author: WOODSON, J.

text:
    FREDA LANGE, by Next Friend, v. MISSOURI PACIFIC RAILWAY COMPANY, Appellant.
    Division One,
    December 24, 1907.

      1. NEGLIGENCE: Prima-Facie Case. Where the evidence makes out a prima-facie case, it is the duty of the court to submit the case to the jury.
    2. -: -: Escaping Steam: To Frighten Children. Where the evidence shows that the engineer permitted steam to escape from his engine for the purpose of scaring children standing on a cinder platform near by, thereby scattering steam and cinders over them and causing them to move backwards, and plaintiff, a child, less than ten years old, in backing away, stepped upon a side track, and was struck by a loose freight car moving thereon, which she did not hear or look to see, a primafacie case is made out for her.
    3. -: Instruction: In Harmony With Appellant's. A party cannot complain of an instruction which is in harmony with one given at his own request. Appellant cannot complain that plaintiff’s instruction authorized the jury to find for her if they believed that the injury was caused by a defective brake, while the evidence discloses no evidence upon which to base the instruction, if by its own instructions asked and given the same issue is submitted to the jury.
    4. -: Departure: Wantonness in Petition: None in Instruction. Where there are extravagant statements in the petition, which defendant claims amount to a charge of wantonness, recklessness, etc., yet if the petition in terms also charges negligence, an instruction for plaintiff which bases her right to recover on negligence alone is no departure from the petition.
    5. -: -: Cured by Defendant’s Instruction. An omission of the element of wantonness, charged in the petition, from plaintiff’s instruction, is cured by instructions given for defendant in which is clearly set forth the element of wantonness.
    6. -: Trespasser: Wantonness. Where plaintiff, a school girl less than ten years old, went to the station to see her teacher depart on a passenger train, and after the train left continued to stand on the cinder sidewalk, and, when the freight engine on the same (or main) track came down and began to emit steam, retreated backwards to the side track, as the engineer, in amusing himself, expected her to do, and, as a result, was there struck by a loose freight car, she was no trespasser; and, being seen by all the train crew, it is useless, under the circumstances, to consider whether she was injured by the wanton and reckless conduct of the brakeman on the freight car in not sooner stopping the car, or of the engineer in unnecessarily letting off the steam.
    7. -: Instruction: In Place of Danger. An instruction which tells the jury that if the brakeman “saw the plaintiff on said side track in front of said car in time to have stopped it,” etc., contains words equivalent to “in a place of danger.”
    8. -: Contributory: Omitted from Instruction. An instruction for plaintiff which ignores the question of contributory negligence is cured by one given for defendant which embraces that issue.
    9. -: -: Instruction: Comment on Evidence. Instructions which tell the jury that if they find the facts therein stated as constituting defendant’s negligence to be true, then they may take them into consideration in determining whether or not plaintiff was guilty of contributory negligence, are not comments on the evidence.
    10. -: -: Embraced in One Instruction. It is better practice to submit in one instruction the facts pleaded which constitute plaintiff’s contributory negligence, but there is no valid legal objection to submitting them in different instructions, especially where they do not tell the jury that the recited facts constitute contributory negligence, but that the jury should take them into consideration in passing upon that question.
    11. -: -: Of Child. The jury should be told that in passing upon the contributory negligence of the injured child, they should take into consideration its age, intelligence, understanding, experience and surroundings. But it is not absolutely necessary that that be done in one instruction.
    12. -: -: Frightening Child. Where one person negligently frightens another, and such other, while so frightened, is injured, the jury should consider that fact in passing upon the contributory negligence of the injured person.
    13. -: Measure of Damages to Child. An instruction which tells the jury that in estimating her damages, they should, among other things, “consider to what extent, if any, plaintiff’s capacity for earning a livelihood, after her majority, will be impaired by said injuries, and return a verdict for her in such sum as you believe to be just and reasonable, not exceeding,” etc., does not leave it to the jury to fix the amount of her damages as they may deem just and proper, and is not erroneous.

      Appeal from Lafayette Circuit Court. — How. Samuel Davis, Judge.
    Affirmed.

      Martin L. Glardy and Scott & Bowher for appellant.
    (1) The court erred in refusing to sustain appellant’s demurrer to the evidence. Carrier v. Railroad, 175 Mo. 481; Zumault v. Railroad, 175 Mo. 311; Holwerson v. Railroad, 157 Mo. 261; Tanner v. Railroad, 161 Mo. 497; Coleman v. Land Company, 105 Mo. App. 271; Yan Back v. Railroad, 171 Mo. 338; Spillane v. Railroad, 135 Mo. 414. (2) A child can be guilty of contributory negligence the same as an adult, regard being had to its age, etc., and where the act of the child is the sole cause of the injury, there can be no recovery. Spillane v. Railroad, 135 Mo.-414; Barney v. Railroad, 126 Mo. 372; Lee v. Jones, 181 Mo. 291. (3) Where a party is a trespasser on the tracks of a railroad company, and is injured while thereon, the company is only liable to such injured party for wanton and reckless disregard of human life, and unless the proof shows such character of negligence, the company is not liable. . Carrier v. Railroad, 175 Mo. 481; Zumault v. Railroad, 175 Mo. 311; Yan Back v. Railroad, 171 Mo. 339'; Roenfeldt v. Railroad, 180 Mo. 554; Prank v. Railroad, 112 Mo. App. 496 ; Heiter v. Railroad, 53 Mo. App. 331; Moore v. Railroad, 176 Mo. 529. (4) Instruction 1, given for respondent, was erroneous, for the reason there was no testimony that the brake on the car was defective. Donaham v. Joyce, 129 Mo. 5. (5') Instruction 2, given for respondent, was erroneous, for the reason that it leaves out of view any element of wantonness or recklessness on the part of appellant, its agents or employees, and also because it did not require respondent to have been in a dangerous position, .and unaware or oblivious of the approaching of the car, nor did it require her to he in the- exercise of any degree of care whatever. (6) Instructions three, four, five and six, given for respondent, were erroneous, for the reason they were a comment upon the testimony, and give undue importance to certain facts. Lynch v. Railroad, 112 Mo. 437 ;• State v. Snyder, 182 Mo. 521; Bidbeutal v. Railroad, 43 Mo. App. 4701. (7) Instruction 10, upon the measure of damages, was erroneous, for the reason that it allowed the jury to return such damages as they deemed just and reasonable. Hawes v. Stock Yards, 103 Mo. 60.

      Alexander Graves and Charles Lyons for respondent.
    The facts of this case are precisely the same as the facts in the father’s suit against this appellant. Lange v. Railroad, 115 Mo. App. 582. (1) Instruction 1 merely defined the issues and told the jury that plaintiff need not prove all the acts of negligence charged. If there was no evidence concerning defective brakes, then instead of submitting that question to the jury as appellant did by its instructions 3, 6 and 7, it should have asked the court to so direct the jury; and faffing to do so, it can not now complain. Thompson v. Bucholz, 107 Mo. App. 121; Coleman v. Drane, 116 Mo. 387. (2) Appellant’s point 5 unjustly complains of resondent’s instruction. Donahoe v. Railroad, 83 Mo. 551. The law presumes that plaintiff was injured by the negligence of defendant and that she exercised due care at the time. Holding v. St. Joseph, 92 MO'. App. 149; Weller v. Railroad, 164 Mo. 180. Besides, if there was any omission in that instruction, the omission was supplied by the appellant’s precise and rigid instructions, 8, 6 and 4. Owen v. Railroad, 95 Mo. 181. In view of appellant’s said instructions, any omission in the instruction for respondent is cured. Anderson v. Railroad, 161 Mo. 427; Meadows v. Ins. Co., 129 Mo. 97; Hughes v. Railroad, 127 Mo. 452. (3) Appellant’s point 6 is the same as its point 3 in its brief (in the former case) reported in 115 Mo. App. 584; and cites the same authorities, the first of which, Lynch v. Railroad, 112 Mo., decided by Sherwood, J., is overruled by this court In Banc in Schmitz v. Railroad, 119 Mo. 269, and Baker v. Railroad, 147 Mo. 168. See, also, Blackwell v. Hill, 76 Mo. App. 53. (4) Appellant in point 7 complains that respondent’s instruction 10 allowed the jury to return such damages as they deemed reasonable and just. There is nothing in this complaint. This identical final sentence in a similar instruction, from which 10 is copied, was approved by Court in Banc in Schmitz v. Railroad, 1191 Mo. 269. (5) The demurrer to the evidence was properly overruled. Lange v. Railroad, 115 Mo. App. 582; Donahoe v. Railroad, 83 Mo. 555; Reyburn v. Railroad, 187 Mo. 572; Baker v. Railroad, 147 Mo. 158; Stephens v. Railroad, 67 Mo. App. 362. (6) The judgment should be affirmed and our motion for ten per cent damages should be sustained.
   WOODSON, J.

