author: BADLAND, C.

text:
    PAUL KUHN v. JAMES W. LUSK, Receiver of ST. LOUIS & SAN FRANCISCO RAILROAD COMPANY, Appellant.
    Division One,
    March 2, 1920.
    1.' DANGEROUS MACHINERY: Duty to Guard When Statute Does Not Apply. Independently of the statute and at common law, if ordinary care requires that dangerous machinery be guarded in order to render the place in which the servant is directed to work reasonably safe, then the master is liable for injuries to the servant resulting from a failure to exercise such care.
    2. -: —--: Ordinary Care. In Missouri the master incurs liability for failure to guard dangerous machinery where ordinary care for the safety of his servants requires it to be guarded, and that duty remains, although the statute requiring dangerous machinery to be guarded has no application to the situation.
    3. -: -: -: Assumption of Risks. The rule in Missouri is that the servant does not assume a risk that grows out of his master’s negligence, however obvious or plain, but only assumes the peril incident to the service remaining after the master has exercised ordinary care; and in the exercise of ordinary care, in all occupations attended with great and uifusual danger, the master is required to provide all appliances readily attainable and known to science for the prevention of accidents; and where the facts demonstrate that the master had in operation a machine about which he required his servant to work, that the danger was strikingly apparent, that at a trifling expense a guard or cover around such machine could have been maintained, which would in no wise have lessened its efficiency, and that if the guard had been maintained the danger to the servant would have been wholly removed, ordinary care required the master to provide the guard.
    4. NEGLIGENCE: Not Supported by Evidence. Specific defects in a machine, charged in the petition to be a cause of plaintiff’s injury, which are not established by any substantial evidence, should not by the instructions be submitted to the jury as a basis for plaintiff’s right to recover.
    5. -: -: Recovery on Different Specifications. If the jury are by the instructions permitted to find for plaintiff on either of two specifications of negligence, and as to one of them the evidence is insufficient to support a finding, a verdict and judgment for him must be set aside and the cause retried.
    6. —■-: Obvious Danger: Question for Jury. Plaintiff testified that he knew and fully appreciated the danger attendant upon cleaning the boxing next to the revolving cog-wheel, but as the gears fed upward he thought he could reach over the axle and wipe the grease from the under side without his coat sleeve being drawn into the cogs. Held, that, whether the danger of so doing was so great that an ordinarily careful and prudent man would not have attempted it was a question for the jury.
    Appeal from Barton Circuit Court. — lion. B. G. Thurman, Judge
    Reversed and remanded.

      W. F. Evans and Mann, Todd & Mann for appellant.
    (1) At common law the master is not required to guard his machinery but could leave all parts of the machinery unguarded and incur no legal liability on that account. Cole v. Lead Co., 240 Mo. 404; Czernicke v. Ehrlick, 212 Mo. 386; Lore v. Manufacturing Co., 160 Mo. 608'; Blair v. Iieibel, 103 Mb. App. 621; Gleason v. Smith, 172 Mass. 50. (2) The respondent cannot avail .himself in this action of the benefits of the statute regarding guards for dangerous machinery, to-wit, Sec. 7828, R. S. 1909: (a) Because the petition neither counts on the statute or brings the case within the terms thereof, but simply counts on the negligence of the appellant, <£in failing -to exercise ordinary care to furnish plaintiff a. reasonably safe place to work, in that defendant failed to exercise ordinary care to properly house or shield the gearing or cogwheels to said motor. ’ ’ There is no allegation in the petition in the language of the statute or otherwise that the gearing was so placed as to be dangerous to persons employed thereabout while engaged in their ordinary duties, or that it was possible to guard it so as to prevent the injury. R. S. 1909, sec. 7828. (b) Because respondent, as his petition clearly indicates, founded his action in this regard upon the failure of the' appellant to furnish him a reasonably safe place to work, in that it failed to house or shield the gearing. Respondent further introduced his testimony upon this theory over the objection of appellant and in drafting his instructions respondent relied solely on the common law liability and did not instruct under any theory covered by the statute. Respondent is bound by the theory upon which he not only brought but tried his case and submitted it to the jury. Begonia v. Railway, 224 Mo. 588; Brunswick v. Insurance Co., 213.S. W. 46; Hoff v. Transit Co,, 213 Mo. 470; Bray v. Seligman, 75 Mo. 40; Williams y. Loban, 206 Mo. 407; St. Louis v. Right, 210' Mo. 502; Brick Co. y. Railway, 213 Mo. 72!7; Williams v. Railroad, 233 Mo. 676; Lalapie v. Saddlery Co., 193- Mo. 13. (c) Because the appellant herein is the receiver of a railroad company and the provisions of Art. 6, Cbap. 67, R. S-1909, of wbicb said Section 7828 is a part, was not intended to effect or govern railroads, and if undertaken to be so construed as to apply to railroads then said section as well as that article is unconstitutional, as has already been so declared by this court. Williams v. Railroad, 233 Mo. 666; Mo. Constitution, Art. 4, Sec. 28. (3) Instructions number 1 and number 2 are erroneous. They submit two grounds of negligence which the jury might consider in determining the question of defendant’s liability. There is ho evidence in the record that the boxings and babbitt bearings were old, defective and loosened, and if there were testimony that they were old, defective and loosened or if the wheels did not mesh true with each other so that when said machinery was in motion there was a lateral or wabbling movement of the gearing and a vibration of the frame of the motor and bearing of the shafting, then there is no evidence in the record that any of these things directly or in any manner caused plaintiff’s sleeve to get caught in the gear or that they contributed in any way to his injury. The mere fact that such alleged condition of the bearings and gear existed did not entitle respondent to recover. In order that he should recover, his evidence must prove or tend to prove' that these conditions were the proximate cause of his injury. In other words, except for the existence of these alleged defects his sleeve would not have been caught and he would have received no injury. Trigg v. Lumber Co., 187 Mo. 234; Boerr v. Brewing Assn.* 176 Mo. 556; Thompson v. Railroad, 140 Mo. 135; Stepp v. Railroad, 85 Mo. 233; Stanley v. Railroad, 114 Mo. 624; Henry v. Railroad, 76 Mo. 293; Jackson v. Elevator Co., 209 Mo. 506; Goransson v. Mfg. Co., 16 Mo. 307; McGee v. Railroad, 214 Mo. 543.

