source: Caselaw Access Project

author: LAMM, J. PER CURIAM:

license: Public Domain

text:
    FANNIE EPPSTEIN v. MISSOURI PACIFIC RAILWAY COMPANY, Appellant.
    In Banc,
    June 20, 1906.
    1. NEGLIGENCE: Contributory: Perilous Position: Seen or Unseen: Ordinary Care. Where a pedestrian sui juris, unconscious of his peril, has negligently placed himself in a position of danger so far away from the danger that his death may be averted by the use of ordinary care by those who see him and who use the dangerous instrumentality, his death is actionable. And if, under this hypothesis, the person so exposing himself to danger (for example, the danger from a railroad train approaching from behind) is at a place where those controlling the dangerous instrumentality have no reason to expect a clear track, but have reason to expect the presence of people, then it makes no difference whether such person is seen or not, if to look is to see, and if thereafter by the use of ordinary care the danger may be averted. And tested by that rule the facts of this case authorized a recovery.
    2. -: -: -: -: -: Implied Invitation to Use Railroad Track: Question for Jury. Where the use by the public of a railroad track as a foot-path was such that it becomes a mixed question of law and fact whether those operating a train ther(eon had reason to anticipate the presence of people there, that issue should be submitted to the jury as a fact to be determined by it.
    3. -: -: -: -: -: -: Notice of Use: How Proved. Knowledge or notice of the user by the public may be proved by the existence of paths well worn by human feet, and by gaps in the fences, stiles and gates appurtenant to such path, by the long-continued going to and fro of people more or less constantly, and by the presence of schools, places of recreation, and the use, of the track by visiting pedestrians and habitues.
    4. -: Ordinary Care: Preoccupied Pedestrian on Track: No Warning. An aged pedestrian stood, in a preoccupied attitude, on defendant’s railroad track, which had long been used as a footpath, his back to the approaching train, looking at a heavy train passing on a parallel track ten feet away, oblivious to the approach of defendant’s train behind him, and could not have heard the noise of defendant’s light train because of the noise of the other. Held, that defendant’s servants, in not ringing the bell or sounding the whistle, as the ordinance required, did not perform the ordinary care which the law requires in such cases.

      5. -: Instruction: Omission of Concurrent Act. Where the case and the instructions proceeded on the theory that the deceased was negligent in placing himself in a position of danger, and that thereafter, being oblivious of his danger, the continuing danger of defendant, which might have been avoided by ordinary care, caused his injury, an instruction, which at bottom embodies the humanitarian doctrine, is not error for that it ignored the deceased’s alleged concurrent act of negli- • gence.
    6. REMARKS OF COUNSEL: Appellate Practice. Attorneys in their argument to the jury should not discuss the significance of refused instructions. But where no exception was saved to the ruling of the court on, objection made to such remarks, and they were not made a ground of the motion for new trial, they cannot be considered on appeal.
    Appeal from Cooper Circuit Court. — How. Jas. E. Hazell, Judge.
    Affirmed.

      Martin L. Clardy and John Cashman for appellant.
    (1) The court erred in refusing to give defendant’s instruction in the nature of a demurrer to the evidence at the close of plaintiff’s case, (a) The evidence offered hy plaintiff proved beyond a doubt that • deceased was a trespasser. With this, there is a total failure of any proof that the persons in charge of defendant’s train saw the deceased upon the track in time to have stopped the train before it struck him. Indeed, the evidence proves that no person on the train saw deceased at all. In this state of the evidence there was nothing to submit to the jury. Carr v. Railroad, 195 Mo. 214; Baker v. Railroad, 98 Mo. 50; Carrier v. Railroad, 175 Mo. 470; Yan Bach v. Railroad, 171 Mo. 338; Engleking v. Railroad, 187 Mo. 158; Koegel v. Railroad, 181 Mo. 379; Coatney v. Railroad, 151 Mo. 35; Moore v. Railroad 176 Mo. 528; Loring v. Railroad, 128 Mo. 349; Tanner v. Railroad, 161 Mo. 497. (b) Even if it be conceded tbat deceased was, as contended by plaintiff, a licensee, still plaintiff cannot recover, because all the evidence is tbat deceased was upon, defendant’s track for his own convenience and pleasure, and this alone. In this state of facts defendant owed deceased no - duty to keep a lookout for him, by those in charge of the train. Carr v. Railroad, supra; Moore v. Railroad, 84 Mo. 485; Straub v. Soberer, 53 Mo. 43; Barney v. Railroad,- 126 Mo. 389; Morgan v. Railroad, 7 Fed. 79; Wencker v. Railroad, 169 Mo. 592; Sweeney v. Railroad, 10 Allen 372; Cusick v. Adams, 115 N. T. 55; Elliott on Railroads, sec. 1250. (c) Plaintiff’s evidence discloses a case of such inexcusable abandonment by deceased of any care for his own safety, and such a reckless disregard of that watchfulness-and precaution which the law demanded of him in the position in which he placed himself, that he cannot, in any event, recover in this case, especially where, as here, there is an absolute absence of any proof that those in charg’e of the train ever saw deceased before he was struck, or of any reckless, willful or wanton disregard of human life by the persons in charge of the train. Davies v. Railroad, 159 Mo-. 1; Tanner v. Railroad, 161 Mo. 497; Carrier v. Railroad, 175 Mo. 470; Engleking v. Railroad, 187 Mo. 158; Coatney v. Railroad, 151 Mo. 35; Buyer v. Railroad, 174 Mo. 344; Koegel v. Railroad', 181 Mo. 379; Holwerson y. Railroad, 157 Mo. 216; Yan Bach v. Railroad 171 Mo. 338; Peterson v. Railroad, 156 Mr. 552; Sharp v. Railroad, 161 Mo-. 214; Culbertson v. Railroad, 140 Mo. 35; Yogg v. Railroad, 138 Mo. 172; Watson v. Railroad, 133 Mo. 246; Maxey y. Railroad, 113 Mo. 1; Powell v. Railroad, 75 Mo. 80. (d) The law presumes that the engineer or the persons in charge of the train discharged their duty, and in the absence of all evidence to the contrary, this presumption is the law of the case, as so often declared by this court. Buch v. White, 85 Mo. 356; Long v. Company, 68 Mo. 431; Hammond v. Gordon, 93 Mo. 226; State ex rel. v. Bank, 120 Mo. 169; Lenox v. Harrison, 88 Mo. 491; State ex rel. v. Williams, 99 Mo. 302; Mathias v. O’Neal, 94 Mo. 528; Yarnell v. Railroad, 113 Mo. 579; Henry v. Dulle, 74 Mo. 451. (e) Even if it he conceded that those in charge of the train did actually see deceased upon the track, they had a right to presume that he would exercise usual and ordinary precautions of a person who voluntarily places himself in a position where he is liable to he overtaken hy engines or trains at any time. This presumption may he indulged hy the trainmen until the actions or attitude of deceased assume a course or state which indicates to a person, in the exercise of ordinary judgment, that deceased was wholly oblivious of his peril. If, after the trainmen became aware that deceased was unmindful of his dangerous situation, they .acted promptly and used the means at their command to avoid injury, in a way consistent with the safty of those in their charge, defendant cannot he held liable. Carrier v. Railroad, 175 Mo. 470; Buyer v. Railroad, 174 Mo. 344; Engl eking v. Railroad, 187 Mo. 158; Boyd v. Railroad, 105 Mo. 371; Van Bach v. Railroad 171 Mo. 338; Coatney v..Railroad, 151 Mo. 35; Barker v. Railroad, 98 Mo. 50. (2) The failure to ring the hell, or give the signal, is not shown to have contributed to the injury, nor did the speed of the train contribute to the injury. It is then immatial whether defendant failed to perform either of these duties. The acts and conduct of deceased being grossly negligent, and this negligence continuing up to the moment of the accident, concurred with any negligence of which defendant’s servants may he guilty, and, therefore, precludes a recovery in this case. Koegel v. Railroad, 181 Mo. 379; Peterson v. Railroad, 156 Mo. 552; Green v. Railroad, 90 S. W. 805; Schmidt v. Railroad, 90 S. W. 138; Maxey v. Railroad, 113 Mo. 1; Powell v. Railroad, 76 Mo. 80. (3) From the failure of defendant to introduce the engineer and fireman, or other members of the train crew to testify at the trial, there can be no legal presumption raised against defendant as to the conduct of the men in charge of the train. The rule is that where a particular person is equally within the control of both parties and is not called as a witness, there is no ground for any presumption against either. Kerstner v. Yorweg, 130 Mo. 201; Bank v. Worthington, 145 Mo. 103.

