author: WOODSON, J.

text:
    JUAN T. HUFF, Appellant, v. ST. JOSEPH RAILWAY, LIGHT, HEAT AND POWER COMPANY and CITY OF ST. JOSEPH.
    Division One,
    July 3, 1908.
    1. STREET RAILWAY: Trespasser in Street: Evidence. Where the petition charges that defendant is a corporation organized and existing under the laws of the State as a street railway company and is a common carrier of passengers and maintains tracks in the street for that purpose, it is not an error, in the absence of an allegation that defendant had no. license or authority to maintain a track in the particular street where the plaintiff, a pedestrian, in attempting to cross the tracks fell and was injured, to exclude evidence tending to show'that defendant had no such license and was therefore a trespasser at that particular point.
    2. -: -: -: Immaterial. Besides, where plaintiff was not a passenger, the evidence is not material. If the street and tracks were maintained in a reasonably safe condition for pedestrians to travel thereon, plaintiff cannot recover against either the railway company or the city for injuries received by her in attempting to cross the tracks, whether the company was a trespasser in the street or not.
    3. -: Instruction: In Reasonably Safe Condition, etc. An instruction for defendant in a suit for personal injuries received by a pedestrian in attempting to cross its tracks which tells the jury that the railway company “was not required to keep the space between the rails of its tracks at the point where plaintiff claims to have been injured in a safe condition, nor to keep said space filled with dirt, cinders or any other material, so that the surface between the rails would be flush with the top of the rails; it was only required to use ordinary care to keep said space between said rails in a reasonably safe condition,” etc., is highly misleading and erroneous, and contradictory.
    4. -: ——: -: Outside of Rails. As an abstract proposition of law an instruction which tells the jury that the defendant railway company was not required to keep in safe condition for travel that part of the street outside the rails of its track is erroneous, but where the defect which caused the pedestrian to fall was between the rails and she was between them when her foot slipped under the furthest rail and she was injured, the instruction is not error, but proper under the facts of the case.
    5. -: -: Testimony Against Interest. An instruction in a personal injury case which tells the jury that all statements made by plaintiff in her testimony which were against her interest must be accepted by them as absolutely true, and that all statements made by her in her own favor should be given such weight and credence as the jury may deem them entitled to, is erroneous, for two reasons: First, it singles out plaintiff and comments on her testimony; and, second, it erroneously declares the law, in that, if plaintiff through ignorance or by mistake made a statement against her interest, the jury are bound to take it as absolutely true, whether it was in fact true or not.
    6. -: -: -: Judgment Affirmed Nevertheless. But where the evidence does not make out a prima-facie case for plaintiff and she has no case whatever, the judgment for defendants will be affirmed, notwithstanding that and other erroneous instructions were given.

      7. -^Pedestrian: Defective Track: Prima-Facie Case. Where plaintiff’s evidence shows that the car track extended about a foot above the surface of the street on the outside of the rails, and from three to four inches above the surface between the rails; that she was standing near the .track waiting for a car; that a runaway team was about to run over her and she attempted to run across the track to get out of the horses’ way; that in doing so she got on to the track in safety, but then her foot slipped under the furthest rail, and in consequence thereof she was thrown down and seriously injured, she makes out a prima-facie case against both the street railway company and the city, of negligence in maintaining the track in a defective condition, and is entitled to have her case submitted to the jury under proper instructions.
    Appeal from Buchanan Circuit Court. — Hon. Henry M. Barney, Judge.
    Reversed and remanded.

      Kendall B. Randolph for appellant.
    (1) It was error to exclude evidence showing that the railway company had laid its tracks in the street without any authority from the city to do so, and that they were trespassers in said street. This record shows that such evidence was peculiarly competent in view of the fact that the court by instruction 3, given for the defendant railway company, and after having excluded such evidence, told the jury that the company had a right in such street. Street railway tracks placed in a public street of a city without a franchise are a public nuisance. Sherlock v. Railroad, 142 Mo. 1. c. 183, citing 23 Am. and Eng. Ency. Law, 1093. (2) Instruction 3, given on behalf of the railway company, is misleading, and is a comment on the evidence. It tells the jury in the most pointed language that the company Was not required to keep its tracks in a safe condition, and was not required to keep the space between the rails filled with dirt, cinders or any other material so that the surface between the rails would be flush with the top of the rails, but that it was only required to use ordinary care. to keep said space between said rails in a reasonably .safe condition, etc. It would have been enough to have told the jury that they were only required to keep the track in a reasonably safe condition. The phrase in the last line of said instruction, “reasonably safe under the circumstances,” is also misleading. It was the absolute duty of the company to lay its tracks to grade. Sherlock v. Railroad, supra; Cross v. Railroad, 77 Mo. 320'; Smith v. Railroad, 98 Mo. 24; Knapp, Stout & Co. v. Railroad, 126 Mo. 26. The words “reasonably safe under the circumstances” left too much to the jury. (3) Instruction 5, given for the railway company, is erroneous in this: It repeats instruction 3 with reference to the company not being required to keep its tracks in a safe or good condition; and in stating that it is immaterial how high the rails or ties of the track extended above the street on the outside of the rails — Sherlock v. Railroad, supra — or that any holes'may have been in the street. This instruction tells the jury that the street car company was not liable for any condition of the street outside of the rails, even though immediately against the rails there was a hole. It should, at least, have been required by this instruction to keep the street in repair, as far as the ends of its ties extended outside of the rails. This instruction is also erroneous in this: That it tells the jury that they may take into consideration the purposes for which the street, at the place of injury, was being used at the time of the injury. Plaintiff had a right to have the street at that point in such condition of repair that it could be used for all purposes for which a street is ordinarily used. The streets of a city must be kept in a reasonably safe condition for travel either by day or by night. Blake v. St. Louis, 40 Mo: 569; Bowie v. Kansas City, 51 Mo. 454; Bassett v. St. .Tosenh, 53 Mo. 290; Welsh v. St.,Louis, 73 Mo. 71; Russell v. Columbia, 74 Mo. 480; Kiley v. Kansas City, 87 Mo. 103; Carrington v. St. Lonis, 89 Mo. 208; Roe v. Kansas City, 100 Mo. 190; Haniford v. Kansas City, 103 Mo. 172; Franke v. St. Lonis, 110 Mo. 516; Flynn v. Neosho-, 114 Mo. 567. (4) Instruction 11 does not correctly state the law. It tells the jury that all statements made by plaintiff, while upon the stand, testifying, which are against her own interests, if any, must be accepted by them as absolutely true, and that all statements made by her in her own favor should be given such weight and credence as the jury deem them fairly entitled to. The rule announced in this instruction has often been applied to admissions and statements made out of court, but the parts of the testimony of the witness before the jury cannot be separated in that way. It is the duty of the jury to give the whole testimony such weight and credence as they deem it fairly entitled to. This form of instruction has been expressly condemned by the appellate courts of this State. Culbertson v. Railroad, 50 Mo. App-. 562; Ephland v. Railroad, 137 Mo. 198; Zander v. Railroad, 206 Mo. 260.

