text:
    C. M. SMITH BROTHERS LAND & INVESTMENT COMPANY v. MARTHA C. PHILLIPS and THOMAS MILAS PHILLIPS, Appellants.
    Division One,
    July 23, 1921.
    1. DOWER: Homestead: Re-marriage: Limitations. Where the widow conveyed her interest in the homestead property and then married again, her right to dower accrued on her re-marriage, and the right of her grantee to maintain suit to have assigned and to recover dower is barred in ten years after her re-marriage, and said grantee being barred her right to have her deed cancelled as fraudulent and to have dower assigned to her is likewise barred in ten years.
    2. - — -■: -: -: Ejectment: Equitable Defense. The widow conveyed her “life interest” in the homestead property, and then r re-married, and more than ten years thereafter her grantee brought ejectment to have dower assigned and admeasured and to recover the same. To this action she, being in possession and all the householder’s children having reached their majority, filed a cross-bill, alleging that her deed, made nineteen years prior thereto, was void for fraud perpetrated upon her by the grantee, and asking that said deed be cancelled, and claiming that she was entitled to exclusive possession by virtue of her statutory quarantine. Held, that the court having adjudged that the action of her grantee to recover dower was barred by limitations, and 'that judgment being affirmed on appeal, that holding put the plaintiff out of the case, and it likewise settled the entire controversy, for the only use she could then make of a judgment annulling her deed would be to aid her in procuring an assignment of dower as against the children of her husband, and the pleadings make no such issue between her and them.
   BROWN, C.

Two appeals were taken in this case and separately docketed for hearing in this court. The first of these, ante page 579, was taken by plaintiff, who sued in ejectment, from a judgment denying it the relief asked, and this is an appeal by the defendant Martha 0. Phillips from the judgment dismissing a cross petition filed by her asking equitable relief against the plaintiff. It asked no relief against her co-defendant, Thomas Milas Phillips, and no issue between the two defendants was presented by the pleadings.

We have held in a separate opinion considering the matters involved in the plaintiff’s appeal, that it had no cause of action and affirmed the judgment of the circuit court to that effect, and will not reconsider any matter so determined in passing upon the single question presented by this appeal, namely, the right of the appellant to the affirmative relief sought by her in her cross petition. In all other respects the holdings of the court as expressed in that opinion are equally conclusive as to all the parties to these appeals.

The suit is plain ejectment, and the petition is in the conventional forn¡L, charging both defendants alike with possession of the premises. At the trial plaintiff claimed through a conve,yance executed by this appellant April 8, 1898, to the Smith brothers, its predecessors in title, conveying her “life interest” in the eighty acres of land in question as the widow of James J. Phillips, who died intestate in 1895 while domiciled upon the land with his wife and their minor children. The appellant having remarried August 8, 1903, and no dower having been assigned, the plaintiff claimed all right to the possession which appellant, but for her conveyance, would have had as doweress by virtue of her statutory quarantine, and not otherwise. We held, in considering the plaintiff’s appeal, that more than ten years having elapsed after the death of appellant’s husband and her remarriage on August 8, 1903, and the institution of this suit, the plaintiff was barred of recovery upon that title by the terms of the special Statute of Limitations relating to the recovery of dower.

This holding put the plaintiff out of the case. It was founded upon the theory that appellant’s conveyance was valid and sufficient to transfer all her interest as doweress which might spring from her subsequent remarriage, and that those interests had become forfeited by its inaction. .

The appellant, by her cross action now under consideration, undertakes to present a theory not involved in the plaintiff’s appeal. She asserts, with much force and detail, that her conveyance to Smith brothers through whom plaintiff claims, was void for fraud perpetrated upon her by the grantees in its procurement, and that she, having been in possession adverse to plaintiff’s claim through her deed, was not barred by the Statute of Limitations from presenting it as a defense when that possession should be attacked. In other words she contends, as we understand, that the deed being void for fraud she was not bound to act upon the presumption that the holders intended to enforce it, but might rest upon the assurance of their honest recognition, by inaction, o'f her right. Without questioning the general rule’ that matters barred by the Statute of Limitation as ground of recovery may nevertheless be used as weapons of defense in proper cases, Ave will consider it with reference to the facts before us.

When appellant made the deed to Smith brothers in 1898 she occupied the land with her six minor children as the homestead left her by her deceased husband. She immediately surrendered its possession to Smith brothers, the purchasers, and moved with her children to a farm which they provided for her occupation. On August 21,1899, after qualifying as guardian of her children, she brought suit in ejectment in their name against the tenant of Smith brothers to recover possession of the homestead, and on the 24th of the same month she sued Smith brothers in equity to set aside her deed to them for fraud. The last-mentioned suit was dismissed by her at the first term, while the ejectment suit was prosecuted to final judgment, which was affirmed by this court on February 18, 1903 (Phillips v. Presson, 172 Mo. 24), and she took possession under the judgment for her children, the youngest of whom attained her majority about the beginning of the year 1914.

The fact that she instituted the ejectment suit for her children without joining herself as a plaintiff can only •be explained as a clear admission that her right to possession with them under the Homestead Act had passed by her deed to the Smith brothers. Her suit to cancel that deed, instituted three days afterward, although indicating a disposition to reinstate herself in her homestead right for the same fraud which she now pleads, her prompt dismissal of that suit indicates a deliberate purpose to abandon the position that her deed was invalid for fraud perpetrated upon her by the grantees, and stand upon the right of her children alone. Her final recovery in the Presson Case was in right of her children alone, and we find nothing in this record indicating that she changed her position in that respect by denial of the validity of her deed to Smith brothers or otherwise, until, the filing of her amended answer in this suit, or that she had asked or received from her children, the inheritors of the fee, any assignment of, compensation for, or other recognition of her dower. She is as clearly barred of her action therefor under the special limitation of ten years as was the plaintiff claiming through Smith brothers, her grantees.

The plaintiff being out of the case, the only use this appellant could make of her cross bill would be to aid her in procuring an assignment of her dower as against In-co-defendant, Thomas Milas Phillips. She asks no remedy against him, and the pleadings make no issue whatever between them. She only asks a useless judgment against the plaintiff.

The subject-matter of this suit being confined to the title of the parties to the particular tract of land in suit, the plaintiff having been defeated by the judgment of the circuit court to the effect that it has no possessory right whatever in or to the premises, and no issue being raised by the pleadings as between the defendants, we can see no reason why that judgment does not settle the entire controversy.

The nineteen-year-old cause of action presented by the cross petition of this appellant having been unnecessary to her complete defense she was not prejudiced by the general finding of the court against her on the issue so presented. Although it appears that the deed involved in this part of the controversy purported to convey some interest in other lands, such lands were in no way involved in this suit, nor are they described in the pleadings. No claim is made that the grantees in the deed and their successors, if any, have not been in undisturbed possession of such lands from the date of its execution in 1898.

The judgment seems to afford appellant all the relief to which she is entitled upon the pleading’s, and we see no reason for disturbing it to let in a new trial in her favor which, so far as her appeal shows, cannot add to the relief already granted her.

The finding and judgment of the circuit court upon her cross petition is therefore affirmed.

Ragland and Small, CG., concur.

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

All of the judges concur.


source: Caselaw Access Project

author: WOODSON, P. J.

license: Public Domain

text:
    R. N. ALEXANDER, Appellant, v. ST. LOUIS-SAN FRANCISCO RAILWAY COMPANY.
    Division One,
    July 23, 1921.
    1. NEGLIGENCE: Contributory: Railroad Crossing. The driver of an automobile, traveling on a public street twelve miles an hour towards a railroad, who, bad be looked at any time after be reached a point within fifty feet of the crossing, could have seen a train approached, but did not look, was guilty of contributory-negligence.

      2. - — ■: ■-: -: Looking in Wrong Direction. Near the railroad track were some bill boards and trees which obstructed a southward view of the railroad track of a traveler on an intersecting public street, until he bad passed them and was within fifty-feet of the track, and from there on there was nothing to prevent him seeing an approaching train except the telegraph poles, which were about one hundred and seventy-five feet apart, which to a man traveling in an automobile, the traveler testified, would obstruct a view of a passenger train of six cars for a half miie; after passing the bill boards, which were eighty feet from the track, he did not look southward until his automobile, traveling twelve miles an hour, was within ten or fifteen feet of the track; when he was twenty-seven feet from it he could have seen a train coming from the south for a distance of a half mile, but he did not see or hear the train until he was within ten or fifteen feet of the track, which was then too close to stop his automobile before the long train, an hour behind schedule and running from twenty-five to thirty-five miles an hour, would have reached the crossing, and his only chance therefore was to go ahead, but in trying to cross he was struck and injured. The reason he did not look southward for an approaching train after passing the bill boards was that a gentleman riding with him called his attention to some one who was standing north of the street near the track and was hallooing to him, apparently, and this attracted his attention northward and before he ceased’ to look in that direction his automobile had run sixty-five or seventy feet, which brought him within twelve or fifteen feet of the track. He was intimately familiar with the crossings and obstructions. There was no evidence that, after his peril had been discovered or could have been known by the fireman or engineer, the train could have been stopped in time to have avoided injuring him. Held, that, whether the bell was rung and the whistle sounded or not, and whether or not the train was running in excess of ordinance speed, he was guilty of such contributory negligence as bars recovery of damages, and the humanitarian rule has no application to the case. *
    3. .— -:-: Ordinance Rate: Violation As Excuse: Reliance Upon Observance. Contributory negligence is not abrogated or excused by the violation of an ordinance limiting the rate of speed a train may be run within the corporate limits of a city, nor does such violation relieve a traveler on a public street of the city to look and listen for such train as he approaches a crossing; nor where the traveler is .guilty of contributory negligence in not looking, when to have looked would have been to have seen the train in time to avoid injury, has he a right to go to the jury on the theory that he might have crossed the track in safety had the train been observing the ordinance. But said rule does not abrogate the other , rule that the traveler who knows of the existence of the ordinance may rely upon its observance, if he does not know it is being violated.
    4. -:-: Humanitarian Rule: Inability to Stop Train. Where the evidence is undisputed that the train, if. it had been running at the maximum ordinance speed of twelve mile an hour, could not have been .stopped in time to have avoided injuring a traveler at the railroad crossing, after his peril was discovered or discoverable, and the traveler was guilty of contributory negligence in not looking for the train, when to have looked would have been to have seen it in time to have avoided the accident by the exercise of proper care, there is no room in the case for an application of the last-chance or humanitarian rule.
    5.--: -: -: Obstruction by Telegraph Poles. Testimony that a driver of an automobile cannot see a train of six coaches a half mile distant at any point within eighty feet of the track on account of telegraph poles located one hundred and seventy-five feet apart along the edge of the right of way is so unreasonable and against all common observation and experience as to be devoid of probative force.
    Appeal from Jasper Circuit Court. — Hon. Grant Emerson, Judge.
    Affirmed.