      W. G. & G. T. Pendleton and W. M. Williams for respondent.
    (1) The testimony amply justified the court in submitting the case to the jury, and the verdict is fully supported by the evidence. Pedestrians, citizens of Boon-ville and farmers living in the vicinity had for many years, without objection on the part of defendant’s servants and agent, used the railroad track at the place where deceased was hurt, and north and south thereof, as a pathway in going to and returning from the business part of the city. This had continued so long that defendant’s servants in charge of its trains must be held to have had notice thereof. The custom must have been known to the defendant, for, in addition to the general use of the track for this purpose, which had existed for years, it posted signs immediately after the injury, warning people not to go on the right of way. The engineer in charge of defendant’s locomotive had “reasonable ground to expect or anticipate the presence of persons ’ ’ on the track about that place, and it was his duty to keep a look-out for the presence of such persons thereon. Fearons v. Railroad, 180 Mo. 222; Rayburn v. Railroad, 187 Mo. 573; Morgan v. Railroad, 159 Mo. 262; Murrell v. Railroad, 105 Mo. App. 93; Gunther v. Railroad, 95 Mo. 286. “It has been repeatedly held by this court that greater care is to be exercised by persons managing a train of cars within the limits of a town or city than is required in the country. In towns caution should always be used.” Frick v. Railroad, 75 Mo. 609. (2) Defendant’s servants in charge of its train, with the slightest care upon their part, and by merely looking ahead of them, conld have seen deceased for at least three hundred yards before he was struck, and in view of the dangerous machinery which they were handling, and the long-continued practice of people to walk on said track, they should have been on the look-out; and had they looked they would have seen that the attention of the deceased was drawn to the Missouri, Kansas & Texas freight train coming from the south on a track parallel with their own, and that he was looking at said freight train with his hand shading his eyes, and was oblivious of the approach of defendant’s train from the north, and that some warning or signal was necessary in his perilous situation. Defendant’s servants wholly failed to sound the whistle, ring the hell or give him any warning whatever, and in this there was culpable negligence. Morgan v. Railroad, 159 Mo. 262; Fearons v. Railroad, 180 Mo. 222; Thomas v. Railroad, 39 L. R. A. 399 ; Pickett v. Railroad, 30 L. R. A. 257. (3) The ordinance of the city of Boonville read in evidence required the hell to he rung contantly while the locomotive was passing through the city. This was not done nor was any other signal or warning given to deceased before the train struck him. The failure to ring the hell, as required by the ordinance, was negligence per se. Eswin v. Railroad, 96 Mo. 290; Keim v. Railroad, 90 Mo. .314; Burger v. Railroad, 112 Mo. 238.
   LAMM, J.

This is a suit by the widow of Yeit Eppstein to recover statutory damages for the death of her said husband through the alleged negligence of defendant railroad company. To reverse a judgment in her favor, defendant appeals.

The petition counts on the following grounds of recovery:

First: That Mr. V. Eppstein was killed on defendant’s track in the city of Boonville, where at the time there was an ordinance in force providing that no engine or car should he run at a greater rate of speed than five miles per hour and that the bell of each locomotive should be rung continuously while such engine is passing through the city — one of the complaints being that defendant negligently violated this ordinance and by such violation caused his death.

Second: (to borrow the language of the petition): “Plaintiff . . . states that on the 7th day of March, 1902, the plaintiff’s said husband, Yeit Eppstein, was walking southward on the track of said defendant’s railway about one half mile south of defendant’s station in said city of Boonville, and within the limits of said city, and where the track was level and straight for a long distance and which for many years pedestrians had been accustomed to use as a road and foot path by the forbearance and tacit consent of defendant. That at the time and place aforesaid, and while deceased was so walking on defendant’s said railway track, he was run against and struck by a locomotive attached to a train of cars, belonging to the defendant, and which approached him from the rear, whilst the same was being run, conducted and managed by the agents and servants of the defendant, and by reason of being so struck and run against was bruised and wounded and from the effects thereof died. That the injury resulted [sic] in the death of plaintiff’s said husband as aforesaid, was, occasioned by the negligence and unskillfulness of the defendant’s said servants and agents in operating said locomotive and train of cars in this, to-wit: That said servants and agents saw or by the exercise of reasonable diligence could have seen, in time to avert said injury, the dangerous position in which plaintiff’s deceased husband was situated, and seeing, or being, by the exercise of reasonable care and diligence, enabled to see the imminent peril in which her said husband was placed, and that the deceased, was unaware of the near and dangerous approach of said locomotive and train of cars, negligently failed to sound the usual and ordinary signal in time to avert the said injury, and did not at any time before the injury to her said husband, either ring the bell, sound the whistle or give any other signal by which her said husband might be warned of the near and dangerous approach of said locomotive and train of cars, and negligently and carelessly failed to use the air-brakes or other appliances provided for stopping said train, and negligently failed to use the appliances provided and at hand for putting said train under control and stopping same before it struck her said husband, but on the contrary thereof, recklessly, negligently, willfully and wantonly ran its said locomotive and train against the plaintiff’s said husband, as aforesaid.”

The answer pleads the general issue, contributory negligence, and that Eppstein was a trespasser.

The reply put in issue the new matter in defendant’s answer.

At a jury trial defendant, introducing no evidence, stood on plaintiff’s case. Its demurrer to plaintiff’s evidence being overruled, it saved an exception. Objections were made and exceptions saved to the giving of certain instructions for plaintiff, and to the refusal of certain instructions asked by defendant. ' Contentions are pressed here by appellant relating to the giving and refusal of instructions and relating to certain remarks made arguendo by counsel for respondent to the jury. But no error relating to the admission of evidence is assigned in appellant’s brief. One such suggestion is made in appellant’s statement, whereby the deposition of one Isenberg is challenged. Of this suggestion, it may be said that it is true the introduction of this testimony was objected to, but no exception was saved to the ruling of the court, nisi, and hence the matter is apparently abandoned as a ground of reversal.

Appellant’s main insistence is that there was reversible error in refusing to give its instruction in the nature of a demurrer to the evidence, and this insistence seeks the facts. Attending, then, to the facts, the case made is this: Mr. Eppstein was upwards of seventy-four years of age. His eyesight was good, such, for example, as might be inferred from the fact that, while he wore glasses to read, he could see the time shown by his watch without putting them on. He was as active as an average man of fifty. In full daylight, between 8 and 10 o’clock of the morning of March 7, 1902, a day described by one witness as a cold, winter day, Mr. Eppstein was walking south within the city limits of Boonville, and midway between the rails of a straight portion of appellant’s track leading from Boonville to Tipton. There is an upgrade there to the south. He had about his neck and shoulders a shawl he was accustomed to wear, though there is no evidence it muffled his ears or in any wise interfered with his hearing, and the quality of his hearing was such that his family had no need to repeat questions or observations in order to elicit his attention or make him understand. In short, his hearing may be conceded prime for one of his years. At that precise time there was approaching him in the rear, running south at from 8 to 10 miles an hour, a light passenger train of appellant’s, consisting of two coaches, a baggage car, tender and locomotive. Whether this train was running on a regular scheduled time, or whether off time does not appear. Neither does it appear whether Mr. Eppstein knew of the schedule time, if any. In this condition of things and under these circumstances, without ringing its bell or giving any other warning, the locomotive ran hini down and inflicted mortal wounds upon his skull, legs and body, so crushing him as to render him unconscious, from the resulting shock of which wounds and consequent waste of blood he presently died without regaining his sénses. That he was seen by appellant’s train crew is inferable from the fact that the train stopped quickly — so quickly that the rear coach did not pass his body, and thereupon they took him on board and backed half a mile or so to appellant’s station. But there is no evidence they saw hipa before they ran him down, other than might be inferred from the fact that he was in their plain eyesight for, say, 300 yards before the engine struck him, provided, of course, such servants were in position and on the look-out.

Uncovering, at this point, further details of the environment and accident, it appears that parallel with appellant’s track and about ten feet away, for a mile or more at the locus in quo, is the main track of the M., ,K. & T. railroad, somewhat elevated and built up, by a fill and rock ballast, higher than appellant’s track. At that immediate time, on said M., K. & T. track, there was, running down grade and north towards Boonville, an M., K. & T. freight train of thirty-five cars. It was going slow, say, six. or seven miles an hour, but making a good deal of noise. As this train on the M., K. & T. track approached Mr. Eppstein, standing on the Missouri Pacific track, he stopped, raised his right arm, put his right hand shield-like above his eyes and from thence forward he gazed attentively and in an attitude of fixed and absorbing interest at the M., K. & T. train for some little while, first as it approached and then as it was passing him. Plis face and vision were towards the south, and, standing in that rigid and absorbed attitude, with his arm so raised and his hand so employed, appellant’s train, as said, slipped on the old man from behind and killed him unannounced.

