutional only if it appears so beyond a reasonable doubt. St. Louis v. United Rys. Co., 263 Mo. 392; State v. Railroad, 174 S. W. 64. (5) Since the judgment is supported by a finding of common-law negligence, complete in itself, it is not necessary to a decision of this ease to pass upon the constitutionality of the picture show ordinance. Plumlee v. Swan Machinery Co., 189 S. W. 581; Thomure v. Railroad, 191 Mo. App. 640; Nelson v. Railway Co., 113 Mo. App. 707; Fiester v. Drozda, 185 S. W. 748; Moyer v. Railroad, 198 S. W. 842. (6) Plaintiff was not guilty of contributory negligence as a matter of law. Nephler v. Woodward, 200 Mo. 179; New Theater Co. v. Hartlove, 123 Md. 78; Andre v. Mertens, 88 N. J. L. 626; Branch v. Klatt, 131 N. W. (Mich.) 107; Camp v. Wood, 76 N. Y. 92, 32 Am. Rep. 282; Bender v. Weber, 138 Mo. App. 537. (7) There was no error in excusing juror Caldwell. Glasgow v.- Railway Co’., 191 Mo. 347; Theobald v. Transit Co., 191 Mo. 395; Billmeyer v. Transit Co., 108 Mo. App. 6; State v. Faulkner, 185 Mo. 674; McFall v. Railway Co., 185 S. W. 1157; Heidbrink v. Railway Co., 133 Mo. App. 40; Carroll v. Railways Co., 137 Mo. App. 248. (8) There was no error in permitting witness Smith to testify that it was possible and practicable to overcome the difference in level between the aisle and seat platform by means of a gradient or inclined plane. Combs v. Construction Co., 205 Mo. 367; Smith v. Fordyce, 190 Mo. 1; Turner v. Haar, 114 Mo. 335; Hamilton v. Mining Co., 108 Mo. 364; Cobb v. Railroad, 149 Mo. 609; Skinner v.' Glass Co., 103 Mo. App. 650; Buckalew v. Railway Co., 107 Mo. App. 575; Line v. Mason, 67 Mo. App. 279. (9) The court did not err in permitting plaintiff to amend her petition by pleading the Picture Show Ordinance, or in refusing defendants’ motion for continuance, or in refusing to permit defendants to withdraw their answer, or in overruling defendants’ motion to require plaintiff to elect, (a) Defendants could not possibly have been surprised by the amendment, for they, themselves had pleaded and proven the picture show ordinance, and their own. evidence had proven their violation of it. (b) The matter of amendments is one peculiarly within the sound discretion of the trial court, and amendments are favored by the law. Wright v. Groom, 246 Mo. 159; Sonnenfeld v. Rosenthal, 247 Mo. 267; Clarkson v. Lee, 133 Mo. App. 53; Farmington v. Telephone Co., 135 Mo. App. 697; House v. Duncan, 50 Mo. 453; Joyce v. Growney, 154 Mo. 263; Allen v. Ranson, 44 Mo. 267; Carr v. Moss, 87 Mo. 447; Mullery v. Telephone Co., 180 Mo. App. 128. (c) Defendants did not file any motion to strike ■ out the petition as amended, but answered over and proceeded on with the trial on its merits. They thereby waived their right to object to the amendment. Liese v. Meyer, 143 Mo. 547; Carter v. Baldwin, 107 Mo. App. 228; Grvmes ”, Lumber Co., Ill Mo. App. 358; Bernard v. Mott, 89 Mo. App. 403. (d) The granting or refusing of continuances rests in the sound judicial discretion of the trial court. Pidgeon v. Railways Co., 154 Mo. App. 20; Rhodes v. Guhman, 156 Mo. App. 344; Lackey v. Lubke, 36 Mo. 115; Bartholow v. Campbell, 56 Mo. 117; Bank v. Williamson, 61 Mo. 259; Leabo v. Good, 67 Mo. 126; Keltenbaugh v. Railway Co., 34 Mo. App. 147; Railroad Co. v. Holliday, 131 Mo. 440; Shirk v. Shirk, 75 Mo. App. 573. (e) There was no error in refusing defendants’ leave to file a demurrer to the petition as amended. The petition stated facts sufficient to constitute a cause of action and the demurrer tendered by defendants was frivolous. And defendants waived the point by answering over and proceeding on with the trial of the case on its merits. Cases cited under sub-point (c) above, (f) There was no error in overruling defendants’ motion to elect. Plaintiff did elect. (10) Plaintiff’s instruction 2y2 is not erroneous. Austin v. Shoe Co., 176 Mo. App. 571; Fairfield v. Bichler, 190 S. W. 33. (11) Instruction I was properly refused because a patron of a moving picture show does not assume risks due to defendants’ negligence. Pointer v. Constr. Co., 269 Mo. 128; Valentine Co. v. Sloan, 101 N. E.- (Ind.) 102.
   BLAIR, J.