      J. D. Harris for appellant.
    (1) The court committed reversible error in directing a verdict for the defendant at the close of the plaintiff’s case. The plaintiff’s proof abundantly showed that the defendant was negligent in .running its train at a speed not only in violation of the ordinance, but at a speed that would be dangerous at such a crossing within the city limits in the absence of an ordinance; that the defendant’s servants failed to give warning or signal of the approach of the train by ringing the bell or sounding the whistle. ’(2) The engineer admits that his fireman bv the most casual watch could have observed the plaintiff after he passed out from behind the bill-board, a distance of eighty feet from the track, and that no alarm was sounded and no effort made to bring* the train to a. stop or even slacken its speed, until the moment of impact, when he started to set his brakes. The plaintiff’s proof shows conclusively that his automobile was traveling* at a rate of speed not to exceed twelve miles per hour, The engineer ' says that he was running better than twenty-five miles per hour, but that if he had been going at the ordinance rate of twelve milep, and his fireman had warned him of plaintiff’s approaching the track, with the appliances at hand, he could have slackened the speed of the train to six miles an hour by the time it reached the crossing. With these facts conceded and abundantly proved in this record, there can be no two views in this case, but that if the train had been running* at the ordinance speed, the plaintiff would have passed across the track and passed beyond the zone of danger before the engine would have reached the crossing. In approaching the crossing he had the right to indulge the presumption sthat if a train should be approaching the crossing it would be running in compliance with the ordinance fixing the speed. He had the right to indulge the presumption that if a train were approaching the crossing the bell would be rung, because the crossing was within the corporate limits of the city. In indulging these presumptions he was merely proceeding* in the course of a man of reasonable prudence and according* to the course of the law, without forfeiting his rights for damages resulting from the defendant’s negligence. The* plaintiff was not guilty-of contributory negligence as a matter of law. The question of the plaintiff’s contributory negligence was one for the jury. This position is abundantly sustained by the adjudicated cases of this State. Monroe v. Chicago & Alton Railroad Co., 219 S. W. 68; Maginnis v. Railroad, 268 Mo. 667,* Lagarce v. Railroad, 183 Mo. App. 85; Jackson v. Railroad, 189 S. W. 381; Stotler v. Railroad, 200 Mo. 107; Weigman v. Railroad, 223 Mo. 699; Underwood v. Railroad, 190 Mo. App. 417; Donohue v. Railroad, 91 Mo. 357. (3) Under the statute it is the-imperative duty of railroads to have the engine equipped with a bell and to keep the same ringing continuously for 80 rods before reaching the crossing. They do not have, in cities, the alternate of ringing the bell or sounding the whistle, the bell must be rung and continuously, in order to comply with the statute. Mitehel v. Railroad, 122 Mo. App. 50; Donohue v. Railroad, 91 Mo. 357. (4) Contributory negligence to prevent a recovery cannot be imputed to a person because he did not look for the train when his view in the' direction it was approaching was obstructed by a row» of houses or other obstructing objects. Donohue v. Railroad, 91 Mo. 357; Weigman v. Railroad, 223 Mo. 699; Mitehel v. Railroad, 122 Mo. App. 50. (5) Where the defendant’s servants and agents in charge of its train, before the injury, discovered, or by the exercise of ordinary care might have discovered the plaintiff’s position of peril, although caused by their concurring 'negligence, and neglected to use the means at their command to prevent the injury, the defense of contributory negligence is not available. The violation of a municipal ordinance, which regulates the speed of trains, is negligence per se, and every person traveling in a public street in a city has a right to presume that the railroad will obey such ordinances, he has a right to rely upon the fact that no train would be run by the railroad at a greater rate of speed than that fixed by the ordinance. It is as much the duty of the railroad’s servants to look out for him on the track, or approaching the track, as it is his duty to look out for a train approaching such crossing. Kellney v. Mo.-Pae. Ry. Co., 101 Mo. 67, -77.

      W. F. Evans, Hoivard Gray, Allen McReynolds and Ma/mt & Mann for respondent. ■
    (1) The evidence shows conclusively a clear ease of contributory negligence on the part of the appellant, in that after he had passed the obstruction of the billboard on his right, had he looked he could have seen the approaching train in ample time to have stopped his car and avoided his injury. He is, therefore, precluded from recovery, and the trial court was right in so instructing the jury. McCreery v. Railway, 221 Mo. 31; Sanguinette v. Railroad, 196 Mo. 466; Hayden v. Railroad, 124 Mo. 566; Kelsay v. Railroad, 129 Mo. 362; Huggart v. Railroad, 134 Mo. 679; Kries v. Railroad, 148 Mo. 330; Underwood v. West, 187 S. W. 84; Green v. Railroad, 192 Mo. 131; Mockwick v. Railroad, 196 Mo. 550; Tannehill v. Railway Co.,. 213 S. W. 818. (2») Mere looking and listening do not suffice. The traveler must exercise care also to make the act of looking effective. He must not approach the track at such a rate of speed that when he reaches the point where he could see the approaching train it is too late to protect himself. 3 Elliott on Railroads, secs. 1164, 1165, 1166;.2 Sherman & Redfield on Negligence, secs. 476, 478; Greer v. Harvey, 195 Mo. App. 11, Hook v. Railway, 162 Mo. 585; Dey v. Railway, 140 Mo. App. 473. (3) The obligation to look is a continuing one and is not discharged when one takes a look at a place from where he cannot see. If there is another position from which he can get a view of the track for his own protection he must avail himself of it. This the plaintiff did not do. Kelsay v. Railway, 129 Mo. 372; Mc-Creery v. Railway, 221 Mo. 31; Walker v. Railway, 193 Mo. 481; Sanguinette v. Railroad, 196 Mo. 494; Tannehill v. Railroad, 213 S. W. 818. (4) The rule of contributory negligence is not abrogated by an ordinance limiting a rate of speed, and the fact that respondent’s train was running in excess of the ordinance limit did not relieve the appellant of the duty to look and listen for his own protection, nor entitle him to go to the jury on the theory that he might have crossed safely if the train had been observing the ordinance limit of speed. Weller v. Railroad, 120 Mo. 635; Turner Railroad,-74 Mo. 602; Burge v. Ry., 244 Mo. 76; Stottler v. Ry., 204 Mo. 639; Hunt v. Ry., 262 Mo. 275; Moore v. Ry., 176 Mo. 544; Laun v. Railroad, 216 Mo. 579; Green v. Ry., 192 Mo. 131; Schmidt v. Railroad, 191 Mo. 215. (5) Neither can the last chance doctrine be invoked to aid appellant’s case. There is no testimony showing the train could have been stopped in time to have averted the collision. The absence of such showing is fatal to appellant on this proposition. Burnett v. Railway, 172 Mo. App. 51; Hamilton v. Railroad, 250 Mo. 722; Sites v. Knott, 197 Mo. 684. (6) Besides, with the train going twenty-five miles an hour and the automobile ten or twelve miles, after the automobile reached the side track only four seconds would elapse until the collision. Too short a space' of time in which to evoke the last chance rule. McGee v. Railroad, 214 Mo. 530, 542; Degonia v. Railroad, 224 Mo. 596; Burge v. Railroad, 244 Mo. 102. (7) Appellant cannot evade the consequences .of his contributory negligence or excuse his negligent failure to see the approaching train by the attempt in his brief to invoke the presumption that he relied upon the train observing the ordinance as to the rate, of speed. He was on the witness stand and testified, but he failed to state that he relied upon such presumption. He testified that he was looking and listening for the train; that he was in this instance, as he had always been, vigilant. He thereby raised the conclusive presumption that he was not relying upon the train being restricted to the ordinance limit of speed. Moekowik v. Railroad, 196 Mo. 571; Reno v. Railroad, 180 Mo. 483; Nixon v. Railroad, 141 Mo. 439; Bragg v.'Railroad, 192 Mo. 321. Neither could he in any circumstances raise the presumption that although he might have actually seen the train approaching, he could have assumed.that the engineer was obeying the law; and proceeded on his way on that presumption, because he testified that when he did see the train he could tell that it was coming thirty miles an hour and his witness who had just passed over the track and saAV it coming and was in the same relative position to it, testified that it was coming thirty miles an hour. What this witness saw, he could have seen, and what he testified himself to having seen rebuts any presumption. Green v. Mo. Pac. By. Co., 192 Mo. 131; Laun v. Railroad, 216 Mo. 563. Neither can he be heard to say that where there were no obstructions to his view he looked and did not see, or that it was useless to look because he could not have seen. Knorpp v. Wagoner, 195 Mb. 664; Dean v. Transit Co., 192 Mo. 485; Latson v. Transit Co., 192 Mo. 466.
   WOODSON, P. J.

