author: LAMM, J.

text:
    ROBERT KAME, A Minor, by R. B. KAME, His Next Friend, v. ST. LOUIS & SAN FRANCISCO RAILROAD COMPANY, Appellant.
    Division One,
    January 3, 1914.
    1. DEMURRER: At Close of Plaintiff’s Case: Appellate Practice: Waiver. If the defendant, after its demurrer to plaintiff’s case was overruled, went ahead and put in its own proof, its demurrer offered at the end of the case searches the whole evidence, and the first fills no office on appeal. But if defendant’s proof, does not aid plaintiffs case in chief, it may be inexact to say the first demurrer is waived under such circumstances; it is sufficient to say that the exception to it has become functus officio.

    2. NEGLIGENCE: Fire in Railroad Yards:- Jamming Train Against Stationary Car. Where there was a fire at midnight in defendant railroad’s yards, and defendant by fire alarm signals summoned the inhabitants of the town to its aid, and a largé number of persons responded thereto, and finding their way blocked by a dead train on one of the intervening tracks' and' there being no other way to reach the burning cars swarmed over and through this dead train, to which no engine was attached, and suddenly, without warning from bell, whistle or otherwise, the engine which had given the alarm invitation, moving up the track for the purpose *of removing loaded cars from the range of the fire, was backed by defendant against said dead cars, ramming them with such violence that persons were knocked down, and among them plaintiff, a fifteen-year-old boy, then with others on a coal car with a projecting floor, attempting to cross, there was negligence in the engineer’s ramming too hard in making the coupling and in not giving warning signals, and negligence in the foreman, who was on. the ground and knew of the danger, in not taking steps to give warning or to properly control the train by slow-down signals. If the train was backed into the crowd without control or management, that was stark negligence; if it was under management, whoever was the manager neglected his duty. Under the circumstances, there being no conflict in the testimony, the court would have been justified in declaring defendant negligent as a matter of law in ramming the dead cars.
    3. -: Contributory; Climbing Over Cars: Invitee. What is negligence in one set of facts is not negligence in another; negligence is the absence of due care, and due care is care according to circumstances. It cannot be held that a person summoned by loud fire alarms to aid defendant in an emergency to help save its property from destruction by fire and to be on and about its dead cars and to cross over them, was as a matter of law guilty of contributory negligence in getting upon one of the dead cars in an attempt to reach the fire by the only way available. Such person was not a trespasser, nor a licensee, but an. invitee.
    4. -:--: -= — : -: Notice of Peril: Duty to Crowd as Composite Unit. Defendant, having by its fire-alarm signals summoned the inhabitants of the town to come to its aid in saving its car's and other property from destruction by fire and they having come in large numbers and in trying to reach the fire swarmed over a dead train which barred the only way, cannot excuse itself for injuring plaintiff, one of them, by invoking the rule that the measure of its care was to stop the ramming train after it had notice of Ms peril. The defendant owed a duty to the crowd as a composite unit, not to run the .train into it without warning, and. such duty distributed itself to each member of the crowd assembled to help it, whether defendant knew plaintiff was present or not.
    o. -: -:--: -: -: Knowledge of Existence of Curve. If there was a curve in the track between the engine and the crowd, then so much greater was .the duty of switchmen, on the ground and train, to signal the engineer as the engine approached to make the coupling with the dead cars over which a crowd was crossing to reach defendant’s burning property; and the engineer, having given the alarm signal for the crowd to assemble, must be held to have known of the presence of the crowd and whether a curve in the track or other impediment intercepted his immediate view.
    6. -:--: -: -: -: Failure to Cali Engineer. The unexplained failure of defendant to use as a witness the engineer in charge of the engine and cars which were rammed into the dead cars upon which a crowd assembled by bis alarm signals were clambering and whereby plaintiff was injured, is of significance. Such failure raises a strong presumption that the engineer’s testimony would be damaging to defendant.
    7. -: Instruction: Humanitarian Rule: Notice of Peril. ■ If a reasonable man, without seeing, would have just and reasonable cause to anticipate the presence of plaintiff in peril on the track, that fact is in law equivalent to notice and he must govern himself accordingly in meting out due care; and an engineer, who by loud fire-alarm signals has summoned the inhabitants of the town-to come and help save the defendant’s property from destruction by fire, and knowing that their only way to reach the fire is to cross over a train of dead cars, knows that such signals produce a- crowd, and he cannot thereafter act negligently and jam the engine and the cars attached to it against the dead cars and excuse himself on the theory that he did not know the crowd had assembled and were clambering over the dead cars.
    8. -:--: -: -: Actual Knowledge of Foreman. And whether or not the engineer did actually see or know the danger to the assembled crowd, the defendant cannot excuse itself for jamming other cars against the dead cars over which the people by its invitation were crossing to the fire, if the foreman stood by and saw them and ordered the cars moved and the couplings made.
    9. -: -: -: No Contributory Negligence: Handicap. Where plaintiff was guilty of no contributory negligence, since what he did defendant invited and expected him to do, an instruction submitting his case on the humanitarian theory is not needed, but serves only to handicap him • and weigh down his cause; but the giving of such an instruction, if error, was error against him, and cannot affect his right to have a verdict in his favor approved on appeal.
    10. -: -: Mutual Error. An appellant cannot complain of error in respondent’s instructions which is contained . in his own.
    11. -: -: Youth and Inexperience. Where the situation was confused and the plaintiff was immature and inexperienced, an instruction telling the jury that if they found by reason of those facts that he was not aware of the danger to which he was exposed they should take that fact into consideration in passing upon the question of his contributory negligence, was proper.
    12. INSTRUCTIONS: Contrary to Right Theory. Instructions offered by defendant which are contrary to the right theory should be refused.

      Appeal from Jasper Circuit Court. — Hon. David H. Blair, Judge.
    Affirmed.

