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    MOCKOWIK, Appellant, v. KANSAS CITY, ST. JOSEPH & COUNCIL BLUFFS RAILROAD COMPANY.
    Division One,
    May 30, 1906.
    1. NEGLIGENCE: ¡Demurrer: Evidence Considered. In determining whether or not plaintiff, because of his own negligence, had a case upon which to go to the jury, defendant’s testimony, where controverted, cannot be considered. In such case, plaintiff-is entitled to the full force of all uncontroverted facts and to all his controverted evidence, and is to he allowed every reasonable and favorable inference of fact deducible from all the evidence.
    2. -: -: When Question of Law. ■ If there can be two views of plaintiff’s conduct entertained by fair-minded men, the one condemning and the other exonerating him, he is entitled to the verdict of a jury on the question of his contributory negligence; if, however, reasonable men can entertain hut one view of his conduct, and that adverse to him, the question resolves itself into one of law.
    3. —5—: -: -: Error in Instructions. A verdict for defendant will not he reversed for error in giving instructions, if plaintiff was clearly guilty of such contributory negligence as precludes his recovery, for in such case the court should not permit the jury to pass on the case at all.
    4. -: Contributory: Stepping on Track: Bell and Headlight. Where plaintiff, a mature man, possessed of good sight and hearing and familiar with the track and the movement of trains, made only a hasty glance at an engine on the track and paid no further attention to it, not even to see whether it was moving or standing still, but stepped on the track and was struck by it, his negligence was the proximate cause of the injury, and notwithstanding the bell was not rung or the whistle blown or the headlight displayed and the train run at excessive speed, he cannot recover.
    5. -: -: -: Concurrent Negligence. Where a mature man, in possession of all his faculties and occupying a place of safety, negligently moves to a place of danger immediately in front of a railroad engine, so that those controlling it, though they themselves may be negligent in not ringing the bell or sounding the whistle or in running at excessive speed, seeing his danger may not save him by the exercise of ordinary care, lie has no cause of action against the railroad; for his negligence and the railroad’s negligence are concurrent and in that case the law does not give plaintiff the right to recover.
    6. -: Speed: Ordinance: Reliance upon Obedience. A pedestrian who presumes that those in charge of a railroad train were obeying a city ordinance regulating speed, should so testify, if he is alive and goes on the stand to tell the circumstances of his injury. Presumptions are not indulged in the presence of actual facts, or where the facts may be known by the exercise of ordinary care.
    Appeal from Buchanan Circuit Court.—Hon. A. M. Woodson, Judge.
    Affirmed.

      Grant Watkins, C. F. Strop and Eugene Silverman for appellant.
    (1) The second instruction given for defendant which told the jury that defendant had a right to operate its trains at ten miles per hour was erroneous, (a) Because the ten-mile ordinance on its face does not purport to cover that portion of the track where plaintiff received his injuries. Therefore, the general ordinances prescribing five miles per hour, and also the special ordinance granting the right of way at the place of the accident and limiting the rate of speed to five miles per hour, were in force and should have controlled the rate of speed of defendant’s trains at the point of accident, (b) Because even though the ten-mile ordinance was intended to regulate the speed of defendant’s engines at the point of the injury, yet said ordinance was void and was repealed by the general ordinances of the city thereafter passed regulating the speed of engines and limiting the saíne to five miles per hour, and even if not repealed was void because in conflict with the general ordinances of the city. Sluder v. Railroad, 189 Mo. 107; City v. Tate, 130 111. 247. (2) The correct rule is that plaintiff has a right to rely upon the fact that the ordinances will be complied with and to regulate and govern his conduct accordingly, and the failure to comply with the ordinances is negligence. Riska v. Railroad, 180 Mo. 195; Weller v. Railroad, 164 Mo. 180; Sluder v. Railroad, 189 Mo. 107.

      O. M. Spencer, R. E. Culver and H. J. Nelson for respondent.
    (1) The court did not err in instructing that the engine had a right to run at a speed of ten miles per hour, (a) Because the special ten-mile ordinance related to running of engines on defendant’s track at point of accident, (b) Because there is no evidence that the general speed ordinance was passed after the special ten-mile ordinance, and it was not so passed, but even if it had been it would not operate as a repeal of defendant’s special speed ordinance. Reischenberg v. Railroad, 161 Mo. 85; Campbell v. Railroad, 175 Mo. 177. (c) Anyhow, plaintiff was guilty of wantonness in stepping immediately in front of the moving engine, and speed was immaterial. Moore v. Railroad, 176 Mo. 544. (2) Plaintiff’s own negligence barred a recovery upon any theory, (a) Because he saw the engine and went onto the track. Skipton v. Railroad, 82 Mo. App. 134; Fanning v. Railroad, 103 Mo. App. 151. (b) Because he stepped on the track immediately in front of the engine. Moore v. Railroad, 176 Mo. 544; Boyd v. Railroad, 105 Mo. 381. (c) Because he was guilty of wantonness and cannot recover even-on “last-chance” doctrine. Moore v. Railroad, 176 Mo. 1. e. 544; Ross v. Railroad, 88 S. W. 146. (d) The verdict was therefore for the right party, and must be affirmed, even'if there were errors in the instructions. Moore v. Railroad, 176 Mo. 545.
   LAMM, J.

—From a verdict, against him in-an action for personal injuries alleged to have been caused by the negligence of defendant in operating a switch engine, plaintiff appeals.

The canse was heard on an amended petition, charging defendant with operating an engine on Fifth street in the city of St. Joseph at a rate of speed denounced by ordinance and in violation of an ordinance requiring a bell to be sounded continuously on a moving locomotive in the city limits, and the rear end of all tenders supplied with a lantern or other light at nighttime. It is alleged that defendant negligently ran its engine at twenty-five miles an hour when the ordinance prescribed a speed rate of not exceeding five; that, being dark at the time, no light was displayed on the end of the engine facing plaintiff and, hence, he could not tell whether the engine was moving or standing still; that no bell was rung or whistle sounded, nor was any other warning given; that defendant negligently failed to keep a watch for persons crossing its track at the point in question and failed to stop or attempt to stop said engine and prevent injuring plaintiff when they saw, or by the exercise of ordinary care, could have seen him on said railroad track and in a position of peril when more than two hundred feet from him and could have stopped said engine and prevented his injury if it had exercised ordinary care. It is averred, furthermore, that defendant kept a flagman at the point whose duty it was to flag trains and warn pedestrians walking across its tracks of approaching trains and engines, and said flagman negligently failed to give plaintiff any warning of the approach of said engine, and that plaintiff by said negligence was injured.

The trial began and proceeded under a petition drafted on the theory there was no public street at the point of the accident but that there was a well-marked and well-used path there leading to the Missouri river bridge, the Krug packing house and elsewhere, and for many years many persons with the knowledge and consent of defendant were licensed to use said pathway as pedestrians and did constantly nse the same in crossing and recrossing defendant’s tracks and that said path crossed the line of wbat would have been Fifth street if it had been projected farther north. At the trial, however, the petition was amended so as to aver that the point of the accident was in Fifth street itself, and the trial concluded on the latter theory.

The answer admitted defendant’s incorporation, denied the other allegations and pleaded plaintiff’s contributory negligence.

The replication tendered the general issue on new matter.