This suit was instituted in the circuit court of Lafayette county, seeking to recover $20,000 damages for personal injuries received by plaintiff, through the alleged negligence of the defendant by running one of its cars upon and over her right leg and so mangling it as to render amputation thereof necessary, just below the knee. There was a trial before the court and jury, which resulted in a verdict and judgment for the plaintiff for the sum of $5,000'. After taking the proper preliminary steps, the defendant appealed the cause to this court.

There is no question presented here regarding the pleadings, and for that reason they will not be further noticed.

The evidence for plaintiff tended to show that plaintiff was a little German girl, nine years and nine months old at the time of her injury, and could not speak English. The injury occurred at a station on defendant’s road, called Emma; that at the station there are two tracks, the main and the switch track, and the latter was three or four hundred feet in length and was north of the main track, and at the point of the injury they were separated about forty feet; that these tracks ran east and west, and a public road, forty feet in width, crossed them at right-angles; that between the two tracks and just west of the public road, and lying along and parallel with the main track, was located a cinder platform, constructed for and used by the patrons of the road, but there was no station house; that this platform was about forty feet long by eight in width. That the plaintiff was struck and injured on the switch track, about sixteen feet west of the public road; that she lived south of the railroad and was attending school on the north side; that school was dismissed about 4:30 p. m., and she was on her way home with twelve or fourteen other school children, all of whom went down to the platform to see their teacher off on a west-bound train, due about that time. That while the children were on the platform an east-bound freight train headed in on the side track, awaiting the passage of the west-bound passenger train; that there was standing on the side track an empty freight car, which was to be placed in the freight train and taken on east; that the entire crew, with probably one exception, saw the children standing on the platform. That after the departure of the passenger train, the freight engine was disconnected from its train and coupled onto the empty car standing in front thereof, which it pushed up beyond the east end of the switch track and some distance beyond that point on to the main track, and then the engine was reversed and ran back west on the main track, pulling the empty car, and while thus moving the engine was uncoupled from the car, and it was shunted back west, on the side track to be coupled onto the freight train, and the engine passed faster on down the main line, and thereby performed what is called a “running switch.” That because of the more rapid speed of the engine it reached the platform and stopped there some few seconds before the empty car reached a corresponding position' on the switch track; that when the engine stopped at the platform the children were still standing- thereon, and while thus standing the employees in charge of the engine caused to be discharged therefrom, three or four times, large volumes of steam, which made loud noises and blew dirt and cinders ten to twelve feet from the platform; that the steam struck the children and caused them, including the plaintiff, to go backward toward the side track upon which the empty car was approaching,, as a result of the momentum given it by the flying switch; that while the children were thus moving backward, the fireman was looking at them and laughing; that as the discharge of the steam was repeated the children continued to retreat therefrom, backward, toward the side track, and plaintiff was looking all the time, with a sun bonnet on, at the engine and escaping- steam until she reached and stepped upon the side track, where she was struck by the empty car and injured; that she never looked east or west, nor saw the approaching car which struck her; that the brakeman, who was on .the west end of the car and in charge thereof, saw the plaintiff moving backward toward him, when the car was from sixty to seventy feet from her, and there was nothing to obstruct his view of her, but he made no attempt to stop it until he was within six or eight feet of her, and only then after someone hollowed to him that someone was in danger; that the car was running three dr four miles an hour and could have been stopped within three or four feet.

The plaintiff then rested her case, and defendant asked a demurrer to the evidence, which was, by the court, overruled, and defendant duly excepted.

The defendant then introduced evidence which tended to prove that no steam escaped from the engine while it was standing at the platform, nor until it started east, after making the switch, and that what then escaped was necessary in the ordinary operation of the engine; that no steam was emitted for the purpose of frightening the children; that plaintiff was familiar with the station, tracks and the operation of trains at that place; and that she was a girl of average intelligence, and crossed the tracks every day going to school.

The court then gave the following instructions, over the objections and exceptions of defendant, on behalf of the plaintiff, to-wit:

“1. The court instructs the jury that plaintiff’s petition charges her injuries and damages were caused by the following acts of negligence of defendant’s agents operating conjointly or severally, namely, that said agents in charge of said engine unnecessarily and negligently, purposely and wantonly discharged at and about the plaintiff and her companions an excessively large volume of steam, thereby causing her to take fright and flee from said steam and unconsciously to stop upon the side track in front of a detached freight car moving upon a running switch by which she was struck and which ran over and crushed her leg. Also that the defendant negligently used said freight car while equipped with a defective or insufficient brake, rendering it more difficult to he stopped. And you are further instructed that the plaintiff need not prpve all of said acts of negligence, hut that if you find and believe from the evidence that her said injury was directly caused by either one of said acts of negligence, then your verdict should be for the plaintiff.

“2. The court instructs the jury that if you believe from the evidence defendant’s brakeman in charge of said car while the same was moving toward her saw the plaintiff on said switch track in front of said car in time to have stopped the same before striking the plaintiff, and that said brakeman paid no further attention to the situation in which she was placed until said car ran so close upon her that it was impossible to stop it in time to prevent the accident, and if you believe from the evidence that said car knocked plaintiff down and she was thereby injured, then the defendant is in law guilty of negligence and your verdict must be for plaintiff.

“3. You are further instructed that the plaintiff, Freda Lange, was bound to exercise: only such care and prudence as might be reasonably expected of a girl of her age and capacity, under similar circumstances, and that the same degree of care and prudence in avoiding danger is not required from a person of tender years as from a person of mature years and greater discretion under similar circumstances; and if the jury believe from the evidence that the plaintiff was at the ’time of the accident of about nine years and nine months of age, you may take that fact into consideration in considering the question of negligence, if any, on part of the plaintiff.

“4. You are further instructed that although you may believe from the evidence that it would have been negligence in an adult to have stopped upon said side track in front of said detached freight car while the same was in motion, if you believe from the evidence plaintiff did so stop on said side track on the occasion of her injuries, still if the jury find that by reason of her youth and inexperience she was not aware of the danger to which she was exposed in doing so, then the jury will take this into consideration in passing upon the question of plaintiff’s alleged contributory negligence.

“5. The court instructs the jury that if you believe from the evidence that the plaintiff, Freda Lange, was frightened by the discharge of steam from the defendant’s engine on the main track in front of the cinder platform on which she was standing and that she was caused thereby to retreat backward to the side track and that her attention was on that account fixed upon said engine and so diverted as to cause her not to notice the empty freight car approaching her on said side track, you will take that fact into consideration in connection with her youth and inexperience in determining whether under all the facts and circumstances she was guilty of negligence causing her injuries.

“6. If the jury believe from the evidence that the car which struck and injured Freda Lange was being run at the time of the injury on a running or flying switch and that such manner of handling said car was more dangerous to and more likely to injure persons who' might be on the track or attempting to cross the track than the ordinary and usual manner of switching cars, as shown by the evidence, then the defendant’s servants were bound to use more than ordinary care and caution in making such switch, and if you believe from the evidence that the injury to F'reda Lange was the result of any want of care and caution on the part of the defendant’s servants in making such running or flying switch you should find for the plaintiff.

“7. The court instructs the jury that you are the sole judges of the credibility of the witnesses and of the weight to be given to their testimony, and if you believe that any witness has wilfully sworn falsely to any material fact in issue, you may disregard such false testimony and may disregard the whole of his or her testimony.

“8. ‘Ordinary care and caution’ as used in these instructions mean such care and caution as a reasonably prudent person would use in his own affairs and under the same and similar circumstances. The word ‘wantonly’ as used in the petition and instructions means heedless inattention to duty.