      R. A. Brown, W. B. Norris and O. E. Shultz for respondents.
    (1) Defendants’ demurrer offered at the close of plaintiff’s case should have been sustained, for the reason that plaintiff wholly failed to show by any evidence that the injuries sustained by her resulted from any negligence of the .defendants, or either of them. (2) The court did not commit error in excluding the evidence offered for the purpose of showing that the railway company did not have any franchise to maintain and operate its railway tracks in Alabama street. Plaintiff in her petition alleged that the company was ■organized and incorporated as a street railway company under the laws of Missouri; that it was a common carrier of passengers, and as such had constructed its tracks and operated its. cars over the streets of the city of St. Joseph, including Lake avenue and Alabama street. Her petition in no way suggested or intimated that the company was not lawfully operating its cars over and in Alabama street. Under the allegations of her petition the presumption followed that the defendant railway company was lawfully in Alabama street. Under such circumstances, it was wholly incompetent for plaintiff to offer evidence in any way tending to prove that said defendant was maintaining its tracks in and operating its cars over said street without a proper franchise therefor. Where a company is maintaining and operating a line of railway tracks upon a street, the presumption is that it is lawfully maintaining and operating such line of railroad. Independence v. Railroad, 86 Mo. App. 588. Aside from the reasons above stated, the testimony was wholly incompetent for any purpose. If the defendant company negligently maintained its tracks in the street, even though lawfully there, and if, on account of such negligence, plaintiff was injured, a right of recovery would follow. She would have had no greater right had the defendant company been a trespasser on Alabama street. (3) The company was not required to keep its tracks in a safe condition, nor was it required to keep the space between the rails thereof filled with dirt, cinders or other material so that the surface between the rails would be flush with the top of the rails. The law imposed upon it no such burdens. It was only required to exercise reasonable care to keep' its tracks in a reasonably safe condition. The instruction imposed upon it every duty or obligation imposed by the law of this State. 3 Elliott on Railroads (2 Ed.), p. 150; McGrauley v. Railroad, 179 Mo. 592. Defendants were not insurers of the safety of pedestrians; the only duty devolving upon them was to use ordinary care to keep that portion of the street where plaintiff fell in a reasonably safe condition for travel. Kiley v. Kansas City, 87 Mo. 103; Mans v. City, 101 Mo. 613; Franke v. City, 110 Mo. 516; Carvin v. City, 151 Mo. 334; Warren v. City, 153 Mo. 593. (4) Instruction 11, given on behalf of defendants, is criticised. There were no admissions made by plaintiff against her own interest except her admission that she stumbled over the east rail of the Hyde Valley line, and that she was at that time running to escape threatened danger,from a runaway team. The admission that she stumbled' over the east rail of the track eliminated the question of the condition of the track and the street at every other point. No one else witnessed the accident. There was no testimony whatever as to how or where the accident occurred, other than plaintiff’s. For the purposes of this case, her admissions in the respects named were absolutely binding upon her. They were not controverted by other testimony of the plaintiff or the defendants. They were made in the presence of counsel, before the court and jury in a judicial proceeding, and come within the rule laid down in State v. Brooks, 99 Mo. 142; Houston v. Eailroad, 118 Mo. App. 470; Keen v. Schnedler, 92 Mo. 526.
   WOODSON, J.

This suit was begun in the circuit court of Buchanan county, and was to recover the sum of $5,000 damages for personal injuries sustained by plaintiff in consequence of a fall, caused by the alleged negligence of the defendant in permitting one of the streets of the city to become and remain in an unsafe and dangerous condition, by permitting the tracks of the railway company to extend several inches above the surface of the street, which caused her to trip and fall while passing over them.

There was a trial upon the merits before the court and a jury, which resulted in a verdict and judgment for the defendants; and, after taking the proper preliminary steps therefor, the plaintiff appealed the cause to this court.

The facts of the case are few and simple, and there is no controversy as to what the evidence tends to show, except upon one point, and that is as to the condition of the surface of the street between the rails of the street car track at the place of the injury on the night of its occurrence, which will receive special consideration later on.

The facts as disclosed by the record are as follows:

The defendant, St. Joseph Railway, Light, Heat & Power Company, is a street railway company, maintaining its tracks through the city of St. Joseph and operating cars thereon as a common carrier of passengers. It operates a double-track car line on Lake avenue, one of the streets of the city of St. Joseph. Lake avenue runs north and south and extends to the southern'limits of the city. At the southern terminus of this street it is intersected by Alabama street, a thoroughfare extending east and west along the southern boundary line of said city. Alabama street does not cross Lake avenue, but intersects said Lake avenue and runs thence east. The Railway Company also maintains a car line along Alabama street which runs to Hyde Valley, a suburb of the city. As this car line approaches Lake avenue from the east, it curves to the right and intersects with the Lake avenue line some feet north of the intersection of Lake avenue and Alabama street. At the intersection of the two car lines a junction is maintained where passengers are transferred from the Lake avenue line to the Hyde Valley line, and vice versa. From the point of intersection of the two, Lake avenue line runs south some feet on Lake avenue and then turns to the west' and runs through the country to Lake Contrary. Both Lake avenue and Alabama street were dirt roads, and while there was some travel on the west side of Lake avenue, which was used-by persons driving to and from Lake Contrary, there was very little travel on Alabama street, so that few vehicles passed over the car tracks at and near the junction. Cars on the Hyde Valley line always go around the curve on Alabama street onto Lake avenue, and head north on Lake avenue before they stop to permit passengers to enter and alight therefrom. Cars on the Lake avenue line stop just opposite and west of the Hyde Valley car. Passengers boarded and alighted from the Hyde Valley cars on the west side thereof.

The defendant Railway Company had filled in the space between the Hyde Valley line and the Lake avenue line with dirt and cinders for the accommodation of its patrons. The space between the rails of the Hyde Valley line had also been filled with dirt and cinders.

On the twenty-third day of May, 1905, the plaintiff, who resided in Hyde Valley, had attended church in the city of St. Joseph and had returned to the junction above. described on a Lake avenue car from the south, and while waiting at the junction for a Hyde Valley car, and while standing in the street between the Hyde Valley line and the Lake avenue line, a team of horses coming from the south became .frightened and unruly, and plaintiff, thinking herself in danger, attempted to escape to the east and in so doing attempted to pass over the tracks of the Hyde Valley line, which at that point curved from Alabama street to Lake avenue and extended practically in a northwesterly and southeasterly direction. While passing over the east rail of this track plaintiff stumbled over said rail and fell, sustaining injuries, for which she seeks to recover damages in this suit. It was claimed by plaintiff in her -petition that the streets at the point of intersection above described were full of holes, and as a consequence were unsafe for pedestrians to use, and that the street car tracks of the defendant company extended several inches above the surface of the street, rendering them dangerous to pedestrians attempting to pass over the same.

While a number of persons were present at the time plaintiff was injured, no one witnessed the accident and no one knows what caused plaintiff to fall. Immediately after she had fallen she was found lying with her head and body east of the east rail of the Hyde Valley line and her feet upon or near said rail.

She testified and gave the following version as to how the accident happened:

“Q. Tell the jury as near as you can how you met with this accident? A. Well, on returning from church we were waiting for our car, Hyde Valley car, and we were standing, seems to me like I was standing close to that post as they call it, and all at once this team run up there plunging. I. thought I heard the cracking of the vehicle, and of course I reckon they all ran, at least I did. I started to run and in the first place it came into my mind I’ll gO' this way, and I turned to go, I suppose that would he south; hut when I turned I looked up and I seen the horses’ feet up in the air, and it seemed to me like when they come down they would come on me. I run right across the street, started across the-track, of course expecting the horses’ feet to be on me every moment — I’m a little nervous, have been since I was hurt, you will have to excuse me — I have a faint recollection of getting over the first rail, and I remember of my foot going against the last rail of the track. I presume it was towards that saloon, I don’t hardly know, but I think it was. I fell, of course a hard fall; that is pretty near all I can say, only I suffered death up to the last month pretty near, ” "

On cross-examination she said:

“Q. You say you were standing near the telegraph pole — the pole stood in the street? A. Yes, sir; near that pole.
“Q. And you saw a team coming from the south? A. Not until it was right, I just say, on me, apparently right at ns.
‘‘Q. Then you jumped — you know where the saloon stands over in the corner? A. Yes, sir.
“Q. Did you run toward that? A. I suppose I went towards that saloon.
“Q. You think you hung your foot over the east rail? A. I felt my fool go under the rail and it threw me; I don’t know whether I lit on my shoulder; I reckon I did; fell all right.”

Plaintiff testified that she passed over the west rail, and in passing rapidly over the east one to get out of the way of the runaway team she caught her foot under the rail which tripped and threw her heavily to the ground, thereby inflicting the injuries of which she complains.