The facts uncovered below are as follows:

Fifth street runs north and south, and defendant maintains two main-line tracks there side by side, called herein the east and the west track, on the east one of which the accident happened. At the locus the Eock Island railroad crosses defendant’s two tracks from east to west at right angles. Side by side with the Eock Island track, and a little south of it, the Grand Island railroad crosses defendant’s tracks at right angles. This immediate spot is called the “crossing.” The rectangle made and bounded by these four tracks is called the ‘ ‘ box. ’ ’ To the northeast of this box, in the angle made by the east rail of the east track of defendant with the north rail of the Rock Island track, is a little house, a few feet from either track, known as a watch-house, switch shanty, or (in railroading idiom) “the dog house.” This switch shanty was used by a flagman in the employ of defendant. Defendant’s east track is on a down grade from north to south—so much so that cars or engines would run of their own momentum from, say, two blocks north, to several blocks south of the switch shanty. Because of this switch shanty and certain buildings and obstructions north of it, a person approaching the crossing from the east, until past the shanty, could not be seen by those running an engine when at a distance north of the crossing on the east track, nor could such person, so fixed, see aught of the engine except its smoke and smokestack. One of plaintiff’s witnesses, east of the switch shanty and a few feet behind plaintiff, looked to the northwest and saw the smoke and smokestack -of the engine in question when it was about one hundred and fifty feet north of the crossing and says at that time he could see it was running south.

At a point, estimated at about one hundred and fifty feet north of the switch shanty, was a “stop-post” where engines going south were required to stop and to call the crossing signal with two blasts of the whistle. The flagman, if the track be clear, then gave the crossing signal and the engine came on over the crossing.

At the very time of plaintiff’s injury, it is agreed on all sides that a. freight train, headed south on defendant’s west track, was either passing the crossing with its rear end not quite over, or else the rear end had just gone by — plaintiff’s witnesses say the latter, defendant’s the former.

The morning of December 4, 1900, was frosty and frost lay on the rails. A few minutes before seven o’clock (the time of the accident), it is described by one of plaintiff’s witnesses as a dull-looking morning, and by plaintiff himself as “a little dark.’’ It may be said to have been at that uncertain time of dawn between daybreak and sunup at that season of the year, aptly described by the witnesses as not very dark and not yet day — as between daybreak and day. The condition of the light is further characterized by the fact that headlights were still being used on engines and lanterns for train signals, and yet it was light enough to see an object as large as an engine with the naked eye distinctly two blocks away. For instance, Miss Cook, one of plaintiff’s witnesses, says there was no light displayed on the front end of the engine striking plaintiff, and yet she saw the engine plainly two blocks away as she was walking between the east and west tracks facing it, herself going north at an hour when workmen were wending their several ways to their places of daily toil and she could tell it was moving. Plaintiff was fifty years old, and testified he had good eyesight, only used glasses for reading, and had good hearing. He worked at a packing house situate southwest of said crossing and had worked there for a score of years. The testimony shows that at this early morning hour, trains and engines were constantly passing the crossing and plaintiff knew the fact and was familiar with the crossing, having long passed there daily to and from work.

At the time in hand, plaintiff had come from his home on Sixth street, to the northeast of this crossing, across lots, as we infer, on a continuation of the path referred to, and got as far as this switch shanty and a little south or southwest of it and a very few feet from defendant’s east track. Some of his fellow-workmen were also there at the time. According to his story, he stood there some little while waiting for a heavy freight train to pass south on the west track, and when the caboose got by, he started to cross the east track southwestwardly towards the packing house. He had generally seen the flagman at other times standing there, when a train was due, signal the oncoming train. Sometimes he had seen him stop a man and tell him not to cross before the train. Sometimes he heard him tell such man to go fast and get over the track. But this morning he saw no flagman and heard none. He does not say he looked to see a flagman and discovered none, but merely that he saw none and that he did not look into the watch-house because the door was closed. The witness testified through an interpreter and may be allowed to tell his story in his own words. In explanation of his testimony, it may be said that there was a building, estimated at, say, a block north of the crossing, used as a beer warehouse and called a £1 brewery.” Attending to the story of plaintiff, it is as follows:

“Did you stop before you went across the track, to look to see whether or not there was an engine ? A. He said he walked on the other track and he saw it coming, but he got off.
“Q. Saw wbat coming? Ask him whether or not he looked to see whether there was an engine, and where it was before he started across? A. He said he saw the engine coming, but it was a good distance, and he don’t know whether it was north or south; he said up close to the brewery. . . .
“Q. You mean this Anheuser-Busch warehouse up there? A. Yes, sir, that is the building.
1 £ Q. Where was the engine with reference to this warehouse when you started across the track? A. He said he don’t know exactly; he said it was kind of dark and he just noticed that it was close to that brewery.
£ Q. Could you tell whether it was running or standing still? A. He said he could not say whether it was moving or still standing.
“Q. What time of day was it when you started across there? A. It was about fifteen or twenty minutes to seven in the morning.
“Q. Was it daylight or dark? A. He said it was kind of dark yet.
“Q. Ask him whether or not there was any light on the engine ? A. He didn’t see any.
“Q. Was there any light there, did he look? Did you look for any light on the engine? A. He said when he looked he didn’t see any light.
‘ ‘ Q. Which way did the engine come from that hit you? A. Prom that brewery,.or from that warehouse.
“The Court: Ask him how far it is from that warehouse up to this watch-house, or £ dog house, ’ as he calls it? A. About three hundred feet.
‘ ‘ Q. Did the engine that hit you ring any bell or blow any whistle? A. They never done either one of them.
‘Q. Which way was it facing, north or south, the engine? A. He said he could not say because he got scared, and didn’t pay no attention which way the engine was facing.
“Q. Was it running backward or forward? A. He said he could not tell.
“Q. Did you look up the track to see the engine before you started to cross? A. Yes, he said he saw it along by that wareroom.
“Judge Culver: He said he saw what? A. That engine.
“Q. Why did you attempt to cross? A. He thought that he could make it.
“Q. Was there anything up and down the track to keep the people on the engine from seeing you? A. He didn’t see anything.
“Q. Is the track straight? A. Straight.
“Q. Was it level? A. Yes, sir.
“Q. What happened to you, Mr. Mockowik? A. He got hurt in his feet and legs.
1 ‘ Q. How did you get hurt, what hit you ? A. The engine.
‘ ‘ Q. Did you ever measure the distance from the warehouse here to the dog house? A. He said he never measured it.
“Q. Did the engine stop just before it crossed the tracks, if you know? The interpreter: At the same time the engine struck him whether it stopped?
“Q. Just before it struck him. After it started here on the run down there did it stop before it struck him? A. He said he could not say whether he did or not.
“Q. Where were you with regard to being inside or outside of the last rail here when the engine struck you? A. He was just one step and he would have got outside of the track.”
On cross-examination he testified thus:
“Q. Now, when yon came np to the dog house did you stop, or did you walk right onto the track? A. He said there was one train passed, and he stopped at the dog house.
“Q. Where was the train passing? A. He went down south.
“Q. What track was that train passing on? A. On the second track from the guard house.
“Q. Now, how long did you stop there at the shanty? A. He said he has got no watch, he could not tell; probably he was three minutes, and probably five minutes; he could not tell.
“Q. Were you struck on the same track that the engine was on which you saw up toward the AnheuserBusch warehouse ? A. On the same track.
“Q. Now, when did you see this engine up the track, when you first came up to the dog house and stopped? A. He just looked and started to walk; he saw the train standing there, or coming, he did not know which, and then he went on.
“Q. Did you see that engine that struck you when you first came up and stopped at the dog house? A. No, sir; he saw him after he started from the dog house.
“Q. Did you look for an engine when you first came up and stopped at the dog house? A. No, sir.
“Q. Did you look more than once up that track, to see if there was an engine there? A. He said he just looked and seen it there, and that was all.
“Q. Ask him whether he looked more than once? Did you look more than .once? A. Just once.
“ Q. How long did you look at it, just glance at it and glance away? A. He said he just kind of glanced and went on and never paid any more attention, I suppose.
“Q. Why did you try tó cross after you saw the engine on that track? A. Well, he said that he thought he could make it very easy before she would get there.
“Q. Did you run across the track, or walk across it? A. He said like he would generally go to work, just walked.”