There is not an iota of evidence that he at any time was conscious of the approaching train at his rear or of the imminence of his danger. The petition and the evidence present a case in which decedent put himself voluntarily in a place of peril and, by his act of so putting himself in such peril, was guilty of negligence.

The turning and controlling issue in the case we now approach, and that issue is, assuming Mr. Eppstein’s negligence in so locating himself, was the place of such character that appellant company had reason to anticipate the presence of persons on the track and thus did it come to owe them a duty to look, to see and to warn? On this score the evidence, without detailing it witness by witness, tended to show the following further facts:

Somewhat north of the place and adjacent to the track are the grounds of a cadet academy, the Kemper School. On the grounds of Kemper School is an athletic field where athletic training is in progress during springs and autumns, and where athletic games are played. Somewhat south of the place and adjacent to the track, still in the city limits, are the fair grounds where, at least up to a year or so prior to the accident, fairs were held. At the corner of these grounds, next to the track and closest to the business portions of the town, is a gap in the fair grounds fence. This fence is of wire and some of its intermediate strands have either been cut out or else they haye been elevated and nailed to a post, as we interpret the evidence, so as to permit ingress to and egress from said fair grounds by pedestrians. One of the witnesses described this gap in this way: “The wires is nailed up in the fence with a post in there to hold the wires up and there is a gap where everybody passes through there. ’ ’ One witness suggested there had been a gate there, but the suggestion is put into the record more as a guess than otherwise. It is not shown who put these wires in that condition or who made the gap, but the evidence indicates that the wires were in. such manifest fixed position so long as three or four years and likely more. Leading into the fair grounds, through this gap, from appellant’s railroad track is a well-worn foot-path, referred-to by some of the witnesses as a “big path.’’ The testimony is conclusive that the path was worn by footmen and the broad fact is inferable that it was made by pedestrians using the track of appellant from the business portions of Boonville to the said corner of the fair grounds, where they diverged and went into the fair grounds, or elsewhere. But the record does not leave the fact alone to inference, because it was shown that, when the fair grounds were in use at any timé, many people (estimated at hundreds daily) used appellant’s track and said path to go to said grounds. It was shown’, furthermore, that a similar use was made of the track from the business portion of the city by those interested in athletic events occurring on the Kemper School grounds. This part of the record is summarized by appellant in its statement, as follows: “The evidence also tends to show that during the spring time persons would walk along this track going to baseball games at the Kemper School grounds, and in the fall of the year persons would go along this track to witness football games.” While indefinite in extent, and the product somewhat of inference, it may be said to be established that there was also a more or less constant use of this track for an extended time by Boonville people for purposes of recreation and pleasure, as well as for business for those who had business in that direction.. Such use by these people was more pronounced in fine weather and still more pronounced on Sundays. It was shown, however, that appellant ran no regular train over its branch road to Tipton on Sundays, but did run specials now and then. On the other hand, the record is silent as to whether or not the crew of the regular week-day train ran the Sunday specials.

On top of the use heretofore indicated, there was that indefinite and sporadic use of the track by pedestrians common to all railroad tracks, maybe, when the dirt roads were wet and heavy and the railroad presented a dry pike or path. The latter use, on which we lay no controlling stress, was confined to farmers who came to town on foot in muddy weather, and to those wandering unfortunates, designated rudely by one witness as ‘ ‘ bums and hobos. ’ ’

About a quarter of a mile west of appellant’s track was a public road and about a quarter of a mile east was another. The houses in that neighborhood were built mainly along these public roads and the immediate land about the place of the accident was cut up into parcels and put to the use usual in the suburbs of old settled towns of the size of Boonville in Missouri. We gather also from the evidence that the railroad right of way was fenced and we infer that the two side fences included both the M., K. & T. and the Mo. Pac. tracks.

The record shows, furthermore, that no signs had been posted to warn the public against trespassing on appellant’s track until after the deplorable death of Mr. Eppstein. If appellant at any time had taken any steps to prevent the use of its track by pedestrians as heretofore set forth, other than by posting trespass notices subsequent to the accident, such fact is not made to appear.

The ordinance, relating to the rate of speed and requiring a bell constantly to be rung on a moving locomotive in the city limits, pleaded in the petition, was put in evidence.

I. Should the case have been allowed to go to the jury at all on the showing made by this record? In other words, should appellant’s demurrer have been allowed?

Based on a self-evident premise, it may, in a large way, be laid down that the sacredness, the dignity of human life is the master-key in unlocking the problems of jurisprudence — the central fact in all law, human or divine — furnishing the crowning object of civilized government and the essential purpose and need of the very existence of courts. Liberty, property and the. pursuit of happiness are the mere collateral offshoots, all, to that parent stem — the flowers blooming from that stalk. Far be from ns the day when light indifference, a callousness born of the capricious needs of commerce, whereby, the public conscience and sensibility may be seared as with a hot iron, allows that sacredness to be lowered or whittled away by the negligent omission of ordinary care. Controlled by that touchstone, leavened by the leaven, a great cloud of decisions of this court promulgate, inter alia, the following rules governing cases brought under our statutes, such as the one at bar, viz.:

(a) Where one (at least one sui juris) is in a place of safety and therefrom negligently moves to a place of' danger, so immediately before that danger that it may not be averted by the use of ordinary care by those controlling the dangerous instrumentality, and is killed, his death is not actionable.

(b) Where one, unconscious of his peril, has negligently placed himself in a position of danger SO' far away from that danger that his death may be averted by the use of ordinary care by those who see him and who control the dangerous instrumentality, his death is actionable.

(e) If, under the latter hypothetical proposition, the person so exposing himself to danger is at a place where those controlling the dangerous instrumentality have no reason to anticipate the presence of people, and is killed without being seen in time to have avoided his death by the use of ordinary care, his death is not actionable.

(d.) But, if, under the same hypothetical proposition, the person so exposing himself to danger (for example, danger from a going locomotive) is at a place where those controlling the dangerous instrumentality have no reason to expect a clear track but have reason to expect the presence of people, then it makes no difference whether such person is seen or not, if to look is to see and if thereafter by the use of ordinary care the danger may be averted.

In this case it is stoutly affirmed on one side and as stoutly denied on the other that the latter principle applies to the facts. Does the principle apply? We think it does. In a given case there might be such scant or neutral evidence of public user of a portion of a track— mere sporadic instances thereof — that a court, as a matter of law, would determine that the servants of a railroad company charged with the running of a locomotive engine, had no duty to look and see. In such case, unless they did see the dangerous exposure of a person on the track, and in time to avert injuring him by the use of ordinary care, the court would take the case from the jury. On the other hand, there might well be a case where the public user of a portion of the track by pedestrians was so constant, so pronounced, so manifest and uncontradicted that there could be no two opinions about it among reasonble men, and the court, as a matter of law, might assume that locomotive operatives owed a duty to the public to be on the look-out there. Then, too, there might be a case lying between said extremes, and in our opinion this is one, where the use by the public of the track was of such sort that it became a mixed question of law and fact whether those running a locomotive engine had reason to anticipate the presence of people, and in such case that issue should be submitted to the jury, as a fact to he determined by it. Liability in each instance is predicated of knowledge or notice of the user. Such notice may be proved by the existence of paths well worn by human feet, and by gaps, stiles and gates appurtenant to such path, by the long-continued going to and fro of people more or less constantly, and by the proved presence of schools, places of recreation, etc., and the use of the track by visiting pedestrains and habitues, all of which elements are presented in this case to an extent of such significance as made the issue, in our opinion, one for the triers of fact to decide. Confronted by the evidence indicating notice and knowledge, appellant remained silent, and in the practical administration of the law the every-day significance of that silence should not be ignored.

Assuming, then, as found by the jury, that Mr. Eppstein was killed at a place where appellant’s servants had reason to anticipate the presence of people on its track, appellant is confronted with the duty of using ordinary care to see and ordinary care to prevent injuring him. How was that present and humane duty performed? It was not performed in this instance, be-, cause the ordinance requiring a bell to be rung was disobeyed. Because, úioreover, appellant’s servants, had they seen Mr. Eppstein, would have had no call to assume that he heard the notice of their train, or would step from the track to avoid danger. And this is so for the reason that the mere running noise of their train might well be submerged in the greater running noise of the heavy freight on the adjoining track. It is so for the further reason that his attitude, his arm, his hand, the direction of his vision would demonstrate to any reasonable man that he was quite engrossed in the passage of the M., K & T. train and oblivious to all else.