      W. F. Evans and Mann, Johnson & Todd for appellant.
    (1) The court erred in refusing to give the instruction in the nature of a demurrer to the. evidence as requested by defendant at the close of plaintiff’s case, and as requested by defendant at the conclusion of all of the evidence in the case, (a) Because plaintiff was guilty of contributory negligence as a matter of law in attempting to pass between the cars at the time and place, and in the manner he did. Hudson v. Railroad, 101 Mo. 13; Corcoran v. Railroad, 105 Mo. 399; Bean v. Employers Liability Co., 50 Mo. App. 459; Westbrook v. Railroad, 54 So. 231; Railroad v. Clark, 105 S. W. 384; Howard v. Railroad, 21 Pac. 267; Ma-goon v. Railroad, 31 Atl. 156; Lewis v. Railroad, 17 Am. Rep. 521; Bird v. Railroad, 48 N. W. 691; Jones v. Railroad, 104 S. W. (Ky.) 258; Rumpel v.. Railroad, 22 L. R. A. (O. S.) 725; Studer v. Railroad, 66 Am. St. 39. (b) Plaintiff’s age, fourteen years, nine months and one week, was such that it was the duty of the court to declare as a matter of law that he was guilty of contributory negligence. McGee v. Railroad, 214 Mo. 531; Payne v. Railroad, 129 Mo. 405; Herdt v. Koenig, 137 Mo. App. 589; Walker v. Railroad, 193 Mo. 453; Payne v. Railroad, 136 Mo. 562. (c) Plaintiff did not make out any case under the humanitarian rule, and even though he pleaded in his petition a cause of action under the humanitarian rule, the evidence conclusively showed that he was. not entitled to have the case submitted to the jury on that ground, because the evidence fails to show that after he was in a position of peril the employees of defendant operating the train could have averted the injury, by a reasonable employment of tbe means at hand, bnt on tbe contrary tbe evidence shows beyond question that after plaintiff took bold of tbe handhold and started to climb onto tbe car it would bave been impossible to avert tbe coupling wbicb was tbe cause of plaintiff being- thrown to tbe ground and injured. Tbe burden was on plaintiff to show this state of facts, and having failed to do so, defendant’s demurrer should bave been given. Burde v. Eailroad, 123 Mo. App. 629; Hudson v. Eailroad, 101 Mo. 13; McGee v. Eailroad, 214 Mo. 541; Matz v. Eailroad, 217 Mo. 298; Dyrez v. Eailroad, 238 Mo. 47; Pennell v. Eailroad, 153 Mo. App. 566; Koegel v. Eailroad, 181 Mo. 379; King v. Eailroad, 211 Mo. 14; Hawkins v. Eailroad, 135 Mo. App. 524; Davis v. Eailroad, 155 Mo. App. 312; Plarper v. Eailroad, 187 Mo. 588; Gumm v. Eailroad, 141 Mo. App. 315; Mockowick v. Eailroad, 196 Mo. 570; Markowitz v. Eailroad, 186 Mo. 359. (2) Plaintiff’s instruction numbered one was erroneous because it was not supported by tbe evidence, there being not tbe slightest suggestion in tbe testimony of any witness that after plaintiff was in position of peril, to-wit, after be bad left tbe ground where be was absolutely safe and had -commenced to climb through between tbe cars, any human power could bave averted tbe coupling wbicb moved tbe cars and wbicb threw plaintiff to tbe ground under tbe wheels. (3) Tbe court erred in giving plaintiff’s instruction number 4, telling tbe jury that although they may believe from tbe evidence that it would bave been negligence in an adult to bave climbed over tbe end of tbe car, or between tbe cars as plaintiff did on tbe occasion of bis injury, yet if tbe jury shall further find by reason of plaintiff’s youth and experience, be was not aware of tbe danger to wbicb be was exposed in doing so,'then tbe jury will take this into consideration in passing upon tbe question of plaintiff’s alleged contributory negligence, (a) This instruction was error, because plaintiff pointedly testified that he knew that if the cars were moved while he was trying to get over between them it would be dangerous; knew that if they moved the cars while he was trying to get over he might get hurt, and for that reason he looked east and west to see if there was any engine on the track. ' (b) The instruction was erroneous because plaintiff was of sufficient age and had sufficient knowledge of the danger to make his act in attempting* to climb between the cars contributory negligence, and the court should have so instructed. McGee v. Railroad, 214 Mo. 531; Payne v. Railroad, 129 Mo. 405; Herdt v. Koenig, 137 Mo. App. 589; Walker v. Railroad, 193 Mo. 453; Payne v. Railroad, 136 Mo. 562. (4) The court erred in giving plaintiff’s instruction number 5 attempting to submit the humanitarian doctrine. (a) Because the evidence conclusively showed that plaintiff was not entitled to have the case submitted on the humanitarian doctrine, there being no showing that after plaintiff was in a position of peril, i. e., after he left the ground and climbed upon the ear, the employees of defendant operating the train could have averted the injury by a reasonable employment of the means at hand; but on the contrary the evidence shows that after plaintiff left the ground and started to climb onto the car it would have been impossible to avert the coupling which was the cause of plaintiff being thrown to ;the ground and injured. Therefore the instruction was without evidence to support it and for that reason it was erroneous. Hudson v. Railroad, 101 Mo. 13; McGee v. Railroad, 214 Mo. 541; Matz v. Railroad, 217 Mo. 298; Dyrcz v. Railroad, 238 Mo. 47; Pennell v. Railroad, 153 Mo. App. 566; Koegel v. Railroad, 181 Mo. 379; King v. Railroad, 211 Mo. 14; Hawkins v. Railroad, 135 Mo. App. 524; Davis v. Railroad, 155 Mo. App. 312; Harper .v. Railroad, 187 Mo. 575, 588; Burde v. Railroad, 123 Mo. App. 629; Gumm v. Railroad, 141 Mo. App. 315; Mockowick v. Eailroad, 196 Mo. 570; Markowitz v. Eailroad, 186 Mo. 359. (b) And the burden of proving that the injury to plaintiff could have been averted after he was in .a position of imminent peril is on the plaintiff. Moore v. Eailroad, 176 Mo. 545; Bnrde v. Eailroad, 123 Mo. App. 634. (c) Plaintiff was not in a position of peril until he left the track and commenced to climb upon the car. Moore v. Eailroad, 176' Mo. 546; Sissell v. Eailroad, 214 Mo. 529. (d) The instruction was erroneous because it tells the jury that if they “find from the evidence that the presence of plaintiff and his perilous position were known to the defendant’s agents and servants in charge of the movement of the locomotive and cars, or by the exercise of ordinary care on their part could have been known in time to have avoided injury to him,” this not being a ease where there was any obligation on defendant until it actually knew of the. perilous position of the plaintiff. Hudson v. Eailroad, 101 Mo. 13.

      Fielding P. Siser and Thomas <& Hackney for respondent.
    . (1) The court properly overruled the demurrer, as plaintiff was not guilty of contributory negligence as a matter of law, and that issue was properly submitted to the jury. Wilkins v. Eailroad, 101 Mo. 93; Schmitz v. Eailroad, 119 Mo. 256; Eailroad v. Green, 49 S. W. 670; Butler v. Eailroad, 155 Mo. App. 287; Campbell v. Eailroad, 175 Mo. 174; Hall v. Eailroad, 219 Mo. 589. Here was a boy suddenly aroused from slumber at the midnight hour. He rushes over to the scene of the fire amid the hurrah and clang of whistles and bells. Men of maturity, physically and mentally, were crossing over to the fire and were standing along on top of the cars. While waiting for a chance to cross he looks both ways. He saw no indications and heard no warnings that apprised him of the coming catastrophe, and like any other person, under like cireumstances, undertook to cross or get on top of the car. Here was a trash car in no danger of being burned, and a car (along with others) that was not intended to be pulled out that night, with an end platform over which anyone could pass and upon which anyone could stand with safety, and especially so if the cars had been “pulled out” as witness Parks and Hobbs testified that the warnings given by Hobbs and Lauderdale were to “look out; they were going to pull one.” Instead of “pulling the cars on one,” as per orders given, they were first jammed back about 20-feet to cripple somebody and then they were “pulled out,” leaving the trash car and all cars west of it. Kame and others might well have thought from the situation and from the orders, if heard, that a forward movement was to be made, if any, as a forward pulling of cars could not have injured anyone on the platform where plaintiff was' standing, and therefore, it was not negligence to be on the cars. Wilkins v. Railroad, 101 Mo. 93. (2) We deny that plaintiffs age was such that it was the duty of the court to declare him guilty of negligence as a matter of law. McGee v. Railroad, 214 Mo.- 546; Payne v. Railroad, 129 Mo. 417; Walker v. Railroad, 193 Mo. 480. A boy is not negligent if he exercises that degree of care which, under like circumstances, would reasonably be expected of one of his years and capacity. Whether he used such care in a particular case is a question for the jury. Vaughn v. Lemp Brew. Co., 152 Mo. App. 48; Burger v. Railroad, 112 Mo. 238; Beach on Cont. Neg. sec. 117; Plumley v. Birge, 124 Mass. 57; Schmitz v. Railroad, 119 Mo. 256; Railroad v. Green, 49 S. W. 670; Anderson v. Railroad, 161 Mo. 411. (e) We deny appellant’s charge that no case was made under the humanitarian doctrine. It is claimed by appellant that because no employee actually saw or could have seen plaintiff in time to have avoided the injury, the demurrer should have been sustained. This is not the law in this kind of ease. Where a train was standing at a highway crossing and many persons were passing between the cars going to a fire to the knowledge of defendant’s employees, defendant’s negligence did not depend on notice by the employees that the particular person injured was between the cars, or that his position was one of peril when the train was moved. San Antonio Railroad v. Green, 20 Tex. Civ. App. 5; Holmes v. Railroad, 207 Mo. 149; Vaughn v. Lemp Brew. Co., 152 Mo. App. 48. It would be a monstrous proposition or doctrine to hold that employees could run and back a train into and through a crowd of people that they know is on the cars and crossing continually between the cars, and simply because the one to get crushed was not actually seen in a place of danger before injury by such employees operating the train that then the humane doctrine cannot be invoked. 2 Thompson on Neg., sec. 1726. In crowds like this employees in charge of engines and cars must look out for persons not only on but approaching the track. Holmes v. Railroad, 207 Mo. 149; Livingston v. Railroad, 170 Mo. 452.
   LAMM, J.

Robert Kame, a minor, sues by prochein ami in the Jasper Circuit Court counting on negligence. He recovers $10,000 damages, and defendant appeals. Below, in its motion for a new trial, defendant complained of an excessive verdict; but the grave and permanent injuries to the boy, clouding his hopes and disabling him, from the innocent gaiety of youth as well as the sober duties of mature-life, are of such sort that it is to the credit of defendant’s counsel that they assign no error on that score; hence, that element drops out of the case above.

Error is assigned on instructions alone, and herein of two demurrers to the evidence, one at the close of plaintiff’s (and the other of the whole) case.