On further cross-examination, he said he was standing about two or three steps from the east track when he first saw the engine and he made four steps after he saw it and got caught on the fifth; that he only crossed the track — did not walk on it (south?); never looked for the engine after he stepped on the track or tried to hurry. “Only that he looked at it, saw it and that was all, and never paid no more attention to it and went along.” The following question was asked plaintiff: “Q. Could you have seen the engine all the time it was coming?” To this he answered, through an interpreter: “Pie only saw him coming and that was all. He never paid any attention to it. ”

It seems there had been a former trial of the case at Savannah, a neighboring county seat. At that trial one Klopinski was the interpreter, as one Klossnik at this. Plaintiff, being interrogated as to his testimony at the Savannah trial, stated he had an argument with Klopinski while testifying as to whether he saw the engine one hundred feet away or one hundred steps; that he told Klopinski it was one hundred steps, but Klopinski got it one hundred feet. As part of defendant’s case, counsel put on the stand the stenographer of the Savannah trial, and having proved by her that she reported the trial correctly and that the transcript shown her was correct, introduced plaintiff’s testimony at that trial and thereby it appeared he had testified as follows:

“Q. Did you see an engine or train on the track anywhere before you stepped on the railroad track, and if so where was it? A. Yes, I saw the train.
“Q. "Where was it, how far away from the place called the dog house? A. About a hundred feet.
“Q. Do you know where the brewery is located, north of the dog house ? A. About a hundred feet from there.
“Q. With respect to the brewery, where was the engine when you first saw it? A. About fifty feet from the brewery.
“Q. Was it north or south of the brewery? A. South.
“Q. About fifty feet south of the brewery? A. Yes, sir.
“Q. Do you know whether or not the engine was moving at that time? A. I can’t say whether it was in motion or not. . . .
“Q. When you first started across the tracks what is the next thing you know with respect to your injury? A. I was scared and I don’t know myself what was up.
“Q. Did you see the engine before it struck you and after you got on the track? A. I saw the engine a hundred feet but I couldn’t say whether it was running or standing still.
“Q. Did you see the engine any more after you stepped on the tracks? Did you look at it any more? A. No more than when I stepped on there the engine struck me. ...
“ Q. When you first stepped on the railroad track and saw the engine up the track how far south of the brewery was the engine at that time? A. One hundred feet. I can’t say exactly because it was in the corner there about a hundred feet south of the brewery. . . .
“Q. Is your eyesight good? A. Yes. sir.
“Q. Is your hearing good? A. Yes, sir.
“Q. On the morning of this injury as you were going to work did you stop at any time after you left Sixth street until you were injured? A. I walked right-straight from home to my work.
“Q. You didn’t stop between Sixth street and the railroad tracks ? A. I went straight through.
“Q. Did you stop when you came to the railroad track or did you keep on walking? A. I crossed right over.
“Q. You didn’t stop at all? A. I didn’t stop at all.
“Q. Where were you when you first saw the engine on the track north o-f the brewery? A. I was right at the dog house, a hundred feet.
“Q. What is a hundred feet? A. I was right at the dog house.
‘ ‘ Q. Were you just stepping on the track when you saw the engine or did you see it before you stepped on the track? A. I saw the engine before I stepped on the. track.
“Q. Where was the engine when you saw it before you stepped on the track? A. I don’t know, just the same as I said before I saw it there.
“Q. Why don’t you know? A. I saw the engine but I couldn’t say whether it was moving or not.
“Q. Where was the engine when you saw it? A. About a hundred feet.
“Q. Why don’t you know whether it was moving or standing still? A. I can’t tell that.
“Q. Why can’t you tell? A. I can’t tell that, whether it was in motion or not.
“ Q. You didn’t pay enough attention to tell that? A. I just wanted to cross over when it struck me.
“Q. I am talking about when you saw the engine first before you stepped on the track. Did you pay enough attention to it then to know whether it was standing still or moving? A. I don’t know anything until it struck me. •
“Q. Do you mean to say that you didn’t pay enough attention to that engine to be able-now to say whether it was standing still or moving. A. I couldn’t.
“Q. You couldn’t? A. No, sir.
“Q. Now you just glanced up there and saw the engine and then you paid no more attention to it? A. I saw the engine and made a run across the track and it struck me.
‘ ‘ Q. Did you see it any more except that one time, that one time when yon glanced up before you started across the track? A. Just once.
“Q. Just once? A. Yes, sir.
“Q. You never looked towards the engine any more until you was struck. You saw the engine before you started across the track and then you never looked towards it any more until you was struck? A. No, I just tried to cross the track and it hit me.
‘ ‘ Q. How many steps did you take after you saw the engine before you was struck by it? A. I don’t know whether I made one step or two.
“Q. Why do you think the engine was a hundred feet away from you when you saw it? A. A hundred feet.
“Q. Did you ever measure the ground ? A. I have crossed there so often that I just give my judgment it was a hundred feet from there.”

Having introduced evidence from other witnesses tending to show that the engine was" backing down without a light displayed, that it was running at the rate of twenty-five miles an hour over the crossing, that it ran two hundred and fifty feet while plaintiff was taking as many as two steps, that no bell was rung or whistle blown, that it did not stop at the stop-post for the crossing, that after it struck plaintiff and broke his left leg and crushed the heel of his right foot and otherwise mauled and maimed him, it ran for one hundred and fifty or two hundred feet further south before it stopped, that many people continually crossed the track at that point every day, commencing early in the morning, that plaintiff was struck just as he had his foot raised to take the last step off the track, that plaintiff was sidewise to the engine when struck and whirled about and caught the hand-hold above the footboard and clung thereto, that the flagman was not in sight — plaintiff introduced other evidence, some of it tending to show that there was no switchman on the front foot-board and, contra, tending to show there was a man on the footboard, and further ■ evidence tending to show that the men on the engine were all in the cab and making a great noise laughing and hallooing, andoneortwo witnesses conjectured they were drunk. Plaintiff also offered evidence tending to show that on a dry track, properly equipped, an engine going at five miles an hour could be stopped in seventy-five feet; ten miles an hour, in twice that distance, and so on down in proportion. By still other evidence, plaintiff showed that an engine and tender running twenty-five miles an hour could be stopped in one hundred feet under favorable conditions; at fifteen miles an hour, in sixty or sixty-five feet; and at five miles an hour in twenty or twenty-five feet.