Appellant’s servants with plenty of space and plenty-of time to see, with no obstruction in the way of seeing, warned by his preoccupied attitude and conduct of the fact that he was oblivious to their approach, owed him, we think, the simple and easy duty to tell him they at once purposed occupying the identical spot he was on with their ponderous engine. This is not requiring anything extraordinary at their hands — a twist of the wrist would have done it presumably. Indeed, the absence of all warning signals, by whistle or bell, would indicate to us, as a charitable view, that they did not see him, but were possibly doing precisely what he was doing, namely, watching the M., K. & T. train; and the silence of appellant in this particular when confronted by tbe evidence in this case pertaining to the straight track, the peculiar attitude of this venerable man at the time he was struck and before, and the other facts in proof, must be held to indicate either an inability or an indisposition to controvert respondent’s array of facts.

That this case should have been allowed to go to the jury, we think is within the reasoning of many of our decisions, of which a sample must suffice, Morgan v. Railroad, 159 Mo. 262; Fearons v. Railroad, 180 Mo. 208 — where the cases are reviewed, differentiated and applied. See, also, the remarks of Gantt, J., arguendo, in Scullin v. Railroad, 184 Mo. l. c. 705 and 707.

II. Was the case properly put to the jury in respondent’s declarations of law?

Only one of respondent’s instructions is criticised and that one is this:

“The jury are instructed that it is admitted that plaintiff is the widow of Veit Eppstein, deceased, and that suit was begun within six months after his death; and if the jury believe from the evidence that said Eppstein was, on or about the 7th day of March, 1902, struck by a locomotive engine then being run on defendant’s railroad by its servants and employees, and that he was thereby so in jured that his death resulted therefrom; and that at the place where said Eppstein was struck, many people were at that time, and had been for several years prior thereto, accustomed to use said track as a footpath to and from points in the southern part of the city of Boonville and beyond, and that said track had been used in this way continuously for many years, and that defendant’s servants and agents in charge of said train could reasonably have expected to find persons on-said track at that place, on account of the frequent and continuous use thereof by footmen; and that no signal or warning was given by defendant’s servants and agents in charge of its engine as it approached the deceased, and no efforts were made by them to prevent said injury, and that said Eppstein was not conscious that said train was coming towards him; and if the jury shall further find that defendant’s servants and agents could, by the exercise or reasonable care and diligence, have seen said Eppstein upon said track a sufficient distance ahead of said train, so that by giving such signals or warnings, or taking such other action as a reasonably prudent man would have done under the circumstances, said accident could have been avoided, but that defendant’s agents and servants in charge of said train through their carelessness and negligence either failed to observe said Eppstein upon said track, or failed to give proper signals or warnings, or to take such other action as a reasonably prudent man would have done to avoid such injury; then the jury should find the issues for the plaintiff, notwithstanding they may believe from the. evidence that said Eppstein was on said railroad track without legal right, and was himself guilty of negligence in being there. ”

The criticism leveled at this instruction, and which criticism to some extent is embodied in declarations of law asked for by appellant and refused, is that it ignored the existence of an alleged concurrent act of negligence on the part of decedent. But, in answer thereto, it must be remembered the case and the instruction proceed on the theory that decedent was negligent in placing himself in a position of danger and that thereafter, being oblivious to the danger, the continuing negligence of appellant, which might have been avoided by ordinary care, destroyed him. No rule, adjusting the relative rights of the carrier and persons on the track, may be laid down which would fit all cases. Some courts have tried to meet the difficulty with the doctrine of comparative negligences, others by the “last chance” doctrine, but all the cases recognize that though one is where he ought not to be, yet another may not negligently kill him. And that is precisely this case, and (at bottom) the humanitarian rule. The instruction, in our opinion, was well enough and the instructions of appellant announcing a contrary doctrine, as applying to the facts in judgment, were properly disallowed.

III. Another matter is brought to our attention which, were the record in a different form, would present a serious question indeed. Speaking for itself, the record shows as follows:

“Mr. G. W. Pendleton, of counsel for the plaintiff, in his argument to the jury, said: That it was the duty of the court to give the demurrer to the evidence if the plaintiff had no case, and in not giving the demurrer and letting the case go to the jury he decided, in effect, that the plaintiff did have a case.
“By Mr. Shirk: Now, if your Honor, please, I object to the statement and I want to except to it to the court. The court simply decided by not giving that demurrer that the question must be submitted to the jury, and that the court had no right to decide a question that should be submitted to the jury. I except to the statement and ask the court to reprimand him and withdraw it from the jury.
“The court made no ruling upon the exception.”

The learned counsel was inadvertently outside the province of argument to the jury when he discussed to them the significance of a refused instruction. His remarks, therefore, should have been withdrawn and the trial court should have promptly and in no uncertain way placed this matter right by a ruling and a cautionary reproof. But appellant is in no condition here to ask relief from the incident, because it considered the matter of so little importance as to omit it from its motion for a new trial. Not only so, but the remarks of appellant’s counsel, to-wit, “I except to the statement,” is by context shown to be merely' equivalent to saying, I object to the statement. The phrase, “The court made no ruling upon the exception, ” is by the same context shown to be equivalent to, the court made no ruling upon the objection. In other words, as known to the practice, no exception was saved to the non-action of the court.

•Because the motion for new trial treats the matter sub silentio and because no exception was saved to the failure of the court to rule and reprove, the matter in hand cannot be allowed as reversible error.

The cause otherwise was well tried, and, accordingly, the judgment is affirmed.

PER CURIAM:

This cause having been sent to Banc on a dissent expressed in overruling a motion for rehearing, and being reheard in Banc, the foregoing divisional opinion of Lamm, J., was adopted as the opinion of the Court in Banc, and, in accordance therewith, the judgment of the circuit court is affirmed.

Brace, G. J., Valliant and Gantt, JJ., concurring in toto ; Burgess, Fox and Gra/ves, JJ., concurring in the result.


author: VALLIANT, J.

text:
    ARTHUR BAXTER, by Curator, v. ST. LOUIS TRANSIT COMPANY, Appellant.
    In Banc,
    June 20, 1906.
    1. ABATEMENT: Incapacity to Sue: Pleading. Plaintiff’s right to maintain the suit is not put in issue unless his ‘incapacity is specially pleaded. And a special denial in such case is in the nature of a plea in abatement. But that plea, if not apparent on the face of the petition, is required to be made in the one answer.
    2. -: -: -: Under Code: Waiver. Matters in abatement and matters in bar are as essentially different under the Code as they were at common law. The effect of matters in abatement is the same under both systems; if the plea is sustained, it abates that suit without affecting the cause of action. But at common law'the plea in abatement and the plea in bar were required to be separate; under the Code, they must.be made in the same answer, unless the matter in abatement is apparent from the face of the petition, and then it can he raised by special demurrer, but not by general demurrer. It can in no case be raised by a general denial.
    3. -: -: -:• No Proof: Waiver. Where the petition alleges that a certain named person is the lawfully appointed and duly qualified curator of the plaintiff, and there is no specific denial of that averment it will be tafeen as admitted, whether proof was introduced to sustain it or not.

      4. -: -: -: -: How Raised. Where plaintiff assumes to sue in a representative capacity, that capacity can be put in issue in only two ways: first, if in the body of the petition facts sufficient to constitute the capacity are not stated, the issue may be raised by special demurrer; second, if the facts to constitute the capacity are sufficiently stated, they may be put in issue by a special denial. The issue is not raised in either case by a general demurrer or a general denial. And if not raised in one of the ways pointed out, plaintiff need not introduce proof of the appointment of the next friend or curator.
    5. NEGLIGENCE: Contributory: Rear-End Collision. Plaintiff, a boy twelve years old, was sitting on the seat of an ice wagon being driven by a boy of eighteen. According to plaintiff’s evidence the wagon was driven a few inches from the outside rail of the street railway track for several hundred feet at the rate of seven or eight miles an hour, and while being so driven defendant’s car, without any ringing of the bell or an attempt to stop, although running at a rate of twenty-five miles an hour, ran into the wagon from behind, and plaintiff was thrown off and under the car. According to defendant’s evidence, the wagon was seen by the motorman, it was not then within the danger line, the bell was being rung and the wagon turned suddenly towards the track when the car was close to it and in consequence it was struck. Held, that, conceding that plaintiff was guilty of negligence in not keeping a lookout for the car, conceding that the driver was guilty of negligence in driving so close to the track that the car could not pass without striking the wagon, and conceding, for the sake of argument, that the negligence of the driver was imputable to plaintiff, that negligence of plaintiff or of the driver afforded no warrant to defendant to collide with the wagon and to injure plaintiff, and the plaintiff’s right to recover is not barred by contributory negligence, for the motorman could have seen the wagon for 600 feet before his car struck it, and that the driver was making no attempt to get it out of danger, and yet made no attempt to avoid the collision by sounding the bell or stopping the car.
    6. -: Second Injury: Inconsistent Instructions. Instructions discussed in the opinion which told the jury that plaintiff could not recover for a second breaking of his leg long after the first accident, if that breaking was due to his own negligence, are not conflicting or inconsistent.
    Appeal from Audrain Circuit Court. — Row. R. W. Johnson, Judge.