James H. Hyde, who was sworn on behalf of plaintiff, testified that at the time and place of the injury the rails of the street ear track extended above the surface of the street on outside thereof from “ten to twelve inches.” “Q. How was it between the rails? A. As near as I remember between the ties were covered. ’ ’

J. D. Bromfield testified that the rails were about four inches higher than the ground between them was.

Mrs. Elliott testified that the top of the east or north rail stood about three or four inches above the surface of the ground between the rails.

Plaintiff introduced other evidence tending to show what condition the track, rails and street were in at the time and place of the injury, which was substantially the same as the foregoing.

The plaintiff offered to show by E. L. McDonald, city clerk, that defendant, the Street Railway Company, had no authority from the city of St. Joseph to lay and maintain its tracks along and upon the streets mentioned in the evidence. Defendants objected to the introduction of that evidence, for the reason that no such issue was presented by the pleadings. The court sustained the objection and plaintiff duly excepted.

At the close of plaintiff’s evidence, defendants asked an instruction in the nature of a demurrer thereto, which was, by the court, refused, to which action of the court the defendant duly excepted.

Defendants then introduced evidence which tended to prove the allegations of their respective answers.

The court then instructed the jury on behalf of the plaintiff, properly submitting her case to the jury.

The court gave on behalf of the defendant St. Joseph Railway, Light, Heat and Power Company, instructions numbered 2, 3, 5, 6, 8, 9,11,12 and 13 against the objections of the plaintiff, which said instructions .are as follows:

“2. In trying and determining this case, you should look solely to the evidence of the witnesses for the facts, and to the instructions of the court for the law to guide you in your deliberations. It is immaterial who is plaintiff and who are defendants.. The instructions of the court declare the law and the only law to guide you in your deliberations, and they must be considered and obeyed by you in arriving at your verdict.
££3. You are instructed that the defendant, St. Joseph Railway, Light, Heat and Power Company, had the right to operate and maintain its tracks in Lake avenue and Alabama street at. the point 'described in evidence, and it was not required to keep the space between the rails of its tracks at the point where the plaintiff claims to have been injured in a safe condition; nor was it required to keep said space filled with dirt, cinders or any other material, so that the surface between the rails would be flush with the top of the rails. It was only required to use ordinary care to keep said space between said rails in a reasonably safe condition, taking into consideration the situation there at the time, and the purpose for which said track and said street were then used; and if you believe from the evidence that the defendant Railway Company exercised ordinary care to make the space between the railg of its tracks at the place where plaintiff was injured reasonably safe under the circumstances, then your verdict will be for the defendant.
“5. You are instructed that, so far as this case is concerned, the defendant St. Joseph Railway, light, Pleat and Power Company, was not required to keep in safe or good condition for travel any part of the street outside of the rails of the track at the point where plaintiff claims to have been injured; and it is immaterial how high the rails or ties of the street car tracks may have extended above the street on the outside of such rails, or that any holes may have been in the street. And if you believe from the evidence that the space between the rails of the street car tracks, at the point where plaintiff claims, to have been injured, was at that time filled up with dirt or cinders so that it was in a reasonably safe condition, taking into consideration the purposes for which said street at said point was then being used, your verdict will be for the defendant.
“6. If you cannot tell from the evidence whether plaintiff caught her foot upon the street car track and was thereby thrown to the ground and injured, or whether she stumbled or fell from some other cause; or, if it is just as probable that she did fall from some cause other than by catching her foot upon the street car track, then she is not entitled to recover, and your verdict will be for the defendants.
“8. The mere fact that plaintiff may have been injured at the time and place described in evidence is of itself no evidence whatever of the negligence of defendants in this case.
‘ ‘ 9. The plaintiff in this case cannot recover upon mere speculation or possibility, but the burden of proof rests upon her to prove by a preponderance of all the evidence to your reasonable satisfaction each and every fact necessary to authorize a recovery in this case, and unless such facts have been so proven to your reasonable satisfaction by such preponderance of all the evidence, you will find your verdict for the defendants.
“11. .Ton are instructed that all statements made by the plaintiff while upon the stand testifying which are against her own interests, if any, must be accepted by you as absolutely true, while all statements made by her in her own favor while upon the stand testifying, if any, should be given just such weight and credence as you deem them fairly entitled to under all the other facts and circumstances in evidence.
“12. If you believe from the evidence that plaintiff was not in the exercise of ordinary care on her part at the time she received the injuries complained of, and that such want of ordinary care on her part in any way contributed directly to such injuries, then she is not entitled to recover and your verdict will be for the defendants.
“13. Ton are the sole judges of the credibility of the witnesses and the weight you will give their testimony, and in determining the weight you will give the testimony of any witness, you should take into consideration his or her opportunity of knowing the facts about which he or she testified, the reasonableness or unreasonableness of the statements made, and the interest any such witness may have in the result of this suit, if any, together with all the other facts and circumstances in evidence, and you should give to the testimony of each and every witness just such weight and credence as you deem it fairly entitled to under all the other facts and circumstances in evidence.”

To the giving of said instructions and each of them the plaintiff duly objected and saved her exceptions.

The court gave on behalf of the defendant city of St. Joseph instructions numbered 2, 3, 4, 5, 6, 7 and 8 against the objections of the plaintiff, which said instructions are as follows:

“2. The court instructs the jury that the defendant city is not an insurer against accidents upon its streets, nor is every defect therein a ground of liability though it may cause an injury; but the city performs its whole duty if the streets are kept reasonably safe for persons passing over them using ordinary care and prudence, and if you believe the street at the point where plaintiff claims to have received her injuries was in such a reasonably safe condition, then plaintiff cannot recover in this action against the city, and your verdict will be for the defendant city.
“3. The court instructs the jury that before they can find for plaintiff they must not only believe from the evidence that the street at the place where the plaintiff fell was out of repair, as mentioned in the petition, but they must further find that by reason thereof it was not reasonably safe for persons using the same for a street with ordinary care and prudence.
“4. If the jury believes from the evidence that plaintiff by her own negligence directly contributed in any degree to the injury sued for, you will find for the defendant city.
‘ ‘ 5. The court instructs the jury that it is the duty of the defendant city of St. Joseph to keep its streets in a reasonably safe condition for the use of pedestrians traveling thereon, but it is not to be charged with, negligence in this case because of the defective condition of the street where the accident is said to have occurred, if you believe it was defective, unless defendant city had notice of such defect, or unless it existed for a sufficient length of time to justify the inference that the city knew of the defect, or hy reasonable diligence could have acquired such knowledge in time to have repaired it before the accident. In determining what is a sufficient length of time that would he required to justify the inference of the knowledge of such defect, you are instructed that you have a right to take into consideration all the facts and circumstances attending the same. -
“6. You are instructed that hy the words ‘ordinary care’ is meant such care as a prudent person ordinarily uses under like and similar circumstances.
“7. The court instructs the jury that the city of St. Joseph is only hound to keep its streets in a reasonably sáfe and suitable condition for public travel. And the amount of care and diligence to be reasonable may vary with the circumstances of each case. And by reasonable care is meant that degree of care and diligence which an ordinary careful and prudent person would he expected to use under similar circumstances. If, therefore, you believe from the evidence that the point on Lake avenue where it intersects Alabama street in the city of St. Joseph, and at which point it is claimed hy the plaintiff said Alabama street was out of repair, was in a reasonably safe and suitable condition for the purpose of the amount of public travel thereon, then you will find that the defendant city of St. Joseph was not negligent, and your verdict will be for the defendant city of St. Joseph.”

To the giving of said instructions and each of them the plaintiff duly objected and saved her exceptions,

I. The first insistence of the appellant is that the trial court committed reversible error in excluding her offer to prove that the defendant, the Street Railway Company, had no license or authority from the city of St. Joseph to maintain'its car tracks along and upon Lake avenue and Alabama street at the place of her injury. In other words, the legal effect of her offer was to show the Railway Company was a trespasser on said streets.

