text:
    THE STATE v. ISAAC PEARSON, Plaintiff in Error.
    Division Two,
    May 26, 1921.
    1. CRIMINAL LAW: Plea of Guilty: Confesses Facts Stated in Information: Appeal or Writ of Error. A plea of guilty in a criminal case only confesses the truth of the facts stated in the information and does not involve a plea of guilty of a violation of the statute upon which the information is based unless the information correctly charges the commission of that offense. And after such a plea the defendant may, by appeal or writ, or error, take advantage of any defect in the information.

      2. -: Fraudulent Voting: Residence: Information. An information in a criminal case based on Section 3209, Revised Statutes 1919, which after charging the holding on a certain day of an election in a certain township in a certain county in this State, setting out the different offices for which the election was held and that defendant appeared at a certain polling precinct in said township and county and falsely, etc. applied for and received and cast a ballot at said election, stated the offense thus: “without having a lawful right to vote therein, in this to-wit: That he the said Isaac Pearson was not then and there a resident and qualified voter in said election precinct of said township in said county and was not then and there a citizen of Pemiscot County, Missouri, for a period of one year before the date of said election, all of which the said Isaac Pearson then and there well knew,” is insufficient because it fails to charge that defendant was an illegal voter either in not having resided in the State for the requisite time, or in the county for the. requisite time or in failing to reside in the township in which he sought to vote as provided by Section 2 of Article 8 of the Constitution and Section 4748, Revised Statutes 1919.
    Writ of Error to Pemiscot Circuit Court. — lion. Sterling H. McCarty, Judge.
    Reversed and defendant discharged.

      C. G. Shepard for plaintiff.
    (.1) It was not necessary for defendant to reside in precinct No. 1 of Virginia Township, Pemiscot County, Missouri, ip order to be a legal voter in said precinct, but it was sufficient if he resided within Virginia Township and said information failing to state that he did not reside within Virginia Township, fails to state an offense against the laws of the State of Missouri, and the plea of guilty entered to said charge is a nullity and the defendant should be discharged. Sec. 2, Art. 8, Mo. Const.; Sec. 4748, R. S. 1919. (2) It was not necessary for defendant to have resided within Pemiscot County, Missouri, for a period of one year before the date of said election, but it was sufficient if he had resided within said county sixty days before said election, if he had resided within the State of Missouri one whole year next before said election. There being no charge in the information that defendant had not resided within the State of Missouri, one year before the date of said election, and no charge that he had not resided within Pemiscot County sixty days next before said election, said information is fatally defective and states no crime against the election laws of the State of Missouri. (3) Informations charging a party with illegal voting must state the facts making the voting illegal, and stating the conclusion of the pleader is not sufficient. State v. Judd, 221 Mo. 554; State v. Miller, 132 Mo. 297; State v. Hilderle, 203 Mo. 574. (4) A form for informations of this nature could be found in the case of State v. Whalen, 234 Mo. 539, but the scantily worded information in this case does not in the least degree meet the requirements of the Whalen case.

      Jesse W. Barrett, Attorney-General, and Albert Miller, Assistant Attorney-General, for respondent.
    Plaintiff in error in his brief presents the sole question of the insufficiency of the information. We concede that the information is insufficient, and fails to charge any offense under either Sec. 3209 or 3224, R. S. 1919. Sec. 2, Art. 8, Mo. Const.; Sec. 4748, R. S. 1919, and cases cited in brief of plaintiff in error.
   WHITE, C.

On information filed November 14, 1920, in the Circuit Court of Pemiscot County, defendant was charged with illegal voting on the second day of November, 1920. On the seventeenth of Novemkerj ^ the same term of court, the defendant appeared in person in court, waived arraignment, plead guilty to the information as charged, and his punishment was fixed at two years imprisonment in the penitentiary. Afterwards a writ of error was sued out in this court by the defendant.

I. By his plea of guilty the defendant confessed only the truth of the facts stated in the information. It did not involve a plea of guilty of violation of the statute against illegal voting unless the information correctly charged the commission of that crime. He could take advantage of any defect in the information by appeal or by writ of error. [State v. Kelley, 206 Mo. l. c. 693; State v. Reppley, 278 Mo. l. c. 339.]

II. The information charged that on the- day of November, 1920, while an election was being held in Virginia Township, Pemiscot County, State of Missouri (setting out the different offices, national, state and county for which the election was being held), the defendant appeared at polling precinct No. 1 of Virginia Township of Pemiscot Comity, falsely applied for and received a ballot, and cast said ballot at said election. Then the information states the offense thus:

“Without having a lawful right to vote therein, in this, to-wit: That he the said Isaac Pearson was not then and there a resident and qualified voter in said election precinct of said township in said county, and was not then and there a citizen of Pemiscot County, Missouri, for a period of one year before the date of said election, all of which the said Isaac Pearson then and there well knew.”

Apparently the information attempts to charge an offense in violation of Section 3209, R. S. 1919, in that he knowingly voted at an election when he was not a qualified voter. Section 2, Article 8, of the Missouri Constitution defines the residence necessary for a qualified voter; first, he shall have resided in the State for one year, and in the county, city or town where he offers to vote, at least sixty days, immediately preceding the election. Section 4748, R. S. 1919, requires that a voter shall reside in the State one year, and in the county sixty days immediately preceding the election, “and shall vote only in the township in which he resides, or, if in a town or city, then in the election district therein in which he resides.”

It will be noticed that the information does not charge that Pearson was not a resident of the State one year next before the election, bnt that he was not a resident of Pemiscot County. A voter is not required to be a resident of the county for more than sixty days. It further says that he was not a resident at the time “in said election precinct in said Virginia Township.” The statute does not require that he shall live in the precinct in which he voted, but only that he shall vote in the township in which he resides. The information fails to charge that defendant was an illegal voter either in not having resided in the State for the requisite time, or in the county for the requisite time, or in failing to reside in the township in which he sought to vote. The information, therefore, charges no offense.

The judgment is reversed and the defendant discharged.

Bailey and Mosley, GG., concur.

PER CURIAM:

The foregoing opinion by White, C., is adopted as the opinion of the court.

All of the judges concur.


source: Caselaw Access Project

author: RAILEY, C. PER CURIAM:

license: Public Domain

text:
    THE STATE v. RAINEY CRUTS, Appellant.
    Division Two,
    May 26, 1921.
    1. ASSAULT WITH INTENT TO KILL: Instruction for Less Offense. Where the defendant was proceeded against by information under Section 3262, Revised Statutes 1919, charging him with feloniously shooting another with a pistol loaded with powder and ball with intent to kill and murder him and the evidence for the State supported the charge while the evidence for defendant tended to show that he acted solely in self-defense, it was not error for the trial court, after instructing the jury on the theory of the State and also on self-defense, to refuse to give an instruction asked by defendant as to a lower grade of assault; as it was authorized to do, in a proper case, by Section 3693, Revised Statutes 1919.
    2. -: Defense of Brother. Where the defendant and his brother were -proceeded against by information, under Section 3262, Revised Statutes 1919, for a felonious assault with intent to kill another by shooting him with a pistol loaded with powder and ball, and a severance was granted the defendants and the State elected to try this defendant first, it was not error for the trial court to refuse to instruct the jury as to defendant’s right to defend his brother, where there was no evidence that the person shot was assaulting the brother when shot by the defendant, but defendant claimed that he shot because such other person was attacking defendant himself.
    3. -: Evidence: Res Gestae. In a proceeding by information under Section 3262, Revised Statutes 1919, against defendant and his brother for a felonious assault by shooting with intent to kill another, where a severance had been granted the defendants, and, upon the trial of this defendant, it appeared that he and his brother and the person named in the information as shot and his three sons were all present at the time and place of the difficulty and that one of the sons was shot by defendant’s brother, it was proper for the trial court to admit in evidence as res gestae everything that occurred at that time and place, inasmuch as the conversation, acts and proceedings between the parties were so interwoven as to prevent a single, continuous and inseparable transaction.
    4. —--: Instructions: Comment on Evidence. An instruction which is a comment on a portion of the evidence is properly refused.
    5. -: -: Covered by Instructions Given. An instruction is properly refused where the court has correctly declared the law in another instruction given the jury, which covers the question embraced in the instruction refused.
    Appeal from Maries Circuit Court. — lion. J. Q. Slate, Judge.
    Affirmed.