The ease is this: It was alleged in the petition and denied generally in the answer, bnt conclusively shown at the trial, as follows: Robert was a minor nearly fifteen years of age and resided with his father. At midnight in September, 1909, a fire broke out in defendant’s yards at Monett in some bad-order cars hard by its freight depot and cars laden with merchandise. Defendant at once raised a great clamor of distress by engine fire-alarm signals in said yards, calling for salvage aid from the inhabitants of Monett, a considerable town. Plaintiff and his father were awakened from their slumbers by that alarm and, with many others in like fix, hurried in straggling procession to said fire in response to said fire-alarm invitation. Their way there was blocked by a string of dead freight cars standing on a track, say, fifty or seventy-five feet away. This crowd swarmed through, over and on this string of cars in answering said signals for help, as well as calls for help by defendant’s servants engaged in salvage. Plaintiff, bent on said mission, saw people on and passing hurriedly through said string of cars on a like mission,"to which cars no engine was then attached. Plaintiff following the crowd through, at that instant of time, without warning from bell, whistle or otherwise to him, suddenly an engine and cars were backed by defendant against said dead cars, ramming them with such violence that persons were knocked down, and, among them, plaintiff, whose leg was thereby cut off by car wheels. As said, there is no dispute in the foregoing particulars. Also, as we view it, the evidence was all one way in proving the following allegations of the petition, the gist of the matter, viz.:

“Plaintiff further states that he was at the time in the exercise of ordinary care, considering his age and the circumstances surrounding him at the time, and that the immediate cause of plaintiff’s said injuries was the carelessness and negligence of the agents and servants of the defendant in managing and controlling said engine and trains of cars as aforesaid and in failing to use ordinary care to protect the plaintiff, and the great crowds of people thus assembled at the invitation and urgent request of the defendant to render all assistance possible to save the property of the defendant, which presence of the plaintiff, together with said concourse of people, and that plaintiff and others were crossing between and over said standing cars, was known to the defendant and the agents and servants of the defendant or could have been known by the exercise of ordinary care by the agents and servants of the defendant in time to have avoided injury to the plaintiff.”

The siding track on which said dead cars stood runs east and west and is called track one. North of said yards lay the main residence district of Monett and plaintiff’s father, who was a section man working for defendant, lived north a short distance from the yards. As said, there was no other way for the people from the north to reach the fire and help except to get over or through the dead cars on track one. The west end of track one (a stub track) was used to store cars for repairs. Some such cars were there, and at the east end of them was a car known and used as a “trash car,” a coal car with a projecting floor as a platform. This car was used to carry away refuse, hence its name. It was on this car platform, projecting twelve inches or so beyond the end gate, that Robert attempted to cross. Here was the brake rod and wheel and, leading up to it from the ground, was a stirrup to mount and a handhold to help mount. It seems there was neither need nor intention in the emergency to move this trash car; but east of it, and apparently not coupled to it, were cars of merchandise on track one, thus making a string of a dozen or more cars, all of which it was planned to move. This track one headed into a “lead track” east a ways, as did siding tracks two, three, and four, presently mentioned. South of track one, at the point in hand, were some freight sheds running for several hundred feet at about the height of a box car. There were also some freig’ht platforms and a freight depot. Still south of them were tracks two, three and four, on which stood loaded cars to the east and disabled cars to the west. The fire was on the west end of track four among these disabled cars and consumed twenty-five of them. It seems there was urgent need of help to save freight and the very switch engine causing the accident took part in giving the distress whistles to assemble aid. As the fire progressed, there came a -time when the loaded cars on tracks two, three, and four had been pulled out. The last cars pulled out on track two were not detached from the switch engine, but, pxfior to the accident, being pulled east to the lead track, were then backed west on track one to “tie to” the loaded cars stored there. The grade on track one was down to the west. The switch engine doing the work, without any bell sounding or whistle blowing, backed its cut of cars rapidly into these stored on track one, ramming the trash car to the west, some say twenty feet and some eight, some speaking of the jolt as “tremexxdous. ’ ’ At the px’ecise time, north of, south of, on, between and about these cars and on the freight sheds and platforms were several hundred people. The employees and other helpers, all working on the south side of the dead cars on track one, were at that time hustling freight into them. Plaintiff, coming in from the north looked and could see or hear no engine on track one, and it does not appear that the engineer could see him; but there is no testimony indicating that he (the engineer) did xxot know of the presence of the composite unit, to-wit, the crowds his signals had helped assemble, and which, as indicated, were south of, on, and north of the cars. The presence of these people seems to have been a conspicuous fact intentionally brought about, and a necessary result of present conditions. Singularly enough, the engineer and fireman did not testify at the trial. So, whether the train was run back by signals from switchmen or brakemen on the ears or ground, does not clearly appear; but there were such employees moving about on the south side of track one with lanterns at different points; and Hogan, the foreman in charge, had ordered the cars pulled out. Said foreman, so in charge of yard operations that night, at the time of the crash stood south of track one and close to this trash car, and, while he did not see the boy, did see people climbing over at that favorable place, and gave no warning to them. This foreman, Hogan, knew the plan was to run the engine in “to pull track one,” but did not expect it so soon. A bit of his testimony is helpful. He puts himself close by at the time of the crash and says:

“A. I saw men all through the yards. Q. You saw them crossing this cut of cars, too? A. I couldn’t say. Q. Do you know Warren Bady? A. Yes, sir. Q. The butcher? A. Yes, sir. Q. You was standing there and saw him come over just after the crash? A. I believe I did. Q. You told him he had a narrow call? A. They might say I said that, I don’t know. Q. You know he did have a narrow escape? A. I don’t know. Q. You were standing right there within a few feet of where they was piling over? A. Yes, sir. Q. Did you have your lantern in your hand? A. Yes, sir. Q. About five minutes before you had heard Hobbs say to his men in the shed they were going to pull, but now you say you had no idea they were going to pull when they did? A. Yes, sir. Q. You knew they were going to hit? A. Yes, sir; I knew what they were doing. Q. Did you tell them to pull it? A. Yes, sir. Q’. And you knew they were going to pull it when they did, too, didn’t you? A. No, sir; I don’t know as I did, they moved a little faster than under ordinary circumstances.”

Some minutes before the boy crossed (Hogan says five and some say. more) a yardman bad gone along the south side of the cars on track one and warned the other employees engaged in loading them to “look out, they were going to hit.” He told the people on the freight platform so and similarly warned some of those on top of the cars. But it is not shown by the téstimony that defendant paid attention to the crowd surging in from the north, or to those crossing from the north single file on the narrow platform of the trash car, or that anyone on the north and approaching the cars did or could hear such warning. Indeed it appears that, when this notice was given, the boy was not yet on the ground, and when he came there he saw men crossing on the platform and he did as they did on hearing the calls for help on the south side. Others, as said, were on the platform in the act of crossing at the time he did, and when the crash of the coupling came and plaintiff was thrown between the cars and run over, another person on' the car platform was sent sprawling out on the freight platform almost at the foreman’s feet. There was also proof on defendant’s part that during the fire (and before the crash) there was much confusion at one time or another on the freight platform south of track one, and some cried “look out!” some “water!” some “fire!” some “dynamite!” and some “hollered” generally.

Plaintiff did not come up to the mark of “bright intelligence” commented on in cases. He was not shown to be familiar with railroad operations in switching or the movement of trains in yards. He could neither read nor write, had attended school all told but four months, had no mother and what work he had done had been at spells in odd jobs in peach orchards and strawberry patches.

The assigned errors hinging alone on instructions, the following questions arise:

(1) Did a demurrer lie to the evidence at the close of the case (and herein of contributory negligence and the humanity rule) ?

(2) Did the court err in giving instructions for plaintiff?

(3) And err in refusing instructions for defendant?

We are of opinion the judgment stands for affirmance, because:

I. Of the demurrers.

(a) Attend to two questions lying at the threshold, viz.-.

(1) An instruction in the nature of a demurrer to the evidence was asked at the close of plaintiff’s case. Being disallowed, defendant marked the spot with an exception, and now argues that the demurrer lay. But defendant did not stand on that demurrer; contra, it went on and put in its own proof. Authorities, from whatever angle they approach the subject, agree in holding in effect that where, following such overruled demurrer, another is offered at the close of the ease, the latter searches all the evidence and that, for the practical administration of justice, the first no longer fills an office on appeal. It has been said that such demurrer is waived by defendant by the act of putting in its own proof. But if defendant’s proof does not aid plaintiff’s case in chief, it may be inexact to say the demurrer is “‘waived” under such circumstances. It is sufficient to hold that the exception saved on the first demurrer became functus officio, and the question on demurrer shifts to the second.

(2) To recover damages in a negligence case a plaintiff carries, as of course, the primary burden of proving negligence on the part of defendant. If such plaintiff have a fair trial in proofs and instructions, then, unless he successfully takes the first step of proving negligence, he might as well take no other for he cannot have reversal on his own appeal or affirmance on defendant’s.