The petition charges that the Street Railway Company is a corporation organized and existing under the laws of the State of Missouri as a street railway company, and is a common carrier of passengers, and that it maintains tracks upon the streets mentioned for the purpose of transferring passengers to and from various points within and outside of the city. There is no allegation in the petition that said defendant was a trespasser upon said streets, or that it was occupying them without authority to do so from the city.

While no authority has been cited by counsel for either party bearing directly upon the proposition presented, yet it would seem to us in the absence of such allegation that it must be presumed that said defendant was lawfully conducting the business of a common carrier, and, as an incident thereto, was rightfully occupying the streets of the city with its car tracks for that purpose. In the absence of such an issue presented by the pleadings, we are of the opinion that the action of the court in excluding the evidence was proper.

Independent of the suggestions just made, we are unable to see the materiality of the evidence offered. She was not a passenger, and the character of the physical obstruction in the street would not be changed by proof that the company was a trespasser.

If the street was maintained in a reasonably safe condition for persons to travel upon by day and by night, then it seems to ns that both defendants have discharged their full duties to plaintiff, and no good reason has been called to our attention, if it exist, which would justify the court in holding that she should be permitted to recover, even though it be conceded the Railway Company was there without authority of law. If the defendants are liable at all for plaintiff’s injuries, it is not because the railway company is a trespasser in the streets of the city, but because they have negligently failed to maintain them in a reasonably safe condition for people to travel over; at least, that was the theory of the petition.

There was no error in excluding the offer.

II. It is next contended by counsel for appellant that instruction number three given on behalf of respondent Railway Company did not correctly declare the law applicable to the case. Among other things it told the jury that the company had the right to maintain its tracks on Lake avenue and Alabama street, and to operate its cars over the same.

The objection lodged against this instruction raises the same proposition that was discussed and decided in the first paragraph of this opinion, namely, the admissibility of evidence tending to show the railway company had no authority to maintain its tracks on the streets of the city. For the reasons there expressed, we must rule this question against appellant.

But the instruction did not stop there; it went further and told the jury that said defendant was not required to keep' its tracks in a reasonably safe condition and was not required to keep the space between the rails filled with dirt, cinders or any other materials so that the surface between the rails would be flush with the top of the rails, but that it was only required to use ordinary care to keep said space between the rails in a reasonably safe condition.

That part of the instruction is highly misleading and clearly erroneous. The charge of negligence as stated in the petition is the failure of the company to maintain its tracks on a level with the surface of the street, and that in consequence thereof the ties and rails extended several inches above the surface of' the street, and in passing over them the plaintiff caught her foot under one of them and was thereby thrown down and injured. If the petition stated a cause of action, then the instruction is erroneous, for the reason it tells the jury that the company was not bound to keep its track on a level with the surface of the street by filling between the rails with dirt, cinders or any other material. If that is true, then we are unable to comprehend how it would be possible for respondent to keep the track flush with the surface of the street. Under that instruction it would be a physical impossibility to maintain the track and the street on the same level, yet the law requires that they be so maintained, that is, so near a level as not to materially interfere with travel, or as not to render it unsafe and dangerous to persons traveling thereon by day or by night.

Nor is that error in the instruction cured by the following sentence thereof, which told the jury that “it was only required to use ordinary care to keep said space between said rails in a reasonably safe condition,” etc. How could the space between the rails be kept in a reasonably safe condition for travel if it is not to be done by filling that space with “dirt, cinders or other materials ? ” It is a contradiction' of terms to say in one sentence of an instruction that the law did not require the respondent company to fill the space between the rails with ’any kind of material and state in the next that it was only required to keep said space between said rails in a reasonably safe condition. Learned counsel for respondents have not suggested to us how that could he done without filling the space with some kind of material, and we are unable to comprehend how it could be done any other way. To say the least it must have been misleading to the jury, and was therefore erroneous.

III. Counsel for appellant complains of instruction number five given on behalf of the Railway Company. The complaint is lodged against that part of the instruction which told the jury that it was not required to keep in safe condition for travel any part of the-street outside of the rails of its track.

As an abstract proposition of law that instruction might be erroneous, and doubtless is, but when viewed in the light of and applied to the facts of this case, then we are of the opinion that it correctly states the law. The plaintiff testified that she passed in safety over the west rail, and that when she reached the east one her foot slipped underneath it, and that in consequence thereof she was thrown to the ground and injured. The record contains no other evidence which tends to show what caused her to fall, and that being true, we are unable to see what the condition of the street outside of the rails had to do with her injury. The defect which caused her to fall was between the rails, and she was between them when she stepped into that defect, and, clearly, the condition of the street outside of the rails had nothing whatever to do with her fall.

We are, therefore, of the opinion that the instruction was proper under the facts of the case.

IV. The next assignment of error relates to the action of the court in giving instruction number eleven for defendant company. It told the jury that all statements made by the plaintiff while upon the stand testifying which were against her interest, if any, must be accepted by them as absolutely true, and that all statements made by her in her own favor should be given snch weight and credence as the jury might deem them entitled to.

Clearly, this instruction is erroneous for two reasons: first, because it singles out plaintiff and comments upon her testimony; and, second, because it erroneously declares the law. Under this instruction if the plaintiff through ignorance or mistake made a statement against her interest, the jury was bound under their oaths to take it as absolutely true whether it was in point of fact true or not. We know of no means by which a party litigant can be made to understand things any better while testifying upon the witness stand than he does while acting off of the witness stand; nor by which he can be prevented from making mistakes under oath the same as he does when he is not under oath.

We have many times condemned that form of instruction, and it should never be given. [Ephland v. Railroad, 137 Mo. l. c. 198; Zander v. Railroad, 206 Mo. l. c. 460, 461, and cases cited.]

If the plaintiff made statements against her interest while testifying (and we must presume she did so, else the instruction would not have been given) which were untrue and made through mistake, oversight or ignorance, and she should at the time have discovered her error and had attempted to correct it, the jury under that instruction would necessarily have been compelled to have disregarded her explanation and find that the statement was true, even though the mistake was ever so apparent, for the reason the instruction told them that they must take such statements as absolutely true. Such a proposition is monstrous, and it has no foundation upon which to stand either in law or morals.

While this instruction was asked by and given on behalf of the Railway Company, still it operated with equal prejudice against her and in favor of the city.

Y. Counsel for respondent company concedes the error of instruction number eleven, pointed out in the previous paragraph, but contends that the judgment should be affirmed notwithstanding that error, for the reason, as he contends, that the evidence does not make out a prima-facie case for plaintiff, and for that reason its demurrer to the evidence should have been sustained by the court.

If that was true, and plaintiff had no case whatever, then, of course, she was not and could not be prejudiced by that or any other error the court might have committed during the progress of the trial. But we do not concur in the view of learned counsel, that the evidence is not sufficient to carry the case to the jury. The record discloses the facts that the rails of the car track extend about a foot above the surface of the street on the outside of the rails and from three to four inches between them; and that while plaintiff was rushing across the track to escape the runaway team of horses, her foot slipped under the east rail, and in consequence thereof she was thrown down and seriously injured. There is an abundance of evidence in the record tending to prove those facts. If true, then both the city and the company were guilty of negligence in maintaining the street and tracks in that dangerous condition. Clearly, the evidence made out a prima-facie case for her, and she was entitled to have a jury pass upon it under proper instructions.

We are, therefore, of the opinion that the judgment should be reversed and the cause remanded for a new trial. It is so ordered.