Plaintiff introduced two or more ordinances of the city of St. Joseph tending to establish the averments of his petition relating to a five-mile rate of speed and commanding the bell on moving engines to be continuously rung and a going engine to be equipped with lights in the nighttime on the forward end. But plaintiff was neither inquired of as to whether he knew of the existence of such ordinances, nor did he testify that he knew of them or in anywise relied on such ordinances, or on defendant’s obedience thereto for his protection in crossing the track at the time.

In addition to evidence showing by estimate that many hundreds of people crossed said tracks at said hour daily, plaintiff introduced a plat of Ege’s second addition showing Fifth street platted to a few feet north of this'crossing, and that the “box” and all tracks at the locus were in the platted street. In this connection it may be said that said portion of Fifth street, if by plat dedicated to public use, was shown to be a mere paper street. Besides that it was a cul-de-sac or pocket projecting into private grounds and ending in such. There was no evidence of the formal acceptance of the plat or that any public work had been done on that part of the street. It was wholly occupied by railroad tracks, no horse vehicles of any sort were used on it, and no sidewalks, curbing, or other indicia of public user existed beyond the use indicated by pedestrians as aforesaid.

Defendant’s evidence tended to prove that the engine stopped at the stop-post and called for the crossing signal; that thereupon the flagman signaled with his lantern for it to come on; that attached to the engine was a ear intended for a mill known as Hominy Mill, which mill was reached by a switch about a block south of the crossing; that, intending to make a stop at this switch and the grade being down hill, the engineer put on steam, when signaled to come on by the flagman, to gather momentum to reach the switch; that about fifty feet or so north of the crossing steam was shut off and the engine, tender and car were proceeding south by their own momentum and gravity, at, say, six miles per hour; that the engine whs running with its forward end to the south and which end was equipped with a going coal oil headlight (the kind then in use on switch engines on defendant’s road); that a switchman with a lantern was on the west side of the front footboard in the proper position to readily signal the engineer, who was also on the west side in the cab; that the engineer was at his post of duty and attentive to his duty; that the fireman was attending the fire; that the engineer, because of the projection into the cab of the-butt end of the boiler and his position west of said butt end on the right hand of the cab, could not see a person approaching the track from the east, i. e., the left-hand side, south .of the switch shanty at the time such person reached the track when the engine was closer than fifty or so feet north of the spot; that the bell was ringing by an automatic appliance known as a “power-ringer,” an appliance manipulated by a throttle and run by steam at that time, or air; that the engineer, though looking ahead, did not see plaintiff .at all; that when a few feet, say fifteen or twenty, from the crossing he got a lantern signal to stop from the switchman on the front footboard; that at once he used every appliance for stopping and did make the earliest practicable stop in fifty or sixty feet; that the flagman’s duty, as assigned him by defendant, pertained to the passage of trains and engines and to the avoidance of collisions‘at the crossing, but that incidentally, as a matter of humanity, he warned footmen whom he saw in peril; that at and for a distance of a block or so north and south of the locus people crossed defendant’s tracks at all hours of the day, but that there were cinders and no well-marked pathway; that the switchman on the engine, so at his post of duty, first saw plaintiff when about to step on the track; that he hallooed to him and. instantly gave a signal to stop; that the engine caught him east of the drawhead, i. e., east of the middle of the track; that plaintiff grabbed for the handhold and the switchman grabbed for him, and got him around the neck and held him until the engine stopped. That plaintiff was thus saved from death is indicated by his own testimony at Savannah where he testified he was scared and did not know whether he was held up by others’ aid, but when the engine stopped he realized somebody had hold of him. By other witnesses, defendant showed the flagman was standing close to plaintiff as he started across the track; that, as he got on the track immediately before the engine, the switch-man and flagman saw him and hallooed, and others did the same, but plaintiff seemed not to hear and was rtruck almost instantly. It was shown, furthermore, that the train crew were on duty all night, were sober and had not been drinking.

Defendant also introduced an ordinance permitting it to run its trains on the streets of St. Joseph at a rate of ten miles an hour.

In this condition of the record, plaintiff assigns for error certain rulings, nisi, in that the court admitted in evidence the ten-mile ordinance, in that the court refused certain instructions prayed by plaintiff, in that the court modified an instruction asked by plaintiff and in that the court erred in giving defendant’s instructions, including one based on the ten-mile ordinance.

But, in the view we take of this case, before it becomes proper to consider said specific assignments of error, it is necessary to dispose of a larger question obtruding itself, viz., whether any error in instructions, or in introducing said ordinance and basing an instruction thereon, could materially affect the merits of this case and cause a reversal —■ in other words, had plaintiff (because of his own negligence) any case to go to the jury upon? To this larger question is due the foregoing full statement of facts and to it we now address ourselves.

I. In determining this question defendant’s testimony, where controverted, must be set to one side; because plaintiff in its consideration is entitled not alone to the full force of all uncontroverted facts, but to the full force of all his controverted evidence, and is to be allowed every reasonable and favorable inference of fact deduced from all the evidence and, hence, if there can be two views of his conduct entertained by fair-minded men, one condemning and one exonerating him, he was entitled to the verdict of a jury on his contributory negligence. If, however, there was but one view to be entertained by reasonable men of his conduct, and that view adverse to him, the question resolves itself into a matter of law; and in this case the error complained of in the admission in evidence of the ten-mile ordinance merges itself into error complained of in an instruction based on that identical ordinance. Hence, the whole assignment of error, considered in the light of right reason, would seem to be error predicated of the giving and refusing of instructions and nothing else.

II. By express statute (R. S. 1899, sec. 865), we are forbidden to reverse the judgment of any court unless we believe error was committed against appellant materially affecting the merits of the action. In establishing a working theory for the administration of this rule of written law, it has become the accepted doctrine that where a court, giving a wrong reason, arrives at a right conclusion its conclusion will not be disturbed. [Burnetta v. Marceline Coal Co., 180 Mo. l. c. 251; Bick v. Tanzey, 181 Mo. l. c. 526.]

Similarly, where a jury arrive at a just verdict, though the court held out a false light to them, or threw dust in their eyes (or, to use the warlike metaphor of one of plaintiff’s learned attorneys, “let us go to the jury but shot our legs off before we got there”) by bad instructions, yet it may not be disturbed. [Baustian v. Young, 152 Mo. l. c. 325; Cass County v. Bank, 157 Mo. l. c. 137; U. S. Mtg. & Tr. Co. v. Crutcher, 169 Mo. l. c. 458; Swope v. Ward, 185 Mo. l. c. 329; Moore v. Railroad, 176 Mo. l. c. 545, and cases cited.]

The same rule is applied in a kindred matter, to-wit, granting a new trial. [Emmons v. Quade, 176 Mo. l. c. 28-9.]

In the case at bar the learned trial court placed upon the jury the burden of passing upon plaintiff’s contributory negligence as a question of fact when, in our opinion, under the facts in judgment such course was too gracious, for that it resolved itself into a question of law and should have been decided as such and against plaintiff. Hence, the verdict (being right) should not be held for nought because voluntary, i. e., one not coerced by a mandatory instruction of the court, nor because of errors, if any, in the instructions.