-This suit was instituted in the Circuit Court of Jasper County by the plaintiff against the defendant to recover the sum of $25,000 for personal injuries sustained by him through the alleged negligence of the defendant, in running one of its trains of cars against him in the city of Carthage, Missouri.

The trial resulted in the plaintiff taking an involuntary nonsuit with leave to move to set same aside, which motion was overruled, and he duly appealed the cause to this court.

Counsel for the respective parties have made rather an exhaustive statement of the facts of the case, but we substantially adopt, that of the appellant for the reason that it presents a clearer and stronger view of plaintiff’s case than his own statement does, also presents in a fuller and clearer manner the' defendant’s case than does that of the plaintiff.

As no question is presented involving the sufficiency of the pleadings they will be put aside, and we shall deal only with the facts as shown by the record, and the law as declared by the court. 1

The facts are:

Central Avenue runs east and west, and appellant' was going east. The railroad runs from the southeast to the northwest, but more nearly north. and south. The train with passenger equipment of seven coaches and -the engine, with an average length of something like seventy-five feet, was approaching the crossing from .the south, or southeast, and running to the north, or northwest.

The accident occurred on the 26th day of October, 1917, at seven o’clock a. m. The train was one hour late.

The appellant testified in his own behalf that the crossing in question was a much traveled one; that he had lived in Carthage twenty-six years, during all of which time he had been familiar with the crossing and the surroundings ; that he had served two terms as a member of the city council, and that at the time of the accident, he was, and for eighteen months prior thereto, had been street commissioner of the city of Carthage. In' other words, the testimony admits his entire familiarity and intimate knowledge of the situation at the crossing, as far as the obstruction either to his right or left was concerned, as he approached the place of the accident.

The ordinance limiting the speed to twelve miles an hour was introduced and appellant testified to his knowledge of its existence. He did not testify, however, that he relied upon the presumption that the train would be restricted in its operation to the ordinance speed as it approached the crossing. On the contrary, he says he saw the train and when he saw it it was running not less than thirty miles an hour according to his best judgment at the time.

He testified that as he approached the crossing the speed of his automobile, of which he was the driver, and which contained on the seat with him one passenger, Mr: Hull, was going not less than ten and not over twelve miles an hour, slightly down hill to the track; that his automobile and the brakes thereon were in good condition; that going at that speed he could stop his automobile in fifteen or twenty feet; that he doesn’t think he was ever able to stop it in less than a rod going ten or twelve miles an hour. That if he had been going four or five miles an hour he could have stopped his car at ten or twelve feet; that as he approached the crossing there was quite a tier of billboards that set just off of the street just outside of the sidewalk, some eight feet high and perhaps forty feet long, and that west of that, before you came to the billboards, were houses and buildings and so on; that after .you got to the billboards there was considerable brush, limbs of trees, that obstructed .the view until you got more than half way from the billboards to the railroad; that the thorn tree which he spoke of was about thirty feet from the south line of the street, and about something like thirty feet east of the billboards; that the body of the tree was right in line with the right of way of the railroad ;■ right in the fence there was a black thorn tree about four or five inches in thickness, twenty or twenty-five feet high, with considerable top to it, beside a good deal of other brush that was along the fence; and the hang-over limbs from trees outside of the railway fence obstructed the view almost entirely until you got from behind the tree; that the tree wasn’t close enough ,to the billboard to obstruct the view, but the trees along the fence hung down to such an extent you could not see up the railroad to any extent until 3~ou got past the black thorn tree; that from the thorn tree to the track wouldn’t be over twenty-five feet.

' That as he approached the track the view to the north was practically unobstructed; that he was at the wheel of his car on the north side thereof; that he was watching for the train; that he was always careful about that as he approached railroad crossings; that as he got somewhat past the billboards referred to, while the trees mentioned were in the way to the south, Mr. Hull, who sat beside him, asked: “Is that fellow hollooing at us,” and that he (appellant) looked immediately to the north, the direction in which Hull was looking, and there were a number of railroad men there, not less than one-hundred feet from the street; that he didn’t have time to find out who they were calling; that he saw no motion by the men; that he had hardly time to look, running thirty or forty feet, until Hull said, “Look out;” that he turned his head the other way and there was a train just off the street not more than fifty or one-hundred feet away, coming down the track toward him; that the front wheel of his car had just crossed the side track, and he was so close to the main track that there was no chance for him to stop without stopping on the track, and no chance to turn either way; that he saw instantly what his only chance was, and the only safety he had was to try to get across the track, and that was the last he knew.

The testimony by the witnesses show that he was struck on the crossing by the train, inflicting the injuries for which he sues.

He testified that he heard no signal, by either th^ bell or whistle. Other witnesses corroborate him in this respect, but the engineer, whom appellant put on the stand, testified that the fireman was sitting on the seat ringing the bell at the time of the accident, and had been since the time it arrived in the corporate limits; in addition, that it had whistled for the crossing signal.

He testified on direct examination also that the railroad track running southeast is almost entirely straight for a full half mile and is considerably down grade, and a train coming down it generally coasts; that there is no grinding of the wheels and no noise made by the train to amount to anything; that at the time he discovered the train the front wheels of his automobile were about twelve feet from the crossing.

After testifying to the extent or his injuries, he was cross-examined. That he was entirely familiar with the situation of Central Avenue crossing; that he had hauled gravel from the pit over it ever since he had been commissioner, off and on; and had been familar with the crossing and surroundings for twenty-six years; that on October 26th the leaves had fallen a little; that there was nothing to the north to obstruct his view of a train approaching from that direction; that there were two tracks to the railroad where it crossed Central Avenue; thatThe first track which he approached was the switch track and that he knew that that morning; that he had ■ given his deposition'in May, 1918, after the accident on the 26th of October, 1917 . (The trial was on the 20th day of November, 1919). That when he had given his deposition he had testified in answer to questions by Judge Gray:

“Q. Do you know how far west of the main track of the Frisco an automobile would be when you could see up the track a quarter of a mile? A. No, I don’t know, but it would be guess work with me. I should think about eighty or ninety feet.

“Q. Eighty or ninety feet west of the main track, you had a view of the main track, of a train coming from the south, about a quarter of a mile? A. Yes, sir.

“Q. When you get to the west line of the right of way what would obstruct it? A. There wouldn’t be anything.

“Q. When you were about eighty feet from the crossing Mr. Hull said, ‘Do you think those men are hollooing to us ’ ? A. Yes, that was his remark.

“Q. Then from that time on until you got over the switch track or about over the switch track, Mr. Hull said nothing to you about the approaching train? A, Not until just as we were running on the switch.

“Q. Then, Mr. Alexander, had Mr. Hull looked to the south any time, he not being concerned with the operation of the machine, from the time those men hollooed until you ran onto that switch, this train coming would have been in plain view? A. Yes.”

As to this last question and answer the witness on the stand said he didn’t think he answered it as transcribed, but he couldn’t say as to how he answered it.

He was then asked regarding his deposition; if the following question and apsw'er given by him at the time were not correct;

“Q. Tell me, how you could have looked between the time you got within eighty feet of that track and the time you got over the switch, without seeing the train? A. I had been looking and listening for a train, and my attention was turned the other way on account of his remark and their hollooing, and I was approaching the track, it takes very little bit, running twelve miles an hour to run eighty feet. I had run perhaps sixty-five or seventy feet during the time.”

He said he thought he had answered that way.

He was .asked if the following question was not propounded to him in the deposition:

£<Q. Now, Mr. Alexander, you said you were looking and listening — when did you look to the south after you got within eighty feet of the track, and when you could have seen the train coming? Had you looked before the time you looked and it was too late.? A. I hadn’t looked at all.”

And he replied that this was correct.

Then he stated again on the stand at the trial that as a matter of fact he hadn’t looked to the south, after he got to the end of the billboard eighty feet from the track until his front wheels were across the switch, which he thinks was about twelve feet from the main track, though he had never measured it, and doesn’t know whether it was sixteen feet or not; that he had stepped the distance from the main line track to the corner of the billboard, and that it was eighty feet; that he had done this after his deposition was taken.

He admitted that at the taking of his deposition he was asked: ££Q. When was it you were looking to the south and listening for a train,.and where were you with respect to the billboard on the west side of the track and on the south side of Central Avenue?”

And that he had answered: “A. I was mighty near the point where I should have seen the train; my attention was attracted the other way.”