This is an appeal from a judgment respondent recovered for damages for injuries she received from falling when she attempted to pass from her seat into the aisle of a moving-picture theater owned and operated by appellants. The evidence conflicts. That for respondent tends to show the theater was quite dark; she was unable to see the floor at her feet; she could see, merely as a dark object, her companion who preceded her into the aisle; she left her seat and walked toward the aisle; as she did so she held to the back row of seats in front of her; the seats were upon a platform or floor which at the end of the row in which respondent had been seated was four inches above the level of the aisle; as respondent attempted .to enter the aisle her heel was caught or placed upon the edge of the floor upon which the seats stood and she lost her balance and fell; she was seriously injured. She had not previously visited the theater. There is no dispute that patrons were invited to enter and leave, and did enter and leave, the theater at will during performances.

Numerous errors are assigned. Other facts can best be stated in connection with the particular questions to which they are relevant.

I. It was the duty of appellants to use ordinary care to see that the place to which they invited their patrons was reasonably safe for use for the purposes for which it was designed. [Hollis v. Merchants Assn., 205 Mo. 1. c. 520.] The jury was warranted in finding that respondent’s fall was due to her inability to see the step-off on account of the darkness in the theater. “It is a matter of common knowledge” that a four-inch depression in a floor “is sufficient to cause one to fall” who, in the absence of light and knowledge of its presence, steps into or upon the edge of it. [New Theater Co. v. Hartlove, 123 Md. 1. c. 86.] It is not contended the presence of the step-off, alone,, was negligence. It was the absence of light sufficient to enable respondent to see the depression which brought "about her fall. The evidence was. sufficient to warrant a finding of negligence. [Valentine Co. v. Sloan, 53 Ind. App. 71; New Theater Co. v. Hartlove, 123 Md., supra; Andre v. Mertens, 88 N. J. L. 628; Marwedel v. Cook, 154 Mass. 235; Little v. Holyoke, 177 Mass. 116; Faxon v. Butler, 206 Mass. 504; Marston v. Reynolds, 211 Mass. 592; Nephler v. Woodward, 200 Mo. 179; Camp v. Wood, 76 N. Y. 95; Currier v. Music Hall, 135 Mass. 414.] Appellants rely upon eases holding that steps and stairways of ordinary construction are reasonably safe when used as means of overcoming differences in level. They do not decide the question in this case. [Little v. Holyoke, 177 Mass. 116.] Peck v. Yale Ainusement Co., 195 S. W. 1033, is cited. In that case the evidence failed to show what caused the injury. Mrs. Peck was familiar with the stairway,' and the light was like that usually found in moving-picture theaters. In attempting to use a properly constructed stairway of the presence of which she had previous knowledge, she fell, and from her evidence “no court could say just what did cause her fall.” That case is not in point. The question of negligence in this case was for the jury.

II. The question of contributory negligence was for the jury. The passage between the seats led into the aisle as a means of egress. Seeing others use the aisle and invited to use it herself, “can. ^ sa^) as a matter of law, that a person seeking to leave a public theater, and following the only path leading to an exit, should apprehend that that path contained an unsafe place or pitfall or the like?” [Branch v. Klatt, 165 Mich. 671.] In the same case it is said that “the very fact of the premises being maintained in a darkened condition might give added assurance of its being reasonably safe.” The evidence fairly supports a finding against contributory negligence. [New Theater Co. v. Hartlove, supra; Andre v. Mertens, supra; Nephler v. Woodward, 200 Mo. 188; Lewis v. Shows Co., 98 Kan. 118; Marston v. Reynolds, supra; Faxon v. Butler, supra; Marwedel v. Cook, supra.]

pSitionng III. The petition originally counted on (1) common-law negligence, and (2) violation of Section 156 of the Building Code. The answers pleaded at length Ordinance No. 7667, which purports specifically to regulate, in some respects, moving-picture shows. It contains this provision: “No steps shall be permitted in any aisle or in any part of the auditorium floor, except by written permission of the Superintendent of Buildings and Fire Warden.” The answers averred this - ordinance repealed Section 156 of the Building Code insofar as it applied to moving-picture shows. They also 'averred the building was inspected and approved by the Superintendent of Buildings and- Fire Warden, and, subsequently, a license to conduct the show was issued. Appellants offered evidence tending to show the plans for remodeling were approved by the Superintendent of Buildings, and that the Fire Warden inspected the premises after the work was completed.- No formal -written permission to install the step-off was in evidence, and no writing of any kind, signed by the Fire Warden, was offered. Appellant owners testified they knew of no other permits having been issued. After the evidence was in, respondent secured leave to amend her petition by interlineation to conform to the proof by adding a charge that Ordinance 7667 had been violated.