“10. The court instructs the jury that if you find for the plaintiff you will in assessing her damages take into consideration the physical condition she was in before her injuries in question, the physical pain and mental anguish she has suffered occasioned by said injury and the physical pain and mental anguish, if any, you believe from the evidence she is likely to suffer in the future because of said injury; and in addition to this you may also consider to what extent, if any, plaintiff’s capacity for earning a livelihood, after her majority, will be impaired by said injuries and you will return a verdict for her in such sum as you believe to be just and reasonable, not exceeding the sum of $20,000.”

And the court gave the following* instructions on behalf and at the request of the defendant, to-wit:

“1. The court instructs the jury, that one of the alleged acts- of negligence averred in plaintiff’s petition as causing plaintiff’s injury is that defendant’s engineer, in charge of one of defendant’s engines, standing* on its main track at Emma Station, unnecessarily, negligently and for the purpose of frightening the plaintiff, opened a steam valve and discharged from said engine a large volume of hot steam therefrom or from the steam chest thereof against and about plaintiff, frightening her and causing her to step back upon the side track in front of a moving car by which she was run over and her leg crushed. This allegation the defendant has denied in its answer. You are therefore instructed that it devolves upon the plaintiff to prove this allegation of her petition to your satisfaction, by a preponderance of the evidence. And if the jury find from the evidence that while said engine was standing still upon the track no steam could possibly be discharged from the steam chest of said engine, or from any valve thereof, except the safety valve, and that no steam was discharged or escaped from said valve or steam chest, then the plaintiff cannot recover herein on that allegation of her petition, and as to said alleged act of negligence, the jury will find for the defendant.

“2. And with further reference to said alleged act of negligence and wantonness on the part of its engineer, the court instructs you, that although you may believe .from the evidence that steam did escape from any part of said engine, which alarmed or frightened the plaintiff, yet if you further believe from the evidence that said steam escaped or was thrown out by the usual and ordinary operation of the engine, and was not thrown out or permitted to escape by the engineer in charge of said engine negligently or unnecessarily for the purpose of frightening the plaintiff, then the plaintiff cannot recover herein on account of the escape of such steam, and as to that matter the jury will find for the defendant.

“3. The court further instructs the jury that another alleged act of negligence by the defendant charged in plaintiff’s petition as causing plaintiff’s injury is, that the car which run over plaintiff was equipped with a defective and insufficient brake, whereby said car was rendered less manageable and more difficult to be stopped. This allegation of the plaintiff’s petition the defendant has also denied in its answer. You are, therefore, instructed that it devolves upon the plaintiff to prove this allegation to your satisfaction by a preponderance of the evidence. And if yon believe from the evidence that the brakes on said car were in an ordinarily and unusually good and safe condition, and would stop and did stop said car as quickly as usual when running at the same rate of speed on a track of the same grade, then the jury will find for the defendant as to said allegation of negligence.

“4. The court further instructs the jury that another alleged act of negligence by the defendant charged in plaintiff's petition as causing plaintiff’s injury, is that the defendant’s brakeman in charge of the car which run over plaintiff saw her, or by the exercise of ordinary care and caution could have seen her in front of said car in time to have stopped the same before striking and running over her. With reference to this alleged act of negligence the court instructs you that if you find from the evidence that as said car was running west upon the side track toward the train to which it was to be attached it was in charge of a competent brakeman who stood at the brakes on the west end thereof, and that as the car approached the plaintiff she was standing by the side of the track on which the car was approaching and not in any danger of being struck thereby, and that when said car got close to her she stepped upon the track in front of said car and so close to it that the brakeman in charge of it could not stop it, and that he made all reasonable effort to stop it before it struck plaintiff and run over her but could not do so, then the plaintiff cannot recover on account of this alleged act of negligence, and the jury will find for the defendant on said charge.

“5. The court further instructs the jury that if they find from the evidence that the plaintiff, Freda Lange, was not at the defendant’s platform or station, at the time or just before she was injured, for the purpose of taking passage upon any of defendant’s trains, but was there merely as a matter of pleasure, amusement or curiosity, or to see her school teacher take passage on one of the defendant’s trains, then she did not occupy toward the defendant the relation of a passenger, and the defendant was only bound to esercise reasonable care not to injure her, after any of its agents or servants saw her in a position of danger.

“6. The court further instructs the jury that if you find from the evidence that the plaintiff, Freda Lange, was old enough to know that it was dangerous to go upon or stand upon a railroad track, and that a car running on such track might strike her or run over her, and if you further believe that the car which struck her was in her full view as it came toward her, and if she had looked she must have seen it, but that she approached the track on which she was afterwards hurt without looking to see if a car was coming toward her, and without so looking stepped upon the track immediately in front of such car and so close thereto that the brakeman in charge of said car could not stop it by the energetic and vigorous use of the brakes upon said car, and that such brakes were in ordinary good and efficient condition, then the plaintiff was guilty of such want of care for her own safety as bars her from recovering herein, and the jury will find for the defendant.

“7. The court further instructs the jury that the brakeman in charge of the car which struck plaintiff was not bound to anticipate that the plaintiff would step upon the track in front of his car, and was not bound to try to stop his car until he saw her in a position of danger, and if the jury find from the evidence that as the car approached the plaintiff the brakeman was at the brake on the west end of said car, looking ahead of him toward the west and did not see plaintiff until just as she stepped on the track, and that as soon as he saw her he did all in his power to stop the car before it struck her, but could not do so, and that said car was equipped with brakes in ordinarily good and serviceable condition, then he did all the law required of him, and was guilty of no negligence, and the plaintiff cannot recover herein.

“8. The court further instructs the jury that the defendant did not owe it as a duty to the plaintiff under the allegations of plaintiff’s petition and the evidence in this case to have the brakes' on the car which struck her in the best possible aud serviceable condition. The only duty which the defendant owed to her under the circumstances shown by the evidence was not to wilfully and wantonly run over her, but to use all reasonable efforts and care, by the use of all means at its command, to stop the car before striking her after the brakeman in charge of said car 'discovered the plaintiff upon the track in a position of peril or after he might have so discovered her by the exercise of ordinary care. ’ ’

The defendant and appellant has assigned the following errors:

First. The court erred in refusing appellant’s demurrer to respondent’s evidence.

Second. That the court erred in giving instruction number one for respondent, for the reason that there was no evidence that the brake of the car was defective.

Third. That the court erred in giving instruction number two for respondent, for the reason that it leaves out of view any element of wantonness or recklessness on the part of the appellant, its agents or employees, and also because it did not require the respondent to have been in a dangerous position and unaware or oblivious of the approaching of the car, nor did it require her to be in the exercise of any degree of care whatever.

Fourth. That the court erred in giving instructions number three, four, five and six for respondent, because they are comments upon the evidence.

Fifth. That instruction number ten given for respondent was erroneous, because it allowed the jury to return such damages as they deemed just and reasonable.

I. The first insistence of the appellant is, that the action of the trial court in refusing to sustain its demurrer to respondent’s evidence at the close of her case was erroneous.

The evidence tends to show that she was a school girl, not quite ten years of age, and of average intelligence; that on, the day of her injury she and some twelve or fourteen of her schoolmates in returning to their homes from school stopped at the station of Emma to see their teacher off on a west-bound train, and that while they were standing on the cinder platform, the employees in charge of the engine caused large quantities of steam to be ejected from the engine for the purpose of scaring the children; that this act was repeated two or three times, and so violent were the discharg-es that the steam extended some fifteen or twenty feet from the engine and toward and struck the children, and blew the dirt and cinders which were on the platform some twelve or fifteen feet; that in order to escape from the steam, dirt and cinders, the children retreated northward toward the side track, upon which was slowly approaching the empty car, with a brakeman on the west or front end thereof; that as the ejection of the steam was repeated the children retreated further north until the plaintiff and others reached the side track, where she stopped; that she retreated the entire distance backward, with a sun-bonnet on, looking at the engine and the escaping steam all the while, and never looked east or west nor saw or heard the approach of the empty car; and that on account of the great noise caused by the escaping steam she did not hear the warning given that someone was in danger; that the brakeman in charge of the car, when some sixty feet distance, saw her retreating toward the side track, with nothing to obstruct his view of her; that he made no attempt to stop the car, which was running three or four miles an hour, until someone hallowed that she was in danger, at which time the car was within a few feet of her, then he, for the first time, attempted to stop it and did so in a space of three or four feet, but not until the child was run over and injured.