He testified that, if there were no other obstructions when he passed the billboard and got in eighty feet of the track, as far as the billboard was concerned when you get past it you could see up the railroad to the Harrington Quarry, which the testimony shows was several blocks away.

He reiterated he was eighty feet from the main line when Hull spoke to him. He again reiterated that he never looked south after he passed the billboard until he was within twelve feet of the crossing, and that after he had crossed past the billboard if he had looked down the track south he could have seen a train one hundred and fifty. feet, and every foot nearer the track it traveled would have enabled him to see farther up the track if he had been looking that way, and then when he was twenty-seven feet from the west rail of the main track that he could have seen a train south for half a mile, except in so far as the telegraph poles would obstruct his view; that the telegraph poles to a man in an automobile would obstruct a train containing six coaches half a mile away.

After other witnesses had testified, the plaintiff was recalled to the stand by his counsel for a further examination, and he testified on direct examination that when he was going down Central Avenue he was looking and watching for trains more from the south than the north, because he had a better view to the north than to the south; that he saw no signal, heard no whistle, heard no noise or any train whatever; that he had been looking and listening more to the south than to the north, although he always watched both ways, and he was asked this question by his counsel:

‘ ‘ Q. How long a time elapsed when your attention was called by Hull of that fellow calling to you, how long an interval of time elapsed when you turned your head in that direction to look, and when you turned it back again on the second statement of Hull’s? A. I couldn’t say, I shouldn’t think more than two or three seconds.”

Then on cross-examination he was asked, “If he had looked np the track south when fifty feet from the main track, if he could not have seen down past the light plant?” .Answer, “Well, there would have been some obstruction in the way; it is hard to see a train or anything of that kind, in an automobile when it is moving;” and that if he had been stopped, his view would have been practically unobstructed, except by the poles; that after he passed the billboard everything else was off the right of way, except the poles.

After he had complained about his view being obstructed by the poles he was asked: “Q. You think the seven-car train would be cut off from your view by telephone poles 173 feet apart?” His answer was,. “To a great extent in an automobile. ’ ’

Dr. Webster testified to the extent of plaintiff’s injuries, which testimony is immaterial here.

P. S. Vance testified that he, driving a wagon, had crossed this crossing just a head of the appellant and after passing over the crossing noticed the approaching train coming toward him, at a rate of speed, in his judgment, at thirty or thirty-five miles an hour. His cross-examination shows that he had reached a certain point after observing the train when he heard the collision, which was almost one-third of the distance that the train was from the crossing when he saw it approaching (his team going about four miles an hour).

He also testified that the obstruction of. the thicket up there on, that knoll prevented you seeing the train coming down the track until you would be almost on the track.

On cross-examination he testified that the knoll in question was away up at Third Street two blocks away. Other witnesses testified as to the extent of plaintiff’s injury, and that the speed of the train was twenty-five or thirty miles an hour.

J. W. Meredith was the only other witness except the engineer who testified as to the view of the appellant as he approached the track. He said that according to his remembrance there was quite a board fence that ran pretty close, he couldn’t say how close, and some brush and things along down there next to the road and some trees that had grown up there.

“Q. State whether or not this obstructed the view there at that time. A. Well, yes, to some extent of course. ’ ’

On cross-examination he said that on account thereof the view wasn’t exactly plain for a person going down; that the trees were in the right-of-way fence.

There were no photographs introduced in evidence, but they were used in the examination of the witnesses, and the testimony of the witnesses show that they admit that they showed an unobstructed view after the billboard was passed.

Appellant introduced Price Parmlee, in charge of the locomotive that struck his car' as a witness. He testified that the train consisted of engine, tender, six or seven passenger coaches; that they were an hour behind time and running twenty-five miles an hour; that the whistle was blown for the crossing signal at the Missouri Pacific’ crossing, and that the bell was rung the entire time after entering the corporate limits until the collision; that the automobile came onto the crossing from the fireman’s side; that he, the engineer, did not see or know anything of it until his attention was called to the fact by the fireman, which was just before the crossing was reached, right against it, and that he immediately commenced setting the brakes; that there was a heavy train of seven cars; it had already whistled for the station, and that the application of his brakes as they approached the Missouri Pacific crossing had more or less exhausted his air.

Plaintiff’s attorney on re-direct examination drew from this witness the statement that if he had been running twelve miles an hour he could not have stopped sooner than half the train length, the length of three cars at the least calculation; that twelve miles an hour would take less space within which to stop than twenty-five; that his fireman was sitting on the seat box ringing the bell and looking ahead, and that watching he could see the automobile as soon as it came out from behind the billboard; and that if he had been notified of the approach of the automobile as soon as that occurred, and he was within one hundred feet of the crossing, he could have applied the brakes and slackened the train some by the time he got to the crossing, a little bit, if he had seen it, but not down to five or six miles an hour; perhaps he could have slowed down to six miles an hour; that you can’t apply the brakes in a second, that it takes a little space to get into communication with the fireman after he discovers it.

He testified that if the fireman had known when the man was eighty feet away that he wasn’t looking, wasn’t going to take care of himself, he, the engineer, could not have received notice and- applied the air and stopped the train before reaching the crossing.'

After the engineer’s testimony, appellant called O. C. Donehay as an expert witness. He testified that the average length of a passenger coach was seventy-five or eighty feet, some of them longer. This expert testified that the engineer, after the fireman told him of the approach of the automobile, could, in his judgment, have stopped the train in two train lengths, which would have been a pretty good stop at twenty-five miles an hour; and that if he had been going at twelve miles an hour under the same conditions, could have stopped the .train within five hundred or six hundred feet.

I. The first contention of counsel for appellant is that the trial court erred in1* declaring as a matter of law that he was guilty of such contributory negligence as to prevent his.recovery in this case. In support of this contention we are cited to the following cases: Monroe v. Chicago & Alton Railroad Co., 219 S. W. 68; Maginnis v. Railroad, 268 Mo. 667; Lagarce v. Railroad, 183 Mo. App. 70, l. c. 85; Jackson v. S. W. Mo. Ry. Co., 189 S. W. 381; Stotler v. Railroad, 200 Mo. 107; Weigman v. Railroad, 223 Mo. 699; Underwood v. Railroad, 190 Mo. App. 407, l. c. 417; Donohue v. St. L., I. M. & S. Railroad Co., 91 Mo. 357.

The appellant testified that theré were no signals given of the approach of the train that struck him, and he was.corroborated in that statement by other witnesses; he also stated that he was perfectly familiar with the crossing where he was injured, and the conditions and surroundings there, and had been for many years.

He also described a certain billboard and a locust thee and some brush which obstructed his view of the train until after he passed the east end of the billboard, which was eighty feet from -the main track, and that after reaching thát end, the tree and the brush mentioned still partially obstructed his view of the train until he reached a point about fifty feet from the track, and from there on there was nothing to obstruct his view except the telegraph poles, which were something like one hundred and seventy feet apart; that after passing .the east end of the billboard he did not look south again until he ran his automobile some sixty-five or seventy feet, which brought him within ten or fifteen feet of the main line track. When he was twenty-seven feet west of the rail of the main track, he could have seen the train coming from the south for a distance of a half a mile, except in so far as the telegraph' poles would obstruct his view; that the telegraph poles to a man in an automobile wonld obstruct a train containing six coaches for a distance of half a mile. He was driving his automobile at twelve miles an hour and could stop it in twelve or fifteen feet. He never saw nor heard the train until he was within ten or twelve feet of the main track, which was too close to stop his car before the train would have reached the crossing, so he then tried to cross the track in front of the approaching train and was struck by it and injured.- The reason why he did not look south for the train after passing the end of the billboard was that Mr. Hull, the gentleman riding with him, called his attention to someone calling to him, who was north of the track, which attracted his attention in that direction and before he got through looking in that direction his automobile had run some sixty-five or seventy feet, which brought him within twelve or fifteen feet of the crossing.

Under the authorities cited counsel for appellant contend that the evidence mentioned made a case for the jury, and that the court erred in declaring as a matter of law that he was guilty of contributory negligence, and was not entitled to a recovery. .

We shall briefly consider those cases:

In Monroe v. Chicago & Alton Ry. Co., supra, the plaintiff, as he approached the crossing in his automobile, actually looked towards the approaching train at a time when he could see and did see enough of the track in the direction of its approach, and saw that there was no train on it, and that it was impossible for a train to come within his view running at the ordinary speed limit and to strike him before he could have cleared the track; from that point to the crossing his view was completely obstructed. The court in that case properly held that the plaintiff made a case, but no such facts appear in this case; the appellant never looked, and had he looked at any time after he reached a point within fifty feet of the crossing he could have seen the approaching train.

(Maginnis v. Mo. Pac. Ry. Co., supra, was decided upon the humanitarian doctrine. In that case the evidence shows that the engineer was looking directly at the deceased when he was sixty feet from the crossing, and could see that he was oblivious to his danger, but gave him no warning whatever. It was true Maginnis was guilty of contributory negligence which barred his right to a recovery, but for the fact that the engineer had. the last clear chance to save his life after observing his negligence and peril, but negligently failed to avail himself of that chance. This record presents no such case as that.

The same facts were involved in the case of Lagarce v. Mo. Pac. Ry. Co., supra, as were those in the Monroe Case, supra. In that case plaintiff had the last clear view of the track when he was forty feet away. He saw enough of the track to show that train approaching at a lawful rate of speed could not reach the crossing until he had ample time to get over it. That is not true in. this case.