      Lovts c& Breuer and Holmes & Holmes for appelant.
    (3) In a prosecution under Section 3262, R. S. 1919, « defendant may be convicted of an assault without malice, and the jury should he so instructed if the evidence warrants it. (a) Under the evidence in this case the court under proper instructions, should have left to the jury to say whether the assault was done with malice aforethought, or with intent to kill or do some great bodily harm without malice aforethought. Sec. 3693, R. S. 1919; State v. Harris, 209 Mo. 440; State v. Stubble-field, 239 Mo. 526; State v. Grant, 144 Mo. 67; State v. Swearengin, 269 Mo. 189. (b) Prom the use of a deadly weapon by defendant malice may be presumed, but not conclusively so. Even that presumption is a disputable one, and if the contrary is made to appear, the question of malice should be submitted to the jury. State v. Stubblefield, 239 Mo. 531; State v. Kelly, 73 Mo. 613; State v. Music, 101 Mo. 270. (c) It is only where no effort is made to .overcome such prima-facie case of malice that the court may rightfully refuse to submit that issue to the jury. State v. Schloss, 93 Mo. 361. (d) Defendant testified that in shooting- at prosecuting witness Bailey he aimed at his legs, because he did not want or intend to kill him. If true, he acted without malice. The court, therefore, should have instructed on assault without malice. State v. Palmer, 88 Mo. 572; State v. Banks, 73 Mo. 592; State v. Stubblefield, 239 Mo. 526; State v. Murphy, 14 Mo. App. 73; Pattison, Instruction in Criminal Cases, sec. 381. (2) Under the law a man not only has the right to shoot another in the necessary defense of himself, but has the same right in defense of his brother, and the jury should be so instructed where the evidence warrants it. Sec. 3233, R. S. 1919; State v. Turner, 152 S. W. 313. (3) It was error for the court ■to admit as a part of the res gestae, evidence as to the act of Dan Cruts (brother of defendant) in shooting at John Bailey (son of prosecuting .witness) and to refuse, by proper instruction, to withdraw such evidence from the consideration of the jury in determining defendant’s guilt. State v. Proten, 43 S. E. 230; St. Clair v. United ' States, 154 U. S. 134; 7 Words & Phrases, 6135; Eagon v. Eagon, 60 Kan. 697; Commonwealth v. Trefethen, 31 N. E. 960. •

      Jesse W. Barrett, Attorney-General, and Robert J. Smith, Assistant Attorney-General, for respondent.
    (1) The evidence in this case did not warrant instruction that the appellant might have been convicted of an assault without malice. In a prosecution of this hind where it shows the defendant either acted with malice aforethought or in self-defense, instructions should not be given for a lower grade of assault. State v. Schloss, 93 Mo. 361; State v. Robb, 90 Mo. 30; State v. Doyle, 107 Mo. 36; State v. McGuire, 113 Mo. 675; State v. Curtner, 262 Mo. 218. (2) The instructions upon self-defense were proper. The evidence does not show that the prosecuting witness attempted to assault appellant’s brother. Therefore, the court did not err in refusing to instruct upon the question of defending his brother. (3) The acts and conduct of Dan Cruts, brother of appellant, were a part of the res gestae and the court did not err in admitting the testimony as to his acts. State v. Katz, 266 Mo. 493; State v. "Vaughn, 200 Mo. 1; State v. Cavin, 199 Mo. 154; State v. "Woodward, 191 Mo. 633.
   RAILEY, C.

On May 10, 1920, the Prosecuting Attorney of Maries County, Missouri, filed, in the circuit court of said county, a verified information, charging that defendants, Eainey Cruts and D. W. Cruts, on April 14, 1920, in said county, did feloniously shoot one D. W. Bailey, with pistols loaded with powder and ball, in his abdomen and right leg, with the intent to kill and murder him, etc. Said defendants asked, and the court granted, a severance. Thereupon, the State ejec£e(j †0 gQ †0 £r£a£ £n cage Q£ g£a£e against Eainey Cruts first. The latter entered a plea of not guilty and his trial was commenced before a jury on November 8,1920.

It appears from the evidence, that defendants are brothers, and that D. W. Bailey, mentioned in the information, is their uncle. The latter, on April 14, 1920, owned 160 acres of unimproved land, lying north of the farm of Rainey Cruts, and east of land owned by D. "W. Crnts. D. W. Bailey, and three of his sons, who were then living with him, on the afternoon of April 14, 1920, went .to the west side of said 160 acres, and burned the grass and leaves east of the east side of D. W. Cruts’ land. They had finished that part of the work, had gone to the south side of said 160 acres, north of the land belonging to Rainey Cruts, and were burning east on the Bailey land, when Rainey Cruts saw the smoke, and telephoned his brother Dan. The latter was in the field at work, and his wife and Mrs. Cook, communicated to him the telephone message from Rainey. Shortly afterwards Rainey put his' pistol in his pocket, and went out into the field, where Dan was at work. After some conversation, Dan went to his own home, put a pistol in his pocket, and returned to where Rainey and the women were. The two men then walked on over to where Bailey and his sons were burning the trash, and the two women claimed to have followed along, forty to fifty steps in the rear, but did not come clear up to where Bailey and his boys were located. Rainey says he had a fork, which he left at a point some distance from where Bailey and sons were at work. As the main controversy, relates to what occurred when the two Cruts boys came up to where Bailey and his three boys were, we have deemed it best to set out the substance of the testimony, as given by the eye witnesses.

Dan W. Bailey testified, that no part of the fire reached the fence of either of the Cruts; that at one place, the fire got up within a foot or two of Rainey’s fence, but they put that fire out and started to continue burning where they had left off; put out the above fire, Just about this time, the defendants appeared on the land of Raihey, on the opposite side of the fence from Bailey’s. Dan Bailey then describes what occurred, in substance, as follows: That Rainey Cruts said, “We come over here to see about this fire”: that he seemed to be awfully mad; that he said to Rainey, “You needn’t mind about that, Rainey. We will take care of the fire. We don’t aim for the fire to get out”; that Rainey said, “That is all right; just so it don’t get into the fence;” that just then Ban Cruts commenced accusing John Bailey, his son, of attempting to hit him with the fork; that Dan Cruts then said, “Don’t hit me with that fork. Don’t hit me with that fork”; that these íeinarks were addressed to John Bailey; that Dan Cruts then grabbed a rock, threw it at John, and it hit the top rail of the fence; and just at that time both defendants commenced shooting; they got the guns from out of their pockets; that just as soon as Dan Cruts threw the rock, he put his hand in his pocket, and then just as Rainey threw his gun on witness, Dan Cruts threw his gun on John Bailey; that John Bailey ivas doing nothing when Ban Cruts said: “Bon’t hit me with that fork”, that Johi\ was just standing there with the fork on his shoulders that Dan Cruts shot John Bailey in the right arm. Witness, who had been formerly judge of the county court, testified as follows:

“Mr. Hutchison: Now, go ahead, Judge, and tell what happened. When the shooting commenced what did you do, if anything? A. I didn’t do a thing. The first —when they first throwed their guns down on me I didn’t think they would shoot, and the first shot Rainey Cruts shot he shot me in the abdomen; the second shot he shot me in the leg; and Dan Cruts, the third shot that he shot hit John’s arm, and the fork just fell oil his shoulder, back of his shoulder, and his arm just fell down by his side, and he just turned around and around. Dan Cruts turned then on to me and shot two shots at me, and Rainey Cruts shot two shots at my head. The first two shots — the first shot was in my abdomen, and the next shot in my leg, and the next two shots he held the gun or aimed right on my head — he aimed tb hold his gun on my head. /

“Q. Did the last two shots Rainey Cruts fired— did they hit you? A. There was two shots hit my hat and I felt one strike one of my ears'.

££Q. What did you say, if anything, during that time? A. I didn’t say a word. . . .

££Q. How long was it from the time they were throwing the rook and the shots were fir.ed? How long a time elapsed? A. Just immediately. Just as quick as he throwed the rock they both went to shooting at the same time — right then.

££Q. How fast were the shots fired? A. Just as fast as they could make their pistols revolve.

££Q. Erom where you were standing at the time they came up, did you advance towards them after they stopped? A. No, sir.

££Q. Did you draw the fork on them you had in your hand? A. No, sir.

££Q. Did you attempt to stick the fork in Rainey Cruts? A. No, sir.-

£<Q. Did you walk up to the fence and put your foot on the fence? A. No, sir.

“Q. Did you see your son advance toward Dan Cruts? A. No, sir, he never advanced a bit.

££Q. He never advanced a bit? A. No, sir.

££Q. Did he take the pitchfork off his shoulder? A, No, sir, he had the pitchfork on his shoulder when the third shot was fired.

££Q. And then what became of it? A. It just fell backwards over his back and his arm fell down by his side and he just turned around and around.”

Witness testified, that the fence was rotted down, and was about three or three and half feet high; that he never at any time got on the same side of the fence with Rainey and Dan Cruts; that he was about 16 feet from Rainey when the shots were fired, and that he was never any closer to him; that one of the shots strnck.him above the right knee.

" There was some other testimony of witnesses, as to threats and swearing of both defendants after the shooting was over. The testimony of John Bailey, Oscar Bailey and Rolla Bailey, who were with their father at the time the above transactions occurred, is practically the same as that of D. W. Bailey. The doctors testified in substance, that one of the pistol balls struck Dan W. Bailey in the abdomen and lodged against his hip bone.

Mrs. Dan W. Cruts and Mrs. Cooh, both testified in substance, that they were forty-five or fifty steps away when the shooting commenced; that they saw Dan W. Bailey and John Bailey, with their pitchforks, advancing towards defendants like they were going to jab them; that John Bailey was after Dan Cruts and old man Bailey was after Rainey Cruts; that Rainey fired the first shot, and they then turned back home and saw nothing more of the shooting.

Rainey Cruts, the defendant, testified in substance, that after he and his brother spoke to Dan Bailey, and they exchanged some words about the fire, Dan Bailey then said, “What are you fellows looking for?” and was mad; that defendant then said to him, “I don’t care for you burning it just so you don’t get in the fence”; that about that time, Dan Bailey took a chew of tobacco, and “hinda” nodded his head, and the boys reached on their shoulders for their forks; that John started at Dan and said, “Gr — d—you,” and Dan Cruts said, “Now, stand back John,” two or three times, and finally reached over to pick up a rock, and John “hinda” stopped; that he (witness) reached over and tapped his brother on the arm and told him not to do that, and his brother Dan dropped the rock; that about the time witness says he got straightened up and turned his head, his uncle Dan Bailey was right at his face almost with a forh; that he would take a little stroke at witness and then gouge; that he hit defendant, jabbed him on the arm and produced a knot there as large as an egg. Defendant further testified as follows:

“So he just got right across on me. Well, I didn’t want to kill him and the first shot I intended to shoot him in the leg, and he just kept coming and I just weut to shooting wherever I could shoot, and the last shot, the last time he gouged the fork clear past my head and when he did I just jammed the gun right down on his head; I don’t suppose the gun was over that far from his head. When I done that he went back to the back of the fence row just as fast as he come across and throwed his fork down and that settled it. ”

Bom W. G'ruts corroborates his brother Rainey, as to what occurred at time and place of shooting.