In the case at bar plaintiff well carried the burden imposed upon him by the law in that behalf — so well that defendant’s diligent counsel present their case on appeal on a concession of negligence “in,” to use their own words, “moving the cars as they were moved without warning.” However, if that concession had been out of (instead of in) the case, it would have availed defendant’s counsel nothing to argue on this record that their client exercised due care or any care at all. The case presents a typical one of inflamed and inexcusable negligence — negligence in its engineer’s ramming too hard in making the coupling (for which no excuse was offered) and in his not giving warning signals (for which no excuse was offered) — negligence in the foreman who was on the ground and knew the danger, in not taking steps to either give warning or properly control the train by slow-down signals. If the train was hacked into the crowd without control or management, that was stark negligence. If it was under management, then, it is too plain for cavil, that whoever was the manager neglected his duty. The proof is all one way on such propositions, no attempt being made to discredit the witnesses or controvert the facts. Under such circumstances the court would have been justified in declaring defendant negligent as a matter of law in ramming dead cars in the nighttime without warning where (as here) there were a great number of persons on and about the cars, there assembled on its own distress signals to aid in putting out a fire and in saving its own property. We shall have occasion to recur to this subject in considering the question of contributory negligence, leaving it for present purposes with this remark: The large fact of defendant’s negligence, i. e., the conceded merits of that phase of plaintiff’s case, must attend the hearing of this appeal from end to end as a guiding factor.

(b) Let us look into the last demurrer further. Defendant argues it lay because plaintiff was guilty of contributory negligence as a matter of law. It would seem, however, that when brought to book that argument is fallacious.

(1) In the first place, courts are fond of saying that what is negligence on one set of facts is not negligence on another, that negligence is the absence of due care, and due care is care according to circumstances. These trite generalities are apposite, because of the fact that we are cited to many cases holding that, absent discovered peril, if a train of cars is blocking a way it is negligence in law on the part of a person traveling the way to hazard crossing by going under or climbing between the cars, and that an action for injuries received in such daring and foolhardy venture will not lie, even if no warning is given of the movement of the cars. Such cases will be found in the headnotes to this opinion and we have no crow to pick with them. However, on principle, it must be apparent that none of those cases are in point on the facts now in judgment. None of them relate to cases where persons were invited by defendant to be on and about the cars and to cross over them in an emergency to help save its property from destruction by fire. In such case the persons so invited are not trespassers in so swarming over and through the cars. More than that, they are not mere licensees. Nay, more (and most of all) they are invitees in a strict sense and entitled to the protection of due care as conceded by defendant.

This fire was in defendant’s yards and among its standing cars. The dead cars on track one were a barrier in the way of help. Defendant knew that when it summoned help from the north. It was bound to anticipate that particular barrier would be surmounted precisely as it was surmounted by those hurrying to the scene. It did not expect those summoned daintily to pick and choose' roundabout ways, or to stand on the order of their coming, but it intended them to come, and come at once, to the danger spot. So knowing and expecting, it must govern itself accordingly in meting out due care.

(2) In the next place, it is argued that defendant had no .notice of the actual presence of this particular boy, Robert Kame, or of his perilous position and that its duty to exercise due care could arise only on such actual notice and become operative at the instant of time he was climbing- on and remained on the platform of the trash car; that the measure of its care was to stop the ramming train if possible after such notice and during such brief interval of time; that it is apparent from the facts that it was impossible to stop the ramming train during that brief interval of time, and that the peril of the boy was not*discovered before his injury. Therefore, they say, as the boy was negligent in attempting to cross the cars, such negligence was the proximate cause of his hurts and there is no room for the application of the humanity rule to relieve him from the effect of his own fault.

But we decline to follow the lead of that line of argumentation. This for reasons now to be set forth.

"We think it self-evident that defendant, having assembled the crowd at the precise spot for its own purposes, owed a duty toward the crowd as a composite unit. It had no more right to run a train into that crowd without warning than it had to shoot into the crowd or drive furiously into it with a loose rein. It follows irresistibly from that premise that such duty distributes itself to each individual member of the' crowd so assembled for defendant’s purposes, whether defendant knew a given individual was present or not. It would be emasculating the case and starving the facts beyond recognition to solve the problem of liability by ignoring the large fact that defendant had assembled a crowd "and that plaintiff was a member of it, or to narrow liability to a mere question of notice of the presence of a given person in the crowd at any particular point of peril. Danger to that crowd was everywhere, duty likewise. The duty was as broad as the danger zone; for duty is a gauge arising with danger. If the crowd was there, if defendant was inviting it to cross the train by cries for help on the other side, as the testimony shows, then the danger was there to those persons collectively and each of them individually and the corresponding duty was there to all and to each, be he John Doe, Richard Roe or Robert Kame.

If, however, a microscopic view is to be taken and it should be held that defendant should have no-, tice at the very instant of time that persons were crossing at the most favorable passageway, to-wit, the platform of the trash car, then it must also be held that the facts show such notice. It is no complete defense to say the engineer did not know. The master had other eyes than his. The foreman, Hogan, the master on the ground, the originating mind and controlling hand, did see and know and that was enough; for his negligence was that of defendant. Nor was the case on the pleadings one merely of negligence for failure to stop the train after the discovered peril of the boy as argued. The allegations of the petition were not pared down so narrowly, but were broad enough to include the backing of the train without engine signals and the backing of it with too much force; as well as without proper care from the foreman who was in charge of its movements.

It was argued at our bar there was a curve on track one which concealed the point of the accident from the engineer. If that be so, then so much the greater reason for switchmen, attentive to their duties, on the ground or train and so situated as to signal the engineer in approaching the crowd to make the coupling. Nor will it even do to ’argue that the engineer did not know of the presence of the crowd; there is evidence tending inferentially to show, as we read the record, that this very engineer had taken fruitful steps to procure the presence of that very crowd, and must he held to know of its presence whether a curve in the road or other impediment intercepted his immediate view or not. Do not crowds in towns assemble at fires on signals of distress 1 Can this engineer shut his eyes to such fact? Or shall he not be held to know that he had succeeded in doing the very thing he set out to do, to-wit, gather a crowd?

It is a familiar principle in the law of negligence that if a defendant create a nuisance, like a pit or an obstruction, say, a city in its street, or where it licenses others to do so, notice of the existence of said nuisance is not an element in determining liability for consequent injuries to individuals traveling where they have a right to go. Why give notice of what defendant itself did, or already knows? [Russell v. Columbia, 74 Mo. 480.]

In this connection the unexplained failure of defendant to use the engineer as a witness is of significance. Plaintiff did not need him to make a case. Defendant did need him to make its defense.' “It is familiar doctrine that the failure of an employer to call a witness who was in his employ at the time of the accident, and is presumed to be friendly and to have some knowledge of the accident, without any attempt to explain the reason of the failure, raises a strong presumption that the testimony of the employee would be damaging to such party.” [1 Moore on Facts, p. 555, post and ante.]

The premises considered, we cannot very well write the law to be that Robert was guilty of negligence as a matter of law in being one of a crowd assembled by defendant and in the act of crossing a string of dead cars in response to an appeal for help on the other side of them, on the invitation of defendant. On the facts of this record, if put to it, we would he inclined to hold there was no evidence of negligence at all on the part of plaintiff or other assembled and invited persons crossing the track, but that would be going further than the case requires to.rule the demurrer.

We hold the demurrer well ruled. There is a soundly reasoned case, quattuor pedibus currit, San Antonio & Arkansas Pass Railway Co. v. Green, 20 Tex. Civ. App. 5. Other cases sustaining the views announced will appear in the Reporter’s head notes.

II. Of instructions given for plaintiff.

Error is assigned in giving three instructions for plaintiff. The scope of the objections is of a character not calling for a reproduction of the instructions, but it will be sufficiently indicated as we proceed.

(a) In his first instruction plaintiff submitted a phase of the humanity rule. Thus, after putting it to the jury to find this, that and the other fact, it continues in this fashion: “and that the presence of the plaintiff on said car was known to the defendant’s agents and servants so in charge of the movement of said cars and locomotives or by the exercise of reasonable care on their part could have been known in time to have avoided injury to the plaintiff, and that by so negligently jamming or backing the said cars or locomotives without such reasonable warning against the car over which the plaintiff was passing, the plaintiff was thrown from the end of said car and that thereby he sustained the injuries complained of, then,” etc.

In his fifth instruction the same feature appears.

It is argued there was no room for the play of the humanity doctrine on the facts, hence it was error to give instructions on that theory.