Nor is the case of Jackson v. S. W. Mo. Ry. Co., 189 S. W. 381, in point. In that case Jackson was approaching the crossing at right angles, and when in about fifty feet of it he got his first possible view of the approaching car, which was some one hundred and fifty feet away, which was the limit of his vision. Jackson and the motorman exerted themselves to the utmost to stop and avoid the collision, but neither was able to do so. No signal of the approaching car was given. It was held that Jackson could not as a matter of law be guilty of contributory negligence, because both he and the motorman testified that after he got the first possible view of the approaching car he tried to avert the collision. In the case at bar the appellant could have seen the approaching train, for a distance of half a mile or more, had he looked in that direction-after he reached the end of the billboard, and especially when he was about fifty feet from the crossing. Nor is the case of Stotler v. Railroad Co. in point. In that case the defendant was operating its train in excess of the speed limit, which was eight miles an hour, but in discussing that case the court, on page 146, said:

“Now if this ease be viewed from the standpoint of plaintiff’s evidence, she is presumed to have looked and listened and to have seen and heard the train. If it be viewed from the standpoint of defendant’s evidence, she actually did see the train when it was forty rods away and she was still in a place of safety south of the track. The case then has progressed to the point where fault can be found with the plaintiff, if at all, not in her not looking and listening, in her not seeing and hearing the advancing train, but in the act of driving on the track immediately before the train. The act in question was not hers, but if she actually participated in that act.or is responsible therefor she ought not recover.”

The court then proceeded to show the tender age of the plaintiff, her reliance upon her mother who was the' driver, and on that theory alone held that she was not guilty of contributory negligence as a matter of law. And it may be inferred from the opinion in the Stotler case that the mother, who was driving the vehicle, would have been barred as a matter of law by her contributory negligence.

In Weigman v. St. L. Iron Mt. & Southern Ry. Co., the plaintiff was held not gqilty of contributory negligence, as a matter of law, because there was an engine and train of cars on the side track which prevented him from seeing the approaching train until his horses’ feet were on the track, the train having given no signal of its approach.

The Underwood Case is similar to the Weigman Case, and was disposed of upon the same principle. That case quotes from the Campbell Case the following language :

‘ ‘In this case the boy had a right to expect that there would be headlight (signals) on any car on that road, and if he looked in both directions as he approached the track and saw no headlight (heard no signals), and if he then concluded for that reason that there was no car coming and drove on the track, the court had no right to say, as a matter of law, that he was guilty of contributory negligence. ’ ’

The trouble with the case at bar is that the appellant testified that he never looked in the direction of the approaching train after the billboard was passed until he reached a point some twelve or fifteen feet from the crossing.

The case of Donohue v. St. L. Iron Mt. Ry. Co., 91 Mo. 357, is analogous to the last considered, case. Touching the right of the appellant to rely upon the presumption that respondent was limiting the speed of the train to that prescribed by the ordinance, the case of Kellney v. Mo. Pac. Ry. Co., 101 Mo. 67, cites the Donohue Case and holds that:

“If Kellney had been in a position where by looking he could have seen the approaching train and could have seen that it was running in excess of ordinance speed and at such a rate that if he went on the track he would be struck before he could get off he could not recover.”

In the case at bar Alexander admits and his other witnesses testify to the rate of speed, and as we have heretofore said there is no presumption left in the case on that proposition.

In the consideration of this case counsel for the appellant seems to assume contributory negligence is abrogated or excused by the existence of an ordinance limiting the rate of speed a train may run-in a city, where the train has violated the ordinance, and that in consequence thereof the appellant was relieved of all duty to look and listen for its approach and was therefore entitled to go to the jury upon the theory that he might have crossed the tracks in safety had the train been observing the ordinance.

That is not the law of this State. He was still chargeable with contributory negligence, in the same degree as if no such ordinance was in existence. (Of course I do not mean to convey the idea that if such, an ordinance exists, and a person knows of its existence, he may not rely upon its observance, if he does not know that it is being violated). The following cases are authority for the legal proposition before stated: Weller v. Railroad, 120 Mo. 635; Turner v. Railroad, 74 Mo. 602; Burge v. Railway, 244 Mo. 76; Stottler v. Railway, 204 Mo. 619, 639; Hunt v. Railway, 262 Mo. 271, 275; Moore v. Railway, 176 Mo. l. c. 544; Laun v. Railroad, 216 Mo. 563, 578; Green v. Railway, 192 Mo. 131; Schmidt v. Railroad, 191 Mo. 215.

" II. It is not seriously contended by counsel for appellant that he. was not guilty of contributory negligence, but seeks to escape the effects thereof by invoking the last chance doctrine.

He put the engineer on the stand who testified that he could not have stopped going at the rate of speed he was” traveling in time to have averted the accident. He then proves by the engineer that if he had been going at the ordinance limit, twelve miles an hour, he could not have stopped in time to have averted the accident. He proves by the engineer, whov was on the opposite side from appellant as he approached the track, that after he became aware that he was not going to stop in the clear, as any one seeing him would have every right to presume he would do, he did all he could to stop in time, and failed to do so.

There was no evidence introduced tending to contradict the testimony of the engineer, or that the train could have been stopped in time to have averted the injury after the appellant was in apparent place of danger.

It is true that appellant, in a kind of off-hand way, stated that a man in an automobile could not see a train of cars within a distance of half a mile approaching the crossing in question from the south, at any point east of the end of the billboard mentioned and west of the crossing, on account of the telegraph poles, which were one hundred and seventy-five feet apart, which would be about fifteen poles, set in the usual and ordinary way.

• This testimony is so unreasonable and against all common observation and experience, we deem it unworthy of further notice. There is no probative force in it whatever, and the trial court probably refused to submit it to the jury upon the ground that it was against the physical facts in the case.

. For the reasons stated we are of the opinion that the trial court properly declared as a matter of law that the appellant was guilty of contributory negligence and that he could not recover.

Finding no error in the record the judgment is affirmed.

All concur.


author: SMALL, C. GRAVES, J.

text:
    CARRIE WALDMANN, Appellant, v. SKRAINKA CONSTRUCTION COMPANY.
    Division One,
    July 23, 1921.
    1. NEGLIGENCE: Contributory: Instructions: Demurrer. If tbe defendant was not guilty of negligence, or if its negligence was not tbe proximate cause of plaintiffs injury, or if tbe plaintiff herself was guilty of contributory negligence as a matter of law, she has no cause to submit to the jury, and, defendant having asked a demurrer to the evidence, which was refused, no error in the instructions need be considered on appeal, for in such situation there could be no reversible error in any instructions given or refused, for either party.
    2. -- — : -: Excavation in Street: Known to Plaintiff. While a traveler on a public street or sidewalk may ordinarily presume that the way is clear and in good condition, he cannot, if he knows that the same is torn up or obstructed by public work being done thereon, go forward in reliance upon the presumption that the way is clear, but must exercise his faculties to see and discover the dangers he may encounter from such obstruction, and if he fails to do so and is injured thereby he is guilty of contributory negligence and cannot recover damages, although the public authorities or the contractor doing the work may also have been negligent in regard to such obstruction.

      3. -: -: -: -: Ordinary Care. In reducing the surface of an alley to proper grade, the concrete sidewalk along the street at the alley’s mouth had been broken up and an excavation made ten inches deep and fifteen feet wide. The edge of the broken sidewalk, at the south side of the excavation, was jagged, “like saw teeth” three-eighths of an inch in length. There was a dim red light in the middle of the excavation, and the hole was not fenced. Plaintiff crossed over the excavation early in the evening on her way to a theatre, and saw the red light. She returned about ten o’clock, coming from the north along the sidewalk, crossed the excavation to the south side without difficulty, and as she attempted to step up onto the sidewalk her instep struck one of the projections on its edge and she was thrown down and injured. The night was dark and the red light too dim to enable her to see the projection. Held, that she had actual knowledge of the excavation, knew how deep and wide it was, and the' darkness made it all the more incumbent on her to look out for dangers, including the projection, and she was guilty of such contributory negligence as prevents a recovery of damages.
    4. - — : -- — : -: Darkness. To walk into and across a hole ten inches deep and fifteen feet wide in a concrete sidewalk, of whose existence and condition the traveler has actual knowledge, in nearly absolute darkness, without being specially careful and without feeling her way as an ordinarily careful person would, is contributory negligence.
    5. -: -: --: Jagged Edges. Where the traveler knew that the broken place and deep and wide hole in the concrete sidewalk, made by a contractor with the city in bringing an alley to proper grade, which she attempted to cross over on a dark night, was incomplete and unfinished work, she was put upon notice and bound to look for and anticipate dangers connected with it, including the jagged edge of the broken line of the sidewalk and the danger of tripping when her feet came in contact with its sharp projectipns.
    Appeal'from St. Louis City Circuit Court. — Ron. Frank . ■ Landwehr, Judge.
    Affirmed.