Several witnesses testified that defendant had the reputaiion of being a peaceable, quiet and law-abiding citizen. Some of the witnesses testified that the general reputation of Ban W. Bailey, for truth and veracity was not good, and'that he had the reputation of being a quarrelsome, turbulent man. Witnesses were likewise introduced as to the good character of Dan Bailey for truth and veracity, and they testified that he had the reputation of being a peaceable, quiet man.

After the instructions were read to the jury, the latter returned into court the following verdict:

“We, the jury, find the defendant, Rainey Cruts, guilty, as charged in the information, and assess his punishment at imprisonment in the penitentiary for the term of two years.”

Defendant, in due time, filed motions for a new trial, and in arrest of judgment. Both motions were overruled, and the cause duly appealed by him to this court.

I. Under proposition one of appellant’s “Points and Authorities,” it is asserted’that:

“In a prosecution under Section 3262, R. S. 1919, defendant may be convicted of an assault without malice, and the jury should be so instructed if the evidence warrants it.”

Assault With Intent to Kill: Ins4 uction for Assault Without Malice.

Section 3262 supra, reads as follows:

“Every person who shall, on purpose and of malice aforethought, shoot at or stab another, or assault or beat another with a deadly weapon, or by any other means or force likely to produce death or great bodily harm, with intent to kill, maim, ravish or rob such person, or in the attempt to commit any burglary or other felony, or in resisting the execution of legal process, shall be punished by imprisonment in the penitentiary not less than two years.”

It is appellant’s contention, that he was entitled to an instruction, under the evidence, by virtue of Section 3693, R. S. 1919, leaving’ it to the jury to determine whether the assault was committed with malice aforethought, or with intent to kill, or do some great bodily harm, without malice aforethought. Said Section 3693, R. S. 1919, reads as follows:

“Upon an indictment for an assault with intent to commit a felony, or for a felonious assault, the defendant may be convicted of a less offense; and in all other cases, whether prosecuted by indictment, information or before a justice of the peace, the jury or court trying the case may find the defendant not guilty of the offense as charged, and find him guilty of any offense, the • commission of which is necessarily included in that charged against him.”

Several authorities are cited by defendant in support of above contention. We are not disposed to criticise the cases cited, when applied to the facts referred to therein. In construing: the two sections of our Statute above quoted, we should keep in mind the particular facts of each case coming before us. It may be conceded, for the ■purposes of the case, that instances may arise under said sections, in which it would be proper to submit to the jury the question as to whether defendant might be convicted for a lower offense than that called for in Section 3262 supra but in each case, the facts must be sufficient to warrant the court in submitting said issue to the jury.

If the evidence in behalf of the State be taken as true, defendant Rainey Cruts, armed himself with a loaded pistol and went to the scene of trouble, where Dan W. Bailey and his three sons were at work on their own premises, engaged in the legitimate business of burning trash thereon. When defendant and his brother approached the division fence, the State’s evidence shows, that all of the Baileys were standing from ten to fifteen feet from the fence, with their respective forks on their shoulders; that they remained in that condition, and made no effort to advance on defendant and his brother, or to harm either of them; that defendant, thereupon, pulled his pistol, and without any provocation, shot Dan Bailey once in the right leg above the knee, once in the abdomen, and fired two more shots, which went through his hat. On the other hand, defendant testified, that he put his hand on his brother, told him not to throw the rock at John and, as he turned his head, Dan W. Bailey was almost at his face with the pitchfork, with which he commenced hitting and gouging defendant, without any justification or excuse therefor. He testified, that on the first shot, he intended to shoot his uncle Dan in the leg, as he did not want to kill him, but Ms uncle “kept coming and I just ivent to shooting tvherever I could shoot,, and the last shot, the last time he gouged the fork clear past my head and when he did 1 just jammed the gun right doiun on Ms head.” On the State’s theory, was defendant guilty of a murderoits assault on his uncle, without provocation, with a loaded pistol, or did he shoot Dan Bailey, in self defense? Both theories were submitted to the jury under appropriate instructions, and a verdict returned to the effect, that defendant intentionally shot his uncle without provocation.

The physical facts in this case, speak louder than words. It is undisputed, that defendant shot Dan Bailey in his right leg above the knee; that he shot him in the abdomen, tried to shoot him in the head, and only missed the latter by a small margin, as two holes were shot through his uncle’s hat. The plea of self-defense having been eliminated by the verdict of the jury, it left the case with defendant having shot his uncle, as disclosed by the physical facts, without either justification or excuse. Taking the physical facts, in connection with the remaining testimony in the ease, we are of the opinion, that the trial court committed no error in refusing to instruct as to a lower grade of assault. [State v. Feeler, 226 S. W. l. c. 17-18; State v. Ray, 225 S. W. l. c. 973; State v. Foster, 220 S. W. l. c. 960-1; State v. Jones, 217 S. W. 22-3; State v. Burns, 278 Mo. l. c. 449, 213 S. W. l. c. 117; State v. Wansong, 271 Mo. l. c. 56-7-8; 195 S. W. 999; State v. Webb, 266 Mo. 672, 182 S. W. 975, State v. Webb, 205 S. W. l. c. 190; State v. Curtner, 262 Mo. l. c. 218; State v. Maguire, 113 Mo. l. c. 675; State v. Doyle, 107 Mo. l. c. 43-4.

II. Appellant’s second contention is that -.

“Under the law a man not only has the right to shoot another in the necessary defense of himself, but has the same right in defense of his brother, and the jury should be so instructed where the evidence warrants it. ’' [Sec. 3233, R. S. 1919; State v. Turner, 246 Mo. 598.]

We have no disposition to controvert the above proposition, where the facts in the case justify the defendant in affording his brother protection. The above principle law, however, has no. application to the ^ac^s i*1 this case. Defendants were granted a severance, and the case of State v. Rainey Cruts, is the only one pending here for our consideration. It is not claimed, by either the State or defendant, that the latter shot any one but Dan W. Bailey. Appellant is on trial here for shooting his uncle, and not for shooting some other person, while the latter was assaulting’his brother. It is not claimed, that Dan W. Bailey was assaulting defendant’s brother when he was shot by appellant. On the contrary, the latter testified, as heretofore shown, that he shot Dan Bailey, because he claimed the latter was hitting and jabbing him with a pitchfork.

The above contention is without merit and overruled.

III. Defendant’s third contention reads as follows:

“It was error for the Court to admit as a part of the res gestae, evidence as to the act of Dan Cruts (brother of defendant) in shooting at John Bailey (son prosecuting witness) and to refuse, by proper instruction, to withdraw such evidence from the consideration of the jury in determining defendant’s guilt. ”

The court admitted as res gestae, everything that occurred from the time defendant and his brother came into the presence of Dan W. Bailey, and his three sons, until the shooting was over, and the two Cruts boys left. The conversation, acts and proceedings between said parties, under the circumstances aforesaid, were so interwoven as to present a single, continuous and inseparable transaction. The facts present a typical case, involving the doctrine of res gestae. [State v. Pfeifer, 267 Mo. l. c. 28-9, 183 S. W. 337; State v. Katz, 266 Mo. l. c. 502-3; State v. Anderson, 252 Mo. l. c. 98-9; State v. Vaughan, 200 Mo. 1; State v. Cavin, 199 Mo. 154; State v. Woodward, 191 Mo. l. c. 633; 10 Ruling Case Law, sec. 157, p. 974.]

The Missouri cases supra, conclusively sustain the trial court in holding, that the entire transaction which took place at the time of the shooting was a part of the res gestae to be considered by the jury in passing upon the case.

IV. Defendant’s instruction “A” was properly refused, because it was a comment on a portion of the testimony. [State v. Adkins, 225 S. W. 981; Jones v. Ry. Co., 228 S. W. l. c. 784, and cases cited.] It was likewise properly refused, because instruction 4, given bv the court, correctly declared the law, and covered the question complained of by appellant. [State v. Hilsabeck, 132 Mo. l. c. 358.]

Y. We have examined all the matters complained of by appellant, and find no error in the record of which he can legally complain. The case was carefully tried by court and counsel, and the verdict is fully sustained by substantial evidence.

The judgment below is accordingly affirmed.

White and Mosley, CC., concur.

PER CURIAM:

The foregoing* opinion of Railey, C., is hereby adopted as the opinion of the court.