These facts were testified to by some ten or twelve disinterested witnesses, introduced by the respondent, and substantially the same facts were testified to by two witnesses introduced by the appellant, the only ones introduced who were not members of the train crew which caused the injury. Not only did this evidence make out a prima-facie case> which entitled her to go to the jury, but so overwhelming was the weight of the evidence in her favor that no court could conscientiously disturb the verdict because there was no evidence to support it. No disinterested and fair-minded man can read this record without reaching the conclusion that either the engineer or fireman in charge of that engine, like all practical jokers, saw nothing in the situation except the momentary amusement which the perpetration of the joke would afford him by seeing the children run and scatter by discharging the steam in their midst; but after the steam from the engine disappeared he saw the child writhing in agony, with a crushed leg, and for the first time, after it was too late, considered the danger to others which did attend his foolish act.

The conduct of this servant is as inexcusable as are the actions of that other large class of practical jokers who are ever killing some member of the family or friend with an “empty gun.”

As the evidence made out a prima-facie case, it was the duty of the court to submit it to the jury, and there was no error in refusing the demurrer to the evidence offered by appellant. [Barth v. Railroad, 142 Mo. l. c. 549; Twohey v. Fruin, 96 Mo. 104.] The following cases are particularly applicable to the facts of this case: Lange v. Railroad, 115 Mo. App. 582; Donahoe v. Railroad, 88 Mo. 555, l. c. 556; Reyburn v. Railroad, 187 Mo. 572, l. c. 575; Baker v. Railroad, 147 Mo. l. c. 158.

The first case above cited was by the father to recover damages for loss of services of this same child, caused by her injuries sustained in this same accident.

II. The second assignment of error presented for our consideration is the action of the trial court in giving instruction number one for respondent. The objec- ' tion urged against this instruction is that it authorized the jury to find for the respondent if they believed that the injury was caused by a defective or insufficient brake, while the record discloses m> evidence that the brake was defective or insufficient, and for that reason there was no evidence upon which to base the instruction.

Conceding that the instruction is open to the criticism offered, yet the appellant is in no position to take advantage of the error, for the reason its instructions numbered three, six and seven submit the same issue to the jury.

A party cannot complain of an instruction which is in harmony with one given at his own request. [Thorpe v. Railroad, 89 Mo. 650; Olfermann v. Railroad, 125 Mo. top of p. 416; Hall v. St. Joseph Water Co., 48 Mo. App. l. c. 363.]

III. Instruction numbered two given for respondent is assailed for three reasons: first, because it leaves out of view the element of wantonness and recklessness on the part of the appellant, its agents or employees in running the car over the respondent. By this the appellant means that the issue submitted to the jury by the instruction is one of negligence, while the issue made by the pleading was one of wantonly and recklessly injuring her, which it is contended is a departure between the pleading and the instruction.

It may be said of this case, as was said by Judge Black in the case of Owens v. Railroad, 95 Mo. l. c. 180, that, “The next objection to these instructions is, that the plaintiff cannot sue for an assault and recover for negligence in failing to stop the train. The petition does make some extravagant averments; but, notwithstanding it charges an assault by the servant, it also in terms charges negligence in not stopping the train a reasonable time, and negligence on the part of the servant in pulling her off. The instructions cannot be said to be a departure from the petition. The petition contains all that is in the instructions, and more too, and it follows that it is not a case of declaring upon one cause of action, and a recovery upon another.”

The same is true in this case — while there are some extravagant statements to be found in the petittion about how the agents and servants unnecessarily, etc., ran over and injured the respondent, yet the charge of negligence is also found therein, full and complete, as will he seen from the following allegation:

“But on the contrary thereof said brakeman, although he saw the plaintiff in time, or, by the exercise of ordinary care and caution, could have seen her in time, to have stopped said car by the timely use of said defective brake, negligently and carelessly failed to stop said car, and negligently and carelessly permitted it to run over her right leg, thereby crushing and pulverizing the bones thereof in such a manner as to require the amputation thereof just below the knee.”

And substantially the same allegations are made as to the acts of the engineer and fireman.

It is thus seen that the instruction is not a departure from the petition, for the reason that the petition contains all the allegations of fact which the instruction requires to be found, and more, too, and for that reason there is no departure.

The same doctrine is announced in the case of Conway v. Reed, 66 Mo. 346.

But concede that there was such an omission in plaintiff’s instruction, yet that omission was fully supplied by defendant’s sixth and eighth instructions given, which would have cured all errors had there been any. [Owens v. Railroad, 95 Mo. 169, l. c. 181; Meadows v. Life Ins. Co., 129 Mo. l. c. 97; Hughes v. Railroad, 127 Mo. l. c. 452.]

Nor is there any ground for the contention that respondent was a trespasser while' she was standing on the side track. She went to the station to see her teacher depart on the passenger train, which she had a right to do; and when she retreated back to the side track as a result of the escaping steam she was doing the very thing which the evidence shows the employees intended she would do, namely, to flee from the steam for their amusement. And, in addition to this, all of the train crew saw and knew she was on the switch track. So, it is, therefore, useless to argue the question as to whether or not she was injured by the wanton and reckless conduct of appellant’s agents and servants in running over her.

The second objection urged against this instruction is that it did not require the respondent to have been in a place of danger before the brakeman was called upon to use ordinary care after seeing her, or after he could have seen her by the exercise of ordinary care. After a careful reading of the instruction, we are of the opinion that the objection is not well founded. While the instruction does not use the words ‘‘ in a place of danger, ’ ’ yet it does say that if the brakeman “saw the plaintiff on said track in front of said car in time to have stopped it,” etc., which are equivalent to telling the jury that if they believed she was in a “place of danger,” etc. We are unable to conceive of a case where a little girl would be in a greater place of danger than standing on a railroad track, oblivious to an approaching freight car, if not properly controlled, and our only wonder is that she escaped with no greater injury and with her life.

The third objection to this instruction is that it ignores the question of contributory negligence. While that is true, yet that question was presented to the jury in instruction numbered three given for respondent, which properly submitted that issue to the jury. [Schmitz v. Railroad, 119 Mo. 256, l. c. 269 and 276, Court in Banc; Baker v. Railroad, 147 Mo. l. c. 168; Blackwell v. Hill, 76 Mo. App. 53; Lange v. Railroad, 115 Mo. App. 589.]

IV. Appellant also complains of instructions num- • bered three, four, five and six, given for respondent, as being comments upon the evidence.

We are unable to concur in- that view of the instructions. They simply tell the jury that if they find the facts therein stated to be true then they may take them into consideration in determining whether or not respondent was guilty of contributory negligence.

It is not only the law that the facts which constitute contributory negligence should be pleaded, but it is the duty of the court in submitting that question to the jury to require them by the instructions to find whether or not those facts are true or false, just in the same maimer as the acts of negligence are submitted to the jury. While it is better practice to submit all such facts in one instruction, yet in the absence of some special reason pointed out, we can see no valid legal objection to submitting them in different instructions, especially when, as in the case at bar, none of the instructions objected to told the jury that if they found the facts to be true, then they would find her not guilty of contributory negligence; but upon the other hand they told them that they might take them into consideration in passing upon that question.

This court has uniformly held that it was proper to tell the jury that, in passing’ upon the negligence of a child, it was proper for them to take into consideration its age, intelligence, understanding, experience and surroundings, etc. While that has generally been done in one instruction, but, as stated before, we see no prejudicial error committed by the court for having submitted those matters in different instructions. We have also held that if one person frightens another by his negligence, and that while she is in that condition, she is injured, the jury should consider that fact in passing upon the question of her contributory negligence. [Siegrist v. Arnot, 86 Mo. 200.]

V. The final ground assigned by appellant why the judgment should be reversed, is the action of the court in giving instruction numbered ten on behalf of respondent. It is contended that this instruction leaves it to the jury to fix the amount of the damages as they may deem just and proper.

This objection is not well founded. The instruction tells the jury, that if they find for the plaintiff, then they may take into consideration her physical pain and mental anguish suffered, and such as she may suffer, as shown by the evidence; and, in addition, it told the jury that they might consider to what extent, if any, plaintiff’s capacity for earning a livelihood, after her majority, will be impaired by said injury, and for them to return a verdict for her for such sum as they believed to be just and reasonable, not to exceed the sum of $20,000.