      Sale & Frey for appellant. .
    (1) Any person, and particularly a contractor who creates an excavation in a public highway, is hound at common law to keep suck place so guarded and in suck a condition tkat pedestrians using tke highway will not be injured. Williamson v. Mullins, 180 S. W. 395; McDonald v. Transit Co., 108 Mo. App. 374; Wiggins v. St. Louis, 135 Mo. 566. It makes no difference whether tke pedestrian falls into tke excavation or is injured in stepping out of it. Louisville v. Nicholls, 165 S. W. 660; Bowman v. Ogden City, 33 Utah, 196, 93 Pac. 561; Asker v. City of Council Bluffs, 164 Iowa, 661. This duty was declared very definitely in City Ordinance 1139 of tke Revised Code of St. Louis, introduced in evidence. Scklinski v. City of St. Josepk, 170 Mo. App. 380; Ryan v. Kansas City, 232 Mo. 471. Where tkere is a danger ligkt in an excavation out towards tke street where tke natural inference would be tkat it was placed tkere to warn tke drivers of wagons not to drive in an alley which was being made, it cannot be said to be a warning to pedestrians not to use tke excavation. Suck a ligkt was neither proper at tke common law nor under tke ordinance. Scklinski v. City of St. Josepk, 170 Mo. App. 380. (2) Tke fact thát plaintiff knew of the excavation does not charge her with contributory negligence as a matter of law, since/ she did not fall into tke excavation, but sustained her injuries in getting out of tke excavation. She had passed over tke excavation to tke north in safety earlier in tke same evening and she had a right to assume, therefore, tkat tke sidewalk was safe when she returned, going to tke south. Tke question of contributory' negligence in suck character of cases is always one for tke jury. Devlin v. City of St. Louis, 252 Mo. 203; Loftis v. Kansas City, 156 Mo. App. 683; Willis v. St. Josepk, 184 Mo. App. 428; Bar v. Kansas City, 105 Mo. 550. One need not.abandon a convenient method of travel in a public street because of a danger unless tke use of tke street, under £he circumstances, is absolutely inconsistent with ordinary care and tke mere fact of tke knowledge of tke danger is not sufficient to defeat tke right of recovery. Bentley v. Hat Co., 144 Mo. App. 612; Tockstein v. Bimmerly, 150 Mo. App. 491.

      M. N. Hayden and John P. Griffin for respondent.
    (1) There is no reversible error in this record for the reason that appellant is not entitled to recover upon any theory of negligence alleged. First, there is a failure of proof of (a) negligence on the part of respondent and (b) any causal connection between any of the negligence alleged and appellant’s injury, and, secondly, the evidence of appellant herself establishes b.eyond question that her injury resulted wholly from her own negligence in failing to raise her foot high enough to reach the sidewalk, as she attempted to step upon it. She knew that she had to step up out of the alley to the sidewalk, but she, nevertheless, permitted her foot to strike against the edge of the sidewalk, thereby causing her to fall. She herself says that the projecting piece of the edge of the sidewalk, about which so much complaint is made, came in contact with her foot at the instep. Necessarily, therefore, a portion of her foot must have gone under, instead of over, the edge of the sidewalk. That situation resulted from her act. As a matter of law, she was guilty of negligence proximately causing her injury and the trial court should have so held. Not being entitled to have her case submitted to the jury at all, and the verdict having been in favor of respondent, there can be no errors, either in instructions or in the admission of evidence offered by respondent, warranting a reversal of this judgment, (a) This court has the power to reverse this judgment only in the event that it believes that error was committed by the^ trial court “materially affecting the merits of the action.” R. S. 1919, sec. 1513; Freeland v. Williamson, 220 Mo. 217, 229; Mann v. Doerr, 222 Mo. 1,15; Moore v. L. Ry. Co., 176 Mo.'528, 545; Mockowik v. Railroad Co., 196 Mo. 550, 568. (b) If the record discloses that the evidence offered by plaintiff wholly failed to establish that she is entitled to recover or entitled to have her case submitted to the jury at all, then the verdict of the jury having been in favor of defendant, there can be no error in any instructions given at the instance of the respondent which can be held to be reversible error. Wagner v. Elec. Co., 177 Mo. 44, 60; Bradley v. Tea Co., 213 Mo. 320; Trainer v. Mining Co., 243 Mo. 359, 371; Shinn v. Railroad Co., 248 Mo. 173, 181; Shelton v. Light Co., 258 Mo. 538; Boesel v. Express Co., 260 Mo. 453; Moore v. L. Ry. Co., 176 Mo. 528, 545; Mockowik v. Railroad. Co., 196 Mo. 550, 568; Schuepbach v. Gas Co., 232 Mo. 603, 611; Putnam v. Boyer, 173 Mo. App. 394, 401; Lomax v. Ry. Co., 119 Mo. App. 192; Chapman v. Railroad, 240 Mo. 592, 601. (c) A judgment will not be reversed where the right result was reached, though the record may show that the proceedings were irregular, or, perhaps, erroneous. Mockowik v. Railroad Co., 196 Mo. 550, 568; Peterson v. Transit Co., 199 Mo. 331, 344. (d) The error which, it is alleged, inheres in an instruction, must be prejudicial in order to warrant a reversal of the judgment. Mockowik v. Railroad Co., 196 Mo. 550, 568; Bradford v. Ry. Co., 136 Mo. App. 705, 711;' Perry v. Yan Matre, 176 Mo. App. 100. (e) Where the verdict of a jury is clearly for the right party it should be upheld, even if there should be error in the giving of instructions. Fritz v. Railroad, 243 Mo. 69; Trainer v. Mining Co., 243 Mo. 359; Quinn v. Railroad, 218 Mo. 561.
   SMALL, C.

Appeal from the-Circuit Court of the City of St. Louis.

Suit for personal injuries. The substantial facts are: The defendant contracted with the City of St. Louis to pave, and for that purpose, to take out the necessary subgrade of an alley between Wells and Ridge Avenues in said city, and which intersected or opened into Hamilton Avenue on the west side of and terminated at said Hamilton Avenue. Hamilton Avenue ran north and south, and said alley east and west, thus entering Hamilton Avenue at right angles. Prior to the commencement of the work by defendant, the granitoid sidewalk on the west side of Hamilton Avenue was continuous between Wells and Ridge avenues, and ran across the mouth of. the alley. The defendant’s work contemplated grading and paving the entrance into the alley from the west side of Hamilton Avenue, so that teams and vehicles would have egress and ingress to and from the alley into said avenue. This required the cutting away and removal of the sidewalk and curb where they crossed the month of the alley, and the excavating of the snbgrade of the approach, which work had been completed at the time plaintiff was injured, to-wit, on the night of July 7,1918. The excavation thus made was ten inches deep, that is, ten inches below the surface of ..the granitoid sidewalk, fifteen feet wide (the width of the alley), and about twelve to fifteen feet long, the distance from the curb to the property line. The granitoid sidewalk was 'cut across, east and west, along the line of the excavation, and its edges were left exposed and were part of the north and south sides of the excavation. The plaintiff, a married lady of mature years, living in the neighborhood, passed over the excavation in safety without difficulty in walking north on the sidewalk, just before dark, on the evening of her injury, in going to a picture show. After the picture show, she started to return to her home the same route, going south on the same sidewalk, accompanied by her maid, whom she had met at the show. This was about ten o’clock at night. "When they reached the excavation, the maid, walking just in front of plaintiff, crossed over in safety. The plaintiff following immediately behind stepped down into the excavation and walked across it to the south side, without any difficulty. But, as she undertook to step up the ten-inch rise on the south side, her foot caught, she says, on a projection from the edge of the granitoid walk, and she was thrown to the sidewalk and injured. There was no fence around or about the work. There was one red light in the center of the excavation near the curb line. The granitoid walk was six feet wide, and there was an unpaved parkway about four or five feet wide between the north line of the walk and the curb. There was no other light or lantern on the work.

The petition charged that as plaintiff was stepping up on the south side of said excavation, due to defendant’s negligence, as specified in the petition, she fell on the hard granitoid sidewalk and was injured. There were twelve specifications of negligence in the petition: 1st and 2nd, that in cutting the granitoid sidewalk the defendant left the edge thereof in a rough and jagged condition, which rendered said sidewalls dangerous to pedestrians; 3rd and 4th, that it was dark at the time plaintiff was injured, and defendant negligently failed to provide adequate light; that the one lanterp. which defendant had provided was burning very low and had bricks around it and that thereby plaintiff could not see her way; 5th, that said excavation rendered said , sidewalk dangerous to pedestrians at night; 6th and 7th, that defendant failed to provide an adequate covering for or temporary walk across said excavation; 8th, 9th and 10th, that defendant failed to warn pedestrians of their danger, failed to provide a watchman at said excavation,’ and failed to provide a proper step from the base thereof to the granitoid sidewalk, so that pedestrains could step with greater safety to the sidewalk therefrom; 11th and 12th, that defendant failed to fence off said excavation with a substantial fence, and that the revised ordinances of said city required it to be fenced with such a fence not less than three feet high . and two red lights securely and conspicuously posted on or near said excavation.

Besides a general denial, the answer pleaded contributory negligence.

Substantially all of the plaintiff’s witnesses testified that there was a red light in the center of the excavation about the curb line. This red light had some bricks around it, which, one of plaintiff’s witnesses said, was usual to keep the lamp from being overturned. There was no other light and no fence or guard around the work.