      Sizer & Gardner for respondent.
    (1) This action is not bottomed on onr statute requiring dangerous machinery to be housed. Sec. 7828. Since the enactment of that statute in 1891, a statutory duty exists upon manufacturer to house all machinery covered by this statute, and a failure to do so is negligence per se. This statute has been held not to apply to railroads; whether rightly so or not, we do not say. "Williams v. Railroad, 233 Mo. 666. But in the absence of such statute, a duty exists by the master towards his servant, and this is what has been designated his common-law duty. The statute covers only such machinery as is mentioned by it, while the common law covers all machinery the same as it covers any other appliance furnished by the master. Machinery as an appliance of the master, finds no exception at common law, for the same rule applies to it that applies to tools and other appliances. The loose statements by our courts do not change the common law or modify its strictness in the least, and the common law obtains in all its completeness today, notAvithstanding such expression by our courts. We do not contend that there is such duty as is imposed by the statute at common law, but only the duty to use ordinary care. If machinery is dangerous and the exercise of ordinary care requires it to be housed in order to malee it, or the place, reasonably safe, then the master is as in duty bound to house it at common law as he is by statute ; and a failure to house under such circumstances is negligence equally as culpable as a violation of the statute. Czernicke v. Ehrlick, 212 M'o. 386. This duty of the master at common law is horn-book law, and is elementary. Letanovsky v. Shoe Co., 157 Mo. App. 120; Quinn v. Electric Laundry Co., 155 Cal. 500, 17 Ann. Cas. 1100; Skelton v. Lumber Co., 140 Cal. 511; Buchel v. Gray, 115 Cal. 421; Carlin v. Kennedy, 94 Minn. 141; Greenan v. Eggeling, 30 Pa. Sup. Ct. 253; Cargill v. Towell Sup^ Co., 185i Pá. St. 269; Bartholomew v. Kemmerer, 21 Pa. St. 277; Flynn v. Prince Co., 198 Mass. 224, 17 L. R. A. (N. S.) 568; Kirwan v. Lithographic Co., 197 N. Y.-413, 27 L. R. A. (N. S.) 972; Wilson v. Williamantic Linen Co., 50 Conn. 533, 74 Am. Rep. 653; Hnstis v. Bannister Co., 63 N. J. L. 465, affirmed 64 N. J. L. 279'; Pierce v. Conterville Mfg. Co., 25 R. I. 512; Galveston Oil Co. v._ Thompson,'76 Tex. 235; Podvinv. Pepperell Mfg. Co., 104 Me. 561, 129 Am. St. Rep. 411; Rooney v. Sewell Co., 161 Mass. 153; Connelly v. Hamilton Woolen Co., 163 Mass. 156; Lewis v. Simpson, 3¡ Wash. 541; Swoboda v. Ward, 40 Mich. 420; Strickland v. Capitol City Mills, 74 S. C. 16, 7 L. R. A. (N1. S.) 426; Brooks v. He Soto Oil Co., 100 Miss. 849,- Ann. Cas.'1914A. 656; Homestake Mining Co. v. Fullerton, 69! Fed. 923', 36' U. S'. App. 32, 16 C. C. A. 545; Rabe v. Consolidated lee Co., 91 Fed. 457; Paducah Box Co. v. Parker, 143 Ky. 607; 43 L. R« A. (N. S.) 179; Dettring v. Levy, 114 Md. 273 ; 4 Thompson on Negligence, sec. 4017; 181 R. C. L. p. 591, sec. 94; Duntley v. Inman, 42 Ore. 334; Westman v. Wind River Lbr. Co., 50 Ore. 137; Reichla v. Gruensfelder, 52 Mo. App. 58; Lemser v. Mfg. Co.,. 107 Mo. App. 219; Lightner v: Dunham, 195 S. W. 1055; Curtis v. McNáir, 173 Mo. 284. (2) Defendant contends that the court erred in submitting to the jury defendant’s negligence in failing to exercise ordinary care to keep his machinery in repair, that the boxings1 and babbitt bearings were old and defective and loosened and the wheels would not mesh true, so there was a wabbling or lateral movement of the gears. This necessitates a reference to the testimony in this regard. These instructions taken together well defined to the jury that issue of negligence.. The court eninner-' ated nil the defects the .jury must find to authorize a recovery, and defendant 'finds no fault therewith, except he states that there is no evidence .in the records that the boxings and babbitt bearings were old, defective and looséned. He finds no fault with the charge that the gears did not mesh true, or that when said machinery was in motion there was a lateral motion of the gears and a vibration of tbe frame and bearings of the motor. He thereby tacitly concedes the sufficiency of the evidence to submit these facts. In other words, defendant claims that the jury were required to find all these facts when, in fact, plaintiff was entitled to recover upon proof of defects in the gears and the wobbling, of the wheels and vibration of the frame. Defendant then, practically concedes that all the grounds which he now says were necessary to a recovery, were contained in this instruction and supported by evidence; but he makes complaint that plaintiff assumed the burden of proving more facts than were necessary to a recovery.
   BADLAND, C.

This is an action for personal injury caused, as it is alleged, by the negligence of defendant. Plaintiff recovered judgment for $10,000, and the defendant appeals.

At the time of his injury,- plaintiff was employed by defendant as a ‘ ‘handy man” and laborer in one of the machine shops of the St. Louis & San Francisco Bailroad Company, of which defendant is receiver, located at the City of Springfield. As an incident to such employment plaintiff was required to clean and wipe the dust and grease off of a certain eléctric motor and the shafting through which the power wms transmitted from it to a large punching machine. This motor was completely enclosed in a housing and was supported by a metal frame bolted to the concrete floor on which it rested. It faced south, and projecting from the center of it in that direction there was a shaft that revolved as the motor did. On this shaft, and so attached that it revolved with it, there was a cogwheel six- inches in diameter. This small cogwheel at a distance of about eight inches from the motor cover meshed with a larger one, twenty-six inches in diameter, on a shaft immediately connected with the punching machine, and. thus by the means of these cogwheels or gears and their respective shafts the power was communicated from the motor to the machine. The accompanying cut is from a photograph of the motor and gears introduced in evidence on the trial below. A great deal was said by the witnesses as to the locations of the boxing and bearings on the shafts or axles on which are the ,two cogwheels. As one of the specifications of negligence has for its basis the alleged defective condition of these boxing and bearings, the evidence in respect to their several locations is important, yet as the witnesses when testifying on the subject had photographs before them and merely said, for example, ‘ ‘ There is a boxing, ’ ’ or “Here is a bearing (indicating),” without the record in any way disclosing- what the witnesses indicated, the whole of their testimony as to such locations is obscure, and some of it conveys no meaning at all. However, the photograph shows that the axle on which is the small cogwheel extends from its support south of the wheel north through the frame work of the motor. It appears to be enclosed within boxing at the north end where it projects through the motor, and also between the frame and the cogwheel and between the wheel and its support at the south end. It evidently has two bearings in .the motor frame and one where it is supported at the south end. The shaft revolved by the large cogwheel is parallel with the one on which is the small one,, about sixteen inches west of the, latter, similarly boxed and. has its bearings on the same supports. The boxing- and bearings of these shafts, it is said, were lined with babbitt. The bottom of the large cogwheel was about three inches and the two shafts about sixteen inches from the floor. The top of the motor housing seems to have been about the same distance from the floor as the top of the large cogwheel, about two and a half feet. When the motor and gears were in operation the small cogwheel made approximately 1200 revolutions a minute and. the large one in proportion. The cogs were two and a fourth inches wide and revolved upward. The motor and gears were enclosed by shields or other barriers on the north, west and south sides, so that they could be approached from the east side only. None of the employees of the defendant had any occasion to be near or about them, except those whose duties required them to inspect, repair, oil or clean them. At the time the machine was originally installed there was a housing or cover that so enclosed both cogwheels that it would have been impossible for any one working on or about it to have come in contact with the cogs. This cover was furnished by the manufacturer as a part of the machine and for a time was so maintained by the defendant. It did not in any way interfere with the practical operation of the machine; notwithstanding, without any apparent reason, it had been removed and its use discontinued for a considerable length of time prior to plaintiff’s injury.