All of the judges concur.


author: WHITE, C. PER CURIAM:

text:
    RUBY LACKEY v. UNITED RAILWAYS COMPANY of ST. LOUIS, Appellant.
    Division Two,
    May 26, 1921.
    1. DEMURRED TO EVIDENCE: Contributory Negligence: Crossing Street-Car Track: Presumptions. Where defendant’s double-track street railway ran north and south along a private right of way across a public street running east and west, and there were regular stopping places for cars to take on passengers at the northwest and southeast corners of the intersection, and a person at the southeast corner had signaled a north-bound car to stop, a person starting from the northwest corner across the tracks and struck in such public street by said north-bound car, which was running at an excessive speed and did not stop, had a right, in the absence of knowledge to the contrary, to presume that the car was not running at an excessive speed and that it would stop at the regular stopping-place, and hence was not guilty of contributory negligence as a matter of law.
    2. NEGLIGENCE: Last Chance Doctrine: Evidence of Peril. If a motorman operating a street-car across a public street sees a pedestrian approaching the street-car track, he has a right to assume, until a different intention becomes apparent, that such pedestrian will use due care for himself and will not step in front of the car; and, hence, in a suit based upon the last chance rule, it is error to submit that issue to the jury in the absence of evidence to show that at some particular time before he was struck the pedestrian was going into danger and was oblivious of his peril, and that the motorman either saw or could have seen him in time to act.
    3. DEATH STATUTE: Section 4217, R. S. 1919, Penal: Pleading Circumstances Enhancing Penalty: Pecuniary Loss. Although the death statute, Section 4217, Revised Statutes 1919, is penal as to the entire amount recoverable under it, yet if there are many special circumstances tending to enhance the amount of the penalty, such as pecuniary loss by reason of the death, such circumstances should be pleaded in the petition, in order that defendant may be apprised that evidence thereof will be offered and be prepared to meet it.
    4. NEGLIGENCE: Proximate Cause of Injury: Instruction. An instruction to the jury is erroneous which authorizes a finding for plaintiff in a death case on the ground of defendant’s negligence without requiring the jury to find from the evidence that the negligence complained of was the proximate cause of the injury, and which does not require a finding of specific and definite facts from which an inference necessarily follows that the negligence found was the cause of the injury.
    5. -: Section 4217, R. S. 1919: Pleading Ordinance. In a suit under Section 4217, Revised Statutes 1919, where the petition counts upon two specifications of negligence, to-wit: (1) that the street car which caused the injury was running in excess of the speed limit of fifteen miles per hour fixed by a city ordinance; and (2) that the motorman in charge of the car failed to stop the car or check its speed after he saw, or by the exercise of ordinary care could have seen the decedent in time to have done so, it is error to admit in evidence, over defendant’s objection, the St. Louis Vigilant Watch Ordinance which was not pleaded in the petition as a ground of recovery, and which required the motorman to keep a vigilant watch for vehicles and persons on foot either on the track or moving toward it and on the first appearance of danger, to such vehicles or persons, to stop the oar in the shortest time and space possible.
    6. -: -: Contributory Negligence: Unpleaded Ordinance Admissible to Rebut. In a suit under Section 4217, Revised Statutes 1919, by a widow for the death of her husband killed at a street intersection by a street car of defendant, where there is a plea of contributory negligence which defendant attempts to sustain by evidence, and where plaintiff produces evidence that the ear was signaled to stop at a regular stopping place by a person desiring to board it and if it had stopped the injury would not have occurred, it was competent for plaintiff, in order to rebut such evidence of contributory negligence, to introduce in evidence a city ordinance providing that cars should stop on the near side of the street and that it should be the duty of the motorman or other person running the car to bring it to a full stop at the corner of the street as provided, whenever signaled or motioned to by any person standing on such corner desiring to board such car, even though such ordinance had not been' pleaded.
    Appeal from St. Louis City Circuit Court, — Hon. J. Hugo Grimm, Judge.
    Reversed and remanded.