All concur, except Valliant, P. J., who is absent; Graves, J., in the result.


source: Caselaw Access Project

author: LAMM, J.

license: Public Domain

text:
    PETER SHARP, ROLAND SHARP and THOMAS SHARP, Minors,, by Next Friend, GERTRUDE L. SHARP, v. MISSOURI PACIFIC RAILWAY COMPANY, Appellant.
    Division One,
    July 3, 1908.
    1. PLEADINGS: Liberal Construction: Damage Act. The statute requires the allegations of the petition to be liberally construed with a view to substantial justice between the parties: and while the Damage Act is in derogation of the common law and is for that reason to be somewhat strictly construed, yet that does not bear on the question of how the pleadings should be construed.
    2. -: Damages for Death: All Children: Answer: After Verdict. The suit was by three minor children named, for damages for the negligent killing of their father, brought by their mother as next friend, and the petition averred: “Plaintiffs state that on the 16th day of September, 1903, they were all the children of David W. Sharp, now deceased; that said David W. Sharp departed this life on the 1st day of November, 1903, and left. surviving him his wife, Gertrude L. Sharp, and these plaintiffs . . .; that plaintiffs are minors under the age of twenty-one years,” etc. In the answer was the clause: “Defendant for answer to plaintiffs’ petition in the above-entitled cause . . . admits that -one David W. Sharp died sometime during the month of November, 1903, and left surviving him his wife Gertrude L. Sharp and children, Peter Sharp, Roland Sharp and Thomas Sharp.” The testimony showed the ages of the children, and the mother testified without objection or exception that these three little boys were her only children by David W. Sharp at the time of his death and then-only children living at the time of the trial. Held, 'that the petition, after answer and verdict, sufficiently alleges that the three children named were the only children of David W. Sharp at the'time of his death.
    3. - — : -: -: The Word All. The word all, used in this petition, when properly construed, in its connection, means that the three plaintiffs named were the oply children the de- , . ceased father left surviving' him. The petition is sufficiently full and specific in naming the necessary parties to the action.
    4. -: -: -: Answer. The admissions of the answer, fairly construed in connection with the allegations of the petition, concede that the only children that deceased left surviving him were the three boys named; and in that connection it is held that a cause may not be tri'ed on one theory below and heard upon another on appeal.
    5. -:-: After Verdict: No Demurrer, etc. Where defendant filed no demurrer to the petition, and made no objection to the introduction of testimony because the petition stated no cause of action, and made no objection to the specific testimony put in showing the very things it is contended were not alleged, the presumption will be indulged, when the petition is attacked for the first time in the motion in arrest, that defendant considered the petition good.
    6. NEGLIGENCE: Switchman: Defective Grab-iron. Plaintiffs’ father, a switchman in the performance of his duties, took hold of the grab-iron next to the top of the ladder on a freight car, it gave way at one end and he fell backwards, on an iron rail, and died six weeks later. The grab-iron was fastened by a lag screw, without a nut, screwed, by means of the sharp-edged thread, into the wood, which was rotten, and the screw was rusty. Held, that in the absence of evidence that he knew of the rotten condition of the wood or that by the exercise of due caution he could have discovered it, plaintiffs are entitled to recover on the presentation of substantial evidence tending to show that his death was due to the injuries received by him in the fall.
    7. -: -: -: Cause of Death. Where there was evidence that plaintiff’s father languished from the moment of the accident, and that as a result of his injuries septic pneumonia, originating from an abscess and blood-poisoning, set in and caused his death, and on the other hand that his death was due to typical pneumonia, independent of his injuries, it was the province of the jury to reconcile the conflict of the testimony, and the court will not interfere with their verdict.
    8. -: -: -: Evidence: Inspection: Not Preserved. The court cannot hold that it was reversible error to exclude certain evidence without knowing what it was. Without knowing that, the court cannot hold that the excluded evidence was material. Where the court excluded appellant’s evidence relating to the inspection of the freight car, whose handhold gave way and caused the switchman to fall, but gave appellant permission to copy the excluded evidence into the bill of exceptions, which was not done, this court cannot hold that its exclusion was reversible error.
    9. -: -: -: -: -: Book. The primary evidence of the inspection of a car is the testimony of the inspector and the tally book made by him contemporaneously with his inspection, and where they are available a book record made by a clerk, by transcribing upon it the entries made by the inspector on his tally book, is not admissible to show the condition of the car at the time the inspection was made.
    10. INSTRUCTION: No Error Specified. Where appellant points out no specific error in the instruction given, which on its face seems to be full and correct, but contents itself to saying it is bad law, the court will not search for specific defects, but will-adhere to the rule that the judgment is presumed to be right.
    Appeal from Jackson Circuit Court. — Hon. John G. Park, Judge.
    Aeitrmed.

      Elijah Robinson for appellant.
    (1) The petition does not allege that plaintiffs were all of the children that deceased left surviving him at the time of his death, and it cannot he contended that it was not absolutely necessary that all of his children should join in this suit. Any less number could not maintain it, as it can he maintained by no one except those coming strictly within the terms of the statute. The fact that the petition alleges that plaintiffs were all of the children of the deceased some time prior to his death, does not cure the defect, because it does not follow that they were all of the children that he left surviving him-at the time of his death. Nor does the fact that the petition alleges that deceased left surviving him his wife and these plaintiffs cure the defect, because it is not alleged that he left no other children surviving him. The fact that the testimony tends to show that plaintiffs were all the children which he left surviving him, does not cure the defect in the petition. A petition, especially one based upon a statutory cause of action, must set forth a complete cause of action, and if it does not do so, the fact that the evidence may have tended to establish a compíete cause of action, does not cure the defect. (2) The allegations of the answer d.o not cure the defect in the petition. There is no allegation in the answer admitting that plaintiffs were all of the children that deceased left surviving him at the time of his death. (3) The evidence shows conclusively that David W. Sharp died of pneumonia, caused by indiscreet exposure on his part; and there is no substantial evidence whatever tending to show that the injury which he had received had any connection with his death. Pneumonia is a disease of such a character and so familiar to the doctors, that no doctor of any degree of intelligence could be mistaken in regard to it. It is true that the doctors testified that sometimes pneumonia results from traumatism, but they all, both the doctors for plaintiffs and the doctors for defendant, testified that where pneumonia results from a blow, it almost invariably appears within twenty-four hours after the injury, and never later than ten or twelve days. (4) • The rule'that , records, kept in the usual course of the business in which the parties are engaged, as permanent records of what occurred in the course of that business, are admissible in evidence, is not confined to books of account of merchandise sold or services rendered. Drumm-Flato Co. v. Bank, 107 Mo. App. 434.

      Gerson B. Silverman and Frederick A. Boxley for respondents.
    (1) Appellant’s demurrer to the evidence at the .close of plaintiff’s case, and its motion in arrest of judgment, were properly overruled. The petition meets all the requirements of good pleading and complies with the statute under which this action was brought. Sec. 2864, R. S. 1899; sec. 629, R. S. 1899; Cobb v. Railroad, 149 Mo. 143; Hickory Co. v. Fugate, 143 Mo. 71; Milwaukee Trust Co. v. Van Valkenburgh, 112 N. W. 1083; Allen v. Railroad, 183 Mo. 411. (2) The evidence left no room for the jury to guess as to the cause of the death of respondents’ father. No slender thread, hut a mass of evidence, connected his injury and death — a complete chain of causation was established — and whatever question there was on this point was left to the jury with appropriate instructions. Hovarka v. Railroad, 191 Mo. 441; Betz v. Tel. Co., 97 S. W. 20; Knapp v. Railroad, 98 S. W. 70; Peterson v. Railroad, 97 S. "W. 860. (3) Appellant invokes the “Shop Book . Rule,” or the “American Rule,” as it is sometimes called, to show error of the trial court in' refusing to admit in evidence a book containing a record of inspections made (not by the witness produced)' hut by appellant’s inspectors of cars. That rule applies only to books of account. This book is incompetent for any purpose in this ease; it is an ex parte statement and not the best evidence to show such inspection. As no hook like the one in controversy has ever been offered in evidence to prove a fact such as it was attempted to prove in this case, we are unable to cite this court to any law on the subject. (4) Appellant complains of the court’s alleged error in giving respondents’ instruction 1. As no specific objection is pointed out or stated, it is evident this assignment of error is not made or taken seriously by appellant; the instruction covers the case, in plain English words.
   LAMM, J.