      Affirmed.

      Boyle $ Priest, George, W. Easley and Ed%v>ard T. Miller for appellant.
    (1) The demurrer to plaintiff’s evidence should have been sustained, (a) There was no evidence of the appointment or qualification of a curator to maintain the suit, or that the suit was prosecuted by a curator. Porter v. Railroad, 60 Mo. 160; Casler v. Chase, 160 Mo. 424; Cohn v. Railroad, 382 Mo. 577. (b) If plaintiff or his fellow-servant, Davis, had looked or listened for the car it could have been seen and the injury would have been averted. That negligence directly contributed to the injury and should bar recovery. Neither was there any evidence that defendant was negligent. Becke v. Railroad, 102 Mo. 550; Dickson v. Railroad, 104 Mo. 504; O’Rourke v. Railroad, 142 Mo. 352; Payne v. Railroad, 129 Mo. 419; Watson v. Railroad, 133 Mo. 250; Peterson v. Railroad, 156 Mo. 552; Holwerson v. Railroad, 157 Mo. 216; Davies v. Railroad, 159 Mo. 1; Tanner v. Railroad, 161 Mo. 497; Hook v. Railroad, 162 Mo. 569; Moore v. Railroad, 176 Mo. 528; Ries v. Railroad, 179 Mo. 1; McCauley v. Railroad, 179 Mo. 583; Petty v. Railroad, 179 Mo. 666; Reno v. Railroad, 180 Mo. 369Roenfeldt v. Railroad, 180 Mo. 554; Markowitz v. Railroad, 186 Mo. 350; Holden v. Railroad, 76 S. W. 973; Bricknell v. Railroad, 120 N. Y. 290; Miller v. Railroad (Ind.), 27 N. E. 359; Donnelly v. Railroad, 109 N..Y. 16; Griffith v. Railroad, 44 Fed. 574; Stafford v. Oskaloosa, 57 Iowa 749; Miner v. Railroad, 153 Mass. 398; Schorn v. Railroad (N. Y.), 3 Am. Neg. Rep. 62; Railroad v. Kestler, 12 Am. Neg. Rep. 343; Nesbitt v. Town of Garner, 75 Iowa 304; Borough of Carlisle v. Brisbane, 113 Pa. St. 552; McCormack v. Railroad (N. Y.), 2 Am. Neg. Rep. 631; Shear, and Redf. on Negligence (2 Ed.), sec. 66a, note 1. (2) The court erred in giving plaintiff’s instruction 1. Holwerson v. Railroad, 157 Mo. 216; Tanner v. Railroad, 161 Mo. 497; Moore v. Railroad, 176 Mo. 528; Reno v. Railroad, 180 Mo. 469; Roenfeldt v. Railroad, 180 Mo. 554; Markowitz v. Railroad, 186 Mo. 350; also authorities under point 1. (3) The court erred in giving plaintiff’s instruction 2. Authorities cited under points 1 and 2. (4) The court erred in giving plaintiff’s instruction 3. Authorities cited under point 5, infra. (5) Plaintiff’s instruction 5 is erroneous. Daugherty v. Railroad, 19 Mo. App. 418; Brown v. Railroad, 20 Mo. App. 222; Kincaid v. Railroad, 62 Mo. App. 371; Siekinger v. Manufacturing Co., 129 Mo. 590; Hadley v. Transfer Co., 115 Mass. 308; Lynn Gras Co. v. Ins. Co., 158 Mass. 570; Railroad v. Johnson, 92 Ala. 204; Haley v. Railroad, 21 la. 15; Railroad v. Rose, 11 Neb. 177; Railroad v. Yalleley, 32 Ohio St. 345; Railroad v. Spirit, 70 N. W. 926; Hadley v. Boxendale, 9 Exch. 341; Pullman Car Co. v. Barker, 4 Colo. 344; Frazier v. Railroad, 81 Ala. 185; Butler v. Kent, 19 Johns. 228; Sheffer v. Railroad, 105 U. S. 252; Hobbs v. Railroad, 10 L. R. Q. B. Ill; Cooley on Torts, (2 Ed.), pp. 73, 74; 1 Sutherland, Damages, 62; 1 Chitty on Pleadings, 388. (6) Plaintiff’s instructions are repugnant to those given on behalf of defendant and are irreconcilably inconsistent therewith.

      James M. Sutherland for respondent.
    (1) Defendant did not properly raise the issue by answer, hence it was not necessary for plaintiff to prove the appointment of a curator. Taylor v. Pullen, 152 Mo-439; Rogers v. Marsh, 73 Mo. 70; Glowers v. Railroad, 21 Mo. App. 216;' Randolph v. Railroad, 18 Mo. App. 614; Lyddon v. Dose, 81 Mo. App. 69; Jones v. Steel, 36 Mo. 325; Sherman v. Railroad, 72 Mo. 63. (2) “Where from the facts found or agreed upon, the question of negligence is one about which reasonable minds may differ, it should be left to the jury to make the deduction from all the circumstances, to determine the ultimate fact.” Tabler v. Railroad, 93 Mo. 79; Barry v. Eailroad, 98 Mo. 62; Pierce on Railroads, p. 316; Dickson v. Railroad, 104 Mo. 495. The negligence of the driver in this case, he not being in the employ under the control of plaintiff, cannot be imputed to plaintiff. This seems to be now the settled doctrine in England' and the United States. Becke v. Railroad, 102 Mo. 544; Land Co. v. Mingea, 89 Ala. 521; Borough of Carlisle v. Brisbane, 113 Pa. St. 552; Milis v. Armstrong, L. R. 13 App. Cas. 1. There is no question raised either in the pleadings or evidence that defendant’s servants could not have stopped the car to have avoided a collision, but on the contrary defendant especially evades this issue by stating that the wagon “suddenly turned in toward the track when the car was so close they could not avoid a collision.” Klockenbrink v. Eailroad, 81 Mo. App. 351; McAndrews v. Railroad, 83 Mo. App. 233, 98 Mo. App. 97; 0 ’Keefe v. Eailroad, 81 Mo. App. 386; Cooney v. Eailroad, 80 Mo. App. 226; Morgan v. Eailroad, 159 Mo. 262; Hutchison v. Eailroad, 88 Mo. App. 376; Edwards v. Eailroad, 94 Mo. App. 91; Meyers v. Eailroad (Mo. App.), 73 S.'W. 379. (3) • The plain reading of defendant’s first instruction leaves the question of plaintiff’s negligence to the jury. When the instruction is read with 7, 8, 9, 10, 11, and 12, given in behalf of defendant, the jury must have had a very clear idea as to what constitutes negligence on the part of plaintiff. (4) The defendant submitted the question of the re-breaking of the leg to the jury in instructions 2, 3, 4 and 5. There the jury were plainly told by the court that if there had been even a partial bony union and the second breaking was the result of plaintiff’s negligence, then he could recover no damages by reason of such re-breaking.
   VALLIANT, J.

Plaintiff, a minor, received personal injuries in a collision with a street car which was being operated by defendant and sues to recover damages for the injuries, alleging that the collision was the result of the negligent operating of defendant’s street car. He recovered a judgment for $4,750, and defendant appealed.

I. Before entering into a consideration of the merits of the ease there is a question at the threshold that demands our attention.

The petition alleges that the plaintiff is a minor and that the St. Louis Trust Company, hy whom as his curator he sues, is his legally appointed and duly qualified curator, that the defendant is a corporation operating a street railroad, then it proceeds to state the cause of action. The answer of the defendant was a general denial and a plea of contributory negligence. At the trial there was no’ proof of the appointment of the alleged curator. It is contended by defendant that the failure of proof on that point is fatal to the plaintiff’s right of recovery.