      Charles W. Bates and T. E. Francis and Albert V. Nortoni for appellants.
    (1) The court should have given appellant’s instruction in the nature of a demurrer to the evidence and peremptorily directed a verdict for it because: (a) The negligence of decedent so clearly appears on the evidence contributing directly to the collision and his consequent injuries and death as to preclude respondent’s right of recovery as a matter of law. Schmidt v. Rjc Co., 191 Mo. 2.15; Laun v. Ry. Co., 216 Mo. 578; Keele v. Ry. Co., 258 Mo. 78; Green v. Ry. Co., 192 Mo. 131; Vandeventer v. Ry. Co., 177 S. W. 838; State ex rel. Peters v. Reynolds, 214 S. W. 123; Mockowik v. Ry. Co., 196 Mo. 550; Stotler v. Ry. Co., 204 Mo. 619; Guyer v. Ry. Co., 174 Mo. 344; Byrcz v. Rv. Co., 238 Mo. 46, 47; Rollinson v. Ry. Co., 252 Mo. 543; Gubernick v. Rys. Co., 217 S. W. 33; Holland v. Ry. Co., 210 Mo. 338; Boring v. Ry. Co., 194 Mo. 251; Roenfeldt v. Ry. Co., 180 Mo. 554. (b) Even though the street car was running in excess of the ordinance speed, this does not absolve decedent from the duty to exercise ordinary care to look and listen in the interest of his own safety before going upon the track. Schmidt v. Ry. Co., 191 Mo. 229; Laun v. Ry. Co., 216 Mo. 579; Stotler v. Ry. Co., 204 Mo. 637; Green v. Ry. Co., 192 Mo. 142; Weller v. Ry. Co., 120 Mo. 653; Kenney v. Ry. Co., 105 Mo. 284; Holland v. Ry. Co., 210 Mo. 351. (c) Although in some cases, where nothing to the contrary appears, persons deceased are presumed to have exercised ordinary care for their own safety in approaching the track, no such presumption obtains on this record to be utilized in aid of the verdict, for that the facts in evidence rebut, overcome and dispel any such presumption. Schmidt v. Ry. Co., 191 Mo. 232; Burge v. Ry. Co., 244 Mo. 94; State ex rel. Peters v. Reynolds, 214 S. W. 123; Higgins v. St. Louis Ry. Co., 197 Mo. 318; "Weller v. Ry. Co., .120 Mo. 650. (d) Presumptions have no place in the presence of actual facts disclosed to the jury,'or when plaintiff should have known the facts had he exercised ordinary care. Mockowik v. Ry. Co., 196 Mo. 572; Bragg v. St. Ry. Co., 192 Mo. 354; Nixon v. Ry. Co., 141 Mo. 439; Reno v. Ry. Co., 180 Mo. 483; State v. Swearengin, 269 Mo. 186; Sowders v. Ry. Co., 127 Mo. App. 124. (e) Neither may a pedestrain presume that a car is not running in excess of the ordinance speed when he did not see the ear. Reno v. Ry. Co., 192 Mo. 142; Green v. Ry. Co., 192 Mo. 142; Stotler v. Ry. Co., 204 Mo. 619 and authorities cited supra, paragraphs (c) and (d). (f) “That which the decedent could have learned by the exercise of ordinary care (in approaching the crossing) will be imputed to him as a known fact.” State ex rel. Peters v. Reynolds, 214 S. W. 123; Yandeventer v. Ry. Co., 177 S. W. 838; Peters v. Lusk, 200 Mo. App. 382; Schmidt v. Ry. Co., 191 Mo. 215; Laun v. Ry. Co., 216 Mo. 578; Stotler v. Ry. Co., 204 Mo. 639. (gj There is no humanitarian or last-clear-chance doctrine in the case because the petition does not state facts sufficient to constitute a cause of action thereon, in that it is not averred that decedent was oblivious, or that the motorman either saw, or might, by the exercise of "ordinary care, have seen, that he was oblivious to the peril. Knapp v. Dun-ham, 195 S. W. 1062; Rubick v. Sandler, 219 S. W. 406; ¡Marshall v. Rys. Co., 205 S. W. 971; Stark v. Bingaman, 223 S. W. 946. (h) There was no duty on the part of the motorman to commence the stopping of the car until he saw, or might, by the exercise of ordinary care, have seen, that decedent was both in peril and was oblivious thereto, for until then the motorman was justified in assuming that he would hear the sounding of the gong and stop before coming upon the track in a place of danger. Schmidt v. Ry. Co., 191 Mo. 233, 234; Keele v. Ry. Co., 258 Mo. 79; Guyer v. Ry. Co., 174 Mo. 351; Reno v. Ry. Co., 180 Mo. 489; Roenfe'ld v. Ry. Co., 180 Mo. 366; Knapp v. Dunham, 195 S. W. 1062; Stark v. Bingaman, 223 S. W. 946; Rubnick v. Sandler, 219 S. W. 406; Marshall v. Railroad Co., 205 S. W. 973; Schall v. Rys. Co., 212 S. W. 891; Veatch v. Wabash Ry. Co., 145 Mo. App. 240; Rollinson v. Ry. Co., 252 Mo. 537, 538; Bennett v. Ry. Co., 122 Mo. App. 714; Markowitz v. Ry. Co., 186 Mo. 358; Sanguinette v. Railroad Co., 196 Mo. 497; Pope v. Ry. Co., 242 Mo. 240; PEebeler v. Ry. Co., 132 Mo. App. 55Í; Reeves v. Ry. Co., 251 Mo. 178; Schupp v. Ry. Co., 16G Mo. App. 597. (i) Even though decedent was walking east and looking to the northeast, the motorman was not required to commence the stopping of the car until he discovered that he did not heed the sounding of the gong and appeared notwithstanding to be oblivious thereto, for until then the motorman could assume that decedent would hear the gong and stop before coming upon the track. Schmidt v. Ry. Co., 191 Mo. 234; Bennett v. Ry. Co., 122 Mo. App. 714; Aldrich v. Transit Co., 101 Mo. App. 88; Keele v. Ry. Co., 258 Mo. 79; Candee v. Ry. Co., 130 Mo. 152; Chamberlain v. Ry. Co., 133 Mo. 604, 605; Sinclair v. Ry. Co., 133 Mo. 243; Pope v. Ry., 142 Mo. 240; Reeves v. Ry. Co., 251 Mo. 177; Veatch v. Ry. Co., 145 Mo. App. 240; Hebeler v. Ry. Co., 132 Mo. 551. (j) “Negligence is a positive wrong and will not be presumed,” but must.be proven. Witting v. Railroad Co., 101 Mo. 640. (k) “It requires more than the showing of a mere possibility that an accident might have been avoided in order to bring the case within the humanitarian or last-clear-ehance doctrine.” Markowitz v. Met. St. Ry., 186 Mo. 359; White v. Ry., 159 Mo. App. 614. (1) “Mere error of judgment on the part of the motorman does not suffice to show negligence.” Roenfeld v. Ry. Co., 180 Mo. 567; Bennett v. Ry. Co., 122 Mo. App. 713. (m) There being no duty on the motorman to commence the stopping of the car until he saw, or by the exercise of ordinary care could have seen, that decedent was not going to heed the sounding of the gong and that he was therefore in peril and oblivious to both such gong and such peril, because of his failure to heed such gong’, and there being no evidence as to the distance the street car was away from decedent at that time, it cannot be inferred that the car could have been stopped by the use of ordinary care, with the appliances at hand for that purpose, while running at thirty miles per hour, for to do so would involve the piling' of one inference on a prior inference and this the law will not tolerate. Hamilton v. Ry. Co., 250 Mo. 722; Whitesides v. Railroad Co., 186 Mo. App. 618; Click v. Railroad Co., 57 Mo. App. 104. (n) In view of the affirmative evidence of respondent’s expert motorman, to the effect that it would require from 115 to 120 feet space in which to stop the car, and his positive statement that it could not be stopped between a point at fifty feet south of the south line of Plymouth avenue and the center line of the north sidewalk on Plymouth avenue, where decedent was struck, the finding that the car could have been stopped and the collision averted between the time the motorman discovered, or could by the exercise of ordinary care discover, that decedent did not heed the gong, and that because of that fact he appeared to be oblivious of the danger and was therefore in peril, is not founded upon a “basis of fact,” but rather rests alone upon mere guess or the “fog of conjecture.” ¡McGee v. Ry. Co., 214 Mo. 543; White v. Mo. Pac., 159 Mo. App. 5Í3; Guyer v. Ry. Co., 174 Mo. 351; Battles v. Rys. Co., 178 Mo. App. 519; Green v. Ry. Co., 192 Mo. 140; Yeatch v. Wabash Ry. Co., 145 Mo. App. 232; Hamilton v. Railroad Co., 250 Mo. 722; White-sides v. Railroad, 186 Mo. App. 618. (o) The last-clear-chance doctrine does not obtain where both parties are actively and contemporaneously negligent, until it is too late to prevent the accident, for in such circumstances plaintiff’s negligence is not remote, but rather is active and proximate in the chain of causation, so as to be regarded in the eye of the law as concurrent in point of time. Watson v. Ry. Co., 133 Mo. 250, 251; Reeves v. Ry. Co., 251 Mo. 178; Pope v. Ry., 242 Mo. 240; Everett v. Ry. Co., 42 Pac. 219; Ross v. Ry. Co., 132 Mo. App. 480. (2) The court should have excluded the Vigilant Watch Ordinance, of the City of St. Louis, from evidence on defendant’s objection, because it was not pleaded and the ordinance was not competent under the averments wherein a breach of the humanitarian or last-clear-chance doctrine is sought to be alleged, because it is not in keeping with that doctrine, in that its words import a broader obligation, which entirely omits and ignores essential obliviousness to peril under this doctrine. Knapp v. Dunham, 195 S. W. 1062; Stark v. Bingaman, 223 S. W. 946; Rubick v. Sandler, 219 S. W. 401. (3) The court should have excluded from evidence Section 2386, Revised Code of St. Louis for 1912, touching the matter of cars stopping at a corner on a signal by a proposed passenger on appellant’s objection, also the evidence that Hadley waved because this ordinance was not pleaded, and even if it were, in no view did it raise any duty in favor of decedent, a pedestrian crossing the street and moreover the evidence that Hadley waved was prejudicial. (a) It was not competent on the theory that decedent saw Hadley on the southeast corner wave for the car to stop and that he therefore presumed on the ordinance that the car would stop on such signal, because the evidence is undisputed and conclusive that he did not see Hadley wave at the car, and in such circumstances a mere presumption may not be indulged to establish a fact where there is actual evidence of the non-existence of such facts which it sought to presume. Bragg v. Ry.' Co., 192 Mo. 354; Reno v: Railway* 180 Mo. 469. (b) This ordinance was not competent as tending to mitigate the obvious contributory negligence of decedent, because the evidence is conclusive decedent was looking northeast and did not look toward Hadley. To utilize the ordinance in that view would require first an inference (contrary to the facts disclosed) that decedent looked southeast and saw Hadley wave at the car and then on this first inference of fact pile a second inference to the effect that he thereupon inferred or presumed the car would stop. Inference may not thus be piled upon inference. Hamilton v. Railroad, 250 Mo. 722; Whitesides v. Railroad, 86 Mo. App. 618; Glick v. Railroad, 57 Mo. App. 104. (4) All of the damages in excess of the penalty of $2,000 are compensatory damages awarded “in the discretion of the jury,” to compensate a loss sustained and evidence concerning the details of such loss to be compensated “in the discretion of the jury” must be introduced. Boyd v. Ry. Co., 249 Mo. 120, 126; Johnson v. Ry. Co., 270 Mo. 418; Rollinson v. Lusk, 217 S. W. 328; Kirk v. Ry. Go., 265 Mo. 341; Smelser v. >M. K. & T., 262 Mo. 25; Colvin v. Railroad, Co., 200 S. W. 718; State ex rel. v. Dunham, 213 S. W.' 459; J ohnson v. Mining Co., 187 S. W. 1. (a) The statute gives not one right alone, but rather two rights, one to sue for the penalty of $2,000 and one to sue for compensatory damages to be fixed in the discretion of the jury on the evidence of loss sustained. The two rights are separate and distinct. Johnson v. Ry. Co., 270 Mo. 424, 425. ■ (b) The petition is insufficient in that it pleads or states no facts authorizing the reception of evidence tending to prove or the recovery of compensatory damages apart from the $2,000 penalty. Such facts must be pleaded in order to authorize the introduction of evidence thereof or the recovery of such compensatory damages. Rollinson v. Lusk, 217 S. W\ 328; Smelser v. Railroad Co., 262 Mo. 25; Johnson v. Mining Co., 187 S. W. 1; J ohnson v. Mining Co., 171 Mo. App. 143; Boyd v. Ry. Co., 249 Mo. 120 to 126; Johnson v. Ry. Co., 270 Mo. 424, 425; Trolí v. Gaslight Co., 182 Mo. App. 600; 5 Ency. Plead. & Pract. 874; Kirk v. Railroad, 265 Mo. 341. (e) The court should have sustained appellant’s objection to respondent’s evidence introduced tending to prove compensatory damages, also appellant’s objections to the introduction of the purported American Experience Tables of Mortality as tending to prove loss to be compensated, because no facts were pleaded in the petition authorizing a reception of such evidence, nor the recovery of such damages. Rollinson v. Lusk, 217 S. W. 328. (5) Instruction No. 1 requested by respondent, but modified and given by the court after such modification, is erroneous, misleading and positive misdirection: (a) This instruction covers the whole case and authorizes a verdict for plaintiff without requiring the jury to find that excessive speed was the proximate cause. Battles v. Rys. Co., 178 Mo. App. 614; Bluedorn v. Railroad Co., 121 Mo. 258; Kelley v. Railroad, 75 Mo. 138; King v. Railroad, 211 Mo. 1; Schmidt v. Transit Co., 140 Mo. App. 182; Hunt v. Railroad Co., 262 Mo. 275. (b) In so far as this instruction attempts to submit facts for a finding under the humanitarian or last-clear-chance doctrine, it is erroneous, misleading and • misdirection,. Knapp v. Dunham, 195 S. W. 1062; Stark v. Bingaman, 223 S. W. 946; Rubick v. Sandler, 219 S. W. 406; Marshall v. Rys. Co., 205 S. W. 79; Schmidt v. Railroad, 191 Mo. 215; Keele v. Ry. Co., 258 Mo. 79.