This instruction properly pointed out her injuries, which went to make up the elements of her damages, and told the jury that they should allow her such sum therefor as they'thought was-just and reasonable. This was equivalent to telling the jury to assess her damages . at such sum as they found from the evidence would compensate her for her injuries. This instruction is a verbatim copy of one given and approved by this court in the cases of Schmitz v. Railroad, 119 Mo. l. c. 269, 279, and Haniford v. Kansas City, 103 Mo. 172. These cases properly draw the distinction between the instruction given in the case at bar and the one discussed in Hawes v. Stock Yards Co., 103 Mo. 60, relied upon by appellant.

Clearly, the judgment is for the right party, and it should be affirmed; and it is so ordered.

All concur.


source: Caselaw Access Project

author: LAMM, J.

license: Public Domain

text:
    DAVID NUGENT v. ARMOUR PACKING COMPANY, Appellant.
    Division One,
    December 24, 1907.
    1. NECESSARY PARTIES: Share in Profits: Partnership. Where plaintiff, the lessee of a quarry, obtained a contract with defendant to furnish certain stone, and sues for the value of stones of a larger dimension than those mentioned in the contract, another person who assisted plaintiff in hauling the stone, under an agreement, made after the contract was obtained, that he was to have one-half of the net profits or would be compensated in whatever way was right, was not a partner of plaintiff, and was not a necessary party to the suit.
    2. -: -: -: Instruction: Non-Direction. And an instruction for plaintiff which tells the jury that if they find those facts to exist, they should find that such third person was not a necessary party, is not erroneous. And if defendant desired a fuller direction on the subject of partnership, it should have asked instructions setting forth its theory; and having failed to do' that it cannot complain of non-direction.
    3. -: -: -: -: Affidavit in Support of Motion for New Trial. And an affidavit by saiá third person, filed in support of defendant’s motion for a new trial, in which he says he informed defendant that he was plaintiff’s partner, is of no moment in passing on the propriety of the instruction, but goes alone to the court’s discretion in refusing to grant a new trial.
    4. GOODS BOUGHT AND USED: Not Ordered. Defendant is liable for stone delivered by plaintiff to defendant and used by it in its building, whether ordered by its contractor or not.
    5. PAYMENT: On Account: Acceptance Under Contract: Bar. Acceptance of payment for stone at a contract price is not payment in full for larger and more valuable stone sold outside of the contract, but is at most simply a payment on account. And if the agent of plaintiff who received the payment was told by the defendant that the stone was sold under contract at a stipulated price, and plaintiff as soon as he was advised of defendant’s contention informed defendant that the stone was not sold under the contract and that he did not intend to accept the price called for by it, he is not barred from recovering the value of the stone actually delivered and used by defendant.
    6. EVIDENCE: Unexpressed Intention. The unexpressed intention of defendant in making a contract with plaintiff for “rubble stone” and “heavy rubble stone,” at designated prices, and in subsequently writing a letter directing plaintiff to deliver “stone for footing, eight feet in length and four feet wide” — a different kind of stone from rubble — is not proper evidence, when defendant is sued for the value of this “heavy dimension ■stone.”
    7. —--: Prices Paid Others. In a suit for the value of stone delivered, evidence of the price defendant paid others under contracts made with them for similar stone, is not competent.
    8. NEW TRIAL: Newly-Discovered Evidence. The trial court exercises a sound discretion in passing on a motion for new trial based on newly-discovered evidence. Even where the evidence is in sharp conflict, the questions of diligence and whether or not the new evidence is cumulative, are still present.
    Transferred from Kansas City Court of Appeals.
    Affirmed.

      Arthur F. Smith and Frank Hagerman for appellant.
    (1) The letter of March 14, 1900', was not an order for dimension stone. Unquestionably this letter had to do with the contract. It was either an order for stone under the contract, or it was a modification of the contract, either as a matter of law, or as a matter of fact, by the understanding (or the mutual misunderstanding) of both the parties. It was not an order independent of the contract. The letter plainly shows that it had to do with some arrangement previously fixed upon between the parties, and without reference to the contract it would be unintelligible-. Wagner v. Elec. Co., 177 Mo. 44; 15 Am. and Eng. Ency. Law (2 Ed.), 1092. (2) Whatever may be said as to whether defendant ordered dimension stone eight feet long by four feet wide, there is absolutely no evidence tending to show that defendant ever ordered any dimension stone five feet long by three feet wide. (3) Plaintiff did not, as a matter of fact, deliver any dimension stohe. The evidence was so overwhelming on this proposition that the court should not have let the case go to the jury, and after the verdict for the plaintiff on the evidence offered, he should have set the same aside. (4) Starr was a necessary party to this suit; and whether he was a necessary party or not, he was so directly the representative of plaintiff that his admissions are binding on plaintiff. 1 Am. and Eng. Ency. Law (2 Ed.), 703; Railroad v. Fowler, 142 Mo. 670'; Bank v. Bank, 90 Mo. App. 395. He was prima facie a partner. To-rbert v. Jeffrey, 161 Mo. 654; Irby v. Brigham, 9 Humph. (28 Tenn.) 749; Hardy v. De Leon, 5 Tex. 243; Tuttle v. Turner, 28 Tex. 771. (5) 1. Plaintiff’s first instruction is erroneous, because on plaintiff’s own admission contained in his deposition he shows that he had given Starr a half interest in his business. This admission is conclusive against him. Feary v. Railroad, 162 Mo. 105. 2. The instruction is erroneous because it selects out and gives undue prominence to certain facts and ignores others. It accentuates plaintiff’s statement that he only agreed to do the right thing by Starr, and ignores what would be the effect of his having given Starr a half interest in his business. 3. The instruction also ignores an important line of evidence and an important legal principle. It attempts to cover the contingency as to whether Starr was a necessary party, but it ignores the effect of his admissions, if he was jointly interested in the contract, even though that interest was not sufficient to make him a necessary party plaintiff. link v. Wes terman, 80 Mo. App. 596; May v. Crawford, 150 Mo. 528"; Schlotzhauer v. Railroad, 89'Mo. App. 72. “Where a single instruction is given by the court which authorizes a verdict predicated on the facts therein stated to be found, it is bad if it omits other facts in evidence which would authorize a different result. It should embrace all the issues which there is any evidence to support.” Bank v.-Metcalf, 29 Mo. App. 396; Hoffman v. Parry, 23 Mo. App. 30; Seymour v. Seymour, 67 Mo-. 308; Crews v. Lackland, 67 Mo. 621; Stocker v. Creen, 94 Mo. 280; Chipley v. Leathe, 60 Mo. App. 15.

      Lathrop, Morrow, Fox S Moore and Cyrus Crane for respondent.
    (1) What the scope of the letter of March 14, 1900, was, and whether it constituted an order for dimension stone, was a question for the jury. The contract was for rubble stone only. The court was very liberal in permitting all sorts of testimony to be introduced to show what rubble stone meant. It even went so far as to permit the conversations between plaintiff and defendant’s agent, prior to making the contract. Defendant introduced Webster’s definition of rubble stone as follows: “Rough stone as it comes from the quarry; also a quarryman’s term for the upper fragmentary and decomposed portion of the mass of stone. ’ ’ Now, every witness, on the stand who knew anything about the stone business, testified that stone gotten out to a size eight feet long by four feet wide, was not rubble stone. The whole matter was a question for the .jury. (2) Whether plaintiff considered, or should have considered, the letter as an order to begin the delivery of stone under the contract, was a question for the jury. It seems to us that there is not a proposition advanced by appellant, under this head, that is properly for consideration by this court. The arguments are all for a jury, and we do not consider that they are worthy of any discussion. (3) Was Emmett Starr a necessary party to this suit? (a) Starr had no contractual relation with defendant. The utmost that the testimony shows, or tends to show, is that he may have had a half interest in plaintiff’s profits. This did not constitute him a partner with plaintiff, nor make him a necessary party to the action. Bank v. Outkwaite, 50 Mo. App: 124; Daniel v. Stone, 30' Me. 384; Deyerle v. Hunt, 50 Mo. App. 541; Hanson v. Jones, 20 Mo. App. 601; Thompson v. Holden, 117 Mo. 128. (b) Appellant also makes the claim that Starr made settlements with defendant, in full satisfaction for stone furnished to date of payment. This proposition is absolutely without support in the testimony. It is true that Starr did go down to the Armour Packing Company’s plant, on two occasions, to collect money for stone which Nu-gent had furnished; but, on each occasion, payments were made by the Armour Packing Company simply on account — in other words, Starr was sent as a mere collecting agent, to get whatever money he could for Nu-gent. Lionberger v. Pohlman, 13 Mo. App: 123; Gibson v. Hanna, 12 Mo. 162; Grumley v. Webb, 44 Mo. 444; Aull v. Trust Co., 149 Mo. 1. (4) It was a matter for the discretion of the trial court as to whether a new trial should be granted on the ground of newly-discovered evidence: Tootle v. Lysaght, 65 Mo. App. 139; Culbertson v. Hill, 87 Mo. 553; Mayor of Liberty v. Barnes, 114 Mo. 426; Dean v. Chandler, 44 Mo. App. 338.
   LAMM, J.