At the time of his injury plaintiff was forty years of age and in the possession of all his faculties. He was a general utility man in the defendant’s shops where he helped the machinists, looked after the belts and cleaned the motors and machinery. He had been so engaged in a general way during the preceding nine 3rears and consequently was entirely familiar with the operations of shafts, belts and motors and the dangers incident thereto. He had been cleaning the motor in question for about two years. The motor proper was cleaned by blowing the dust and dirt out with compressed air conveyed through the nozzle of a hose applied at the openings in the motor cover. The dust and grease that accumulated on the motor' frame and boxing around the shafts was wiped off with a piece of waste. It seems that in connection with one of the g’rease cups, grease would accumulate on the lower side of the boxing around the shaft of the small cogwheel between it and the motor. This grease would harden and become gummy so that it required considerable pressure of the hand to remove it with the waste. It was while attempting to clean the boxing at this place that plaintiff was hurt. In so doing he got into a stooping or squatting position at the northeast corner of the motor frame, took hold of the ring at the fop of the motor cover with his right hand, and with his left, in which he held a piece of waste, he readied over and back under the shaft of the small cogwheel and began to wipe the grease off of the bottom side of the boxing, when the sleeve of his jacket fed into the cog*s and his forearm was drawn up through them and thrown out ground into pulp-.

Plaintiff had been required to clean this motor once a week. Piior to about eleven months, before he was hurt he had never cleaned it while it was running. At that time a new foreman was put in charge and he directed plaintiff, according to the latter’s testimony, to clean the motor while it was running so as not to interfere with the work of the men, as it took about' fifteen minutes for the machine to come to a stop after the power was shut off. Thereafter when the motor was to be cleaned, if the punching machine seemed to be idle, although kept constantly • running, plaintiff requested the operator to shut off the power, which the latter always did; if the machine was engaged, he proceeded to clean the motor while it and the gears were in motion. He had cleaned it while in motion four or ifiye times before he was hurt. The foreman emphatically denied that he had directed plaintiff, to clean the motor while it was .running. Other facts necessary to an understanding of the legal questions involved will be stated in connection with their consideration.

The allegations of the petition with respect to the negligence charged are as follows:

“Plaintiff states that his injuries aforesaid were directly caused by the negligence of the defendants, their agents, servants and employees:

“In failing to exercise ordinarv care to furnish plaintiff a reasonably safe place to work, in that defendants failed to exercise ordinary care to properly house or shield the gearing’ and cogwheels to said motor.

“In negligently and carelessly ordering* plaintiff to wipe and. clean said motor while the same was in operation, instead of permitting plaintiff to clean same after said motor was stopped.

“In failing to exercise ordinary care to keep said machinery in reasonably safe repair, so that same would not be dangerous for plaintiff to work in and about said motor; in that the boxing and babbitt bearings were old, and defective, and were loosened,' and the small gear wheel did not mesh true with the larger gear wheel, so that when the machinery was in motion, the lateral movement of the gears and the vibration of the frame of the motor and the bearings on the shafting caused the sleeve on plaintiff’s arm to feed into and become caught in the gears thereof.

“In failing1; to exercise ordinary care to maintain and keep said machinery in reasonably safe condition; and in abandoning the hood and shield which had previously been furnished and fitted to said gearing to protect employees working in and about said dangerous machinery..

“Plaintiff further states that by reason of the different acts of negligence, as aforesaid, acting separately or conjointly, plaintiff was injured as aforesaid, to his damage in the sum of twenty-five thousand dollars.”

The answer is a general denial and a plea of contributory negligence.

At plaintiff’s request the court instructed the jury with reference to. defendant’s negligence as follows:

“The court instructs the jury that in determining whether or not the defendant, his agents or employees was negligent as required by the first instruction, you should only consider the following, grounds of negligence alleged by plaintiff in his petition, to-wit:

“1st. In failing to exercise ordinary care to furnish plaintiff a reasonably safe place to work, in that defendant failed to properly house or shield the gearing and cogwheels to said motor.

“2nd. In failing to exercise ordinary care to keep said machinery in reasonable safe repair, in that the boxings and babbitt bearings were old and defective and loosened, and the wheels would not mesh true with each other, so that when said machinery was in motion there was a lateral or wabbling movement of the gears and a vibration of the frame of the motor and bearing of the shafting; . . . and if yon find that either one or both of snch acts of negligence, if any acting separately or conjointly, directly caused injury to plaintiff and that plaintiff was in the exercise of ordinary care for his own safety, then your verdict will be for the plaintiff under this and the preceding instruction.M

For the defendant the court fully instructed the jury as to the facts which, if found by them, would convict plaintiff of contributory negligence. At the close of plaintiff’s case and again at the close of all the evidence, the defendant requested the court to direct a verdict in his favor.

Appellant assigns as error the refusal of his demurrers and the giving of plaintiff’s principal instruction on the grounds: (1) That the first specification om which the case was sent to the jury did not under the law constitute actionable negligence; (2) that the evidence was not sufficient to take the case to the jury on the second specification; and (3) that plaintiff’s negligence was the proximate cause of his injury as a matter of law. Under the view we entertain as to the controlling questions in the case, it will not be necessary to consider other points that are raised.

I. Appellant and respondent seem to agree that, as the alleged acts of omission on the part of the defendant for which plaintiff seeks to fasten liability upon him were those of the receiver of .a railroad company, the statute requiring dangerous machinery to t16 guarded has no application. But whether that be so or not, the statute is without infiu•enee because the plaintiff did not by his pleading bring his case within! its terms. The naked question, therefore, is whether, independently of the statute, negligence can be predicated of defendant’s failure to guard the cogwheels. Appellant insists that at common law the master incurs no liability for a failure' to guard dangerous machinery; respondent on the contrary asserts that, if ordinary care requires such machinery to he guarded in order to render the place in which the servant is directed to work reasonably safe, then the master is liable for injuries to the servant resulting from a failure to exercise such care. Recurring briefly to the facts, it appears that the motor and gearing were „ so fenced about that none of defendant’s) employees, except those who inspected, repaired, oiled or cleaned them, had occasion to, or could, approach or be about the cogwheels, while in the performance of their work. If the inspection, repairing, oiling and cleaning were done when the machine was not running, then without question there was no necessity for guarding the cogwheels. But plaintiff’s case rests entirely on his assertion, which must be assumed as-true because supported by the 'Sliding of the jury, that he was required to clean the motor and shafting while the machine was in operation. In doing his work under that condition, it became necessary during the course thereof for plaintiff to extend his hand and arm down into the space of eight inches between the gears and the motor and wipe the hardened grease off of the under-side of the boxed shaft of the small cogwheel, in which there was more or less vibration, in immediate proximity to where the cogs of that wheel were feeding info thosé of the large one While speeding at the rate of 1200 revolutions a minute. The extent of the danger encountered by plaintiff in so doing requires no elaboration. Defendant had a housing for the gears which had been furnished with the machine by the manufacturer. Its use, while in no way interfering with the practical operation of the machine, made it impossible for any one working around or about the cogwheels to be caught or injured by them. On this state of the facts can it be said as a matter of law that the duty owed by defendant to exercise ordinary care to furnish plaintiff a reasonably safe place in which to work did not require the former to maintain the cover around the gears'? It is sometimes assumed that statutes requiring dangerous machinery to be guarded were enacted because, regardless of the situation thereof and attending dircumstances, the master at common law is under no duty to guard such machinery. This assumption, it is believed, grows out of efforts to make plain the scope and purpose of the statutes rather than from a consideration of the legal principles applicable to the relation of master and servant. Such statutes usually specify with particularity the machines or parts of machines to be guarded, as well as the circumstances under which they are required to be guarded, and in their exposition the impression is sometimes conveyed that as to machinery not within the terms of the statute, because there is no statutory duty to guard it, the duty to exercise ordinary care in that respect is also absent. Of course no such 'inference is intended or would be justified by the premises. It is manifest that if a given act were negligent before the passage of a. guarding statute, its character in that respect would not be changed in the least by the enactment of such a statute, whether comprehended within its terms or not. In; the case at bar, if the statute were applicable, on the facts disclosed, the question of defendant’s negligence would be entirely foreclosed and his liability absolutely fixed, but it does not follow as a matter of law, that, because the statute is without application, the defendant was not negligent. The test which determines whether defendant’s failure to guard the cogwheels constituted negligence was in no Way affected by the passage of the statute and is to be applied wholly apart from any consideration of the statute, and that test is, was such failure, under the facts shown, consistent with the exercise of ordinary care? Considered in the light of such test the situation discloses that defendant had in operation a machine about which he required plaintiff to work, that the danger encountered by plaintiff thereby was speakingly apparent, that at a trifling expense a guard could have been, mlaintained on such machine that would not in any way have lessened the efficiency of its operation,' and that had defendant maintained such guard the danger to plaintiff would have been wholly removed. It may be that under an expanding view of social duty the standard of “ordinary care” that is habitually exercised by that rather elusive person, the ordinarily careful and prudent man, has advanced somewhat, but whether it has or not it certainly cannot be said that all mien of reasonable minds would now concur in the opinion that the exercise of such care did not require the defendant to guard the machine in' question, even though the danger of contact with it was perfectly obvious.