      W. Ti. Douglas for respondent.
    (1) The defendant’s street car was approaching a regular stopping place at a time when there was a passenger waving the car to stop for him to take passage, and deceased had a right to assume that the car would stop for the prospective passenger and was not guilty of negligence in ■ acting on this presumption. McMiens v. Rys. Co., 274 Mo. 326; Percell v. Railroad Co., 126 Mo. App. 51; Harrington y. Dunham, 273 Mo. 426; Harrington v. Ry. Co., 217 S. W. 879; Cobleigh v. Ry., 75 Fed. 247. (2) Defendant was negligent in running the car at a speed in excess of the ordinance limit. Gratiot v. Railroad, 116 Mo. 450; Hutchinson v. Railroad, 161 Mo. 246; Riska v. Depot Co., 180 Mo. 168; Epstein \ Railroad, 197 Mo. 720; Powers v. Railroad, 202 Mo. 267; King v. Railroad, 211 Mo. 1; Everett v. Railroad, 214 Mo. 55; McKenzie v. Railroad, 216 Mo. 1; Strauchon v. Ry. Co., 232 Mo. 587. (3) It was negligence for the motorman not to check the speed of his car when he saw deceased approaching the track with a demeanor indicating an intention to cross ahead of the car. Kolb v. Railroad, 102 Mo. App. 143; Riska v. Railroad, 180 Mo. 168; Deitring v. Railroad, 109 Mo. App. 538; Heintz v. Railroad, 115 Mo. App. 667; Zander v. Railroad, *206 Mo. 445; Powers v. Railroad,'202 Mo. 267; Waddell v. Railroad, 213 Mo. 8; Felver v. Railroad, 216 Mo. 195; Dahmer v. Railroad, 336 Mo. App. 443; Draper v. Rys. Co., 199 Mo. App. 489. (4) It will be presumed that the deceased both looked and listened for an approaching car before crossing the defendant’s track, as there was no evidence by anyone that he did not look or listen. Powers v. Transit Co., 202 Mo. 279-280; Tanner v. Railroad, 186 Mo. App. 269; "McQuitty v. Railroad, 196 Mo. App. 454; Eckhard v. Transit Co., 190 Mo. 610; Riska v. Railroad, 180 Mo. 188; McKenzie, v. Rys. Co., 216 Mo. 22; Bruce v. Rys. Co., 175 Mo. App. 576; Troll v. Rys. Co., 169 Mo. App. 260; Stauchon v. St. -Ry Co., 232 Mo. 597. (5) Deceased, having looked at the car (as the law presumes he did look), was not negligent in failing to discern its excessive speed, for mere error of judgment is not negligence in law. Thompson on Negligence, sec. 1669; 7 White’s Supp. Thompson on Negligence, sec. 3669; Strauchon v. Ry. Co., 232 Mo. 598-602; Murray v. Transit Co., 108 Mo. App. 507-8; Heintz v. Transit Co., 115 Mo. App. 671; Powers v. Transit Co., 202 Mo. 280; Riska v. Depot Co., 380 Mo. 168; Deitring v. Railroad, 109 Mo. App. 524; Irwin v. St. Rys. Co., 196 Mo. App. 670. (6) Even if deceased was negligent, the motorman, by reasonable care, could have discovered his peril in time to have avoided injury. Moore v. Railroad, 194 Mo. 1; Epstein v. Railroad, 197 Mo. 720; Powers v. Railroad, 202 Mo. 271; Waddell v. Railroad, 213 Mo. 8; Everett v. Railroad, 214 Mo. 255; Felver v. Railroad, 216 Mo. 195; Draper v. Railways Co., 199 Mo. App. 489. (7) Plaintiff’s instruction numbered 1 required the jury to find that the negligent acts alleged in the instruction were the proximate cause of deceased’s death, even though it did not state in direct terms that the jury must “find that either one or both of such acts of negligence directly caused the death of deceased,” for this instruction required the jury to find, first, under the excessive-speed ordinance, that deceased was in the exercise of ordinary care before they could find for plaintiff, and, second, under the humanitarian doctrine it required the jury to find facts which, if true, constituted the proximate cause of the accident. Deschner v. Railroad Co., 200 Mo. 332; Tranbarger v. Railroad, 250 Mo. 58; Cornovski v. Transit Co., 207 Mo. 270; Austin v. Transit Co., 115 Mo. App. 151; Sutter v. Ry. Co., 208 S. W. 852; State ex rel. v. Ellison, 208 S. W. 443. (8) Instructions must be taken and read together and construed as a whole. (9) The copy of the American Table of Mortality offered in evidence was competent, and the court will take judicial notice of this table without its introduction in evidence. Timson v. Coal Co., 220 Mo. 614; Medley v. Mining Co., 207 S. W. 890; Southern Pac. Co. v. DeValle-DeCosta, 190 Fed. 698. (10) There was evidence on which the jury were authorized to fix compensatory damages. Boyd v. Railroad, 236 Mo. 88; Kettlehake v. Car Co., 171 Mo. App. 538; Troll v. Graslight Co., 182 Mo. App. 600; Kirk v. Railroad, 265 Mo. 341; Browning v. Railroad Co., 124 Mo. 55.
   WHITE, C.

The appeal in this case is from a judgment in favor of the plaintiff, recovered on account of the death of the plaintiff’s husband, John W. Lackey, caused by the alleged negligence of the defendant.

Lackey, while a pedestrian on the street was struck and killed by a street car of the defendant, July 23,1918. At that time the defendant operated two parallel street railway tracks, called the Hodiamont tracks, along its private right of way across Plymouth avenue. Plymouth avenue, at the point of intersection ran east and west and and was forty-five feet wide; the right of way was about twenty-two feet wide. The street ear tracks at that point were each five feet wide with a space of four and one-half feet between them; along that space was a ditch three and a half feet wide and eighteen inches deep. Northbound cars ran on the east track, and southbound cars ran on the west track. A drug store stood at the northwest corner of Plymouth avenue and the right of way. A granitoid walk or landing was on the éast side of the drug store where passengers boarded and alighted from cars running south. This sidewalk was about forty feet long, and at the front was against the drug store and extended 8 feet, 4 inches toward the track, with a space of 20 inches between the edge of the walk and the west rail of the west track. On the southeast corner of Plymouth avenue and the right of way was likewise a granitoid walk three and a half or four feet wide, extending along the track southward from Plymouth avenue about seventy-five feet, where cars going north regularly discharged and received passengers. The following sketch shows approximately the position of the street, the car tracks, and surrounding objects:

On the day mentioned John W. Lackey, husband of the plaintiff, was seen on the walk alongside the drug store. He was seen to step down from the wall?: into the twenty-inch space between that and the wést rail of the southbound track,’ or upon that rail. This was at a point 8 or 10 feet north of the north line of Plymouth avenue. He was not seen any more by any witness who testified until the instant before he was struck by a ear running north on the east track; he was then at a point where the sidewalk crosses that track, about twenty feet from where he was first seen.

Three witnesses for the plaintiff testified to seeing the incidents preceding and at the moment of the collision. Two of these witnesses, Hadley and Cahill, were diagonally across the street at the southeast corner of Plymouth and the right of way on the granitoid walk where passengers were received upon ears running north; the third was Katie Self, sitting on the east end of her porch on the north side of Plymouth avenue and east of the track. Referring to the plat which we have made for convenience, “a” represents the point where Lackey was seen to step down off the walk by the drug store at a point 8 or 10 feet north of the north line- of Plymouth avenue; “b” is the point on the northbound track where he was struck. His body was found at point “c” between the two tracks about twenty-five feet north of where he was struck; “d” is the point where two witnesses, Don Hadley and John Cahill, were standing when Hadley saw Lackey step off the walk at point “a”; “e” is the point on.the porch of the house east of the track where Katie Self was sitting and saw the collision; “f” is the point where Hadley was at the moment- of collision; “g” is the point where Cahill was at the instant of collision.

The only person who saw Lackey at the point “a” was Hadley. He was then at point “d”, talking to Ca-hill, and waiting for a car to go north. The moment he saw Lackey step down from the sidewalk at point “a”, witness looked south and saw a car coming from that direction about one hundred and fifty feet away. He signaled that car to stop for him, turned and walked rapidly south along the granitoid walk about twenty feet, and didn’t see Lackey any more until after he was struck. The car did not stop at his signal but passed on, struck Lackey and stopped with the rear end of the car about thirty-five feet north of Plymouth avenue. Lackey at that time was lying between the two tracks in the ditch, about thirty feet north of Plymouth avenue. The car was running at a very high rate of speed about 30 or 35 miles an hour. Cars going north on that track usually stop with the rear end about 40 feet south of Plymouth avenue and the front end about at the property line. Witness expected the car to stop at that point. It was about 8:30 in the evening of July 23rd, and light enough -for anybody to see. The car coming from the south could have been seen at a considerable distance by anyone looking. The witness was cross-examined at length; he repeated several times that at the time he saw Lackey the latter was in the act of stepping off the sidewalk alongside the drug store eight or ten feet north of the sidewalk on Plymouth avenue. He said Lackey was walking slowly, looking down to see where to put his feet. At the point where he was Lackey could not conveniently have crossed the ditch between the tracks, but would have had to walk south eight or ten feet to the sidewalk on Plymouth avenue and cross the tracks on that sidewalk.

John Cahill testified that he intended to board a southbound car which regularly would stop at the granitoid walk beside the drug store. He stopped at the /point “d” on the southeast corner for a few minutes, .talking with Mr. Hadley. It was his intention then to /cross diagonally to the coiner where he should take the ¡next car'going south. He did not see Lackey at that ¡time. He saAv the car Hadley intended to take coming from the south, about 150' feet away, and started to run diagonally across ahead of it; he crossed the northibound track and had got about to- the middle of Plymouth avenue on the southbound track when he saw the 'car coming north was not going to stop for Hadley. His testimony then continued as follows:

“Q. Now, when you started from the southeast corner across there, how far was the car south of you then ithat Mr. Hadley wanted to get on, do you know? A. ■About one hundred and fifty feet.

“Q. Did you see the car any more after that? A. Not until I got in the middle of the southbound track, then I heard him ringing the gong, and I turned around and T seen he was going to pass Mr. Hadley up. I looked back and seen Mr. Hadley standing there; he was waving the paper for him to stop the car; I seen him ringing the bell and kept ringing — and I seen he was going to pass him np, and I stood in the middle of the southbound track, and as he got in the middle of Plymouth avenue he started to ring the.bell again; and I seen Mr. Lackey about the middle of the car track. He started to step back; he seen he was too late, and he jumped up in the air, like to jump on the fender to save himself, and the car struck him and knocked him in the middle of the ditch. He landed on his feet, his face turned south; his head hit the car track, and his head lay on the car tracks and the rear guard on the hind trucks struck his face and knocked him in the ditch.

“Q. Now, where were you then? A. Standing in the middle of the southbound track:

■ “Q. Where were you in Plymouth avenue, to the north side or in the middle, or to the south side? A. Right in the middlé of Plymouth. ’ ’

The witness testified that the car was running at a very high rate of speed, about thirty-five or forty miles an hour; that the bell of the car was ringing when it arrived about fifty feet south of Plymouth avenue, and the motorman commenced ringing again, loudly, about the time he reached the middle of Plymouth avenue. He rang the bell hard and “hollered ‘look out’ He said, further, the car did not make much noise running on the right of way because it was not on a granitoid foundation. On cross-examination he said he would judge that Lackey jumped about eighteen inches or two feet high; jumped like for the fender and grabbed the ear so as to save himself; that he never saw Lackey until Lackey was on the northbound track, when the front end of the car was within fifteen or twenty feet of him.