Nugent, a quarryman, sued defendant corporation for “1,000 perches of footing or heavy dimension stone” sold and delivered by him to it. The theory counted on was a quantum valebat — the reasonable worth put at $1.50 per perch. Deducting payments, recovery was sought for $935.05 with interest.

The answer follows:

“Defendant for amended answer to plaintiff’s petition denies generally each and every allegation therein contained.

“Further answering defendant says there is a defect of parties plaintiff, in that Emmett Y. Starr is a necessary party hereto.”

Unfortunate below, defendant appealed to the Kansas City Court of Appeals from a judgment of $1,015. At its October term, 1903, aided by the oral argument and full briefs, the following opinion by Smith, P. J., was handed down, concurred in by all his brethren of that learned bench:

“The plaintiff and defendant entered into a written contract by the express terms of which the plaintiff agreed to load upon the cars at his quarries 3,500 perches of rubble stone at fifty-five- cents per perch of 2,240 pounds for heavy rubble, and fifty cents per perch of 2,240 pounds for common, as soon as requested by the defendant.

“About six weeks after the date the above contract was entered into, the defendant’s purchasing agent, Mr. Jones, wrote the plaintiff to say that, in ‘loading our stone for footing, that is of course the first stone to be used, we want to get stone of as large bearing face as possible. Our footing course is eight feet in width and we would like to have some of the stone as large as eight feet in length and four feet wide, if you can handle same. "We want as many of them of this character as you can furnish for footings. In loading these cars to-morrow, please give your personal attention to this and see how well you can please us on the deal.’

“It is not disputed that the plaintiff furnished to the defendant 306 perches of rubble and one thousand perches of other stone which was received by defendant and used in the construction of one of its buildings.

“The plaintiff’s contention in that the one thousand feet of stone was not ‘rubble,’ but was what was known among stone masons as ‘footing or heavy dimension stone, ’ and that it was not the kind which he was required under his contract to furnish the 'defendant; or, stated in another way, it was furnished outside of and independent of the contract, and that therefore the price to be charged for it was not governed by that named in the contract for ‘ rubble stone. ’

“The defendant’s contention was, that all the stone received by it was furnished by plaintiff under the contract at the price therein specified.

“It must be conceded that, if all the stone furnished was of the kind called for by the contract, the defendant has paid the full contract price thereof, and is not, therefore, indebted to plaintiff. So, the main issue of fact in the case was as to whether or not the 1,000 perches of stone was all rubble or whether or not it was ‘footing or heavy dimension stone;’ and if the former the plaintiff ought not to have recovered, and if the latter he ought.

“Experienced quarriers and others were called as experts to testify their opinion as to whether or not ‘footing or heavy dimension stone’ are embraced in the definition of the term ‘rubble stone;’ or, in other words, whether these terms are all interchangeable. The plaintiff and his witnesses testified that -‘rubble stone’ meant any irregular sized stone that may be handled without machinery; and by ‘footing or heavy dimension’ stone was understood to be stone taken out of a quarry of a given size.

“Plaintiff testified that, ‘in taking out rubble stone, yon can get in a bench of rock and stick a hole in it, a good big hole, say with a drill, a quarter of an inch bit, and put a charge of powder in it, and you can explode it and spill the rubble all around you, so you get at them and break them up at the same timé so that you can handle them by hand and load them in a wagon by hand; and in getting out dimension stones, you have got to drill them, plug and feather drills, got to have more drills and got to handle them with derricks, and it costs four times as much to get out dimension stone as it does rubble. ’

‘ ‘ The plaintiff further testified that in getting out the eight-by-four and five-by-three stone ordered by defendant, he went on the benches of the quarry, and with a rule laid them off, measured the lengths and widths, made a line, showed the men where to put the tools, plugs and feathers, etc. He further testified that all the stone furnished the defendant except 306 perches of rubble was dimension stone which he handled with a derrick.

“The defendant’s witnesses testified that by the term ‘rubble’ was meant stone of irregular shapes and sizes just as they come out of the quarry — large stones being called ‘heavy rubble’ and small ones ‘light rubble;’ that rubble that could be lifted by hand was called light or common rubble and that which could not was called ‘derrick rubble;’ that ‘derrick rubble’ and ‘heavy rubble’ were the same thing; that any stone that was drilled out with ‘plug and feather’ — that which is so taken out to approximate a certain size in feet and inches — was called ‘dimension stone.’ The defendant’s witnesses all testified that there was no dimension stone included in that furnished by plaintiff to defendant.

“The ease was submitted to the jury whose verdict was for plaintiff.

“I. The questions arising on the record and which we are obliged to decide relate mainly to the action of the court in the giving and refusing of instructions. The defendant objects that the court erred in its action giving the plaintiff’s first, which told the jury, ‘that defendant pleads in its answer that one Emmett Starr is a necessary party to- this action. With reference thereto, the court instructs you that if you find from the evidence that said Starr was not a party to the contract or contracts, if any, made between plaintiff and defendant, and that defendant did not order the stone in question from said Starr, and that the arrangement, if any, between plaintiff and said Starr was that plaintiff agreed either to do the right thing by said Starr in payment for services that said Starr might render plaintiff, or if plaintiff merely agreed to give said Starr some portion of the profits, if any, that he might receive from the defendant on stone furnished it, and this was the full extent of the agreement between plaintiff and said Starr, then you are instructed that Starr is not a necessary party to this action and plaintiff’s right to recover cannot be defeated merely because said Starr is not joined in this action as one of the plaintiffs.’

“This was based on the evidence touching the relation that existed between plaintiff and Starr, and in our opinion was a correct expression of the. law. [Hanson v. Jones, 20 Mo. App. 601; Bank v.Outhwaite, 50 Mo. App. 124; Deyerle v. Hunt, 50 Mo. App. 541; Thompson v. Holden, 117 Mo. 118.]

“It is clear from the reading of the deposition of the plaintiff that in using the expression ‘half interest in the contract,’ he meant half interest in the profits of the contract. He did not without qualification or explanation depose that he gave Starr a ‘half interest’ in the contract; but, on the contrary, that he gave him a half interest in the profits of such contract.

“There is nothing in any evidence adduced which tended to prove that Starr in any way was to share in the losses sustained by plaintiff in furnishing the stone to defendant, or that he had any community of interest in plaintiff’s property so that he could dispose of it, or that there was anything in their business relations that constituted a partnership.

“II. The petition alleged that the plaintiff furnished the defendant ‘footing or heavy dimension stone.’ The plaintiff’s second instruction told the jury that if he delivered to defendant ‘ footing or heavy dimension stone,’ and that such stone was not of the kind specified in the contract between plaintiff and defendant, but was of a greater market value, and that plaintiff did not furnish such stone under said contract and that the same had not been fully paid for, to find the issues for plaintiff.

“It is objected that this instruction is erroneous in that it authorizes a recovery if plaintiff furnished either footing or dimension stone. As we understand the evidence, dimension stone is often used for footings and in that the terms become synonymous; but neither term is the synonym of rubble.

“The evidence, we think, was sufficient to authorize the instruction.

“III. The defendant’s objection that the plaintiff’s third, which told the jury that if it found for plaintiff to allow him the reasonable market value of the stone so furnished, if any, not to exceed the amount sued for, was erroneous in éxpression cannot be sustained.

“It was distinctly testified by the plaintiff that the 306 perches of rubble furnished under the contract had been paid for. The action was brought to recover for footing or heavy dimension stone and it was the reasonable market value of that to which the instruction applied, and as to this could not have been misunderstood by either court or jury.