While the courts of this State have always recognized the right of the master to adopt such methods and to select such appliances for the prosecution of his industry as he may see fit, yet they have consistently held that that right must be exercised within the limits of ordinary care. Where a servant has received injury on account of the character of the appliance with which, or the place in which, he was required to do his work, the liability of the master in respect thereto has been invariably determined by the application of the rule which required him to exercise ordinary care in furnishing such place or appliance. In Curtis v. McNair, 173 Mo. 270, 283, we followed the lead of the Supreme Court of the United States in laying1 down “as a legal principle that in all occupations which are attended with great and unusual danger there must be used all appliances readily attainable known to science for the prevention of accidents, and that the neglect to provide such readily attainable appliances will be regarded as proof of culpable negligence.” For us to now hold that, aside from the statute, the master is under no duty to fence or guard dangerous machinery, regardless of the situation or the. circumstances, would be for us to put aside fundamental principles that have heretofore guided us in dealing with cognate questions and arbitrarily create an exception that could not be justified on any ground of right or reason.

Appellant’s contention that at common law there is no duty to guard dangerous machinery finds apparent support in the decisions of the courts of those jurisdictions that give effect to a doctrine of the assumption of risk that is not entertained in this State. Under the rule that obtains in such jurisdictions the peril of an. unguarded machine, like that' growing out of almost any other conceivable condition or defect of place or appliance, if open and obvious, so that the servant has actual or constructive knowledge thereof, is a risk assumed by him. This view of the assumption of risk is the basis of the decisions referred to. [Rooney v. Sewall Cordage Co., 161 Mass. 153; Podvin v. Mfg. Co., 104 Me. 561.] The same courts that rendered those decisions hold the master liable for injuries caused by a negligent failure to fence a dangerous machine where there is no assumption of the risk, as for example, where the danger is unknown to the servant because hidden or latent. [Flynn v. Prince, etc. Co., 198 Mass. 224; Wilson v. Linen Co., 50 Conn. 433; McDonald v. Steel Co., 140 Mich. 401; Turner v. Lumber Co., 119 N. C. 387.] 'As it is Ithe rule in this State, to which there is no exception, that the servant never assumes a risk that grows out of the master’s negligence, however plain or obvious — that the risk he does assume is the peril incident to the service remaining after the master has exercised ordinary care .(Williams v. Pryor, 200 S. W. 53), it is apparent that cases from other States like those cited above, instead of sustaining appellant’s position, are persuasive authority for the contrary holding.

Cole v. Lead Co., 240 Mo. 397; Czernicke v. Ehrlick, 212 Mo. 386, and Lore v. Mfg. Co., 160 Mo. 608, were cases involving the construction of our guarding statute. In them may be found expressions that lend countenance to appellant’s contention, but, as such expressions were unnecessary to the decisions of the questions then before the court, they cannot be regarded as having the binding force of precedent. Bair v. Heibel, 103 Mo. App. 621, was a case where plaintiff had been injured by coming into contact with cogwheels. The facts and the petition brought the case within the statute, but to avoid a reversal on account of erroneous instructions, it appears that the plaintiff on appeal endeavored to shift his position and hold the defendant on a common-law liability-. His instructions, however, on the facts, were equally faulty under that theory. In the- course of the opinion the court said (without expressly deciding1, because it was not necessary to do so): “It seems there is .no rule -of the common law requiring' dangerous-machinery to be fenced or guarded.” But the same court in the later case of Letanovsky v. Shoe Co., 157 Mo. App. 120, without reference to the earlier one,' held that it was for a jury to say whether the defendant was negligent in failing to provide a guard for a splitting machine in a shoe factory. And we so hold in the case at bar with, respect to the defendant’s failure to maintain a guard or cover on the cogwheels which caused plaintiff’s injury. [18 R. C. L. 594, sec. 94; Brooks v. Oil Co., 100 Miss. 849, Ann. Cas. 1914A. 656; Dettering v. Levy, 79 Atl. (Md.) 476; Westman v. Lumber Co., 91 Pac. (Ore.) 478; Prattville Cotton Mills v. McKinney, 59 So. (Ala.) 498.

II. In respect to the alleged negligent failure to repair, the petition charges that, because the boxing and babbitt bearings were old, defective and loose, and the gear wheels did not mesh true with each other, there was a lateral movement of the gears and a vibration of the motor frame and the bearings on the shaft^n8') and that it was this lateral movement of the gears and this vibration of the boxing that he was wiping at the time of his injury that caused plaintiff’s sleeve to feed into the cog’s. It is appellant’s contention that the - evidence fails to show either that the boxing and babbitt bearings were old, defective or loose, or that a- lateral movement of the gears and vibration of the shaft or boxing caused plaintiff’s injury. To set out in extenso the evidence relative to this phase of the case would unduly lengthen this opinion. The conditions shown by it may be! briefly summarized as follows: The small cog wheel, together with its axle, had a lateral motion of one-thirty-secondth of an inch; this motion was necessarily incident to the operation of the motor and conld not have been avoided. The rim of the large cogwheel was slightly inclined toward the axis of its rotation so that when the wheel was in motion it had the appearance of wabbling. The wheel was not loose on the axle and had no play there, but the bore being a little too large for the axle a key had been driven in to tighten it, and this tilted the rim out of line to the extent that during the course of a revolution it projected to either side one-eighth if an inch more than it would have done had it been plumb or set at right angles with the axle. To the extent of the one-thirty-secondeth of an' inch of lateral motion of the small wheel and the slight wabble of the large one, the gears did not mesh true, but this failure to mesh true was not caused1 by worn, defective or loose bearings, and it did not in any respect lessen the efficient operation of the gears. It do'es not appear that they had any other lateral movement. When the machine was running there was at all times a vibration of the motor frame, gears and shafting. This was more pronounced when the machine was at work. When the shear would first come into contact with the metal plate in the operation of punching a hole in it, there would be a grinding noise of the gears, and for the instant, a slowing of their speed and a tendency of the small cogwheel to pull out and away from the large one. At such times the machine “chattered and quivered.” This action, however, was usual and ordinary and did not indicate that the machine was out of repair. One of plaintiff’s witnesses, a machinist, expressed the opinion that it was too light for the work for which it was used. In any event, the constant vibration caused the boxing and the motor frame itself to work loose from time to time and constant attention was required to keep them tight. It was also necessary at indefinite intervals to renew the babbitt linings. A careful and painstaking reading of the record, however fails to disclose any substantial evidence that at the time of plaintiff’s injury, either the motor frame or boxing was loose, or that the boxing and babbitt bearings were worn, defective or loose. The evidence was not sufficient, therefore, to take the ease to the jury on the issue of the defendant’s negligent failure to repair.