Mrs. Katie Self testified that she lived on the north side of Plymouth avenue, east of the tracks; that her house stood back .fifty feet from Plymouth avenue; that the west side of the house was only about three and a half feet east of the track. She sat on the east end of her porch, reading. She was suddenly attracted by the violent ringing of the bell of the street car. Street ears passed that way every four minutes through the day, ringing bells and making noises, and she usually paid no attention to the noise they made, but the ringing of the bell was so violent and unusual that she looked up and, this is the way she described the collision:

“Q. What did you see when you looked up? A. When I looked up when the bell was ringing I saw a -man crossing the track. He was on the last track east; that is, the northbound car track, and when I looked up the car was just about five feet from him and he went to step forward and became confused and jumped in the air as if to let something go under him, as if he was going to be struck, and while he was in midair the car struck him.

“Q. Where was he at that time with reference to the crossing on Plymouth avenue; was he on the regular crossing? A. He was on the right of way for going-back and forth.

££Q. Where people walk across? A. Yes, sir.

££Q. Which side of Plymouth, north or south? A. On the north side. He was going east.

£<Q. Bid you see the car after it stopped? A. Yes, sir.

££Q. Where was it with reference to the north side of Plymouth avenue? A. Prom where it hit him?

££Q. Yes. A. It was about fifty or fifty-five feet, the back end of the car, from where it hit him.

££Q. After the car stopped did it stand stationary or did it move or back up? A. I couldn’t say; I didn’t see it.

££Q. Where was the man at the time? A. He was between about twenty-five feet from where he was hit from the crossing; it threw him twenty-five feet.

££Q. I believe he was laying between the tracks you

say? A. Yes, sir. There is a little ditch between the two tracks.” The witness judged that the ear was going at the rate of thirty miles an hour.

Another witness, Mrs. Mary Grace, lived further east on Plymouth avenue. She testified to the unusual clamor and ringing of the bell, the screaming of the people, and that the car was going at thirty or thirty-five miles an hour.

No witness put the speed of the car at less than thirty miles an hour.

An ex-motorman who was familiar with the operation of the cars of the 600 series, of which the car in question was one, swore that under the conditions shown such a car traveling at fifteen miles an hour could be stopped within forty or forty-five feet, and a car traveling thirty miles an hour, in from one hundred and fifteen to one hundred and twenty feet. He said those cars could not he run faster than thirty miles an hour unless going down grade; that the appliances used for stopping cars could he applied instantaneously, “right now,” in a fraction of a second. Witness also figured the speed per second of a car going thirty miles per hour is forty-four feet; at thirty-five miles .an hour a car travels fifty-one feet per second; and at forty miles an hour, sixty feet.

The plaintiff introduced and read the Revised Code of the City of St. Louis, Section 2381, prohibiting street cars from being propelled at a greater rate of speed than fifteen miles an hour in parts of St. Louis, including the place where Lackey was killed. Plaintiff also introduced Section No. 2386 of the Revised Code requir-^ ing cars going southward to stop on the north side of the intersection of streets, and those going northward to stop on the south side of the intersection of streets, when signaled or motioned to by anyone standing on the appropriate corners, desiring to board such cars. They also introduced Section 2380 of the Vigilant Watch Ordinance providing that each “motorman, gripman, driver or any other person in charge of each car shall keep vigilant watch, for all vehicles and persons on foot, especially children, either on the track or moving towards it, and. on the first appearance of danger to such person or vehicles the car shall he stopped in the shortest time and space possible.”

All of these ordinances and regulations were objected to by the defendant, and exceptions saved to their introduction.

The case was submitted to the jury oh two specifications of negligence set up in the petition, first that the car which caused the accident was running in excess of the speed limit of fifteen miles an hour, and, second, the failure of the motorman in charge of the car to stop the car or check its speed after he saw, or by the exercise of ordinary care could have seen, Lackey in time to have done so.

Defendant introduced no evidence but demurred to plaintiff’s evidence, which demurrer was overruled, and a verdict for $10,000 in favor of plaintiff resulted The evidence is set out at some length because one main assignment of error is to the action of the court in overruling the demurrer to the evidence.

I. It is conceded that the defendant was negligent in operating at an excessive rate of speed the car which caused the death. It is argued that the demurrer should have been sustained because the evidence conclusively showed Lackey’s own negligence contributed to the fatal injury. Appellant relies upon the rule, established in many cases, that one who is about to go upon a railroad track or a street railway track owes a duty to himself to look and listen; he must have a care for his own safety. If he goes upon the track in front of an approaching car when the exercise of ordinary care would prevent injury he cannot recover for the injury caused by collision with such car. [Keele v. Railroad, 258 Mo. l. c. 80; Rollison v. Railroad, 252 Mo. l. c. 542-3; Gubernick v. United Railways Company, 217 S. W. l. c. 35; Schmidt v. Railroad, 191 Mo. l. c. 229; Laun v. Railroad, 216 Mo. l. c. 578.] The rule that one injured or killed under such circumstances is presumed to have been in the exercise of ordinary care, in the absence of evidence to the contrary, is conceded by the appellant. [McKenzie v. United Rys., 216 Mo. l. c. 22.] But it is urged that it has no application here because, appellant asserts, the facts in relation to the incident all are clearly shown. When the facts appear "as to how such a collision happened there is no room for a presumption. [Burge v. Railroad, 244 Mo. l. c. 94; Tetwiler v. Railroad, 242 Mo. l. c. 194; Higgins v. St. L. & Sub. Ry. Co., 197 Mo. l. c. 317.] Many other cases of like import are cited.

To say that one injured under such circumstances is presumed to be exercising ordinary care is but another way of saying contributory negligence is an affirmative defense and must be proven in order to be available to the defendant. Since the defendant introduced no evidence we must examine the facts to see whether the plaintiff’s own evidence shows conclusively that Lackey was negligent. It will be noted that from the time he stepped Off the walk by the drug store until he was on‘ the track immediately in front of the car. which struck him, he was not seen by anybody who testified. The distance between those two points may be approximately determined from the figures given. Starting at that point he had to go eight or ten feet, to the sidewalk on Plymouth avenue, then across the west track five feet, and the space of four and a half feet between the tracks, and go on to the east track, a total distance of about twenty feet. That would have been his most probable course. He might have reached the point by going diagonally across from where he first stepped off the walk, but in that case he would have crossed the ditch between the two tracks, three and a half feet wide and eighteen inches deep. He certainly was not negligent in anything he was seen to do at the time he stepped off the walk. He was walking slowly, looking down, as the witness stated, to see where to pnt his foot. Nothing in his attitude indicated lack of care.

When he was next seen he was on the track, five, fifteen or twenty feet, according to the different witnesses, in front of the approaching car. He seemed to discover the car about the time the witnesses saw him, and, from testimony, was confused by the sudden discovery of the car so close. The mere instant’s hesitation was fatal to him. He first appeared to start back and then jumped upward to save himself by jumping on the fender. His action indicates such excitement and confusion as for the moment to deprive him of quick and rational action. It is possible, with the car fifteen or twenty feet from him, that he might have jumped to one side and escaped, but he certainly was not negligent in failing to do that, in the confusion of the moment. On that proposition the authorities are unanimous. Some men are slower than others to think. The ordinary individual, in sudden emergency, is incapable of instant action. To save himself then required instant action, which he seemed unable to take in the right direction. No one knows how he got on the track. It can’t be presumed that he intentionally walked on the track in front of the approaching car which he saw, or readily could have seen. Pie may have stumbled on the track accidentally.

Other circumstances also must be taken into consideration; circumstances which do not appear in cases relied upon by appellant,as showing contributory negligence on the part of one who voluntarily steps in front of an approaching ear or train. The car was running at the rate of thirty miles or more, an hour — twice as fast as the speed limit permitted. If Lackey saw the car one hundred and fifty feet away when he started across the right of way, he had a right — in the absence of any notice or knowledge to the contrary — to assume that it was traveling within the speed limit. [Powers v. Transit Co., 202 Mo. l. c. 280; Harrington v. Dunham, 273 Mo. 414, l. c. 423; Moon v. St. Louis Transit Co., 237 Mo. l. c. 430, et seq.; Eckhard v. St. Louis Transit Co., 190 Mo. 593, l. c. 617; Riska v. Union Depot R. R. Co., 180 Mo. l. c. 191; Strauchon v. Met. Street Ry. Co., 232 Mo. 587, l. c. 600-601.] He might very well misjudge the speed of the car seeing it as it came head on. It has been said by this court to be a matter of common knowledge that one seeing a running car at an acute angle — for instance, from the front, — is not nearly so well able to judge of its speed as one viewing it from the side. [Strauchon v. Met. St. Ry. Co., 232 Mo. l. c. 599.] Furthermore, it was the duty of the motorman of the approaching car to stop on the south side of Plymouth avenue, because it was a regular stop, and he was signalled to stop by Hadley who sought passage. If Lackey saw.the car approaching, as appellant asks us to assume, we might as well assume that he saw Hadley’s signal to the car to stop. The cases in the last group cited discuss the assumptions upon which one approaching a track may rely under varying conditions. Lackey had a right to assume that the approaching car was running within the speed limit and that it would stop on the other side of the street, and to act upon the assumption, unless he 'knew to the contrary. In either case he could have crossed in safety, and was not negligent in attempting to do so. Appellant cites the case of State ex rel. Peters v. Reynolds, 214 S. W. 121, recently determined by this court, in which one crossing a railroad track was killed, and was not seen from the time he started to cross the track a little distance away until after he was hit. It was held by this court, approving the ruling of the St. Louis Court of Appeals that the plaintiff was negligent as a matter of law, because if he had looked he must plainly have seen the approaching train, and he was negligent if he failed to look. Other eases might be cited where recovery has been denied on account of contributory negligence, although the party injured or hilled was not seen for a brief interval between the fatal collision and where he was previously at some point of safety. In all of these cases the right to assume the approaching train or car was running at a given speed, or would stop, is entirely absent. This court in case of State ex rel. Peters v. Reynolds, supra, said, l. c. 123, in distinguishing.the cases where such assumption was allowed:

“In all those cases some specific violation of duty or of a custom by defendant company is considered, and it is held that a pedestrian may presume and act upon the presumption that there will be no such violation, but that the usual and regular, or prescribed, method will be followed.