“IV. It is further contended that the plaintiff’s fourth, which declared, ‘by admitting that the absent witnesses, Starr and Triplett, would, if present, testify as read to you from the application for a continuance, does not thereby admit that their testimony is true, but has the right to disprove the same by the testimony of other witnesses,’ in the light of Freeman v. Railroad, 95 Mo. App. 94, was erroneous. The instruction here is unlike that set out in the case j”sf cited, as will be seen by a comparison of them. The criticism of that instruction is inapplicable to- this.

“V. Of the twenty-two instructions requested by defendant the court gave ten, which, it seems to us, submitted every conceivable defense available to it Its complaint that the court erred in refusing its third cannot be upheld. By it the court was requested to declare to the jury that, ‘as to all stone furnished by plaintiff to defendant of sizes and shapes, one or both, in pursuance of the directions of witness Evans, they will find in favor of defendant. ’

“The eight-by-four stone ordered by Mr. Jones’s letter were larger than was required and so the contractor, Evans, ordered plaintiff to deliver them of the size of five-by-three. It appears from the evidence that 900 of the 1,000 perches of footing* or heavy dimension stone furnished were of the latter kind, so that the instruction would, if given, have in effect cut plaintiff out of a recovery for nine-tenths of the stone delivered by plaintiff and received and used by defendant in the construction of its building. It did not follow because the testimony of Evans in respect to ordering the stone of the latter kind was excluded from the consideration of the jury that the plaintiff was not entitled to recover for the market value of such stone.

‘ í There was other evidence, which was undisputed, that the plaintiff delivered the stone to defendant and that it used the same in the construction of its building, and whether ordered or not by Evans it was, under the well-settled rules of law, liable for the reasonable value of such stone. [Mfg. Co. v. School Dist., 54 Mo. App. 371; Yeats v. Ballentine, 56 Mo. 530; Keith v. Ridge, 146 Mo. 90; Muller v. Gillick, 66 Mo. App. 500.]

“VI. We find nothing in the evidence to justify the defendant’s fifth and sixth, that, if Starr accepted payment for the stone delivered at. fifty-five cents per perch, plaintiff could not recover, and that plaintiff was bound by the action of said Starr in making settlements with Jones in the same manner as though'he had made such settlements himself. There was no evidence introduced to authorize the conclusion that the partnership relation existed between plaintiff and Starr, and that Starr in receiving the payment for stone delivered was acting in that capacity and was authorized to accept fifty-five cents per perch.

“It appears that Starr at the time he made the last collection had never heard that there was any contract price for the stone delivered, because he stated that, when Jones asserted that the stone had been delivered under a contract for a stipulated price, ‘if that was so he did not see how more could be expected.’

“As soon as plaintiff was advised of the contention of Jones he at once went to see him and then told him that the stone which he had ordered had not been delivered under the contract, and that he did not intend to accept the price called for by it.

“Previous to the time when the fourth and last payment was made to Starr there had been no intimation by Jones or anyone else for defendant that the price of all the stone delivered should be governed by that specified in the rubble contract. All the evideuce tended to show no more than that the several payments were made on account. So far as we are able to discover, there is nothing in the evidence tending to show that Starr in any capacity undertook to or did accept fifty-five cents per perch in full payment for all the stone delivered.

“VII. The court was requested by defendant’s seventh, to tell the jury that if the defendant by the letter of March 14, 1900, ordered plaintiff to furnish stone under the contract, and that in pursuance thereof he furnished that sued for, there could -be no recovery. And by its eighth it was further requested to tell the jury that defendant by its letter of March 14, 1900', ordered stone under the written contract, and to so find.

“The former of the last two instructions is but little more than a repetition of the defendant’s eleventh and fourteenth which were given by the court. The issue sought to be submitted by such former instruction was fully covered by the said eleventh and fourteenth, and also by the plaintiff’s second.

“As the' defendant requested and was given instructions submitting the issue to- the jury, it is in no situation to complain of the action of the court in refusing its eighth.

“VIII. An examination of the evidence has not satisfied us that the court made the erroneous rulings as claimed by defendant in respect to the admission or rejection of evidence. The court was extremely liberal in permitting the defendant’s witness, Mr. Jones, to testify as to the conversations between him, witness, and plaintiff which took place before the contract was entered into as to what they understood by ‘rubble stone.’ Not only this, but the court permitted Mr. Jones to further testify that the plaintiff knew the purpose for which the stone was ordered and that it was going into the foundation of the building then about to be erected by defendant. It is true it refused to permit tbe defendant to show its unexpressed intentions in making the contract and writing the letter, but this refusal was, we think, a proper ruling. [County v. Wood, 84 Mo. 489; Miller v. Power Co., 133 Mo. 205.] Nor do we perceive any error in the action of the court in rejecting the defendant’s offer to prove the price it paid others under contracts made with them for similar stone, because this did not tend to prove the market price at the place of delivery. [Cobb v. Whitsett, 51 Mo. App. 146.]

‘ ‘ IX. Finally, the defendant insists that the court erred in its action overruling the motion for a new trial. While the newly-discovered evidence is contradictory of that of the plaintiff’s witnesses, it is more or less cumulative of that previously adduced by it at the trial.

“We see nothing in the affidavits that would justify us in condemning the action of the court in refusing to grant the defendant a new trial on the ground of newly-discovered evidence. The testimony of the witnesses given at the trial greatly conflicted, but the whole case was fairly submitted to the jury, resulting in a verdict for plaintiff which we must regard as conclusive on us.

“The judgment will accordingly be affirmed. All concur. ’ ’

It seems the decision was criticised with fervor and uncommon keenness in a motion for a rehearing, fortified by a formidable brief; but the motion was in turn denied. Thereat counsel filed a motion to transfer the cause to this court, and that motion was sustained. Defendant’s counsel may be allowed to state the ground upon which the transfer was made in their own words, viz.: “The case . . . was by that court certified to this court for the reason that in the opinion, of one of the judges the case was in conflict with the case of Torbert v. Jeffrey, 161 Mo. 645.”

It will do to say in passing that the litigation has been pending nearly as long' as Solomon was building his temple at Jerusalem. That the case was tried, nisi, before an able judge (Teasdale) whose untimely death put out a bright light in jurisprudence. That at every stage and bn both sides case and court were aided by alert counsel, adept in legal thrust and parry (every allowable carte and tierce) and soundly grounded in the law.

At one 'stage it -was contended that a constitutional point was involved, to-wit, the statute permitting nine jurymen to render a verdict, and that our jurisdiction might hinge on that statute; but that question has so long been closed it is deemed obsolete and laid away on the shelf with other curios and “points, no-points” in the law. Counsel do not press it now.

We shall adopt the opinion of Judge Smith as our own, submitting, however, to further consideration the error assigned in giving instruction numbered 1 for plaintiff, in which instruction there is said to be laid away the live question of our jurisdiction.

Counsel argue that said instruction, which gave to the jury the rule by which to allow or disallow a partnership between Nugent and Starr, did not lay down the right standard to measure the existence or non-existence of a partnership. They argue that, in sustaining that instruction, the opinion is in conflict with Torbert v. Jeffrey, supra.

Pacts going to a partnership between Nugent and Starr and the latter’s connection with the case not appearing in the petition, the issue was properly raised by the answer. If that partnership existed the title to the pay for the stone in suit was in the partnership of Nugent and Starr and not in Nugent alone. Defendant was vitally interested in foreclosing the possibility of another suit and further liability; and, hence, its challenge to the right of recovery was well made by answer.

Attending to the. only evidence directed to the issue of partnership, we copy from defendant’s brief in this court, viz.: ‘ ‘ The only evidence on this proposition was the evidence of the plaintiff on the trial, his admissions contained in his deposition read on the trial and the evidence of Emmett Y. Starr in defendant’s affidavit for a continuance. This evidence was as follows:

“Nugent: (Oral evidence.)

“Q. Now then, Mr. Nugent, just getting back to the matter I asked you about. State what Starr’s relation to you was at the quarry and in that business? A. Why, I told Mr. Starr when Mr. Kinlon refused to help me with the quarry — he got a big sewer contract here — I says: ‘Mr. Starr, I saw Mr. Kinlon and told him I would have to have somebody to tend these cars’ — there were hardly any of them loaded when I got down there—

“ Q. Go ahead. A. I told him there weren’t any of them loaded down there and somebody would have to look after it, and Mr. Kinlon had the lease on this quarry, and was going partnership with me; I told him it was time to show up and help me out on this deal; so he told me all right. ‘ Yery well,’ he says, ‘why don’t you get Starr to help you out; he has got some teams and he can do that outside business for you, and you can do what is right with him;’ so I told him, ‘all right.’ I says [to Starr, as we see it] maybe you better go to work and let somebody else drive your team, and I says, tend to seeing these cars loaded and weighed, and see that they don’t get overloaded out there on the track, and leave your teams up there, I says, and I will do the right thing with you, and maybe give you an interest in that quarry, and if I don’t give you an interest in it I’ll do the right thing by yon anyway; so he said, ‘All right;’ he went and consulted his father ; his father told him he could—

“Mr. Smith: Wait a minute.