III. The plaintiff testified that he knew and fully appreciated the danger attendant upon cleaning the hoxing next to the revolving cogwheels, but that as the g-ears fed upward he thought he could reach over the axle and wipe the grease from the under side without his sleeve being caught. Whether the danger of so doing was so great that an ordinarily careful and prudent man would not have attempted it, was, we think, a question for the jury.

IV. As the jury were permitted under the instructions to find for plaintiff on either of two specifications of negligence, and as to one the evidence was insufficient to support a finding, the judgment will have to be reversed and the cause remanded for another trial. It is so ordered.

Brown and Small, CO., concur.

PER CURIAM: — The foregoing opinion of Ragland-, C., is adopted as the opinion of the court.

All of the judges concur.


source: Caselaw Access Project

author: GOODE, J.

license: Public Domain

text:
    WALTON BALLMAN, by H. R. BALLMAN, His Next Friend, v. H. A. LUEKING TEAMING COMPANY, Appellant.
    Division One,
    March 2, 1920.
    1. NEGLIGENCE: Automobile Injury to Traveler: 'Stopping Car: Knowledge of Peril. Where there is substantial evidence that the automobile truck could have been stopped within a few feet, that the night was clear and the driver could have seen plaintiff skating on the roadway at the intersection of two traveled streets, three blocks away, and that the driver neither slackened his speed nor signaled liis approach, whether he could have reduced his speed and stopped before he reached plaintiff, and whether he knew, or by carefully watching would have known, plaintiff was in peril from the truck if he proceeded farther, were questions for the jury to determine.
    2. -: -: -: —--: Contributory Negligence. Even though the inference from the evidence that the negligence of the little boy skating in the roadway at the intersection of two traveled streets contributed to his injury is unavoidable, if the evidence leaves the jury free to find that the driver of the automobile truck had a fair chance to avoid running over the boy, after his danger became apparent to the driver, or. would have done so had he kept a proper lookout, the case is for the jury.
    3. -: -: —.-: -: -- — : Verdict Notwithstanding: Children Playing on Street. Testimony by the little boy that 'he looked west when at the north line of the east-and-west street and saw no vehicle coming and the fact that he was struck, by an automobile traveling eastward, at the end of the arc around which he skated in turning back northward in the north-and-south cross street, and testimony of a companion, five or six feet behind him, that as he entered the east-and-west street he saw the automobile a half block away, have a tendency to prove that the automobile was on the left side of the street, and that the driver had ample time to signal, to veer his machine to the south so as to miss the boy, or to stop, and is sufficient to authorize a verdict for plaintiff notwithstanding the boy’s movements and neglect to watch out ' for his safety as participating causes of his injury. Admitting that if his companion saw the automobile the ten-year-old boy could also have seen it, the immaturity of the boy, the habits of boys to play on the streets, the thoughtlessness of children as compared to men, and the failure of the driver to signal, must also be considered, and it was proper to submit the issue of negligence of the driver in ways alleged in the petition other than in not doing what he could to avoid the collision, after he knew, or could have known, it was impending.
    4. EVIDENCE: Experiments: Similar Conditions. For experiments made to determine whether certain signs painted on the automobile truck which struck the plaintiff were visible by plaintiff and his companion, conditions under which the incident in dispute happened must be the same in essential particulars as those under which the tests were made; and in this case, in which was admitted the testimony of several witnesses for plaintiff to prove, by way of experiments, that it was possible for the two boys to have read the sign, as they testified they did, it ,is held that the conditions were not sufficiently reproduced in the experiments for the, résult to be admitted in evidence.

      5. NEGLIGENCE: Instruction: No Itemization of Specific Acts. An instruction for plaintiff, which not only directs the jury to find for him if the specific acts of negligence declared on were committed, but also if the driver of defendant’s automobile truck operated and propelled it in a manner which, under all the circumstances mentioned in' evidence, was not careful and prudent, is erroneous. A ■defendant charged with a negligent tort has the right to be informed what particular negligent acts plaintiff relies on, and the instruction should require the jury to find one or more of the specific acts which the evidence tends to establish.
    Appeal from St Louis City Circuit Court. — Hon. John W. Calhoun, Judge.
    Reversed and remanded.

      Bryan, Williams $ Cave and Walter H. Nohl, for appellant.
    (1) The trial court should have sustained appellant’s demurrers to the evidence, (a) The evidence showed no negligence on the part of appellant. Stotler v. Railroad, 200 Mo. 146.; Berry on Automobiles' (2 Ed/), p. 158; Battles v. Railway, 178 Mío. App. 624. (b) The plaintiff was guilt3r of contributory negligence as a matter of law. Stotler v. Railroad, 200 Mo. 146; White v. Railroad, 250 Mo. 482. (2) A witness should not be permitted to state his conclusions as to the relationship created by an unambiguous contract, or as to the contents of a written instrument. Benton v. Craig, 2 Mo. 198; Filley v. Talbott, 18 Mo. 416; State v. Salmon, 216 Mo. 52'3; Land Co. v. Spellings, 236 Mo. 39; Kuhn v. Schwartz, 33i Mo. App. 610; State v.- Barnett, 110 Mo-. App. 594; State v. Hall, 158 Mo. App. 125; Wise v. Insurance Co., 231 Mo. 80; Ellis v. Brand, 176 Mo. App. 383; State v. Huff, 361 Mo. 488. (3) The trial court erred in admitting respondent’s experiment on visibility. G-raney v. Railway, 140 Mo, 103; Chamberlain v. Mb., E. L. & P. Co., 158 Mo. 1; Riggs v. Railroad, 23 G Mo. 327; State v. Bass, 251 Mo. 120; Helzemer v. Railroad, 261 Mo. 411; Osborne v. Eyster, 195 Mo. App. 523; Lloyd Chemical Co. v. Rag Co., 145 Mo. App. 689. (4) The trial court erred in submitting to the jury a general charge of negligence and an issue not pleaded. WahL hier v. Eailroad, 71 Mo. 516; Schneider v. Eailroad, 75 Mo. 296; McNamee v. Eailroad, 135. Mo. 447; McCarthy v. Eood Hotel Co., 144 Mo. 402 ; Allen V. Transit Co., 183 Mo. 32; Davidson v. Transit Co., 211 Mo. 361; Beave v. Transit Co., 212 Mo. 351; State ex rel. v. Ellison, 270 Mb. 653; Sommers v. Transit Co., 108 Mo. App. 324; Miller v. United Eailways Co., 155 Mo. Ápp. 528; McDonnell v. Columbia Taxicab C'o., 168 Mo. App. 351; Clark v. General Motor Car Co., 177 Mo. App. 628; Young v. Dunlap, 195 Mo. App. 123.