At common law the character in which the plaintiff sued was not put in issue unless specially denied. [1 Chitty on PI. (16 Am. Ed.), p. 464.] In‘such case a special denial was in the nature of a plea in abatement. [Stephens on PL (1894), p. 467.] Such a plea, if sustained, did not bar the cause of action, but abated that suit. The character in which the plaintiff assumes to sue is entirely distinct from the cause of action alleged; for example, a plaintiff assuming to be the administrator sues to recover a debt due the estate, he may not be the administrator and therefore not entitled to maintain the suit, yet a judgment that the plaintiff in that suit is not the administrator would be no bar to an action to recover the same debt when the true administrator should sue. And that is as true under our Code of Procedure as it was at common law. In so far as the science of pleading rests on sound reason for its rules there is no difference between our system and the system of common law pleading, the conclusions of reason and common sense are the same, but in each system there are arbitrary rules and the difference between the two systems appears in those rules. For example, it is neither illogical nor unreasonable, nor a violation of any scientific principle, to allow a defendant to plead in abatement of the suit and in bar of the action at the same time; there is nothing inconsistent or contradictory in those pleas with each other, both may be true or one may be true and the other not, and there is no difficulty in shaping the judgment to suit the facts as they may be found on the trial. Yet the common law rule is that the two pleas cannot stand together, but under the Code system the defendant not only may but is required to plead them both in one answer if he intends to avail himself of both. The rule on this point is thus stated in Bliss on Code Pleading (3 Ed.), sec. 345: “In common law pleading we have the rule that ‘pleas must be pleaded in due order;’ that is, the dilatory pleas must be first made and disposed of, to be followed by pleas in bar. The Code requires the defendant either to demur or answer, and in his answer he is allowed to set up as many defenses as he may have. Only one answer is contemplated, and all the defenses which he elects to make must be embraced within it.” Matters in abatement and matters in bar are as essentially different under the one system as under the other, and the effect of matters in. abatement is the same under both systems, that is, if the plea is sustained it abates that suit without affecting the cause of action, the only difference is that at common law it is called a plea in abatement and must be disposed of before defendant pleads to the merits of the action, while under the Code it goes under the general name of defense and may be pleaded in the same answer with a plea to the merits. The author just quoted, discussing the effect of an insufficient statement in the petition of the character in which the plaintiff sues, and holding that such defect is not reached by a genera] demurrer, says: “It is but reasonable, then, that the statute should require the defendant, if he objects to tbe plaintiff’s demand because he does not show a right to appear in court, to base his objection specifically upon that ground; and I know of no comprehensive phrase that so well describes the ground of objection as a want of legal capacity to sue.” [Bliss on Code PI. (3 Ed.), p. 620, sec. 408.] In other words, if the capacity in which the plaintiff assumes to sue is defectively stated, the defect cannot'be reached by a general demurrer, which goes to the cause of action, but it requires a special demurrer.

Pomeroy, a strong friend of the code system, after first pointing out the distinction between a plea in abatement and a plea in bar in respect of the order in which they were required to be pleaded, says: ‘ ‘ There aré in the new procedure no such divisions and classes. Defenses still exist of the same essential nature as those which were formerly set up by means of a plea in abatement, and a judgment thereon in favor of the defendant does not forever bar the plaintiff from the further prosecution of his demand.” [Pomeroy Code Rem. (4 Ed.), pp. 799-800.] The learned law-writer, although he regards the Code as in itself a complete system depending for nothing upon the common law (Id. p. 541, sec. 409), yet in the words just quoted he recognizes fully, as it is recognized at common law, the essential difference between matters that may be pleaded to abate the suit, and matters pleaded to defeat the cause of action, the only difference between the Code and the common law in respect to them being the manner and the order in which they are pleaded and the issues tried. And on pages 813-14, he says: ‘ ‘ The nonjoinder of necessary parties cannot be proved under the general denial , . . The defense that the plaintiff is not the real party in interest is new matter . . . and in an action by an executor or administrator, the general denial does not put in issue the plaintiff’s title to sue.”

As we have already above shown, when a plaintiff sued at common law in a representative capacity, as executor or such like, and defendant, without any denial of the plaintiff’s alleged character, filed his plea to the merits of the action and went to trial, he was presumed to have admitted the character assumed by the plaintiff.

There was no injustice to the defendant in that rule of pleading for if he really intended to question the matter he could by a special plea require the plaintiff to produce the proof. It is the boast of the advocates of the Code system that it is designed to reach more quickly the merits of a controversy by cutting away from the unnecessary forms and technicalities of the’ common law, but if our system puts the plaintiff to such proof when it is not specially called for by the defendant’s answer we are more formal and technical than were our common law predecessors.

Missouri was the first State in the Union to adopt the Code system; it was adopted in this State in 1849. When we turned away from our common law precedents and adopted an entirely new system, it will not be a matter of surprise if the examination of our earlier cases shows a construction placed on the new statute which has not since been followed. In Gilmore v. Morris, 13 Mo. App. 114, a judgment in favor of an administrator was reversed and the cause remanded for retrial because the plaintiff introduced no evidence to show that he was the administrator; the answer in that case was a general denial and the court held that the answer put the fact in issue and that without proof that the plaintiff was administrator there could be no judgment in his favor. The court referred to State to use v. Price, 21 Mo. 434, and seemed to base its conclusion on the decision in that case; but that case does not so hold. The record in that case does not show what the answer was, the inference would be that it put the plaintiff’s capacity in issue, because there was evidence introduced on the point, but the defendant contended that the evidence was not sufficient. The plaintiff had sued as administrator cle bonis non, but Ms letters were in the form of letters of an original administrator; the court held that the evidence was sufficient. It was a question of evidence that was decided in that case, not of pleading.

Cadmus v. St. Louis Bridge & T. Co., 15 Mo. App. 86, was the case of a minor suing by next friend; the answer was a general denial, there was some oral evidence of the appointment of the next friend, but the court said it was not necessary to pass on the question of the sufficiency of the evidence, because, it said: ‘ ‘ The question is said by the Supreme Court to be one of defect of parties, which must be raised by demurrer or by a special denial, and which, if not so raised, is waived,” and in that connection the court cited Rogers v. March, 73 Mo. 64. Thus the Court of Appeals very early overruled, in effect, its decision in Gilmore v. Morris, above mentioned.

In Randolph v. Railroad, 18 Mo. App. 613, plaintiff, a minor, sued by his next friend, no proof was offered of the appointment of the next friend, the court said that if the fact had been properly put in issue a failure to prove it would have been fatal to recovery, but the court, per Philips, P. J., said: ‘ ‘ The answer, however, only tendered the general issue. This was not sufficient to raise the issue in question. The objection involves merely the capacity of the plaintiff to sue. Such issue at common law could only be presented by plea in abatement under such circumstances. [1 Chitty, Plead. (16 Am. Ed.), 464.] Under the Code, if the incapacity to sue appears on the face of the petition, advantage of it may be taken by demurrer. [See. 3515, R. S. 1879.] In such ease the demurrer must be special, not general. [Sec. 3516.] If the defect does not appear on the face of the petition, it must be raised specially by answer; otherwise, it is deemed to be waived. [Sec. 3519.]” The law as there expressed has never been questioned by this court.

Clowers v. Railroad, 21 Mo. App. 213, was also that of an infant suing by next friend, the answer was a general denial and plea of contributory negligence, no proof was made of the appointment of the next friend, and defendant contended on authority of Porter v. Railroad, 60 Mo. 162, that judgment for plaintiff should for that reason be reversed; the court, per Rombatjer, J., said: ‘ ‘ Such, unquestionably, was the effect of that decision. But in the later case of Rogers v. March, 73 Mo. 70, it was held that this objection is one for defect of parties plaintiff, and is waived under the statute unless saved by special demurrer, or by answer. This last decision is not only in conformity with the more liberal views marking recent decisions, which disregard purely technical objections in arriving at the true merits of a controversy, but is furthermore the last controlling decision of our Supreme Court on this question, and as such is binding upon us.” Other decisions of our Courts of Appeals are to the same effect. [Ellingson v. Railroad, 60 Mo. App. 679; Lyddon v. Dose, 81 Mo. App. 64.]

We go now to the decisions of this court on this subject. In Jones v. Steele, 36 Mo. 324, the petition in its caption named the plaintiff a minor suing by his next friend, but in the body of the petition there was no averment of such appointment, defendant answered to the merits only; this court, per Wagner,, J., said: “The defect in the petition was apparent upon its face; the caption forms no part of it. To have made it regular, there should have been a substantive averment or allegation that an appointment of next friend was duly made in the mode pointed out by law; and in the omission of such averment, the petition was demurrable. The defendant also had his election to raise the objection by answer, if he saw fit to do so. But when he did not avail himself of his privilege, either by demurrer or answer, he is deemed by our statute to have waived all objections, excepting only the objection to the jurisdiction of the court over the subject-matter, and that the petition does not state facts sufficient to constitute a cause of action.”