III. We say the question of contributory negligence resolved itself into a question of law, and this is so because, conceding to plaintiff there was evidence tending to show the engine was backing south without a light displayed, without a bell rung or a whistle being blown, -and conceding to appellant, furthermore-, that the place was one where respondent (because running in a dedicated street, or because of the presence of factories and a well-worn path and other evidence of the long and constant user thereof by foot-travelers) had no right to expect a clear track, but, e converso, stood charged with the duty of looking out for people in danger on its tracks and with the duty of exercising ordinary care not to injure them; conceding, moreover, that the engine was running at a speed denounced by ordinance of the city and that the flagman was absent from his post of duty,'yet there can be but one opinion among reasonable men on the question of plaintiff’s contributory negligence. And this, because:

(a) He was familiar with the tracks and was of mature judgment, with hearing good and eyesight good. On the top of this, it was at an hour when engines and trains to his knowledge were in frequent passage, and, what is still more to the point, it was a time in the morning when, though not full daylight, yet the sensible use of his eye could not only detect the presence of an engine on the track at a distance from the crossing, but also would detect its motion and the direction of that motion. That he saw the engine, stands admitted; that he saw it in motion and coming on, is a fair inference from his testimony; but that he could have seen it in motion, and in motion toward him, had he taken a steady and deliberate look, i. e., used ordinary care instead of resting on a hasty' and imprudent ‘ ‘ glance ’ * and “paying no further attention,” is beyond the peradventure of a doubt. In this condition of things, the negligent absence of headlight, of bell ringing, of whistle blowing and of flagman is not deemed in the law the proximate cause of an ensuing injury. The object of headlight, bell, whistle and flagman is to announce the presence of an engine and danger. When the traveler sees the engine, and, being sui juris, must be held to know the danger, notice to him serves no purpose in the law. [Murray v. Railroad, 176 Mo. 183; McManamee v. Railroad, 135 Mo. l. c. 449; Moody v. Railroad, 68 Mo. l. c. 474,]

(b) It needs no citation of authority to sustain the proposition that there was an imperative duty resting upon plaintiff to act with reason and common sense and to look out for. his own safety when about to cross defendant’s track. He was charged with the duty of looking and listening, provided that by looking he could see and by listening he could hear. The law does not excuse those persons of mature years who have eyes and see not and ears and hear not. [Green v. Railroad, 192 Mo. 131; Schmidt v. Railroad, 191 Mo. 215.] And where one from a place of safety negligently moves to a place of danger from a going locomotive so immediately before the locomotive that those controlling it, who see him in danger, may not save him by the exercise of ordinary care, the injury is not actionable; for the negligence of defendant on the above hypothesis and the negligence of the injured party are concurrent, i. e., coincident in time and place. [See authorities supra; also, Kelsay v. Railroad, 129 Mo. 362; Campbell v. Railroad, 175 Mo. l. c. 183-4; Boyd v. Railroad, 105 Mo. 371; Moore v. Railroad, 176 Mo. l. c. 544, and cases cited; Walker v. Railroad, 193 Mo. 453.]

(c) Nor under the record facts of this case can the unlawful rate of speed be fairly considered the proximate cause of the injury. [Green v. Railroad, supra; Schmidt v. Railroad, supra.]

In fact, it would seem from his own testimony that this unfortunate plaintiff foolishly shook dice with danger and lost on the throw; for in his testimony at Savannah he says he made a “run” to get across, and in his testimony at the last trial he said he “thought he could make it.”

IY. Learned counsel somewhat rely upon the proposition that plaintiff had the right to presume that ■defendant was obeying the ordinances and governed his actions accordingly. Considering this insistence, it may be said this is not a case where the accident happened in the nighttime and where plaintiff could not see and advise himself by the exercise of ordinary care •of the presence, let alone the speed of the engine. Nor is this a case where plaintiff was killed, so that what he knew and what he relied on as controlling his conduct died with him, and hence could not be shown. In such case as that because of the presumption of a love of life and because of a presumption that a rational being would take ordinary care to avoid danger, the law in its blandness indulges other presumptions, and one of them is that it will be presumed that the decedent trusted, as he had a right to trust, that defendant was running its engine in obedience to speed ordinances and that such decedent regulated his movements accordingly. [Hutchinson v. Railroad, 161 Mo. l. c. 254, and cases cited; Riska v. Railroad, 180 Mo. 168; Weller v. Railroad, 164 Mo. 180; Sullivan v. Railroad, 117 Mo. 214.] But will the law indulge presumptions where all parties to the actual occurrence are alive and go upon the stand and the facts are fully disclosed? If plaintiff knew of the ordinances and relied on the fact that defendant was obeying their provisions and acted on that reliance, could he not have said so ? Under such conditions, reliance would seem to be a fact susceptible of proof as are other facts, and should be proved by the best evidence of which the case would admit. He of all men knew what the facts were, and, having declined to speak, may he invoke the aid of friendly presumptions? “Presumptions,” as happily stated by a scholarly counselor, ore tenus, in another case, “may be looked on as the bats of the law, flitting in the twilight but disappearing in the sunshine of actual facts. ’ ’ That presumptions have no place in the presence of the actual facts disclosed to the jury) or where plaintiff should have known the facts had he exercised ordinary care, is held in many cases, of which samples are, Reno v. Railroad, 180 Mo. l. c. 483; Nixon v. Railroad, 141 Mo. l. c. 439; Bragg v. Railroad, 192 Mo. 331. To give place. to presumptions, on the facts of this case, is but to play with shadows and reject substance.

It results from these views that the judgment should be affirmed. Accordingly, it is so ordered.

Brace, P. J., and Valliant, J., concurring; Graves, J., not sitting.


source: Caselaw Access Project

author: YALLIANT, J.

license: Public Domain

text:
    MULLIN et ux. v. ST. LOUIS TRANSIT COMPANY, Appellant.

    Division One,
    May 30, 1906.
    1. NEGLIGENCE: Contributory: Child: Matter for Jury. The court may say as a matter of law that the conduct of a man of mature years was, under certain given circumstances, negligent. But under like circumstances when it is a child whose act is in question, the question of contributory negligence is generally one for the jury. Sometimes the age of the child is such that the court may say, as a matter of law, the child was incapable of negligence. But where the question of the child’s contributory negligence was submitted to the jury, it is unnecessary on defendant’s appeal to so hold, for that was as much as defendant could ask.
    2. -: Negligent Speed of Car: Child: Obstructed View: Erroneous Instruction for Defendant. Plaintiffs’ evidence was that the motorman had an unobstructed view of the track where the child six years old was attempting to cross the tracks, and according to defendant’s the child was behind a wagon and suddenly emerged and got on the track before the motorman could stop the car after seeing him. Held, that an instruction which told the jury, in effect, that the motorman was not to be held guilty of negligence even though he ran the car at a high rate of speed at a public crossing, on which he knew persons were liable to be, when his view was so obstructed that he could not see whether or not the crossing was clear, was exceedingly favorable to the defendant, but as the verdict was for plaintiffs, the defendant cannot complain,.for it is proper to assume that the jury believed plaintiffs’ testimony that the view was not obstructed.
    3. -: Unfinished Instruction: Not Applied to Facts: NonPrejudicial. The petition alleged, among other acts of negligence, failure to sound the gong, and plaintiffs’ instruction told the jury that it was the duty of the motorman to give a signal by bell of the car’s approach, if the jury should believe from the evidence ordinary prudence under the circumstances required such a signal. Held, that the instruction is unfinished, and should have itself instructed the jury how to apply the fact, if found, unless, there are other instructions directing the jury as to the application of the facts found to exist;. hut in this case the sounding of the gong was of small consequence, for the child injured was only six years old, on whose movements the sounding of the hell could have had little or no influence, and the verdict being clearly for the right party, it will not, because of the unfinished instruction, he reversed. Besides, in this case there was another instruction which told the jury how to apply that act of negligence, if found.
    4. -: Contributory: Child: Instruction: Looking and Listening. Where the person injured by the street car was a child six years old, trying to cross the tracks at a public crossing, the court should not instruct the jury that if the child neither looked nor listened for the approaching street car, plaintiffs cannot recover. The most the defendant can ask is a direction that it was the child’s duty “to exercise the ordinary care of a person of his age and discretion to look and listen.”
    5. -: Casualty. Whether the motorman’s view was obstructed or not, it is his duty to approach with caution a public crossing where persons are liable to be; and if he approaches it with great speed, and a child is injured, the defendant cannot he excused on the ground that the injury was a mere casualty.
    6. -: Evidence: Impeachment of Witness: Material Fact. The location of a wagon which defendant contends obstructed the motorman’s view, was a material though not a very important fact, where the child killed at a public crossing was only six years old and the ear was being run at a high rate of speed. And it was not error, in such case, to permit plaintiffs to show that a witness for defendant had made contradictory statements about the location of the wagon.