      Frank Coffman for respondent.
    (1) As defendant did not stand on its demurrer at the close of plaintiff’s evidence, that question must be answered in view of' all the evidence; that which was offered by defendant as well as plaintiff. Klockenbrink v. Eailway, 172 M!o. 683; McPherson v. Eailroad, 97 Mo. 253; Biggs v. Eailway, 216' Mo. 310; Eswin v. Eailroad, 96 Mo. 294; Jennings v. Eailroad, 112 Mo. 268 ; Eiley v. O’Kelly, 250 Mo. 660; Lareau v. Lareau, 208 S. W. 243. (a) The evidence showed defendant to be guilty of negligence per se. Laws 1911, pp. 3261, 327, sub-sec. 2, sec. 8; Battles v. Eailway, 178 Mo. App. 623; Koenning v. Eailway, 173 Mo. 725; Underwood v. Eailway, 190 Mo. App. 407. (b) The cases — Stotler v. Eailway, 2001 M!o. 107, and White v. Eailroad 250 Mo. 476, — cited and relied on by appellant, do not support its theory. The actions-of minors are not measured in law by the standard applied to persons of mature years. Zalotuchin y. Eailway, 127 Mo. App. 577; Brown v. Eailway, 127 Mo. App. 499. (c) A minor is not necessarily guilty of contributory negligence ' although under the same circumstances an adult would be as a matter of law. Moeller v. Eailways Co., 133 Mo. Ápp. 75; Anderson v. Eailroad, 161 Mo. 411. (d) When contributory negligence is not pleaded, and plaintiff’s own testimony does not convict him of such, that defen.se is out of the ease. Taylor v. Railway, 256 Mo. 216, Collett v. Kulhman, 243 Mo. 591. (2) Appellant’s assignment of error, that the witness, John E. Miurphy, was allowed to state conclusions about the relations, covered by written contract, is untenable, as appellant pointed out no particular part of the testimony or conclusions, that it wanted stricken out. And the only part of the witness’s testimony that could have been a conclusion was by the witness himself withdrawn and corrected. Hafner Mfg. Co. v. St. Louis, 262 Mo. 6'34; State ex rel. v. Diemer, 255 Mo. 346; Grimm v. Gamache, 25 Mo. 42. (3) The test was made under substantially the same circumstances as existed at the time 'of the accident and it was n.ot error to admit it. Hunt v. City, 211 S. W. 676; Griggs v. Dunham, 204 S. W. 574. (a) But appellant cannot complain of the alleged error, if any, because the generality of its objection to the testimony was fatal to such objection. Clark v. Conway, 23 Mo. 442; Hafner v. St. Louis, 262' Mo. 63'4; State ex rel. v. Diemer, 255 Mo. 346; Grimm v. Gamache, 25 Mo. 42. (b) The motion to strike out came after the unfavorable answer, and was too late. Mann v. Balfour, 187 Mo. 304; Casey v. Gill, 154 Mo. 184; State v. Marcks, 140 Me. 668. (4) Respondent’s instruction was within both the purview of the petition and the evidence and has been approved. Cool v. Petersen, 189 Mo. App>. 725'; Denny v. Randall, 202 S. W. 602; Brooks v. Harris, 207 S. W. 296; Selinger v. Cromer, 208 S. W. 871. (a) And it was not broader than the pleadings. Selinger v. Cromer, 208 S. W. 8731; Lange v. Railroad, 208 Mo. 476. (b) And when one act of negligence, sufficient to authorize recovery, being alleged in the petition, and properly submitted to instruction, any error of the instruction in submitting another act of negligence was not prejudicial to defendant. Riggs v. Railroad, 212 S. WL 879; Moyer v. Railroad, 198 S, W. 842.
   GOODE, J.

The plaintiff had his right arm crushed about the elbow, so as to leave it permanently stiffened, by a motor truck alleged to belong to defendant company and while driven by an employee of it. The accideni occurred at the intersection of Seventeenth and Mullanphy streets, in St. Louis, about seven o’clock and ten minutes, in the evening of October 9‘, 1914. On the trial of this action brought to recover damages for the injury, a heavy verdict was returned in plaintiff’s favor and from a judgment entered thereon, the appeal was taken.

At the date of the accident plaintiff, a boy of ten years of age, was skating with a companion on the roadway of Seventeenth Street, a north-and-south thoroughfare, paved with asphalt, in the block between Mullanphy and Chambers streets, both east-and-west thoroughfares, the latter being to the north. The two boys skated from Chambers along the west side of Seventeenth Street to Mullanphy, and while they were turning around at the intersection of the two streets, intending to go back north along the east side of Seventeenth Street, the left front mud guard of the truck struck plaintiff, whirling him about and throwing him down with his right arm under the truck, so that the left rear wheel ran over it. At the time the other boy, Milton Lammers, was four or five feet behind plaintiff, and the latter was from six to eight feet from the northeast corner of Seventeenth and Mullanphy streets. The automobile was proceeding to its garage, which was east of Seventeenth Street, and had traveled eastward along Mhllanphy for many blocks. Plaintiff testified that when he reached the north curb-line of Mullanphy Street he looked east and west and saw no .vehicle coming from either direction, heard no rumbling of wheels, nor any signal by a horn, bell or otherwise. The boy Lammers, who was six feet or so behind plaintiff, saw the truck coming eastward and in the middle of the block to the west; he heard no signal, but heard the rumble of the truck, which was not very loud.

The driver testified he did not slacken speed as he approached Seventeenth Street and thought he blew the horn, because he generally did. Witnesses, including the boys, testified the words “Rice-Stix Dry Goods Company” were painted on the side of the truck, and were visible and read, either in whole or in part, by them. Some of them saw only the words “Rice-Stix.” This testimony was intended to show' the truck which ran over plaintiff belonged to defendant and was operated under a contract between H. A. Lueking and the Rice-Stix Dry Goods Company, entered into July 1, 1934, whereby said •Lueking agreed to do the carting and draying for said Dry Goods Company for one year. Lueking, who was the president of the Lueking Teaming* Company, said he did not know whether or not said company was incorporated at the date of the accident, but an attorney of Rice-Stix Dry Goods Company testified the company was on that date hauling for the Dry Goods Company, and permitting-this testimony to go to the jury; is complained of as an erroneous ruling. It should be said the attorney, when shown the contract, said he was mistaken, and that the hauling*, when the accident occurred, was done by Lueking, individually. He said, however, he knew the Lueking Company did the hauling; for his company from trying a case which arose previous to the accident, where their automobiles were involved; had always tried cases “as being the H. A. Lueking Company.” Two trucks were provided by Lueking with the name “Rice-Stix Dry Goods Company” on them, to be used in performing the aforesaid contract. Lee Arens was the chauffeur who operated one of them and the one charged to have inflicted the .injury in question, and John Amend drove the other. There is testimony pro and con about the visibility of the words on the truck, considering the light by which they must have been read on the evening of the accident. Two gas street lamps were burning at the crossing, one at the northeast and one at the southwest corner. The, testimony is conflicting as to whether the evening was clear or misty at the hour of the accident. It was shown other trucks bearing’ the name “Stix-Baer & Fuller Dty Goods Company” were in use, and that one of them which passed down Mullanphy Street near' the time of the accident, might have caused it, and the witnesses who testified “Rice-Stix Dry Goods Company” was on the truck in question, might have mistaken the name. It was one defense, and some witnesses, including the chauffeur who operated the truck alleged to have hit the hoy, testified that no truck belonging to defendant and operated by its driver, ran over any one the day of the accident. The bearing of other facts upon our conclusions will be understood best if stated in connection" with the propositions to which they are relevant.