In Porter v. Railroad, 60 Mo. 160, plaintiff, a minor, sued by next friend, but on the trial he made no proof of the appointment; the court, per Napton, J., said: “The judgment in this case must be reversed, because the petition alleges the minority of plaintiff, and the appointment of a next friend by the circuit court of Buchanan county, which allegations are denied in the answer, and no proof was offered on the subject. The point was raised in the circuit court by a demurrer to the evidence.” That is all that appears in the report of that ease on this subject. It is there said that the allegations of minority of the plaintiff and the appointment of the next friend “are denied in the answer, ’ ’ and after that it is said that the point was raised by demurrer to the evidence. Whether the allegations were specifically denied does not appear in the opinion in that case, but judging from the date of the opinion (it was rendered at the May term, 1875), we may presume that there was a specific denial, because it was not until March 1.8th, 1875, that the statute was amended so as to allow a defendant to plead by a general de-nial. [Laws 1875, p. 106.] When the answer in that case was filed the law allowed no denial on any point except a specific denial.

In Sherman v. Railroad, 72 Mo. 62, the plaintiff, a minor, sued, as the petition alleged, by his guardian duly appointed, the fact of the appointment was specifically denied in the answer and there having been no proof of the appointment the court, per Hough, J., said: “Following the decision of this court in the case of Porter v. Railroad, 60 Mo. 160, the judgment must, for this cause, be reversed.” Neither of those two cases is authority for holding that a general denial puts the fact of the appointment of the guardian or next friend in issue.

The first case in which the precise question we now have came before this court for decision was Rogers v. March, 73 Mo. 64, in which case this court, per Napton, J., (who also wrote the opinion in the Porter case, above mentioned), said: “It is also claimed that as the answer denied each material allegation of the petition, and as no evidence was offered to show the appointment of the next friend for the two of the plaintiffs who are minors, the judgment should be reversed. This is virtually an objection that the proper parties are not made plaintiffs, and such objection, if not made either by demurrer or answer, is waived under the statute and cannot be made in the motion in arrest. The answer should have set this matter up, and it not having been done, the objection now made cannot be considered. Judgment affirmed, in which all concur. ’ ’

In Holton v. Towner, 81 Mo. 360, one of the plaintiffs was a minor, and just how his capacity to sue was stated in the petition .the report of the case does not show, but the answer, besides a general denial, contained also an allegation that the plaintiff was a minor and had no legal capacity to sue; the trial court during the trial appointed a next friend for him and judgment was rendered in his favor; this court, per Hough, C. J., said: “But treating-this appointment as a nullity, the judgment could not be reversed on that ground, as the statute expressly provides that no judgment shall be reversed because an infant appeared by attorney when the judgment is in favor of the infant. [R. S. 1879; sec. 3582.]”

In Taylor v. Pullen, 152 Mo. 434, the cases of Rogers v. March, and dowers v. Railroad, above mentioned, are cited with approval and the language of Judge Rombauer in the last-named ease is quoted and approved as stating correctly the law on this point. Casler v. Chase, 160 Mo. 418; Cohn v. Railroad, 182 Mo. 577, and Gregory v. McCormick, 170 Mo. 660, are in accord with these views.

The foregoing are all the decisions on this question in this State, so far as our research has brought them to our notice.

Our conclusion, is that under sections 598, 599, and 602, Revised Statutes 1899, when a plaintiff assumes to sue in a representative capacity, that capacity can be put in issue in two ways only: first, if in' the body of the petition facts sufficient to constitute the capacity are not stated, the issue may be raised by a special demurrer; second, if the facts to constitute the capacity are sufficiently stated, they may be put in issue by a specific denial, but the issue is not raised in either case by a general demurrer or a general denial.

It being averred in the petition in this case that the St. Louis Trust Company was the lawfully appointed and duly qualified curator of the plaintiff and there being no specific denial of that fact, it must be taken as admitted. The court did not err therefore in refusing the instructions asked by defendant in the nature of a demurrer to the evidence because of failure of proof on that point.

II. Prom the opinion in this case delivered by Marshall, J., in Division One, we copy the following statement of the facts and conclusions of law governing them and adopt them as our own:

“Arsenal street runs east and west. Grand and Spring avenues run north and south, and are nine hundred feet apart without any intervening street. Prom Grand avenue westwardly Arsenal street has a down grade for seven hundred feet, and then an up grade towards Spring avenue. The street is straight from a point one or two blocks east of Grand avenue to Spring avenue. The defendant has a double street car-track on Arsenal street. The west-bound cars run over the north track, and the east-bound cars over the south track. At the time of the accident the plaintiff was twelve years of age, and was employed by Isaac Davis to assist Alfred Davis, the latter being eighteen years of age, in delivering ice. Davis drove the wagon and the plaintiff delivered the ice from the wagon to the customers. The wagon was covered; with a seat at the front, upon which the plaintiff and the driver were seated, and the back of the seat extending to the top of the. covering. In the back of the seat was a moon-shaped opening for the purpose of looking backwards. The curtain at the rear of the wagon was torn, so that the driver or persons on the front seat could look through the opening in the back of the front seat, and see objects approaching from the rear. On the morning of the accident the plaintiff and the driver came north on Grand avenue, and thence proceeded westwardly on Arsenal street, on the north side of the street, and north of the street car tracks. As they turned into Arsenal street the plaintiff looked east to see if a car was coming, but saw none. They drove west about one hundred to one hundred and fifty feet, at a distance of five or six feet from the north rail of the west-bound track. At this point there were some ruts or little holes in the street next to the curb, and they turned the wagon in toward the track to within four or five inches of the north rail, and in that position continued to drive westwardly for about six hundred feet. As they turned in toward the track the plaintiff again looked for a car' and saw none. They heard no car and no bell. The wagon was proceeding at a rate of six or eight miles an hour. The street was slightly muddy, and the wagon did not make much noise. The noise made by a car in motion could be heard there for a block. Y7ien they had thus proceeded about seven or eight hundred feet west from Grand avenue, one of the defendant’s cars going westwardly, struck the hind wheel of the wagon, threw the plaintiff out of it, and the wagon passed over the plaintiff’s left leg, causing a compound, comminuted fracture of the left femur. A passenger on the car testified that he saw the wagon when the car was two or three car-lengths from it; that in his opinion the ear was running at a speed of twenty-five miles an hour; that he did not hear any gong rung, nor did he see the motorman make any effort to stop the car. Similar testimony was given also, through an interpreter, hy a Bohemian. The motorman testified that when he crossed Grand avenue he saw the ice wagon ahead of him, but that it was not in the danger line at that time, and was four or five or six car-lengths ahead of him when he first noticed it; that he was ringing the gong, and that, ‘ all at once the horse turned right in towards the track, and I seen at once there that I had to make a stop, and I reversed my qar at once and put the brake on a little bit to help stop the car, and I stopped just as the wagon was against the side of the car, the hub.’ The testimony for the plainttiff showed that the car stopped with the rear of the car at the front of the wagon. The motorman further testified that there was but a slight concussion, but that the horse got scared, he did not know whether from the concussion or the ringing of the gong, and turned around and galloped over the hill after throwing the occupants out; that he made ‘a splendid stop, could not make a better stop. ’ On cross-examination he testified that the borse was turned close to the track when the car was about two car-lengths, ‘may be a little less, from it.’
“Plaintiff was taken to a hospital, where his leg was temporarily dressed, and thence he was taken to St. Mary’s Infirmary, where he was attended by Dr. Amyx. ITis leg was placed in a plaster of paris cast and remained there for five months. The case was then removed, and a Hogden splint put upon the leg, and two weeks later the plaintiff was sent home. His physician advised him to use his leg occasionally but to use it very carefully. During all this time there were two running sores on his leg, which were constantly treated. When the plaintiff left the hospital the injured leg was straight, but about one-half an inch shorter than the other, and he was beginning to walk along the floor without crutches. A few days after returning home, when he was out in the yard with his crutches, he saw a lemon peel on the walk, and asked his sister to hand it to him. He then threw the lemon peel a distance of about fifteen feet from him. As he did so he heard something in his leg snap. He was taken into the house, and in a short time went to see Dr. Amyx, who told him to go home, and stay in bed for a week. During the week, when the doctor came, and while manipulating the leg, it snapped again, and the doctor told him that he would have to stay in bed for a long time, as the leg was broken again. Plaintiff remained in bed thirteen weeks, when the leg began to grow crooked, the foot turning in. He was then taken again to the hospital, subjected to an examination, and operated upon, by having the ends of the bones cut off and the bones fastened together, and the leg was again put into a plaster cast, where it was kept about eleven weeks, when he was again removed to his home. Since that time an examination by means of an X-ray apparatus disclosed that only about a quarter of an inch of the bone came in contact, where naturally the contact should be an inch and a half; and he has since been compelled to wear an iron brace, extending from the foot to the waist, which, if taken off, would cause the bones to separate; that the leg is three inches shorter than the other, and the toes of the wounded leg turn inward and hang in front of the other leg; that up to the time of the trial, twenty-two months after the injury, he was still unable to touch his foot to the floor, and had to wear the iron brace aforesaid, and could only move about on crutches.
“There is a sharp conflict in the evidence as to whether or not there had been, or could have been, a bony union prior to the second injury resulting from the throwing of the lemon peel. Dr. Broome, who examined the plaintiff’s leg with an X-ray, in February, 1903, testifies that it would have been impossible for a bony union to have been accomplished before the second occurrence, owing to the fact that there were running sores on the leg at the fractured point, which prevented a bony union. Drs. Berry, Hutton and Baskett, witnesses for defendant, on cross-examination testified that on the hypothetical case stated, they did not believe there could have been a bony union. On the other hand, Dr. Amyx gave it as his opinion that when the plaintiff was sent home the first time from the hospital, a bony union had been effected. And Drs. Rodes and Cave, witnesses for defendant, gave it as their opinion that a bony union had resulted after the first fracture, and further said that the plaintiff could not have walked, as he did before the second injury, if there had been no bony union.
“The court gave five instructions at the request of the plaintiff. The third' related to the measure of damages. The fifth was as follows: ‘The jury are further instructed that if you find from the evidence that the plaintiff was exercising ordinary care or such care as would be exercised by a boy of his age and experience for the protection of his injured leg, under like circumstances, at the time the bones of his left femur separated or broke at the original point of breaking, on the occasion of his throwing a lemon peel as detailed in the evidence; then you are further instructed that the plaintiff is entitled to recover for all damages which you believe from the evidence he has or will sustain (as explained in instruction number 3), notwithstanding you may further find that a partial bony union had taken place at the time of the second breaking or separation.’
“At the request of the defendant the court gave twelve instructions. The 2nd, 3rd, 4th and 5th related to the second breaking, or injuring, and instructed the jury that the defendant was not liable for any damages the plaintiff might have suffered by reason of the second injury if it was caused by the negligence of the plaintiff, but that before they could allow the plaintiff any damages on account of the second injury they must be convinced from the evidence that such condition was due to the first injury, and that they could not resort to guess, conjecture or speculation to determine whether such subsequent condition was a consequence of the first, or second injury, but must be controlled by the evidence in the case.
“At the close of the plaintiff’s case, the defendant asked an instruction for a nonsuit. The court refused to give the instruction, and the defendant excepted. At the close of the whole ease, the defendant asked the court to instruct the jury to find for the defendant, for the reason that the plaintiff had failed to prove that he was suing by a curator or next friend, and that according to the record in this case lie had neither a curator nor a next friend, and that the plaintiff had failed to prove that he was injured as a result of defendant’s negligence, and because he had shown that his injury was due to his own negligence; also on the ground that the testimony showed that plaintiff was a minor, under fourteen years of age, and that no guardianship had been proved; and further asked the court to instruct the jury if they found that any of the damages resulted from the second injury they should state the amount so found on that account. The court refused to so instruct, and the defendant excepted.
“The next error assigned is the giving of plaintiff’s instruction number 5. That instruction authorized the plaintiff to recover for all the injuries, physical pain and mental anguish suffered by the plaintiff in consequence of the second breaking, as well as in consequence of the first, if at the time of the second breaking the plaintiff was exercising ordinary or such care as would be exercised by a boy of his age and experience for the protection of his injured leg.
‘1 The 2nd,' 3rd, 4th and 5th instructions given for the defendant told the jury that the plaintiff could not recover for the injuries resulting from the second breaking of the leg if those injuries resulted from his own negligence, after the original injury was received.
“It is now claimed that the fifth instruction for the plaintiff, and those for the defendant are in hopeless conflict, and that if the jury undertook to follow the one they had to disregard the other. A careful analysis of the instruction, however, does not bear out the contention. Both sides put the case to the jury upon the theory that the plaintiff could not recover for the injuries, pain and anguish resulting from the second breaking if they were caused by his own negligence. There was, therefore, no conflict in the instructions. The case was not tried below upon the theory that the second breaking and the suffering and anguish and injuries resulting therefrom, were not the necessary and natural consequence of the first injury; nor was the case tried below upon the theory that the petition did not count upon any damages resulting from the second injury; nor that such an issue was not tendered or joined in the case. Neither was there any objection or exception made or saved to the evidence as to the second breaking and the subsequent injuries. As shown by the instructions on both sides, the case was tried by both parties on the theory that the plaintiff could recover for the second breaking if it was not caused by his own negligence.
“There was, therefore, no conflict between the instructions given. The instructions asked by the defendant, and refused by the court, were fully covered by the instructions given for the defendant by the court, or else were in conflict therewith, and hence were properly refused.
“III. Lastly it is contended that upon the case made, the plaintiff is not entitled to recover at all, because, even conceding that the defendant was guilty of negligence, the plaintiff was guilty of contributory negligence, which bars his recovery.
‘ ‘ This objection is wholly untenable. Even conceding that the plaintiff was guilty of negligence in not keeping a lookout for the car, and conceding that the driver, Davis, was guilty of negligence in driving so close to the track that a car could not pass without striking the wagon, and conceding, for the sake of the argument, that the negligence of the driver of the wagon is imputable to the plaintiff, nevertheless, that negligence of the plaintiff or of Davis afforded no warrant or auT thority whatever to the defendant to collide with the wagon, and to inflict injury upon the plaintiff. This was a rear end collision. The motorman could have seen the wagon for at least six hundred feet before he collided with it. If the testimony of the plaintiff is true, and for the purposes of this discussion it must be taken as true, the wagon was driven for a distance of six hundred feet, with its left wheels within five or six inches, or a foot, to a foot and a half, according to the various testimony, of the north rail of defendant’s track. The plaintiff’s testimony tends to show that the car was running at a speed of twenty-five miles an hour, on a down grade; that no bell or gong was sounded, and that the motorman made no effort whatever to check the speed of the car, until the collision occurred. Conceding that the defendant’s motorman had the right to assume that the plaintiff or the driver of the vehicle would keep a lookout to the rear for the approach of a car, and would drive far enough away-from the track to avoid a collision, and that they failed so to do, the fact still remains that, according to the testimony for the plaintiff, the motorman saw, or could have seen, in ample time to have prevented the collision, that the plaintiff or the driver of the vehicle was making no attempt to get out of the place of danger, in which he was, and yet the motorman made no effort to prevent the collision. This case is very similar to the case of Schafstette v. Railroad, 175 Mo. 142. In that case it was said: ‘It is not true as a matter of law, and primafacie cannot he true as a matter of fact, that it is negligence for a citizen to cross or drive upon and along a street car track when a street car is five hundred feet away, although it may he coming in the same direction, and running at the speed of five, ten or even more miles an hour, when the track is straight and the operator of the car can easily and plainly see that such person is in such a position. In such ease, particularly where the citizen turns onto the track and drives upon or close to it, with his back to the approaching car, it is the duty of the operator to check the car and avoid the accident; and if a collision occurs it is prima-facie if not altogether owing to the negligence of the operator of the car. ’
‘ ‘ The ease was tried below by the plaintiff upon the theory stated in the petition, of a high and dangerous rate of speed, of a failure to sound the gong, and of a failure to stop the car in time to have avoided the injury, when, by the exercise of ordinary care, it might have been done, after the motorman saw the position of peril of plaintiff; and on the part of defendant it was tried on the theory that the wagon was not in a position of danger until the car got within two or three car-lengths of it, when the horse was suddenly turned towards the track and so close to it as to make a collision inevitable, and when it was impossible to stop the car in time to avoid the collision. The jury found the issues for the plaintiff. There was certainly abundant evidence to support the theory of the plaintiff, and therefore the court committed no error in refusing to take the case from the jury.”

We find no error in the record and the judgment is therefore affirmed.

All concur.