But, the argument is without substance, for that:

(1) As heretofore said, it will not do to rule the question solely upon what the engineer actually saw and, knew or could actually, see and know. If a reasonable man without seeing, or knowing from eyesight, would have just and reasonable cause to anticipate the presence'of people on that train and crossing over to that fire, that fact was equivalent in law to notice and he must govern himself accordingly in meting out due care. We so held on the related question of notice of the presence of water in a given hole after a rain. [Benton v. St. Louis, 248 Mo. l. c. 108 et seq.] The peculiar facts of this record justify the conclusion that this engineer, having called people to come from the north, and knowing the fact, common to all men, that fire-alarm signals produce a crowd in a town, he may not thereafter (with the crowd present and necessarily in danger in the yards'and about the dead cars) act negligently and excuse himself on the theory he didn’t know the very thing had happened he had tried his level best to bring about, to-wit, a stream of people crossing over to the fire.

(2) But as already pointed out, defendant cannot excuse itself on the theory the engineer did not actually see and know the danger to persons. Its foreman was its alter ego. Pie knew a string of people was passing over the platform of the trash car. He had ordered the cars moved and the couplings made and was bound to use due diligence to take care of a situation so full of peril which he had also helped create. Let it be conceded there was uproar and excitement; moreover, that there was an emergency to save property loss from flames; yet over and above mere property loss, and dominating the situation, was the paramount duty to not negligently sacrifice life and limb. When, in a court of justice, the man is fairly in the balance with the dollar, as would be the case on that hypothesis, then it is not sentiment only but cold clear law to say that tbe man goes down in the scales and tbe dollar kicks tbe beam. Tbe man comes -first in tbe law. It is one of tbe glories of tbe law that' it is so written in tbe books.

(3) But there is a deeper-going view, namely, I am unable to see any evidence of contributory negligence in this boy at all. What he did defendant invited him to do and expected at his hands, hence .the introduction of the issue of contributory negligence in these instructions merely handicapped plaintiff and weighted down his cause. As put in Berry v. Railroad, 214 Mo. l. c. 604, ‘ ‘ To allow a litigant who has had the advantage of his antagonist’s assuming unnecessarily a laboring oar, to bottom a right on appeal on that advantage, would be the same as if B, distanced in a foot race, would challenge the event because A, who won the money, chose to carry weight in the sprint or was too fat to run well.” Hence, if error it was, it was error against plaintiff and not against defendant. It cannot affect the merits on appeal and coerce a reversal.

(4) Added to the foregoing is the fact that in some of defendant’s instructions the same theory is put to the jury, in such case the rule is that an appellant cannot complain of mutual error, if error it be. [Lange v. Railroad, 208 Mo. l. c. 475.]

(b) Complaint is made of plaintiff’s instruction number four. In substance it put to the jury the proposition that if they found that by reason of plaintiff’s youth and inexperience he was not aware of the danger to which he was exposed in climbing over the end of the car, then they should take that fact into consideration in passing upon his contributory negligence. We see no fault with this instruction. The situation ’ was confused and not simple. The boy was immature and inexperienced and there is no respectable authority that would tolerate eliminating that element on the question of his contributory negligence. The cases relied on by defendant were not ruled on tie facts of such a record as this.

TTT. Of instructions refused for defendant.

Instructions were refused for defendant that took a different view of tie law of tie case tian embodied in tie conclusions iereinbefore announced. Hence they were properly refused.

Perceiving no reversible error, it must be ield tiat tie case was well tried and well decided. Accordingly, let tie judgment be affirmed. It is so ordered.

All concur.


source: Caselaw Access Project

author: GrEAYES, J.

license: Public Domain

text:
    C. R. KING, Appellant, v. ESTATE OF MARY J. STOTTS.
    Division One,
    January 3, 1914.
    1. APPELLATE JURISDICTION: Constitutional Question. Appellate jurisdiction, on the ground that a constitutional question is involved does not depend upon its being well taken, but upon whether it is properly and timely raised and has not prior to the appeal been exploded by decisions of the Supreme Court.
    2. ADMINISTRATION: Allowance of Claim: Appeal to Circuit Court: Matters for Adjudication. Where the probate court allowed a claim against an estate and afterwards upon the motion of heirs set it aside and rendered judgment for a less amount and the claimant appealed to the circuit court, if his affidavit for the appeal shows that he was appealing from everything that was adjudged by the probate court, the circuit court is possessed of the whole controversy, even though it be granted that its jurisdiction is derivative only.
    3. -: -:--: -: Trial in Two Sections: Estoppel. Appellant is estopped to urge as error a proceeding invited and occasioned by his own acts. Where claimant against an estate appealed to the circuit court from an order of the probate court vacating an allowance previously made and entered in his behalf and in rendering judgment for a less amount, he cannot on appeal complain that the circuit court tried his case in two sections, one on the merits and the other on the question of the power of the probate court to vacate the order of allowance, if his motions invited that course.
    4. --: -: Vacating: Jurisdiction. The probate court has jurisdiction, under Sec. 220, R. S. 1909, upon the affidavit of an heir filed within four months and notice, to vacate an allowance of a claim -against- an estate made by default, the objecting heirs not being present, and, if the judgment of allowance is set aside, to grant a hearing or trial upon the merits of the demand; and the circuit court, on an appeal from an order setting aside the allowance, and rendering judgment for a less amount at a subsequent hearing, has a like jurisdiction to hear the motion to vacate.
    5. -: -: -: Affidavit: Hearing. The affidavit required by the statute as preliminary to vacating an order allowing a demand against an estate is sufficient if it complies with the terms and requisites of the statute. Nor is it necessary to an order to vacate that the movent give such proof against the allowance as will defeat it at a hearing on the merits; but only that such a showing be made as will convince the court that the matter ought to be reheard in order to be more sure of a correct result.
    6. -: -: -: After Four Months: Final Judgment: Constitutional. The statute authorizing the probate court to vacate a judgment of an allowance if within four months the heir, administrator or creditor file an affidavit that the claim has been improperly allowed, etc., violates no constitutional provision, nor denies to all the equal protection of the laws, even though the term at which the demand was allowed has expired before the affidavit is filed.
    '7. -: -: -: Jury Hearing. The claimant against an estate is not entitled to a jury to try the motion of an heir to vacate an order allowing his claim. The application to vacate a judgment of allowance is one addressed to the discretion of the court.
    8.--: -: —--: Declining Jury Trial: Judgment. And where the circuit court renders judgment approving and affirming the order of the probate court vacating a prior judgment of allowance in favor of a claimant, who has appealed to the circuit court from everything adjudicated in the probate court, and offered to claimant a trial by jury, which is declined, the court should not proceed to hear evidence on the claim, but should dismiss the cause.

      Appeal from Lawrence Circuit Court. — Hon. F. G. Johnston, Judge.
    Reverse» and remanded (with directions).

      Oscar B. Elam for appellant.
    (1) The allowance of the demand was rendition of a judgment against the estate. With the expiration of the term the judgment became final and conclusive. (2) It was no longer open to attack except in a court of equity under the ancient equity jurisdiction for fraud. Fitzpatrick v. Stevens, 114 Mo. App. 497. Or under conditions, and by parties, and in the time and manner prescribed by the statute and not prohibited by the Constitution, in the probate court. Fitzpatrick v. Stevens, 114 Mo. App. 497; Williams v. Gerber, 75 Mo. App. 30; Perry v. Alford. 5 Mo. 503; R. S. 1899, sec. 214; Powers v. Blakey Co., 16- Mo. 437. The probate court of its own motion could not vacate the judgment rendered by it at the November term, at the following February term. (3) The affidavit of Charles L. Henson performs no office except it be as a motion or as a petition or complaint against the judgment obtained by Dr. C. R. King at the preceding term of court, and it is without specifications of reasons to support it as required by Sec.- 640, R. S. 1899. Whether considered as a motion or petition, the affidavit is not evidence of the truth of the facts stated therein, and the affidavit tenders no issue triable in the court. (4) The affidavit contemplated by the statute was intended merely as an incident to a complaint to be filed against a judgment not four months old. Its office in the proceeding is' like unto the office of the affidavit required to the petition in a suit for divorce. (5) The filing of - the affidavit without filing an accompanying petition was like filing the affidavit in an attachment suit or a divorce suit, without filing any statement of a cause of action; or the filing in the probate court for allowance of a demand against an estate, without verification. It conferred no jurisdiction on the court to- act. Bank v. Ward, 45 Mo. 311; Dorn v. Parsons, 56 Mo. 602; Million v. Ohnorg, 10 Mo. App. 437. (6) The case tried by the court, so far as the pleadings show, was made upon the affidavit of Charles L. Henson, and the denial thereof filed by Dr. C. R. King. No evidence was offered to prove the allegations in the affidavit. (7) The case tried by the court on the evidence was the merits of the demand of Dr. C. R. King against the estate. There was no conflict in its material evidence and the evidence proved the demand to be just and due and owing. ,(8) The probate court is a court of special and limited jurisdiction. In ,re Elliott’s Estate, 27 Mo. App. 223; In re Elliott’s Estate, 98 Mo. 384; Cauley v..Truitt, 63 Mo. App. 356. (9) The jurisdiction of the probate court cannot be presumed or inferred; it must affirmatively appear from the record before the appellate court. (10) The circuit court on appeal acquired no jurisdiction if the probate court had none, and this court is likewise- without jurisdiction which is derivative and derived from the court first appealed from. In re Ford, 137 S. W. 32. (11) The case before the court was such a case as entitled Dr. King to a trial by jury.