Specific acts of negligence are charged in the petition, which may be epitomized as follows: First, in violation of Sub-sectmn 2 of Section 8 of the Laws of 1911, p. 326, the driver of the automobile of defendant which ran over plaintiff, failed to diminish speed, or give timely signals by horn, bell or other device, as he was approaching plaintiff, who was then in the. traveled part of Mullanphy Street, along which the truck was traveling and when it was approaching an intersecting highway. The portion of the statute counted on reads thus:

“Upon approaching a pedestrian, who is upon the traveled part of any highway and hot upon a sideAvalk, and upon approaching an intersecting highway; or a curve or a corner in a highway, where the operator’s vieAV is obstructed, eA^ery person operating a motofi vehicle shall slow down and give a timely signal with his bell, horn or other device for signalling.’.’ [Laws 19.11, p. ,327.]

Second, at the time plaintiff was injured, defendant’s driver in charge of its automobile truck, was operating- it on a public highway in an imprudent manner in this: he failed and neglected to slow the automobile down or give-a timely signal when he was approaching an intersecting highway and also plaintiff, who was on the traveled part of said highway; and negligently drove and operated said automobile at said time and place, at a speed of tAvelve miles an hour, which was likely to and did endanger the life and limbs of plaintiff, in violation of Section 9, Laws of Missouri 1911, page 327. The section counted on in that paragraph of the petition reads.-

“Every person operating a motor vehicle on the public highway of this State shall drive the same in a careful and prudent manner and at a rate of speed so as not to endanger the property of another or the life and limb of any person: Provided, that a rate of speed in excess of twenty-five miles an hour for a distance of one-half of a mile shall be presumptive evidence of driving at a rate of speed which is not careful and prudent. ’ ’

Third, at the time and place plaintiff was injured, defendant’s said driver was operating the automobile along- a public street at a place much used for travel and where said driver should have anticipated persons were apt to be; and said driver, in violation of Sub-section 9, of Section 12, Laws of Missouri 1911, page 330, negligently failed to use the highest degree of care that a very careful person would use under like circumstances to prevent injury to plaintiff in this: he drove and operated said automobile at a high and dangerous rate of speed, to-wit, twelve miles an hour, along- and across the streets, and neglected to give a timely warning to plaintiff by horn, bell, etc., or to give any signal of the approach of the automobile, after he saw, or in the exercise of the highest degree of care could have seen, plaintiff in a position of danger; that he failed to slow said automobile down or give any signal at all when approaching a highway when his view was obstructed. That paragraph declared on this part of the Act of 1911:

, “Any .persons owning, operating or controlling an automobile running- on, upon, along or across public roads, streets, avenues, alleys, highways or places much used for travel, shall use the highest degree of care that a very careful person would use, under like or similar circumstances, to prevent injury or death to persons on, or traveling over, upon or across such public roads, streets, avenues, alleys, highways or places much used for travel. Any owner, operator or perison in control of an automobile, failing to use such degree of care, shall'be liable to damages, to a person or property injured by failure of the owner, operator or persons in control of an automobile, to use such degree of care, and in case of the death of the injured party, then damages for such injury or death may be recovered, as now provided or may hereafter be provided by law, unless the injury or death is caused by the negligence of the injured or deceased person, contributing thereto.”

Fourth, said driver, at the time and place of the injury to plaintiff, by the exercise of ordinary care, could have seen plaintiff in a position of peril, in time to have stopped said automobile, or to have slackened its speed sufficiently to avoid hitting and injuring plaintiff; but that said driver negligently failed to use ordinary care or make any effort to stop the automobile or slacken speed. That paragraph states a case of common-law negligence.

Defendant answered by a general denial.

Among the rulings assigned for error, one'relates to an instruction granted at plaintiff’s request and covering all the facts on which plaintiff relied for a verdict. The complaint of this instruction is that, besides setting out the specific acts of negligence charged in the petition and instructing the jury to return a verdict for plaintiff, if they found either of those acts was proved by the weight of evidence, it directed a verdict for Mm if the jury found “defendant’s driver' propelled and operated said automobile in a manner which, under all 'the circumstances mentioned in the evidence, was not careful and prudent.”

Defendant also contends a demurrer to the evidence should have been sustained, because no negligence was proved against defendant or its chauffeur, and contributory negligence on the part of plaintiff was conclusively shown.

Another error alleged is the admission of testimony of several witnesses for plaintiff to prove it was possible to read a sign painted on an automobile which was driven past the- scene of the accident, by way of experiment. This testimony was objected to because the conditions existing at the time of the experiment, February, 1917, a few days before the trial, were not the same as regards the light and the color of the lettering, etc., as were the conditions at the time of the accident.

Still another assignment questions the instruction for plaintiff for particulars apt to confuse and mislead the jury, by assuming facts were established by the evidence when their existence was controverted. We deem these unfounded and will not enumerate them.

I. The case was for the jury on testimony adduced to prove the driver of the truck neither slackened speed as he drew near the crossing, nor signalled his approach ; to prove, too, he could have reduced his speed or stopped before he reached plaintiff and after he knew, or, by watching carefully, could have known plaintiff was in peril from the truck if it proceeded unchecked. An expert chauffeur testified - a truck weighing 6500 pounds and running over a dry pavement at the rate of ten or twelve miles an hour, could be stopped within twenty feet. The speed mentioned was that of the truck charged to have hurt plaintiff at the moment of collision, and though its weight was unproved, from the description of it the inference is fair that it weighed less and could have been stopped as soon as the one the witness mentioned. A chauffeur of defendant who, on the evening of the -accident operated a truck precisely like the one in question, testified he was driving between eight and ten miles an hour and stopped within seven feet; that both trucks were empty. This witness said, too, he could see from Seventeenth to Fourteenth Street, or three blocks, and the driver of the truck in question said the night was clear when he turned in at the garag-e near the time of the accident.

No defense on the score of plaintiff’s negligence was pleaded, and whether he contributed to his injury is of no moment unless the evidence, including his own, shows he did beyond inference to the contrary. [Hudson v. Railroad, 101 Mo. 13.] Even if that inference is unavoidable, the evidence left the jury free to find the chauffeur had a fair chance to avoid running over plaintiff, if the latter’s danger, while he was circling round in Mullanphy Street, was apparent to the chauffeur or would have been had he kept a proper lookout. [McGee v. Railroad, 214 Mo. 530; Potter v. Railroad, 136 Mo. App. 145.]