“Q. Never mind what his father said. And then he went to work there? A. Yes, sir.

“Q. Now, when yon got through with this thing, or when you stopped there, did you have any sort of settlement with him? A. Not a thing, only I just turned him over my tools; he got a job of rip-rapping and I turned over my tools and he has got them yet until I do settle with him.

“Q. He has got them until you compensate him? A. Yes.

“Q: And that was all there was to it, till you do the fair thing, whatever that is? A. Yes, sir.

“Q. What is agreed to-, and he holds your tools as security for that? A. Well, he holds the tools anyway, I suppose, for security for it.

“Nugent: (Deposition.)

“Q. Did you handle this contract alone or did you have someone else with you on it? A. I took the contract alone, but the latter part I took a man in with me by the name of Starr. I told him I would give him a half interest in it and he was to furnish the teams and look after it.

“Starr: (Affidavit for continuance.)

“After the making of said contract I made an agreement with Mr. Nugent by which I acquired a half interest in his contract. I was to do the hauling and delivering of the stone and was to get one-half of the-profits. This agreement with Nugent is still in full force and effect.”

On the foregoing evidence, plaintiff’s instruction numbered 1 must stand or fall. It reads:

“You'are instructed that defendant pleads in its answer that one Emmett Starr is a necessary party to this action. With reference thereto, the court' instructs you that if you find from the evidence that said Starr was not a party to the contract or contracts, if any, made between plaintiff and defendant, and that defendant did not order the stone in question from said Starr, and that the arrangement, if any, between plaintiff and said Starr was that plaintiff agreed either to do the right thing by said Starr in payment for services that said Starr might render plaintiff, or if plaintiff merely agreed to give said Starr some portion of the profits, if any, that he might receive from the defendant on stone furnished it, and this was the full extent of the arrangement between plaintiff and said Starr, then you are instructed that Starr is not a necessary party to this action and plaintiff’s right to recover cannot be defeated merely because said Starr is not joined in this action as one of the plaintiffs. ’ ’

Was the instruction good? We think so, because:

It is not only in line with the authorities cited by Smith, P. J., but is in line with Torbett v. Jeffrey, supra. In that case, Brace, P. J., said:

“In determining whether the relation between the parties constitutes a partnership', their intention governs as that is disclosed, not by particular expressions, but by the nature and effect of the whole contract. . .

“ ‘Participation in the profits and losses of a going business or undertaking affords the usual, and, perhaps, the most cogent test of the existence of an intention to form a partnership'. An agreement for such participation is not, however, a conclusive test, and does not absolutely constitute a partnership as a conclusion of laiv, if other circumstances show that no partnership icas intended. It is only prima-facie proof which may be rebutted by evidence of other facts and. circumstances[17 Am. & Eng. Ency. Law (1 Ed.), 835a; Donnell v. Harshe, 67 Mo. 170; Musser v. Brink, 68 Mo. 242; McDonald v. Matney, 82 Mo: 358; Kellogg Newspaper Co. v. Farrell, 88 Mo. 594; Clifton v. Howard, 89 Mo. 192; Thompson v. Holden, 117 Mo. 118; 1 Bates on Partnership, secs. 25 and 29.]

“And as a community in losses is a necessary corollary of a participation in the profits, a partnership may as well be predicated of an agreement to share net profits, as of an agreement to share the profits and losses, and the same rule applies. Hence, participation in the profits of a business raises a presumption of the existence of a partnership. This presumption is not conclusive, but if not rebutted is sufficient to establish a partnership.’ [17 Am. & Eng. Ency. Law (1 Ed.), 841b; Lengle v. Smith, 48 Mo. 276; Philips v. Samuel, 76 Mo. 657; Fourth Natl. Bank v. Altheimer, 90 Mo. 191; 1 Bates on Partnership, sec. 30; Corey v. Cadwell, 86 Mich. 570.]

“When both parties furnish the capital and are to-share in the profits, ordinarily no question can arise as to the existence of a partnership. When one party contributes to the capital and the other the labor, skill or experience, for carrying on a joint enterprise, such a combination constitutes a partnership unless something appears to indicate the absence of a joint ownership of the business and profits. [17 Am. & Eng. Ency. Law (1 Ed.), 842-3.] Such absence of joint ownership is indicated luhen from the whole contract it appears that the party contributing his services is to receive a share of the profits merely as compensation for his services, as illustrated in some of the cases cited. But it does not appear, from the fact that one part of the business is to be conducted by one .of the parties and the other part by the other party, nor by the fact that the capital is to be returned to the partner putting it in before tbe profits are shared. These are but the ordinary incidents of a partnership.”

In Thompson v. Holden et al. (Warren, appellant), 117 Mo. l. c. 128, it was said: “The rights of the parties must be deduced from their intention, as shown by the agreement read in the light of surrounding circumstances. It is well settled that the mere participation, by one, in the proceeds of a transaction or business does not per se constitute him a partner therein. [McDonald v. Mat-ney, 82 Mo. 358; Kellogg Newspaper Co. v. Farrell, 88 Mo. 597; Gill v. Ferris, 82 Mo. 156; Ellsworth v. Pomeroy, 26 Ind. 158; Blair v. Shaeffer, 33 Fed. 218.] ”

Persons may so act with, and hold themselves out to, strangers that they may be estopped to deny a partnership, though their intentions may not have been to make one. But there is no question of estoppel here. Here the question of partnership' must be referred alone to the agreement between Nugent and Starr, as read in the light of their intentions and conduct. Giving heed to some other facts disclosed by the record in this connection, it appears that the agreement between Starr and Nugent was not made until some time after plaintiff and defendant contracted. It appears that Nugent held the lease on the quarry and that Starr had no interest in that; that Nugent owned the quarry tools and appurtenances and Starr had no interest in them. It appears that the running arrangement between Nugent and Starr for adjusting their liability-inter sese was that Starr took Nugent’s tools as collateral security and looked to Nugent for his pay. It is shown, too, that Starr acted on behalf of Nugent in collecting installments of pay for the stone “on account.” So far as the defendant’s evidence discloses, it does not appear that Starr informed defendant of the by-arrangement between him and Nugent. It is true that in an affidavit in support of the motion for a new trial, nisi, Starr says lie informed defendant that he was Nu-gent’s partner; but the facts in that affidavit go alone to the discretion the court exercised in refusing to grant a new trial and do not rise to the plane of substantive evidence or touch the merits of the case on appeal.

The instruction assailed was not a general instruction covering the whole case and requiring the jury to find for plaintiff on the hypothesis put therein; it was directed to only one phase of it, and was clearly based on plaintiff’s evidence and well within the bounds of the law. If, now, defendant desired more instructions on the issue of partnership or no partnership, it should have applied to the court for further instructions, based on its own theories. This it failed to do and may not complain- of non-direction. "We find- no fault with the instruction. It told the jury that if they found the ultimate facts put to them (and which there was evidence to support) to be true then there was no partnership and Starr was not a necessary party, and we think so ourselves.

Counsel for defendant in a new brief in this court elaborately cover the whole range of the case on every point urged, nisi, and in the Kansas City Court of Appeals. They argue, for instance, there was error in refusing to grant a new trial on newly-discovered evidence. But that question went to the sound discretion of the trial court, was wrapped up with matters of diligence, and with the question whether the newly-discovered evidence was merely cumulative, and was well disposed of.

Finally, a faithful examination of the whole record but confirms what might have been forecasted as reasonable, to-wit, that the opinion of Smith, P. J., laconically, compactly but justly outlines the case, states the contentions pro and con, and properly disposes of all assignments of error demanding judicial determination. Finding no fault with, it on any score, it is approved by and large.

The foregoing, being so, the judgment of the circuit court should be affirmed. Let it be so ordered.

All concur.