Touching the condition of the excavation and especially the edge of the granitoid sidewalk on the south side,, two witnesses, who were city employees and inspectors on the job, and one civil engineer, testified for plaintiff, in substance, as follows: That one corner of the granitoid walk — the corner nearest the street — was broken off in a semi-circular form, and about seven inches across. That the edge of the sidewalk was cut off reasonably straight except at this corner where it was broken. One of them said that it was as straight as you could break concrete. It was chipped a little, hut not very: much. It was cut just as evenly as it was possible to cut out concrete. Unless you hit an expansion joint and have to cut through the center of the slab, you will have a ragged edge. It was a very good job. It was as good as you could get in concrete. “It was kind of like a saw-tooth.” The civil engineer saw the work after it was completed, but he could see the line where the sidewalk had been cut.' It was a saw-tooth edge, the irregularities or projections were from one-eighth to three-eights of an inch in length; could not say how far apart they were.

A lay witness, who saw the work the next morning, testified for plaintiff: That the edge of the sidewalk on the south side of the alley was not finished at all, kind of sawed. That a corner of the walk towards the street was broken off. That he ran across the street, the night before, when plaintiff was injured, and' saw her lying on the sidewalk on the south side of the excavation, near this broken piece.. He did not describe the extent of the broken piece or size of the projections which made it “kind of sawed.”

The plaintiff’s maid testified for plaintiff: That she walked in front of plaintiff, across the excavation all right herself, hut plaintiff did not get up and out of - the excavation on the south side. That plaintiff fell while attempting to do so, and the witness turned around, and plaintiff was lying over to the east side of the sidewalk with her legs hanging down in the alley. Her leg was on a broken thing. Witness felt of a piece of broken off sidewalk, it was kind of pointed, it would stick in 'your hands when yon would touch it. After plaintiff fell, witness felt of this sidewalk, and plaintiff’s foot at the time was on top of the projection. Both the maid and the said lay witness marked a point on a photograph in evidence right over the broken off1 corner as the place, thev say, plaintiff’s foot was when they first saw her after the accident.

Plaintiff testified in her own behalf, substantially as follows: She crossed the alley going to the picture show in safety. She went there alone and came back with her maid. ■ Walked back on the same side of Hamilton Avenue. She came to this alley, stepped down into it, and crossed over to the south side. “When I got to the other [south] side, as I wanted to step my foot caught on a piece of sharp point of the concrete, and I fell forward. There was a red light there near the street. There were bricks around it. It was low down in the ground. You couldn’t hardly see it. Could not see where to step down from the north side into the alley. It was dark. It was awfully dark there. My foot caught and I fell as I went to step out on the south side of the alley. It was Sunday night, about ten-thirty. The maid was right in front of me. It was near the street where I fell. Just as I stepped off there was a sharp point sticking out and it threw me over.” On cross-examination, she said: “It was not quite dark when I went to the picture show. I could see that the alley was being constructed, when I got there. I stepped down into the alley, walked across it, and then stepped up on the sidewalk on the north side, going to the theater'. Came back the same way. Stepped down-from the sidewalk, coming back, into the alley from the north side. Had no difficulty; stepped down there all right. Q. You could see that you had arrived at that'alley? A: No, sir, it was dark, I could hardly see. Of course, I knew the alley was there, and stepped down into it from the north side, without falling or missing my footing at all, and walked safely across to the south side. I fell when I went to step up from the alley to the sidewalk on the south side. My maid was walking in front of me. She stepped up on the sidewalk on the south side of the alley in front of me. She was on the sidewalk on the south side, when I fell. Did not see tjhe lamp, when I fell it was back of me. Don’t remember when I first saw the lamp. I know it was there. I believe I saw it when I went over. It was in the middle of the alley. It was dark. It was not light enough to see the light. I don’t believe I did see it there. I believe it was about the middle of the alley. I saw the bricks around it’ when I went. I knew, when I came back, that I would have to step down in the alley to walk across it, and knew I would have to step up at the south side onto the sidewalk. I knew that as I was walking across the alley. As I stepped up at the south side just immediately before I fell, one of these projections struck me about the instep. Q. Did you not strike any part of the sidewalk with your toe? A. It struck me here. I know I struck my foot right here, and I fell over. Q. Is what you call the instep? A. Yes, sir. I did not see the part of the sidewalk that struck my instep. I felt it. I did not see it. It was dark. Just felt it. It was one sharp-pointed object that struck my instep. I'did not see it at all. I couldn’t tell anything about how far it extended out from the sidewalk. I fell forward. I never did get my foot up as high as the sidewalk, the top side of the sidewalk. It caught right here on the sharp point, and I couldn’t. . The light I saw was red. I did not see the sidewalk, as I was about to step up to it on the south side. It was so dark I could not see where the sidewalk was. Could not see any part of the sidewalk, because I fell so quick. It was light and shadow there. Did not put my foot up on the sidewalk at the south side, because my foot got caught on the piece of granitoid sticking out. Did not step up on the granitoid, and then slip off, I couldn’t, my foot got caught. There was no part of the sidewalk broke under me. The point stuck in my foot, and I fell over. Don’t remember whether any other part of my foot went under the sidewalk. All I know about what happened is — this point sticking in'my foot, and I fell over. Q. About your instep? A. Yes, sir.”

Plaintiff also introduced in evidence, Section 1139 of the Revised Code of the City of St. Louis, which was as follows:

“Excavations in street — to be fenced, etc. — obstructions — red light. Every person who shall cause to be made any excavation in or adjoining any public street, alley, highway or public place, shall cause the same to be fenced in with a substantial fence not less than three feet high, and so placed as to prevent persons, animals or vehicles from falling into said excavations; and every person making or causing to be made any such excavations, and every person who shall occupy or cause to be occupied any portion of any public street, alley, highway, or public place with building materials or any obstruction, shall cause one red light to be securely and conspicuously posted on or near such excavation, building material or obstruction; provided, such obstruction does not extend more than ten feet in length, and if over ten feet and less than fifty feet, two red lights, one at each end, shall be placed, and one additional light for each additional fifty feet or part thereof, and shall keep such lights burning during the entire night. ’ ’

Defendant’s evidence tended to show that the work was done by a sub-contractor under1 the defendant’s directions, but this defense was not insisted on, or submitted in the instructions given for defendant.

At the close of all the evidence the defendant offered a demurrer to the testimony, which the court refused. The court gave six instructions for the plaintiff. In her instructions, the plaintiff only submitted three grounds of negligence charged in the petition; first, that the defendant negligently left the edge of the granitoid sidewalk with jagged pieces sticking out of the same; second, negligently failed to post a red light on either side of said excavation; third, negligently failed to cover, guard or fence said excavation.

The court also gave a number of instructions for the defendant, as to some of “which the plaintiff assigns error.

The court also permitted the defendant to ask the plaintiff’s maid, whether she did not testify, in a deposition which she gave, to the effect, that the plaintiff fell about the center of the walk. But, in view of the conclusion we have reached, it is not necessary to set out any more of the details of the trial, than we have already done.

The jury found a verdict for the defendant. Plaintiff appealed the case to this court.

I. If defendant was not guilty of negligence, or if its negligence was not the proximate caiise of the plaintiff’s injury, or if the plaintiff herself was guilty of contributory negligence as a matter of law> s^e wou^ have no ease to submit to the jury, and, therefore, (the defendant having asked a demurrer to the evidence, which was refused), there could be no reversible error in any instructions given or refused for either party, or in any action of the trial court complained of by the appellant. [Bradley v. Forbes Tea Co., 213 Mo. 320; Trainer v. Mining Co., 243 Mo. 359; l. c. 1371; Shinn v. Railroad, 248 Mo. 173; Shelton v. Light Co., 258 Mo. l. c. 541; Boesel v. Wells-Fargo & Co., 260 Mo. 463, and other cases cited by learned counsel for respondent.]

II. It is the settled law in this State that, while a traveler on a public street or sidewalk may ordinarily presume that the way is clear and in good condition, still, if the traveler knows that the sidewalk or street being used by him is torn up or obstructed by public work being done therein, he cannot go forward, relying on the presumption that the way is clear, but must exercise his faculties to see and discover the dangers that he may encounter from such obstructing public work, and if he fails to do so, and is injured thereby, he cannot recover, on the ground that he himself is gudlty of contributory negligence, although the public authorities or the contractor doing the work, may also have been guilty of negligence. [Welch v. McGowan, 262 Mo. 709; Wheat v. City of St. Louis, 179 Mo. 572; Ryan v. Kansas City, 232 Mo. 471; Craine v. Met. St. Ry. Co., 246 Mo. 393; Woodson v. Met. St. Ry. Co., 224 Mo. 685; Kaiser v. St. Louis, 185 Mo. 366; Brady v. St. Joseph, 167 Mo. App. 425; Cohn v. Kansas City, 108 Mo. 387.]