      Charles L. Henson for respondent.
    (1) A constitutional question, to give the Supreme Court jurisdiction of an appeal on that ground: (a) Must be raised at the first possible moment orderly procedure will allow, otherwise it is waived. Hartzler v. Railroad, 218 Mo. 562; Lohmeyer v. Condage Co., 214 Mo. 685-; Asphalt Pav. Co. v. Ridge, 169 Mo. 377. (b) And should be put in the pleadings and kept alive throughout the proceedings, and not abandoned. Hanks v. Hanks, 218 Mo. 670; Kirkwood v. Highlands Co., 160> Mo. 111. (c) And where no such issue was raised in the prohate court in appellant’s motion, hut was thereafter injected into a like motion in the circuit court on appeal, the question is not sufficiently raised. In re Estate of Strom, 213. Mo. 1. (d) And there must be some rational connection between the facts in the case and the constitutional provision invoked. Eailroad v. Flanagan, 218. Mo. 566. And this court is therefore without jurisdiction of this appeal, and it should be transferred. (2) The probate court has jurisdiction over all matters pertaining to probate business, the allowance of demands and vacating allowances which were improperly allowed, that is, jurisdiction of the subject-matter of this proceeding, and the circuit court, on appeal, acquired the same jurisdiction, and the right to try the matter de novo. Sec. 34, art. 6, Constitution; B. S. 1909, secs. 220, 296, 4056. (3) If any heir o,r creditor shall, within four months after any demand shall have been allowed, file in the office of the probate court the affidavit of a credible person, stating that the affiant has good reason to believe and does believe that such demand has been improperly allowed, and shall furnish satisfactory evidence of that fact, and give notice to the adverse party, the court shall vacate the order of allowance and try the matter anew and allow or reject such demand as shall be right. Sec. 220, E. S. 1909 (tracing to Sec. 33, Chap. 123, Gr. S. 1865, p. 504); Keele v. ICeele, 118 Mo. App. 262.
   GrEAYES, J.

This action originated in the probate court of Lawrence county, December 3, 1906, by the filing of the following unitemized claim against the estate of Mary J. Stotts, deceased :■«

ORIGINAL DEMAND.
The estate of Mary J. Stotts, deceased, to C. R. King, debtor.
April 28, 1907, to May 26, 1907, 9 visits from
Crane, Mo., from residence to Stotts City, Mo., 331-3-miles; detained in attendance 21 days visits and detaining........................................ 350.00
March 17, 1908, to June 9, visits 196........'............ 197.50
Total amount ....................................$547.50

This demand was accompanied by the usual affidavit, and to it was also attached a waiver of service by the -administrator. On December 14, 1908, the probate court rendered a default judgment against the estate for the full amount of the demand. March 22,1909, the following petition was filed:

MOVENT’S PETITION.
State of Missouri, County of Lawrence, ss.
In the Probate Court, February Term, 1909.
In the Matter of the Estate of Mary J. Stotts, Deceased.
Charles L. Henson, being of lawful age and duly sworn, upon his oath says that he has good reason to believe and does believe that the demand of C. R. King, allowed by their court oh the 14th day of December, 1908, for $547.50 has been improperly allowed, and acting herein for Mary K. Pruitt and Fannie Davis, heirs at law of said Mary J. Stotts, desires to furnish satisfactory evidence of such fact of such improper allowance to this court, and after notice given to said King, the claimant, asks that such order so allowing such claim shall be vacated and the matter tried anew in this court, and for proper relief.
Charles L. Henson.
Subscribed and sworn to before me on this the 22nd day of March, 1909. C. W. Crooks,
Judge of the Probate Court.

Notice of this was duly served upon Dr. King March 29, 1909, and upon April 12th the claimant King, making a special appearance, moved to strike the motion signed by Henson, quoted above, from the docket for the following reasons:

First. The said action of Mary K. Pruitt and Fannie. Davis fails to state facts sufficient to constitute a defense against the said demand of the said C. R. King, or facts that the movents propose to prove to show that the demand was improperly allowed.
Second. The court had no jurisdiction over the person of the said C. R. King.
Third. The court has no jurisdiction over the subject-matter of said motion of the said Mary K. Pruitt and Fannie Davis.
Fourth. The notice served upon the said C. R. King by the said Mary K. Pruitt and Fannie Davis was not served in the time or in the manner prescribed by law and failed to advise said C. R. King of any facts that said Mary K. Pruitt and Fannie Davis would prove to the court to satisfy the court that the said demand' of C. R. King had been improperly allowed.
Fifth. The affidavit and motion filed herein on part of said Mary K. Pruitt and Fannie Davis is insufficient to confer jurisdiction of the subject-matter upon the court and fails to state facts sufficient for a defense against the demand of the said C. R. King or facts sufficient to warrant the court in vacating the allowance of said demand.

This motion of the claimant, King, was overruled, and the probate court, on said April 12th vacated and set aside its judgment of December 14, 1908, and ordered that such demand against the said estate be tried anew. On the same day the probate court entered a new judgment upon the merits allowing to Dr. King. $216' instead of $547.50'. This judgment on its face purports to have been rendered upon a hearing of testimony in the cause. The claimant, King, thereafter thus moved for an appeal:

Comes now C. R. King and moves the court to grant him an appeal from all of the orders and decisions made and rendered by the court on Monday, April 12, 1909, in the said estate of Mary J. Stotts, deceased, in anywise seeking to affect the rights of said C. R. King as a creditor of the said estate, and particularly the orders, decisions and judgments of the court vacating or seeking to vacate the allowance of a demand against the said estate of Mary J. Stotts in favor of said C. R. King about December, A. D. 1908, and an order, decision or judgment allowing or attempting to allow a demand against the said estate and in favor of said C. R. King on said April 12th, A. D. 1909.

Appeal was granted and the cause in due time reached the circuit court. Upon the arrival of the cause in the circuit court, the claimant, King, on September 15th filed a motion to dismiss the complaint of Pruitt and Davis in the following language:

Now comes Dr. C. R. King and moves the court to dismiss the complaint of Mary K. Pruitt and Fannie Davis herein for the reasons following, to-wit:
First. The complaint fails to state facts sufficient to constitute a cause of action against Dr. C. R. King.
Second. The complaint fails to state facts sufficient to confer upon the probate court jurisdiction to hear or determine the issues therein tendered.
Third. The complaint fails to state facts sufficient to confer upon the probate court jurisdiction to vacate the allowance made against the estate of said deceased, Mary J. Stotts, December 14, 1908, in favor of said Dr. C. R. King, even if every allegation therein were true and established to the satisfaction of the court.
Fourth. No affidavit was ever filed in- the probate court or in this court, by or on behalf of said Mary K. Pruitt and Fannie Davis, as a basis of or as incident to this proceeding.
Fifth. No statement of facts was ever filed by or on behalf of said Mary K. Pruitt and Fannie Davis as a basis of or incident of this proceeding.
Sixth. The complaint does not state that the said allowance was in fact improperly allowed, nor does it state any facts from which it can be inferred that it was improperly allowed.
Seventh. Section 30 of article 2 of the Constitution of the State of Missouri, relating to due process of law, is violated by requiring Dr. King to answer to the complaint of the said Mary K. Pruitt and Fannie Davis, for same wholly fails to advise him of the nature of the complaint against him.
Eighth. The said section 30 of article 2 of the Constitution of the State of Missouri, relating to due process of law, is violated in requiring said Dr. C. R. King to answer said complaint upon the notice given him in this proceeding, because said notice failed to advise him of the nature of the complaint he would be called upon to defend against and was not issued or served by lawful authority, or in proper time or manner.
Ninth. The only notice ever given said Dr. C. R. King was given after said complaint was filed in the probate court.
Tenth. The service and the notice were both insufficient to confer upon the probate court jurisdiction over the subject-matter of the motion or of the person of the defendant.