      Appeal from St. Louis County Circuit Court.—IIcm. Jno. W. McElhmney, Judge.
    Affirmed.

      Boyle & Priest, J. G. Kiskaddon and B. L. Matthews for appellant.
    (1) By the first instruction given at the instance of plaintiffs, they predicate their right to recovery solely on the failure of defendant’s motorman to observe the vigilant watch ordinance. They abandon all other allegations of negligence contained in the petition. But by their third instruction it is declared to be the-absolute duty of the motorman to sound his gong wben approaching the crossing at or near which deceased was struck, if it was a public crossing, and if persons crossing thereon were liable to be struck, but the instruction has no conclusion. It does not require the jury to find that he did fail, nor what the consequences would be if they found that he did fail. Sounding the gong has nothing to do with keeping a vigilant watch. ' Therefore, the instruction as given is contradictory and misleading, and, if the first instruction was the one upon which plaintiffs relied for recovery, the third is erroneous and ought not to have been given. Chandler v. Kansas City G-. Co., 174 Mo. 327; Newell v. Company, 5 Mo..App. 259; Thomas v. Babb, 45 Mo. 387; Dlauhi v. Railroad, 105 Mo. 653. (2) The third instruction is erroneous for another reason. It does not follow that, because the crossing was a public one, or because persons crossing thereon were liable to be struck by a passing car, the motorman was bound to sound his gong. There was nothing to show that persons were peculiarly or even ordinarily liable to be struck by passing cars. This crossing was not at the intersection of a street, but was in the middle of a. long block and consisted of stepping-stones over an ordinary macadamized street. It does not appear that it was in frequent use. Now, the only ‘ ‘ circumstances ’ ’ recited in the instruction are the facts that it was a public crossing and persons using it were liable to be struck by passing cars. Prom this the jury would naturally infer that these two facts were the “circumstances” which required them, if they believed the gong had not been sounded, to conclude that ordinary prudence had not been exercised. It is submitted that the two instructions, first and third, taken together, are misleading. The jury might think, and be ready to find, that the motorman had kept a vigilant watch, bnt simply because he had not sounded his gong conclude to find for plaintiff. Keown v. Railroad, 141 Mo. 94; Schmidt v. Railroad, 163 Mo. 645. (3) The court erred in refusing to give instruction 13, asked by defendant. If deceased was of such tender years as to be incapable of contributory negligence, and if the jury found the facts to be as recited in said instruction, then the casualty could only be an inevitable accident. The evidence fully warranted such an instruction. Wendall v. Railroad, 100 Mo. App. 562; Saxton v. Railroad, 98 Mo. App. 499; Lynch v. Railroad, 102 Mb. App. 642; Campbell v. Railroad, 175 Mo. 184; Maschek v. Railroad, 71 Mo. 276; Kennedy v. Railroad, 43 Mo. App. 1; Lee v. Jones, 181 Mo. 299.

      A. B. Taylor for respondents.
    (1) The first point for a reversal made by appellant is something quite involved and baffles legal analysis. We take it to be a contention, or claim, that instructions 1 and 3 of the instructions given at the request of the plaintiffs should not both have been given. The criticism seems to be that, as the first instruction given for plaintiffs was grounded for a recovery upon a failure by the motorman to observe the ordinance pleaded and offered in evidence, therefore, it was error to instruct the jury, as in the third instruction, as to the duty of the motorman to ring a bell as the car approached the crossing on which plaintiffs’ child was killed. There appears no objection to instruction 1, which the court will see is based on' the allegations of the petition and proof offered. The third instruction is founded not only on the'general rule requiring ordinary care, but under the rule expressly held by this court. Schmidt v. Railroad, 163 Mo. 658; Koenig v. Railroad, 173 Mo. 725. (2) Appellant complains that the trial court modified its instruction as asked by inserting after the words “defendant’s track,” in the sixth line, the words “to exercise the ordinary care of a person of his age and discretion” to look and listen. The instruction as drawn omitted this qualification, and declared, as a matter of law, that a boy of his age and discretion must look and listen for an approaching car, and, without the modification, put the child upon the same level as an adult. Dlauhi v. Railroad, 105 Mo. 654; Spillane v. Railroad, 135 Mo. 415.
   YALLIANT, J.

Plaintiffs’ child, six years old, was struck and killed by one of defendant’s street ears at a crossing in Easton avenue.

The petition states that the accident was caused by the negligence of defendant’s servants in running the car, without giving any warning by bell or otherwise or using any care to watch for persons on the crossing or to control the movement of the car in approaching the crossing or to slacken its speed or stop it so as to avert the injury. The vigilant watch ordinance was also pleaded and negligence in failing to observe its requirements. The answer was a general denial and a plea of contributory negligence. There was a judgment for plaintiffs for $5,000, and defendant appealed.

The evidence in behalf of plaintiffs tended to prove as follows:

The scene of the accident was on or near a foot crossing leading south from the campus of the Christian Brothers College across Easton avenue between Kings Highway on the east and Academy avenue on the west. It was a paved crossing, leading into and from the college grounds; it was 540 feet west of Kings Highway and 160 feet east of Academy avenue. Easton avenue is a wide public street running east and west; the other two streets above named, the one east, the other west, of the crossing, run north and south, intersecting Easton avenue at right angles. Defendant operated a double-track street railroad in Easton avenue. Prom Academy avenue to Kings Highway along defendant’s tracks the grade is slightly declined. The car which struck the plaintiff’s 'child was going east, down the south track, running fast. The plaintiffs’ witnesses did not undertake to state in miles per hour the speed at which the car was going, they only said it was going quite fast, but the motorman as a witness for defendant stated that he was going ten miles per hour.