Defendant appeals from a judgment, nisi, of $5,000' in favor of plaintiffs who are the minor children of David W. Sharp, deceased, and who sue by their mother, Gertrude L., as next friend.

The gist of the petition is that on September 16, 1903, while in the line of his duty in climbing one of defendant’s moving freight cars to. get on top, one of . the grab-irons or iron rods in the car’s ladder pulled from its fastenings as he was using it as a handhold, and thereby the said David W. Sharp, a switchman in defendant’s employ, was caused to fall on his back across one of the rails of defendant’s adjoining track, by reason of which he was so greatly injured that on the first day of November, 1903, he died. It is alleged that it was the duty of defendant to keep the grab-irons constituting the ladder or handholds on said car in good and safe condition so that switchmen could with safety climb up and down. That defendant disregarded its duty in that behalf and (to use the language of the petition) “did furnish said David W. Sharp with unsound, unsafe, defective and insufficient equipment in this: that on the said 16th day of September, 1903, one certain grab-iron, or handhold, being one rod of iron, of a ladder constituted of four (or five) rods on the side of a certain freight car then in the possession, control and operation of the defendant, as a sort of ladder by means of which brakemen and switchmen climb upon said cars, was rusted and loose in its fastenings; and that the wood of the ear in which said grab-iron, or handhold, or iron rod was fastened was rotten and unsafe.” It is further averred that Sharp had no notice of the rusty and rotten condition aforesaid and that such condition could not have been discovered by him with the exercise of due caution and care, but that such defects were known to the defendant or might by the exercise of ordinary care on its part have been known to it; and that the death of Sharp resulted from the fall and injury due to the defective condition of said grab-iron or handhold and the defective and rotten condition of the car to which it was fastened.

The answer admits Sharp was in the defendant’s employ as switchman on the 16th day of September, 1903. Admits he received some slight injury on that day, but denies he received injuries to the extent or of the character set forth in plaintiff’s petition, denies the accident occurred in the manner alleged in the petition, and alleges Sharp’s negligence hut denies its own or that of its agents or employees. It further admits the death of Sharp- hut denies it was occasioned by injuries received in the accident in question.

In the brief of learned counsel, the following propositions are laid down — on one or all of which a reversal is sought:

(a) “Both defendant’s demurrer to the evidence and its motion in arrest of judgment should have been sustained for the reason that the petition did not allege facts that would entitle plaintiff to recover.”

(b) “Under the evidence in the case the jury could not find for plaintiffs without making a guess as to the cause of the death of David Sharp; and, that being true, the court should have sustained defendant’s demurrer to the evidence.”

(c) “The trial court committed error in excluding defendant’s record showing the inspections of the car in question.”

(d) “The court committed error in giving plaintiff’s instruction No-. 1.”

Contributory negligence is out of the ease, nor is there any contention that the judgment is excessive. Other facts and any allegations of the pleadings vital to questions made, will appear in the course of the opinion.

I. The first proposition in the case is that the petition was defective in not stating facts entitling plaintiffs to recover.

Counsel develops the point as follows: First, ‘It was not alleged in the petition who were the children of David Sharp at the time of his death;” and second, “So far as shown by the petition in this case, David Sharp at the time of his death may have left surviving him a dozen children other than those who brought this suit.”

The point seeks pertinent allegations of the pleadings. Attending to them, the petition contains these averments: “Plaintiffs for cause of action against defendant, state that on the 16th day of September, 1903, they were all the children of David W. Sharp, now deceased ; that said David W. Sharp' departed this life on the 1st day of November, 1903, and left surviving Mm his wife, Gertrude L. Sharp and these plaintiffs, and that said wife, Gertrude L. Sharp, has failed to bring any action against the defendant for the death of said David W. Sharp, though six months have now elapsed since such death occurred; that plaintiff are minors under the age of 21 years, and that Gertrude L. Sharp is the legally appointed and acting next friend for plaintiffs in this suit.”

The answer contains the following clause:

“Defendant for answer to plaintiffs’ petition in the above-entitled cause . . . admits that one David W. Sharp died sometime during the month of November, 1903, and left surviving him his wife Gertrude L. Sharp and children Peter Sharp, Roland Sharp and Thomas Sharp.”

In this state of the pleadings, testimony was introduced without objection showing Peter Sharp was ten years old; Roland, six; and Thomas, five. In response to an inquiry, the mother testified without objection or exception that these little boys were her only children by David W. Sharp at the timé of his death, and are their only children living now (i. e., at the trial in July, 1905).

It is on the foregoing state of the pleadings and proofs that learned counsel predicate the conclusion that the motion in arrest should have been sustained and the instruction in the nature of a demurrer offered at the' close of plaintiffs’ case should have been given. Is there substance in such contention? We think not. True, as counsel argue, at common law no one could maintain a civil action on account of the death of another. True it is that such right of action exists alone by virtue of the provisions of the statute and that under hornbook rules the statute, being in derogation of the common law, must be construed with some strictness. In Jackson v. Railroad, 87 Mo. loe. cit. 429, Henry, C. J., speaking to the point, said: “It is a statute in derogation of the common law and must receive a reasonably strict construction. ’ ’ But all this is aside the real point. -The question is not so much how the statute should be construed as it is how the petition should be construed. The right to sue being in all the minor children, the question is: Does the petition with sufficient certainty show that these minor plaintiffs are the only minor children of David "W. Sharp? In construing pleadings under the code the doctrine of contra proferentem is not allowed in its one time, common-law vigor and rigor. The old rule is much clipped by statute, section 629, Revised Statutes 1899, which provides that: “In the construction of a pleading, for the purpose of determining its effect, its allegations shall be liberally construed, with a view to substantial justice between the parties.”

That section of the statute does not change the fundamentals of good pleading where justice demands their strict enforcement. It does not dispense with the necessity of stating directly, or inferentially, the facts on which the pleader depends to secure the objects of his pleading. It does not throw on an adversary the hazard of correctly interpreting the meanings of a pleading, containing doubtful allegations,’ on one or the other of which such adversary might fairly act. But it does mean that allegations should be liberally construed with a view to substantial justice. It does mean that superrefinement in gloss, a penchant or bias to superfine analysis, the mere arriving at possible and strained constructions are out of place in getting at the meaning of an allegation in a petition. That language employed in pleadings should be construed with reference to time and place of utterance; should be taken in its plain, ordinary hearth-stone meaning, and such interpretation given as fairly appears within the intendment of the pleader. That is, the intendment most favorable to him shall be allowed — at least, absent a demurrer and present a verdict in his favor, as here. [See authorities collated by the learned annotators of Mo. Ann. Stat. 1906, p. 652.]

Section 629, supra, has been often construed, and nowhere more justly and felicitously than in Cobb v. Railroad, 149 Mo. l. c. 143-4, where it is said:

“That statute does not mean to loosen the rules of pleadings where their strict enforcement is fairly demanded, but it means that where the circumstances surrounding the case at the time are such that a liberal construction is necessary to prevent a defeat of justice, then the pleading must be liberally construed. Thus, when an answer to the petition has been filed, and a trial of the issues had, it is too late for the losing party to object to the petition for mere informality or for lack of a distinct averment of an essential fact, if it contains averments from which such fact may be fairly inferred. Justice demands a more liberal construction of' the petition after answer and verdict than when its sufficiency is challenged by demurrer or motion to make more definite and certain in the first instance. [Young v. Shickle, H. & H. Iron Co., 103 Mo. 324; Mc-Dermott v. Claas, 104 Mo. 14; People’s Bank v. Scalzo, 127 Mo. 164.]
. “The rules of pleading, though very technical, and often strict, do not rest alone on the arbitrary will of the law-maker, but are founded on that sense of justice which recognizes the right of every party to a lawsuit to require of his adversary a clear and unequivocal statement of his side of the case. When this right is demanded in dne form and in season, it must be heeded as a demand of justice; and it will be no answer to say that the demand is technical. And even after verdict, unless the statements of the petition by fair inference constitute a cause of action, the plaintiff’s suit must fail.
“But justice will not allow a party to lie in wait for his adversary, take his chances on a verdict, and then, if it be against him, profit by the strict technicality of the science of pleading, if a liberal construction will obviate the objection.
“This is the meaning of the statute above quoted, and thus construed it is designed to prevent a defeat of justice through a mere technicality, yet does not impair the force of the salutary rules of pleading.”