“Also in each of such cases there was an.absence of actual knowledge of the failure of duty; that is, the pedestrian who acted upon such presumption either could not see or hear the approaching train, or was in such position that he would likely misjudge its rate of speed.”

The court then points out that the facts in that ease did not show the deceased had reason to believe that the train would run at a rate of speed less than that at which it was running.

The facts in this case come clearly within the exception noted here. Here Lackey did have reason to believe the car would run at a particular rate of speed. He did have reason, if he saw the car at all, to believe that it would stop. He had a right to rely upon the observation by defendant of a duty which its regulation and the city ordinances required it to perform.

Several witnesses swore to the loud ringing of the bell without placing the distance of the car at the time. There is substantial evidence to show that the bell rang by the time it got within fifty feet of Plymouth avenue, and only rang again, very violently, about the time the front end of the car reached the middle of Plymouth avenue. That violent ringing must have occurred about the time Lackey discovered the ear and became too confused to jump off the track. If he saw the car when it was an hundred and fifty feet south of Plymouth avenue, it was then in the neighborhood of two hundred feet from him. If it was going at fifteen miles an hour, or twenty-two feet per second, he would have had at least six seconds in which to cross the track ahead of it. He could easily have done that at an ordinary walk. There is no view of the evidence which would authorize a conclusion of law that he was so negligent as to bar recovery.

II. The case was submitted both on the negligence of defendant in running its car at an excessive rate of speed, and on the last chance doctrine. Appellant is correct in its argument that the motorman, even if he saw Lackey approach- . ' , , . , , , mg the track, had a right to assume, until a different intention was apparent, that he would use due care for himself and would not step in front of the car. The absence of evidence considered in the previous paragraph to show Lackey was not necessarily negligent applies to the question considered here. There is no evidence whatever as to when or how Lackey stepped into the dangerous position, or indicated an intention to do so. The motorman was not negligent in failing to observe the last chance rule at any particular period until Lackey was in danger, or apparently going into danger. The evidence showed the car, at the rate it was running, could not have been stopped in less than one hundred and fifteen or one hundred and twenty feet. In order to permit the submission of the question as to whether it could have been stopped or cheeked 'sufficiently to avoid injuring Lackey, it would have been necessary to show that at some particular time before the immediate contact he was going into danger and was oblivious of his peril, so that the motorman could have seen him, in time to act. [Knapp v. Dunham, 195 S. W. 1062; Rubick v. Sandler, 219 S. W. l. c. 406; Schmidt v. Railroad, 191 Mo. 215; Keele v. Railroad, 258 Mo. l. c. 79.] It might be inferred from the fact that the bell began to ring violently at the middle of Plymouth avenue, that the motorman at that time discovered him in a position of peril, or in the act of going upon the track; but there is no evidence that he might have discovered such peril sooner because there is no evidence that Lackey was in peril sooner than that. Then it was too late to stop the car or even sensibly check its speed. It was, therefore, error for the trial court to submit to the jury the issue whether the car might have stopped in time to avoid injury after the discovery of, or the opportunity to discover, Lackey’s peril.

III. Appellant claims that the statute under which this- suit was brought, Section 4217, Revised Statutes 1919, is penal so far as two thousand dollars of the recovery provided is concerned, and compensatory as to the remainder of recovery up to ten thousand dollars, and, since the petition alleged no facts showing* pecuniary loss, recovery should have been limited to $2,000.

In the well-considered case of drier v. Kansas City Electric Railway Co., 286 Mo. 523, the Court in Banc at the present term held that the section is penal as to the entire amount recoverable, and allowed a verdict under the section for $10,000 to stand, though there was no pleading or proof of pecuniary loss. There was no error in permitting recovery for the full amount.

Another question arising in this connection is vyhether evidence of pecuniary loss to the widow by reason of her husband’s death, in an action under that section, is admissible if not pleaded. Evidence was admitted, over defendant’s objection, to show the earning capacity of Lackey, and his life expectancy.

The amount awarded in such an action, between the limits of $2000 and $10,000, is “in the discretion of the jury.” Of course the jury must have facts upon which to base an estimate fixing the amount of penalty to be imposed. It is held in the drier case that evidence showing circumstances of aggravation and pecuniary loss may be admitted for the purpose of furnishing the jury such information, although the jury has authority to award the full amount without such evidence.

The cases construing the compensatory sections, 4218 and 4219, in regard to the admissibility of such evidence, throw little or no light on the question. [Johnson v. Mining Co., 171 Mo. App. 134; Rollinson v. Lusk, 217 S. W. 328, l. c. 332; Smelser v. Railroad, 262 Mo. 25, l. c. 42.]

There is no reason why in a suit under a penal statute the ordinary rules of pleading should not apply as well as under a compensatory statute, including the rule that every fact constituting a cause of action should be stated. [Section 1220, R. S. 1919; Pier v. Heinrichoffen, 52 Mo. l. c. 336.] That means not only facts necessary to a recovery, but facts affecting the amount of recovery. Evidence of special damages cannot be admitted to enhance a verdict unless pleaded. For like reason, where the jury is required to exercise discretion in fixing the amount of a penalty, they should consider the evidence which would affect the result, as held in the Grier case. In order to meet such evidence the defendant has a right to be apprised by the pleading that it will be offered. Unless the petition states facts in general terms from which the aggravating circumstances that would increase the penalty may necessarily be inferred, such circumstances should be pleaded, just as special damages must be pleaded in a suit for compensation. It is suggested in some of the cases cited above that an allegation that plaintiff was the wife of deceased is a sufficient averment of pecuniary loss, because the law requires him to furnish her support. But it by no means follows, as a necessary inference, because the law requires a man to support his wife that he does support her; very often it is quite the contrary and the death of the husband may be to the widow a large pecuniary gain.

Prom the holding’ in the Grier case that-such evidence is admissible for the purpose of giving the jury facts upon which to fix the amount of the penalty to be imposed, it is a reasonable conclusion that such facts should be pleaded.

IV. Appellant assigns error to the giving of instruction number one on behalf of the plaintiff because ^ does not require a finding by the jury that the alleged negligence of the defendant was the proximate cause of the injury. The first part of the instruction, after requiring a finding as to the facts in relation to the collision and the death, and the ordinance limiting the speed of the car, proceeds:

“If you further find from the evidence that at the time the deceased was struck by the car it was being run at a speed greater than fifteen miles an hour and the deceased was exercising ordinary care for his own safety, then the defendant would be liable in this action and your verdict should be for the plaintiff.”

No other negligence is required to be found in the instruction and nothing appears except the above quoted passage, as to the effect of such negligence. Negligence is not actionable unless it produces an injury. In such cases it is always necessary to prove that the negligence complained of is the proximate cause of the injury which results. An instruction authorizing recovery in such case must require such a finding. [King v. Railroad, 143 Mo. App. 279, l. c. 297; Battles v. Railways Co., 178 Mo. App. l. c. 614; Tranbarger v. Railroad, 250 Mo. l. c. 58.] Where the jury is required to find facts from which a necessary inference follows that the negligence found was the cause of the injury, it is sufficient. [State ex rel. v. Ellison, 208 S. W. 443; Sutter v. Metropolitan Street Ry. Co., 208 S. W. 851.]

• The instruction in this case, however, does not require a finding of specific and definite facts from which an inference necessarily follows that the negligence, if found, was the cause of the injury, nor was there any other curative instruction given in the case. It was entirely possible for the jury to find that the defendant was negligently exceeding the speed limit; that Lackey was exercising due care for his own safety, and yet find that the negligence of the defendant was not the cause of the death; it might have been purely accidental.

The instruction is erroneous, also, for another reason. It is in the alternative, and in addition to the part quoted above authorizes a verdict for plaintiff, not only on account of the excessive speed, but also under the humanitarian rule. It was error to submit the latter alternative, as we have seen above.

V. The vigilant watch ordinance was admitted in evidence over the objection and exception of defendant. It was.not pleaded in the petition as a ground of recovery, and its admission was error. [Weisberg v. Boatmen’s Bank, 280 Mo. 199, 217 S. W. l. c. 86; Peterson v. United Rys. Co., 270 Mo. l. c. 74; State ex rel. v. Oddle,. 42 Mo. 210; Keane v. Klausman, 21 Mo. App. 485.] Under some circumstances its admission may be harmless, though not pleaded, because it is declaratory of the common law, hut since the case is to be retried we need not discuss that distinction.

VI. The plaintiff introduced an ordinance which provided that cars should stop on the near side of the street and that it should be the duty of the motorman, or other servant running the car, to bring the.car to a full stop at the corner of the street as provided, whenever signaled or motioned to by any person standing on such corner desiring to hoard such car. This was objected to by the appellant and error assigned to the action of the court in admitting it. The ordinance was admissible though not pleaded. The defendant’s answer pleaded contributory negligence and defendant attempted to show it in cross-examination of plaintiff’s witnesses. It was then entirely competent for the plaintiff to prove any fact which would rebut evidence indicating such negligence. It was proper to show that the motorman was in duty bound to stop his car on the other side of the street. The ordinance was admissible for that reason.

For the reasons mentioned the judgment is reversed and the cause remanded.

Bailey and Mosley, GO., concur.

PER CURIAM:

The foregoing opinion by White, C., is adopted as the opinion of the court.

All of the judges concur; Higbee, P. J'., in reversing, but dissents as to remanding.