Plaintiffs lived in this neighborhood, two or three blocks from the scene of the accident. The child had gone with his two brothers, the eldest of whom was eleven years old at the time of the trial, to a grocery store east of Kings Highway and they were returning home; there was another boy seven or eight years old with them. After crossing Kings Highway returning home they were walking west along the north sidewalk in Easton avenue when a wagon overtook them going in the same direction and the oldest boy got on behind the wagon; the other boys followed after it until they came to the steps leading into the college grounds, where they all stopped except the boy who was on the wagon, who went on in it. Then the three boys who stopped at the steps started to go across the street on this foot-crossing that has been mentioned. One of plaintiffs ’ witnesses said that one of the boys held the hand of this little one, leading him, the others did not so testify, hut they all said that the children were in the act of crossing the street, the other two in front and the child who was killed in the rear; a mail carrier standing on the steps leading into the college grounds, seeing the car coming holloed “Stop;” the little one looked back when the man holloed, but did not stop. At the time the man holloed the child was in the space between the two tracks and the next instant he was in the south track and the car struck him; the two others got across safely. It was 160 feet from Academy avenue to the crossing; according to the plaintiff’s testimony there was nothing to obstruct the motorman’s view of this crossing and he could have seen these children if he had been looking; but the car came swiftly on, without signal or warning and without attempt to check the speed; it ran 100 or 130 feet after striking the child.

The main point of difference between the plaintiffs’ testimony and the defendant’s is in regard to the position of the wagon that has been mentioned. According to the plaintiffs’ testimony the wagon was close to the curb along the north sidewalk, had passed beyond the crossing and had nearly or quite reached Academy avenue before the accident; whereas according to the defendant’s testimony the wagon was in the north track of the railroad and was near the crossing and so obstructed the motorman’s view that he could not see the crossing at that point or the children who were behind it, and that this child emerged so suddenly from behind the wagon and on to the south track so closely in front of the car that it was impossible to avoid running over him.

The motorman testified that he saw the two children who crossed the track and that they crossed when he was 250 feet away, but that he did not see this child until “he darted from behind the wagon over on to the south track;” that the wagon was only ten or twelve feet west of the crossing and the front end of the car was about tbe center of the wagon when the child came out from behind it; that as soon as he saw the child hé used every means in his power to stop the car, using the brake, reverse lever and controller and did stop in about seventy-five or one hundred feet.

The facts in this ease are quite similar to those in the case of Hafner v. Railroad, 197 Mo. 196, in which ease we held that the plaintiff could not recover because the evidence for the plaintiff showed that the deceased was himself guilty of negligence which contributed to the result. The important feature, however, which distinguishes this case from that is that whereas in the Hafner case the victim of the accident was a full-grown man, in this case it was a child six years old. The court may say as a matter of law that the conduct of a man of mature years was, under certain circumstances, negligent, whilst under like circumstances when it is a child whose act is in question, the question of negligence is generally one for the jury. Sometimes the age of the child is such that the court, as it did in the case of Livingston v. Railroad, 170 Mo. á52, may say as a matter of law that the child is incapable of negligence. But in the case at bar there is no occasion for us to pass on that question, because under instructions both for the plaintiffs and the defendant it was submitted to the jury and that is as much as defendant could have asked.

Defendant sought to prove that the wagon going west in the north track shut off the motorman’s view of the crossing as he was going east on the south track and rendered it impossible for hire to see the child until it suddenly emerged from behind the wagon immediately in front of the car and therefore the motorman was not guilty of negligence. The trial court seems to have taken that view, and at the instance of the defendant instructed the jury that under those facts the plaintiffs could not recover on the theory that the motorman failed to keep a vigilant watch or stop the car in the shortest time and space possible. Under that instruction the motorman was to he held not guilty of negligence even though he ran his car at a high speed to a public crossing, on which he knew persons were liable to be, when his view was so obstructed that he could not see whether or not the crossing was clear. That was a very favorable instruction to defendant, but as the verdict was for the plaintiffs we must assume that the jury credited the witnesses for the plaintiffs who testified that the wagon and car passed each other at or near Academy avenue, and that the jury concluded therefore that there was nothing to obstruct the motorman’s view of the crossing. According to the testimony of the motorman himself he must have approached the crossing at a high rate of speed and without any regard to the crossing for he said that after striking the child the car ran from seventy-five to one hundred feet although he applied the brake and reversed the power.

Appellant complains of the third instruction for plaintiffs which in effect tells the jury that if they find from the evidence that that was a public crossing on which persons were liable to be, it was the duty of the motorman to use ordinary care and to give a signal of its approach by bell or otherwise if the jury should believe from the evidence that ordinary prudence under the circumstances required such signal. Appellant’s criticism of the instruction is that it does not instruct the jury as to what the consequence would be if they did find that the motorman did fail to give such signal.

The instruction does leave the subject unfinished. An instruction in that form is proper enough to aid a jury in finding whether or not a defendant has been guilty of negligence in a particular charged, in a case where there are other instructions directing the jury as to what application should be made of the fact found either alone or in connection with other facts, as the case may be, but in an action founded on negligence when an instruction informs the jury that certain facts if found, constitute negligence, the instruction should direct the jury how to apply the facts to the case in hand unless other instructions do so. In this case although the petition alleges among the acts of negligence, which caused or combined to cause the accident, the failure to sound the gong, yet the plaintiffs asked no other instruction on that point except the one now under discussion, and therefore so far as the instructions given for the plaintiffs go, the jury would not know what to do with the fact after they had found it. But the sounding of the gong was a matter of small consequence in this case; it could have had little if any influence on the movements of a child six years old, and the verdict is so clearly for the right party that we would not feel justified in reversing the judgment for so small an error. Besides the instructions given at the request of the defendant remove any difficulty that the unfinished state of the plaintiffs ’ instruction on this point produced. Among the acts of negligence which, in the defendant’s instructions, the jury are informed the plaintiffs charge, is the failure to give signal by bell or otherwise and in that connection the jury are told that the burden is on the plaintiffs to prove “that one or more of the said alleged acts of negligence was or were the efficient and proximate cause of the death of said Mark, and unless the plaintiffs have so proven, the verdict must be for the defendant.” That means that unless the failure to ring the bell was the cause or one of the causes that produced the injury it could not be charged up against the defendant.

There was nothing wrong with this instruction of the plaintiffs as far as it went. Here was a public crossing leading into the college campus; the defendant itself realized that its duty was under the circumstances of this case to sound the gong, and the motorman testified that he did so.

The sixth instruction asked by the defendant was to the effect that if as the car approached the crossing the child was concealed behind the wagon, then it was his duty to himself and to the defendant, after leaving that position and before attempting to cross the railroad tracks, to look and listen for a coming car, and if he stepped on the track in front of the car without first looking and listening it was his fault and the plaintiffs could not recover. The instruction in that form would have put the child on an equal footing with a person of mature years; therefore, the court modified it by inserting words to make it say that it was the duty of the child “to exercise the ordinary care of a person of hiá age and discretion to look and listen. ’ ’ The instruction as thus modified was as favorable to the defendant as it had any right to ask.

In the argument for appellant on this instruction it is contended that even if it was not contributory negligence in the child to pass from his position of concealment behind the wagon on to the track, still the act of the child was the sole cause of the accident and if the child was incapable of negligence then the result was a mere casualty for which no one was to blame.

This instruction is not based on the mere casualty theory, it concludes with saying that failure to look and listen “was negligence on his part which directly contributed to his death, and the verdict must be for the defendant.” But defendant did ask an instruction based on the mere casualty theory, which the court refused, and properly so, because the evidence neither for the plaintiff nor defendant supported that theory; whether the car came down at a high rate of speed with the track in clear view of the motorman and the children on it, as the plaintiffs’ evidence tended to prove, or whether the motorman’s view was obstructed by the wagon, as'he himself said, it makes little difference; he knew that the crossing was there, that people were liable to be on it, and if his view was obstructed he should have approached it with caution.