II. What remains of the inquiry regarding the effect of plaintiff’s movements and neglect to watch out for his safety as participating causes of his injury, is whether he should have been allowed a verdict on any finding other than neglect of the- chauffeur to take measures to avoid vanning against him after his peril became visible. Relevant to this point is plaintiff’s testimony that he looked west when at the north line of Mjallanphy Street and saw no vehicle approaching, also the circumstancé of the truck catching him at the east end of the arc around which he skated in turning northward, and only six or eight feet from the northeast corner of the two streets — a fact tending to prove he was not run over from dashing into Mullanphy Street immediately in front of the truck; and this circumstance is the more significant because- his companion, five or six feet behind him, saw the automobile as he entered Mullanphy Street, half a block away; a distance which afforded the chauffeur time to signal, to veer his machine to the south so as to miss plaintiff, or to stop. The testimony has a tendency, too, to prove the truck was travelling on the left, instead of the right side of Mullanphy Street, when plaintiff was run over. It is true that if plaintiff’s companion saw the truck, plaintiff could have seen it also if he had looked intently; but considering his immaturity, the omission to signal to attract his attention, the habit of city children to play in the streets and the thoughtlessness of boys as compared with men, it was proper to submit the issue of negligence of the chauffeur in ways alleged in the petition other than not doing what he could to avoid the collision, after he knew, or should have known, it was impending. [Moeller v. United Rys., 242 Mo. 721, 727; Fry v. Transit Co., 111 Mo. App. 324.]

III. No error was committed in admitting the testimony of the attorney for the Rice-Stix Dry Goods Company, that the Lueking Company, and not Lueking individually, was doing the hauling of the Dry Goods Company when the accident occurred. The witness: vacillated! in his statements, hut they were for the jury and the objection that they were equivalent to letting the witness interpret the written contract is untenable. He offered no explanation of its meaning, but after it was exhibited to him, merely retracted, in a way, the statement made previously that the Lueking Company did the hauling. Enough testimony was adduced in support of this fact to go to the jury; and so appellant conceded, in effect, by remarking in. its brief that “outside of the-testimony of this witness, there was very little evidence for respondent on this point.”

IY. Witnesses testified for both parties regarding the visibility of signs painted or hung on the sides of automobiles used in experiments conducted subsequent to the accident; and defendant contends the, ex-perimehts for the plaintiff were made under conditions so dissimilar to those under which the witnesses who testified to reading “Rice-Stix Dry Goods Company” on the truck which ran over plaintiff, as tó render inadmissible testimony of the result of the tests. For this species of evidence to be admissible, the conditions under which the incident in dispute happened, must have been the same in essential particulars as those under which the tests were made. [Riggs v. Railroad, 216 Mo. 304, 327; 1 Wigmore, Evidence, sec. 442; Greenleaf Evidence (16 Ed.), sec. 14b.] Otherwise, the occurrence or non-occurrence of an analogous result during the experiment, may mislead the jury into surmises that have no substantial basis in the facts, instead of aiding them to conclude the controverted incident was or was not possible, or probable. [See Lloyd Chemical Co. v. Rag Co., 145 Mo. App. 675, where the subject is examined and excerpts from pertinent authorities quoted.] The issue in the present ease is, could the boys have read the words “Rice-Stix Dry Goods Company,” on the truck as it passed down Seventeenth and Mullanphy Streets, when they were at or near the crossing of those streets, and could another witness, standing one hundred and seventy feet north on the west side of Mullanphy Street, have read them, as he testified he did. The experiment for plaintiff was made February 19th, two years or more after the date of the accident, but when the days were about the same length as they were on said date, at the same hour in the evening and by the same faint daylight and the same degree of illumination from the street lamps. Other conditions were different. A canvas painted green was fastened to the curtains of a passenger automible, six feet above the surface of the street and the words “Rice-Stix Dry Goods Company” were painted on the canvas in white letters. The trucks of defendant with that sign on them were more like express wagons, the lettering was in gilt on the green sides of the bed, three and one-half feet above the surface of the street, and the sides were sunk an inch or so in a panel, and above the panel a sort of flange or wing projected with an upward tilt. At least one of the witnesses of the experiment observed the sign on the side of the passenger automobile while it was motionless and before it was driven past these witnesses. This no doubt enabled him to make out the words of the sign more easily when it was driven past him during the experiment. The conditions under which the witnesses for plaintiff must have read the lettering on the truck the evening of the injury, were not sufficiently reproduced in the experiment for the result to be admitted in evidence.

Y. The main instruction given at plaintiff’s request not only directed the jury to find a verdict for him if the specific acts of negligence declared on had been committed by defendant, but also if the driver pro- '■ pelled. and operated the truck in a manner which, under all the circumstances mentioned in evidence, was not careful and prudent. Such instructions have been condemned repeatedly, for the reason that a defendant who is accused of a negligent tort has the right to be informed what particular negligent acts the plaintiff relies on, so the defendant may prepare to disprove them, if they were not committed. When the petition is general in its charges of negligence, the defendant usually may move for specific averments; and if particular acts are charged, a recovery can be had only on proving the occurrence of one or more of those acts. The rule is expressed with perfect clarity in McManamee v. Railroad, 135 Mo. 440, 447.

Four cases are cited in plaintiff’s brief to support the instruction, but neither of them does in the least. [Cool v. Peterson, 189 Mo. App. 717; Denny v. Randall, 202 S. W. 602; Selinger v. Cromer, 208 S. W. 871; Riggs v. Railroad, 212 S. W. 878.] In the first of those cases an instruction, submitting the facts for which a verdict might be returned for the plaintiff, mentioned, as the opinion said, “the precise-specification of negligence relied upon in the petition.” Another instruction stated, in an abstract way, the duty of the person operating an automobile on a highway to use the highest degree of care; and the court refused to reverse the judgment because of that instruction, as it could not have been misleading when read in connection with the one which required,the jury to find the very acts of negligence alleged as the condition of a verdict for the plaintiff. In the second ease the act complained of was driving an automobile close to and around the team and buggy of the plaintiff at a dangerous speed and carelessly running over the plaintiff’s dog, which was near the team. The court instructed that it was the defendant’s duty to use the highest degree of care that a prudent person would use under similiar circumstances while operating his automobile on. a highway, and if the jury found the defendant, in passing the plaintiff, ran at an excessive speed near his buggy, without using that degree of care and by reason thereof killed the dog, the verdict should be for the plaintiff. The instruction required the jury to find the defendant guilty of the acts of negligence charged to warrant a verdict for the plaintiff. In the third case the plaintiff, who had been struck by an automobile after he had alighted from a street car, alleged the defendant saw, or by exercising ordinary care could have seen, the plaintiff alighting from the car and crossing the street in time to stop his car without striking the plaintiff. The trial court advised the jury that if the defendant, by using the highest degree of care a very careful person would use under like or similiar circumstances, could have discovered the plaintiff’s position in time to have avoided striking him, and she operated her-said machine at said time and place at a high and dangerous speed, and failed to give a signahwith her bell, etc., in time to enable the plaintiff to avoid being struck, etc. The instruction required the jury to find the defendant had been guilty of other acts of negligence than the one alleged, and of that one too, thereby imposing an unnecessary burden on the plaintiff. In the fourth of the cited cases, three careless acts were alleged, and the court, by its principal instruction, put the plaintiff’s right to recover on a finding that the defendant was guilty of all three.

In the case at bar the erroneous clause of the instruction is separated from the rest by the word “or” as ah independent ground for a verdict for plaintiff. It is apparent the cases cited for the soundness of the charge are inapt, and attentive study of them by counsel who wrote the brief would have saved this court the labor of the foregoing analysis.

The judgment is reversed and the cause remanded.

All concur.