In applying the foregoing interpretation of section . 629, supra, to the case at bar, we make these observations :

(1) Absent a demurrer to the petition, absent an, objection to the introduction of any testimony because the petition stated no cause of action and absent an objection to the specific testimony put in showing that the three minor plaintiffs were the only children of David W. Sharp and his wife, Gertrude — we say, absent each and all of these things, then in such condition of things the presumption may be indulged that defendant, nisi, deemed the petition good. Now, in construing pleadings, contracts and other instruments the practical construction put upon them by parties is of great value and is seized upon by courts and applied in the administration of justice. All this is but giving play to the homely adage: Actions speak louder than words — that is, actions in a line of present conduct speak louder than afterthoughts. [Bragg v. Railroad, 192 Mo. loe. cit. 357-8, and eases cited.]

(2) The admissions of the answer, fairly interpreted in connection with the allegations of the petition, must be construed as a concession that the only children surviving were Peter, Roland and Thomas. A case may not be tried on one theory below and heard on another above.

(3) But (and more broadly) the petition is sufficiently full and precise in the particular questioned. It alleges, in effect, that the three minors named were “all” of the children of David W. Sharp' on the 16th day of September, 1903. Coming to the date of his death, it says he left surviving him “these plaintiffs” —i. e., the children named, to-wit, all he had. No court should, construe these allegations not to exclude the notion that there was other children, then born or posthumous. Both court and counsel must be held to have put that construction on them at the trial, as heretofore pointed out, and to have deemed the, proof offered in that behalf responsive to the allegations.

(4) And, finally, the contention is unsound under Revised Statutes 1899, section 659, directing that: “The court shall, in every stage of the action, disregard any error or defect in the pleadings or proceedings which shall not affect the substantial rights of the adverse party; and no judgment shall be reversed or affected by reason of such error or defect. ’ ’ [See, also, sec. 865, R. S. 1899.]

The point is ruled against' defendant.

• II. The next insistence is that a demurrer to the evidence should have been sustained. At the close of plaintiffs ’ ease and again at the close of the whole case, defendant ashed and was refused an instruction of that character. The present assignment of'error seeks the facts. Briefly summing it up, the case made on the facts is this:

The car in question was an old car, designated in the testimony as “a non-air car.” The grab-iron giving way was the one next the top. This grab-iron was fastened to the wood of the car by lag screws, i. e., iron bolts with square tops, a sharp'-edged thread and a sharp point, adapted to screwing into wood and these bolts were used without nuts. The grabhold gave way at one end only, the lag screw pulling out of the wood. This wood was rotten and the testimony shows the screw was loose and rusty, presumably, from rain getting in the screw hole. As decedent, about his master’s business, took hold of this grab-iron and one side gave way, he fell prone a distance of from seven to ten feet backward and struck his back, two or three inches above the hip line in that part commonly spoken of as the small of the back and more learnedly spoken of as the lumbar region, on an iron rail of defendant’s track adjoining. That he was badly injured by the fall is put beyond question. He was twenty-nine years old, an able-bodied man, weighing between 150 and 160 pounds. His comrades went to him and lifted him up. Presently, they assisted him on an engine and thereby carried him close to his home. There was testimony put in by plaintiffs tending to show that from thence on to his death, day by day he suffered greatly from inward hurts. Pie spat blood at intervals, his face became drawn, pinched and of bad color. He walked in a stooped position, favoring his back. Had more or less fever. His eye became “hollow” and “blunt,” as the witnesses described it. His appetite was gone; he pined away, falling off from 20 to 25 pounds in weight, and became much emaciated, being afflicted with insomnia and nervousness and his kidr neys refused to act — there being testimony that his urine was sometimes drawn mechanically. After his injury he was unable to do any more work. Several times he went to defendant’s hospital. At the end of twenty days his family doctor was called in and attended him at his home and then ceased his visits. Subsequently, Mr. Sharp paid several visits to the doctor’s office. An interval followed, and a few days before he died he took to his bed. Three days before his death his family doctor was again sent for and attended. him to the end.

On hypothetical questions, put without objection, physicians testified that in their opinion the death of David W. Sharp* was attributable to his fall and injury. There being testimony on the part of defendant, as presently seen, that he died from pneumonia, the physicians introduced as experts by plaintiffs testified that there was a sort of pneumonia known as septic pneumonia, originating from blood poisoning. From symptoms outlined in the hypothetical question, they gave it as their opinion that an abscess resulted from the injury in the region of the kidneys, that blood poisoning set in and carried him off.

On the part of defendant, Sharp’s family physician was called (without objection) and from him and experts testimony was put in tending to show that his injuries had not a whit to do with his death; that his hurts from the fall were merely muscular, calculated to lame his back temporarily. The family physician not only testified to that effect, but he had no recollection of any kidney trouble or any signs of it or of an abscess. He said Sharp grew better under his treatment and was thinking of returning to work, when he took cold and pneumonia seized him and killed him. That he had not seen him for a while after he ceased his visits to his office, but finally was called about three days before his death and found him in the first stages of typical, progressive, lobular pneumonia, which developed rapidly and resulted fatally. Expert witnesses were introduced and testified there were no symptoms of an abscess near the kidneys and while they admitted there was such a thing as septic pneumonia they denied that Sharp had it but said he died of typical pneumonia, independent of his injuries.

The issues presented on this testimony were submitted to the jury by instructions not criticised by learned counsel. It was for the jury to reconcile the conflict in the testimony, if possible, not this court. A trial is not to a judge alone, nor to a jury alone, but to a judge and jury. We cannot say on this record that to attribute the death of Sharp to his injury is a mere guess. If a man, well to-day, is badly injured and from that time on sickens (with symptoms referable to his injury), and, languishing, finally dies, a disagreement among doctors as to the name of the disease on him at the moment of dissolution, does not create a condition from which it can be said that a verdict one way or the other is merely guess work — a wild goose chase into the field of chance and conjecture. Defendant’s theory, necessarily, has its root in the notion that plaintiffs’ evidence was unworthy of belief; for if there had been no physician's testifying as experts and the jury had been without medical advice, yet plaintiffs ’ lay evidence showed a cause for Sharp’s pain and suffering, and his visible approach to the grave in the steps he took, commencing at the place and time of his injury and ending there, are rational deductions within the right of a jury in applying common sense to facts. The expert medical testimony was merely advisory, and, because the advice given to the jury by. the opinions of the doctors differed, that presents no case for our interference. The mysteries of death are inscrutable and baffle complete scientific solution by mortal man. The sting of death is hidden. The best that can be done is to establish a chain of causation — to show a cause (an injury) from which an effect (death) might reasonably follow. We know, without doctors’ advice, that men have been killed by falls. We know, too, that death may follow weeks of pain and suffering from inward hurts, having their origin in such a fall. This seems to be such a case, provided of course the jury believed plaintiffs’ testimony. Tbe burden was on the jury under their oaths to hear, weigh and decide. It was their prerogative to believe or disbelieve. Admitting we have the power, yet we have no disposition to interfere with their verdict.

The overruling of the demurrers was well enough and the point is, accordingly, disallowed to the defendant.