The amendment to the pleading did not change the defense. Appellants’ answers had been on file nearly six months. Those answers pleaded Ordinance 7667 in full, and pleaded inspection and approval thereunder by the Superintendent of Buildings and Fire Warden, and the subsequent licensing of the theater as a defense to the action. Compliance was essential to such defense. Counsel contended then and contend now that their evidence showed, as a matter of law, that appellants had complied with the provision requiring written permission for the installation of the step-off. Every official who acted in the premises was put on the stand. Proof was made by appellants that every writing issued by the officials was in evidence. The issue was fully tried. There was a total failure of written permission by the Fire Warden. Indeed, the proof was he had given no. such permission. This proof was made by appellants. One charge in the petition was that a provision of a designated ordinance prohibited inequalities in floor levels. Ordinance 7667 contained a like prohibition, subject to exception on written permission of named officials. The substance of the charge in the original petition was a violation of an ordinance prohibition against inequalities. The substance of the amendment was a like charge. The differences lay in the number of the ordinance. That ordinance was pleaded by appellants, and the issue respecting compliance with it was tried at length. In such circumstances the allowance of the amendment was right. [Sec. 1848, R. S. 1909; Wright v. Groom, 246 Mo. 163 et seq.; Sonnenfeld v. Rosenthal, 247 Mo. 266, et seq.]

IV. It is urged permission under Ordinance 7667 was shown. ‘No pretense is made that any formal permission in writing was given by any official, and it is clear no written permission of any kind wag g^ven py Fire Warden. Appellants proved the contrary. General definitions of “permission” are of little value. The language of the ordinance is unambiguous. There is no room for a construction that the ordinance could .be satisfied by implying permission from inspection of the premises. Appellants had the benefit of an instruction directing a verdict for them if the step-off was no higher than the approved plans indicated.

V, It is contended Ordinance 7667 is void because of the provision forbidding the employment of’ steps “except upon the written permission” of certain officials. It is said this vests an arbitrary power in the officials and falls within the principle applied in Hays v. Poplar Bluff, 263 Mo. 516, and like cases.

An ordinance conditionally restricting the exercise of a right, otherwise exercisable without question, and making that exercise dependent upon the arbitrary will of a city officer, may well be held invalid. On the other hand, matters of • detail in enforcing ordinances otherwise valid may be left to designated officials. Again, it is held quite generally that in case the city may prohibit a particular thing, it validly may prohibit it except in case a permit is procured from désignated officials. [City of St. Louis v. Fischer, 167 Mo. 662, et seq.; affirmed, Fischer v. St. Louis, 194 U. S. 371.] The arbitrary exercise of the discretion would present another question. In this case it is not suggested the city might not lawfully prohibit absolutely inequalities in levels in darkened theaters. It might do so. The case falls within the rule in the cases above cited. [2 Dillon on Municipal Corporations, sec. 598.] The cases cited by appellants fall within the other principle.

VI. The demurrer appellants asked leave to- file was general in character except insofar as it questioned the validity of Ordinance 7667. That ordinance was valid. The petition was not vulnerable to this gorj. a^aejc< j-fc jg not now denied, as we understand it, that it states a cause of action. The filing of the demurrer could have availed appellants nothing.

VII. After the amendment to the petition, appellants asked leave to file a motion to require respondent to elect between the section of the building code pleaded and Ordinance 7667. Respondent immediately announced she elected to stand upon the common-law7 allegation and Ordinance 7667. She thereupon requested instructions, which were given, withdrawing from the jury the section of the building code and directing them to- disregard it. No formal filing of a motion to elect could have secured appellants more.

VIII. The trial court was right in refusing the instruction on the assumption of risk. The instruction ignored the question whether there had been a violation of the ordinance pleaded. It also ignored the fixation whether the usual construction and lighting of theaters in Kansas City was negligent. Other instructions refused commented on the evidence or ignored substantial questions or contained improper assumptions. Twenty instructions were given for appellants. These presented their case in a favorable light.

Instruction 2% given' for respondent told the jury, in substance, that if appellants permitted a step in thq floor without the permission required by Ordinance 7667, the fact that other theater owners per- * ~~ mitted similiar steps constituted no defense. Courts do not permit the defense of custom to be made to violations of positive law. Further,. the evidence' showed no customary construction like that appellants insist was harmless. There was evidence that about one out of ten theaters in Kansas City had steps in the floor. The objections made to this instruction are not tenable.

IX. There was no error in sustaining the challenge to the talesman Caldwell. He testified his business relations with appellants were such that they might a®ec^ his verdict; that' he preferred not to sit; that he felt “embarrassed .to sit as a juror against these two men.” He further stated he would exercise his judgment in returning- a verdict according to the law and the evidence; that- he would endeavor to do his duty. There is no ground for saying, in these circumstances, that the trial court acted arbitrarily in rejecting Caldwell. He heard Caldwell’s testimony, observed his demeanor and was in a better position to pass upon the question the challenge presented. We are cited to no case which, in a like situation, holds a like ruling reversible error'.

X. It is argued that it was error to permit an expert to testify that it was practicable to overcome differences in floor levels in theaters' by gradients or inclined planes. It is said the jury was as a^e to draw conclusions upon this question as was the expert. All will agree differences in levels can be overcome in the manner stated. Whether such methods of overcoming ■ them in theater floors are practicable is another question. The evidence falls within the rule in Combs v. Construction Co., 205 Mo. 391, and was admissible.

Affirmed.

All of the judges concur; Bond, P. J., in result.