One of defendant’s witnesses testified that the wagon mentioned was in the north track; on cross-examination lie was asked if lie had not on a certain other occasion said that it was between the north track and the curb along the sidewalk and he denied having made the statement; afterwards plaintiffs’ were permitted over the objection of defendant to introduce evidence tending to prove that the witness had made such statement. That is assigned for error, appellant contending that it was attempting to impeach a witness on an immaterial matter. The location of the wagon was a material, although not a very important fact in the case tending to corroborate, as the fact might be found to be, either the theory of the plaintiffs’ testimony .that the motorman’s view of the crossing was clear, or that of the defendant’s evidence that it was obstructed. The ■court did not err in receiving that evidence. . .

We find no error in the record of which the defendant has any cause to complain. The judgment, is .affirmed.

All concur.


author: GRAVES, J.

text:
    KANSAS CITY & NORTHERN CONNECTING RAILROAD COMPANY, Appellant, v. BAKER et al.
    Division One,
    May 30, 1906.
    ■CONDEMNATION: Title to Land: Former Appeal: Subsequent Trial by Jury. The commissioners in a condemnation proceeding awarded a lumping sum to defendants, and, the amount being deposited in court, one of the defendants filed a motion asking that this sum be paid to it, as it was the sole owner of the land. This motion being overruled, that defendant appealed, and this court decided that the other defendants had no interest in the land and directed the trial court to order the money paid to that appealing defendant. In the meantime, the other defendants asked a trial by jury, which being awarded, the jury found that the other defendant had no interest in the property and awarded to the said defendants a sum in excess of the lump sum paid in, and the court directed that that sum be applied ratably upon the awards allowed and that execution issue for the balance, and from this judgment the plaintiff appealed. Held, that the former appeal disposed of all matters in issue, and that this last judgment will be reversed with directions to pay the lump sum to the defendant which on that appeal was held to be the owner of the land.
    Appeal from DeKalb Circuit Court.—Row. A. D. Burnes, Judge.
    Reversed and remanded (loith directions).

      J. G. Trimble for appellant.
    (1) The court should have sustained plaintiffs’ motion to first take up and try the issue as to ownership of property. The Hannibal & St. Joseph Railroad Company was satisfied with the award. If it should have been declared the owner of the property (as it afterwards was by the Supreme Court), there would have been no expensive trial, no double appeals of the case to the Supreme Court, and the trial would have been simplified very much. The anomaly of a judgment in favor of parties wholly without interest in the land, as now exists, would have been prevented. (2) The judgment in this case requires the clerk of the court to pay over to Baker and Morse the $600 deposited by plaintiff, and orders same to be credited upon the judgment rendered in favor of said defend-, ants. That much of the judgment has already been reversed by the decision in Railroad v. Baker, 183 Mo. 312. ■ If this judgment be affirmed, it will present the anomaly of this court affirming a judgment already reversed and ordering money, already ordered by this court to be paid to the Hannibal & St. Joseph Railroad Company, paid to Baker and Morse who have no interest whatever in the land in controversy.
   GRAVES, J.

-On October 30, 1899, the appellant, the Kansas City & Northern Connecting Railroad Company, instituted proceedings in the circuit court of DeKalb county to condemn the following described land, to-wit:

“A strip, tract or parcel of land situated in the village of Osborn in DeKalb county, Missouri, described as follows: Beginning at the southwest corner of Clinton and Baker streets, and running west along the south side of Baker street, three hundred and twenty-five feet to the southeast corner of Baker and Hunt streets; thence south along the east side of Hunt street sixty-two feet, more or less, to the right of way of the Hannibal & St. Joseph railroad; thence southwesterly, and along the right of way of the Hannibal & St. Joseph railroad three hundred and twenty-six feet, more or less, to the west side of Clinton street; thence north along the west side of Clinton street eighty-three feet, more or less, to ithe point of beginning, containing fifty-four hundredths of an acre, more or less.”

In this proceeding I. E. Morse, P. J. Householder, William H. Carr, Aaron Carr, Henry Baker and the Hannibal & St. Joseph Railroad Company were- made defendants. The commissioners appointed by the judge of the circuit court, by their report filed with the clerk of said court, made a lumping award of damages in the sum of $600. This sum was deposited with the clerk of the circuit court by the plaintiff herein.

The defendant, the Hannibal & St. Joseph Railroad Company, filed no exceptions to the report of the commissioners, but filed a motion asking the court to make an order directing the clerk to pay over to it the full amount of said award, on the ground that it was the sole owner of the property sought to be condemned. This motion was overruled, and after final judgment in the circuit court, upon exceptions filed by other defendants, in which it was held that defendant, the Hanrubai & St. Joseph Railroad Company, had no interest in the property, an. appeal was duly perfected to this court by said defendant.

The defendants, Baker and Morse, filed exceptions to the report of the commissioners, and in the same trial in which it was found, under the direction of the trial court, that the Hannibal & St. Joseph Railroad Company had no interest in the property, in a trial by jury, the defendant Baker was awarded $750 damages and the defendant Morse $550 damages, by the verdict of said jury. Judgment was entered in accordance with the verdict, and an order was made directing that the $600 upon deposit with the clerk be applied upon such judgment as follows: $346.15 to defendant Baker, and $253.85 to defendant Morse, and an execution issue against the plaintiff in favor of defendant Baker in the sum of $403.85, and in favor of defendant Morse, for $296.15.

Prom this judgment and order, after unsuccessful motion for new trial, the plaintiff herein in every way duly perfected this appeal, and this cause is here now upon its said appeal.

Defendants B. H. Householder, William H. Carr and Aaron Carr were, by the same judgment, found to have had no interest in the property, but they abided the judgment of the lower court and took no further steps.

The appeal of the defendant, the Hannibal & St. Joseph Railroad Company, was here at the April term, 1904, of this court. The facts therein were the identical facts herein, and are set out in full in the opinion of Marshall, J. [Railroad v. Baker, 183 Mo. 312.] This renders a further statement of facts superfluous.

In the opinion therein filed, it was said:

“It follows that Baker has no title to the land and no rights to the proceeds of the condemnation thereof, and as Morse is a lessee under Baker, he has no right to any part of such proceeds. The Hannibal & St. Joseph Eailroad Company is entitled to the damages aris-' ing from the condemnation of the land by the plaintiff, and as that company does not question, the power of the plaintiff company to condemn the land as against it, and as no one else can question that right, the judgment of the circuit court is reversed, and the cause remanded to that court with directions to that court to set aside the verdict of the jury, and also its action in sustaining the exceptions of Baker and Morse to the award of the commissioners, and to sustain the motion of the Hannibal & St. Joseph Railroad Company for the payment to it of the damages assessed by the commissioners.”

It, therefore, follows, under the authority of that case, that this cause should be reversed and remanded to the circuit court of DeKalb county with directions to set aside the judgment herein, and to render judgment in said court to the effect that the said defendants, Baker and Morse, have no interest in the land in controversy, and the title thereto to be decreed by the court to be in the appellant herein, the Kansas City & Northern' Connecting Eailroad Company, by virtue of its condemnation proceedings.

All concur.'