HI. The next error assigned is the refusal of the trial court to allow defendant’s inspection record in evidence. In leading up to the offer of this record, defendant placed upon the stand Mr. Capíes, who' identified himself as division foreman of defendant’s car department at Kansas City. In the summer and fall of 1903, he was foreman of inspectors at the State line. He testified that a record was kept of the inspection of cars at Kansas City under his supervision. The witness had such a record book with him on the stand and identified it. What followed is best told by the following excerpt from defendant’s abstract of record:

“Q. Now, I will get you to state how the record of the inspection is made. A. Well, our inspectors are stationed in the yard in the most convenient place to catch the trains, or transfers, as they are delivered . or arrive in the yards, and each inspector carries what we call a tally book, a small book in which they take a record of the trains, or the transfers, as we call them, cars from connecting lines, into that little book; take a record of every ear, and note on there any defects that they may find; if a car has no defects, why, of course, the book shows blank; they just simply take the number and initial and kind of car, and if it had defects, they make a note of that on that little tally book; those tally books are turned in by the day men that go off duty at six in the evening, as they go off at six in the evening; and by the night men at seven in the morning as they go off duty; all of those little hooks are kept by a clerk assigned to that particular work, into those larger record books.
“Q. Into that record that you have your hand on? A. Yes, sir.
“Q. Now, whose duty was it to transcribe the records from the little books onto that permanent record? A. Well, what we call the clerk of the foreman of the inspectors.
“Q. Was that done under your supervision? A. Yes, at that time.
“Q. Did you put a man there to do it? A. We had a man permanently there; he is still — that same man is not there, but there is a man occupying that place, it is a permanent position.
“Q. You had a man there during that time? A. Yes, sir.
“Q. I will get you to state whether or not the entries on the page of the book that is open there were made by that man whose duty it was to transcribe them onto that book from the little books? A. Yes, sir.
“Q. I will get you to state to the jury now whether there is any record of the inspection of Missouri Pacific box car.7727 on that book? A. Yes, sir.
“Mr. Silverman: That is objected to by the plaintiffs.
“Objection sustained by the court.
“Mr. Robinson: I offer to show now the inspections—
“Mr. Silverman (interrupting): We object to the offer; the book can be shown to the stenographer, and the stenographer can copy off what he offers; we object to the offer in this way.
‘ ‘ The Court: Do it quietly.
‘ ‘ Mr. Robinson: I offer to show the record of the inspection of this car prior to the 16th day of August, 1903, on the 6th of August, and the 13th of September.
“The Court: By the hook?
1£ Mr. Robinson: By the record about which I have examined the witness, and I suppose it is not proper for me to state in the presence of the jury what I want to show that the inspection showed, but I will tell the stenographer so that he can get it.
“The Court: He can copy the entries later.
“Mr. Silverman: We object to it.
“ Objection sustained by the court.
“To which ruling and action of the court the defendant at the time excepted and does still except.
“Cross-examination, by Mr. Silverman.
“Q. Mr. Capíes, where is the clerk that made the entry? A. He is not in the service now.
“Q. Is he in the city? A. He is.
“Q. In Kansas City, Missouri? A. In Kansas City, Missouri.
“Q. Where is the clerk, Mr. Capíes, or the yard man that transmitted the tab to the clerk? A. That is the one that I answered you about.
“Q. The man that actually made the inspection? A. He is in the service.
“Q. He is in the service? A. Yes, sir.
£ £ Q. Where is he, Mr. Capíes ? A. He is in the Kansas City, Kansas, yards, in the Cypress yards.
“Q. In the employ of the Missouri Pacific? A. Yes, sir.
“Re-direct Examination, by Mr. Robinson.
“Q. How many cars would he probably inspect in the course of a month, Mr. Capíes? A. On an average, 200' cars a day.
“Q. Two hundred cars a day? A. That is a rough estimate, you know.
£ ‘ Q. That is a rough estimate; he inspects a great many cars? A. Yes, sir.
“Q. What is the purpose of keeping this book here that I have called your attention to, so as to have a permanent record? A. So as to have a permanent record, to keep us informed about the condition of the cars.
“Q. When a car is found to be defective, what is done with it? A. It is marked in for repairs, as we say, ‘Bad Order.’
“Q. What is done with it then? A. It is taken to the repair tracks, or yards.
“Q. Taken to the repair tracks? A. Yes, sir.
“Q. Then what is done with it? A. The necessary repairs are made. ’ ’

As shown, permission was given defendant to copy into the bill of exceptions the entries from the permanent inspection book, compiled from the tally books by defendant’s clerk, but it appears this permission was not utilized and there is nothing here to show what the inspection record contained with reference to the car in question.

Should we say the trial court erred in excluding defendant’s inspection record in the above state of the proof? We think not, for several reasons:

(a) In the first place, if the book were held admissible, even then we cannot say it was error to exclude the entries in it because there is nothing here to show what those entries were or what they tended to prove. Before we can find it reversible error to exclude offered evidence we ought to know what the excluded evidence was; because if it had been preserved and presented to us, we might by inspecting it be able to say it could not materially affect the result one way or the other.

(b) In the next place, assuming the inspector’s record showed that the car had been inspected three days before the injury of Mr. Sharp, to-wit, September 13th, and showed no defects, yet we do not think the book itself was admissible. Tbe primary evidence obviously was tbe testimony of tbe inspector bimself and bis tally book made cotemporaneously with his inspection. Tbe record offered was a mere after-compilation of these tally books in tbe nature of a .ledger kept for tbe convenience of defendant. Note tbe following: There is even no testimony tbe copying was correctly done. There is no excuse offered for tbe absence of tbe original memoranda, viz., the tally book and its contents, or for the absence of the evidence of tbe inspector who made both tbe inspection and tbe tally book. In this condition of things it would be dangerously loose practice to permit tbe introduction of such secondary evidence. "We are cited to no well-considered case bolding such book admissible on such proof. We take it, its admission would be a novelty in tbe law, and if we were to allow its exclusion as error we would open tbe door to grave abuses by such a precedent.

Tbe point is disallowed to defendant.

IV. Defendant’s final proposition is that it was error to allow’ plaintiffs ’ instruction numbered 1. That instruction is as follows:

1‘ Tbe court instructs tbe jury that if you find and believe from tbe evidence that David W. Sharp' at tbe time of tbe alleged injury was in tbe employ of tbe defendant Missouri Pacific Railway Company, as a switchman, that in tbe performance of bis duty be was climbing tbe ladder on tbe side of a box car and bad reached tbe handhold next to tbe top of said ladder, that be took bold of said handhold, and said handhold pulled from its fastenings and said Sharp fell to tbe ground on bis back across an iron rail, that tbe wood to which said handhold was fastened was rotten and tbe fastenings of said handhold were rusty so that said handhold was not reasonably secure, and that defendant knew, or by tbe exercise of ordinary care could have known of said rotten and rusty condition in time to repair same, and negligently failed so to do, and that David Sharp in consequence thereof, sustained the injuries complained of, and that said injuries were the proximate cause of the death of said David W. Sharp-, you will find for the plaintiffs, provided you find that David W. Sharp was at the time of said injury in the exercise of ordinary care.”

At first blush, the instruction has an honest face. Learned counsel has not put his finger on any specific blemish he claims as error. It is said generally to be bad law, but the particulars of its badness (assuming shape, peradventure, in the mind’s eye of counsel), remain hid away like “a worm in the bud.” As counsel leave them incognito, so may we; for if counsel can point no specific blemish, shall we take up the search and hunt for one as with a lighted candle, ex mero motul It is not so written in the law. Absent error, specifically pointed to, a court of review falls back on the benign and ever-present presumption that the judgment was right.

The point is disallowed to defendant.-

Y. Plaintiffs’ counsel stoutly insist .we should not consider the bill of exceptions, for reasons named in their brief. But as we seem to have assumed the right to consider the bill, it is not worth while to hark back and discuss our right to do so. We shall assume that, after all, the result reached, and not the point made, is uppermost in counsel’s mind and let it go- at that.

The premises considered, the judgment should be affirmed. It is so ordered.

All concur.