Tbis motion of Dr. King’s was overruled by tbe court, and tbe claimant King then demanded a jury to try tbe one question as to wbetber or not tbe probate court bad “improperly allowed tbe demand of O. R. King against tbe estate of Mary J. Stotts, deceased.” Tbis request for a jury upon that question tbe circuit court declined. Upon a bearing upon tbis question on September 16, 1909, tbe circuit court upheld tbe action of tbe probate court in setting aside its judgment of December 14, 1908. On tbe- same day, September 16th, tbe record shows tbe filing of an answer by tbe claimant couched in tbis language:

In the Circuit Court of Lawrence County. To September Term, A. D. 1909.
In the Matter of the Estate of Mary J. Stotts, Deceased.
Comes now Dr. C. R. King and for answer to the complaint of Fannie Davis and Mary K. Pruitt, heirs at law of said Mary J. Stotts, deceased, 'denies each and every allegation therein and prays the court to render judgment in favor of said Dr. C. R. King for his costs in this behalf laid out and expended. Oscar B. Elam:,
Attorney of Dr. C. R. King.

And to tbis counsel for tbe estate replied by moving to strike out said “pretended answer” assigning tbe following as tbe basis of such motion:

For the reason that the said C. R. King has filed his demand in the probate court and the entire record is in this court upon said King’s appeal wherein, if he recovers, it will be necessary for said King to prove his said claim and a trial de novo will be necessary of all the matters and things embodied in said appeal.

We find no disposition of tbis motion, in terms, in tbe record.

Tbe trial below was- dual in form. First tbe trial court determined tbe question as to whether or not tbe probate court bad tbe right to vacate its judgment of December 14, 1908, and, secondly, the merits of tbe cause was disposed of by a judgment against tbe claimant. From tbe record it appears that claimant declined to participate- in the- bearing upon the merits. Tbis we glean from tbe following in a somewhat mixed record:

Here Dr. C. R. King rests his case.
Mr. Henson: I move the court that he make an order finding this claim is improperly allowed and that we go ahead to try the matter now as to the amount of Dr. King’s demand as provided by section 214.
Motion sustained by the court.
Mr. Elam: Dr. C. R. King excepts.
Mr. Henson: The estate of Mary X Stotts is here now and ready to take up and try anew the demand of C. R. King.
Mr. Elam: Dr. King refuses to try the case upon the merits.

The claimant then filed a motion for a new trial, accompanied by some remarks of counsel thus:

Dr. C. R. King comes now and moves the court to set aside and rehear the judgment rendered herein this day vacating the allowance made by- probate court of Lawrence county, Missouri, against the estate of said deceased, Mary X Stotts, in favor of Dr. C. R. King, December 14, 1908, for the reason that the court over the objection and exceptions of said Dr. C. R. King and to his prejudice:
First. Erroneously overruled the plea of said King to the jurisdiction of the court.
Second. Erroneously overruled the motion of said King to dismiss the complaint of Mary K. Pruitt and Fannie Davis.
Third. Rendered a judgment not within the issues tendered by the pleadings.
Fourth. Admitted incompetent, irrelevant and immaterial evidence.
Fifth. Excluded competent, relevant and material evidence tendered on behalf of said King.
Sixth. Rendered a judgment not supported by any evidence.
Seventh. Rendered a judgment in conflict with the undisputed evidence.
Eighth. Rendered judgment against the wrong party.
Ninth. Denied the said King the right of trial by jury in violation of section 28 of article 2 of the Constitution of Missouri, and section 30 of article 2 of the Constitution of Missouri. C. R. King,
By his attorney, Osear B. Elam.
Filed Sept. 16, 1909.
U. S. Kendall,
Circuit Clerk.
Mr. Elam: The motion for a new trial is on the hearing in relation to vacating the original allowance and Dr. King does not appear to the cause on its merits.

The motion was overruled and a motion in arrest of judgment met a like fate. This latter motion filed will not be set out because it raises no question material here. By a separate judgment the trial court rejected the claim of Dr. King and entered judgment against him for costs. The affidavit for appeal is not set out, but the record entry is as follows:

Now at this day comes C. R. King by Ms attorney and by leave of court files affidavit and application for an appeal herein, and deposits with the clerk of tMs court the ten dollars docket fee as required. by law. Whereupon the court having duly considered' said affidavit and application, awards the said C. R. King an appeal herein to the Supreme Court of the State of Missouri.

The short form transcript filed in this court contains both judgments entered by the eircuit court) i. e., the separate judgment wherein the circuit court upon a hearing found that the probate court was. right in setting aside the judgment of December 14, 1908;, as well as the separate judgment wherein the circuit court found against the claimant as to his claim. The foregoing fully states the case here for all purposes urged in the briefs.

I. It is suggested that this court has no jurisdiction of this appeal. The amount would give jurisdiction elsewhere, but we are inclined to the view that the record from the probate court and in ^le circuit court bear evidence of timely constitutional questions, which give this . . ° court jurisdiction. It is not a matter of whether the constitutional questions are well taken, but whether they are properly and timely raised, and have not heretofore been exploded by decisions of this tribunal prior to the appeal in the instant case. Granting the constitutional questions lodged in the record by this rule, the jurisdiction of the appeal is here.

Derivative Jurisdiction. II. The record is not the clearest one we have read, but we are impressed with the view that the affidavit for appeal filed in the probate court brought the whole' controversy to the circuit court. That affidavit set out in our statement of facts shows that Dr. King was appealing from everything that was adjudged by the probate court. So that grant it, without deciding, that the jurisdiction of the court is derivative only, and that it can on appeal only go into the matter brought by appeal from the probate court, yet in this case, under the affidavit filed, the whole case, including both orders and judgment of the probate court, were brought by appeal to the circuit court. That court was therefore possessed of the whole controversy, and if its action is consonant with legal rules, the judgment entered by it should be affirmed.

III. Brushing aside the driftwood in the record for another step forward, we must rule that Dr. King cannot complain of the dual trial given be-l°w- By this we mean he is not in position to question the matter of the trial conrt having proceeded to try his cause in two sections. In so trying the cause the court was but following the lead of Dr. King and his counsel. Dr. King demanded a jury to try the one question of whether or not the probate court had “improperly allowed the demand of C. R. King against the estate of Mary J. Stotts, deceased. ’ ’ In the trial in the circuit court, after Dr. King’s motion to dismiss the complaint of Mary K. Pruitt and Fannie Davis had been overruled, we find this interesting matter in the record:

“Mr. Elam: Dr. King moves the conrt for a trial by jury on the question of whether the probate court improperly allowed the demand.
‘ ‘ The CourtOverruled.
“Mr. Elam: Plaintiff excepts to the action of the court in refusing a jury for trial on the question ■of whether the probate court improperly allowed the ■demand of C. R. King against the estate of Mary J. .Stoots, deceased.
“The Court: The court declines to have a jury, basing its ruling on section 214, Revised Statutes 1899, ■to try the question of improper allowance.
“Mr. Elam: Dr. King excepts.”

The court thereupon proceeded to hear testimony upon the circumstances of the allowance originally made by the probate court to Dr. King, and in connection therewith testimony upon the value of his services to the deceased. Throughout all this Dr. King .and his counsel appeared and cross-examined witnesses. Not only so, but Dr. King put on witnesses in his own behalf, and testified himself in his own behalf. This testimony tended to both the service rendered to deceased by Dr. King and the value thereof. But throughout this whole proceeding it is clear that ■counsel upon both sides were aiming to> try the one issue, as to whether or not the probate court was in error in vacating its original judgment, and as evidence of that situation, and at the end of it all, is Dr. King’s motion for new trial .which expressly assails but the one judgment, and that one the judgment ■adjudging- that the probate court was right in setting aside the original allowance. But for fear the court might misunderstand the motion counsel for Dr. King ■undertook to make it plain thus:

“Mr. Elam: The motion for á new trial is on ■the hearing in relation to vacating the original allowance and Dr. King does not appear to the cause on Its merits.”

This is the only motion for new trial found in the whole record, and it goes solely to the first judgment described in our statement. Prom it all it is clear that the plaintiff, King, was in a larg'e measure responsible for the dual trial which was had,, and if there was error in that method of proceeding, he would be estopped from urging an error thus invited and occasioned by his own acts.

IY. There is at least here for our review the question raised as to the judgment setting aside the original allowance to Dr. King1 in the probate court. There is a motion for new trial directed at this part of the trial court’s action, and as we have held both judgments have been appealed from, the question raised as to the preliminary order or judgment are here for review.