In Wheat v. City of St. Louis, 179 Mo. supra, the plaintiff was injured by driving over a pile of earth surrounding a manhole which projected several feet above the surface of the street. The condition had existed for a year, and he was perfectly familiar with it. Held, although the city was guilty of negligence by permitting the obstruction, plaintiff was guilty of contributory negligence, as a matter of law, in not avoiding it. In that case, it was a dark, foggy' morning, but it was light enough to see the obstruction had plaintiff looked with reasonable care. The court said at page 579:

“The plaintiff in this case knew of the obstruction-in the street, and knew that by the exercise of ordinary care he could avoid striking it while traveling along the street. His act in striking it was, therefore, per se, contributory negligence. [Citing many cases.] ... In Cowie v. Seattle, 4 Mun. Corp. Cas. 417, the Supreme Court of Washington held, that a person who was perfectly familiar with the condition of a sidewalk in which a defect exists, has no right, while using it, to act on the ordinary presumption that it is in good condition. . . . And at page 582: 'While the city owes the citizen the dnty to keep the highways reasonably safe for persons ‘to pass over, the citizen owes the city the duty to use his God-given senses, and not to run into obstructions that he is familiar with, or which by the exercise of ordinary care he could discover and easily avoid.’ ”

In Welch v. McGowan, 262 Mo. 709, the plaintiff was driving on 13th Street in Kansas City. The defendant had dug a ditch on the south part of the roadway, and had laid a string of gas pipe along the ditch, preparatory to laying the pipe therein. The plaintiff’s witnesses testified that one of the gas pipes projected out. from one to six feet in the portion of .the roadway left open for travel north of the general line of the work and the other pipes. The front wheel of the plaintiff’s buggy struck this pipe and threw plaintiff out and seriously injured him. This court held that plaintiff was guilty of contributory negligence, as a matter -of law, in failing to discover and avoid the pipe, and could not recover, although defendant rp.ay have been guilty of negligence in allowing the pipe to project out into the street. The court said at page 719:

“The accident occurred in daylight, and plaintiff’s eyesight was not 'impaired. The gas pipe which he struck was lying on comparatively level ground, and had he exercised the diligence which the law and ordinary prudence calls for, under the circumstances, he would have seen the pipe in ample time to have driven around it.

“We have not been able to find any case where the facts were precisely the same as in this case, but the following decisions announce the rule, that when one traveling along a public street sees, or otherwise receives actual notice, that such street is out of repair or torn up, he must look for obstructions and other dangers and avoid.them if he can do so, by exercising ordinary care. [Phelan v. Paving Co., 227 Mo. 666, l. c. 705-6; Nessler v. Housewrecking Co., 156 App. Div. (N. Y.) 348, 350; Nolan v. King, 97 N. Y. 565, l. c. 571-2; District of Columbia v. Moulton, 182 U. S. 576.] The same rule seems to apply where a person traveling any public highway has actual knowledge of an obstruction therein. [Wheat v. City of St. Louis, 179 Mo. 572, 64 L. R. A. 292.]”

In the Welch Case, the plaintiff testified he did not see the gas pipe he struck, but he admitted that he knew that the street was cut open for the purpose of burying a pipe or making some other change therein. In view of this fact, the court said on page 718: “With [this] the actual knowledge on the part of plaintiff, it was his duty to keep a diligent lookout for obstructions which might be temporarily in the street by reason of the work that was being done therein, and to anticipate noises which might frighten a team . . . If it is true, that dedefendants were negligent in allowing one end of the gas pipe to protrude into that part of the street left open for travel, this did not relieve plaintiff of the duty of keeping a lookout for temporary obstructions after he observed that the street was torn up, or partially torn up; so/we find that the plaintiff’s injury was the direct result of his own carelessness in failing to look where he was driving.”

In Robison v. Kansas City, 181 S. W. 1004, where the plaintiff was injured by falling into an excavation in the street at night, of which she had no previous knowledge, and it was so dark she could not see, Court in Banc, while holding that the above cases did not apply in that case, affirmed the doctrine laid down in said cases, which it announced as follows, pages 1005-6:

‘ ‘ The doctrine announced in these cases, about which there is no controversy except as to its application here, is that if a pedestrian with knowledge of a defect or obstruction in a street or sidewalk uses same and is thereby injured, he is guilty of such contributory negligence as to preclude recovery.

“The facts in the cases cited by defendants are not parallel with those in the case at bar. There the injuries complained of were received in the daytime. Here they were at night, and so great was the darkness that plaintiff-could not see her husband, who preceded her but a few steps on their way homeward. The darkness was-due, so far as the city was concerned, to its negligence in not keeping the arc light burning at the intersection of the streets, and so far as the Parker-Washington Company was concerned in its failure to erect a barrier and to keep warning lights at the point where the excavation had been made.

“There in each of the cases cited, evidence of the1 plaintiff’s knowledge of the defect or obstruction was shown. Here the only evidence was that plaintiff could not see the intersection of the streets in question from her home, and not having been to Lauderdale’s store since the grading began until the night of the accident, did not know the location of the excavation.” (Italics ours.)

In the case at bar, the plaintiff was familiar with the excavation, having seen it before dark in passing over it a few hours before her injury. Knew how deep and wide it was. How far she would have to step down and step up to cross it and that “the alley was being constructed,” that is, she knew the work was unfinished. She must also have seen that the edges of the concrete walkVere in the sides of the excavation,-and she says she did see the red light on the work, when she crossed over going to the theater. The fact, that it was dark when she returned, made it all the more incumbent on her to look out for dangers and difficulties in passing over this unfinished and temporary crossing, which she knew was not in a completed condition, fitted for ordinary or permanent use by pedestrians. But, while she says it was dark at the time she returned, and was injured, yet her evidence shows that it was not so dark but that she knew when she reached the work and could see well enough to step down and walk across it with.out any difficulty or assistance from her maid, who immediately preceded her and crossed completely over without injury or trouble. If so, it must have been light enough for the plaintiff to step out of the cut without ■injury by the exercise of due care, because if any difference, it required more light for her to discover the excavation and to step down and into and across it, than to step up and out of it, after’ she had discovered it and knew she was in it. The physical facts thus testified to by plaintiff and her maid nullify her evidence to the effect that it was so dark that she could not see to step out of the excavation.

"We, therefore hold, that plaintiff’s own testimony shows that she was guilty of such contributory negligence as prevented her having any case for the jury.

III. But let 11s assume it was as dark as plaintiff says it "was.

In Diamond v. Kansas City, 120 Mo. App. 185, the plaintiff was injured at night by falling into a hole in a plank sidewalk. The walk was elevated some four or five feet above the ground, and one of the hand-rails was missing. Plaintiff was familiar with the walk and knew that several planks six or eight inches wide were absent, but did not remember the exact location of the opening into which he fell. The night was dark and the street lamps out. And plaintiff’s vision was further obscured by smoke from the railroad yards nearby. The walk had been in that condition for a month or more, and the holes had been observed by plaintiff when he went to work that evening. He was injured when returning home about midnight. The court held, he was guilty of such contributory negligence as precluded recovery. The court said at pages 189-90:

“The facts before us do not warrant the inference that the few openings in the sidewalk in all events necessarily menaced the safety of a pedestrian, particularly that of one who knew of their presence. Except when surrounded by utter darkness, plaintiff by giving ordinary attention to his course easily could have avoided stepping into any of them. But being plunged into what he pictures to be complete darkness, and knowing that the holes were there, his conduct in proceeding at the gait and in the manner he walked in the daytime appears to be palpably negligent. He neither attempted by using the one good hand-rail to provide himself with the means of recovering his balance should he make a misstep, nor did he feel his way with his feet and thus make sure of the safety of his footing before placing his weight on the advancing foot, as people usually do who are compelled to grope in darkness. It is true, contributory negligence is an affirmative defense, but plaintiff’s own statement of what he did shows that he made not the slightest effort to avoid the dangers, which, from the fact of darkness, were threatening in the highest degree. And there is nothing in the record from which the inference may be drawn that he acted with reasonable care. He trusted entirely to chance to escape and, assuming that the distance of each of his steps was approximately thirty inches and that he had to pass over three transverse openings in the sidewalk, he had no more than an even chance of missing a fall. Thus, the danger under all the circumstances in the situation was such that it certainly menaced his safety and, as he utterly failed to take any measures to avoid it, his own negligence stands forth indisputably as the producing cause of his injury and precludes recovery.”

"We think, the above ruling of the learned appellate court is sound law and applicable to this case. If it was as dark as plaintiff claims it was, she walked into and across the cut without being specially careful in nearly absolute darkness and took no special care and did not feel her way when she came to the south side and attempted to step up on to the granitoid sidewalk, as an ordinarily careful person would have done under the circumstances — if it was as dark, or anything like as dark, as plaintiff says it was.

IV. But, it is strenuously argued by appellants’s learned counsel that while plaintiff knew of the fact that there was a cut there, and that she would have to first step down, and then up about ten inches in crossing it, she did not know of the jagged points on the edge of the concrete on which her foot was caught. But her evidence shows she did know that it was an incomplete and unfinished public work, and, therefore, under the Welch Case, supra, she was put upon notice and was bound to look out and anticipate dangers connected with the work, which included stumbling or tripping on the exposed edge of the concrete walk, which she knew she would have to encounter and step over in again crossing the excavation as she returned home. The. red light was also a warning to look • out for danger.

It is self-evident that if plaintiff had exercised anything like the care which, with her admitted knowledge of the situation and circumstances which surrounded her, the law demanded of her, she never would have been injured, and, therefore, she was not entitled to recover in this case.

Let the judgment be affirmed.

Ragland, C., concurs; Brown, G., not sitting,

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

All of the judges concur; Graves, J., in separate opinion in which Blair, C. J., concurs.

GRAVES, J.

(concurring). — I concur in this opinion except as to the citation of Welsh v. McGowan, 262 Mo. 709. Having heretofore read the record in that case, I do not desire to be in the attitude of endorsing the result there reached. The general principles of the law are properly announced in Welsh’s case, but the facts were misapplied to those principles. I mean the record facts. There is a difference between stated facts and record facts.

James T. Blair, J., concurs in these views.