If we gather the force of counsel’s contentions they are (1) that the court was without jurisdiction to enter such a judgment, and (2) that the court nisi denied to Dr. King a trial by a jury upon the issue as to whether or not the original allowance to Dr. King should he set aside. Of course there are othei matters in the motion for new trial, hut they all cluster around these two questions. Of these two questions in order. Was the circuit court without jurisdiction? We think not. First by the appeal of Dr. King from the probate court the whole case was brought in regular order to the circuit court, and if the probate court had a right to entertain a motion to vacate the original allowance, then the circuit court" on appeal acquired jurisdiction to determine the same question. The statute under which the heirs of the deceased proceeded, is Eevised Statutes 1909, section 220, and .reads:

“If an executor, administrator, heir or creditor of an estate shall, within four months after any demand shall have been allowed, file in the office of the probate court the affidavit of himself or some credible person, stating that the affiant has good reason to helieve, and does believe, that suck demand has been improperly allowed, and shall furnish satisfactory evidence of that fact to the court, and further, that notice has been given the opposite party or parties in interest, the court shall vacate such order of allowance and try the matter anew, and allow or reject such demand, as shall be right; and if, upon such new hearing, such demand shall be allowed, it shall be classed and paid as if such new hearing had been granted.”

The affidavit we have set out in full in our statement of the case. This affidavit complies with the statute, supra. This statute, which is an amendment of an older statute, is- highly remedial, and intended to facilitate the work of the probate courts, in getting at righteous results in allowances. Smith, P. J., in Martin v. Estate of Nichols, 63 Mo. App. l. c. 349, thus speaks of the present statute:

The section is remedial in its character and must receive a liberal construction. [Weil v. Simmons, 66 Mo. 617.] The plain and obvious object the lawmaker had in view in so amending the statute was to afford the administrator, executor, heir, or creditor of an estate, having reason to believe that an improper allowance had been made against the estate, an opportunity to> have the same, within four months' thereafter, set aside and the matter tried anew, and this, too, whether notice of the presentation is given to the representative or his agent. And this statutory enlargement of the jurisdiction of the probate courts does not, in any way, alter or affect the jurisdiction of the circuit courts exercising equitable jurisdiction. The jurisdiction of these courts, in cases of fraud, is not ousted because a remedy exists at law. [Dingle v. Pollick, 49 Mo. App. 479.] ”

Under such a statute, if the affidavit complies with the terms and requisites of the statute, it is sufficient. This affidavit follows the language of the statute and should be held. sufficient. Again the statute provides a concurrent and not an exclusive remedy against such, allowances. [Fitzpatrick v. Stevens, 114 Mo. App. l. c. 503.] It still leaves the remedy in equity, if there are facts for equity. [Fitzpatrick v. Stevens, supra, and cases cited therein.] Going a step further, the statute itself seems to contemplate two hearings, i. e. (1) on the question as to whether the judgment of allowance shall be set aside, and (2) a hearing (if the judgment of allowance is set aside) as to whether the claim should be allowed at all. The courts seem to so treat the statute. Thus in Keele v. Keele, 118 Mo. App. l. c. 278, Goode, J., says:

“But it is said‘that section 214 requires the party moving to vacate a demand, to furnish satisfactory evidence to the court that the demand was improperly allowed. We do not understand the statute to mean that the mover must give such proof against the allowance as would be required to defeat it at a hearing on the merits; but only that such a probable showing must be made against its propriety as will convince the court that the matter ought to be reheard in order to be more sure of a correct result. The findings of fact contained in the judgment vacating the present allowance show the court was satisfied to that extent. There was no abuse of judicial discretion in the ruling to justify us in reversing it. ’ ’

It is also held that one contesting an allowance in the first instance cannot move to vacate the allowance under this statute. In the Keele case, supra, at page 272 et seq., it is said:

“The scope of that section has not been fully defined by adjudications; but in our judgment it was not intended to allow a party interested in an estate who appears and contests the allowance of a demand, to move afterwards to vacate the allowance on the same grounds on which he contested it. To take this view of the statute would annul, as far as the allowance of demands against the estate of deceased persons is concerned, the general doctrines governing the effect of former adjudications. An executor, administrator, heir, devisee, legatee, creditor, or other person having an interest in an estate may appeal from a judgment allowing against the estate a demand exceeding ten dollars. [R. S. 1899, sec. 278.] If the demand is made after an actual contest by any party in interest, we think section 214 of the statute does, not contemplate that such party can have the matter reopened for another contest on the identical ground previously adjudicated.”

In the case at bar, however, we meet with no such difficulty. The original allowance in the probate court was one by default, and- the movents here were not present and took no part therein. To conclude this point it is clear that the probate court was possessed by this statute of jurisdiction to hear this motion to vacate, and it being so: possessed of jurisdiction the circuit court upon appeal had a like jurisdiction. The statute violates no constitutional provisions, because, forsooth, the term might expire before the end of the four months, and before the filing of the application to vacate. We have a statute allowing a motion to vacate a circuit court judgment, under given circumstances, if such motion be filed within three years. It has never been thought that such a motion violated constitutional provisions, or refused to all the equal protection of the laws. Dr. King was duly notified of the filing of the application to vacate' in the probate court. In response he entered only a special appearance, when he could have done differently. But be that as it may, the filing of the motion and the service of notice thereof upon him conferred jurisdiction upon the probate court and through it jurisdiction upon appeal upon the circuit court.

Now to the second question. Was Dr. King entitled to a jury? We think not. This application to vacate a judgment of allowance is one addressed to the discretion of the court. As stated above the statute contemplates (1) a hearing as to whether the allowance shall be vacated, and (2) if it is vacated then a new hearing upon the merits of the ease. As said by Goode, J., in the Keele case, supra, the statute does not “mean that the mover must give such proof against the allowance as would be required to defeat it at a hearing on the merits, but only that such a probable showing must be made against its propriety as will convince the court that the matter ought to be reheard in order to be more sure of a correct result. ’f There is no place for a jury in the hearing of an application thus addressed to the discretion of the court. One might as well demand a jury upon the hearing of a motion for new trial. As the statute contemplates a dual hearing, there was no wrong done in refusing a jury upon the question as to whether or not the original allowance should be vacated. Upon the case upon the merits the court offered D'r. King a jury, but he and his counsel declined to try the case upon its merits, and after such declination the court, without a jury, heard evidence and disallowed the claim. We say heard evidence, because the judgment so says, but as Dr. King and his counsel were not there to preserve the same in a bill of exceptions, we are left in the dark as to its character.

V. We have seen from what precedes that there is no error in this record, unless there be error in the judgment upon the merit's. To this judgment we drift next. The record being a peculiar 0Iie we Prefer to set out this judgment, so that it may speak for itself. Such judgment follows the judgment affirming the action of the probate court in vacating the original allowance, and reads:

C. R. King, Plaintiff, v. Estate of Mary J. Stotts, Deceased.
Judgment against C. R. King on his demand.
After the vacation, as improperly allowed, of the order of the prohate court of Lawrence county, Missouri, made December 14, 1908, in favor of C. R. King and against the estate of Mary J. Stotts, deceased, by this court, and the affirmance by this court of the order of the probate court made April 12, 1909, vacating, as improperly allowed, said allowance of December 14, 1908, from which last named order, as well as other orders made herein on April 12, 1909, by said probate "court, said King appealed to this court, the above entitled cause and matter of the demand of C. R. King against said estate comes on now to be heard and tried anew and be allowed or rejected as shall be right.
And it appears that the administrator of the estate of Mary J. Stotts, deceased, having waived the service of the notice of the presentation of said demand in the probate court aforesaid, and James D. Whaley, administrator of said estate of Mary K. Pruitt and Fannie G. Davis, heirs at law of said Mary J. Stotts, deceased, and of her estate, by Charles L. Henson, their attorney, appear and ask and demand of said C. R. King and this court that said matter of the demand of said C. R. King against said estate be now tried anew and announce ready for trial; and said C. R. King although requested to do so, doth refuse to appear to this proceeding or to show any cause for continuance thereof, whereupon the court, a jury being waived, doth proceed to hear the evidence adduced on said demand of said C. R. King, and after hearing all the evidence adduced doth find the issues against said C. R. King, and that he is not entitled to recover herein, and his demand against said estate is therefore rejected. Wherefore, it is considered, odered and adjudged that said administrator go hence without day and that he recover of and from said C. R. King his costs herein laid out and expended, for all which execution may issue.

The things which, happened at this trial are not preserved by bill of exceptions. They announced that they would not appear and try the merits. The judgment recites that Dr. King .refused-to appear. The question then is, what should have been, done by the trial court1? As a fact the trial court proceeded to try King’s case after he had abandoned it. His claim was in the nature of a suit against the estate. When he declined to make proof of the claim, the court should have dismissed his case, and should not have proceeded to try it and render judgment against him as was done. The court could have adjudged the costs against him upon a dismissal of his claim, hut should not have gone further. It follows that the judgment entered on the merits should he reversed. Upon the whole the judgment vacating the original allowance of the prohate court is affirmed, and the judgment on the merits reversed and cause remanded with directions to the trial court on that branch of the case to enter up a judgment dismissing the claim fo,r failure to prosecute the same, which judgment should carry with it a judgment for costs. It is so ordered.

All concur.